Recall Rights

Recall Rights


We are writing to inform you that the New York State Commissioner of Education has recently, for the first time, ruled that an educator’s service as a full-time regular substitute that does not ripen into a probationary appointment must be included, for recall purposes, in the calculation of the educator’s total years of service in the district’s system.

By way of background, when a school district abolishes a position, it is required to terminate the educator with the least seniority within the tenure area of the position being abolished. The district is then required to place the educator on a preferred eligibility list (“PEL”) with recall rights for a period of seven years to a similar position within that tenure area, provided that the educator has provided faithful and competent service. When a similar position within that tenure area becomes available, the district must offer the position to the educator on the PEL with the most seniority in its “system” (not the most seniority within any particular tenure area).

In Appeal of DeRosa, the petitioner was, since 2007, intermittently employed in various positions. Her first appointment was as a substitute elementary school teacher from January 23, 2007 through March 27, 2007. On September 1, 2007, she was appointed as a long-term substitute leave replacement, serving as a librarian for the duration of the 2007-2008 school year. She then worked full-time as a probationary teacher in the elementary tenure area during the 2008–2009 and 2009–2010 school years. Effective June 30, 2010, the district abolished 13 full-time positions in the elementary tenure area. The teacher’s position in the elementary tenure area was abolished and she was placed on a PEL with the right to recall in the elementary tenure area.

When a position in the elementary tenure area became available, the district did not offer it to the petitioner. She subsequently filed an appeal to the Commissioner, arguing that she should have been offered the position because she had more years of service in the system than the teachers who had received an offer. The district argued that her long-term substitute service in positions that did not ripen into probationary appointments could not be counted towards her seniority and so, as a result, the petitioner’s service as a librarian within the tenure area of library media specialist should not have been counted towards seniority.

The Commissioner disagreed. She stated that full-time regular substitute service counts for seniority purposes in determining an educator’s recall rights, even if that service did not ripen into a probationary appointment in that tenure area. Thus, the petitioner should have received seniority credit for recall purposes for her service as a librarian (regardless of whether that service was in the elementary education or library media specialist tenure area).

When properly credited for her substitute service as a librarian, the petitioner was the most-senior teacher on the PEL and, therefore, should have received an offer for the vacant position. The Commissioner ordered that the district place the petitioner in the elementary teacher position with back pay, seniority and benefits, less any compensation that she may have received in the interim.

We will let you know if the district seeks judicial review of the Commissioner’s decision. In the meantime, you should follow the holding of the decision and count service as a full-time regular substitute towards an educator’s seniority rights for purposes of being recalled from a PEL, regardless of whether that service ripened into a probationary appointment. If you have a contractual obligation to maintain a current recall list or if you are considering a recall, you should also recalculate your recall lists to provide educators with proper credit for their full-time regular substitute service. The law remains, however, that an educator may lose seniority credit if he/she voluntarily severs service with the district (i.e., resignation or retirement).

Please contact Lauren Schnitzer at, or any of our other attorneys, if you have any questions regarding the Commissioner’s decision or calculating seniority for purposes of abolishing a position or recalling an educator from a PEL.


© Lamb & Barnosky, LLP 2017