Know Your Rights

The facts about layoffs

There are only two reasons classified employees can be laid off: "lack of work" and "lack of funds."

If you are laid off, the district is required by law to give you 60 days notice. The law also mandates that layoffs occur by seniority within a single classification on a district-wide basis. In most cases, the last hired is the first laid off within a classification. (Some contracts determine seniority by date of hire as opposed to hours worked.)

If a district eliminates positions and lays off employees, it may try and shift their duties to other employees. However, there are restrictions that govern what the employer can do as far as transferring duties to other employees. If you are asked to take on the work of a laid-off employee, talk to a CSEA representative immediately.

Districts are prohibited from laying off a classified employee whenever a short-term employee is doing work that the classified employee is qualified to do. However, this law does not apply to short-term workers hired for 45 days or less (their short-term service cannot be extended or renewed).

What does your contract say?
Districts must bargain over the effects of a layoff or the decision to reduce hours. Many chapters have successfully negotiated layoff and reemployment provisions into their contracts. When the union is involved, it gives the employees a voice in determining their fate. The following are negotiable bargaining subjects, to which districts must respond:

  • Reason for layoff
  • Notice of layoff
  • Order of layoffs
  • Bumping rights
  • Layoff in lieu of bumping
  • Equal seniority
  • Reemployment rights
  • Retirement in lieu of layoff
  • Seniority roster and method of computing seniority
  • Notification of reemployment opening
  • Effects of layoff (health and welfare benefits, severance pay, etc.)

Since layoffs affect wages and hours of an employee, it is mandatory for a district to bargain the effects of taking such action unless the effects are addressed in the contract already.

In worst-case scenarios, laid-off workers are unable to get another position in the district and become unemployed. Again, these workers still have rights: unemployment insurance and re-employment status to name a few.

Re-employment status means that the district must re-employ a laid off worker who is qualified to fill a vacant position in the district rather than hire someone new.

The California Employment Development Department (EDD), in accordance with regulations established by State and Federal law, offers unemployment benefits. The EDD is responsible for determining a worker's eligibility for unemployment insurance benefits, paying such benefits and determining and collecting employer taxes, which support the program.

To collect benefits, you must file a claim with the department. The department then checks with the employee's last employer to verify the employee is unemployed through no fault of his/her own. There are specific legal criteria used by the department when making benefits available, and you are obligated to gainfully seek work.

If your benefits are denied by the department, you have the legal right to go before an administrative law judge to challenge the denial.

Reasonable Assurance
The Unemployment Insurance Code requires the district to send all classified employees who work less than twelve months per year a notice stating the likelihood of returning in September. This notice must be sent no later than 30 days prior to the end of your work year. The notice must state the following:

1. Whether or not you have a reasonable assurance of a job in September.
2. The notice must state you should file for unemployment benefits even if you have reasonable assurance of a job next school year.

If you have received a notice of a job next year, the unemployment office will determine if you will receive unemployment benefits during the summer. The district has no say in this matter.

If the unemployment office determines you are not eligible for benefits, and then the district fails to return you to work in September, you will be eligible for benefits back to your first filing.

You can receive retroactive benefits if you file for unemployment insurance immediately following your last working day. If you have not already done so, do it now.

Can you be laid-off without warning?
In virtually all circumstances, classified employees, even probationary employees, must receive at least a 45-day advance notice of a proposed layoff by state law. The notice must inform you of your bumping rights, if any, and return rights. The only exception to this state law mandate is if the employer has no money to meet its payroll or you cannot work due to unforeseen circumstances like a natural disaster. Your collective bargaining agreement may also include a layoff notice requirement.

How is seniority determined?
California Education Code defines seniority for layoffs by number of hours you've worked within a classification. The employee with the shortest length of service would be laid off first. However, many CSEA chapters have negotiated with their employer to define seniority by date of hire within a classification.

If CSEA has negotiated length of service to mean date of hire (within classification), then the most recently hired employee within the classification would be subject to layoff.

The AFL-CIO offers an entire Web site dedicated to unemployment help. Learn some of the best strategies, techniques and tools to help you survive hard times on the best possible terms.


Layoff FAQ

The following questions were answered by CSEA staff experts. If you don't see the answer to your question or you need further assistance, contact your CSEA job steward or labor relations representative.

Question: I am a 5-year, 3.5-hour paraeducator and my position is being eliminated. How is seniority calculated?

Answer: According to the California Education Code "seniority" can be calculated two ways. The Code defines seniority for layoffs to be determined by length of service. Length of service is calculated as all hours in a paid status within class. The employee with the shortest length of service within a class plus higher classes will be laid off first. The Code also makes allowance for the exclusive representative (CSEA) to negotiate with your employer "seniority" by date of hire (within classification).

If length of service (seniority) is calculated by all hours in a paid status, a 3 year, 6-hour paraeducator would most likely accumulate more hours in a paid status than a 5 year, 3.5 hour paraeducator. All hours in a paid status include summer school, vacation, paid sick leave, etc.

If CSEA has negotiated length of service to mean date of hire (within classification), then the most recently hired employee within the classification would be subject to layoff.

I recommend you refer to your contract and/or consult with your Labor Relations Representative, Chapter President, or Union Steward in regards to the layoff procedure. Not all contracts have a Layoff article.

References: California Education Code (specifically) 45308; Cal.Ed.Codes regarding Layoff & Reduction of Hours 45101, 45114, 45117, 45298; Educational Employment Relations Act; collective bargaining agreement.

Question: I have heard rumors that my department supervisor is recommending cuts in personnel. Can they just tell us one day that we have been laid off?

Answer: No. All classified employees, even probationary employees must receive at least a 60 day advanced notice of a proposed layoff. The notice must inform you of your bumping rights, if any and return rights. For more specific information about your layoff rights, read your contract or contact your Job Steward, Chapter President or Labor Relations Representative.

References: Education Code Sections 45117, 88017, Tucker v. Grossmont Union High School District (2008) 168 CalApp.4th 640

Pay upon Termination

Question: I was laid off as of the 15th of the month. The district payroll supervisor is telling me I must wait until the end of the month to get my check! I thought my check had to be issued within 72 hours of my lay off?

Answer: Sections 200 & 202 of the Labor Code require the payment of wages within 72 hours of an employee's termination or quitting. These sections do not apply to classified employees.

Education Code Section 45166 and 88165 (Community College) require that classified employees shall be paid... "On the last working day of the pay period or the month in which the employee was in paid status." This language would allow the district to wait until the regular payday to issue a final check. For more specific information about your pay, read your contract or contact your Union Steward, Chapter President or Labor Relations Representative.

Reference: Labor Code Section 220; Education Code Sections 45166, 88165