Reductions in force
When facing a “financial exigency,” which means a circumstance in which a district must reduce expenditures (often due to decreased financial resources), a school district may initiate a reduction in force, or “RIF,” to reduce the size of the district staff and thereby reduce expenditures. State law provides that a need to cut expenses can be good cause to nonrenew or terminate a contract.
State law does not mandate a specific process for nonrenewal in this instance, so the following information is general in nature and is based in part on common practices rather than legal requirements. As such, your district might have different policies and procedures than those described here. For that reason, if a RIF is threatened, it is important for you to obtain a copy of your district’s local policies to determine what specific procedures are used. Often, the district administration is willing to explain the RIF process to an employee with questions.
Can the district terminate employees even if they have done nothing wrong because of a budget crisis?
Yes. Both state law and most if not all district policies allow a district to terminate the employment of both contract and noncontract employees when the district can show that termination is necessary due to a financial crisis or “financial exigency.” However, state law provides that the decision may be appealed.
How does the district decide which employees should be let go?
There are a number of steps that a district can take to reduce personnel, and not all require the district to use its RIF policy. The RIF policy generally applies to the termination or nonrenewal of certified educators’ term contracts. Other policies may govern the employment of other staff members. However, the majority of the public education workforce is made up of certified educators holding term contracts, so the RIF policy is a particular focus.
The RIF procedure is set in official local school board policy. For that reason, you need to check your local policy. Local RIF policies commonly include the following provisions:
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The decision as to which employees are first affected is made by determining the “employment area(s)” that will be reduced. The employment area is determined by the board based on superintendent recommendations. Examples of what could be an “employment area” are: a particular elementary grade, a particular secondary program, or a particular administrative position or department. Most policies provide the board with a great deal of latitude in determining the employment area, which means the area selected may be large and involve hundreds of educators, or it may be small and involve only one. Once the affected “employment area” has been determined, the decision as to which educators in that employment area will be personally subject to the RIF is made using specific criteria in the district’s policy, which are listed in order of importance as:
(1) Certification status.
(2) Performance.
(3) Seniority.
(4) Professional background.
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The employees affected are given official written notice, which must include an explanation of their right to appeal the decision.
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“At-will” staff members, or those employed without a contract, can, under both state law and most district policies, be terminated at any time and for any reason, except an illegal reason. Most districts will not have to employ their RIF policy to determine what reductions to make in the size of their noncontract staff.
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State law provides that certified educators employed under a probationary contract may be terminated at the end of the school year by the board’s determining that “it is in the district’s best interests” to do so and notifying the educator of the determination before the statutory deadline. Again, the district can reduce staff by employing this provision without using the district’s RIF policy procedures.
Can I appeal the decision if I am notified that my employment is to be terminated?
Yes, as long as you do not waive that right by failing to appeal before the deadline specified when you receive official notice that you will be subject to the RIF.
The process for appealing depends, most importantly, on whether you are a contract employee or a noncontract (“at-will”) employee. For contract employees, the appeal process also depends on what type of contract they hold and when the RIF will occur. As set out in state law and district policies, most certified contract employees are entitled to a due process hearing. Although at-will employees are not entitled to the full due process hearing that the law provides to certified contract staff, they can file a grievance to appeal the decision. Probationary contract holders who are terminated effective at the end of the school year “in the best interests of the district” may also file a grievance.
If my position is eliminated, does the district have any obligation to find a position for me if one becomes available?
This depends on the circumstances. It is common that employees identified as subject to the RIF may apply for any available position for which they are qualified. Under the policy, an employee is, however, usually responsible for reviewing posted vacancies, submitting an application for a position and otherwise following standard district procedures to be considered. The commissioner of education has ruled, however, that a district has a duty to try to find another position that a targeted educator would be qualified for and cannot terminate the educator’s employment if such a position exists.
I have been told that it would be better for me to resign rather than have the board vote to terminate me. Is this true?
This depends on individual circumstances. It is common for local policy to require that, up until the date of a requested hearing, an employee applying for an open position be offered the position if she meets the district’s objective criteria for the position and is the most qualified internal applicant; also, as noted above, a district may have a duty to look for a position for the educator. In other words, those employees who request a hearing rather than submitting a resignation may receive priority for any available positions. In addition, it is always possible that the Legislature will provide additional funding to districts, thus relieving the crisis to some extent.
Finally, an unemployment claim partly rests on being able to show that the separation of employment was not voluntary, so it can be dangerous for an educator to resign without documentation establishing that the district would have terminated them had they not resigned. Although the ATPE Member Legal Services Department** is unable to answer questions or assist with unemployment issues due to an exclusion in the Educators Professional Liability Insurance Policy,* this page is a great resource:
Texas Workforce Commission—Unemployment Claim and Appeals Information. The Texas Workforce Commission handles all unemployment claims, and the commission’s website explains what the benefits are, how you apply and how you appeal a rejection. It even has an online application process. The application and benefits determination process has been designed with the assumption that most claimants will not have access to legal assistance, so it has been designed to be very user-friendly for the legal layperson.
Consideration for open positions and the availability of unemployment benefits must be balanced with the possibility that no position will be available. Although prospective employers perceive a termination for a RIF very differently than a termination for job performance, it is still a termination that will have to be reported on subsequent applications.
It is important to recognize that every situation is different and that general information is no substitute for specific advice. If you are threatened with job loss, you should obtain individual advice as to your rights and options. Eligible ATPE members can obtain this advice by contacting the ATPE Member Legal Services Department.**
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The legal information provided on this website is for general purposes only. It is not intended as a substitute for
individual legal advice or the provision of legal services. Accessing this information does not create an
attorney-client relationship. Individual legal situations vary greatly and readers should consult directly with an
attorney. Eligible ATPE members should contact the ATPE Member Legal Services Department using our
online system, MLSIS.
*THE EDUCATORS PROFESSIONAL LIABILITY INSURANCE POLICY IS UNDERWRITTEN BY NATIONAL UNION FIRE INSURANCE CO. OF PITTSBURGH, PA. ALL COVERAGE IS SUBJECT TO THE EXPRESS TERMS OF THE MASTER INSURANCE POLICY ISSUED TO ATPE AND KEPT ON FILE AT THE ATPE STATE OFFICE. Coverage applies to an insured’s activities within his/her professional capacity and does not apply to activities that predate the coverage period. View a summary. Eligibility for ATPE membership benefits is contingent upon ATPE’s receipt of the entire annual membership dues amount for your appropriate membership category. A disruption in payments to an authorized payment plan may result in discontinuation of such benefits, including cancellation of insurance coverage for the entire membership year retroactive to Aug. 1 or your membership date. ATPE reserves the right to determine the appropriate membership category. The membership year runs from Aug. 1 to July 31.
**The insured member services and staff attorneys’ assistance are offered through separate programs.
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