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Part-Time Playground Employees Will Soon Be Part of the Classified Service AB 670 – DWK Responses to Frequently Asked Questions (FAQ’s)

  • December 07, 2017

December 07, 2017

Assembly Bill 670 (Thurmond) amends Education Code section 45103 to include part-time playground positions as part of the classified service, effective January 1, 2018.  The law previously exempted from the classified service a part-time playground employee who was not otherwise employed in a classified position.  This new law applies only to school districts not incorporating the merit system.  Significantly, Education Code section 45256, which is applicable to merit districts, was not similarly amended by AB 670.  This new law also applies to all persons employed by the county superintendent of schools, or any division thereof.

This FAQ addresses the implementation of AB 670 and common questions that have arisen since its adoption.

  1. What happens to part-time playground employees on January 1, 2018?

On January 1, 2018, part-time playground employees of non-merit system districts and county office employees automatically become part of the classified service.  Therefore, all statutory provisions that apply to classified employees, including sick, vacation, and other leave rights, will apply to part-time playground employees.  For example, Education Code section 45101(a) provides that “[c]lassification means that each position in the classified service shall have a designated title, a regular minimum number of assigned hours per day, days per week, and months per year, a specific statement of the duties required to be performed by the employees in each such position, and the regular monthly salary ranges for each such position.”  We recommend that public education employers be prepared to comply with this provision as of January 1, 2018. Additionally, except as superseded by an applicable collective bargaining agreement, all Board Policies covering classified employees (generally in the 4000’s) will apply to part-time playground positions as of January 1, 2018.

  1. Are part-time playground employees automatically placed into a classified bargaining unit on January 1, 2018?

It depends.  Part-time playground employees are not automatically placed into a classified bargaining unit on January 1, 2018, unless that unit is wall-to-wall (e.g., covers all existing classified employees) and the recognition clause in the collective bargaining agreement clearly states that all newly created positions must be placed into that bargaining unit.  For example, a recognition clause of a wall-to-wall classified bargaining unit that states, “All newly created positions, except those that lawfully are certificated, management, confidential, or supervisory, shall be assigned to the bargaining unit,” will likely result in the automatic placement of part-time playground employees into the unit, regardless of whether they wish to be represented.

If an employer’s classified employees are in multiple bargaining units, or if the unit description does not clearly include all new positions, then part-time playground employees would not automatically be placed into any unit as of January 1, 2018.

Unrepresented part-time playground employees can be added to a bargaining unit if the union seeking to add them files a unit modification petition with the Public Employment Relations Board (“PERB”).  While the addition of part-time playground employees into a bargaining unit can be mutually agreed upon between the bargaining unit and the employer, if the addition of the part-time playground employees would increase the size of the existing bargaining unit by 10 percent or more, the petition will require proof of majority support of the playground employees.

  1. Will currently employed part-time playground employees be considered permanent or probationary as of January 1, 2018?  

This issue is not addressed in AB 670, but it is our opinion that part-time playground employees (even those who have been employed for many years) should all be treated as probationary employees on January 1, 2018.  There should be an official probationary period to evaluate whether a part-time playground employee should receive permanent status moving forward.  Public education employers did not have any reason to evaluate part-time playground employees for consideration for permanent status prior to AB 670 since Education Code section 45103 expressly exempted them from the classified service.  We believe our answer is supported by California Sch. Employees Assn. v. Oroville Union High Sch. Dist. (1990) 220 Cal.App.3d 289 (a probationary period begins, not when an employee begins any form of service for a public education employer, but when the employee begins as probationary and the employer then has reason to evaluate an employee for permanent status).

  1. Will part-time playground employees cease being eligible for AB 1522/AB 304 sick leave once Education Code and collective bargaining agreement sick leave entitlements apply?

No.  However, because the Education Code and most collective bargaining agreements provide more beneficial sick leave provisions than what AB 1522/AB 304 provides, compliance with the sick leave provisions under the Education Code and collective bargaining agreements will generally satisfy the employer’s obligations to provide AB 1522/AB 304 sick leave for part-time playground employees.

  1. Can a public education employer release a part-time playground employee prior to January 1, 2018, and then reassign their duties to another existing classified employee(s)?

Generally, yes.  Most part-time playground employees are at-will employees; therefore, employers may release them from employment without cause.  However, because reassigning playground supervision duties to existing classified employees may impact their duties and hours, employers should take the appropriate steps to communicate with the affected classified bargaining unit(s) to satisfy their obligations to meet and negotiate the decision and effects of reassignment.

Because part-time playground employees become part of the classified service, releasing them after January 1, 2018 will require the employer to comply with the same procedures regarding the release and dismissal that it applies to its probationary and permanent classified employees.

  1. What impact does AB 670 have upon job descriptions and pay scales?

Employers should create or otherwise ascertain that job descriptions for part-time playground employees reflect their new status as classified employees.  Moreover, the part-time playground position pay should be included on the appropriate pay schedule.  Note that even if the positions are automatically subsumed into an existing bargaining unit, the pay would remain the same unless and until a change is negotiated.

  1. What if an employer is at risk of running afoul of the escalating state minimum wage as a result of AB 670?

Because K-12 public education employers must comply with state minimum wage laws, employers must ensure their salary schedules adhere to minimum wage requirements for part-time playground employees.

Please do not hesitate to contact any of our LEAP attorneys with any questions or concerns regarding implementation.

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