Legal Update Memo No. 07-2021(CC) – Classified Employees – Notification of Reasonable Assurance of Employment for 2021-2022 (CCD)

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Classified Employees

In order for classified employees who do not work during the summer to be held ineligible for unemployment benefits, Unemployment Insurance Code (“Code”) section 1253.3 requires that districts send these employees a “letter of reasonable assurance” no later than 30 days prior to the last day of the academic year or term.[1]  The Code requires very specific language.  The attached sample letters comply with Code requirements.

            Letter No. 1 is a sample letter for classified employees who work less than 12 months.

            Letter No. 2 is a sample letter for categorical, special, or federally-funded classified employees who work less than 12 months.

            Letter No. 3 is a sample letter for classified substitutes to be used if the college district has a classified substitute list.

General

If an employee receives a letter of reasonable assurance and later files a claim for unemployment insurance with the Employment Development Department (“EDD”), the district should produce a copy of the letter of reasonable

assurance that was given to that employee.  For this reason we recommend scanning or saving a copy of every letter of reasonable assurance given to each employee so it can later be produced to EDD if necessary.

Community College Districts should also be aware that if the economic terms and conditions of an employee’s work change significantly (more than 20% reduction in income) after the recess between academic terms, the notice of reasonable assurance does not bar the employee from collecting unemployment insurance. For instance, if the likely number of days a regular substitute is likely to work decreases by more than 20%, that substitute may be eligible for unemployment benefits for the summer.

Schools Operating “Year-Round”

The California Supreme Court held that under Unemployment Insurance Code Section 1253.3, K-12 substitute teachers and other qualifying school employees may be eligible for unemployment benefits if they do not work during a district’s summer session, and, the summer session constitutes a “regular term.” As defined by the Court, a regular term occurs “if the summer session, as a whole, resembles the other academic terms of the school year in terms of enrollment, staffing, budget, instructional program, or other objective characteristics.”[2]

The Court clarified that “if a school district with conventional fall and spring semesters also offers a two-week summer session with limited offerings and limited enrollment, the summer session would not be a ‘regular’ term. By contrast, if a district offers a summer session that resembles the fall and spring semesters in terms of enrollment, staffing, budget, and the instructional program offered, then the summer session would qualify as a ‘regular’ term.” Id.  While this ruling was directed at K-12 school districts, if a classified community college employee is not employed during the summer and files a claim for unemployment benefits with EDD, the district should be prepared to provide EDD with data related to the difference in enrollment, staffing, budget, and instructional programs offered between spring and summer sessions to demonstrate that the summer session is not a “regular term” as outlined by the Court.

If you question whether your district’s summer session meets the Court’s description of a “regular term,” it is recommended that you issue the letter of reasonable assurance as a precaution.

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

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[1] Unemployment Insurance Code Sec. 1253.3, subd. (h) refers to the “end of the academic year or term” not the last day of service for the employee.

[2] United Educators of San Francisco etc. v. California Unemployment Ins. Appeals Bd. (2020) 8 Cal.5th 805.