On May 9, 2017, the Third District Appellate Court of Illinois rejected a claim brought against Streator Elementary School District 44 by a group of educational support personnel employees (“ESPs”) who claimed that their honorable dismissals from full-time positions and recall to part-time positions violated Section 10-23.5 of the School Code (105 ILCS 5/10-23.5).
Specifically, the Plaintiffs contended that the school board did not have a valid reason under Section 10-23.5 for honorably dismissing them. The Plaintiffs argued that, under Section 10-23.5, an ESP may be dismissed or their hours reduced only (1) to decrease the number of educational support personnel employees employed by the board or (2) to discontinue some particular type of educational support service. The Plaintiffs contended the school board did not decrease the number of ESPs employed because it actually employed a greater number of ESPs for the ensuing school year, albeit on a part-time basis. The Plaintiffs also contended that the school district did not discontinue any particular type of educational support service because all of the services performed by the Plaintiffs were still offered by the district.
On the other hand, the school district argued that Section 10-23.5 does not limit the circumstances under which a school district may honorably dismiss ESPs. Rather, Section 10-23.5 merely requires that the school district give proper notice and offer recall rights to those employees who are honorably dismissed as a result of the school board’s decision to decrease the number of ESPs employed or discontinue some particular type of educational support service.
The court rejected the Plaintiffs’ argument, finding that the Plaintiffs’ reading of section 10-23.5 would “put ESPs on an equal footing with teachers when it comes to expectations of continued employment and protections from employment termination or reduction of hours.” The court held that ESPs are typically considered to be employed “at will” and refused to extend them any greater protections from layoff that were not unambiguously included in Section 10-23.5.
The Plaintiffs also argued that the school district violated Section 10-23.5 by not recalling them to full-time positions, and instead hiring additional part-time employees so that it did not need to recall the plaintiffs as full-time employees. The court also rejected this argument, finding that ESPs whose hours are reduced do not necessarily have a recall right to a full-time position. The court held that the ESPs had a right to be recalled to “any category of positions for which they are qualified” but that the school district had the right to set the hours for the position.
HLERK’s “RIF Team,” led by Ellen Rothenberg, stands ready to assist school districts in managing their reduction in force issues.