Laid-Off Community College Employees Have Reemployment Preferences Over Both External and Internal Applicants

Category: Education Matters
Date: Jan 27, 2014 06:56 PM

Fernando Poveda was a director of outreach for Southwestern Community College District (District).  In June 2009, the District eliminated Poveda's position because of lack of work or funds.  Poveda became eligible for reemployment preference under Education Code section 88117.  He applied for more than eight positions with the District, but the District filled each of the positions with internal candidates.  The District did not open the positions to external candidates.

Poveda filed a petition with the trial court requesting that he be employed in one of the positions for which he applied, and requesting back pay.  The court denied Poveda's petition and Poveda appealed.

Education Code section 88117 states in part:  "A person laid off because of lack of work or lack of funds shall be eligible for reemployment for a period of 39 months as follows:  (1) The person's reemployment shall take preference over new applicants. . . ."  Poveda argued that the term "new applicants" applies to both internal and external applicants and, therefore, he should have had preference over both.  In contrast, the District argued that section 88117 only creates a reemployment preference over external applicants, not internal applicants.

In an unpublished decision, the California Court of Appeal interpreted the statute's plain language and concluded that a laid-off employee has preference over all applicants, both external and internal.  The Court refused to create a distinction between internal and external applicants in the statute where the Legislature chose not to do so.  In addition, the Court pointed to subdivision (b) of section 88117, which states in part:  "An employee who takes a voluntary demotion or a voluntary reduction in assigned time in lieu of layoff or to remain in his or her present position . . . shall be granted the same rights as persons laid off."  This language, according the Court, demonstrates that the Legislature intended to give the same reemployment preferences to current, voluntarily-demoted employees and laid-off employees.

The Court also examined its previous, related decision in Tucker v. Grossmont Union High School District (2008) 168 Cal.App.4th 640, in which it analyzed the parallel reemployment provision in Education Code section 45298 that applies to elementary and secondary schools.  In Tucker, the Court rejected the school district's argument that a laid-off employee only had reemployment preference for positions within the class from which he was laid off.  The Court held that such a "cramped" reading of the reemployment statute would contravene the Legislature's intent because school districts could simply eliminate the one position or class after laying off the employee in order to completely eliminate the reemployment preference.  Similarly, in this case, the Court held that creating a distinction between internal and external applicants would nullify the Legislature's intent to create reemployment rights.  Accordingly, the Court upheld the trial court's denial of Poveda's petition.


This is an unpublished case and therefore is not precedential for other decisions.  Nonetheless, this case is important because it reaffirms the plain language interpretation of reemployment preference statutes.  In Tucker v. Grossmont Union High School District, the Court held that the school district must afford laid-off employees preference for reemployment in a position for which they are qualified, even if not in the same class as the employee's previous position.  Similarly, here, the Court held that the school district must afford laid-off employees reemployment preference over both external and internal applicants.  This means that districts may not open positions only to internal candidates without giving reemployment preference to laid-off employees on the reemployment list.

Poveda v. Southwestern Community College Dist. (2014) 2014 WL 185989 (Not officially published).

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