08/19/2010

update: CSLB undercover operation nets 13 for unlicensed contracting

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04/10
REEMPLOYMENT RIGHTS

I do not believe that I have ever written an article dealing with this type of case. However, I believe that it is important. The case deals with the Grossmont Union High School District (District) and one of its employees, Charles Joseph Tucker, Jr.

Tucker began working for the District in 1982 as a general maintenance worker and after one and one half years, was promoted to maintenance supervisor. However, he left that District's employ from 1988 until 1996, when he worked for another school district.

Later, Tucker returned to work for the District and held the position of Director of Maintenance and Operation. He later assumed additional responsibilities. The District's former assistant superintendent asked a state agency, the Fiscal Crisis and Management Team, to review its classified management structure. That agency recommended eliminating Tucker's position and combining his duties with those of other positions to reduce costs. The District's Board of Trustees voted to eliminate Tucker's position because of lack of work and/or lack of funds. He was laid off.

In April of 2005, Tucker applied for the position of Maintenance Manager for the District. According to the District's Human Resources Director, the position was of a lower class and had different job responsibilities than Tucker's previous position. Tucker was qualified for the position yet the District hired someone else, an individual who had never before worked for the District.

Tucker petitioned for a Writ of Mandate, mainly alleging that the District illegally laid him off in that it did not comply with his "bumping rights," which he claimed gave him the right to move onto a job held by a current employee. Significantly, Education Code section 45298 gives employees laid off for lack of work or lack of funds, reemployment preference over new applicants.

The Appellate Court held that the "Governing Board may lay off and reemploy classified employees":

. . . . Section 45298 provides:

"Persons laid off because of lack of work or lack of funds are eligible to reemployment for a period of 39 months and shall be reemployed in preference to new applicants."

. . . . Section 45308 provides in part:

"Classified employees shall be subject to layoff for lack of work or lack of funds. Whenever a classified employee is laid off, the order of layoffs within the class shall be determined by length of service. The employee who has been employed the shortest time in the class, plus higher classes, shall be laid off first. Reemployment shall be in the reverse order of layoff."

The Court went on to say that if the Legislature had intended to limit laid off employees right to reemployment, it easily could have stated the former employee ".shall be reemployed only within the same class from which the employee was laid off in preference to new applicants."

This is a strange case because it seems clear that Tucker should have been given his rights. I have got to believe that there is something underlying the case that the District either did not understand or did not want to understand.

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