On June 13, 2014, the Governor signed House Bill 5546 expanding the recall provisions of Senate Bill 7. The new legislation is effective July 1, 2014 and extends limited recall rights to honorably dismissed (“RIFed”) teachers in “grouping 2” who have one needs improvement evaluation rating. The recall rights apply beginning with RIF actions taken during the already completed 2013-2014 school term. H.B. 5546 became law on the three year anniversary of the signing of Senate Bill 7, the sweeping education reform bill that dramatically changed teacher tenure, layoff, and dismissal policies in Illinois.

Under Senate Bill 7, only those teachers RIFed from “grouping 3” and “grouping 4” were eligible for recall under Section 24-12 of the School Code. Grouping 3 includes those teachers with at least a satisfactory or proficient on both of their last two performance evaluations, or on the last evaluation if only one is available. Grouping 4 includes those teachers whose last two evaluations were excellent or who received an excellent rating on two of their last three evaluations and a proficient on either of their last two evaluations. Teachers in grouping 2, who had a needs improvement or unsatisfactory rating on either one of their most recent two evaluations, were not eligible for recall rights at all.

Under H.B. 5546, signed into law as Public Act 098-0648, teachers in grouping 2 who have received one needs improvement rating on either of their last two performance evaluations are now eligible for limited recall rights. If a grouping 2 teacher has two performance evaluation ratings available, the other rating must be satisfactory, proficient, or excellent. The law is unclear as to what, if any, rights are available to teachers in grouping 2 whose only evaluation is a “needs improvement” evaluation. To be eligible for recall, teachers in grouping 2 must still meet the qualification requirements for the available position. Grouping 2 teachers are eligible for recall only after teachers RIFed from grouping 3 and 4 are recalled.

Recall rights for teachers in grouping 2 are applicable only for vacancies that arise between the beginning of the school term following a RIF through February 1, unless a later date is agreed to in a collective bargaining agreement. Under no circumstances can recall rights for teachers in grouping 2 be extended beyond six months from the beginning of the school term following a RIF. Read literally, the new recall rights for grouping 2 teachers would not extend to vacancies arising between the end of the school term in which the honorable dismissal took place and the start of the following school term, but this should be regarded as an open question. In contrast, recall rights for teachers in groupings 3 and 4 are applicable to vacancies for the school term immediately following the RIF (no matter when the vacancy arises) or for vacancies that arise within one calendar year from the beginning of the school term immediately following the RIF (or for up to an additional calendar year if the RIF exceeds 15% of the number of full-time equivalent positions filled by certified non-administrative employees for the previous school year).

H.B. 5546 also makes changes to the School Code in addition to those affecting recall rights of teachers in grouping 2, including:

• Revising the requirement for a statewide survey of learning conditions to allow school districts to elect to use, on a district-wide basis and at the school district’s sole cost and expense, an alternative survey of learning conditions instrument pre-approved by the State Board of Education, as long as certain requirements are met;
• Requiring the annual sequence of honorable dismissal list provided to the union to include the names of teachers categorized in their respective groupings; and
• Providing that no more than one evaluation rating each school term may be used for the purpose of determining the sequence of dismissal. If multiple evaluations are conducted in a school term, only the last evaluation completed before establishing the sequence of honorable dismissal list may be used for purposes of determining the list, unless that evaluation is one resulting from a remediation plan. Averaged ratings are not allowed unless agreed to in a collective bargaining agreement or contract.

School Districts should begin now to prepare for the changes implemented by this law. With respect to recall rights, the changes for teachers in grouping 2 must be applied to recalls of grouping 2 teachers dismissed as part of a reduction in force during the 2013-2014 school year. This law should also result in very careful decisions on whether to give underperforming teachers an unsatisfactory or needs improvement rating and whether to dismiss nontenured teachers who are rated needs improvement through non-renewal rather than reduction in force.