Like any business, when staffing reductions need to be made, a district may eliminate positions and can often “layoff” the individuals in those positions. Staffing reductions in public education can be based on reductions in student population, the elimination of a district program or a financial crisis leading to a budget shortfall. The term commonly used in public education for such a staff reduction or layoff, is a “reduction in force” or “RIF” for short.
Following are answers to questions that educators and other district employees frequently ask when they hear that a RIF is threatened or where they are told that their own position is being eliminated. While this information is generally accurate, readers should remember that many specific RIF processes are left to the school district and so should consult their local policies for specific information.
Can a district decide to eliminate positions and terminate employees even if they have done nothing wrong?
Yes. State law allows the district to terminate the employment of both contract and non-contract employees due to a “program change” or a financial crisis or “financial exigency.” After the last major round of RIFs across the state in 2011, the Texas Legislature substantially amended the law, creating a significant distinction between RIFs based on a program change and RIFs based on a financial exigency. In either case, state law provides that the decision may usually 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 the RIF process and policy. The RIF process is required only in the termination or nonrenewal of certified educator term or continuing contracts or the termination of certified educator probationary contracts during the school year.
When deciding who will be subject to a RIF, districts often take the path of least resistance.
Where possible, non-contract positions or, at the end of the school year, educators with probationary contracts will often be chosen because the district is not required to provide as much due process to those individuals. Where the RIF process and policy does apply, the policy will set out how the district selects the educators that will be affected.
When it applies, how does the district make selections under its RIF policy?
The majority of the public education workforce is made up of certified educators holding term or continuing contracts so the RIF policy is significant when a district decides to reduce staff. The RIF procedure is set in official local school board policy. For that reason, you need to check your local policy. It is common, however, for local policies to provide that:
- The decisions as to which employees are affected first are made by determining the “employment area” 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 may be small and involve only one.
- Once the affected “employment area” has been determined, the district decides how many positions in that area are to be eliminated. If the cuts will involve some but not all the employees in the area, the district must decide who in that area will be targeted. The decision as to which educators in that employment area will be personally subject to the RIF is made using specific criteria, which should be set out in district policy. A common policy lists, in order of importance:
(1) Certification status.
(4) Professional background.
But your district policy may have a different list of criteria so it is important to check your local policy.
- Once identified, the employees affected are given official written notice, which must include an explanation of their right to appeal the decision.
- “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 for their non-contract staff.
- State law provides that certified educators employed under a probationary contract may be terminated at the end of the school year by the school board determining that “it is in the district’s best interests” to do so and notifying the educator of the determination before the 45th day before the last instructional day of the school year. Again., the district can reduce staff by employing this provision without using the district’s RIF policy procedures.
What is the difference between a RIF that is based on a financial crisis and a RIF that is based on a program change?
One of the biggest changes made by the Legislature after the 2011 RIFs was to add significant hurdles to a district intending to reduce staff because of a financial crisis, termed a “financial exigency”.
Texas Education Code §44.011 allows a school board to declare a financial exigency at any time it feels it appropriate and the situation meets the definition of a financial exigency, generally due to a loss of revenue, found in Commissioner rules. tea.state rules/tac/chapter109.html.
When a board declares a RIF based on a financial exigency, the district may use the RIF process to eliminate positions and end the employment of staff. The due process required for each staff member is determined by what type of contract the staff member has.
- Probationary contract: After the educator files an appeal, a termination during the school year follows the procedure of a term contract non-renewal. The RIF procedure does not apply to a termination at the end of the school year.
- Term contract: After the educator files an appeal, a termination during the school year follows the same process as an end-of-year non-renewal, which provides less protections than the normal mid-year termination process.
- Continuing contract: A continuing contract can likely only be terminated due to a RIF at the end of the school year. After the educator files an appeal, a termination during the school year follows the procedure of a term contract non-renewal.
A program change RIF differs from a financial exigency RIF as it can occur even without the circumstances meeting the legal definition of a financial exigency. A program change simply means that the district has decided to eliminate one or more employment positions in the district.
A RIF based on a program change is governed by the usual procedures for a performance-based non-renewal or termination. Most if not all districts include a program change as one ground for contract non-renewal in district policy.
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 of an appeal depends, on whether you are a contract employee or a non-contract (“at-will”) employee. For contract employees, the appeal process also depends on what type of contract you hold, when the RIF will occur and whether it’s based on a financial exigency or program change, as explained above.
Although at-will employees are not entitled to the 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?
It is common that employees identified as subject to the RIF may apply for any available position for which they are qualified. Under most policies, an employee is 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 and find another position that a targeted educator would be qualified for and cannot terminate the educator’s employment if such a position exists. Most districts do attempt to locate positions as doing so is simply easier than the RIF process for them as well as the educator.
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 he or she meets the district’s objective criteria for the position and is the most qualified internal applicant and, 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.
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. While the ATPE Member Legal Services Department is unable to answer questions or assist with unemployment issues due to the exclusion in the Educator’s Professional Liability Insurance Policy*, a great resource is: https://twc.texas.gov/jobseekers/unemployment-benefits-services .
The Texas Workforce Commission handles all unemployment claims and their website explains what the benefits are, how you apply, how you appeal a rejection. The website 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 and so it has been designed to be very “user friendly” for the legal layperson.
These advantages must be balanced with the possibility that no position will be available. Although prospective employers perceive a termination resulting from a RIF very differently from a termination for job performance, it is still a termination that will have to be reported on subsequent applications.
Does a district have any options other than a RIF if there is a financial shortfall?
In 2011, the Texas Legislature established that school districts can consider two alternatives to eliminating staff through a RIF when the district is facing a budget shortfall: a furlough and a staff salary reduction. The law requires the district to follow specific procedures when considering or using either of these options.
- Public and staff input is required. Texas Education Code §21.4022 requires that the local school board, prior to implementing a furlough or salary reduction must allow staff to express opinions at a public meeting and must also schedule a public meeting with the board and administration present to provide information to the public as to what options were considered and how the furlough or salary reduction would limit RIFs. The staff and public must be allowed the opportunity to comment at the meeting.
- Furloughs are highly regulated. Texas Education Code §21.4021 provides specific limitations on how a district can implement a furlough. For example, the furlough must affect all contract personnel, cannot affect instructional days and cannot result in an increase in workdays.
- Reduction to salary are also regulated. Texas Education Code 21.4032 provides that when salaries for classroom teachers are reduced because of “district financial conditions” rather than teacher performance, the district is required to reduce administrator salaries by the same percentage as teacher salaries were reduced. This rule applies only to reductions caused by financial conditions. Other law governs reductions based on changes to an educator’s assignment.
Again, these provisions apply only to staff employed under contract. The district generally remains free to change working conditions of non-contract, at will staff, including enacting furloughs or salary reductions at any time, although any affected employee can grieve the district’s decision.
It is important to recognize that every situation is different and that general information is not a 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**.
*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 insurance policy details here. 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 eligibility for the appropriate membership category. The membership year runs from Aug. 1–July 31.
**The insured member services and staff attorneys’ assistance are offered through separate programs.