NEW LAW CLARIFIES THAT REEMPLOYMENT FOR LAID OFF CLASSIFIED EMPLOYEES MUST BE IN ORDER OF SENIORITY

September 2011
Number 45

Assembly Bill (AB) 1269, which was signed by Governor Brown on July 25, 2011 requires that, as of January 2012, the order of rehire for laid off classified employees be determined by seniority. Under the current language of Education Code section 45308, school districts have presumed that classified employees should be rehired in the reverse order that they were laid off. However, as explained more fully below, this conflicts with Education Code section 45298 which can be read to require rehiring on the basis of seniority. AB 1269 is meant to remedy this inconsistency.

Under normal circumstances, employees are laid off in order of seniority and rehired in the “reverse order,” which is also by seniority. However, school districts implementing layoffs in multiple years have experienced situations where the last person laid off had less seniority for vacant positions than individuals laid off in earlier rounds of layoff. This generally occurs when the employee has seniority in a classification other than the one from which the employee was laid off. The following is an example of such a situation, as referenced in the written analyses of the Assembly Committee on Education and the Assembly Committee on Public Employees, Retirement and Social Security:

In the first year, Employee 1 is laid off from her position as an Office Assistant in which she has six years of seniority. In the second year, Employee 2 is laid off from his position as a Senior Office Assistant in which he has one year of seniority. Employee 2 also has two years of seniority in the lower Office Assistant classification which, under Education Code section 45308 means that Employee 2 has three years of seniority in the Office Assistant position. In the third year, an Office Assistant position becomes vacant.

In this example, reemployment based upon the reverse chronological order of layoff will have different results from reemployment based on the order of seniority. Using the reverse order of layoff, Employee 2 would have a right to be reemployed in the vacancy because he is the last employee laid off. Under reemployment on a seniority basis, Employee 1 would have greater reemployment rights because her six years of seniority in the Office Assistant class are greater than Employee 2’s three years of seniority.

AB 1269 corrects this inconsistency by amending Education Code section 45308 to require that reemployment be in seniority order.

If you have any questions about this legislation or about the rehire rights of employees in general, please contact one of our eight offices located statewide or consult our website.

Darren Kameya
Senior Counsel and Labor & Employment Practice Group Co-Chair
Los Angeles Office
dkameya@lozanosmith.com

Mary Gates
Paralegal
MontereyOffice
mgates@lozanosmith.com

 

© 2011 Lozano Smith

 

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