March 15, 2007

Delores Ranson
Assistant Superintendent
Jackson County Board of Education
Post Office Box 770
Ripley, West Virginia 25271-0770

Dear Ms. Ranson:

I am in receipt of your request for an interpretation regarding matters of compensation when one regular employee is permitted to step up into the position of another regular employee who is absent. For purposes of this discussion, the absence is not as a result of an approved leave of absence, worker's compensation, or suspension.

Specifically, you ask:

If the position results in an increase in pay, is the regular employee who fills the position of the absent employee compensated for only the days she/he actually works in that position or is the employee compensated for the position he/she is filling for each day she/he fills the position (until the regular employee returns)?

Example: A full-day cook is absent and a half-day cook fills the position. During the time that the half-day cook is in the position of the full-day cook, is she compensated for a full-day in the event of a holiday or OS day? Does the cook filling the position work a full-day during a non-instructional day, such as an ISE Day? What if the cook who is filling the full-day position is absent? Does she get paid (from her personal leave) for a full day? ....or does she go back to her half-day position on holidays, OS days, ISE days, days she's absent from work, etc., and is only compensated for one-half day (her contracted position)?

Further, if the employee fills the position for a month or major faction thereof, does the half-day employee who is now in the full-day position earn and get compensated for 1 ½ days of personal leave vs .75 of a day? West Virginia Code 18A-4-15(b) states, in pertinent part:

Substitutes shall be assigned in the following manner: A substitute with the greatest length of service time, that is, from the date he or she began his or her assigned duties as a substitute in that particular category of employment, shall be given priority in accepting the assignment throughout the period of the regular employee's absence or until the vacancy is filled on a regular basis under the procedures set out in section eight-b [18A-4-8b] of this article. All substitutes shall be employed on a rotating basis according to the length of their service time until each substitute has had an opportunity to perform similar assignments: Provided,

That if there are regular service employees employed in the same building or working station as the absent employee and who are employed in the same classification category of employment, the regular employee shall be first offered the opportunity to fill the position of the absent employee on a rotating and seniority basis with the substitute then filling the regular employee's position. A regular employee assigned to fill the position of an absent employee shall be given the opportunity to hold that position throughout the absence. In interpreting this portion of state code, the Grievance Board, in Terek v. Ohio County Board of Education, Docket No. 91-35-160 (Aug. 30, 1991), stated:

[T]he proviso gives regular employees an opportunity to fill an absent employee's job and allows for assigning the substitute employee the position of the regular employee who remains on the job. The proviso is applied when these three events occur: One, a regular employee is absent, two, a substitute is necessary for temporary employment, and, three, an existing regular employee moves temporarily to the absent employee's position instead of having the substitute fill it. The end result of applying the proviso is to place the substitute in the position of the regular employee who is filling the absent employee's job.

However, there is no decisive provision in state code and no guiding court or grievance decisions regarding the particular step-up questions you have raised.

In the absence of these guiding documents, I interpret W. Va. Code 18A-4-15(b) to mean that the regular employee who is stepping-up is entitled to compensation as a full-time employee, including holiday pay, OSE-day pay, and pay for any other days that are part of the absent cook's contract term - all on a full-time basis rather than a part-time basis. Similarly, the employee who is stepping up into a full-time position should be required to work a full-day during a non-instructional day, such as an ISE Day.

This would also mean that while she is in the assignment, the step-up cook in your example should earn personal leave at the same rate as a full-time employee, i.e., 1.5 days personal leave for every 20 employment days (or major fraction thereof) and should be required to utilize a full day of leave for each day she is absent from the position into which she has temporarily moved.

Hoping that I have been of service, I am

Sincerely,

/s/

Steven L. Paine
State Superintendent of Schools