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Suspension (Furlough) of Professional Employees - Frequently Asked Questions

24 P.S. § 11-1124 and 11-1125.1, as amended by Act 55 of 2017

Through Act 55 of 2017, the General Assembly amended sections 1124 and 1125.1 of the Public School Code, 24 P.S. §§ 11-1124 and 11-1125.1, to: (1) add “economic reasons” to the list of possible grounds for suspension (furlough) of professional employees; and, (2) revise the procedures applicable to the order of furloughs of professional employees for any of the reasons enumerated in section 1124(a). Act 39 of 2018 amends section 1125.1 of the School Code to add a provision requiring realignment of staff (“bumping”) based on employee evaluations and seniority. The Department of Education is providing the guidance below to address the most frequently asked questions regarding the amended sections. 

Do the provisions of sections 1124 and 1125.1 apply to intermediate units and vocational-technical institutions? 

Yes. The School Code grants professional employees in intermediate units, 24 P.S. § 9-913-A(e), and vocational-technical institutions, 24 P.S. § 18-1850.1(b)(9), the same tenure rights as temporary professional and professional employees of school districts. 

Section 1124(a.1) establishes a prohibition on the consideration of an employee’s compensation in making determinations about which employees to furlough; does this prohibition and the penalties for violation apply to furloughing professional employees for only "economic reasons?" 

No. Subsection (a.1) is applicable to all causes for furloughs in section 1124(a). Additionally, the procedures in section 1125.1, providing the order for furloughs, are also applicable to all causes for furloughs under section 1124(a). 

Do the requirements of section 1124(c) (providing requirements for proportional furlough of certain professional employees and administrative staff) apply in all cases where furloughs of professional employees are being considered?

No. Subsection (c) applies only if furloughs are being considered for economic reasons and only when any of the professional employees to be furloughed are assigned to provide instruction directly to students. 

Do the requirements of section 1124(d) (providing requirements for notice of furloughs) apply in all cases where furloughs of professional employees are being considered?

No. Subsection (d) applies only if furloughs are being considered for economic reasons; however, unlike subsection (c), these procedures apply irrespective of whether any of the professional employees to be furloughed are assigned to provide instruction directly to students. 

Which school employees are considered “administrative staff” for purposes of subsections 1124(c) and (d)?

The term “administrative staff” is not defined in section 1124 or any other provision of the School Code. Although the term “school administrator” is defined, e.g., 24 P.S. § 11-1164(a), there are sufficient indications in section 1124 upon which to conclude that the General Assembly intended that the term “administrative staff” have a meaning different than that for “school administrator.” Accordingly, when identifying those job positions to categorize as “administrative staff,” a school entity should consider all employees who are not assigned to provide instruction directly to students, including those categorized as school administrators and those providing services in a district’s or other school’s administration or business* offices, for designation as “administrative staff.” 

*The board of school directors should also consider that it shall select five administrative staff positions, one of which shall be the business manager or other staff member with the primary responsibility of managing the business operations of the school entity, to exempt from the proportional furlough requirements of section 1124(c)(1). 

Can a school entity still use the causes for furloughs that existed prior to the amendment to section 1124 made through Act 55?

Yes. Amendments made by Act 55 added an additional reason for furloughs (for economic reasons) in section 1124(a)(5); the reasons for furloughs previously embodied in section 1124(a)(1) – (4) continue to be available for consideration. A school entity is not required to first consider economic reasons – section 1124(a)(5) – before considering one or more of the other possible reasons for furloughs in section 1124(a)(1) – (4). 

Does the order of furloughs of professional employees set forth in section 1125.1 apply to furloughs only for economic reasons?

No. The order of furloughs of professional employees described in section 1125.1 applies to furloughs for any of the causes enumerated in section 1124(a). 

Does the order of furloughs set forth in section 1125.1 also apply to administrative staff?

The order of furloughs set forth in section 1125.1 will apply to any administrative staff person who, by job function, is also considered a “professional employee,” such as a school principal. However, administrative staff who are not also considered professional employees are not subject to the order of furloughs under section 1125.1, and the school entity should review other laws or agreements or contracts that could impact upon the furlough of these employees. 

Pursuant to section 1124(c)(1), a board of school directors may only suspend professional employees assigned to provide instruction directly to students for economic reasons if it also furloughs at least an equal percentage proportion of administrative staff. What number of administrative staff must be furloughed if the percentage proportion of administrative staff to furloughed direct instruction professional staff does not result in a whole number? 

The number of administrative staff furloughed should represent only the whole number identified in any percentage calculation. For example, if the percentage proportion of administrative staff resulted in a non-whole number like 2.3 or 2.8, a minimum of two administrative staff members must also be furloughed. Ultimately, these decisions should be guided by the economic circumstances the school entity seeks to address. 

How does seniority apply to the order of furloughs of professional employees set forth in section 1125.1?

The amendments to section 1125.1 require that the board of school directors first consider the two most recent annual performance evaluations completed pursuant to section 1123 of the School Code, 24 P.S. § 11-1123, and 22 Pa. Code Chap. 19, in determining the order of furloughs. The order is set forth in 1125(a) – those employees whose evaluations meet the description in (a)(1) being subject to furlough first, followed by those employees whose evaluations meet the description in (a)(2), followed next by employees whose evaluations meet the description in (a)(3), and finally those employees whose evaluations meet the description in (a)(4). Seniority will still be the deciding factor when there are more professional employees within an overall performance rating description – e.g., (a)(1), (a)(2), (a)(3), or (a)(4) – than the suspensions required. See 24 P.S. § 11-1125.1(a), (a.1). For example, if the school entity’s action resulted in the furlough of all employees whose evaluations meet the description in (a)(1) and (a)(2) and there are 10 employees whose evaluations meet the description in (a)(3), but only 3 furloughs must be made, then the three least senior employees would be furloughed. 

Can a professional employee “bump” or move to a currently-filled position for which the employee maintains an additional certification even if it is not the certification required for the position in which the individual was employed at the time of the individual’s furlough?

Yes. Act 39 of 2018 added 1125.1(c.1) to require a school entity to “realign its professional staff to ensure that more senior employes are provided with the opportunity to fill any positions within the school entity for which they are certificated and which are being filled by less senior employes, subject to the order specified in [section 1125.1(a) of the School Code].” 24 P.S. § 11-1125.1(c.1). This language reinstituted realignment provisions which had previously been eliminated under Act 55 of 2017. Realignment is subject to the order prescribed in 1125.1(a), which first requires consideration of the educators’ two most recent evaluations and secondarily requires that when two or more educators are in the same evaluation category, the least senior employee(s) will be “bumped” for more senior employee(s) to be retained. Realignment may also continue under any agreement or contract existing as of November 6, 2017, for the term of such agreement. See 24 P.S. §§ 11-1124(f) and 11-1125.1(g). (Note: Subsection (c.1) did not apply during the 2017-2018 school year. Therefore, realignment of professional staff during that school year could occur only pursuant to the provisions of any agreement or contract existing as of November 6, 2017. See 24 P.S. §§ 11-1124(f) and 11-1125.1(g)). 

Can a professional employee move or be hired into a vacant position in which the employee maintains an additional certification, even if it is not the certification required for the position in which the individual was employed at the time of the individual’s furlough?

Yes, subject to the order of reinstatement set forth in section 1125.1(d)(2). The school entity should also consult with its solicitor to determine how the terms of any agreement or contract applying to the employee, the school entity’s hiring policies, and any other state and federal laws or requirements apply to hiring the furloughed employee in the vacant position.