Member Article

A common question we receive from school systems relates to whether certain employees (both service personnel and professional personnel) recapture their seniority if there has been a break in their employment with the school system but they later return to employment.  Often a break in employment is the result of a voluntary break or unfortunately a reduction in force.

Service Personnel: Generally a service personnel employee cannot recapture seniority earned prior to the employee’s voluntary break in service.  For example, suppose employee A was hired as a regular bus operator at the beginning of the 2015-16 school year, but resigned effective at the end of that school year in order to work for his family’s private business during the 2016-17 school year.  When the school system posts a vacant bus operator position beginning with the 2017-18 school year A is the successful applicant (the only applicant) for the position.  Because A’s employment ended as a result of a voluntary break at the end of the 2015-16 school year, when he is re-employed at the beginning of the 2017-18 school year,  his seniority starts over and the one year of seniority from 2015-16 is not recaptured.  A’s seniority date will be the first day he works under the contract for the 2017-18 school year.

If however  A’s employment at the end of the 2015-16 school year ended as a result of a reduction in force and he was placed on preferred recall, a reduction in force is not considered a voluntary break.  Suppose A remained on preferred recall (did not work the 2016-17 school year) and obtained a regular bus operator position for the 2017-18 school year.  Because A’s employment ended as a result of an involuntary break (reduction in force) at the end of the 2015-16 school year, when he is reemployed at the beginning of the 2017-18 school year his seniority from 2015-16 will be recaptured with a new calculated seniority date taking into consideration the prior earned seniority. 

Please note that in both examples employee A will be credited with “years of employment” as defined in W. Va. Code 18A-4-8 for pay purposes regardless of the reason for the separation of employment.  Years of employment is different than seniority.  In the first scenario, although A did not recapture his seniority, he will still gets credit for the 2015-16 school year when it comes to years of employment for pay purposes.

Professional Personnel: Unlike service personnel, classroom teachers, regardless of the reason for their separation of employment (even if voluntary), recapture their seniority with the school system and the prior seniority earned will be considered when calculating a new seniority date.  Also, the classroom teacher will receive years of employment for pay purposes for prior years in which the employee worked at least 133 days.

Should you have any questions on this issue or any issues please feel free to contact a member of Dinsmore & Shohl's Education Law Practice Group.