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Classified Employees in Non-Merit System Districts Who are Laid Off Must Serve a Probationary Period if They are Re-Employed by the District in a Different Position

In Tucker v. Grossmont Union High School Dist. (2008) 168 Cal.App.4th 640 (Tucker), the Court held that school districts must hire laid-off employees who meet the qualifications for positions, before hiring outside applicants. On March 15, 2011 a Court issued an opinion which further clarified the legal ramifications of classified employee reemployment rights in non-merit system school districts.

In California School Employees Association et al., v. Governing Board of the East Side Union High School District, 2011 WL 880391, a classified employee argued that she should retain her permanent status, and should not be required to serve a probationary period in a new position in which she was employed. The employee was employed as a School Community Liaison (SCL) and was notified by the District that her position was being eliminated due to lack of funds, and that she would be laid off in June 2008 and placed on the 39-month reemployment list. In August 2008, the District posted openings for eight Campus Monitor (CM) positions. The duties for the CM and SCL position were found to be “considerably different.” The employee applied for, and was hired in a CM position.

Upon commencement of the CM position, the employee was informed that she was in “probationary status” for the first six months. Shortly before completion of the six month period, she was notified by the district that she was being “released” from her CM position. The employee sued, arguing that the permanent status she acquired in her SCL position applied to the CM position.

The Court disagreed, and held “a classified employee’s permanent status is restricted to the position or class in which it was retained and is not retained when the employee is reemployed in a different, lower position.Ibid.

What this means for non merit system districts:

  • School districts must still hire laid-off employees who meet the qualifications for positions before hiring outside applicants, but
  • If the position the employee accepts is not one in which the employee has previously held permanent status, the employee must complete a probationary period for the new position.

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