• A School District Employee's "Hours" Worked During a Leave May Not Be Converted to "Days" Worked for the Purpose of Earning Permanent Employee Status
  • September 6, 2013
  • Law Firm: Kronick Moskovitz Tiedemann Girard A Law Corporation - Sacramento Office
  • In Cox v. Los Angeles Unified School District (--- Cal.Rptr.3d ----, Cal.App. 2 Dist., July 23, 2013), a California court of appeal considered whether a school district employee could apply hours of credit she claimed to have worked during a maternity leave as "days" for the purpose of satisfying the number of days needed to satisfy the Education Code 44908 “complete school year” threshold requirement for earning permanent employee status.  The appellate court held that the Code's specific reference to "number of days worked" plainly required probationary certificated employees to work the number of actual days, and that extra hours an employee may have worked while on leave of absence or partial days worked cannot be considered the equivalent to days for that purpose.


    Erica Cox (“Cox”) began working for the Los Angeles Unified School District ("District") as a probationary counselor at the beginning of the 2007-08 school year.  She successfully completed that year and continued her probationary status the following year.  Cox took paid maternity leave from September 2 through October 31, 2008, and then returned to work for the remainder of the 2008-09 school year.  For the school year of 2009-10 (her third year working at the District), she was classified as a second-year probationary employee on the grounds that in the prior year she failed to work the requisite number of days required by the Education Code to constitute a "complete school year."  On March 8, 2010, the District notified Cox that she was not selected for a certificated position for the following school year and issued notice on March 8, 2010, that she was non-reelected effective at the end of that year.

    Cox sued alleging that hours she worked during her maternity leave preparing a grant application for the District should have been added to her work record to satisfy the Education Code's "complete school year" requirement.  She also alternatively asserted that a “partial day” of 3 ½ hours she worked should be rounded up and counted toward the number of days needed to satisfy the “complete school year” requirement.  The superior court rejected both of her claims and upheld the District's determination.  Cox appealed.


    Education Code Section 44908 defines a "complete school year" as having worked "at least 75 percent of the number of days the regular schools of the district in which he is employed are maintained."  It further states that a probationary teacher, such as Cox, must serve "two complete consecutive school years in a position or positions requiring certification qualifications" prior to becoming classified as a permanent employee.

    There was no question that Cox satisfied that requirement in her first year.  However, in her second year, consisting of 182 days, she needed to work 136.5 days (75% of 182), to meet the requirement.  The District determined that Cox only worked 135 days, making her 1.5 days short of the “complete school year” requirement.

    Cox asserted that the 30 hours she spent preparing a grant application during maternity leave was the equivalent of five additional six-hour days.  The appellate court noted that Section 44908 specifically refers to the "number of days" of a school year worked by an employee, and further defined those "days" as days the schools are “maintained” or “open.”  That language plainly means that Cox needed to work 75 percent of those "days," regardless of additional hours she may have worked.  Furthermore, the appellate court recognized the plain language of Education Code section 44975 providing that the time period a probationary teacher is on leave of absence does not count toward the Section 44908 “complete school year” requirement.

    The appellate court also rejected Cox's contention that an additional 3 1/2 hours she worked during a partial day should be rounded up to a day and count toward the 75 percent threshold needed to satisfy the “complete school year” requirement.  The appellate court noted the Section 44908 "at least 75 percent of the number of days..." requirement and found that there is no reference to "hours," or to "rounding up" in Section 44908 to reach the conclusion that "hours" are not "days."  So, the partial day Cox worked did not count as a “day” toward the 75 percent requirement, and the District properly concluded that Cox’s service did not constitute a complete year needed to satisfy Section 44908.

    What This Means To You

    This decision holds any work performed by a probationary certificated employee while on leave does not count toward the 75 percent of the number of days threshold needed to satisfy the complete school year requirement of Education Code section 44908.  The decision also makes clear that school districts are not required to count any partial day worked as a “day” for purposes of meeting the 44908 “complete school year” requirement, nor must any partial day be rounded up to equal a “day.”