A common question our Education Law Practice Group deals with relates to how the “step-up” process works for service personnel.
The “step-up” process is found in W. Va. Code 18A-4-15, which in relevant part, states:
Any regular service person employed in the same building or working station and the same classification category of employment as the absent employee shall be given the first opportunity to fill the position of the absent employee on a rotating and seniority basis. In such case the regular service person's position is filled by a substitute service person. A regular service person assigned to fill the position of an absent employee has the opportunity to hold that position throughout the absence. For the purpose of this section only, all regularly employed school bus operators are considered to be employed within the same building or working station.
Let’s discuss some common scenarios we often see.
Scenario 1: Employee "A" is regular bus operator that is on an approved leave of absence ("LOA") that was requested in writing and approved by the board of education. The LOA is expected to extend beyond thirty days. When an employee receives a LOA from the board, and the leave will extend for more than thirty days, W. Va. Code 18A-4-15 requires the board to post the assignment and fill it per W. Va. Code 18A-4-8b. The assignment is awarded to the most senior regular employee in the classification that applies, and if no regular employee is interested, bus operators on preferred recall, and if none, substitutes bus operators that might apply. Suppose that in the instant, Employee "B", the most senior regular bus operator bids and receives the assignment. “B” finds the route more attractive than his or her route because it is closer to home, or is short (or some other reason). Keep in mind this is not a "step-up" for "B". As for "B's" regular assignment though, you have to permit "step-up" (not posting it), which is offering “B’s” assignment to the regular bus drivers via seniority based rotation. Let's say regular Employee "C" wants “B’s” assignment via the “step-up” up process. If "C" “steps-up”, "C" will remain in that assignment until "B" returns. A substitute bus driver via rotation (whoever is next on the list) will substitute for "C". You do not allow “step-up” to "C's" regular assignment. “Step-up” happens once.
Scenario 2: Employee “A” is a regular bus operator out from work using sick leave. “A” has not requested in writing an approved LOA from the board. It appears that “A” is going to be absent for an extended period of time (lets’ say five to sixty days). The board does not post it after the twentieth day (that is a common myth). Instead, the board utilizes the "step-up" process of W. Va. Code 18A-4-15 and offer “A’s” assignment to the most senior bus operators via seniority based rotation. If a regular bus operator “steps-up” (let's say "B"), a substitute next on the bus operator list is called for "B". “Step-up” does not continue on-and-on-and-on. A substitute is called for "B". Yes a substitute with little seniority might get lucky if s/he is next in line on the substitute list.
Always keep in mind that if a substitute is initially called for “A’s” assignment (which is often the case because the board might not know the absence could extend for a few days), but after that initial day it appears the regular employee will continue to be absent, the board should offer "step-up" per W. Va. Code 18A-4-15 to regular employees, who then bump the substitute out. The Grievance Board encourages this process (see Decision). And again, if a regular employee “steps-up”, a substitute is then called for the regular employee who took the opportunity to “step-up”.
The “step-up” process is not fun from a personnel standpoint, especially when there is not sufficient time to contact regular employees, in emergency situations, or in situations when it is not known that the regular employee’s absence will be beyond a day or so, etc. But we hope the above sheds some light on the proper use of the “step-up” process compared to the posting process. For additional grievances decision on the “step-up” process, see Garner, Mullins, McMillen, and Prickett.© 2013 Dinsmore & Shohl LLP. All rights reserved.