Suspension (Furlough) of Professional Employees; Alteration and/or Curtailment of Programs
24 P.S. §11-1124
Date of Issue: June 1, 2023 (Issued July 1, 2002, revised – July 1, 2009)
Purpose
The purpose of this Basic Education Circular (BEC) is to outline the legal conditions under which a school entity may suspend (furlough) professional employees (24 P.S. § 11-1124) and to provide answers to frequently asked questions (FAQs) on this issue. FAQs are found at the end of the document.
Additionally, this BEC has been revised to comply with Act 82 of 2012 which amended the Pennsylvania Public School Code Section 24 P.S. § 11-1124 such that alterations or curtailments of programs under Section 1124(2) no longer require approval by the Department of Education (Department). However, the Department must be notified of any alterations or curtailments that are being made under Section 1124(2) that may result in the suspension/furlough of professional staff.
Procedures
Section 1124(a)(2) permits any board of school directors to suspend the necessary number of professional employees when the superintendent recommends curtailment or alteration of the educational program because of a substantial decline in class or course enrollments or to conform with standards of organization or educational activities required by law or recommended by PDE, and the board of school directors concurs.
Notwithstanding an existing or future provision in a collective bargaining agreement or other similar employment contract to the contrary, suspension of a professional employee due to the curtailment or alteration of the educational program may be effectuated without the approval of the curtailment or alteration of the educational program by the Department, provided that the school district notifies the Department. The Department will post all notifications received from a school district on the Department’s public website.
Notification
The Alteration and Curtailment process is where Educational Entities notify the Department of any changes to their local programming which has resulted in the suspension or furlough of professional staff.
NOTE: Area career and technical schools have a slightly different process from school districts and other educational entities. See specific instructions below.
- School Districts and Intermediate Units
The Department will acknowledge a school district's or intermediate unit’s notice to curtail or alter an educational program if the educational entity establishes that the curtailment or alteration is necessary to conform with educational activities required by law. To establish that a curtailment or alteration is necessary to conform with educational activities required by law, the school district or intermediate unit, through information certified by the chief school administrator, must identify the specific law that serves as the basis for the curtailment or alteration.
All notifications must include:
- A copy of the Board Action as recorded in the Board minutes as evidence of approval by the school district's board of school directors and
- The signed letter (saved as PDF) from the superintendent or IU executive director that explains the planned changes:
- Details of the Request of Intent to alter and/or curtail of existing educational program(s);
- Reason submitted for alteration or curtailment;
- Number (#) of position(s) eliminated;
- Status of alteration or curtailment within your organizational structure (timeline)
The notification with the two attachments must be submitted electronically to
RA-PDE-SchoolService@pa.gov. Questions may also be directed to this email.
- Area Career and Technical Schools
In addition to 24 P.S. § 11-1124, state regulation requires the local administrator to secure board approval and forward a copy of the board's minutes with a letter of explanation to the Department prior to terminating a career and technical education program. (Pa Code 22 § 339.4(e)(1)(ii)).
Therefore, the Department will acknowledge an area career and technical school’s notice to curtail or alter an educational program if the educational entity establishes that the curtailment or alteration is necessary to conform with educational activities required by law; the area career and technical school, through information certified by the chief school administrator, identifies the specific law that serves as the basis for the curtailment or alteration; and has approval from the Department’s Bureau of Career and Technical Education.
All notifications must include:
- A copy of the Board Action as recorded in the Board minutes as evidence of approval by the school’s board of directors;
- The signed letter (saved as a PDF) from the director of the area career and technical school that explains the planned changes:
- Details of the Request of Intent to alter and/or curtail existing educational program(s);
- Reason submitted for alteration or curtailment;
- Number of position(s) eliminated; and
- Status of alteration or curtailment within the area career and technical school’s organizational structure (timeline).
Submit the written notification, Board minutes and signed letter to Tammy Keisling in the Bureau of Career and Technical Education at ra-vocteched@pa.gov.
If the Department does not respond to the school entity's submission within 60 days, the termination shall be considered approved.
Section 1124. Causes for Suspension
Section 1124 "Causes for Suspension" of the School Code states that:
(a) Any board of school directors may suspend the necessary number of professional employees, for any of the causes hereinafter enumerated:
(1) substantial decrease in pupil enrollment in the school district;
(2) curtailment or alteration of the educational program on recommendation of the superintendent and on concurrence by the board of school directors, as a result of substantial decline in class or course enrollments or to conform with standards of organization or educational activities required by law or recommended by the Department of Education;
(3) consolidation of schools, whether within a single district, through a merger of districts, or as a result of joint board agreements, when such consolidation makes it unnecessary to retain the full staff of professional employees;
(4) when new school districts are established as the result of reorganization of school districts pursuant to Article II., subdivision (i) of this act, and when such reorganization makes it unnecessary to retain the full staff of professional employees; or
(5) economic reasons that require a reduction in professional employees.
(a.1) The following apply:
(1) A school district may not use an employee's compensation in determining which professional employees to suspend but shall use the procedures in section 1125.1 1 to determine the order in which professional employees are suspended.
(2) A chief school administrator or other administrator who knowingly approves a suspension that violates paragraph (1) shall have a letter from the Secretary of Education indicating the violation included as part of the individual's permanent employment record.
(b) Notwithstanding an existing or future provision in a collective bargaining agreement or other similar employment contract to the contrary, suspension of a professional employee due to the curtailment or alteration of the educational program as set forth in subsection (a)(2) may be effectuated without the approval of the curtailment or alteration of the educational program by the Department of Education, provided that, where an educational program is altered or curtailed as set forth in subsection (a)(2), the school district shall notify the Department of Education of the actions taken pursuant to subsection (a)(2). The Department of Education shall post all notifications received from a school district pursuant to this subsection on the Department of Education's publicly accessible Internet website.
(c) The following shall apply in the case of a suspension pursuant to subsection (a)(5) in which a board of school directors suspends professional employees who are assigned to provide instruction directly to students:
(1) A board of school directors may suspend the necessary number of professional employees assigned to provide instruction directly to students only if the board of school directors also suspends at least an equal percentage proportion of administrative staff.
(2) The Secretary of Education may grant a board of school directors a waiver of paragraph (1) if all of the following apply:
(i) The Secretary of Education determines that the school district's operations are already sufficiently streamlined or the suspension of administrative staff pursuant to paragraph (1) would cause harm to school stability and student programs.
(ii) The Secretary of Education submits the determination to the State Board of Education.
(iii) The State Board of Education approves the determination by a majority of its members.
(3) Any five administrative staff positions selected by the board of school directors, one of whom shall be the business manager of the school district or another staff member with the primary responsibility of managing the business operations of the school district, shall be exempt from the requirements of paragraph (1).
(d) A board of school directors may suspend professional employees pursuant to subsection (a)(5) only if all of the following apply:
(1) The board of school directors approves the proposed suspensions by a majority vote of all school directors at a public meeting of the board of school directors.
(2) No later than sixty (60) days prior to the date of adoption of a final budget, the board of school directors has adopted a resolution of intent to suspend professional employees in the following fiscal year, which shall set forth the following:
(i) The economic conditions of the school district making the proposed suspensions necessary and how those economic conditions will be alleviated by the proposed suspensions, including:
(A) The total cost savings expected to result from the proposed suspensions.
(B) A description of other cost-saving actions taken by the board of school directors, if any.
(C) The projected expenditures of the school district for the following fiscal year with and without the proposed suspensions.
(D) The projected total revenues of the school district for the following fiscal year.
(ii) The number and percentage of employees to be suspended who are professional employees assigned to provide instruction directly to students.
(iii) The number and percentage of employees to be suspended who are administrative staff.
(iv) The number and percentage of employees to be suspended who are professional employees who are not assigned to provide instruction directly to students and who are not administrative staff.
(v) The impact of the proposed suspensions on academic programs to be offered to students following the proposed suspensions, as well as the impact on academic programs to be offered to students if the proposed suspensions are not undertaken, compared to the current school year, and the actions, if any, that will be taken to minimize the impact on student achievement.
(e) Following the 2021-2022 school year, the Legislative Budget and Finance Committee shall conduct a study of the effectiveness of the provisions of subsections (a)(5), (c) and (d) and section 1125.1, including whether these provisions of law are being used effectively by school districts to improve school district efficiency and the impact of these provisions on programs offered to students, as well as the impact on programs that would have been offered to students if these provisions had not been enacted, if such information is available, and shall deliver a written report of its findings to the Governor, the chairperson and minority chairperson of the Education Committee of the Senate and the chairperson and minority chairperson of the Education Committee of the House of Representatives by December 31, 2022.
(f) The following apply:
(1) A collective bargaining agreement negotiated by a school district and an exclusive representative of professional employees in accordance with the act of July 23, 1970 (P.L. 563, No. 195), 2 known as the "Public Employee Relations Act," after the effective date of this subsection may not prohibit the suspension of professional employees for economic reasons other than as provided for in this section.
(2) A provision in any agreement or contract in effect on the effective date of this subsection that prohibits the suspension of professional employees for economic reasons in conflict with this section shall be discontinued in any new or renewed agreement or contract or during the period of status quo following an expired contract.
Yes. The School Code grants professional employees in intermediate units, 24 P.S. § 9-913-A(e), and career-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).
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.
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.
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).
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).
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).
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.
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 employees 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 employees, 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.
References
Purdon's Statutes
24 P.S. §9-963(e)
24 P.S. §11-1124
24 P.S. §18-1850.1(b)(9)
Bureau/Office Contact
School Services Office
Office of Elementary and Secondary Education
Pennsylvania Department of Education
Forum Building
607 South Drive
Harrisburg, PA 17120
Phone: 717-787-4860 Fax: 717-214-4389
Email: RA-PDE-SchoolService@pa.gov