Public school employees get a benefit not available to any other type of California employee. That is, the ability to go on the school district’s 39-Month Re-Employment List in the event the employee is too injured to keep working. While on paper the 39-Month Re-Employment List may seem like a perk, in reality the school district-employer will rarely, if ever, correctly follow the law and, as a result, completely undermine any protection the 39-Month Re-Hire List was designed to provide.
This article will explore the hidden secrets of the 39-Month Re-Employment List.
What is a 39-Month Reemployment List?
As a refresher, the 39-Month Reemployment or Re-Hire List is a legal process that mandates how public school districts must terminate employees who are perceived as too injured or sick to keep performing their jobs. This detailed process is outlined in California Government Code section 45195, and specifies that if a permanent employee exhausts all their sick leave, and is still unable to continue working, they are placed on a “reemployment list for a period of 39 months” or 3.25 years.
Employees who are placed on the list receive no pay, no benefits, and do not work for the district, but are, at least on paper, supposed to be given priority for rehire over other qualified candidates if and when they become healthy enough to work. While it does not matter how the employee initially became injured, the vast majority of employees placed on the 39-Month Reemployment List were initially injured at work and have ongoing workers' compensation cases.
What is supposed to happen before an employee goes on the 39-Month Re-Employment List?
Before the employee is ever placed on a 39-Month Re-Employment List the District-employer must correctly determine 1) that the employee is so injured that he or she cannot perform one or more essential job functions and 2) that no reasonable accommodations exist that would allow the employee to continue working in their current position. A reasonable accommodation is any type of workplace modification or a change in how the job is performed, that would circumvent the otherwise restrictive impact of the employee’s injury or illness (called a “disability”).
If the District fails to correctly answer either of these questions, disability discrimination has occurred which is a violation of the California Fair Employment and Housing Act. (Cal. Gov’t. Code § 12940(a)). Notably, in order to commit disability discrimination the District does not need to have a hatred or dislike of injured people. The District’s mere incorrect conclusions about the employee’s ability to do the job, with or without accommodations, makes them liable. As explained in a separate article which may be found here, school districts rarely, if ever, legally place employees on the 39-Month Re-Employment List.
What are the employee’s rights while on the 39-Month Re-Employment List?
Even in the case where the employee was lawfully placed on the 39-Month Re-Employment List, this does not end the District’s obligations to the employee. For the entire time that the employee is on the 39-Month Re-Employment List, the District must proactively identify and offer vacant positions to the employee (called “reassignment accommodations''). Districts never do this. As a result, even if disability discrimination was not initially committed upon the employee’s initial placement on the list, simply ignoring the employee for the 3.25-year duration of the 39-Month Re-Employment List would separately constitute a violation of the California Fair Employment and Housing Act.
Can the District just refer me to the open positions on its website?
A school district employer cannot simply refer the disabled worker to the open positions on its website. For over twenty years, California law has confirmed that a reassignment accommodation requires more than simply referring the employee to the employer’s website or bulletin board to see what jobs may be open. Rather, the employer must proactively inform the employee about any open, vacant, and funded positions that the employer has. The reason for this requirement is simple. Employers often know about upcoming job vacancies long before they are ever posted online for the general public. Employers must share this level of insider information with the disabled employee on the 39-Month Re-Employment List before the general public is ever made aware of it.
The ramifications of this legal requirement on a school district and employees on a 39-Month Re-Employment List are enormous. This is because school district employers, even small ones, will often post hundreds of jobs over the course of an employee’s stint on the 39-Month Re-Employment List. Many of those positions will require no certification, college degrees, or technical knowledge. The employee must be proactively notified about every single one of these positions. If the employee is qualified for the position, the disabled employee must be given preferential opportunity for the position over all other candidates. In other words, the employee cannot be forced to interview and openly compete with a non-disabled worker applying for the same position.
What if the District says the employee is unqualified to perform an open position?
School districts will often unnecessarily keep employees on a 39-Month Re-Employment List by inaccurately telling the employee they are unqualified to perform an open position. Sometimes this is because the employer and their insurance carrier or third party administrator have the strategic legal objective that the employee never return to work. If this occurs, the employee should ascertain what the employer means by “unqualified”. If the employee is deemed unqualified in the sense he or she lacks a required teaching credential, a lengthy period of education, or a government license the employee does not possess, this could be problematic for the employee.
More commonly, the employing school District will claim the employee is “unqualified” for a potential reassignment or transfer because the written job description has physical requirements that the employer believes the employee cannot satisfy. If this occurs, the employer is obligated to start a brand new interactive process with the employee, explore what accommodations might exist for the new position, and identify the precise job-related limitations it believes the employee cannot physically perform. Employers never bother to do this.
Moreover, while written job descriptions can potentially be accurate, they are oftentimes inaccurate, outdated, or written by human resources officials who never actually performed the job. For example, minimum weight lifting requirements in job descriptions are frequently in direct conflict with workplace safety trainings that require and encourage the employee to get help lifting any amount of weight deemed too heavy by the employee. In other words, the interactive process for a potential reassignment should not fail or succeed based upon a written job description, especially a minimum lifting requirement.
Can a reassignment accommodation require the employee to take a pay cut?
If a reassignment accommodation is appropriate, the employer does not have to offer the same rate of pay or salary that the employee was earning in their former position. However, if taken of the 39-Month Re-Employment List via a reassignment accommodation, the public school employee will re-accrue extremely valuable health benefits and retirement service credits with CalPERS.
Have you been placed on a 39-Month Re-Rehire List? Do not give up. Contact the Law Office of Brian Mathias.