The Top 6 Signs that You Will End Up on The 39-Month Re-Employment List

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. 

We've Accepted Your Resignation: All About Protected Absences

Even employee-friendly California acknowledges that employers have a reasonable expectation that their employees will show up to work as promised, be on time, and will not have excessive absences. Indeed, tardiness and absenteeism can readily serve as legitimate employer defense to employee claims of unlawful termination. Absenteeism or tardies can also cause a denial of benefits with the Unemployment Development Department (“EDD”). However, not all absences are created equal. 

What type of absences and tardies are protected?

Some absences and tardies cannot form the basis of a termination at all. In-fact, depending on the reason for the underlying absence, employees who have been fired for missing too much work can sue for significant damages in a wrongful termination case. It all depends on the underlying reason for the employee’s absence or tardy, and whether or not the employer had reasonable notice. Numerous reasons can create a protected absence or tardy, including jury duty, the death of a family member, civil service obligations with the national guard, and parent-teacher conferences. However, medical reasons for the employee or for an employee’s family member are by far the most common type of protected absence. 

Medical-related absences can range from anything between the common cold and missing work because of cancer. Even if the underlying health condition does not qualify as a “disability” for purposes of the California Fair Employment and Housing Act (“FEHA”) or a “serious medical condition” under the Family Medical Leave Act/ California Family Rights Act (“FMLA/ CFRA”) it can still be a protected absence for purposes of an unlawful termination. Moreover, there is not a specific legal cap on the total number of medical-related absences or tardies that can occur before they become unprotected, automatically allowing termination in all instances. The total number of protected absences and tardies depends on the circumstances of the employee, the employee’s position, and the size and resources of the employer.

Do I need to give my employer notice if I am late or absent?

Almost equally important as the purpose of the underlying absence, is that the employer has notice that the employee has taken an absence or is tardy for a protected reason. In other words, employers who have no clue why the employee is absent or late will not likely face legal liability for terminating an absentee employee, even if the underlying reasons for the absence were protected. For these reasons, it is often helpful for the employee to specifically and proactively inform the employer of any medical issues that are causing absences or tardiness. 

Moreover, legally adequate notice can take the form of a doctor’s note, a note or call from a spouse, or the employee herself. Notice does not have to be in writing, on a human resources department or company form, nor come from a doctor. Similarly, the employee is only required to give reasonable notice to the employer when they are absent or tardy for a protected purpose. Reasonable notice could be months ahead of time, for instance if the employee has a specific date for a surgery. Reasonable notice could also be no notice at all, for instance if the employee woke up violently sick. Lastly, under a legal concept called “constructive notice” an entire company or organization is deemed to be on notice if the employee’s lowest ranking supervisor was notified. 

Can my employer automatically fire me for missing a specific number of work days? 

No, not if any of the missed days are protected. An employment policy that disciplines or terminates an employee who has been absent or tardy a specific number of times is illegal if any of the underlying absences were for protected reasons. These policies are called, “no fault attendance policies.” Such policies are unlawful because they ignore that there are many situations where the employee cannot be punished for missing work. Despite being illegal for decades, no fault attendance policies are still prevalent. 

Can my employer say I resigned if I did not show up at work? 

Although decreasing in prevalence, employers will still frequently tell the employee that the employee has “resigned” if the employee did not show up to work, even if the absence was for a protected basis and the employee had no intention of quitting. This often is told to the employee in a letter from the employer that reads, in substance or affect, “We have accepted your resignation.” 

There is no legal authority in California for this practice. An employee’s involuntary termination, even if legally justified, does not become a voluntary resignation simply by the employer deeming it as such. Unfortunately, this practice is frequently used with the EDD in an effort to deny the employee unemployment benefits. Employers who engage in this practice risk exposure to both defamation and punitive damages.

Have you been fired for taking protected absences? Contact the Law Office of Brian Mathias. 

Employment Law Myths--BUSTED!! Myth: If I’m paid a salary, I’m not entitled to overtime.

Employers and employees frequently believe that if the employee is paid a salary, the employee is automatically disqualified from overtime. This is not the legal case at all.

For legal background, there are two methods of paying an employee. One is by salary, typically paid every two weeks, resulting in a set amount paid per year (ex: $60,000). The other is “hourly” where the employee is paid a wage for every hour worked (ex: $15.00 per hour).

Next, employees are placed into two legal categories or “classifications”. The first classification is called “non-exempt”.  A non-exempt employee is entitled to time-and-a-half for any hours worked in excess of eight per day or forty per week and other protections. The second employee classification is called “exempt”. Exempt employees are not entitled to overtime. If a properly classified exempt employee works 60 hours per week, they are not entitled to an additional twenty hours of overtime pay.

The process of properly classifying employees as “exempt” or “non-exempt” can be legally and factually intensive. It depends on a variety of factors. Most important is the employee’s actual job duties and what the employee spent 51% or more of their time at work doing. Other factors include the employee’s level of responsibility, the amount of discretion given to the employee to perform their job, whether the employee performs manual labor, and whether the employee manages others. One factor is whether the employee is paid hourly or by salary.

Employers often oversimplify the process and only look at the salary requirement, and ignore the other factors when classifying employees.

As an illustration, let’s take the case of Ann. Ann is 5-year assistant manager at the Santa Cruz grocery store, Veggies-R-Us. Ann makes a salary of $45,000. Even though Ann averages 12 hours per day and 60 hours per week, she is not paid any overtime.

Ann spends the majority of her day stocking the shelves at Veggies-R-Us and working as a cashier. Ann’s job as an assistant manager requires her to supervise lower-level employees, which takes about 20% of her overall time. However, Ann has no authority or input in the hiring and firing process of the employees she supervises. One day, Ann is fired on the mistaken belief that she stole a box of broccoli.  Ann then calls a lawyer complaining of wrongful termination.

Ann would not have a case for wrongful termination. (See my other article “What is Wrongful Termination?”). However, Ann would have a great case for employee misclassification and for unpaid overtime.

Ann spent more than 51% of her time stocking shelves and working as a cashier, both non-exempt activities under the California Labor Code. Only a fraction of her overall time was spent supervising other employees. Additionally, Ann did not have any true discretion or “independent judgment” over how lower-level employees were hired or fired.

While it’s true that Ann’s job title is that of “assistant store manager”, job titles are irrelevant in determining employee-classification and whether overtime is owed. Ann was not a true manager.

Veggies-R-Us will correctly argue that Ann was a “salaried employee”. However, paying Ann on a salaried basis is just one of many factors in determining Ann’s correct classification. Ann does not fall within any of California’s recognized exempt classifications.

Ann has a great case for overtime. She is entitled for up to three-years’ overtime (time-and-a-half) going back three years. That would be about $32.00 per hour for each hour of overtime worked, or $96,000 for the last three years. Ann is also entitled to a host of penalties, money for missed rest and meal breaks, interest on unpaid overtime. Ann has a case in excess of $125,000.

Are you a Monterey, Salinas, or Santa Cruz County employee like Ann who works long hours but receives no overtime pay? Contact the Law Office of Brian Mathias for a consultation.