Existing law requires county offices of education and the governing boards of school districts and community college districts, except those incorporating the merit system, to employ persons for positions not requiring certification qualifications or that are not academic, as applicable, and to classify those employees and positions, and requires that they be known as the classified service, as provided.

This bill would require these governing boards and county offices, including those incorporating the merit system and including certain joint powers authorities formed by them, to offer vacancies for part-time or full-time positions, as a right of first refusal for 10 business days, with specified priority, to current regular nonprobationary classified employees who meet the minimum job qualifications of the position at the time of application, as specified. The bill would require these employers, referred to in the bill as education employers, to adhere to specified requirements, including, among others, that they provide all of their classified employees and their exclusive representatives notice of, and instructions for applying for, any new classified position, and that they not offer the position to any applicant until after the position has been noticed for 10 business days. The bill would prohibit an education employer from discouraging, retaliating against, or prohibiting a classified employee from applying for a vacant or open position, and would expressly prohibit retaliation against classified employees for either refusing or accepting a vacancy. The bill would require education employers to give classified employees fair consideration for any position.

The bill would authorize an employee who accepts a new assignment to elect to either add the hours for the new assignment to their current assignment, if feasible, or, if the new assignment is more hours than their current assignment, would authorize the employee to replace their current assignment with the new assignment, and would require the education employer to provide reasonable modifications to the assignment schedules to allow the employee to work both assignments, as provided.

The bill would require an education employer to accept a current part-time employees number of years of service with the education employer, regardless of the number of hours worked each year while employed, if that part-time employee applies for an additional part-time assignment that requires a certain number of years of service. The bill would require that classified employees who work part-time assignments that equal the number of hours for a full-time assignment for the same education employer receive the same benefits as employees who work a full-time assignment. The bill would prohibit applicants from being offered a vacancy if the total of the regular hours of the 2 positions would require overtime pay or otherwise violate the federal Fair Labor Standards Act of 1938 or any other state or federal law.

Existing law requires a person laid off by a county office of education, school district, or community college district because of lack of work or funds to be eligible for reemployment for period of 39 months, as specified.

This bill would provide that its provisions do not supersede that reemployment requirement, do not apply to an education employer with a valid contravening collective bargaining agreement in effect on July 1, 2025, until the expiration or renewal of that agreement, and may be waived or modified by mutual agreement in a valid collective bargaining agreement, as specified. The bill would not apply to (1) an employee who is in the process of completing a written performance improvement plan, who was previously involuntarily demoted from the same position as the vacancy, who has been suspended, or who is the subject of a pending disciplinary action for suspension or dismissal, or (2) confidential or management employees or vacancies for their positions, as provided.

The bill would make all of its provisions operative on July 1, 2025.

Existing law requires county offices of education and the governing boards of school districts and community college districts, except those incorporating the merit system, to employ persons for positions not requiring certification qualifications or that are not academic, as applicable, and to classify those employees and positions, and requires that they be known as the classified service, as provided.

This bill would require these governing boards and county offices, including those incorporating the merit system and including certain joint powers authorities formed by them, to offer vacancies for part-time or full-time positions, as a right of first refusal for 10 business days, with specified priorities, priority, to current regular nonprobationary classified employees who meet the minimum job qualifications of the position at the time of application, as specified. The bill would require these employers, referred to in the bill as education employers, to adhere to specified requirements, including, among others, that they provide all of their classified employees and their exclusive representatives notice of, and instructions for applying for, any new classified position, and that they not offer the position to any applicant until after the position has been noticed for 10 business days. The bill would prohibit an education employer from discouraging, retaliating against, or prohibiting a classified employee from applying for a vacant or open position, and would expressly prohibit retaliation against classified employees for either refusing or accepting a vacancy. The bill would require education employers to give classified employees fair consideration for any position.

The bill would authorize an employee who accepts a new assignment to elect to either add the hours for the new assignment to their current assignment, if feasible, or, if the new assignment is more hours than their current assignment, would authorize the employee to replace their current assignment with the new assignment, and would require the education employer to provide reasonable modifications to the assignment schedules to allow the employee to work both assignments, as provided.

The bill would require an education employer to accept a current part-time employees number of years of service with the education employer, regardless of the number of hours worked each year while employed, if that part-time employee applies for an additional part-time assignment that requires a certain number of years of service. The bill would require that classified employees who work part-time assignments that equal the number of hours for a full-time assignment for the same education employer receive the same benefits as employees who work a full-time assignment. The bill would prohibit applicants from being offered a vacancy if the total of the regular hours of the 2 positions would require overtime pay or otherwise violate the federal Fair Labor Standards Act of 1938 or any other state or federal law.

Existing law requires a person laid off by a county office of education, school district, or community college district because of lack of work or funds to be eligible for reemployment for period of 39 months, as specified.

This bill would provide that its provisions do not supersede that reemployment requirement, do not apply to an education employer with a valid contravening collective bargaining agreement in effect on January July 1, 2025, until the expiration or renewal of that agreement, and may be waived or modified by mutual agreement in a valid collective bargaining agreement, as specified. The bill would not apply to (1) an employee who is in the process of completing a written performance improvement plan, who was previously involuntarily demoted from the same position as the vacancy, who has been suspended, or who is the subject of a pending disciplinary action for suspension or dismissal, or (2) confidential or management employees or vacancies for their positions, as provided.

Existing law requires county offices of education and the governing boards of school districts and community college districts, except those incorporating the merit system, to employ persons for positions not requiring certification qualifications or that are not academic, as applicable, and to classify those employees and positions, and requires that they be known as the classified service, as provided.

This bill would require these governing boards and county offices, including those incorporating the merit system and including certain joint powers authorities formed by them, to offer vacancies for part-time or full-time positions, as a right of first refusal for 10 business days, with specified priorities, to current regular nonprobationary classified employees who meet the minimum job qualifications of the position at the time of application, as specified. The bill would require these employers, referred to in the bill as education employers, to adhere to specified requirements, including, among others, that they provide all of their classified employees and their exclusive representatives notice of, and instructions for applying for, any new classified position, and that they not offer the position to any applicant until after the position has been noticed for 10 business days. The bill would expressly prohibit retaliation against classified employees for either refusing or accepting a vacancy.

The bill would authorize an employee who accepts a new assignment to elect to either add the hours for the new assignment to their current assignment, if feasible, or, if the new assignment is more hours than their current assignment, would authorize the employee to replace their current assignment with the new assignment, and would require the education employer to provide reasonable modifications to the assignment schedules to allow the employee to work both assignments, as provided.

The bill would require an education employer to accept a current part-time employees number of years of service with the education employer, regardless of the capacity in which they were earned, when number of hours worked each year while employed, if that part-time employee applies for an additional part-time assignment that requires a certain number of years of service. The bill would require that classified employees who work part-time assignments that equal the number of hours for a full-time assignment for the same education employer receive the same benefits as employees who work a full-time assignment. The bill would prohibit applicants from being offered a vacancy if the total of the regular hours of the 2 positions would require overtime pay or otherwise violate the federal Fair Labor Standards Act of 1938 or any other state or federal law.

Existing law requires a person laid off by a county office of education, school district, or community college district because of lack of work or funds to be eligible for reemployment for period of 39 months, as specified.

This bill would provide that its provisions do not supersede that reemployment requirement, do not apply to an education employer with a valid contravening collective bargaining agreement in effect on January 1, 2025, until the expiration or renewal of that agreement, and may be waived or modified by mutual agreement in a valid collective bargaining agreement, as specified. The bill would not apply to (1) an employee who is in the process of completing a written performance improvement plan, who was previously involuntarily demoted from the same position as the vacancy, who has been suspended, or who is the subject of a pending disciplinary action for suspension or dismissal, or (2) confidential or management employees or vacancies for their positions, as provided.

Existing law authorizes local educational agencies to employ persons as part of the classified service. Each position of the classified service is required to 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 that position, and regular monthly salary ranges for that position. Existing law authorizes school district governing boards to apply to the State Board of Education to waive a provision of existing law that, among other things, limits the number of employees in the classified service that a school district may employ as senior management employees, as defined.

This bill would make nonsubstantive changes to the latter provision.

GOVERNOR'S VETO

GV Bill Id:AB 2088

Author:(McCarty)

As Enrolled Ver:September 4, 2024

2/3 vote

SUMMARY

Establishes a statutory right of first refusal to current regular nonprobationary classified employees (CRNCEs) of school districts relating to part-time and full-time vacant positions, among other provisions. Senate amendments:

1. Added legislative intent that education employers and exclusive bargaining unit representatives bargain in the collective bargaining agreements whether to create or explicitly waive a right of first refusal for classified employees.
2. Removed a provision that required an education employer to fill a vacancy based on a prescribed process of priority relating to circumstances when there are no qualified applicants from the same classification.
3. Added prohibitions against education employers from discouraging, retaliating against, or prohibiting a classified employee from applying for a vacant or open position, or retaliating against a classified employee for either refusing or accepting a vacancy.
4. Added a requirement that education employers give classified employees fair consideration for any position.
5. Modified a provision providing that to the extent this bill is in conflict with a valid collective bargaining agreement (CBA) that is in effect as of July 1, 2025 (instead of January 1, 2025, as previously passed by the Assembly), these provisions must not apply to the employer until the expiration or renewal of that agreement, and these provisions may be waived or modified by a CBA provided that the waiver or modification is explicitly stated in the CBA and directly references this statute.
6. Made the provisions of the bill operative on July 1, 2025.
7. Made other technical, clarifying, or conforming changes for these purposes.

Governor's Veto Message

"This bill is significantly similar to Assembly Bill 1699 of 2023, which I vetoed, and several of the same concerns remain. In particular, like Assembly Bill 1699, this bill may have unintended consequences that are not in the best interest of students. As noted previously, this issue is already bargainable and several local bargaining agreements have such provisions in place. Placing specific requirements in statute – as this bill does – may make it more difficult for local processes to develop an alternative that best meets the needs of the district, employees, and students.

COMMENTS

Vacancies in Non-Teaching Positions

Among other vacancies in public schools, a report by the National Center for Educational Statistics (NCES), a primary statistical agency of the United States Department of Education's Institute of Educational Sciences, identified that retirement and resignations are the leading causes for unfilled positions in the nation's public schools and are "not just limited to teachers, as public schools are also reporting extensive non-teaching vacancies." In addition, "[a]bout half of public schools currently report having full- or part-time non-teaching vacancies, and vacancies are particularly pronounced among custodial, transportation, and nutritional staff." Key findings in the report note that, "[f]orty-nine percent of public schools reported having at least one non-teaching vacancy as of January 2022," and, "[o]f schools reporting at least one vacancy, custodial staff was identified as the staff position with the most vacancies, with 28 percent of schools reporting this vacancy. Transportation staff and nutritional staff positions were each reported as vacant by 14 percent of schools."^[1] Among the key findings, the report noted that the COVID-19 pandemic was also cause of increased non-teaching vacancies.^[2]

Collective Bargaining Rights of First Refusal: The Concept Proposed by This Bill is Not Entirely New

Under the Educational Employment Relations Act collective bargaining framework, the mandatory subjects of bargaining are wages, hours, and other terms and conditions of employment, and both the employer and employee organization have an obligation to bargain on these subjects in good faith.

While there are mandatory subjects of bargaining, there exists permissive subjects in which the parties may bargain over subject matters that are of mutual interest to each. Here, the parties do not have an obligation to bargain over permissive subjects if one party declines, and such subjects cannot be insisted upon towards an impasse. Moreover, permissive subjects are not transmuted to mandatory subjects simply by their inclusion in a MOU or CBA.

Although proposed to add the concept of this bill to statute, several memoranda of understandings (MOUs) or CBAs contain rights of first refusal provisions. As examples, in Section 5.1.2, Article V (Hours) of an agreement between the recognized exclusive representative and the San Luis Obispo County Superintendent of Schools, similar provisions exist.^[3] In Section 7.15 of an agreement between the recognized exclusive representative and the Torrance Unified School District (TUSD), similar provisions exist.^[4] Nevertheless, this bill proposes a statutory solution towards resolving the crisis of vacancies in the classified service.

Please see the policy committee analysis for a full discussion of this bill.

According to the Author

"The majority of classified employees work part-time [… who] earn less than $30,000 per year. They are not provided enough hours to make ends meet and do not qualify for benefits like health insurance. Classified employees are the backbone of our TK-14 schools and community colleges, and many are leaving public education due to a lack of support, low pay, and no benefits. A survey conducted by the National Center for Education Statistics: forty-nine percent of public schools reported having at least one non-teaching staff vacancy as of January 2022. Of schools reporting at least one vacancy, custodial staff was identified as the staff position with the most vacancies, with 28% of schools-reporting this vacancy. Transportation staff and nutrition staff positions were each reported as vacant by 14% of schools. [This bill] will require all public local education agencies, county offices of education, community colleges, and joint power authorities to offer any new part- or full-time classified assignments to existing, qualified, and classified employees. If no existing, classified employees choose to apply for the position within 10 days, then the job may be offered to an external applicant. Not only will this bill help classified employees sustain themselves and their families, it will also ensure that more employees have access to health insurance and retirement benefits."

Arguments in Support

Among other things, the California School Employees Association states that, "not only will this bill help classified employees make ends meet, but it will also ensure that more employees have access to health insurance and retirement benefits. It will also facilitate filling open positions quickly and efficiently with existing staff. Fully staffed schools will create a positive learning environment for our students. [This bill] is the reintroduction of Assembly Bill 1699 (McCarty, 2023), which was vetoed late last year by the Governor. Based on conversations with the Newsom Administration as well as education employer groups, [this bill] includes amended language to attempt to address concerns articulated by the opposition without compromising the spirit of the bill."

In part, the California Federation of Teachers states that, '[This bill] is significantly different from AB 1699 (McCarty, 2023)… that was vetoed last year. [This bill] specifies that an employee must be qualified at the time of their application, creates a new process for selecting between two or more qualified candidates that uses the selection criteria determined through collective bargaining, and clarifies that LEAs and unions can negotiate alternative agreements to the process specified in the bill, rather than superseding collective bargaining. We believe these amendments address the primary concerns raised last year and over the interim by the opposition while protecting the critically important intent of the bill."

Arguments in Opposition

A coalition of various school employers state in part that, this bill would do the following: 1) create a precedent that a candidate's time spent with an employer means more than a candidate's experience and suitability; 2) impede timely hiring and prolong vacancies by creating a ten-business day restriction when only internal candidates may apply for and be offered a position; 3) create an unnecessary delay before schools may fill a position; 4) exasperate retention and morale issues as employees struggle to find a promotional pathway that aligns with their career goals; and 5) require school employers to revamp their hiring process less than three months after the bill becomes law.

FISCAL COMMENTS

According to the Senate Appropriations Committee, this bill would result in the following:

1. Additional ongoing Proposition 98 General Fund costs for school and community college districts to develop the hiring process, procedures, and policies required pursuant to this bill. At minimum, these activities would include the provision of notice and application instructions for any new classified employees, establishing a method of selection from among multiple applicants, and verifying the classified employees' qualifications and number of years of service with the education employer. Based on similar requirements, the Chancellor's Office estimates these costs to be between $15,000 and $23,000 for each district, or $1.1 million to $1.7 million statewide.
2. The Chancellor's Office indicates there could be unknown, but potentially significant Proposition 98 General Fund cost pressures for the 72 community college districts statewide to provide benefits to classified employees who work multiple part-time assignments that equal the number of hours for a full-time assignment
3. The Chancellor's Office could incur one-time General Fund workload costs between $12,000 and $56,000 to issue guidance on allowable hiring practices that are consistent with existing guidelines on Equal Employment Opportunity regulations and provide technical assistance.

VOTES

ASM PUBLIC EMPLOYMENT AND RETIREMENT: 5-2-0

YES: McKinnor, Boerner, Hart, Stephanie Nguyen, Luz Rivas

NO: Lackey, Vince Fong

ASM HIGHER EDUCATION: 7-2-2

YES: Mike Fong, Arambula, Boerner, Irwin, Jackson, Low, Muratsuchi

NO: Ta, Essayli

ABS, ABST OR NV: Chen, Quirk-Silva

ASM APPROPRIATIONS: 11-3-1

YES: Wicks, Arambula, Bryan, Calderon, Wendy Carrillo, Mike Fong, Grayson, Haney, Hart, Pellerin, Villapudua

NO: Sanchez, Dixon, Ta

ABS, ABST OR NV: Jim Patterson

ASSEMBLY FLOOR: 52-11-17

YES: Addis, Aguiar-Curry, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Juan Carrillo, Wendy Carrillo, Connolly, Mike Fong, Gabriel, Garcia, Gipson, Grayson, Haney, Irwin, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Papan, Pellerin, Quirk-Silva, Ramos, Rendon, Reyes, Santiago, Schiavo, Soria, Ting, Valencia, Villapudua, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

NO: Alanis, Davies, Dixon, Flora, Vince Fong, Hoover, Lackey, Sanchez, Ta, Waldron, Wallis

ABS, ABST OR NV: Calderon, Cervantes, Chen, Megan Dahle, Essayli, Friedman, Gallagher, Hart, Holden, Mathis, Pacheco, Jim Patterson, Joe Patterson, Petrie-Norris, Luz Rivas, Rodriguez, Blanca Rubio

SENATE FLOOR: 22-14-4

YES: Archuleta, Atkins, Bradford, Caballero, Cortese, Durazo, Gonzalez, Hurtado, Laird, McGuire, Menjivar, Min, Newman, Padilla, Portantino, Roth, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener

NO: Alvarado-Gil, Ashby, Blakespear, Dahle, Dodd, Eggman, Glazer, Grove, Jones, Nguyen, Niello, Ochoa Bogh, Seyarto, Wilk

ABS, ABST OR NV: Allen, Becker, Limón, Rubio

ASSEMBLY FLOOR: 52-14-13

YES: Addis, Aguiar-Curry, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Boerner, Bonta, Bryan, Calderon, Wendy Carrillo, Connolly, Mike Fong, Friedman, Gabriel, Garcia, Gipson, Haney, Holden, Irwin, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Luz Rivas, Rodriguez, Santiago, Soria, Ting, Valencia, Villapudua, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

NO: Alanis, Megan Dahle, Davies, Dixon, Essayli, Gallagher, Hoover, Mathis, Jim Patterson, Joe Patterson, Sanchez, Ta, Waldron, Wallis

ABS, ABST OR NV: Berman, Juan Carrillo, Cervantes, Chen, Flora, Grayson, Hart, Lackey, Ortega, Pacheco, Papan, Blanca Rubio, Schiavo

UPDATED

VERSION: September 4, 2024

CONSULTANT: Michael Bolden / P. E. & R. / (916) 319-3957 FN: 0005084

1. “U.S. Schools Report Increased Teacher Vacancies Due to COVID-19 Pandemic – Resignations, retirement identified as leading causes for unfilled positions in national’s public schools.” NCES, March 3, 2022. ↑

2. Id. ↑

3. CBA between the San Luis Obispo County Superintendent of Schools and California School Employees Association (CSEA) and Its San Luis Obispo Chapter #444. (2021-24). ↑

4. CBA between the Bd. of Educ. of the TUSD and the CSEA Torrance Chapter 845 (July 1, 2021, through June 30, 2024). ↑

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 2088

Author:(McCarty)

As Amended Ver:August 23, 2024

Majority vote

SUMMARY

Establishes a statutory right of first refusal to current regular nonprobationary classified employees (CRNCEs) of school districts relating to part-time and full-time vacant positions, among other provisions.

Senate Amendments

1. Add legislative intent that education employers and exclusive bargaining unit representatives bargain in the collective bargaining agreements whether to create or explicitly waive a right of first refusal for classified employees.
2. Remove a provision that required an education employer to fill a vacancy based on a prescribed process of priority relating to circumstances when there are no qualified applicants from the same classification.
3. Add prohibitions against education employers from discouraging, retaliating against, or prohibiting a classified employee from applying for a vacant or open position, or retaliating against a classified employee for either refusing or accepting a vacancy.
4. Add a requirement that education employers give classified employees fair consideration for any position.
5. Modify a provision providing that to the extent this bill is in conflict with a valid collective bargaining agreement (CBA) that is in effect as of July 1, 2025 (instead of January 1, 2025, as previously passed by the Assembly), these provisions must not apply to the employer until the expiration or renewal of that agreement, and these provisions may be waived or modified by a CBA provided that the waiver or modification is explicitly stated in the CBA and directly references this statute.
6. Make the provisions of the bill operative on July 1, 2025.
7. Make other technical, clarifying, or conforming changes for these purposes.

COMMENTS

Vacancies in Non-Teaching Positions

Among other vacancies in public schools, a report by the National Center for Educational Statistics (NCES), a primary statistical agency of the United States Department of Education's Institute of Educational Sciences, identified that retirement and resignations are the leading causes for unfilled positions in the nation's public schools and are "not just limited to teachers, as public schools are also reporting extensive non-teaching vacancies." In addition, "[a]bout half of public schools currently report having full- or part-time non-teaching vacancies, and vacancies are particularly pronounced among custodial, transportation, and nutritional staff." Key findings in the report note that, "[f]orty-nine percent of public schools reported having at least one non-teaching vacancy as of January 2022," and, "[o]f schools reporting at least one vacancy, custodial staff was identified as the staff position with the most vacancies, with 28 percent of schools reporting this vacancy. Transportation staff and nutritional staff positions were each reported as vacant by 14 percent of schools."^[1] Among the key findings, the report noted that the COVID-19 pandemic was also cause of increased non-teaching vacancies.^[2]

Collective Bargaining Rights of First Refusal: The Concept Proposed by This Bill is Not Entirely New

Under the Educational Employment Relations Act collective bargaining framework, the mandatory subjects of bargaining are wages, hours, and other terms and conditions of employment, and both the employer and employee organization have an obligation to bargain on these subjects in good faith.

While there are mandatory subjects of bargaining, there exists permissive subjects in which the parties may bargain over subject matters that are of mutual interest to each. Here, the parties do not have an obligation to bargain over permissive subjects if one party declines, and such subjects cannot be insisted upon towards an impasse. Moreover, permissive subjects are not transmuted to mandatory subjects simply by their inclusion in a MOU or CBA.

Although proposed to add the concept of this bill to statute, several memoranda of understandings (MOUs) or CBAs contain rights of first refusal provisions. As examples, in Section 5.1.2, Article V (Hours) of an agreement between the recognized exclusive representative and the San Luis Obispo County Superintendent of Schools, similar provisions exist.^[3] In Section 7.15 of an agreement between the recognized exclusive representative and the Torrance Unified School District (TUSD), similar provisions exist.^[4] Nevertheless, this bill proposes a statutory solution towards resolving the crisis of vacancies in the classified service.

Please see the policy committee analysis for a full discussion of this bill.

According to the Author

"The majority of classified employees work part-time [… who] earn less than $30,000 per year. They are not provided enough hours to make ends meet and do not qualify for benefits like health insurance. Classified employees are the backbone of our TK-14 schools and community colleges, and many are leaving public education due to a lack of support, low pay, and no benefits. A survey conducted by the National Center for Education Statistics: forty-nine percent of public schools reported having at least one non-teaching staff vacancy as of January 2022. Of schools reporting at least one vacancy, custodial staff was identified as the staff position with the most vacancies, with 28 percent of schools-reporting this vacancy. Transportation staff and nutrition staff positions were each reported as vacant by 14 percent of schools. [This bill] will require all public local education agencies, county offices of education, community colleges, and joint power authorities to offer any new part- or full-time classified assignments to existing, qualified, and classified employees. If no existing, classified employees choose to apply for the position within 10 days, then the job may be offered to an external applicant. Not only will this bill help classified employees sustain themselves and their families, it will also ensure that more employees have access to health insurance and retirement benefits."

Arguments in Support

Among other things, the California School Employees Association states that, "not only will this bill help classified employees make ends meet, but it will also ensure that more employees have access to health insurance and retirement benefits. It will also facilitate filling open positions quickly and efficiently with existing staff. Fully staffed schools will create a positive learning environment for our students. [This bill] is the reintroduction of Assembly Bill 1699 (McCarty, 2023), which was vetoed late last year by the Governor. Based on conversations with the Newsom Administration as well as education employer groups, [this bill] includes amended language to attempt to address concerns articulated by the opposition without compromising the spirit of the bill."

In part, the California Federation of Teachers states that, '[This bill] is significantly different from AB 1699 (McCarty, 2023)… that was vetoed last year. [This bill] specifies that an employee must be qualified at the time of their application, creates a new process for selecting between two or more qualified candidates that uses the selection criteria determined through collective bargaining, and clarifies that LEAs and unions can negotiate alternative agreements to the process specified in the bill, rather than superseding collective bargaining. We believe these amendments address the primary concerns raised last year and over the interim by the opposition while protecting the critically important intent of the bill."

Arguments in Opposition

A coalition of various school employers state in part that, this bill would do the following: 1) create a precedent that a candidate's time spent with an employer means more than a candidate's experience and suitability; 2) impede timely hiring and prolong vacancies by creating a ten-business day restriction when only internal candidates may apply for and be offered a position; 3) create an unnecessary delay before schools may fill a position; 4) exasperate retention and morale issues as employees struggle to find a promotional pathway that aligns with their career goals; and 5) require school employers to revamp their hiring process less than three months after the bill becomes law.

FISCAL COMMENTS

According to the Senate Appropriations Committee, this bill would result in the following:

1. Additional ongoing Proposition 98 General Fund costs for school and community college districts to develop the hiring process, procedures, and policies required pursuant to this bill. At minimum, these activities would include the provision of notice and application instructions for any new classified employees, establishing a method of selection from among multiple applicants, and verifying the classified employees' qualifications and number of years of service with the education employer. Based on similar requirements, the Chancellor's Office estimates these costs to be between $15,000 and $23,000 for each district, or $1.1 million to $1.7 million statewide.
2. The Chancellor's Office indicates there could be unknown, but potentially significant Proposition 98 General Fund cost pressures for the 72 community college districts statewide to provide benefits to classified employees who work multiple part-time assignments that equal the number of hours for a full-time assignment
3. The Chancellor's Office could incur one-time General Fund workload costs between $12,000 and $56,000 to issue guidance on allowable hiring practices that are consistent with existing guidelines on Equal Employment Opportunity regulations and provide technical assistance.

VOTES:

ASM PUBLIC EMPLOYMENT AND RETIREMENT: 5-2-0

YES: McKinnor, Boerner, Hart, Stephanie Nguyen, Luz Rivas

NO: Lackey, Vince Fong

ASM HIGHER EDUCATION: 7-2-2

YES: Mike Fong, Arambula, Boerner, Irwin, Jackson, Low, Muratsuchi

NO: Ta, Essayli

ABS, ABST OR NV: Chen, Quirk-Silva

ASM APPROPRIATIONS: 11-3-1

YES: Wicks, Arambula, Bryan, Calderon, Wendy Carrillo, Mike Fong, Grayson, Haney, Hart, Pellerin, Villapudua

NO: Sanchez, Dixon, Ta

ABS, ABST OR NV: Jim Patterson

ASSEMBLY FLOOR: 52-11-17

YES: Addis, Aguiar-Curry, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Juan Carrillo, Wendy Carrillo, Connolly, Mike Fong, Gabriel, Garcia, Gipson, Grayson, Haney, Irwin, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Papan, Pellerin, Quirk-Silva, Ramos, Rendon, Reyes, Santiago, Schiavo, Soria, Ting, Valencia, Villapudua, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

NO: Alanis, Davies, Dixon, Flora, Vince Fong, Hoover, Lackey, Sanchez, Ta, Waldron, Wallis

ABS, ABST OR NV: Calderon, Cervantes, Chen, Megan Dahle, Essayli, Friedman, Gallagher, Hart, Holden, Mathis, Pacheco, Jim Patterson, Joe Patterson, Petrie-Norris, Luz Rivas, Rodriguez, Blanca Rubio

SENATE FLOOR: 22-14-4

YES: Archuleta, Atkins, Bradford, Caballero, Cortese, Durazo, Gonzalez, Hurtado, Laird, McGuire, Menjivar, Min, Newman, Padilla, Portantino, Roth, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener

NO: Alvarado-Gil, Ashby, Blakespear, Dahle, Dodd, Eggman, Glazer, Grove, Jones, Nguyen, Niello, Ochoa Bogh, Seyarto, Wilk

ABS, ABST OR NV: Allen, Becker, Limón, Rubio

UPDATED

VERSION: August 23, 2024

CONSULTANT: Michael Bolden / P. E. & R. / (916) 319-3957 FN: 0005003

1. "U.S. Schools Report Increased Teacher Vacancies Due to COVID-19 Pandemic – Resignations, retirement identified as leading causes for unfilled positions in national's public schools." NCES, March 3, 2022. ↑

2. Id. ↑

3. CBA between the San Luis Obispo County Superintendent of Schools and California School Employees Association (CSEA) and Its San Luis Obispo Chapter #444. (2021-24). ↑

4. CBA between the Bd. of Educ. of the TUSD and the CSEA Torrance Chapter 845 (July 1, 2021, through June 30, 2024). ↑

 THIRD READING  

Bill No: AB 2088

Author: McCarty (D)

Amended: 8/23/24 in Senate

Vote: 21

SENATE LABOR, PUB. EMP. & RET. COMMITTEE: 4-1, 6/26/24

AYES: Smallwood-Cuevas, Cortese, Durazo, Laird

NOES: Wilk

SENATE APPROPRIATIONS COMMITTEE: 4-3, 8/15/24

AYES: Caballero, Becker, Bradford, Wahab

NOES: Jones, Ashby, Seyarto

ASSEMBLY FLOOR: 52-11, 5/22/24 - See last page for vote

SUBJECT: K–14 classified employees: part-time or full-time vacancies: public postings

SOURCE: California Federation of Teachers

California School Employees Association

California Service Employees International Union

DIGEST:

This bill

requires school and community college employers, in both merit and non-merit districts, to notice any vacancies for part-time and full-time classified positions to current regular non-probationary classified employees, and offer them first refusal over all applicants, except those on reemployment or voluntary demotion lists, during a 10-day notice period. This bill requires current classified employee candidates to meet the position’s minimum job qualifications at the time of their application and to apply within the specified 10-day notice period to qualify for the right of first refusal. Prohibits the employer from offering, but not advertising, the position to an external candidate until the 10-day notice period expires and no eligible employee candidate has applied.

Senate Floor Amendments of 8/23/24 declare Legislative intent that education employers and unions bargain whether they wish to create or explicitly waive a right of first refusal; clarify that the right of refusal applies to qualified current regular non-probationary employee employed within the same classification as the vacant position; prohibit an education employer from discouraging, retaliating against, or prohibiting a classified employee for either refusing or accepting a vacancy; and revise the bill’s operative date from January 1, 2025, to July 1, 2025.

ANALYSIS:

Existing law:

1. Requires the governing board of a school or community college district to employ persons for positions not requiring certification qualifications and classify those employees and positions, as specified. The employees and positions shall be known as the classified service. (Education Code (ED) § 45103 and § 88003)
2. Authorizes school and community college districts to adopt, as specified, a civil service merit system to regulate personnel through a three-member personnel commission (college districts may have five members) and a personnel director. (ED § 45221 et seq. and ED § 88051 et seq.)
3. Applies certain sections of the Education Code related to classified employees to all classified employees of a school or community college district, whether a merit or nonmerit district, unless the section specifically limits its application to nonmerit districts, except as specified. (ED § 45100 and 88000)
4. Requires, where a district adopts a merit system, the personnel commission to classify all employees and positions within the district’s jurisdiction and designate them as the classified service. However, specified employees, including certificated employees, are exempt from the classified service. (ED § 45256 and § 88076)
5. Provides for the appointment process of a personnel commission should a school or community college district adopt a merit system election. (ED § 45240 et seq. and § 88060 et seq.)
6. Establishes the Educational Employment Relations Act (EERA) of 1976 providing for collective bargaining in California's public schools (K-12) and community colleges, as specified. (Government Code (GC) § 3540 et seq.)
7. Limits the scope of representation for bargaining to matters relating to wages, hours of employment, and other terms and conditions of employment. (GC § 3543.2 (a))

This bill:

1. Declares the Legislature’s intent that education employers and exclusive bargaining representatives bargain in their collective bargaining agreements whether they wish to create or explicitly waive a right of first refusal for classified employees.
2. Requires education employers, whether in merit or non-merit districts, to offer any vacancies for part-time and full-time positions with priority over any other applicant, except applicants on reemployment or voluntary demotion lists, to current regular non-probationary classified employees who meet the minimum job qualifications of the position at the time of their application for the position.
3. Requires an education employer to provide all of its classified employees and their exclusive representatives notice of, and instructions for applying for, any new classified position at least 10 business days before the education employer may offer the position to an external candidate.
4. Requires an employee to apply for the position within 10 business days of the notice in order to qualify for the right of first refusal.
5. Prohibits the employer from offering the position to any applicant until the 10-day notice period expires.
6. Does not prohibit the employer from posting the new position to the general public during the 10-day period.
7. Requires that the employer grant the new position as a right of first refusal to a current regular non-probationary classified employee who applies for the position and who meets the minimum job qualifications of the position at the time of their application for the position.
8. Requires that the employer grant the position, if there is more than one eligible applicant, to a qualified, internal applicant selected according to the collectively bargained method of selection. If no such method is set forth in a valid collective bargaining agreement, then the employer shall determine priority among those applicants by seniority, as specified, if the applicants currently work in the same class as the new position.
9. Prohibits the employer from selecting someone (except an applicant on a reemployment or voluntary demotion list) for an open position who is not currently employed by the employer if there is at least one current regular non-probationary classified employee, employed within the same classification, who has applied for and would accept the position, and who meets the minimum job qualifications of the position at the time of their application for the position.
10. Permits an employee who accepts a new assignment to elect to add the new assignment hours to their current assignment or replace their current assignment with the new assignment, as specified.
11. If a new part-time assignment requires a certain number of years of service, requires the employer to accept the employee’s number of years of service with the employer, regardless of the number of hours worked each year while employed.
12. Requires the employer to provide the same benefits to classified employees who work part-time assignments for the same employer equal to the number of hours for a full-time assignment, as employees who work a full-time assignment.
13. Prohibits an education employer from discouraging, retaliating against, or prohibiting a classified employee for either refusing or accepting a vacancy.
14. Requires an education employer to give classified employees fair consideration for any position.
15. Prohibits the employer from offering a vacancy to applicants if the total of the regular hours of the two positions would require overtime pay or otherwise violate the federal Fair Labor Standards Act of 1938 (29 U.S.C. Sec. 201 et seq.) or any other state or federal law.
16. Specifically applies this bill’s provisions to county offices of education, school districts, and joint powers authorities comprising county offices of education or school districts, regardless of whether the county office of education, school district, or joint powers authority comprising county offices of education or school districts has adopted the merit system.
17. Defines “education employer”, in parallel provisions that apply to school and community college employers respectively, to mean: for school employers, a county office of education, school district, or joint powers authority comprised of county offices of education or school districts; and for community college employers, a community college district or joint powers authority comprising community college districts.
18. Provides that this bill’s provisions do not apply to the following:
    1. An employee who is in the process of completing a written performance improvement plan, who was previously involuntarily demoted from the same position as the vacancy, who has been suspended, or who is the subject of a pending disciplinary action for suspension or dismissal.
    2. Confidential or management employees, as specified, nor to vacancies for confidential or management position
19. Clarifies that its provisions do not supersede the rights of persons laid off or voluntarily demoted, as specified.
20. Provides that its provisions shall not apply until the expiration or renewal of a collective bargaining agreement, to the extent that the provisions conflict with a provision of a valid collective bargaining agreement that is in effect as of July 1, 2025, as specified.
21. Permits the parties to waive or modify this bill’s requirements by mutual agreement pursuant to a valid collective bargaining agreement, if the agreement explicitly states the waiver and directly references the corresponding code section.
22. Provides that the bill’s provisions become operative on July 1, 2025.

Comments

According to the author, “The majority of classified employees work part-time, and over half of CSEA members earn less than $30,000 per year. They are not provided enough hours to make ends meet and do not qualify for benefits like health insurance. Classified employees are the backbone of our TK-14 schools and community colleges, and many are leaving public education due to a lack of support, low pay, and no benefits. A survey conducted by the National Center for Education Statistics: Forty-nine percent of public schools reported having at least one non-teaching staff vacancy as of January 2022. Of schools reporting at least one vacancy, custodial staff was identified as the staff position with the most vacancies, with 28 percent of schools-reporting this vacancy. Transportation staff and nutrition staff positions were each reported as vacant by 14 percent of schools.”

“AB 2088 will require all public local education agencies, county offices of education, community colleges, and joint power authorities to offer any new part- or full-time classified assignments to existing, qualified, and classified employees. If no existing, classified employees choose to apply for the position within 10 days, then the job may be offered to an external applicant. Not only will this bill help classified employees sustain themselves and their families, it will also ensure that more employees have access to health insurance and retirement benefits.”

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

According to the Senate Appropriations Committee:

• This bill could result in additional, ongoing Proposition 98 General Fund costs for school and community college districts to develop the hiring process, procedures, and policies required pursuant to this bill. At minimum, these activities would include the provision of notice and application instructions for any new classified employees, establishing a method of selection from among multiple applicants, and verifying the classified employees’ qualifications and number of years of service with the education employer. Based on similar requirements, the Chancellor’s Office estimates these costs to be between $15,000 and $23,000 for each district, or $1.1 million to $1.7 million statewide.
• The Chancellor’s Office indicates there could be unknown, but potentially significant Proposition 98 General Fund cost pressures for the 72 community college districts statewide to provide benefits to classified employees who work multiple part-time assignments that equal the number of hours for a full-time assignment
• The Chancellor’s Office could incur one-time General Fund workload costs between $12,000 and $56,000 to issue guidance on allowable hiring practices that are consistent with existing guidelines on Equal Employment Opportunity regulations and provide technical assistance.

SUPPORT: (Verified 8/23/24)

California Federation of Teachers (Co-source)

California School Employees Association (Co-source)
Service Employees International Union - California (Co-source)

American Federation of State, County and Municipal Employees
California Labor Federation
California Teachers Association
California Teamsters Public Affairs Council

OPPOSITION: (Verified 8/23/24)

Alameda County Office of Education
Allan Hancock College
Anaheim Union High School District
Association of California Community College Administrators
Association of California School Administrators
Association of Chief Human Resources Officers and Equal Employment Officers
Beaumont Unified School District
Berkeley Unified School District Personnel Commission
Brawley Elementary School District
Buellton Union School District
Cajon Valley Union School District
California Association of School Business Officials
California Association of Suburban School Districts
California County Superintendents
California School Boards Association
Cambrian School District
Campbell Union School District
Capistrano Unified School District
Cardiff School District
Carlsbad Unified School District
Castaic Union School District
Castro Valley Unified School District
Central Valley Education Coalition
Chabot Las Positas Community College District
Charter Oak Unified School District
Citrus College
Coast Community College District
Community College League of California
Cooperative Organization for The Development of Employee Selection Procedures
El Segundo Unified School District
Encinitas Union School District
Fallbrook Union High School District
Foothill-De Anza Community College District
Fresno Unified School District
Gavilan College
Huntington Beach City School District
Kern County Superintendent of Schools
Keyes Union Elementary School District
Kings County Office of Education
LA Habra City School District
LA Mesa-Spring Valley School District
Long Beach Community College District
Long Beach Unified School District, Personnel Commission
Los Angeles County Office of Education
Los Angeles County Superintendent of Schools
Los Angeles Unified School District
Los Gatos-Saratoga Union High School District
Marin County Superintendent of Schools
Menlo Park City School District
Milpitas Unified School District
MiraCosta Community College District
Mount Pleasant Elementary School District
Mt. San Antonio College
Nevada County Superintendent of Schools
Newport-Mesa Unified School District
North Orange County Community College District
Orange County Department of Education
Palo Verde Community College District
Peralta Community College District
Personnel Commissions Association of Southern California
Pleasant Valley School District
Redondo Beach Unified School District
Rio Hondo College
Riverside Community College District
Riverside County Office of Education
Riverside County Superintendent of Schools
Rowland Unified School District Personnel Commission
San Bernardino Community College District
San Bernardino County Superintendent of Schools
San Diego Unified School District
San Joaquin County Office of Education
San Jose-Evergreen Community College District
San Marcos Unified School District
San Mateo County Superintendent of Schools
San Mateo Union High School District
San Pasqual Union School District
Santa Barbara County Education Office
Santa Maria Joint Union High School District
Santa Rosa Junior College
Savanna School District
School Employers Association of California
Shasta College
Sierra Community College District
Silver Valley Unified School District
Small Schools Districts’ Association
South Orange County Community College District
Sulphur Springs Union School District
Sunnyvale School District
Taft Union High School District
Tehama County Department of Education
Temple City Unified School District
Thermalito Union Elementary School District
Tulare Joint Union High School District
Vallecitos School District
Ventura County Community College District Personnel Commission
Victor Valley College
Yosemite Community College District

ARGUMENTS IN SUPPORT: According to the California School Employees Association:

“Not only will this bill help classified employees make ends meet, but it will also ensure that more employees have access to health insurance and retirement benefits. It will also facilitate filling open positions quickly and efficiently with existing staff. Fully staffed schools will create a positive learning environment for our students.”

“AB 2088 is the reintroduction of AB 1699 (McCarty), which was vetoed late last year by the Governor. Based on conversations with the Newsom Administration as well as education employer groups, AB 2088 includes amended language to attempt to address concerns articulated by the opposition without compromising the spirit of the bill.”

According to the California Federation of Teachers, “AB 2088 is significantly different from AB 1699 (McCarty, 2023), similar legislation that was vetoed last year. 2088 specifies that an employee must be qualified at the time of their application, creates a new process for selecting between two or more qualified candidates that uses the selection criteria determined through collective bargaining, and clarifies that LEAs and unions can negotiate alternative agreements to the process specified in the bill, rather than superseding collective bargaining. We believe these amendments address the primary concerns raised last year and over the interim by the opposition while protecting the critically important intent of the bill.”

ARGUMENTS IN OPPOSITION: A coalition of several school employers, including the Los Angeles Unified School District, argue that AB 2088 would do the following: 1) create a precedent that a candidate’s time spent with an employer means more than a candidate’s experience and suitability; 2) impede timely hiring and prolong vacancies by creating a ten-business day restriction when only internal candidates may apply for and be offered a position; 3) create an unnecessary delay before schools may fill a position; 4) exasperate retention and morale issues as employees struggle to find a promotional pathway that aligns with their career goals; and 5) require school employers to revamp their hiring process less than three months after the bill becomes law.

ASSEMBLY FLOOR: 52-11, 5/22/24

AYES: Addis, Aguiar-Curry, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Juan Carrillo, Wendy Carrillo, Connolly, Mike Fong, Gabriel, Garcia, Gipson, Grayson, Haney, Irwin, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Papan, Pellerin, Quirk-Silva, Ramos, Rendon, Reyes, Santiago, Schiavo, Soria, Ting, Valencia, Villapudua, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

NOES: Alanis, Davies, Dixon, Flora, Vince Fong, Hoover, Lackey, Sanchez, Ta, Waldron, Wallis

NO VOTE RECORDED: Calderon, Cervantes, Chen, Megan Dahle, Essayli, Friedman, Gallagher, Hart, Holden, Mathis, Pacheco, Jim Patterson, Joe Patterson, Petrie-Norris, Luz Rivas, Rodriguez, Blanca Rubio

Prepared by: Glenn Miles / L., P.E. & R. / (916) 651-1556

8/27/24 19:26:21

**** END ****

 THIRD READING  

Bill No: AB 2088

Author: McCarty (D)

Amended: 8/23/24 in Senate

Vote: 21

SENATE LABOR, PUB. EMP. & RET. COMMITTEE: 4-1, 6/26/24

AYES: Smallwood-Cuevas, Cortese, Durazo, Laird

NOES: Wilk

SENATE APPROPRIATIONS COMMITTEE: 4-3, 8/15/24

AYES: Caballero, Becker, Bradford, Wahab

NOES: Jones, Ashby, Seyarto

ASSEMBLY FLOOR: 52-11, 5/22/24 - See last page for vote

SUBJECT: K–14 classified employees: part-time or full-time vacancies: public postings

SOURCE: California Federation of Teachers

California School Employees Association

California Service Employees International Union

DIGEST:

This bill

requires school and community college employers, in both merit and non-merit districts, to notice any vacancies for part-time and full-time classified positions to current regular non-probationary classified employees, and offer them first refusal over all applicants, except those on reemployment or voluntary demotion lists, during a 10-day notice period. This bill requires current classified employee candidates to meet the position’s minimum job qualifications at the time of their application and to apply within the specified 10-day notice period to qualify for the right of first refusal. Prohibits the employer from offering, but not advertising, the position to an external candidate until the 10-day notice period expires and no eligible employee candidate has applied.

Senate Floor Amendments of 8/23/24 prohibit employers from discouraging classified employees from exercising their first refusal rights for new classified school positions.

ANALYSIS:

Existing law:

1. Requires the governing board of a school or community college district to employ persons for positions not requiring certification qualifications and classify those employees and positions, as specified. The employees and positions shall be known as the classified service. (Education Code (ED) § 45103 and § 88003)
2. Authorizes school and community college districts to adopt, as specified, a civil service merit system to regulate personnel through a three-member personnel commission (college districts may have five members) and a personnel director. (ED § 45221 et seq. and ED § 88051 et seq.)
3. Applies certain sections of the Education Code related to classified employees to all classified employees of a school or community college district, whether a merit or nonmerit district, unless the section specifically limits its application to nonmerit districts, except as specified. (ED § 45100 and 88000)
4. Requires, where a district adopts a merit system, the personnel commission to classify all employees and positions within the district’s jurisdiction and designate them as the classified service. However, specified employees, including certificated employees, are exempt from the classified service. (ED § 45256 and § 88076)
5. Provides for the appointment process of a personnel commission should a school or community college district adopt a merit system election. (ED § 45240 et seq. and § 88060 et seq.)
6. Establishes the Educational Employment Relations Act (EERA) of 1976 providing for collective bargaining in California's public schools (K-12) and community colleges, as specified. (Government Code (GC) § 3540 et seq.)
7. Limits the scope of representation for bargaining to matters relating to wages, hours of employment, and other terms and conditions of employment. (GC § 3543.2 (a))

This bill:

1. Declares the Legislature’s intent that education employers and exclusive bargaining representatives bargain in their collective bargaining agreements whether they wish to create or explicitly waive a right of first refusal for classified employees.
2. Requires education employers, whether in merit or non-merit districts, to offer any vacancies for part-time and full-time positions with priority over any other applicant, except applicants on reemployment or voluntary demotion lists, to current regular non-probationary classified employees who meet the minimum job qualifications of the position at the time of their application for the position.
3. Requires an education employer to provide all of its classified employees and their exclusive representatives notice of, and instructions for applying for, any new classified position at least 10 business days before the education employer may offer the position to an external candidate.
4. Requires an employee to apply for the position within 10 business days of the notice in order to qualify for the right of first refusal.
5. Prohibits the employer from offering the position to any applicant until the 10-day notice period expires.
6. Does not prohibit the employer from posting the new position to the general public during the 10-day period.
7. Requires that the employer grant the new position as a right of first refusal to a current regular non-probationary classified employee who applies for the position and who meets the minimum job qualifications of the position at the time of their application for the position.
8. Requires that the employer grant the position, if there is more than one eligible applicant, to a qualified, internal applicant selected according to the collectively bargained method of selection. If no such method is set forth in a valid collective bargaining agreement, then the employer shall determine priority among those applicants by seniority, as specified, if the applicants currently work in the same class as the new position.
9. Prohibits the employer from selecting someone (except an applicant on a reemployment or voluntary demotion list) for an open position who is not currently employed by the employer if there is at least one current regular non-probationary classified employee, employed within the same classification, who has applied for and would accept the position, and who meets the minimum job qualifications of the position at the time of their application for the position.
10. Permits an employee who accepts a new assignment to elect to add the new assignment hours to their current assignment or replace their current assignment with the new assignment, as specified.
11. If a new part-time assignment requires a certain number of years of service, requires the employer to accept the employee’s number of years of service with the employer, regardless of the number of hours worked each year while employed.
12. Requires the employer to provide the same benefits to classified employees who work part-time assignments for the same employer equal to the number of hours for a full-time assignment, as employees who work a full-time assignment.
13. Prohibits an education employer from discouraging, retaliating against, or prohibiting a classified employee for either refusing or accepting a vacancy.
14. Requires an education employer to give classified employees fair consideration for any position.
15. Prohibits the employer from offering a vacancy to applicants if the total of the regular hours of the two positions would require overtime pay or otherwise violate the federal Fair Labor Standards Act of 1938 (29 U.S.C. Sec. 201 et seq.) or any other state or federal law.
16. Specifically applies this bill’s provisions to county offices of education, school districts, and joint powers authorities comprising county offices of education or school districts, regardless of whether the county office of education, school district, or joint powers authority comprising county offices of education or school districts has adopted the merit system.
17. Defines “education employer”, in parallel provisions that apply to school and community college employers respectively, to mean: for school employers, a county office of education, school district, or joint powers authority comprised of county offices of education or school districts; and for community college employers, a community college district or joint powers authority comprising community college districts.
18. Provides that this bill’s provisions do not apply to the following:
    1. An employee who is in the process of completing a written performance improvement plan, who was previously involuntarily demoted from the same position as the vacancy, who has been suspended, or who is the subject of a pending disciplinary action for suspension or dismissal.
    2. Confidential or management employees, as specified, nor to vacancies for confidential or management position
19. Clarifies that its provisions do not supersede the rights of persons laid off or voluntarily demoted, as specified.
20. Provides that its provisions shall not apply until the expiration or renewal of a collective bargaining agreement, to the extent that the provisions conflict with a provision of a valid collective bargaining agreement that is in effect as of July 1, 2025, as specified.
21. Permits the parties to waive or modify this bill’s requirements by mutual agreement pursuant to a valid collective bargaining agreement, if the agreement explicitly states the waiver and directly references the corresponding code section.
22. Provides that the bill’s provisions become operative on July 1, 2025.

Comments

According to the author:

“The majority of classified employees work part-time, and over half of CSEA members earn less than $30,000 per year. They are not provided enough hours to make ends meet and do not qualify for benefits like health insurance. Classified employees are the backbone of our TK-14 schools and community colleges, and many are leaving public education due to a lack of support, low pay, and no benefits. A survey conducted by the National Center for Education Statistics: Forty-nine percent of public schools reported having at least one non-teaching staff vacancy as of January 2022. Of schools reporting at least one vacancy, custodial staff was identified as the staff position with the most vacancies, with 28 percent of schools-reporting this vacancy. Transportation staff and nutrition staff positions were each reported as vacant by 14 percent of schools.

“AB 2088 will require all public local education agencies, county offices of education, community colleges, and joint power authorities to offer any new part- or full-time classified assignments to existing, qualified, and classified employees. If no existing, classified employees choose to apply for the position within 10 days, then the job may be offered to an external applicant. Not only will this bill help classified employees sustain themselves and their families, it will also ensure that more employees have access to health insurance and retirement benefits.”

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

According to the Senate Appropriations Committee:

• This bill could result in additional, ongoing Proposition 98 General Fund costs for school and community college districts to develop the hiring process, procedures, and policies required pursuant to this bill. At minimum, these activities would include the provision of notice and application instructions for any new classified employees, establishing a method of selection from among multiple applicants, and verifying the classified employees’ qualifications and number of years of service with the education employer. Based on similar requirements, the Chancellor’s Office estimates these costs to be between $15,000 and $23,000 for each district, or $1.1 million to $1.7 million statewide.
• The Chancellor’s Office indicates there could be unknown, but potentially significant Proposition 98 General Fund cost pressures for the 72 community college districts statewide to provide benefits to classified employees who work multiple part-time assignments that equal the number of hours for a full-time assignment
• The Chancellor’s Office could incur one-time General Fund workload costs between $12,000 and $56,000 to issue guidance on allowable hiring practices that are consistent with existing guidelines on Equal Employment Opportunity regulations and provide technical assistance.

SUPPORT: (Verified 8/23/24)

California Federation of Teachers (co-source)

California School Employees Association (co-source)
California Service Employees International Union (co-source)

American Federation of State, County and Municipal Employees
California Labor Federation
California Teachers Association
California Teamsters Public Affairs Council

OPPOSITION: (Verified 8/23/24)

Alameda County Office of Education
Allan Hancock College
Anaheim Union High School District
Association of California Community College Administrators
Association of California School Administrators
Association of Chief Human Resources Officers and Equal Employment Officers
Beaumont Unified School District
Berkeley Unified School District Personnel Commission
Brawley Elementary School District
Buellton Union School District
Cajon Valley Union School District
California Association of School Business Officials
California Association of Suburban School Districts
California County Superintendents
California School Boards Association
Cambrian School District
Campbell Union School District
Capistrano Unified School District
Cardiff School District
Carlsbad Unified School District
Castaic Union School District
Castro Valley Unified School District
Central Valley Education Coalition
Chabot Las Positas Community College District
Charter Oak Unified School District
Citrus College
Coast Community College District
Community College League of California
Cooperative Organization for The Development of Employee Selection Procedures
El Segundo Unified School District
Encinitas Union School District
Fallbrook Union High School District
Foothill-De Anza Community College District
Fresno Unified School District
Gavilan College
Huntington Beach City School District
Kern County Superintendent of Schools
Keyes Union Elementary School District
Kings County Office of Education
LA Habra City School District
LA Mesa-Spring Valley School District
Long Beach Community College District
Long Beach Unified School District, Personnel Commission
Los Angeles County Office of Education
Los Angeles County Superintendent of Schools
Los Angeles Unified School District
Los Gatos-Saratoga Union High School District
Marin County Superintendent of Schools
Menlo Park City School District
Milpitas Unified School District
MiraCosta Community College District
Mount Pleasant Elementary School District
Mt. San Antonio College
Nevada County Superintendent of Schools
Newport-Mesa Unified School District
North Orange County Community College District
Orange County Department of Education
Palo Verde Community College District
Peralta Community College District
Personnel Commissions Association of Southern California
Pleasant Valley School District
Redondo Beach Unified School District
Rio Hondo College
Riverside Community College District
Riverside County Office of Education
Riverside County Superintendent of Schools
Rowland Unified School District Personnel Commission
San Bernardino Community College District
San Bernardino County Superintendent of Schools
San Diego Unified School District
San Joaquin County Office of Education
San Jose-Evergreen Community College District
San Marcos Unified School District
San Mateo County Superintendent of Schools
San Mateo Union High School District
San Pasqual Union School District
Santa Barbara County Education Office
Santa Maria Joint Union High School District
Santa Rosa Junior College
Savanna School District
School Employers Association of California
Shasta College
Sierra Community College District
Silver Valley Unified School District
Small Schools Districts’ Association
South Orange County Community College District
Sulphur Springs Union School District
Sunnyvale School District
Taft Union High School District
Tehama County Department of Education
Temple City Unified School District
Thermalito Union Elementary School District
Tulare Joint Union High School District
Vallecitos School District
Ventura County Community College District Personnel Commission
Victor Valley College
Yosemite Community College District

ARGUMENTS IN SUPPORT:

According to the California School Employees Association:

“Not only will this bill help classified employees make ends meet, but it will also ensure that more employees have access to health insurance and retirement benefits. It will also facilitate filling open positions quickly and efficiently with existing staff. Fully staffed schools will create a positive learning environment for our students.”

“AB 2088 is the reintroduction of AB 1699 (McCarty), which was vetoed late last year by the Governor. Based on conversations with the Newsom Administration as well as education employer groups, AB 2088 includes amended language to attempt to address concerns articulated by the opposition without compromising the spirit of the bill.”

According to the California Federation of Teachers, “AB 2088 is significantly different from AB 1699 (McCarty, 2023), similar legislation that was vetoed last year. 2088 specifies that an employee must be qualified at the time of their application, creates a new process for selecting between two or more qualified candidates that uses the selection criteria determined through collective bargaining, and clarifies that LEAs and unions can negotiate alternative agreements to the process specified in the bill, rather than superseding collective bargaining. We believe these amendments address the primary concerns raised last year and over the interim by the opposition while protecting the critically important intent of the bill.”

ARGUMENTS IN OPPOSITION:

A coalition of several school employers, including the Los Angeles Unified School District, argue that AB 2088 would do the following: 1) create a precedent that a candidate’s time spent with an employer means more than a candidate’s experience and suitability; 2) impede timely hiring and prolong vacancies by creating a ten-business day restriction when only internal candidates may apply for and be offered a position; 3) create an unnecessary delay before schools may fill a position; 4) exasperate retention and morale issues as employees struggle to find a promotional pathway that aligns with their career goals; and 5) require school employers to revamp their hiring process less than three months after the bill becomes law.

ASSEMBLY FLOOR: 52-11, 5/22/24

AYES: Addis, Aguiar-Curry, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Juan Carrillo, Wendy Carrillo, Connolly, Mike Fong, Gabriel, Garcia, Gipson, Grayson, Haney, Irwin, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Papan, Pellerin, Quirk-Silva, Ramos, Rendon, Reyes, Santiago, Schiavo, Soria, Ting, Valencia, Villapudua, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

NOES: Alanis, Davies, Dixon, Flora, Vince Fong, Hoover, Lackey, Sanchez, Ta, Waldron, Wallis

NO VOTE RECORDED: Calderon, Cervantes, Chen, Megan Dahle, Essayli, Friedman, Gallagher, Hart, Holden, Mathis, Pacheco, Jim Patterson, Joe Patterson, Petrie-Norris, Luz Rivas, Rodriguez, Blanca Rubio

Prepared by: Glenn Miles / L., P.E. & R. / (916) 651-1556

8/25/24 12:49:33

**** END ****

 THIRD READING  

Bill No: AB 2088

Author: McCarty (D)

Amended: 5/16/24 in Assembly

Vote: 21

SENATE LABOR, PUB. EMP. & RET. COMMITTEE: 4-1, 6/26/24

AYES: Smallwood-Cuevas, Cortese, Durazo, Laird

NOES: Wilk

SENATE APPROPRIATIONS COMMITTEE: 4-3, 8/15/24

AYES: Caballero, Becker, Bradford, Wahab

NOES: Jones, Ashby, Seyarto

ASSEMBLY FLOOR: 52-11, 5/22/24 - See last page for vote

SUBJECT: K–14 classified employees: part-time or full-time vacancies: public postings

SOURCE: California Federation of Teachers

California School Employees Association

California Service Employees International Union

DIGEST: This bill

requires school and community college employers, in both merit and non-merit districts, to notice any vacancies for part-time and full-time classified positions to current regular non-probationary classified employees, and offer them first refusal over all applicants, except those on reemployment or voluntary demotion lists, during a 10-day notice period. This bill requires current classified employee candidates to meet the position’s minimum job qualifications at the time of their application and to apply within the specified 10-day notice period to qualify for the right of first refusal. Prohibits the employer from offering, but not advertising, the position to an external candidate until the 10-day notice period expires and no eligible employee candidate has applied.

ANALYSIS:

Existing law:

1. Requires the governing board of a school or community college district to employ persons for positions not requiring certification qualifications and classify those employees and positions, as specified. The employees and positions shall be known as the classified service. (Education Code (ED) § 45103 and § 88003)
2. Authorizes school and community college districts to adopt, as specified, a civil service merit system to regulate personnel through a three-member personnel commission (college districts may have five members) and a personnel director. (ED § 45221 et seq. and ED § 88051 et seq.)
3. Applies certain sections of the Education Code related to classified employees to all classified employees of a school or community college district, whether a merit or nonmerit district, unless the section specifically limits its application to nonmerit districts, except as specified. (ED § 45100 and 88000)
4. Requires, where a district adopts a merit system, the personnel commission to classify all employees and positions within the district’s jurisdiction and designate them as the classified service. However, specified employees, including certificated employees, are exempt from the classified service. (ED § 45256 and § 88076)
5. Provides for the appointment process of a personnel commission should a school or community college district adopt a merit system election. (ED § 45240 et seq. and § 88060 et seq.)
6. Establishes the Educational Employment Relations Act (EERA) of 1976 providing for collective bargaining in California's public schools (K-12) and community colleges, as specified. (Government Code (GC) § 3540 et seq.)
7. Limits the scope of representation for bargaining to matters relating to wages, hours of employment, and other terms and conditions of employment. (GC § 3543.2 (a))

This bill:

1. Requires education employers, whether in merit or non-merit districts, to offer any vacancies for part-time and full-time positions with priority over any other applicant, except applicants on reemployment or voluntary demotion lists, to current regular non-probationary classified employees who meet the minimum job qualifications of the position.
2. Requires an education employer to provide all of its classified employees and their exclusive representatives notice of, and instructions for applying for, any new classified position at least 10 business days before the education employer may offer the position to an external candidate.
3. Requires an employee to apply for the position within 10 business days of the notice in order to qualify for the right of first refusal.
4. Does not prohibit the employer from posting the new position to the general public during the 10-day period.
5. Requires that the employer grant the new position as a right of first refusal to a current regular nonprobationary classified employee who applies for the position and who meets the minimum job qualifications of the position at the time of their application for the position.
6. Requires that the employer grant the position, if there is more than one eligible applicant, to a qualified, internal applicant selected according to the collectively bargained method of selection. If no such method is set forth in a valid collective bargaining agreement, then priority among those applicants shall be determined as follows:
   1. First, by seniority, as specified, if the applicants currently work in the same class as the new position; or
   2. By the employer’s standard method of selection, among applicants in other classifications for whom the new position would represent an increase in hours or wages, if there are no qualified applicants from the same classification as the position.
7. Prohibits the employer from selecting someone (except an applicant on a reemployment or voluntary demotion list) for an open position who is not currently employed by the employer if there is at least one current regular nonprobationary classified employee who has applied for and would accept the position, and who meets the minimum job qualifications of the position at the time of their application for the position.
8. Permits an employee who accepts a new assignment to elect to add the new assignment hours to their current assignment or replace their current assignment with the new assignment, as specified.
9. If a new part-time assignment requires a certain number of years of service, requires the employer to accept the employee’s number of years of service with the employer, regardless of the number of hours worked each year while employed.
10. Requires the employer to provide the same benefits to classified employees who work part-time assignments for the same employer equal to the number of hours for a full-time assignment, as employees who work a full-time assignment.
11. Prohibits the employer from retaliating against classified employees for either refusing a vacancy or accepting a vacancy.
12. Prohibits the employer from offering a vacancy to applicants if the total of the regular hours of the two positions would require overtime pay or otherwise violate the federal Fair Labor Standards Act of 1938 (29 U.S.C. Sec. 201 et seq.) or any other state or federal law.
13. Specifically applies this bill’s provisions to county offices of education, school districts, and joint powers authorities comprising county offices of education or school districts, regardless of whether the county office of education, school district, or joint powers authority comprising county offices of education or school districts has adopted the merit system.
14. Defines “education employer”, in parallel provisions that apply to school and community college employers respectively, to mean: for school employers, a county office of education, school district, or joint powers authority comprised of county offices of education or school districts; and for community college employers, a community college district or joint powers authority comprising community college districts.
15. Provides that this bill’s provisions do not apply to the following:
    1. An employee who is in the process of completing a written performance improvement plan, who was previously involuntarily demoted from the same position as the vacancy, who has been suspended, or who is the subject of a pending disciplinary action for suspension or dismissal.
    2. Confidential or management employees, as specified, nor to vacancies for confidential or management position
16. Clarifies that its provisions do not supersede the rights of persons laid off or voluntarily demoted, as specified.
17. Provides that its provisions shall not apply until the expiration or renewal of a collective bargaining agreement, to the extent that the provisions conflict with a provision of a valid collective bargaining agreement that is in effect as of January 1, 2025, as specified.
18. Permits the parties to waive or modify this bill’s requirements by mutual agreement pursuant to a valid collective bargaining agreement, if the agreement explicitly states the waiver and directly references the corresponding code section.

Comments

According to the author, “The majority of classified employees work part-time, and over half of CSEA members earn less than $30,000 per year. They are not provided enough hours to make ends meet and do not qualify for benefits like health insurance. Classified employees are the backbone of our TK-14 schools and community colleges, and many are leaving public education due to a lack of support, low pay, and no benefits. A survey conducted by the National Center for Education Statistics: Forty-nine percent of public schools reported having at least one non-teaching staff vacancy as of January 2022. Of schools reporting at least one vacancy, custodial staff was identified as the staff position with the most vacancies, with 28 percent of schools-reporting this vacancy. Transportation staff and nutrition staff positions were each reported as vacant by 14 percent of schools.”

“AB 2088 will require all public local education agencies, county offices of education, community colleges, and joint power authorities to offer any new part- or full-time classified assignments to existing, qualified, and classified employees. If no existing, classified employees choose to apply for the position within 10 days, then the job may be offered to an external applicant. Not only will this bill help classified employees sustain themselves and their families, it will also ensure that more employees have access to health insurance and retirement benefits.”

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

According to the Senate Appropriations Committee:

• This bill could result in additional, ongoing Proposition 98 General Fund costs for school and community college districts to develop the hiring process, procedures, and policies required pursuant to this bill. At minimum, these activities would include the provision of notice and application instructions for any new classified employees, establishing a method of selection from among multiple applicants, and verifying the classified employees’ qualifications and number of years of service with the education employer. Based on similar requirements, the Chancellor’s Office estimates these costs to be between $15,000 and $23,000 for each district, or $1.1 million to $1.7 million statewide.
• The Chancellor’s Office indicates there could be unknown, but potentially significant Proposition 98 General Fund cost pressures for the 72 community college districts statewide to provide benefits to classified employees who work multiple part-time assignments that equal the number of hours for a full-time assignment
• The Chancellor’s Office could incur one-time General Fund workload costs between $12,000 and $56,000 to issue guidance on allowable hiring practices that are consistent with existing guidelines on Equal Employment Opportunity regulations and provide technical assistance.

SUPPORT: (Verified 8/15/24)

California Federation of Teachers (Co-source)

California School Employees Association (Co-source)
California Service Employees International Union (Co-source)

American Federation of State, County and Municipal Employees
California Labor Federation
California Teachers Association
California Teamsters Public Affairs Council

OPPOSITION: (Verified 8/15/24)

Alameda County Office of Education
Allan Hancock College
Anaheim Union High School District
Association of California Community College Administrators
Association of California School Administrators
Association of Chief Human Resources Officers and Equal Employment Officers
Beaumont Unified School District
Berkeley Unified School District Personnel Commission
Brawley Elementary School District
Buellton Union School District
Cajon Valley Union School District
California Association of School Business Officials
California Association of Suburban School Districts
California County Superintendents
California School Boards Association
Cambrian School District
Campbell Union School District
Capistrano Unified School District
Cardiff School District
Carlsbad Unified School District
Castaic Union School District
Castro Valley Unified School District
Central Valley Education Coalition
Chabot Las Positas Community College District
Charter Oak Unified School District
Citrus College
Coast Community College District
Community College League of California
Cooperative Organization for The Development of Employee Selection Procedures
El Segundo Unified School District
Encinitas Union School District
Fallbrook Union High School District
Foothill-De Anza Community College District
Fresno Unified School District
Gavilan College
Huntington Beach City School District
Kern County Superintendent of Schools
Keyes Union Elementary School District
Kings County Office of Education
LA Habra City School District
LA Mesa-Spring Valley School District
Long Beach Community College District
Long Beach Unified School District, Personnel Commission
Los Angeles County Office of Education
Los Angeles County Superintendent of Schools
Los Angeles Unified School District
Los Gatos-Saratoga Union High School District
Marin County Superintendent of Schools
Menlo Park City School District
Milpitas Unified School District
MiraCosta Community College District
Mount Pleasant Elementary School District
Mt. San Antonio College
Nevada County Superintendent of Schools
Newport-Mesa Unified School District
North Orange County Community College District
Orange County Department of Education
Palo Verde Community College District
Peralta Community College District
Personnel Commissions Association of Southern California
Pleasant Valley School District
Redondo Beach Unified School District
Rio Hondo College
Riverside Community College District
Riverside County Office of Education
Riverside County Superintendent of Schools
Rowland Unified School District Personnel Commission
San Bernardino Community College District
San Bernardino County Superintendent of Schools
San Diego Unified School District
San Joaquin County Office of Education
San Jose-Evergreen Community College District
San Marcos Unified School District
San Mateo County Superintendent of Schools
San Mateo Union High School District
San Pasqual Union School District
Santa Barbara County Education Office
Santa Maria Joint Union High School District
Santa Rosa Junior College
Savanna School District
School Employers Association of California
Shasta College
Sierra Community College District
Silver Valley Unified School District
Small Schools Districts’ Association
South Orange County Community College District
Sulphur Springs Union School District
Sunnyvale School District
Taft Union High School District
Tehama County Department of Education
Temple City Unified School District
Thermalito Union Elementary School District
Tulare Joint Union High School District
Vallecitos School District
Ventura County Community College District Personnel Commission
Victor Valley College
Yosemite Community College District

ARGUMENTS IN SUPPORT: According to the California School Employees Association, “Not only will this bill help classified employees make ends meet, but it will also ensure that more employees have access to health insurance and retirement benefits. It will also facilitate filling open positions quickly and efficiently with existing staff. Fully staffed schools will create a positive learning environment for our students.”

“AB 2088 is the reintroduction of AB 1699 (McCarty), which was vetoed late last year by the Governor. Based on conversations with the Newsom Administration as well as education employer groups, AB 2088 includes amended language to attempt to address concerns articulated by the opposition without compromising the spirit of the bill.”

According to the California Federation of Teachers, “AB 2088 is significantly different from AB 1699 (McCarty, 2023), similar legislation that was vetoed last year. 2088 specifies that an employee must be qualified at the time of their application, creates a new process for selecting between two or more qualified candidates that uses the selection criteria determined through collective bargaining, and clarifies that LEAs and unions can negotiate alternative agreements to the process specified in the bill, rather than superseding collective bargaining. We believe these amendments address the primary concerns raised last year and over the interim by the opposition while protecting the critically important intent of the bill.”

ARGUMENTS IN OPPOSITION: A coalition of several school employers, including the Los Angeles Unified School District, argue that AB 2088 would do the following: 1) create a precedent that a candidate’s time spent with an employer means more than a candidate’s experience and suitability; 2) impede timely hiring and prolong vacancies by creating a ten-business day restriction when only internal candidates may apply for and be offered a position; 3) create an unnecessary delay before schools may fill a position; 4) exasperate retention and morale issues as employees struggle to find a promotional pathway that aligns with their career goals; and 5) require school employers to revamp their hiring process less than three months after the bill becomes law.

ASSEMBLY FLOOR: 52-11, 5/22/24

AYES: Addis, Aguiar-Curry, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Juan Carrillo, Wendy Carrillo, Connolly, Mike Fong, Gabriel, Garcia, Gipson, Grayson, Haney, Irwin, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Papan, Pellerin, Quirk-Silva, Ramos, Rendon, Reyes, Santiago, Schiavo, Soria, Ting, Valencia, Villapudua, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

NOES: Alanis, Davies, Dixon, Flora, Vince Fong, Hoover, Lackey, Sanchez, Ta, Waldron, Wallis

NO VOTE RECORDED: Calderon, Cervantes, Chen, Megan Dahle, Essayli, Friedman, Gallagher, Hart, Holden, Mathis, Pacheco, Jim Patterson, Joe Patterson, Petrie-Norris, Luz Rivas, Rodriguez, Blanca Rubio

Prepared by: Glenn Miles / L., P.E. & R. / (916) 651-1556

8/18/24 8:51:26

**** END ****

SENATE COMMITTEE ON

Senator Anna Caballero, Chair

2023 - 2024 Regular Session

AB 2088 (McCarty) - K–14 classified employees: part-time or full-time vacancies: public postings

Bill Summary:

This bill requires school and community college districts to notice any vacancies for part-time and full-time classified positions to current regular non-probationary classified employees, and offer them first refusal over all applicants, except those on reemployment or voluntary demotion lists, during a 10-day notice period.

Fiscal Impact:

• This bill could result in additional, ongoing Proposition 98 General Fund costs for school and community college districts to develop the hiring process, procedures, and policies required pursuant to this bill. At minimum, these activities would include the provision of notice and application instructions for any new classified employees, establishing a method of selection from among multiple applicants, and verifying the classified employees’ qualifications and number of years of service with the education employer. Based on similar requirements, the Chancellor’s Office estimates these costs to be between $15,000 and $23,000 for each district, or $1.1 million to $1.7 million statewide.
• The Chancellor’s Office indicates there could be unknown, but potentially significant Proposition 98 General Fund cost pressures for the 72 community college districts statewide to provide benefits to classified employees who work multiple part-time assignments that equal the number of hours for a full-time assignment
• The Chancellor’s Office could incur one-time General Fund workload costs between $12,000 and $56,000 to issue guidance on allowable hiring practices that are consistent with existing guidelines on Equal Employment Opportunity regulations and provide technical assistance.

Background:

Existing law requires the governing board of a school or community college district to employ persons for positions not requiring certification qualifications and classify those employees and positions, as specified. The employees and positions shall be known as the classified service.

Existing law authorizes school and community college districts to adopt, as specified, a civil service merit system to regulate personnel through a 3-member personnel commission (college districts may have 5 members) and a personnel director. Where a district adopts a merit system, existing law requires the personnel commission to classify all employees and positions within the district’s jurisdiction and designate them as the classified service. However, specified employees, including certificated employees, are exempt from the classified service.

Proposed Law:

This bill requires education employers, whether in merit or non-merit districts, to offer any vacancies for part-time and full-time positions with priority over any other applicant, except applicants on reemployment or voluntary demotion lists, to current regular non-probationary classified employees who meet the minimum job qualifications of the position.

This bill requires an education employer to provide all of its classified employees and their exclusive representatives notice of, and instructions for applying for, any new classified position at least 10 business days before the education employer may offer the position to an external candidate. It also requires an employee to apply for the position within 10 business days of the notice in order to qualify for the right of first refusal, but does not prohibit the employer from posting the new position to the general public during the 10-day period.

This bill requires that the employer grant the new position as a right of first refusal to a current regular nonprobationary classified employee who applies for the position and who meets the minimum job qualifications of the position at the time of their application for the position. It also requires that the employer grant the position, if there is more than one eligible applicant, to a qualified, internal applicant selected according to the collectively bargained method of selection. If no such method is set forth in a valid collective bargaining agreement, then priority among those applicants shall be determined as follows:

1. First, by seniority, as specified, if the applicants currently work in the same class as the new position; or
2. By the employer’s standard method of selection, among applicants in other classifications for whom the new position would represent an increase in hours or wages, if there are no qualified applicants from the same classification as the position.

This bill prohibits the employer from selecting someone (except an applicant on a reemployment or voluntary demotion list) for an open position who is not currently employed by the employer if there is at least one current regular nonprobationary classified employee who has applied for and would accept the position, and who meets the minimum job qualifications of the position at the time of their application for the position. It permits an employee who accepts a new assignment to elect to add the new assignment hours to their current assignment or replace their current assignment with the new assignment, as specified.

This bill, if a new part-time assignment requires a certain number of years of service, requires the employer to accept the employee’s number of years of service with the employer, regardless of the number of hours worked each year while employed.

This bill requires the employer to provide the same benefits to classified employees who work part-time assignments for the same employer equal to the number of hours for a full-time assignment, as employees who work a full-time assignment.

This bill prohibits the employer from retaliating against classified employees for either refusing a vacancy or accepting a vacancy, and also prohibits the employer from offering a vacancy to applicants if the total of the regular hours of the two positions would require overtime pay or otherwise violate the federal Fair Labor Standards Act of 1938 (29 U.S.C. Sec. 201 et seq.) or any other state or federal law.

This bill provides that its provisions do not apply to an employee who is in the process of completing a written performance improvement plan, who was previously involuntarily demoted from the same position as the vacancy, who has been suspended, or who is the subject of a pending disciplinary action for suspension or dismissal, or a confidential or management employees, as specified, nor to vacancies for confidential or management position. It also clarifies that its provisions do not supersede the rights of persons laid off or voluntarily demoted, as specified. Further, the bill provides that its provisions shall not apply until the expiration or renewal of a collective bargaining agreement, to the extent that the provisions conflict with a provision of a valid collective bargaining agreement that is in effect as of January 1, 2025, as specified.

Related Legislation: AB 1699 (McCarty, 2023), similar to this bill, would have required school and community college employers to offer any vacancies for part-time and full-time positions with priority to current regular non-probationary classified employees who meet the minimum job qualifications of the position, or who could meet the minimum job qualifications after 10 or fewer hours of training paid by the employer unless otherwise negotiated by the employer and the applicable union. This bill was vetoed with the following message:

“This bill provides current non-probationary classified TK-12 and community college classified staff the right of first refusal for certain new classified positions at their education employer. The bill requires an educational employer to provide its classified employees and their union at least 10 business days' notice of a job vacancy before the general public is authorized to apply for the position. This bill only authorizes the employer to offer the new position to an external applicant if no qualified, internal candidate applies for or accepts the new position within the employer notice period.”

“While I support the author's goal of seeking to provide opportunities for current classified staff to apply for other open positions, this bill may have unintended consequences that are not in the best interest of students. Educational employers and classified staff already have the ability to bargain this issue, and many already have agreements that meet the goals of this bill. Unfortunately, this bill also prohibits future bargaining agreements from implementing their own locally determined process.”

Staff Comments:

Classified school employees serve at K-12 schools and community colleges in positions not requiring certification. These employees include bus drivers, clerical staff, instructional aids, and custodial staff. There are at least 250,000 classified staff at K-12 school and community college districts in the state. This bill offers classified employees the right of first refusal for certain positions at these school and community college districts.

-- END --

SENATE COMMITTEE ON LABOR, PUBLIC EMPLOYMENT AND RETIREMENT

Senator Dave Cortese, Chair

2023 - 2024 Regular

Bill No: AB 2088 Hearing Date: June 26, 2024

SUBJECT: K–14 classified employees: part-time or full-time vacancies: public postings

KEY ISSUE

Requires school and community college employers, in both merit and non-merit districts, to notice any vacancies for part-time and full-time classified positions to current regular non-probationary classified employees, and offer them first refusal over all applicants, except those on reemployment or voluntary demotion lists, during a 10-day notice period. Requires current classified employee candidates to meet the position’s minimum job qualifications at the time of their application and to apply within the specified 10-day notice period to qualify for the right of first refusal. Prohibits the employer from offering, but not advertising, the position to an external candidate until the 10-day notice period expires and no eligible employee candidate has applied.

ANALYSIS

Existing law:

1. Requires the governing board of a school or community college district to employ persons for positions not requiring certification qualifications and classify those employees and positions, as specified. The employees and positions shall be known as the classified service. (Education Code (ED) § 45103 and § 88003)
2. Authorizes school and community college districts to adopt, as specified, a civil service merit system to regulate personnel through a three-member personnel commission (college districts may have five members) and a personnel director. (ED § 45221 et seq. and ED § 88051 et seq.)
3. Applies certain sections of the Education Code related to classified employees to all classified employees of a school or community college district, whether a merit or nonmerit district, unless the section specifically limits its application to nonmerit districts, except as specified. (ED § 45100 and 88000)
4. Requires, where a district adopts a merit system, the personnel commission to classify all employees and positions within the district’s jurisdiction and designate them as the classified service. However, specified employees, including certificated employees, are exempt from the classified service. (ED § 45256 and § 88076)
5. Provides for the appointment process of a personnel commission should a school or community college district adopt a merit system election. (ED § 45240 et seq. and § 88060 et seq.)
6. Establishes the Educational Employment Relations Act (EERA) of 1976 providing for collective bargaining in California's public schools (K-12) and community colleges, as specified. (Government Code (GC) § 3540 et seq.)
7. Limits the scope of representation for bargaining to matters relating to wages, hours of employment, and other terms and conditions of employment. (GC § 3543.2 (a))

This bill:

1. Requires education employers, whether in merit or non-merit districts, to offer any vacancies for part-time and full-time positions with priority over any other applicant, except applicants on reemployment or voluntary demotion lists, to current regular non-probationary classified employees who meet the minimum job qualifications of the position.
2. Requires an education employer to provide all of its classified employees and their exclusive representatives notice of, and instructions for applying for, any new classified position at least 10 business days before the education employer may offer the position to an external candidate.
3. Requires an employee to apply for the position within 10 business days of the notice in order to qualify for the right of first refusal.
4. Does not prohibit the employer from posting the new position to the general public during the 10-day period.
5. Requires that the employer grant the new position as a right of first refusal to a current regular nonprobationary classified employee who applies for the position and who meets the minimum job qualifications of the position at the time of their application for the position.
6. Requires that the employer grant the position, if there is more than one eligible applicant, to a qualified, internal applicant selected according to the collectively bargained method of selection. If no such method is set forth in a valid collective bargaining agreement, then priority among those applicants shall be determined as follows:
   1. First, by seniority, as specified, if the applicants currently work in the same class as the new position; or
   2. By the employer’s standard method of selection, among applicants in other classifications for whom the new position would represent an increase in hours or wages, if there are no qualified applicants from the same classification as the position.
7. Prohibits the employer from selecting someone (except an applicant on a reemployment or voluntary demotion list) for an open position who is not currently employed by the employer if there is at least one current regular nonprobationary classified employee who has applied for and would accept the position, and who meets the minimum job qualifications of the position at the time of their application for the position.
8. Permits an employee who accepts a new assignment to elect to add the new assignment hours to their current assignment or replace their current assignment with the new assignment, as specified.
9. If a new part-time assignment requires a certain number of years of service, requires the employer to accept the employee’s number of years of service with the employer, regardless of the number of hours worked each year while employed.
10. Requires the employer to provide the same benefits to classified employees who work part-time assignments for the same employer equal to the number of hours for a full-time assignment, as employees who work a full-time assignment.
11. Prohibits the employer from retaliating against classified employees for either refusing a vacancy or accepting a vacancy.
12. Prohibits the employer from offering a vacancy to applicants if the total of the regular hours of the two positions would require overtime pay or otherwise violate the federal Fair Labor Standards Act of 1938 (29 U.S.C. Sec. 201 et seq.) or any other state or federal law.
13. Specifically applies the bill’s provisions to county offices of education, school districts, and joint powers authorities comprising county offices of education or school districts, regardless of whether the county office of education, school district, or joint powers authority comprising county offices of education or school districts has adopted the merit system.
14. Defines “education employer”, in parallel provisions that apply to school and community college employers respectively, to mean: for school employers, a county office of education, school district, or joint powers authority comprised of county offices of education or school districts; and for community college employers, a community college district or joint powers authority comprising community college districts.
15. Provides that the bill’s provisions do not apply to the following:
    1. An employee who is in the process of completing a written performance improvement plan, who was previously involuntarily demoted from the same position as the vacancy, who has been suspended, or who is the subject of a pending disciplinary action for suspension or dismissal.
    2. Confidential or management employees, as specified, nor to vacancies for confidential or management position
16. Clarifies that its provisions do not supersede the rights of persons laid off or voluntarily demoted, as specified.
17. Provides that its provisions shall not apply until the expiration or renewal of a collective bargaining agreement, to the extent that the provisions conflict with a provision of a valid collective bargaining agreement that is in effect as of January 1, 2025, as specified.
18. Permits the parties to waive or modify this bill’s requirements by mutual agreement pursuant to a valid collective bargaining agreement, if the agreement explicitly states the waiver and directly references the corresponding code section.

COMMENTS

1. Need for this bill?

According to the author:

“The majority of classified employees work part-time, and over half of CSEA members earn less than $30,000 per year. They are not provided enough hours to make ends meet and do not qualify for benefits like health insurance. Classified employees are the backbone of our TK-14 schools and community colleges, and many are leaving public education due to a lack of support, low pay, and no benefits. A survey conducted by the National Center for Education Statistics: Forty-nine percent of public schools reported having at least one non-teaching staff vacancy as of January 2022. Of schools reporting at least one vacancy, custodial staff was identified as the staff position with the most vacancies, with 28 percent of schools-reporting this vacancy. Transportation staff and nutrition staff positions were each reported as vacant by 14 percent of schools.”

“AB 2088 will require all public local education agencies, county offices of education, community colleges, and joint power authorities to offer any new part- or full-time classified assignments to existing, qualified, and classified employees. If no existing, classified employees choose to apply for the position within 10 days, then the job may be offered to an external applicant. Not only will this bill help classified employees sustain themselves and their families, it will also ensure that more employees have access to health insurance and retirement benefits.”

2. Proponent Arguments

According to the California School Employees Association:

“Not only will this bill help classified employees make ends meet, but it will also ensure that more employees have access to health insurance and retirement benefits. It will also facilitate filling open positions quickly and efficiently with existing staff. Fully staffed schools will create a positive learning environment for our students.”

“AB 2088 is the reintroduction of AB 1699 (McCarty), which was vetoed late last year by the Governor. Based on conversations with the Newsom Administration as well as education employer groups, AB 2088 includes amended language to attempt to address concerns articulated by the opposition without compromising the spirit of the bill.”

According to the California Federation of Teachers:

“AB 2088 is significantly different from AB 1699 (McCarty, 2023), similar legislation that was vetoed last year. 2088 specifies that an employee must be qualified at the time of their application, creates a new process for selecting between two or more qualified candidates that uses the selection criteria determined through collective bargaining, and clarifies that LEAs and unions can negotiate alternative agreements to the process specified in the bill, rather than superseding collective bargaining. We believe these amendments address the primary concerns raised last year and over the interim by the opposition while protecting the critically important intent of the bill.”

3. Opponent Arguments:

A coalition of several school employers, including the Los Angeles Unified School District, argue that AB 2088 would do the following: 1) create a precedent that a candidate’s time spent with an employer means more than a candidate’s experience and suitability; 2) impede timely hiring and prolong vacancies by creating a ten-business day restriction when only internal candidates may apply for and be offered a position; 3) create an unnecessary delay before schools may fill a position; 4) exasperate retention and morale issues as employees struggle to find a promotional pathway that aligns with their career goals; and 5) require school employers to revamp their hiring process less than three months after the bill becomes law.

4. Dual Referral:

The Senate Rules Committee referred this bill to the Senate Labor, Public Employment and Retirement Committee and the Senate Appropriations Committee.

5. Prior Legislation:

AB 1273 (Bonta, 2023) would require the California Department of Education (CDE) to convene a workgroup on or before December 31, 2024, in consultation with the Division of Occupational Safety and Health (CalOSHA), the Department of Industrial Relations (DIR), the Labor Commissioner (LC), representatives of employee organizations, and representatives of voluntary local educational agencies for the purpose of reporting recommendations to the Legislature on or before December 31, 2025, on appropriate staffing ratios for classified school employee. This bill is currently in the Senate Appropriations Committee.

AB 1699 (McCarty, 2023) would require school and community college employers to offer any vacancies for part-time and full-time positions with priority to current regular non-probationary classified employees who meet the minimum job qualifications of the position, or who could meet the minimum job qualifications after 10 or fewer hours of training paid by the employer unless otherwise negotiated by the employer and the applicable union. The Governor vetoed the bill. His veto message stated the following:

“This bill provides current non-probationary classified TK-12 and community college classified staff the right of first refusal for certain new classified positions at their education employer. The bill requires an educational employer to provide its classified employees and their union at least 10 business days' notice of a job vacancy before the general public is authorized to apply for the position. This bill only authorizes the employer to offer the new position to an external applicant if no qualified, internal candidate applies for or accepts the new position within the employer notice period.”

“While I support the author's goal of seeking to provide opportunities for current classified staff to apply for other open positions, this bill may have unintended consequences that are not in the best interest of students. Educational employers and classified staff already have the ability to bargain this issue, and many already have agreements that meet the goals of this bill. Unfortunately, this bill also prohibits future bargaining agreements from implementing their own locally determined process.”

SUPPORT

California Federation of Teachers (Co-sponsor)

California School Employees Association (Co-sponsor)
Service Employees International Union, California (Co-sponsor)

American Federation of State, County and Municipal Employees
California Labor Federation
California Teachers Association
California Teamsters Public Affairs Council

OPPOSITION

Alameda County Office of Education
Allan Hancock College
Association of California Community College Administrators
Association of California School Administrators
Berkeley Unified School District Personnel Commission
Buellton Union School District
California Association of School Business Officials
California Association of Suburban School Districts
California County Superintendents
California School Boards Association
Campbell Union School District
Capistrano Unified School District
Carlsbad Unified School District
Castaic Union School District
Castro Valley Unified School District
Central Valley Education Coalition
Chabot Las Positas Community College District
Charter Oak Unified School District
Citrus College
Community College League of California
Cooperative Organization for the Development of Employee Selection Procedures
El Segundo Unified School District
Foothill-De Anza Community College District
Fresno Unified School District
Gavilan College
Huntington Beach City School District
Kern County Superintendent of Schools
Keyes Union Elementary School District
LA Habra City School District
Long Beach Community College District
Long Beach Unified School District, Personnel Commission
Los Angeles County Office of Education
Los Angeles County Superintendent of Schools
Los Angeles Unified School District
Marin County Superintendent of Schools
Menlo Park City School District
MiraCosta Community College District
Mt. San Antonio College
Newport-Mesa Unified School District
North Orange County Community College District
Orange County Department of Education
Palo Verde Community College District
Peralta Community College District
Personnel Commissions Association of Southern California
Pleasant Valley School District
Redondo Beach Unified School District
Riverside Community College District
Riverside County Office of Education
Riverside County Superintendent of Schools
Rowland Unified School District Personnel Commission
San Bernardino Community College District
San Bernardino County Superintendent of Schools
San Joaquin County Office of Education
San Jose-evergreen Community College District
San Mateo County Superintendent of Schools
San Mateo Union High School District
Santa Barbara County Education Office
Santa Maria Joint Union High School District
Santa Rosa Junior College
Savanna School District
School Employers Association of California
Shasta College
Sierra Community College District
Silver Valley Unified School District
Small Schools Districts’ Association
South Orange County Community College District
Sulphur Springs Union School District
Sunnyvale School District
Tehama County Department of Education
Temple City Unified School District
Thermalito Union Elementary School District
Tulare Joint Union High School District
Yosemite Community College District

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 2088

Author:(McCarty)

As Amended Ver:May 16, 2024

Majority vote

SUMMARY

Establishes a statutory right of first refusal to current regular nonprobationary classified employees (CRNCEs) of school and community districts relating to part-time and full-time vacant positions, and requires educational employers to adhere to certain prescribed requirements, among other provisions.

Major Provisions

1. Require the governing boards of school and community college districts, respectively, including joint powers authorities (JPAs) formed by them, to offer with priority, vacant part- and full-time positions to CRNCEs who meet the minimum job qualifications of the position at the time of application for the position.
2. Require CRNCEs to apply for the position within 10 business days of a required employer notice to qualify for the right of first refusal, and the employer to not offer the position to any applicant until that 10-day period has expired, but has discretion to award the position, as provided.
3. Require education employers to adhere to the following requirements:
4. Provide to all of its classified employees and their exclusive representatives notice of, and instructions to apply for, any new classified position at least 10 business days before the education employer may offer the position to an external candidate. However, the education employer is not prohibited from posting the new position to the general public during the 10-day period.
5. Grant the new position as a right of first refusal to the CRNCEs, as prescribed. However, if there is more than one applicant for the same position, the right of first refusal must be granted to a qualified internal applicant who is selected according to a collectively bargained selection method, and if no such method has been agreed to, priority among multiple applicants must be determined by a prescribed process.
6. Not select in any case, except as provided, a person for an open position who is not currently employed by the employer if there is at least one CRNCE who, at the time of application is qualified for the position, has applied for and would accept the position.
7. Authorize a CRNCE who accepts the new assignment to either add the hours of that assignment to their current assignment, if feasible, or replace the current assignment with the new assignment if the new assignment has more hours than the current assignment. If the hours of the current and new assignments overlap, the employer must reasonably modify the assignment schedules to allow the employee to work both. However, this must not be construed to require the employer to grant additional hours in a manner that would qualify as overtime pay.
8. Require the education employer to accept the current part-time employee's number of years of service with the employer regardless of the number of hours worked each year while employed, if a part-time employee applies for an additional part-time assignment that requires a certain number of years of service, and classified employees who work part-time assignments that equal the number of full-time assignment hours for the same employer to receive the same benefits as full-time employees.
9. Prohibit retaliation against a classified employee for refusing or accepting a vacancy; expressly prohibit the offer of a vacancy to applicants if the total of the regular hours of two positions would require overtime pay or violate the federal Fair Labor Standards Act of 1938, or any other state or federal law; define "education employer" for these purposes; and, excludes individuals under certain circumstances to whom the right of refusal does not apply.
10. Establishes that to the extent these provisions are in conflict with a valid collective bargaining agreement (CBA) that is in effect as of January 1, 2025, these provisions must not apply to the employer until the expiration or renewal of that agreement, and these provisions may be waived or modified by a CBA provided that the waiver or modification is explicitly stated in the CBA and directly references this statute.

COMMENTS

Classified Employees

Traditionally, classified employees are staff at schools, school districts, County Offices of Education, California Community Colleges (CCC) or community college districts who are in a position not requiring certification. These employees include paraprofessionals, office and technical support staff, as well as custodians, bus drivers, and business managers. In some instances, classified employees also may serve as paraeducators where students may require personalized educational support while the paraeducator is under the tutelage of a certificated employee (i.e., teacher).

Vacancies in Non-Teaching Positions

Among other vacancies in public schools, In March of 2022, the National Center for Education Statistics (NCES) released survey findings titled, "U.S. Schools Report Increased Teacher Vacancies Due to COVID-19 Pandemic." The NCES found that nearly 50 percent of public schools nationwide are experiencing a worker crisis, and that the crisis is not limited to teachers, but also includes classified employees such as school bus drivers, paraeducators and custodians. As of January 2022, 49 percet of public schools reported having at least one non-teaching staff vacancy. Further, of the schools reporting at least one vacancy, custodial staff was identified as the staff position with the most vacancies, with 28 percent of schools-reporting this vacancy.

Transportation staff and nutrition staff positions were each reported as vacant by 14 percent of schools. For schools who reported having either a teaching or staff vacancy, over 50 percent of vacancies were due to resignation. Additionally, to cover staffing vacancies, over half of the schools reported the increased need to use school staff outside of their intended duties. Lastly, 61 percent of schools that reported having at least one vacancy specifically identified the COVID-19 pandemic as a cause of increased teaching and non-teaching staff vacancies.

The Right of First Refusal is Not Entirely New; Has Been Collectively Bargained in Some Instances; and, This Bill Includes Certain Deferential Provisions to the Collective Bargaining Process

Although proposed to add this concept to statute, several memoranda of understandings (MOU) or collective bargaining agreements (CBA) contain right of first refusal provisions. Under the EERA collective bargaining framework, the mandatory subjects of bargaining are wages, hours, and other terms and conditions of employment, and both the employer and employee organization have an obligation to bargain on these subjects in good faith.

While there are mandatory subjects of bargaining, there exists permissive subjects in which the parties may bargain over subject matters that are of mutual interest to each. Here, the parties do not have an obligation to bargain over permissive subjects if one party declines, and such subjects cannot be insisted upon towards an impasse. Moreover, permissive subjects are not transmuted to mandatory subjects simply by their inclusion in a MOU or CBA.

Some education employers have negotiated provisions in a MOU or CBA that provide for a right of first refusal. As examples of such rights being collectively bargained, in Section 5.1.2, Article V (Hours) of an agreement between the recognized exclusive representative and the San Luis Obispo County Superintendent of Schools, similar provisions exist. In Section 7.15 of an agreement between the recognized exclusive representative and the Torrance Unified School District (TUSD), similar provisions exist.

Because such provisions have been collectively bargained between some employers and employee representatives, this bill may be viewed as inappropriate legislative intrusion into the collective bargaining arena. Further, because the subject of this bill relates to "hours" (which also has some bearing on, or nexus to, "wages"), and "other terms and condition of employment," it also could be viewed as inappropriate legislative intrusion into the EERA's collective bargaining framework as to the scope of representation.

Notwithstanding the discussion immediately above, this bill acknowledges the Educational Employment Relations Act (covering certain public educational employers and their employees) in two key respects: First, this bill provides that if it conflicts with a CBA that is in effect as of January 1, 2025, the provisions of this bill do not apply until the CBA has expired or renewed. Thus, this bill protects existing CBA provisions until such time as they expire or are renewed, which also avoids potential questions or concerns relating to a constitutional violation. Second, its provisions authorize a waiver or modification of the proposed statute via the collective bargaining process, provided that such a waiver or modification is explicitly stated in the CBA and directly references this statute by code section. Thus, while the provisions of this bill would establish a statutory requirement relating to its subject, it provides flexibility for the employer and applicable exclusive representatives to agree on, and implement, alternatives. As such, while this bill may be viewed as inappropriate legislative intrusion into the EERA collective bargaining framework and process by statutorily establishing a matter that has been documented as capable of being collectively bargained, its provisions also defer to that framework and process for alternatives – should the parties be willing and able to agree on such alternatives.

Filling Vacancies

The foundation of the right of first refusal proposed by this bill requires an employer's notice, as prescribed, of new a classified position for at least 10 business days and qualified existing CRNCEs must apply for the position within 10 business days of that notice, among other provisions. To the extent that there are no CRNCEs who are qualified, interested, or apply for the new position, however remote, the notice and application period must first be exhausted before the vacancy can be offered to an external candidate which may affect the employer's ability to timely hire an otherwise qualified external applicant whom is ready, willing, and able to become employed and perform the required duties.

Please see the respective policy committee analyses for a full discussion of this bill.

According to the Author

"Classified employees are the backbone of our school districts and community colleges. They ensure that everything runs smoothly, from school buses arriving on time to students being fed. Despite their critical contributions to our students, low wages and lack of opportunity is driving qualified staff away. [This bill] keeps existing and qualified workers in our schools, guaranteeing them access to better pay and benefits."

Arguments in Support

Generally, supporters of this bill express that with the wage levels of classified employees, they have difficulty making ends meet and are not afforded the first opportunity to work additional hours when vacant positions are available. Because of this, they also have difficulty qualifying for certain benefits, such as health care or retirement (i.e., a pension). Supporters also express that that this bill will help address those issues while also efficiently facilitating filling vacant positions with existing staff to support students and the learning environment.

Arguments in Opposition

Opponents generally express that this bill intrudes upon and negatively impacts local control and autonomy regarding employer hiring processes, protocols, and flexibility that should be collectively bargained locally. Further, as proposed, this bill will exacerbate employer budgetary challenges, and timely hiring to fill vacancies by restricting job opportunities to qualified external applicants for a period of time by establishing barriers to those applicants in favor of internal applicants when the employer must ensure that students are receiving needed services.

FISCAL COMMENTS

According to the Assembly Appropriations Committee, this bill would result in the following:

1. Ongoing Proposition 98 General Fund costs, of an unknown but potentially significant amount, to LEAs to update campus hiring policies, begin providing certain notices, and train administrative staff on the new policies, as required by this bill. The state has over 1,000 LEAs.
2. Ongoing Proposition 98 General Fund costs, of an unknown but potentially significant amount, to CCC districts to update campus hiring policies, begin providing certain notices, and train administrative staff on the new policies, as required by this bill.
3. Unknown, but potentially significant, ongoing Proposition 98 General Fund cost pressures to LEAs and CCCs to provide benefits to classified employees who work multiple part-time assignments that equal the number of hours for a full-time assignment.

VOTES

ASM PUBLIC EMPLOYMENT AND RETIREMENT: 5-2-0

YES: McKinnor, Boerner, Hart, Stephanie Nguyen, Luz Rivas

NO: Lackey, Vince Fong

ASM HIGHER EDUCATION: 7-2-2

YES: Mike Fong, Arambula, Boerner, Irwin, Jackson, Low, Muratsuchi

NO: Ta, Essayli

ABS, ABST OR NV: Chen, Quirk-Silva

ASM APPROPRIATIONS: 11-3-1

YES: Wicks, Arambula, Bryan, Calderon, Wendy Carrillo, Mike Fong, Grayson, Haney, Hart, Pellerin, Villapudua

NO: Sanchez, Dixon, Ta

ABS, ABST OR NV: Jim Patterson

UPDATED

VERSION: May 16, 2024

CONSULTANT: Michael Bolden / P. E. & R. / (916) 319-3957 FN: 0003181

Date of Hearing: April 23, 2024

ASSEMBLY COMMITTEE ON HIGHER EDUCATION

Mike Fong, Chair

ABPCA Bill Id:AB 2088 (

Author:McCarty) – As Amended Ver:March 18, 2024

SUBJECT: K–14 classified employees: part-time or full-time vacancies: public postings.

SUMMARY: Establishes a statutory right of first refusal to current regular nonprobationary classified employees (CRNCEs) of school and California Community College districts (CCD) relating to part-time and full-time vacant positions, and requires educational employers to adhere to certain prescribed requirements. Specifically, this bill:

1. Requires the governing boards of school and CCD, respectively, including joint powers authorities (JPAs) formed by them, to offer with priority, vacant part- and full-time positions to CRNCEs who meet the minimum job qualifications of the position at the time of application.
2. Requires CRNCEs to apply for the position within 10 business days of the required employer notices to qualify for the right of first refusal, and that the employer is not to offer the position to any applicant until the 10-day period has expired, but has the discretion to award the position, as provided.
3. Requires education employers to adhere to the following requirements:
4. Provide to all of its classified employees and their exclusive representatives notice of, and instructions to apply for, any new classified position at least 10 business days before the general public is authorized to apply for the position. However, if no qualified internal candidate applies for or accepts the new position after the notice and within that timeframe, the employer is authorized to offer the new position to an external applicant;
5. Grant the new position, as a right of first refusal, to the CRNCEs, as prescribed. However, if there is more than one applicant for the same position, the right of first refusal must be granted to a qualified internal applicant who is selected according to a collectively bargained selection method, and if no such method has been agreed to, the priority among multiple applicants must be determined by a prescribed process;
6. Not select in any case, except as provided, a person for an open position who is not currently employed by the employer if there is at least one CRNCE who, at the time of application, is qualified for the position and has applied for and would accept the position; and,
7. Authorize a CRNCE who accepts the new assignment to either add the hours of that assignment to their current assignment, if feasible, or replace the current assignment with the new assignment if the new assignment has more hours than the current assignment. If the hours of the current and new assignments overlap, the employer must reasonably modify the assignment schedules to allow the employee to work both. However, this must not be construed to require the employer to grant additional hours in a manner that would qualify as overtime pay.
8. Requires the employer to accept a current part-time employee’s years of service with that employer, regardless of the capacity the years of service were earned, when the part-time employee applies for an additional part-time assignment that requires certain years of service.
9. Requires classified employees who work part-time assignments that equal the number of full-time assignment hours for the same employer to receive the same benefits as full-time employees.
10. Prohibits retaliation against a classified employee for refusing or accepting a vacancy.
11. Expressly prohibits the offer of a vacancy to applicants if the total of the regular hours of two positions would require overtime pay or violate the federal Fair Labor Standards Act of 1938, or any other state or federal law.
12. Defines “education employer” to mean a CCD or JPA comprising CCD.
13. Establishes that the right of first refusal does not apply to a person who:
14. Is in the process of completing a written improvement plan;
15. Was previously demoted involuntarily from the same position as the vacancy;
16. Has been suspended;
17. Is the subject of a pending disciplinary action for suspension or dismissal; and,
18. Is a confidential or managerial employee, as defined, nor to vacancies for confidential or management positions.
19. Expressly provides that these provisions do not supersede certain rights under existing law, as provided.
20. Establishes that to the extent these provisions are in conflict with a valid collective bargaining agreement (CBA) that is in effect as of January 1, 2025, these provisions must not apply to the employer until the expiration or renewal of that agreement, and these provisions may be waived or modified by a CBA provided that the waiver or modification is explicitly stated in the CBA and directly references this statute.

EXISTING LAW:

1. Establishes the California Community Colleges (CCC), a postsecondary education system in this state, under the administration of the Board of Governors and specifies that the CCC consist of CCDs.

Establishes the mission and function of the CCC, which, in part is to: 1) offer academic and vocational instruction at the lower division level for both younger and older students, including those persons returning to school; 2) authorizes the CCC to grant the associate in arts and the associate in science degrees; 3) requires the CCC to offer English as a Second Language instruction, adult noncredit instruction, and support services which help students succeed at the postsecondary level; and, 4) advance California’s economic growth and global competitiveness through education, training, and services that contribute to continuous work force improvement (Education Code (EC) Sections 66010.4 and 70900).

1. Establishes the classified service in school districts and CCDs, as specified, and except as otherwise provided (EC Sections 45100 et seq., and 88000 et seq.).
2. Defines, among other terms, the following:
   1. “Classification” to mean that each position in the classified service must have a designated title; a regular minimum number of assigned hours per days, days per week, and months per year; a specific statement of the duties required to be performed by the employees in the position, and regular monthly salary ranges for the position;
   2. “Permanent” as used in the phrase “permanent employee” to include tenure in the classification in which the employee passed the required probationary period, and all of the incidents of that classification; and,
   3. “Regular,” as used in the phrase “regular classified employee,” or any similar phrase, refers to a classified employee who has probationary or permanent status (EC Sections 45101 and 88001).
3. Establishes the Classified Community College Employee Summer Assistance Program effective June 30, 2022. The program provides up to a dollar-for-dollar match on amounts withheld from a participating CCD’s classified employees’ monthly pay starting the 2023-2024 academic school year. The classified employees' pay withheld, and the state match funds will be paid by districts to the district’s eligible classified employees in the summer recess period (June, July, and August when regular classes are not held) following the 2023-2024 academic year. Classified employees can elect to have up to 10% of their monthly pay withheld during the academic year (EC Section 88280).

FISCAL EFFECT: Unknown. This measure is keyed non-fiscal by the Office of Legislative Counsel.

COMMENTS: Double referral. This measure was heard in the Assembly Committee on Public Employment and Retirement (P. E. & R.), where it passed with a 5-2 vote on April 3, 2024. Issues germane to the P. E. & R. Committee’s jurisdiction are referenced in that Committee’s analysis.

Need for the measure. According to the author, “California’s education workforce is in crisis. Districts across the state have countless unfilled positions while jobs are split and districts cannot attract enough applicants willing to work part-time without benefits. The crisis has also led to a revolving door of temporary and substitute workers, creating constant instability at school sites. Not surprisingly student learning and morale has been negatively impacted.”

In March of 2022, the National Center for Education Statistics (NCES) released survey findings, titled, U.S. Schools Report Increased Teacher Vacancies Due to COVID-19 Pandemic. The NCES found that nearly 50% of public schools nationwide are experiencing a worker crisis. This crisis is not limited to teachers, but also includes classified employees such as school bus drivers, paraeducators and custodians. As of January 2022, 49% of public schools reported having at least one non-teaching staff vacancy. Further, of the schools reporting at least one vacancy, custodial staff was identified as the staff position with the most vacancies, with 28% of schools-reporting this vacancy.

Transportation staff and nutrition staff positions were each reported as vacant by 14% of schools. For schools who reported having either a teaching or staff vacancy, over 50% of vacancies were due to resignation. Additionally, to cover staffing vacancies, over half of the schools reported the increased need to use school staff outside of their intended duties. Lastly, 61% of schools that reported having at least one vacancy specifically identified the COVID-19 pandemic as a cause of increased teaching and non-teaching staff vacancies.

Classified employees. Traditionally, classified employees are staff at schools, school districts, County Offices of Education or CCCs and CCDs who are in a position not requiring certification. Classified staff include paraprofessionals, office and technical support staff, as well as, custodians, bus drivers, and business managers. In some instances, classified employees also may serve as paraeducators where students may require personalized educational support while the paraeducator is under the tutelage of a certificated employee (i.e., teacher).

The author contends that, “most classified employees are considered to be members of vulnerable communities – many of them low-income and racial and ethnic minorities. The majority of classified employees work part-time, and over half of CSEA [California School Employees Association] members earn less than $30,000 per year. They are not provided enough hours to make ends meet and do not qualify for benefits like health insurance.”

Additionally, the author states that, “classified employees are the backbone of our TK-14 schools and community colleges, and many are leaving public education due to a lack of support, low pay, and no benefits. AB 2088 will be monumental in helping classified employees sustain themselves and their families. It will be directly uplifting vulnerable communities, as it will ensure they receive better pay and benefits.”

Committee comments. According to the Assembly Committee on Education, “this measure appears to require that a school hire an existing part-time employee instead of a more qualified external candidate. Schools and students could benefit from further discretion in the hiring process, particularly for jobs that require interaction with students.”

For example, it appears that the bill will require a school to hire an existing employee that works in a warehouse for a job as a classroom aide (paraprofessional), even if the person has never worked with children.

Moving forward, the author may wish to further preserve a school’s discretion to hire the best candidate, especially when it pertains to jobs that involve interaction with pupils.

Additionally, as drafted, this measure stipulates that the education employer must provide all of its classified employees and their exclusive representatives notice of, and instructions for applying for, any new classified position at least 10 business days before the general public is authorized to apply for the position. The measure also stipulates that in order to qualify for the right of first refusal to that position, an employee must apply for the position within 10 business days of the notice and that the education employer cannot offer the position to any applicant until that 10-day period has expired, and may only award the position in accordance with the requirements, as specified. If no qualified, internal candidate applies for or accepts the new position within at least 10 business days after the education employer provides notice, only then may the education employer offer the new position to an external applicant.

Some stakeholders have expressed concerns with the above; they are not certain of the when the posting of the job offer can commence for external candidates. How does the employer offer the job to an external candidate before the position has been posted?

Moving forward, the author may wish to continue to work with all appropriate stakeholder groups in order to provide clarity.

Arguments in support. According to the California Federation of Teachers (CFT), sponsors of this measure, “this bill would require all public local education agencies, county offices of education, community colleges, and joint powers authorities to offer any new part- or full-time classified assignments to existing classified employees who are qualified and can reasonably perform the assignment.”

CFT contends that, “AB 2088 is significantly different from AB 1699 (McCarty, 2023), similar legislation that was vetoed last year. [AB] 2088 specifies that an employee must be qualified at the time of their application, creates a new process for selecting between two or more qualified candidates that uses the selection criteria determined through collective bargaining, and clarifies that LEAs and unions can negotiate alternative agreements to the process specified in the bill, rather than superseding collective bargaining. We believe these amendments address the primary concerns raised last year and over the interim by the opposition while protecting the critically important intent of the bill.”

Lastly, CFT states that, “not only will this bill help classified employees make ends meet, but it will also ensure that more employees have access to key benefits. It will also help school districts and community colleges address the education workforce crisis, given clear new direction to fill open positions quickly and efficiently with existing staff. Fully staffed schools will also create a positive learning environment for our students and help point our education system towards stability and success.”

Arguments in opposition. According to the Association of California Community College Administrators (ACCCA), “AB 2088 would require K-14 employers to offer vacancies for part- or full-time positions to, as a right of first refusal for ten businesses days, current regular non-probationary classified employees who meet the minimum job qualifications of the position at the time of application.”

Further, ACCCA states that, “ACCCA holds steadfast to the principle that local control is fundamental in establishing and operating sound programs for students and creating an infrastructure that supports all community college employees. As currently written, AB 2088 would encroach on the local autonomy of CCDs by mandating district hiring processes and protocols, which is an issue that should be handled in conjunction with our labor partners during the collective bargaining process.”

Lastly, ACCCA contends that, “our CCDs take great pride in the diversity of the workforce at each of our colleges and work hard to hire staff that is reflective of the students that we serve. AB 2088 would inhibit our ability to tap into our local communities by mandating current employees have the first right of refusal for any new position. In order to ensure that our staff remains reflective of the students we serve, we need to have the flexibility to hire from within and outside of our districts.”

Prior legislation. AB 1699 (McCarty), of 2023, which was vetoed by the Governor, is similar to this measure. The Governor’s veto message stated the following:

“This bill provides current non-probationary classified TK-12 and community college classified staff the right of first refusal for certain new classified positions at their education employer. The bill requires an educational employer to provide its classified employees and their union at least 10 business days' notice of a job vacancy before the general public is authorized to apply for the position. This bill only authorizes the employer to offer the new position to an external applicant if no qualified, internal candidate applies for or accepts the new position within the employer notice period.

While I support the author's goal of seeking to provide opportunities for current classified staff to apply for other open positions, this bill may have unintended consequences that are not in the best interest of students. Educational employers and classified staff already have the ability to bargain this issue, and many already have agreements that meet the goals of this bill. Unfortunately, this bill also prohibits future bargaining agreements from implementing their own locally determined process.”

REGISTERED SUPPORT / OPPOSITION:

Support

California Federation of Teachers AFL-CIO (Sponsor)
California Labor Federation, AFL-CIO
California School Employees Association (Sponsor)
California Teachers Association
California Teamsters Public Affairs Council

Opposition

Association of California Community College Administrators
California Association of School Business Officials (CASBO)
Chabot Las Positas Community College District
Citrus College
Community College League of California

Los Angeles County Superintendent of Schools, Dr. Debra Duardo
Miracosta Community College District
Mt. San Antonio College
North Orange County Community College District
Palo Verde Community College District
Peralta Community College District
San José-Evergreen Community College District
Shasta College
Sierra Community College District
South Orange County Community College District
Yosemite Community College District

Analysis Prepared by: Jeanice Warden / HIGHER ED. / (916) 319-3960

Date of Hearing: May 8, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

ABPCA Bill Id:AB 2088

Author:(McCarty) – As Amended Ver:March 18, 2024

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill establishes a statutory right of first refusal to current regular nonprobationary classified employees of local educational agencies (LEAs) relating to part-time and full-time vacant positions for which they are qualified at the time of their application. The bill establishes a statutory right of first refusal to current regular nonprobationary classified employees of California Community College (CCC) districts to part-time and full-time vacant positions for which they meet the minimum job qualifications of the position, or who could meet the minimum job qualifications of the position at the time of their application.

The bill also requires an LEA or CCC district to provide all of its classified employees and their exclusive representatives notice of, and instructions to apply for, any new classified position at least 10 business days before the general public is authorized to apply for the position. In addition, the bill requires a classified employee at an LEA or CCC district who works a part-time assignment that equals the number of hours for a full-time assignment for the same education employer to receive the same benefits as an employee who works a full-time assignment.

FISCAL EFFECT:

1. Ongoing Proposition 98 General Fund costs, of an unknown but potentially significant amount, to LEAs to update campus hiring policies, begin providing certain notices, and train administrative staff on the new policies, as required by this bill. The state has over 1,000 LEAs.
2. Ongoing Proposition 98 General Fund costs, of an unknown but potentially significant amount, to CCC districts to update campus hiring policies, begin providing certain notices, and train administrative staff on the new policies, as required by this bill.

According to the CCC Chancellor’s Office, updating campus policies typically ranges from between $1,706 to $4,037 per college for the state’s 115 community college campuses.

1. Unknown, but potentially significant, ongoing Proposition 98 General Fund cost pressures to LEAs and CCCs to provide benefits to classified employees who work multiple part-time assignments that equal the number of hours for a full-time assignment.

According to the Legislative Analyst’s Office, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years.

COMMENTS:

1. Background. Classified school employees serve at K-12 schools and community colleges in positions not requiring certification. Classified staff include bus drivers, clerical staff, instructional aids, custodial staff, workers at school district warehouses, paraeducators, and others. California has at least 250,000 classified staff.

This bill offers classified employees right of first refusal for certain positions at LEAs and CCCs.

1. Support and Opposition. The California Teachers Association supports this bill and writes:

Too many school staff are leaving public education due to lack of support, low pay, and lack of benefits. This bill will ensure that more educators have access to health insurance and retirement benefits, and is a tool to help school districts and community colleges address the education workforce crisis by filling open positions quickly and efficiently with existing staff.

California Association of School Business Officials opposes this bill and writes:

We are also concerned with the impact it could have on locally negotiated agreements that afford preferential treatment to internal candidates, thereby posing a direct challenge to the diversity, equity, and inclusion initiatives pursued by many districts. By diminishing the autonomy of districts to tailor their hiring practices to suit their unique needs and demographics, AB 2088 could impede efforts to cultivate a workforce that mirrors the rich diversity of our communities and adequately addresses the multifaceted needs of our student body.

1. Prior Legislation. AB 1699 (McCarty) is similar to this measure. AB 1699 was vetoed by the Governor, who wrote, “While I support the author's goal of seeking to provide opportunities for current classified staff to apply for other open positions, this bill may have unintended consequences that are not in the best interest of students.”

Analysis Prepared by: Natasha Collins / APPR. / (916) 319-2081

Date of Hearing: April 23, 2024

ASSEMBLY COMMITTEE ON HIGHER EDUCATION

Mike Fong, Chair

ABPCA Bill Id:AB 2088 (

Author:McCarty) – As Amended Ver:March 18, 2024

SUBJECT: K–14 classified employees: part-time or full-time vacancies: public postings.

SUMMARY: Establishes a statutory right of first refusal to current regular nonprobationary classified employees (CRNCEs) of school and California Community College districts (CCD) relating to part-time and full-time vacant positions, and requires educational employers to adhere to certain prescribed requirements. Specifically, this bill:

1. Requires the governing boards of school and CCD, respectively, including joint powers authorities (JPAs) formed by them, to offer with priority, vacant part- and full-time positions to CRNCEs who meet the minimum job qualifications of the position at the time of application.
2. Requires CRNCEs to apply for the position within 10 business days of the required employer notices to qualify for the right of first refusal, and that the employer is not to offer the position to any applicant until the 10-day period has expired, but has the discretion to award the position, as provided.
3. Requires education employers to adhere to the following requirements:
4. Provide to all of its classified employees and their exclusive representatives notice of, and instructions to apply for, any new classified position at least 10 business days before the general public is authorized to apply for the position. However, if no qualified internal candidate applies for or accepts the new position after the notice and within that timeframe, the employer is authorized to offer the new position to an external applicant;
5. Grant the new position, as a right of first refusal, to the CRNCEs, as prescribed. However, if there is more than one applicant for the same position, the right of first refusal must be granted to a qualified internal applicant who is selected according to a collectively bargained selection method, and if no such method has been agreed to, the priority among multiple applicants must be determined by a prescribed process;
6. Not select in any case, except as provided, a person for an open position who is not currently employed by the employer if there is at least one CRNCE who, at the time of application, is qualified for the position and has applied for and would accept the position; and,
7. Authorize a CRNCE who accepts the new assignment to either add the hours of that assignment to their current assignment, if feasible, or replace the current assignment with the new assignment if the new assignment has more hours than the current assignment. If the hours of the current and new assignments overlap, the employer must reasonably modify the assignment schedules to allow the employee to work both. However, this must not be construed to require the employer to grant additional hours in a manner that would qualify as overtime pay.
8. Requires the employer to accept a current part-time employee’s years of service with that employer, regardless of the capacity the years of service were earned, when the part-time employee applies for an additional part-time assignment that requires certain years of service.
9. Requires classified employees who work part-time assignments that equal the number of full-time assignment hours for the same employer to receive the same benefits as full-time employees.
10. Prohibits retaliation against a classified employee for refusing or accepting a vacancy.
11. Expressly prohibits the offer of a vacancy to applicants if the total of the regular hours of two positions would require overtime pay or violate the federal Fair Labor Standards Act of 1938, or any other state or federal law.
12. Defines “education employer” to mean a CCD or JPA comprising CCD.
13. Establishes that the right of first refusal does not apply to a person who:
14. Is in the process of completing a written improvement plan;
15. Was previously demoted involuntarily from the same position as the vacancy;
16. Has been suspended;
17. Is the subject of a pending disciplinary action for suspension or dismissal; and,
18. Is a confidential or managerial employee, as defined, nor to vacancies for confidential or management positions.
19. Expressly provides that these provisions do not supersede certain rights under existing law, as provided.
20. Establishes that to the extent these provisions are in conflict with a valid collective bargaining agreement (CBA) that is in effect as of January 1, 2025, these provisions must not apply to the employer until the expiration or renewal of that agreement, and these provisions may be waived or modified by a CBA provided that the waiver or modification is explicitly stated in the CBA and directly references this statute.

EXISTING LAW:

1. Establishes the California Community Colleges (CCC), a postsecondary education system in this state, under the administration of the Board of Governors and specifies that the CCC consist of CCDs.

Establishes the mission and function of the CCC, which, in part is to: 1) offer academic and vocational instruction at the lower division level for both younger and older students, including those persons returning to school; 2) authorizes the CCC to grant the associate in arts and the associate in science degrees; 3) requires the CCC to offer English as a Second Language instruction, adult noncredit instruction, and support services which help students succeed at the postsecondary level; and, 4) advance California’s economic growth and global competitiveness through education, training, and services that contribute to continuous work force improvement (Education Code (EC) Sections 66010.4 and 70900).

1. Establishes the classified service in school districts and CCDs, as specified, and except as otherwise provided (EC Sections 45100 et seq., and 88000 et seq.).
2. Defines, among other terms, the following:
   1. “Classification” to mean that each position in the classified service must have a designated title; a regular minimum number of assigned hours per days, days per week, and months per year; a specific statement of the duties required to be performed by the employees in the position, and regular monthly salary ranges for the position;
   2. “Permanent” as used in the phrase “permanent employee” to include tenure in the classification in which the employee passed the required probationary period, and all of the incidents of that classification; and,
   3. “Regular,” as used in the phrase “regular classified employee,” or any similar phrase, refers to a classified employee who has probationary or permanent status (EC Sections 45101 and 88001).
3. Establishes the Classified Community College Employee Summer Assistance Program effective June 30, 2022. The program provides up to a dollar-for-dollar match on amounts withheld from a participating CCD’s classified employees’ monthly pay starting the 2023-2024 academic school year. The classified employees' pay withheld, and the state match funds will be paid by districts to the district’s eligible classified employees in the summer recess period (June, July, and August when regular classes are not held) following the 2023-2024 academic year. Classified employees can elect to have up to 10% of their monthly pay withheld during the academic year (EC Section 88280).

FISCAL EFFECT: Unknown. This measure is keyed non-fiscal by the Office of Legislative Counsel.

COMMENTS: Double referral. This measure was heard in the Assembly Committee on Public Employment and Retirement (P. E. & R.), where it passed with a 5-2 vote on April 3, 2024. Issues germane to the P. E. & R. Committee’s jurisdiction are referenced in that Committee’s analysis.

Need for the measure. According to the author, “California’s education workforce is in crisis. Districts across the state have countless unfilled positions while jobs are split and districts cannot attract enough applicants willing to work part-time without benefits. The crisis has also led to a revolving door of temporary and substitute workers, creating constant instability at school sites. Not surprisingly student learning and morale has been negatively impacted.”

In March of 2022, the National Center for Education Statistics (NCES) released survey findings, titled, U.S. Schools Report Increased Teacher Vacancies Due to COVID-19 Pandemic. The NCES found that nearly 50% of public schools nationwide are experiencing a worker crisis. This crisis is not limited to teachers, but also includes classified employees such as school bus drivers, paraeducators and custodians. As of January 2022, 49% of public schools reported having at least one non-teaching staff vacancy. Further, of the schools reporting at least one vacancy, custodial staff was identified as the staff position with the most vacancies, with 28% of schools-reporting this vacancy.

Transportation staff and nutrition staff positions were each reported as vacant by 14% of schools. For schools who reported having either a teaching or staff vacancy, over 50% of vacancies were due to resignation. Additionally, to cover staffing vacancies, over half of the schools reported the increased need to use school staff outside of their intended duties. Lastly, 61% of schools that reported having at least one vacancy specifically identified the COVID-19 pandemic as a cause of increased teaching and non-teaching staff vacancies.

Classified employees. Traditionally, classified employees are staff at schools, school districts, County Offices of Education or CCCs and CCDs who are in a position not requiring certification. Classified staff include paraprofessionals, office and technical support staff, as well as, custodians, bus drivers, and business managers. In some instances, classified employees also may serve as paraeducators where students may require personalized educational support while the paraeducator is under the tutelage of a certificated employee (i.e., teacher).

The author contends that, “most classified employees are considered to be members of vulnerable communities – many of them low-income and racial and ethnic minorities. The majority of classified employees work part-time, and over half of CSEA [California School Employees Association] members earn less than $30,000 per year. They are not provided enough hours to make ends meet and do not qualify for benefits like health insurance.”

Additionally, the author states that, “classified employees are the backbone of our TK-14 schools and community colleges, and many are leaving public education due to a lack of support, low pay, and no benefits. AB 2088 will be monumental in helping classified employees sustain themselves and their families. It will be directly uplifting vulnerable communities, as it will ensure they receive better pay and benefits.”

Committee comments. According to the Assembly Committee on Education, “this measure appears to require that a school hire an existing part-time employee instead of a more qualified external candidate. Schools and students could benefit from further discretion in the hiring process, particularly for jobs that require interaction with students.”

For example, it appears that the bill will require a school to hire an existing employee that works in a warehouse for a job as a classroom aide (paraprofessional), even if the person has never worked with children.

Moving forward, the author may wish to further preserve a school’s discretion to hire the best candidate, especially when it pertains to jobs that involve interaction with pupils.

Additionally, as drafted, this measure stipulates that the education employer must provide all of its classified employees and their exclusive representatives notice of, and instructions for applying for, any new classified position at least 10 business days before the general public is authorized to apply for the position. The measure also stipulates that in order to qualify for the right of first refusal to that position, an employee must apply for the position within 10 business days of the notice and that the education employer cannot offer the position to any applicant until that 10-day period has expired, and may only award the position in accordance with the requirements, as specified. If no qualified, internal candidate applies for or accepts the new position within at least 10 business days after the education employer provides notice, only then may the education employer offer the new position to an external applicant.

Some stakeholders have expressed concerns with the above; they are not certain of the when the posting of the job offer can commence for external candidates. How does the employer offer the job to an external candidate before the position has been posted?

Moving forward, the author may wish to continue to work with all appropriate stakeholder groups in order to provide clarity.

Arguments in support. According to the California Federation of Teachers (CFT), sponsors of this measure, “this bill would require all public local education agencies, county offices of education, community colleges, and joint powers authorities to offer any new part- or full-time classified assignments to existing classified employees who are qualified and can reasonably perform the assignment.”

CFT contends that, “AB 2088 is significantly different from AB 1699 (McCarty, 2023), similar legislation that was vetoed last year. [AB] 2088 specifies that an employee must be qualified at the time of their application, creates a new process for selecting between two or more qualified candidates that uses the selection criteria determined through collective bargaining, and clarifies that LEAs and unions can negotiate alternative agreements to the process specified in the bill, rather than superseding collective bargaining. We believe these amendments address the primary concerns raised last year and over the interim by the opposition while protecting the critically important intent of the bill.”

Lastly, CFT states that, “not only will this bill help classified employees make ends meet, but it will also ensure that more employees have access to key benefits. It will also help school districts and community colleges address the education workforce crisis, given clear new direction to fill open positions quickly and efficiently with existing staff. Fully staffed schools will also create a positive learning environment for our students and help point our education system towards stability and success.”

Arguments in opposition. According to the Association of California Community College Administrators (ACCCA), “AB 2088 would require K-14 employers to offer vacancies for part- or full-time positions to, as a right of first refusal for ten businesses days, current regular non-probationary classified employees who meet the minimum job qualifications of the position at the time of application.”

Further, ACCCA states that, “ACCCA holds steadfast to the principle that local control is fundamental in establishing and operating sound programs for students and creating an infrastructure that supports all community college employees. As currently written, AB 2088 would encroach on the local autonomy of CCDs by mandating district hiring processes and protocols, which is an issue that should be handled in conjunction with our labor partners during the collective bargaining process.”

Lastly, ACCCA contends that, “our CCDs take great pride in the diversity of the workforce at each of our colleges and work hard to hire staff that is reflective of the students that we serve. AB 2088 would inhibit our ability to tap into our local communities by mandating current employees have the first right of refusal for any new position. In order to ensure that our staff remains reflective of the students we serve, we need to have the flexibility to hire from within and outside of our districts.”

Prior legislation. AB 1699 (McCarty), of 2023, which was vetoed by the Governor, is similar to this measure. The Governor’s veto message stated the following:

“This bill provides current non-probationary classified TK-12 and community college classified staff the right of first refusal for certain new classified positions at their education employer. The bill requires an educational employer to provide its classified employees and their union at least 10 business days' notice of a job vacancy before the general public is authorized to apply for the position. This bill only authorizes the employer to offer the new position to an external applicant if no qualified, internal candidate applies for or accepts the new position within the employer notice period.

While I support the author's goal of seeking to provide opportunities for current classified staff to apply for other open positions, this bill may have unintended consequences that are not in the best interest of students. Educational employers and classified staff already have the ability to bargain this issue, and many already have agreements that meet the goals of this bill. Unfortunately, this bill also prohibits future bargaining agreements from implementing their own locally determined process.”

REGISTERED SUPPORT / OPPOSITION:

Support

California Federation of Teachers AFL-CIO (Sponsor)
California Labor Federation, AFL-CIO
California School Employees Association (Sponsor)
California Teachers Association
California Teamsters Public Affairs Council
Los Angeles County Superintendent of Schools, Dr. Debra Duardo

Opposition

Association of California Community College Administrators
California Association of School Business Officials (CASBO)
Chabot Las Positas Community College District
Citrus College
Community College League of California
Miracosta Community College District
Mt. San Antonio College
North Orange County Community College District
Palo Verde Community College District
Peralta Community College District
San José-Evergreen Community College District
Shasta College
Sierra Community College District
South Orange County Community College District
Yosemite Community College District

Analysis Prepared by: Jeanice Warden / HIGHER ED. / (916) 319-3960

Date of Hearing: April 3, 2024

ASSEMBLY COMMITTEE ON PUBLIC EMPLOYMENT AND RETIREMENT

Tina S. McKinnor, Chair

ABPCA Bill Id:AB 2088 (

Author:McCarty) – As Amended Ver:March 18, 2024

SUBJECT: K–14 classified employees: part-time or full-time vacancies: public postings

SUMMARY: Establishes a statutory right of first refusal to current regular nonprobationary classified employees (CRNCEs) of school and community districts relating to part-time and full-time vacant positions, and requires educational employers to adhere to certain prescribed requirements, among other provisions. Specifically, this bill:

1. Requires the governing boards of school and community college districts, respectively, including joint powers authorities (JPAs) formed by them, to offer with priority, vacant part- and full-time positions to CRNCEs who meet the minimum job qualifications of the position at the time of application.
2. Requires CRNCEs to apply for the position within 10 business days of a required employer notice to qualify for the right of first refusal, and the employer to not offer the position to any applicant until that 10-day period has expired, but has discretion to award the position, as provided.
3. Requires education employers to adhere to the following requirements:
4. Provide to all of its classified employees and their exclusive representatives notice of, and instructions to apply for, any new classified position at least 10 business days before the general public is authorized to apply for the position. However, if no qualified internal candidate applies for or accepts the new position after the notice and within that timeframe, the employer is authorized to offer the new position to an external applicant.
5. Grant the new position as a right of first refusal to the CRNCEs, as prescribed. However, if there is more than one applicant for the same position, the right of first refusal must be granted to a qualified internal applicant who is selected according to a collectively bargained selection method, and if no such method has been agreed to, priority among multiple applicants must be determined by a prescribed process.
6. Not select in any case, except as provided, a person for an open position who is not currently employed by the employer if there is at least one CRNCE who, at the time of application is qualified for the position, has applied for and would accept the position.
7. Authorize a CRNCE who accepts the new assignment to either add the hours of that assignment to their current assignment, if feasible, or replace the current assignment with the new assignment if the new assignment has more hours than the current assignment. If the hours of the current and new assignments overlap, the employer must reasonably modify the assignment schedules to allow the employee to work both. However, this must not be construed to require the employer to grant additional hours in a manner that would qualify as overtime pay.
8. Requires the employer to accept a current part-time employee’s years of service with that employer, regardless of the capacity the years of service were earned, when the part-time employee applies for an additional part-time assignment that requires certain years of service.
9. Requires classified employees who work part-time assignments that equal the number of full-time assignment hours for the same employer to receive the same benefits as full-time employees.
10. Prohibits retaliation against a classified employee for refusing or accepting a vacancy.
11. Expressly prohibits the offer of a vacancy to applicants if the total of the regular hours of two positions would require overtime pay or violate the federal Fair Labor Standards Act of 1938, or any other state or federal law.
12. Defines “education employer” for these purposes.
13. Establishes that the right of first refusal does not apply to a person who:
14. Is in the process of completing a written improvement plan;
15. Was previously demoted involuntarily from the same position as the vacancy;
16. Has been suspended;
17. Is the subject of a pending disciplinary action for suspension or dismissal;
18. Is a confidential or managerial employee, as defined, nor to vacancies for confidential or management positions.
19. Expressly provides that these provisions do not supersede certain rights under existing law, as provided.
20. Establishes that to the extent these provisions are in conflict with a valid collective bargaining agreement (CBA) that is in effect as of January 1, 2025, these provisions must not apply to the employer until the expiration or renewal of that agreement, and these provisions may be waived or modified by a CBA provided that the waiver or modification is explicitly stated in the CBA and directly references this statute.

EXISTING LAW:

1. Establishes the California Community Colleges (CCC) – a postsecondary education system under the administration of the Board of Governors; specifies that the CCC consists of community college districts; and, establishes the mission and function of the CCC.^[1]
2. Establishes the classified service in school and community college districts, as specified and except as otherwise provided, and requires the boards of a school district and community college district to employ persons for positions not requiring certification or that are not academic, and classify those positions as the classified service. This also applies to county offices of education.^[2]
3. Defines, among other terms, the following:
4. “Classification” to mean that each position in the classified service must have a designated title; a regular minimum number of assigned hours per days, days per week, and months per year; a specific statement of the duties required to be performed by the employees in the position, and regular monthly salary ranges for the position.^[3]
5. “Permanent” as used in the phrase “permanent employee” to include tenure in the classification in which the employee passed the required probationary period, and all of the incidents of that classification.^[4]
6. “Regular,” as used in the phrase “regular classified employee,” or any similar phrase, refers to a classified employee who has probationary or permanent status.^[5]
7. Establishes the Classified Community College Employee Summer Assistance Program effective June 30, 2022, that provides up to a dollar-for-dollar match on amounts withheld from a participating community college district’s classified employees’ monthly pay starting the 2023-2024 academic school year. The classified employees' pay withheld and the state match funds will be paid by districts to the district’s eligible classified employees in the summer recess period (June, July, and August when regular classes are not held) following the 2023-2024 academic year.  Classified employees can elect to have up to 10 percent of their monthly pay withheld during the academic year.^[6]
8. Governs collective bargaining in the private sector under the federal National Labor Relations Act (NLRA) but leaves to the states the regulation of collective bargaining in their respective public sectors.^[7]

While the NLRA and the decisions of its National Labor Relations Board (NLRB) often provide persuasive precedent in interpreting state collective bargaining law, public employees generally have no collective bargaining rights absent specific statutory authority establishing those rights.

1. Provides several statutory frameworks under California law to provide public employees collective bargaining rights, govern public employer-employee relations, and limit labor strife and economic disruption in the public sector through a reasonable method of resolving disputes regarding wages, hours and other terms and conditions of employment between public employers and recognized public employee organizations or their exclusive representatives. These include the Educational Employment Relations Act (EERA), which governs employer-employee relations for the state’s K-12 public schools and community colleges, and establishes a process for determining wages, hours, and terms and conditions of employment for represented employees.^[8]
2. Establishes the Public Employee Relations Board (PERB), a quasi-judicial administrative agency, charged with administering the several collective bargaining statutes, including the EERA, but provides the City and County of Los Angeles a local alternative to PERB oversight.^[9]
3. Establishes, under federal law, the Fair Labor Standards Act (FLSA) of 1938.^[10] Among other things, the FLSA establishes the minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private and public sectors.

FISCAL EFFECT: None. This bill is keyed nonfiscal by Legislative Counsel.

COMMENTS:

1. Dual Referral

The committee is informed that this bill also is referred to the Assembly Committee on Higher Education.

1. Information to the Committee

The committee is informed that the subject of this bill is identical to Assembly Bill 1699 (McCarty, 2023) that was vetoed by the Governor.^[11]

Although the subject of the current bill is identical to Assembly Bill 1699, its provisions attempt to address some of the concerns previously expressed by various education employers relating to the prior bill, as well as the reasons intimated in the Governor’s veto with respect to the prior bill.

In the second attempt to pursue successful effectuation of this proposed statute, the operative provisions of the current bill are not entirely identical to the bill last year; however, certain other aspects of the current bill as a matter of public policy remain the same. As such, the information in this writing is largely similar to this committee’s analysis of Assembly Bill 1699, and discusses a few key differences between the two bills.

1. Classified Service Employees: Who They Are and What They Do

Generally, classified employees in the state’s public education system are those who are not required to hold certain certification qualifications and provide custodial and maintenance, transportation, office and technical support, food service, and school safety services to students. Individuals in this classification provide basic needs, and help to maintain the social and emotional support of students in school districts. These employees help to keep students safe and schools operational.

In some instances, classified employees also may serve as paraeducators where students may require personalized educational support while the paraeducator is under the tutelage of a certificated employee (i.e., teacher).

1. Merit System and Nonmerit System Public Education Districts

In the California public education arena, a personnel commission is an independent body authorized by the state to be responsible for certain personnel matters affecting classified school employees. Personnel commissions are responsible for such matters in educational jurisdictions that have adopted the “merit system.”

Personnel commissions establish and maintain a position classification plan which includes creating job descriptions, setting minimum qualifications, and allocating classifications to salary ranges using standards that provide equal pay for equal work. Personnel commissions also adopt guidelines to analyze jobs, develop valid employment examinations, and adopt rules and procedures to be followed concerning such employments subjects as applications, examinations, employment eligibility, hiring, promotions, discipline, and other rules necessary to carry out classified personnel administration.^[12]

These systems, also commonly referred to as district “civil service systems,” are independent of the school or community college district’s governing board where the personnel commission of a merit system district is responsible for administering the hiring and retention of classified school employees through a statutory framework pursuant to the Education Code. In California, there approximately 100 of these systems that currently exist.

Merit systems derive from the late 19^th and early 20^th century civil service movement that sought to curtail the “spoils” resulting from political patronage in the system whereby elected political candidates rewarded their supporters with government positions. These systems arose out of a particularly egregious school board decision to discharge over 700 classified employees in the 1930s upon the new board’s election. This history strongly suggests that the Legislature intended the merit system framework as a means to protect classified employees from local political mistreatment at a time prior to public sector collective bargaining, and in which such systems continue to presently exist.

In addition and generally, California’s public education districts that have not formally adopted the merit system are commonly referred to as “nonmerit” districts. For these districts, employment matters are not addressed by a personnel commission.

1. Vacancies in Non-Teaching Positions

Among other vacancies in public schools, a report by the National Center for Educational Statistics (NCES), a primary statistical agency of the United States Department of Education’s Institute of Educational Sciences, identified that retirement and resignations are the leading causes for unfilled positions in the nation’s public schools and are “not just limited to teachers, as public schools are also reporting extensive non-teaching vacancies.” In addition, “[a]bout half of public schools currently report having full- or part-time non-teaching vacancies, and vacancies are particularly pronounced among custodial, transportation, and nutritional staff.” Key findings in the report note that, “[f]orty-nine percent of public schools reported having at least one non-teaching vacancy as of January 2022,” and, “[o]f schools reporting at least one vacancy, custodial staff was identified as the staff position with the most vacancies, with 28 percent of schools reporting this vacancy. Transportation staff and nutritional staff positions were each reported as vacant by 14 percent of schools.”^[13]

Among the key findings, the report noted that the COVID-19 pandemic was also cause of increased non-teaching vacancies.^[14]

1. To Address Shortages in the Classified School Employee Workforce, and Provide Upward Mobility Opportunities in a Manner that Promotes Career Longevity, Continuity in Services to Students, and Career and Economic Advancement that Further Supports Households and Communities, this Bill Proposes to Establish a Statutory Right of First Refusal for Classified Employees Regarding Employment Opportunities

The provisions of this bill would grant the right of first refusal to existing CRNCEs for vacant part- and full-time classified employee positions. While doing so, it does not prevent an education employer from attempting to fill such vacancies after meeting the proposed requirements of this bill as applied to those employees, first.

In sum, by establishing a right of first refusal in statute, as vacancies exist or are created in the classified service, existing CRNCEs would be availed an opportunity of specific work assignments, additional work assignments and hours, and naturally, additional earnings, first. However, if they do not avail themselves of the opportunity within the prescribed timeframes and requirements, and such positions remain vacant, the education employer is authorized to offer the new position to an external candidate.

1. Collective Bargaining: The Concept Proposed by This Bill is Not Entirely New

Although proposed to add this concept to statute, several memoranda of understandings (MOU) or collective bargaining agreements (CBA) contain right of first refusal provisions.

As examples, in Section 5.1.2, Article V (Hours) of an agreement between the recognized exclusive representative and the San Luis Obispo County Superintendent of Schools, similar provisions exist.^[15] In Section 7.15 of an agreement between the recognized exclusive representative and the Torrance Unified School District (TUSD), similar provisions exist.^[16]

1. Right of First Refusal: A Negotiable Item Within the Framework of Collective Bargaining?

Under the EERA collective bargaining framework, the mandatory subjects of bargaining are wages, hours, and other terms and conditions of employment, and both the employer and employee organization have an obligation to bargain on these subjects in good faith.

While there are mandatory subjects of bargaining, there exists permissive subjects in which the parties may bargain over subject matters that are of mutual interest to each. Here, the parties do not have an obligation to bargain over permissive subjects if one party declines, and such subjects cannot be insisted upon towards an impasse. Moreover, permissive subjects are not transmuted to mandatory subjects simply by their inclusion in a MOU or CBA.

As previously discussed, some education employers have negotiated provisions in a MOU or CBA that provide for a right of first refusal. As such, this bill may be viewed as inappropriate legislative intrusion into the collective bargaining domain, if the subject of this bill can be a subject of bargaining. Further, because the subject of this bill relates to “hours” (which also has some bearing on, or nexus to, “wages”), and “other terms and condition of employment,” it also could be viewed as inappropriate legislative intrusion into the EERA’s collective bargaining framework as to the scope of representation.^[17]

1. Key Differences Between Assembly Bill 1699 (the Prior Bill) and the Current Bill

As previously stated, the current bill is different in a few key areas when compared to its predecessor with respect to the subject of both bills. These are discussed below.

1. Deference to the EERA Collective Bargaining Framework and Process

Notwithstanding the discussion immediately above, unlike Assembly Bill 1699 which only included provisions relating to conflicts with a CBA (which the current bill also has similar provisions), the current bill acknowledges the EERA collective bargaining framework and process in two key respects: First, this bill provides that if it conflicts with a CBA that is in effect as of January 1, 2025, the provisions of this bill do not apply until the CBA has expired or renewed. Thus, this bill protects existing CBA provisions until such time as they expire or are renewed, which also avoids potential questions or concerns relating to a constitutional violation. Second, its provisions authorize a waiver or modification of the proposed statute via the collective bargaining process, provided that such a waiver or modification is explicitly stated in the CBA and directly references this statute by code section. Thus, while the provisions of this bill would establish a statutory requirement relating to its subject, it provides flexibility for the employer and applicable exclusive representatives to agree on, and implement, alternatives.

As such, while this bill may be viewed as inappropriate legislative intrusion into the EERA collective bargaining framework and process by statutorily establishing a matter that has been documented as capable of being collectively bargained, its provisions also defer to that framework and process for alternatives – should the parties be willing and able to agree on such alternatives.

1. Applicant Qualifications

Here, Assembly Bill 1699 proposed to require education employers grant CRNCEs the new position if they meet the minimum qualification of the job, or could meet those minimum qualifications before their start date. Because timeliness in acquiring the minimum job qualifications of the position was a matter of concern regarding that bill, the committee’s analysis offered a suggestion to the author for consideration by stating, “[t]o the extent that this bill affords existing classified employees such opportunities over qualified external prospective employment candidates, the author is encouraged to consider addressing this issue and others that may be similar with appropriate amendments that provide some flexibility or discretion to the education employer to fill vacancies in positions that require a more immediate satisfaction of certain prerequisites for purposes of employment eligibility.”

In comparison, the current bill provides that the CRNCE meet the minimum job qualifications of the position “at the time of their application for the position.” As such, the employer is no longer at the complete mercy of a CRNCE potentially occupying the vacant position, but who is not yet qualified for the job, as in the prior bill. This goes to follow that, concerns relating to, for example, a CRNCE who works in a warehouse becoming a classroom aide (i.e., paraprofessional) are more likely than not, moot – because the CRNCE must be qualified at the time of application under the current bill. (Emphasis added.)

1. Multiple Qualified Applicants for the Same Position

With respect to this subtopic, among each of the requirements of Assembly Bill 1699, that bill did not prescribe a process to hire a qualified applicant for a single position, if there were more than one qualified applicant. However, the current bill prescribes a process to select among multiple qualified applicants based on criteria determined through the collective bargaining process (again, another deferential collective bargaining process provision), and if no process has been agreed upon, the selection process is prescribed in the provisions of this bill.

1. Suggestion to the Author for Consideration

The foundation of the right of first refusal proposed by this bill requires an employer’s notice, as prescribed, of new a classified position for at least 10 business days and a qualified existing CRNCEs must apply for the position within 10 business days of that notice, among other provisions. After that single, not two consecutive 10-business day, period, the employer must award the position, also as prescribed. (Emphasis added.)

To the extent that there are no CRNCEs who are qualified, interested, or apply for the new position, however remote, the 10-day period must be exhausted prior to the remaining prescribed provisions to fill the vacancy can be effectuated, which may affect the employer’s ability to hire a qualified external applicant whom is ready, willing, and able to become employed within that timeframe. Although the occurrence of this potential issue may be remote, the author may wish to appropriately amend this bill in the future to address this matter.

1. Statement by the Author

“Classified employees are the backbone of our school districts and community colleges. They ensure that everything runs smoothly, from school buses arriving on time to students being fed. Despite their critical contributions to our students, low wages and lack of opportunity is driving qualified staff away. [This bill] keeps existing and qualified workers in our schools, guaranteeing them access to better pay and benefits.”

1. Comments by Supporters

Generally, supporters of this bill express that with the wage levels of classified employees, they have difficulty making ends meet and are not afforded the first opportunity to work additional hours when vacant positions are available. Because of this, they also have difficulty qualifying for certain benefits, such as health care or retirement (i.e., a pension). Supporters also express that that this bill will help address those issues while also efficiently facilitating filling vacant positions with existing staff to support students and the learning environment.

1. Comments by Opponents

Opponents generally express that this bill intrudes upon and negatively impacts local control and autonomy regarding employer hiring processes, protocols, and flexibility that should be collectively bargained locally. Further, as proposed, this bill will exacerbate employer budgetary challenges, and timely hiring to fill vacancies by restricting job opportunities to qualified external applicants for a period of time by establishing barriers to those applicants in favor of internal applicants when the employer must ensure that students are receiving needed services.

1. Prior or Related Legislation

Assembly Bill 1699 (McCarty, 2023) proposed to require vacancies for part-time or full-time classified service positions of an education employer to be open only to current regular and hourly employees before the vacancy may be publicly posted for the general public to apply, among other provisions. This bill was vetoed by the Governor stating that:

“While I support the author’s goal of seeking to provide opportunities for current classified staff to apply for other open positions, this bill may have unintended consequences that are not in the best interest of students. Educational employers and classified staff already have the ability to bargain this issue, and many already have agreements that meet the goals of this bill. Unfortunately, this bill also prohibits future bargaining agreements from implementing their own locally determined process.”

Assembly Bill 2971 (Maienschein, 2024) proposes changes to existing law regarding the Classified Employee Staffing Ratio Workgroup (CESRW) by adding community colleges to the definition of “voluntary local education agencies,” and clarifying that the CESRW must group assignments for both K-12 and community colleges, among other technical, clarifying, or conforming changes for these purposes. This bill is currently pending in the Assembly Committee on Public Employment and Retirement.

Chapter 364, Statutes of 2023 (Assembly Bill 1273, Bonta) requires the convening of the CESRW, as specified, to consider and make recommendations regarding certain aspects relating to this employment classification, among other provisions.

REGISTERED SUPPORT / OPPOSITION:

Support

California Federation of Teachers, AFL-CIO (Co-sponsor)

California School Employees Association, AFL-CIO (Co-sponsor)

American Federation of State, County and Municipal Employees, AFL-CIO

California Labor Federation

Opposition

Association of California Community College Administrators

Association of California School Administrators

California Association of Suburban School Districts

Central Valley Education Coalition

Cerritos College

Community College League of California

Miracosta Community College District

Orange County Department of Education

Peralta Community College District

Riverside County Office of Education

Santa Clarita Community College District, College of the Canyons

Sierra Community College District

South Orange County Community College District

Analysis Prepared by: Michael Bolden / P. E. & R. / (916) 319-3957

1. Sections 66010.4 and 70900 of the Educ. Code. ↑

2. Sections 45100 et seq. and 88000 et seq. of the Educ. Code, respectively. ↑

3. Sections 45101 (a) and 88001 (a), ibid., respectively. ↑

4. Subdivisions (b), ibid., respectively. ↑

5. Subdivisions (c), ibid., respectively. ↑

6. Section 88280 of the Educ. Code. ↑

7. Sections 151 et seq., Title 29, United States Code. ↑

8. Sections 3540 et seq. of the Government (Gov.) Code. ↑

9. Sections 3541 et seq., ibid. ↑

10. Sections 201 et seq., Title 29, United States Code. ↑

11. See “Prior or Related Legislation” further below. ↑

12. California School Personnel Commissioners Association. Visit: www.meritsystem.org/about-cspca/ ↑

13. “U.S. Schools Report Increased Teacher Vacancies Due to COVID-19 Pandemic – Resignations, retirement identified as leading causes for unfilled positions in national’s public schools.” NCES, March 3, 2022. ↑

14. Id. ↑

15. CBA between the San Luis Obispo County Superintendent of Schools and California School Employees Association (CSEA) and Its San Luis Obispo Chapter #444. (2021-24). ↑

16. CBA between the Bd. of Educ. of the TUSD and the CSEA Torrance Chapter 845 (July 1, 2021, through June 30, 2024). ↑

17. Section 3543.2 (a) (1) of the Gov. Code. ↑