What is the 39-Month Re-Employment List?
The 39-Month Re-Employment List is a special termination procedure that only applies to public school employees. This includes teaching staff, called “certificated employees” as well as non-teaching staff, called “classified employees” (Gov’t. Code §§ 44978.1, 45195). A 39-Month Re-Employment List does not apply to every type of termination of public school employees, but only those employees who are terminated because of the employee’s inability to perform their job because of a medical condition. The medical condition does not have to be workers’ compensation-related, although this is frequently the case.
The 39-Month Re-Employment List is not to be taken lightly. Although school administrators and their defense lawyers claim otherwise, placement on the list is tantamount to an actual termination of employment for the employee. However, the public school employer must first correctly meet several requirements before placing the employee on the 39-Month Re-Employment List. The District’s failure to correctly comply with the law typically will constitute disability discrimination, the failure to provide reasonable accommodation, and/or a failure to engage in a timely and good faith interactive process (Gov’t. Code §§ 12940(a)(m)(n)). These are all violations of the California Fair Employment and Housing Act (“FEHA”) and expose the public school district-employer to extremely large legal claims at a jury trial where the employee can recover lost wages, benefits, human impact damages, and attorney fees.
The underlying employer-requirements include:
1) Correctly determining that the employee cannot perform the essential functions of the underlying position, even with reasonable accommodations. This is by far the biggest and trickiest employer-requirement.
2) Correctly determining that the employee has used up all possible forms of protected time off, called “exhaustion” of leave.
High and mid-level government bureaucrats often botch these requirements and violate the FEHA by placing employees on the 39-Month Re-Employment List who are fully capable of working with basic accommodations or even no accommodations whatsoever.
Assuming an employee has correctly been placed on the 39-Month Re-Employment List, the employee is supposed to be first in line to resume working any open position at the District for a period of 39 months, assuming the employee has the basic qualifications. During the 39-Month period, the employer is required to proactively alert the affected employee to openings that arise at the district, before those positions are publicly posted (Jensen v. Wells Fargo (2000) 85 Cal.App.4th 205, 261-262), The District cannot merely direct the employee to a list of open positions on its website or on EdJoin.com. School Districts never perform this latter requirement, which is yet another violation of the FEHA. These are the only benefits that the 39-Month Re-Employment List provides to the employee not available to a complete stranger who has never been employed by the district.
In reality, although the 39-Month Re-Employment List provides benefits on paper, school districts do not abide by the law and weaponize the procedure against sick or injured employees who are often fully capable of working with just minor or cost-free accommodations. Even worse, districts will block employees placed on the 39-Month Re-Employment List from returning by not contacting them about open positions, forcing them to interview with other candidates, or simply ignoring their future applications to return.
With that summary, here are the top six signs that a public school employee will be placed on a 39-Month Re-Employment List.
Sign Number 1: The Employee Got Hurt at Work and Has a Workers' Compensation Claim
Workplace injuries are governed by an area of law called workers' compensation, as well as the FEHA. Even though the workers' compensation system is called a “no fault” system and employers are mandated to have insurance coverage, school districts simply dislike when employees report workplace injuries and especially hate when the employee files any sort of workers’ compensation claim to get compensated for that injury.
This animosity towards employees with workplace injuries (called “industrially injured employees”) is because even small workplace injuries create an administrative headache and are expensive and time consuming to deal with. Moreover, most workplace injuries are viewed with skepticism by the District. Even though public employees are required to report their workplace injuries and can even be disciplined for failing to do so, school districts frown upon the underlying employee filing a workers’ compensation claim for their injury.
Compounding this bias is fact that public schools’ workers’ compensation insurance companies, also referred to as “third party administrators”, will encourage, incentivize, and even recommend the outright termination of public school employees who have filed a workers' compensation claims via placement on the 39-Month Re-Employment List. This is because injured employees are deemed a liability, are viewed as having a greater risk of re-injury, or are more prone to file future legal claims. Although insurance companies may also be sued under the FEHA for their unlawful involvement and influence in a termination, the danger is real to the employee (Gov’t. Code § 12940 (i); See also Raines v. U.S. Healthworks Medical Group (2023) 15 Cal.5th 268, 291). Even worse, workers’ compensation insurance companies are viewed with great deference by district administration and are often relied upon for legal advice when determining whether or not to accommodate an injured employee.
This existing danger of being placed on the 39-Month Re-Employment List is compounded if the employee has filed multiple workers’ compensation claims, if there have been multiple injuries, if the injuries are viewed as especially expensive, if the employee is over 55, or if the employee is perceived as being near retirement. Workers’ compensation insurance companies internally describe these employees as “targets” for termination.
For all of these reasons, the employee’s risk of ending up on the 39-Month Re-Employment List is heightened if he or she has a workers’ compensation claim.
Sign Number 2: The Employee Has Difficult Medical Restrictions
Under the FEHA, no employer is required to honor any and all medical restrictions, no matter what. Only accommodations that are “reasonable” must be provided to the employee and accommodations that are viewed as an “undue hardship” do not need to be provided (Cal. Gov’t. Code §§ 12940 (m) [requirement for only “reasonable” accommodations], 12926 (u) [“undue hardship defense”]). For this reason, when an injured employee has medical restrictions that are particularly restrictive, unusual, or difficult to accommodate, this greatly increases the chances of the employee ending up on the 39-Month Re-Employment List.
Examples of medical restrictions that are especially difficult to accommodate include:
Restrictions that would require the employee to work only part-time when the employee works a full-time job;
Restrictions that call for long medical leaves of absence or require more time away from work than the employee has accrued. See “Sign Number 3”, below;
Restrictions that categorically prohibit any one type of physical movement, no matter how slight. For example, restrictions that call for “no bending”, “no stooping”, “no kneeling”, “no use of knee”, “no walking”.
Restrictions that call for reduced stress in the workplace.
Restrictions that call for desk duty or seated work when the employee works a primarily physical job or has no white collar work experience or qualifications.
To be clear, many times restrictions such as the ones identified could be legally accommodated by the district. Moreover, the law requires at minimum a good faith interactive process with the employee to see if accommodations are possible (Gov’t. Code § 12940 (n)). However, these strict legal requirements are often ignored and do not stop the public school employer from falsely claiming that accommodations are not possible and summarily terminating the employee via the 39-Month Re-Employment List. This is because public school districts are typically wealthy and even districts in an alleged “budget crisis” have extremely large budgets, robust legal resources, and insurance. Moreover, school district human resources staff and superintendents of human resources are frequently uneducated in the FEHA and face no personal or professional risk for unlawful behavior, even when million dollar FEHA payouts result from their behavior. Simply put, public school districts do not care if the FEHA is violated and if the District gets sued.
To stay off the 39-Month Re-Employment List, employees should work very closely with their doctors to list only those medical restrictions that are strictly necessary. Medical restrictions or accommodations that would merely be efficient, nice, or convenient to the employee should not be included. Old restrictions that are no longer needed should be removed. The doctor should not list particular accommodations for those restrictions unless the doctor and employee know those accommodations can be provided. The employee’s doctor should be expressly told that the employee could be terminated if limitations are issued that cannot be accommodated. In the event the employee has lost medical insurance coverage, the employee should pay to see his or her old doctor out of pocket simply to obtain an updated and clarified note. Moreover, all efforts should be made to continue working with self-provided accommodations and simply bypassing human resources with any accommodation-related needs.
Sign Number 3: The Employee Is On a Long Leave of Absence
The FEHA expressly states that a medical leave of absence can be a form of potential reasonable accommodation for employees. Moreover, the Family Medical Leave Act (“FMLA”) and California Family Rights Act (“CFRA”) require that many employers provide employees with three months of protected time off work for a serious illness. Notably, however, it is illegal for the employer to place the employee on a medical leave of absence when other reasonable accommodations are available that would actually keep the employee working.
Unfortunately, public school districts are notorious for placing employees on unneeded leaves of absence when the employee could be working with basic accommodations or even no accommodations. This typically arises after an employer is provided a doctor’s note that contains work restrictions and then, after perfunctory review, the District unilaterally claims that the restrictions cannot be accommodated by any other means.
The danger of being placed on an unnecessary leave of absence is that even the largest of employers are not required to provide lengthy, let alone indefinite leaves of absence. This is the case even if the leave of absence is unpaid. Eventually, employees on lengthy leaves of absence (i.e. those longer than 3 months), will be sent a letter from the employer demanding that they return to work or otherwise face termination via the 39-Month Re-Hire List. In other words, when an employee is on a leave of absence, the clock starts ticking and the employee will eventually burn through all their protective leave making a termination the next sequential step.
For this reason, employees of public school districts should only go on a medical leave of absence if it is truly necessary to do so, meaning that no other accommodation would allow them to continue working. If employers incorrectly claim that accommodations other than a medical leave of absence are not available it is critical for the employee to insist on additional interactive process meetings, to object to the District’s position in writing via email, to assert that the district’s conduct violates the FEHA, and to obtain revised doctors notes as necessary. Moreover, an employment law attorney should be contacted by the employee at this juncture.
Employees of school districts are often left languishing on unnecessary leaves of absence for months, or even years. These are prime indicators that the employee will be placed on a 39-Month Re-Hire List.
Sign Number 4: The Employee Works as a Custodian, in Food Service, or as a Special Needs Aide
Employees working certain positions at California public school districts are far more likely than others to end up being unlawfully fired via placement on the 39-Month Re-Hire List. Those who are most likely to be unlawfully placed on the 39-Month Re-Hire list are custodians, employees working in food service, or special needs aides.
School districts keep statistics of what positions generate the most workers’ compensation and what positions create the most expensive claims. Naturally positions that are inherently physical in nature, such as a custodian, get injured more often and have more expensive workers’ compensation claims than a teacher or an office assistant. Moreover, employees in these positions are viewed and treated as readily replaceable and less likely to fight back.
Public schools will “target” specific positions for unlawful termination disguised as a legal 39-Month Re-Hire List placement. This is done because the employee is viewed as a liability, as more likely to file additional claims, and to place the employee in economic peril to get leverage for a low-ball workers’ compensation settlement.
Sign Number 5: The District is Vindictive or the Employee is Disliked by Superiors
Generally speaking, it is lawful to treat an employee differently, or even discipline or terminate the employee, because he or she does not get along well with others, because the employee has a bad attitude, or the employee has an awkward or unpleasant personality. While this danger is somewhat mitigated for an employee of a public school district, it is still far easier and less legally risky to discipline or terminate an employee for personality-based reasons than reasons that involve a protected characteristic, such as a health condition or need for reasonable accommodation.
Despite this, school principals, superintendents, and public school human resources staff falsely believe that it is more legally defensible to fire an employee for medical, disability, or accommodation-related reasons rather than personality-based reasons. In other words, public school employers view placement on the 39-Month Re-Hire List as a highly expedient method to terminate a generally disliked employee.
For this reason, public school employees with minor medical conditions that can be readily accommodated, or even have been successfully accommodated for lengthy periods of time, will be terminated via the 39-Month Re-Hire List for simply being disliked.
Sign Number 6: The Employee Has Been Told That He or She will Be Placed on the 39-Month List
Anytime a public school employee needs a reasonable accommodation for a medical condition, or the public school employer falsely believes an accommodation is required, the employee should assume that he or she is in potential danger of being placed on the 39-Month Re-Hire List. However, employees are sometimes expressly told this at interactive process meetings or are warned about this in writing.
Any public school employee who is given this warning should contact a wrongful termination attorney specializing in the areas of disability discrimination and reasonable accommodation right away.
Are you in danger of being placed on the 39-Month Re-Hire List? Contact the Law Office of Brian Mathias.
