Administrative Reduction in Force Procedure | KCTCS

Administrative Procedures

Administrative Reduction in Force Procedure

Policy Number: 2.15.3-P

Current Effective Date: 04/15/2019

Original Effective Date: 04/15/2019

Revision Dates: 04/15/2019

Revision Number: 0

Revision Summary: Initial Promulgation

Responsible Official: VP-Administrative Services

References: Board of Regents Policy 1.1; Board of Regents Policy 2.8; KCTCS Administrative Policy 2.15.3

1. Purpose

This Procedure implements the Kentucky Community and Technical College System (KCTCS) Board of Regents Employee Separation Policy 2.8 and the KCTCS Administrative Reduction in Force Policy.

2. Scope

This Procedure applies to all circumstances in which reductions in force (RIFs) are required, as determined or approved by the KCTCS President.

3. Reduction in Staff Positions

3.1

The KCTCS President may authorize a reduction in staff positions when extreme budget, operational, or program needs so require, or in cases of financial exigency.

  1. The KCTCS President shall establish written criteria and procedures for implementing a RIF.
  2. After approval of the KCTCS President, a College President (in College RIFs) or System Vice President (in System Office RIFs) shall have the authority for implementing a RIF of their unit and must formulate a Notice of Intent that describes the RIF plan. The Notice must be submitted to the System Vice President in charge of Human Resources in advance of any employment action.
  3. All staff, regardless of status (i.e., term contract, continued, continuing, or at will), are subject to this Procedure.
  4. A staff RIF can take the form of a temporary or permanent vacating, or the involuntary reduction from full-time to part-time, of an occupiedposition.
  5. Reorganizations and program eliminations may be part of a RIF, in which case they are subject to this Procedure, but not every reorganization or program elimination is a RIF action. 
  6. The ability of the college or operating unit to meet the needs of the students and community shall be the primary factor in structuring a RIF plan. The Notice of Intent that describes the RIF plan shall articulate the following:
    1. An explanation of the rationale for eliminating/reducing programs and/or services, and the targeted benefits;
    2. An analysis of unit functions and responsibilities used to determinewhich areas, activities, programs, or classifications should bereduced;
    3. The jobs and functions that will remain after the RIF takeseffect;
    4. The qualifications and abilities of current employees to perform the remaining functions, considering that:
      1. All other factors being equal, seniority and/or status in KCTCS could be a factor in a staff reduction, but it shall not be the determining factor; and,
      2. The College President or System Vice President shall consider special certifications, qualifications, training, experience, evaluation scores, customer needs, employee performance as demonstrated throughthe annual performance evaluation system or other relevant substantive factors in determining RIF structure;
    5. The anticipated effect of reduced or altered workload on the number of qualified employees necessary for the unit to performoptimally;
    6. Whether position reclassifications will be necessary; and,
    7. The projected duration of the reduction in force.
  7. The College President (in College RIFs) or System Vice President (in System Office RIFs) shall attach to the Notice of Intent a complete list of staff in the budget units affectedby theRIF andforwardthe list andNotice of Intentto the SystemVice President in charge of Human Resources.
  8. Upon receipt, the System Office of Human Resources, in consultation with the Office of General Counsel, shall review the plan for fundamental fairness, legality, due process, and other considerations.
  9. The System Office of Human Resources, in consultation with the System Office of Cultural Diversity, shall also review the plan for equity impact. 
  10. Once the System Office of Human Resources reviews the RIF plan, it shall forward its recommendations to the KCTCS President, who shall approve or deny the RIF plan. Once the RIF plan is fully approved by the KCTCS President, the College President or System Vice President shall promptly provide affected employees with notice of the RIF, including reasons for the RIF and the anticipated effectivedate.

3.2 Notification

  1. Except where a RIF is due to either a natural disaster or business circumstances not reasonably foreseeable, each employee subject to the RIF shall be notified in writing at least ninety (90) calendar days before the effectivedate of the RIF.
    1. The employee’s immediate supervisor or the Human Resources Director shall deliver written notice to the employee in person, and shall advise the employee of applicable appeal rights.
      1. With the advanced approval of the KCTCS President upon satisfactory justification, the supervisor or Human Resources Director may deliver notice via other approved means if an employee is not present so notice can be delivered in person.
    2. The immediate supervisor or Human Resources Director shall obtain the employee’s signature acknowledging the employee’s receipt of the notice. The immediate supervisor or Human Resources Director shall place a copy of the notice with the employee’s receipt signature in the employee’s personnelfile. 
      1. If the employee refuses to sign the notice, the supervisor or Human Resources Director shall, in the space provided for the employee’s signature, note that, “Employee refused to sign this document when presented on ” and then print/sign/date the notice. If feasible, a witness should also observe the employee’s refusal to sign, and print/sign/date the notice near the supervisor’s or Human Resources Director’s signature.
      2. An employee’s refusal to sign the notice shall not negate the effectiveness of the notice or the notification of the RIFaction.
  2. KCTCS may, at its sole option, relieve the employee of duties and pay the employee’s regular salary and benefits during the ninety (90) day notice period.
  3. Retirement-eligible employees who receive notice that they are subject to a RIF may elect to retire by advising the College President/System Office Vice President of their intent to retire in writing within thirty (30) days after receipt of the notice. Retirement paperwork must thereafter be filed on or before the date the RIF affecting the retirement-eligible employee becomes effective. KCTCS shall waive its notice requirements if a RIF-identified employee is eligible for and elects to retire in lieu of being subject to a RIF.

3.3 Benefits

  1. Employees subject to a RIF will receive their regular benefits until their actual date of separation.
    1. On the date of separation, all benefits end in accordance with the rules or provisions applicable to the specific benefit.
    2. If the employee is receiving an education benefit, the benefit will terminate at the end of the semester in which the separation occurs.
      1. Notwithstanding, KCTCS may make available to employees subject to permanent RIF retraining opportunities at KCTCS facilities using available resources as the KCTCS President and Chancellor, in the exercise of their sole discretion, shall determine.
  2. The College or System Office Human Resources Office will counsel affected employees on other employment opportunities within KCTCS, continuation of benefits through COBRA, and other benefits. The Human Resources Office will also counsel employees on applying for unemployment benefits.
  3. If 25 or fewer positions assigned to a single college or the System Office are affected by a RIF, the appropriate Human Resources Office will provide each affected employee employment displacement services,including:
    1. Resume-writing;
    2. Interviewing skills;
    3. Assistance with unemployment insurance administration;and 
    4. Information about local employment office procedures.
  4. If more than 25 positions assigned to a single college or the System Office are affected by a RIF, the appropriate Human Resources Office will secure the services of an outplacement service provider familiar with the employment needs of the area.

3.4 RIF Classifications

  1. A Temporary RIF is a layoff not exceeding four (4)months.
    1. During a Temporary RIF, affected employees will be placed in leave without pay status. Employees should be aware that remaining in leave without pay status for thirty (30) days or more will affect available benefits until the employee returns to active service.
    2. Affected employees will retain their unused sick leave and length-ofservice credit for vacation and sick leave accrual as ofthe effective date of the Temporary RIF, and such time will be reinstated upon the employees’ return to active service.
    3. During a Temporary RIF, affected employees may elect to use up to twenty (20) days of accumulated vacation in place of leave without pay. After twenty (20) days, the employees will be placed in leave without pay status. Employees may not use sick time for this purpose. Remaining accumulated vacation time shall be reinstated upon return to active service.
    4. A Temporary RIF may be converted to a Permanent RIF upon determination of the KCTCS President and notice by letter to the affected employees. The Permanent RIF shall be effective three (3) calendar days after written notice is issued or when specified in the written notification.
    5. Effective the date of notice of a RIF, employees subject to a Temporary or Permanent RIF are not eligible to donate or receive sicktime.
  2. A Permanent RIF is a layoff expected to exceed four (4) months.
    1. Employees subjected to Permanent RIF lose all non-vested KCTCS benefits as of the latter of ninety (90) days after Notice is given or the effective date stated in the Notice. 
    2. Employees on Permanent RIF who may be reinstated or re-employed full-time by KCTCS within twelve (12) months of the effective date of Permanent RIF shall, upon return to active service, receive credit for their length-of-service and unused sick leave accrued as of the date of separation.

3.5 Staff Appeal.

Staff employees may appeal any part of a RIF plan adversely affecting her/his particular position under the KCTCS Complaint Resolution Procedure (CRP), Administrative Policy 2.16.2.2P, starting at Step 3. To be timely, such appeal must be filed in writing within ten (10) working days of the date of the notice of the RIF. The following provisions shall apply:

  1. General Provisions.
    1. Burden of Proof. The affected staff employee opposing any part of a RIF plan has the burden of proof by clear and convincing evidence.
    2. Failure to Submit. Failure to timely submit required elements shall waive further rights to contest the RIF plan.
    3. Advisors and Consultants. RIF appeals are administrative matters, not legal proceedings. Accordingly, staff employees appealing any part of a RIF plan may, at their own expense, retain a consultant or advisor of their choice to aid them in preparing an appeal, but such advisors or consultants may not in any other form participate in an appeal or address matters to KCTCS officials. KCTCS officials shall respond only to employees who file appeals of RIF decisions or proposals directly affecting themselves. Staff employees may not file group or joint appeals.
  2. Improper Basis for Appeal. Since no one is prone to “like” the idea that her/his position is subject to a RIF, mere disagreement with or dislike of a proposed RIF plan or any part of it is not a proper basis for a successful appeal. Likewise, a mere substitution of judgment of the executive proposing the RIF is not a proper basis for a successful appeal.
  3. Requirements for Appeal. All appeals under the CRP must meet the requirements specified in the CRP. Additionally, RIF appeals under the CRP must show:
    1. The rationale for eliminating/reducing programs, positions, and/or services is based on grossly incorrect information/data; or,
    2. The rationale for eliminating/reducing programs, positions, and/or services is motivated by illegal reasons; or,
    3. The RIF plan or some substantial part of it has an illegal impact;AND,
    4. A more effective means to address the issues that motivated the RIF plan, along with supporting rationale for the alternative means, estimated costs, and financial impact of the proposed alternative.
    5. The staff employee accepts any part of the RIF plan not timely and specifically appealed in writing, and such matters are not thereafter appealable.

4. Reduction in Faculty Positions

4.1 Authorization.

The KCTCS President may authorize a reduction in faculty positions when budget, operational, or program needs so require, or in cases of financial exigency.

4.2 Faculty Appeal Rights.

The KCTCS Senate Advisory Committee on Appeals (SACA) shall have no authority to consider faculty appeals arising from RIF actions.

  1. Continued Status, Continuing Status, and Term Contract Faculty Appeals. These provisions apply to tenured faculty positions. Continued status, continuing status, and term contract faculty position appeals shall be managed in accordance with the RIF provisions for staff positions.

  2. Tenure-track faculty appeals. Tenure-track faculty position appeals shall be managed in accordance with the RIF provisions for staff positions, except for notice timeframes to which tenure-track faculty are otherwise entitled.

  3. Tenured Faculty Rights. If a faculty RIF is approved, Tenured Faculty Members shall have the following rights:
    1. Tenured faculty affected by a RIF shall have Tenured Preference for selection for any regular full-time, funded, vacant, teaching load position for which they are fully qualified at any other KCTCS college or the System Office. A "regular full-time, funded, vacant, teaching load position" does not include staff positions or contract faculty positions the College President expects to renew. Such Tenured Faculty:
      1. Shall have fourteen (14) calendar days from receipt of notice of RIF to identify and apply for such positions, and shall concurrently notify both the KCTCS Chancellor and the System Office Human Resources Department (SO HR) of his/her application for such position(s);
      2. Must comply with the selection process prescribed for the position; and
      3. Shall, in the event there are other applicants for the position, be among the finalists for such position and shall be entitled to interview for the position.
      4. Tenured Preference shall exist for a period of two (2) years following the notice of RIF, provided the tenured faculty member affected by the RIF notifies System Human Resources Office through the college HR Director of her/his intent to claim Tenured Preference within the fourteen (14) day period noted in 4.2(C)(1)(a), above.

    2. Upon request of a tenured faculty member affected by a RIF, the SO HR shall promptly apprise the faculty member of other similar vacant, funded positions throughout the System that are currently posted. Upon request of a tenured faculty member affected by a RIF, the SO HR shall:
      1. Facilitate the faculty member’s application to such other positions by contacting the college HR Director (HRD) and the college President and forwarding the faculty member’s resume or curriculum vitae to the HRD;
      2. Facilitate the payment or reimbursing the faculty member’s reasonable and necessary most economical travel expenses for one trip from the faculty member’s current or former college to another KCTCS college at which the faculty member interviews for a regular full-time, funded, vacant, teaching load KCTCS position for which the faculty member is qualified. Such travel and related payments shall be in accordance with prevailing KCTCS travel policies and procedures; and
      3. If the faculty member is still employed by KCTCS, assuring the faculty member receives paid time off for reasonable and necessary time to travel to and from interviews for KCTCS position for which the faculty member has applied and interviews.
    3. Positions held by Tenured Faculty Members that are subjected to a RIF may not be reopened, replaced, or otherwise reconstituted to perform the same functions for at least three (3) calendar years, unless:

      1. The Tenured Faculty Member previously in such position is first offered reinstatement, with at least thirty (30) calendar days to consider the offer; AND,
      2. The offer of reinstatement is at least equal to his/her most recent compensation.
    4. In the event of termination of all Tenured Faculty Members in a particular program due to discontinuance of that program during a RIF, the college may not reinstate that program for a period of five (5) calendar years.

4.3 Consideration of Faculty Preference Candidates.

  1. Permissible Evaluation Factors: Selection of a Tenured Preference candidate for a position to which she/he applied is not automatic. The ability of the college or operating unit to meet the needs of the students and community shall be the primary factor in making hiring decisions. Accordingly, the Selecting Official may consider, in no particular hierarchy, the Tenured Preference candidate’s:
    1. PPEs;
    2. Past disciplinary history;
    3. Student/peer evaluations;
    4. Seniority vis-à-vis other Tenured Preference candidates;
    5. Results of teaching demonstrations, if any;
    6. Fit for the college or operating unit, department, program, and students; and,
    7. Any other factor directly bearing on the college or operating unit’s ability to perform.

  2. Non-Selection of Tenured Preference Candidate. If the Selecting Official does not select a Tenured Preference candidate, the President of the College (for college positions) or the KCTCS Vice President of Administrative Services (for System Office positions) shall, in consultation with the HRD, notify the Tenured Preference candidate of his/her non-selection.
    1. The College President or KCTCS Vice President of Administrative Services shall share the memorandum with the Tenured Preference candidate; and
    2. Except as provided below, the judgment of the Selecting Official is not subject to review or appeal.

  3. Appeal of the Decision of the Selecting Official.
    1. The only basis to appeal the decision of the Selecting Official regarding the non-selection of a Tenured Preference candidate is that the decision violates applicable law or KCTCS policy.
    2. The Tenured Preference candidate who was not selected shall have the burden of proving a violation by clear and convincing evidence.
    3. In order to initiate an appeal, the Tenured Preference candidate who was not selected shall within five (5) work days submit a written appeal, citing all specific laws or policy violations at issue, to the KCTCS Chancellor with copy to the College President. Such appeals filed after five (5) workdays are waived. No extensions of time are permitted.
    4. Within five (5) workdays, the KCTCS Chancellor shall either decide the issue or seek review of the KCTCS General Counsel.
      1. The KCTCS General Counsel shall review appeals of Tenured Preference candidates referred by the KCTCS Chancellor, and issue to the KCTCS Chancellor a written opinion as to the merits of the bases of the appeal.
      2. The KCTCS Chancellor shall promptly apprise the College President of the results.
    5. Within five (5) workdays of receipt of the KCTCS Chancellor’s action on the matter, the College President shall issue a decision on the Tenured Preference candidate’s appeal.
    6. For employees at System Office who hold tenured faculty status, if any, the System Office Human Resources department shall perform the same functions as the college HRDs, and the Vice President responsible for the employee’s work area shall perform the same function as the College President.
    7. The KCTCS President shall appoint a member of the KCTCS President’s Leadership Team (PLT) to serve in the appellate capacity of any other member of the PLT in the event of an actual or appearance of Conflict of Interest or other impropriety.

4.4 System-wide Faculty RIF Process.

Once the KCTCS President has approved a System-wide faculty RIF, the President shall observe the following process to implement a reduction in faculty.

  1. Notice to KCTCS Faculty Senate Council. If the KCTCS President intends to implement a System-wide faculty RIF, the President will submit a written Notice of Intent to the KCTCS Faculty Senate Council. The Notice shall:
    1. Identify the reasons for the proposed reduction in faculty;
    2. Provide information and documentation to support the need to reduce faculty;
    3. Provide at least sixty (60) calendar days for response from the KCTCS Faculty Senate Council.

  2. KCTCS Faculty Senate Council Action. The KCTCS Faculty Senate Council shall provide its written agreement or disagreement to the KCTCS President within the time prescribed. Failure of the KCTCS Faculty Council to provide timely written agreement or disagreement shall be deemed agreement with the KCTCS President’s Notice of Intent. Individual faculty members shall not have a right to appeal a RIF determination.

  3. If the KCTCS Faculty Council agrees with the KCTCS President’s rationale that reasonable cause for a faculty RIF exists, the KCTCS President shall then submit the RIF plan to the Board of Regents, and thereafter proceed to reduce faculty according to this Procedure.

  4. If the KCTCS Faculty Council disagrees that reasonable cause for a faculty RIF exists, the KCTCS Faculty Council shall, within sixty (60) calendar days of the date of the Notice of RIF, submit a Notice of Dissent to the KCTCS President.
    1. General Provisions.
      1. Burden of Proof. The KCTCS Faculty Council shall have the burden of proving the merits of its opposition to any part of a RIF plan by clear and convincing evidence.
      2. Failure to Submit. Failure to timely submit required elements shall waive further rights to contest the RIF plan. 
      3.  Advisors and Consultants. A RIF is an administrative matter, not a legal proceeding. Accordingly, no consultant or advisor may participate in any other form in an appeal or address matters to the KCTCS Board of Regents or any other KCTCS official. KCTCS officials shall respond only to the KCTCS Faculty Senate Council on matters involving proposed RIFs involving KCTCS faculty.
    2. The Notice of Dissent must contain an explanation of the specific reasons for the dissent, along with:
      1.  An alternative plan for addressing the circumstances causing the need for the RIF;
      2. Facts to support the alternative plan; and,
      3. Estimated costs and financial impact of the proposed alternative plan.
      4. Mere substitution of judgment of a KCTCS official is not a proper basis for dissent.
      5. Any part of a RIF plan not timely and specifically appealed in writing is deemed accepted and such matters are not thereafter appealable.
      6. Failure to timely submit the required elements of the Notice of Dissent shall waive further rights to contest the RIF plan. The KCTCS Faculty Council may for demonstrated cause request one (1) reasonable extension of time, which shall be granted for sufficient cause unless there are compelling reasons that such extension should not be granted.
    3. The KCTCS President shall consider the Notice of Dissent of the KCTCS Faculty Council and may make appropriate adjustments, withdraw the Notice of Intent, or negotiate an acceptable RIF plan with the KCTCS Faculty Council.

    4. If the KCTCS President determines that reasonable cause for a reduction in faculty remains, and an acceptable RIF plan is not negotiated with the KCTCS Faculty Council within fourteen (14) calendar days of the date of receipt of the KCTCS Faculty Council’s Notice of Dissent, the KCTCS President shall submit the matter to the KCTCS Board of Regents.

  5. Chancellor Notifications for System-Wide or College RIFs. The College President will recommend faculty terminations to the KCTCS Chancellor.

    1. Faculty retention preference within each affected unit shall be determined according to the following order:
      1.  Tenured Faculty Members have retention preference over non-tenured faculty;
      2. Tenured Faculty Members have retention preference over other Tenured Faculty Members based on seniority of tenure in KCTCS;
      3. Where Tenured Faculty Members have equal tenured service time, then the Tenured Faculty Member of superior academic rank has retention preference;
      4. If service and rank considerations are equal among Tenured Faculty Members, the faculty member with the longer employment at KCTCS has retention preference.
    2. The Chancellor shall provide written notice to faculty members whose positions are proposed for elimination. 

      1. Faculty members subject to the RIF shall receive ninety (90) calendar days’ notice before the effective date of the RIF, EXCEPT;
      2. In cases where a RIF is due to a natural disaster or business circumstances not reasonably foreseeable when notice would have otherwise been required under this Procedure.

  6. Board of Regents Decision. If the KCTCS President and KCTCS Faculty Senate Council disagree that reasonable cause for a faculty RIF exists, the KCTCS President shall submit a recommendation to the Board of Regents for a final decision whether to conduct a faculty RIF.
    1. Along with the recommendation, the KCTCS President shall include the following items:
      1.  The Notice of Intent, Notice of Dissent, and a summary of the issue;
      2. The recommended procedure and general timeline for the faculty RIF; and,
      3. The rights of tenured faculty affected by the RIF.
    2. The KCTCS Board of Regents should consider all documents submitted and reach a conclusion as soon as possible in accordance with applicable law, its governing documents, and other controlling authorities.
    3. The decision of the KCTCS Board of Regents shall be final.

  7. College RIF Process. If the College President intends to implement a College-wide faculty RIF, the College President shall observe the following process to implement a College reduction infaculty.
    1. Notice to KCTCS Chancellor. The College President will submit a written Notice of Intent to the KCTCS Chancellor thatwill:
      1. Identify the reasons for the proposed reduction infaculty; and
      2. Provide information and documentation to support the need to reduce faculty.
    2. KCTCS Chancellor Action. Upon receipt, the KCTCS Chancellor shall, in consultation with the System Office of Human Resources and the Office of General Counsel, review the plan for fundamental fairness, legality, due process, and other considerations. The KCTCS Chancellor shall also, in consultation with the System Office of Human Resources and the System Office of Cultural Diversity, review the plan for equity impact and other considerations.
      1. The KCTCS Chancellor shall forward his/her recommendations to the KCTCS President.
      2. The KCTCS President shall send final approval/denial to the KCTCS Chancellor who shall in turn notify the College President.
    3. College RIF Appeals. Once the KCTCS President has approved a reduction in faculty at the College-level, the College President shall observe the following process to implement a reduction infaculty. 
      1. Notice to College Faculty. If the College President intends to implement a College-wide faculty RIF, the College President will submit a written Notice of Intent to the College’s full faculty governance body (“College Faculty Body”). The Notice shall:
        1. Identify the reasons for the proposed reduction infaculty;
        2. Provide information and documentation to support the need to reduce faculty; and 
        3. Provide at least sixty (60) calendar days for response from the College Faculty Body.
      2. Action by the College Faculty Body. The College Faculty Body shall provide its written agreement or disagreement to the College President within the time prescribed. Failure of the College Faculty Body to provide timely written agreement or disagreement shall be deemed agreement with the College President’s Notice of Intent. Individual faculty members shall not have a right to appeal a RIF determination.
        1. If the College Faculty Body agrees with the College President’s rationale that reasonable cause for a faculty RIF exists, the College President and the KCTCS President shall then submit the RIF plan to the Board of Regents, and thereafter proceed to reduce faculty according to this Procedure.
        2. If the College Faculty Body disagrees that reasonable cause for a faculty RIF exists, the College Faculty Body shall, within sixty (60) calendar days of the date of the Notice of RIF, submit a Notice of Dissent to the College President.
        3. The Notice of Dissent must contain an explanation of the specific reasons for the dissent, along with:
          1. An alternative plan for addressing the circumstances causing the need for the RIF;
          2. Facts to support the alternative plan; and,
          3. Estimated costs and financial impact of the proposed alternative plan.
          4. Merely supplanting or second-guessing the business judgment of the College President or KCTCS President is not a proper basis for dissent.
          5. Failure to timely submit the required elements of the Notice of Dissent shall waive further rights to contest the RIF plan. The College Faculty Body may for demonstrated cause request one (1) reasonable extension of time, which shall be granted for sufficient cause unless there are compelling reasons that such extension should not be granted.
      3. The College President shall, in concert with the KCTCS President, consider the Notice of Dissent of the College Faculty Body and may make appropriate adjustments, withdraw the Notice of Intent, or negotiate an acceptable RIF plan with the College FacultyBody.
      4. If the College President and KCTCS President determine that reasonable cause for a reduction in College faculty remains, and an acceptable RIF plan is not negotiated with the College Faculty Body within fourteen (14) calendar days of the date of receipt of the College Faculty Body’s Notice of Dissent, the KCTCS President shall submit the matter for decision by the KCTCS Board of Regents.

    4. Board of Regents Decision. The KCTCS Board of Regents shall render a decision in accordance with its governing and operating authorities. The decision of the KCTCS Board of Regents shall be final.