Classified Employee Reemployment Preference Following Layoff (CCD)

We wish to alert you to Poveda v. Southwestern Community College District, a California Court of Appeal decision regarding classified employee reemployment preference rights following layoff. As an unpublished decision, Poveda cannot be cited as legal precedence but provides guidance as to how a court may rule in other cases presenting similar facts.

LEGAL UPDATE

January 29, 2015

To:  Superintendents/Presidents/Chancellors, Member Community College Districts

From:  Virginia A. Riegel, Of Counsel and Nancy L. Klein, Senior Associate General Counsel

Subject:  Classified Employee Reemployment Preference Following Layoff

Memo No. 02-2015(CC)

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We wish to alert you to Poveda v. Southwestern Community College District, a California Court of Appeal decision regarding classified employee reemployment preference rights following layoff.  As an unpublished decision, Poveda cannot be cited as legal precedence but provides guidance as to how a court may rule in other cases presenting similar facts.

Poveda involved a classified employee who was laid off for lack of funds and, therefore, had reemployment rights under Education Code section 88117.  Section 88117[1] provides in pertinent part:  “(a) A person laid off because of lack of work or lack of funds shall be eligible for reemployment for a period of 39 months as follows:  (1) The person’s reemployment shall take preference over new applicants.” (Emphasis added.)

Within 39 months after being laid off, the employee applied for several vacant classified positions in his former district of employment.  The district filled all of the positions with existing district employees without affording the laid off employee any reemployment preference.  The district reasoned that the reemployment preference in Section 88117 applied only to “new applicants,” not to the district’s existing employees; however, the appellate court concluded that a laid off employee’s preferential rehire right under Section 88117 “applies over all new applicants, irrespective of whether they are internal or external applicants.”

In 2008, the California Court of Appeal, Fourth District, held in Tucker v. Grossmont Union High School District that laid off classified employees who are qualified for a vacant position in a classification in which they have not previously served have a preferential right to the position over new applicants.  Although Tucker was a K-12 decision, Education Code 88117 is identical to Education Code section 45298, the provision considered in Tucker.  Poveda expansively defines “new applicants” to include existing employees.

In our view the reemployment preference applies only when the laid off classified employee meets established minimum qualifications for the position and employment in the vacancy would not result in a promotion for the laid off employee.  Neither Section 88117 nor Tucker requires a preference for a promotional position, even if the laid off employee meets established minimum qualifications.

In light of Poveda and Tucker, we recommend that districts discontinue any current policy or practice that limits laid off employees’ preferential reemployment rights to persons who are not current district employees.

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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