• Education Code Does Not Limit Preference For Reemployment For A Laid Off Employee To A Position Within The Same Class As The One From Which The Employee Was Laid Off
  • July 9, 2009 | Author: Diana D. Halpenny
  • Law Firm: Kronick Moskovitz Tiedemann & Girard, A Law Corporation - Sacramento Office
  • In Tucker v. Grossmont Union High School District, (--- Cal.Rptr.3d ---, Cal.App. 4 Dist., Oct. 28, 2008), a California Court of Appeal considered whether a former employee who was laid off because of lack of work and funds had a right to a reemployment preference over a new applicant for a position for which the former employee was qualified to perform but the position was not in the same classification as his previous position. The Court of Appeal found that the employee had a preferential right to reemployment over new applicants for available positions for which he was qualified.


    Charles Joseph Tucker, Jr. (“Tucker”) began working for Grossmont Union High School District (“District”) in 1982 as a general maintenance worker and worked for District until 1988 when he left to work for another school district. Tucker earned an MBA and returned to work for District in 1996 as the director of maintenance and operations. Tucker later earned the job title of director of operations, safety and special projects.

    District’s Board of Trustees voted to eliminate Tucker’s position due to lack of work and /or lack of funds and Tucker was laid off effective April 2005. That same month, Tucker applied for the position of maintenance manager, which was a position of a lower class and had different responsibilities than Tucker’s previous position. Tucker was qualified for the position for which he applied, but District decided to hire an individual who had never worked for District.

    Tucker filed a lawsuit against District claiming that it violated his right to reemployment under Education Code section 45928. The trial court found that District had legitimately laid off Tucker for lack of work and/or lack of funds and that he had no “bumping rights.” However, the court found that Tucker had the right to be reemployed in preference to new applicants and this right was violated when District did not reemploy him. It found that “section 45928 does not limit reemployment to a job only within a particular classification.”


    District argued on appeal that Education Code sections 45928 and 45308 must be read together and these statutes mandate that Tucker only has reemployment preference for a position within the class from which he was laid off. The Court of Appeal rejected District’s argument.

    Section 45928 provides that employees who are “laid off because of lack of work or lack of funds are eligible for reemployment for a period of 39 months and shall be reemployed in preference to new applicants.” Section 45308 provides that classified employees are subject to layoff for lack of work or lack of funds and that “the order of layoffs within the class shall be determined by length of service.” It further provides that “[t]he employee who has been employed the shortest time in the class . . . shall be laid off first” and “[r]eemployment shall be in the reverse order of layoff.”

    District asserted that sections 45928 and 45308 must be read together, and when read together, they provide that “an employee’s right to preference for reemployment are for reemployment only within the class in which he or she was formerly employed.” District claims that the right to reemployment does “not include any preference for reemployment in a lower or different class even if the laid-off employee is qualified for the position.”

    The Court of Appeal did not find District’s argument persuasive. Section 45928 describes the rights of a laid-off employee in relation to new applicants. However, section 45308 explains the order employees must be laid off and rehired. Section 45308 “is relevant to the rights of individual members of a class vis-à-vis each other” but “[i]t is not relevant to the rights of laid-off employees versus new applicants.”

    If the California “Legislature had intended to limit a laid-off employee’s right to reemployment, it could have easily stated the former employee ‘shall be reemployed within the same class from which the employee was laid off in preference to new applicants.’” The court noted that the Legislature has included language relating to classes of employees in other sections of the Education Code. Because the Legislature did not include language in sections 45928 regarding reemployment in the same class from which an employee is laid off, the court concluded that the Legislature “did not intend to so restrict a laid-off employee’s preference to reemployment versus a new applicant.”

    Section 45928 “provides a preference for a laid-off employee vis-à-vis new applicants for reemployment in a position for which the laid-off employee is qualified.” The District’s reading of the statutory provisions “would eliminate any advantage for the laid-off employee versus a new applicant.” The court opined that “[b]y requiring that the preference be available only if the laid-off employee is applying for a position within the exact same class from which he or she was laid off, a district would be free to simply eliminate the position or class after laying off the employee” which would do away with the intended benefit afforded by section 45928. Section 45298, however, does not guarantee reemployment and it does not give a laid-off employee the right to a position currently held by another employee.

    The court held that Tucker should have been afforded a preference over the new applicant because he was presumably qualified for the position of maintenance manager since he previously held the position of director of maintenance and operations. The court upheld the judgment of the trial court in Tucker’s favor.