September 2016 Newsletter – Community College Districts

Use of Temporary Faculty Employees

Districts are often confused about how to properly utilize temporary employees. There are two main types of temporary employees. The first is those hired on a part-time basis of 67 percent or less of a full-time workload. The second is employees hired for a limited time to meet certain specified needs of the District. Although the requirements for each are often confused, these types of temporary employees are separate and distinct from each other. Accordingly, a community college district should take care that the requirements for each specific type of temporary faculty are adhered to. It should also ensure the temporary employees are properly designated when they are hired.

1. The 67% Rule

Education Code Section 87482.5 is known as the “67% Rule.” It provides that a community college district is permitted to employ temporary teachers for “not more than 67% of the hours per week considered a full-time assignment for regular employees.” Generally, the calculation under the 67% Rule is made based upon what constitutes a full-time load for a full-time faculty member.

Service under the 67% Rule is separate and distinct from other temporary faculty service. For example, serving as an adjunct for less than 67% of a semester would not prevent a faculty from serving as a full-time temporary employee for the other semester, so long as the full-time employment falls within one of the other enumerated exceptions below.

2. Employees Hired Full-Time for a Specific Purpose

The second main type of temporary full-time employees is hired for a designated time and to meet special needs of the district.

a. Day-to-Day Substitute for Vacancies Arising After September 1

A temporary employee may be hired for services needed after September 1 of the academic year. They then fill the full-time position for the remainder of the academic year for a regular employee who is absent from service or positions. However, no regular employee may be available. (Educ. Code § 87478.) This requirement includes persons retired for service under the State Teachers’ Retirement System.

It is important to note that a temporary employee hired for one complete school year (defined as more than 75% of the academic year) under this section who then is reemployed for the following school year in a faculty position is deemed to be a contract employee. His or her previous year of service as a temporary employee is counted as a year of employment. (Educ. Code §87478).

b. Day-to-Day Substitute for Three and Four Months

The second type of full-time temporary faculty are those needed to teach temporary classes from day to day on a full-time basis during the first three school months or conduct certain classes for not more than four months in duration (Educ. Code § 87480). Specifically, the District may hire temporary full-time faculty to teach temporary classes which will no longer be offered after the first three school months. Temporary full-time faculty may also be hired to perform other duties that will not last more than three school months during an academic year. Temporary full-time faculty may also be hired for special day and evening classes for adults or migratory populations for up to four months.

It is important to note that if an employee is hired under this section and the classes or duties continue beyond three or four months, respectively, the employee will be deemed a tenure-track employee.

c. Long-Term Substitute Due to Illness or Absence

The third type of full-time temporary faculty is hired to teach full-time for a complete school year due to a full-time faculty member’s leave or long-term illness. (Educ. Code § 87481.) The temporary faculty member may teach for a complete school year, but not less than a semester or quarter.

However, if a temporary employee who is hired under this section initially and is re-employed for the following school year in a “vacant” position, the faculty member shall be classified as a contract employee. Further, his or her previous year as a temporary employee is deemed a year of employment as a contract employee. A Temporary employee may fill in for several different regular employees who are on leave without acquiring tenure-track status. The number of temporary employees hired under this section is limited to the number of full-time faculty granted leave or experiencing a long-term illness.

d. Full-Time Faculty Needed Due to Increased Enrollment

The fourth type of full-time faculty includes those hired to teach for up to a complete school year, but not less than a semester or quarter, based on need due to long term leave or higher enrollment of students. (Educ. Code § 87482.) Temporary employees hired pursuant to this section may not be employed by the District for more than two semesters, or for more than three quarters within any period of three consecutive years. The employment must be based upon the need for additional faculty during a particular semester or quarter because of the higher enrollment of students during that semester or quarter. This is judged against the other semester or quarter in the academic year. It may also be because a faculty member has been granted leave for a semester, quarter, or year, or is experiencing long-term illness.

e. Emergencies

Under Education Code section 87480, the District can hire a temporary employee for no more than a 20 working day period “to prevent the stoppage of district business when an actual emergency arises and persons are not immediately available for contract classification.” This type of temporary employee is deemed to serve from day to day, and service in this appointment is “not [to] be included in computing the service required as a prerequisite to attainment of, or eligibility to, classification as a regular employee” of the District. (Education Code § 87480.) If hired for an emergency, this employee’s contract and/or notice of assignment should expressly classify the employee as temporary and state the nature of the emergency.

f. Categorically Funded Employees

Education Code Section 87470 provides that employees may be hired to perform services on a temporary basis for categorically funded projects “under terms and conditions mutually agreed upon by the employee and the governing board” that are “reduced to a writing.” (Educ. Code § 87470.)

Under the Education Code, categorically funded employees may be summarily terminated at the end of the funding or the term of the project for which they were hired. There are no specific advance notice or termination procedures which must be followed. (Educ. Code § 87470.) As a result, the District may release a temporary categorically funded employee at the end of the project or funding with a simple notice specifying that the employee is being terminated due to the end of the project or funding and indicating a termination date which coincides with the ending of the project or funding.

There are specific requirements if the District wishes to terminate the contract early or extend time of the contract.

The above is a summary designed to provide a basic knowledge of the use of temporary employees. It is not intended to constitute a full legal opinion. If you have any questions, need more details, or need assistance with the proper use of temporary employees, please contact our office.

For more information regarding this article, please contact Brittany Murphy at bmurphy@ericksonlaw.com. For questions in general regarding this newsletter, please contact Kristina Limon at klimon@ericksonlaw.com.

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This publication was prepared solely for information purposes and should not be construed to be legal advice.  If you would like further information on this matter, please contact our office.

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