This month, our firm has fielded a number of questions related to the process for rehiring retired, certified employees with regard to the salary cap and potential private contracting agreements.

The Salary Cap and Rehiring of Retired Teachers

S.C. Code Ann. § 9-1-1790

In 2012, the General Assembly amended S. C. Code Ann. § 9-1-1790 to place a $10,000 cap on the salary that may be earned during a calendar year by a retiree who returns to work. Once the retiree has earned $10,000, his/her retirement allowance will be discontinued for the remainder of the calendar year. This earnings limitation does not apply to those individuals who retired before January 2, 2013, or to those individuals who were 62 years old at the time of their retirement.

S.C. Code Ann. § 9-1-1795

In addition to the retirement date and age exceptions, S.C. Code § 9-1-1795 provides other circumstances under which the earnings limitation will not apply. First, if the retiree is employed in a school that has been designated by the State Board of Education as a geographic need area, the earnings cap does not apply. The S.C. Department of Education (“SCDOE”) has advised that it may ask that the law be amended to designate an entire district as a geographic need area, rather than individual schools.

If the retiree is employed to teach in the classroom in a critical academic need area, the cap also is not applicable. While report cards will not be issued until next Fall, the statute also states that, if the individual is employed in school that has received a “below average” or “unsatisfactory” academic performance rating pursuant to the Education Accountability Act, the cap does not apply. The list of critical academic need areas and geographic need areas is updated each year and may be found at the www.scstudentloan.org website.

Section 9-1-1795 also prohibits districts from hiring retirees until after May 31 of each year and states that, upon hiring a retiree, the district must notify SCDOE of that hiring and provide documentation that the district was not able to secure a qualified non-retired individual for the position.

The law is clear that, for all retirees who are returning to work pursuant to § 9-1-1795 and not subject to the earnings cap, districts must first seek to hire a qualified, non-retired applicant. Thereafter, if such a person cannot be located, the district must wait until after May 31 to offer the position to the retired individual.

The law is less clear concerning the procedures for hiring retirees who are returning to work subject to § 9-1-1790. Because § 9-1-1790 does not provide any restrictions as to the date by which a retired individual may be hired, or as to the process which must be followed, there is a strong argument that districts are not required to adhere to the May 31 date or to seek a qualified, non-retired employee, unless their specific board policy so requires. To clarify this issue, SCDOE has requested the inclusion of a proviso in the 2019 Appropriations Act to allow districts to hire retired educators on or before May 1, in keeping with the notification provisions of the Teacher Employment and Dismissal Act.

We hope that this information has been helpful. If your district has specific questions related to any of this information, please do not hesitate to contact us directly.