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AB-2088 K–14 classified employees: part-time or full-time vacancies: public postings.(2023-2024)

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Date Published: 09/04/2024 09:00 PM
AB2088:v95#DOCUMENT

Enrolled  September 04, 2024
Passed  IN  Senate  August 29, 2024
Passed  IN  Assembly  August 30, 2024
Amended  IN  Senate  August 23, 2024
Amended  IN  Assembly  May 16, 2024
Amended  IN  Assembly  March 18, 2024

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill
No. 2088

Introduced by Assembly Member McCarty

February 05, 2024

An act to add Sections 45139.5 and 88039 to the Education Code, relating to classified employees.


LEGISLATIVE COUNSEL'S DIGEST


AB 2088, McCarty. K–14 classified employees: part-time or full-time vacancies: public postings.
Existing law requires county offices of education and the governing boards of school districts and community college districts, except those incorporating the merit system, to employ persons for positions not requiring certification qualifications or that are not academic, as applicable, and to classify those employees and positions, and requires that they be known as the classified service, as provided.
This bill would require these governing boards and county offices, including those incorporating the merit system and including certain joint powers authorities formed by them, to offer vacancies for part-time or full-time positions, as a right of first refusal for 10 business days, with specified priority, to current regular nonprobationary classified employees who meet the minimum job qualifications of the position at the time of application, as specified. The bill would require these employers, referred to in the bill as education employers, to adhere to specified requirements, including, among others, that they provide all of their classified employees and their exclusive representatives notice of, and instructions for applying for, any new classified position, and that they not offer the position to any applicant until after the position has been noticed for 10 business days. The bill would prohibit an education employer from discouraging, retaliating against, or prohibiting a classified employee from applying for a vacant or open position, and would expressly prohibit retaliation against classified employees for either refusing or accepting a vacancy. The bill would require education employers to give classified employees fair consideration for any position.
The bill would authorize an employee who accepts a new assignment to elect to either add the hours for the new assignment to their current assignment, if feasible, or, if the new assignment is more hours than their current assignment, would authorize the employee to replace their current assignment with the new assignment, and would require the education employer to provide reasonable modifications to the assignment schedules to allow the employee to work both assignments, as provided.
The bill would require an education employer to accept a current part-time employee’s number of years of service with the education employer, regardless of the number of hours worked each year while employed, if that part-time employee applies for an additional part-time assignment that requires a certain number of years of service. The bill would require that classified employees who work part-time assignments that equal the number of hours for a full-time assignment for the same education employer receive the same benefits as employees who work a full-time assignment. The bill would prohibit applicants from being offered a vacancy if the total of the regular hours of the 2 positions would require overtime pay or otherwise violate the federal Fair Labor Standards Act of 1938 or any other state or federal law.
Existing law requires a person laid off by a county office of education, school district, or community college district because of lack of work or funds to be eligible for reemployment for period of 39 months, as specified.
This bill would provide that its provisions do not supersede that reemployment requirement, do not apply to an education employer with a valid contravening collective bargaining agreement in effect on July 1, 2025, until the expiration or renewal of that agreement, and may be waived or modified by mutual agreement in a valid collective bargaining agreement, as specified. The bill would not apply to (1) an employee who is in the process of completing a written performance improvement plan, who was previously involuntarily demoted from the same position as the vacancy, who has been suspended, or who is the subject of a pending disciplinary action for suspension or dismissal, or (2) confidential or management employees or vacancies for their positions, as provided.
The bill would make all of its provisions operative on July 1, 2025.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 45139.5 is added to the Education Code, to read:

45139.5.
 (a) It is the intent of the Legislature that education employers and exclusive bargaining representatives bargain in their collective bargaining agreements whether they wish to create or explicitly waive a right of first refusal for classified employees.
(b) Notwithstanding any other law, except Section 45298, vacancies for part-time and full-time positions of an education employer shall be offered with priority to current regular nonprobationary classified employees who meet the minimum job qualifications of the position at the time of their application for the position. The education employer shall adhere to the following requirements:
(1) The education employer shall provide all of its classified employees and their exclusive representatives notice of, and instructions for applying for, any new classified position at least 10 business days before the education employer may offer the position to an external candidate. In order to qualify for the right of first refusal to that position pursuant to this section, an employee must apply for the position within 10 business days of the notice. The education employer shall not offer the position to any applicant until that 10-day period has expired, and may only award the position in accordance with the requirements of this section. This paragraph does not prohibit an education employer from posting the new position to the general public during the 10-day period.
(2) (A) An education employer shall grant the new position as a right of first refusal to a current regular nonprobationary classified employee who applies for the position and who meets the minimum job qualifications of the position at the time of their application for the position. If there is more than one such applicant, then the right of first refusal shall be granted to a qualified, internal applicant who is selected according to the method of selection from among multiple applicants that has been collectively bargained between the education employer and the applicable exclusive representative of those employees. If no such method is set forth in a valid collective bargaining agreement between the education employer and the applicable exclusive representative, then priority among those applicants shall be determined by seniority among applicants currently working in the same classification as the new position for whom the new position would represent an increase in hours, as determined by date of hire in the current job classification, regardless of number of hours, and if two or more such applicants have the same date of hire, then by drawing lots.
(B) In no case, except pursuant to Section 45298, shall the education employer select someone for an open position who is not currently employed by the education employer if there is at least one current regular nonprobationary classified employee employed within the same classification who has applied for and would accept the position, and who meets the minimum job qualifications of the position at the time of their application for the position.
(3) An employee who accepts a new assignment may elect to either add the hours for the new assignment to their current assignment, if feasible, or, if the new assignment is more hours than their current assignment, the employee may replace their current assignment with the new assignment. If the employee elects to add the new assignment to their current assignment and the hours for the new assignment overlap with the hours for their current assignment, the education employer shall provide reasonable modifications to the assignment schedules to allow the employee to work both assignments. This paragraph shall not be construed as to require an education employer to grant additional hours that would qualify the employee for overtime pay.
(c) If a part-time employee applies for an additional part-time assignment that requires a certain number of years of service, the education employer shall accept that current part-time employee’s number of years of service with the education employer, regardless of the number of hours worked each year while employed.
(d) Classified employees who work part-time assignments that equal the number of hours for a full-time assignment for the same education employer shall receive the same benefits as employees who work a full-time assignment.
(e) (1) An education employer shall not discourage, retaliate against, or prohibit a classified employee from applying for a vacant or open position, or retaliate against a classified employee for either refusing or accepting a vacancy.
(2) An education employer shall give classified employees fair consideration for any position.
(f) Notwithstanding subdivision (b), applicants shall not be offered a vacancy if the total of the regular hours of the two positions would require overtime pay or otherwise violate the federal Fair Labor Standards Act of 1938 (29 U.S.C. Sec. 201 et seq.) or any other state or federal law.
(g) This section shall apply to county offices of education, school districts, and joint powers authorities comprising county offices of education or school districts, regardless of whether the county office of education, school district, or joint powers authority comprising county offices of education or school districts has adopted the merit system.
(h) For purposes of this section, “education employer” means a county office of education, school district, or joint powers authority comprised of county offices of education or school districts.
(i) (1) This section shall not apply to an employee who is in the process of completing a written performance improvement plan, who was previously involuntarily demoted from the same position as the vacancy, who has been suspended, or who is the subject of a pending disciplinary action for suspension or dismissal.
(2) This section shall not apply to confidential or management employees, as defined pursuant to subdivisions (c) and (g), respectively, of Section 3540.1 of the Government Code, nor to vacancies for confidential or management positions.
(j) This section does not supersede the rights provided to a person pursuant to Section 45298.
(k) (1) To the extent that this section conflicts with a provision of a valid collective bargaining agreement entered into by an education employer and an exclusive bargaining representative pursuant to Chapter 10.7 (commencing with Section 3540) of Division 4 of Title 1 of the Government Code, and that is in effect as of July 1, 2025, this section shall not apply to the education employer until the expiration or renewal of that collective bargaining agreement.
(2) The requirements of this section may be waived or modified by mutual agreement pursuant to a valid collective bargaining agreement entered into by an education employer and an exclusive bargaining representative pursuant to Chapter 10.7 (commencing with Section 3540) of Division 4 of Title 1 of the Government Code, provided that the waiver or modification is explicitly stated in the agreement and directly references this section.
(l) This section shall become operative on July 1, 2025.

SEC. 2.

 Section 88039 is added to the Education Code, to read:

88039.
 (a) It is the intent of the Legislature that education employers and exclusive bargaining representatives bargain in their collective bargaining agreements whether they wish to create or explicitly waive a right of first refusal for classified employees.
(b) Notwithstanding any other law, except Section 88117, vacancies for part-time and full-time positions of an education employer shall be offered with priority to current regular nonprobationary classified employees who meet the minimum job qualifications of the position at the time of their application for the position. The education employer shall adhere to the following requirements:
(1) The education employer shall provide all of its classified employees and their exclusive representatives notice of, and instructions for applying for, any new classified position at least 10 business days before the education employer may offer the position to an external candidate. In order to qualify for the right of first refusal to that position pursuant to this section, an employee must apply for the position within 10 business days of the notice. The education employer shall not offer the position to any applicant until that 10-day period has expired, and may only award the position in accordance with the requirements of this section. This paragraph does not prohibit an education employer from posting the new position to the general public during the 10-day period.
(2) (A) An education employer shall grant the new position as a right of first refusal to a current regular nonprobationary classified employee who applies for the position and who meets the minimum job qualifications of the position at the time of their application for the position. If there is more than one such applicant, then the right of first refusal shall be granted to a qualified, internal applicant who is selected according to the method of selection from among multiple applicants that has been collectively bargained between the education employer and the applicable exclusive representative of those employees. If no such method is set forth in a valid collective bargaining agreement between the education employer and the applicable exclusive representative, then priority among those applicants shall be determined by seniority among applicants currently working in the same classification as the new position for whom the new position would represent an increase in hours, as determined by date of hire in the current job classification, regardless of number of hours, and if two or more such applicants have the same date of hire, then by drawing lots.
(B) In no case, except pursuant to Section 88117, shall the education employer select someone for an open position who is not currently employed by the education employer if there is at least one current regular nonprobationary classified employee employed within the same classification who has applied for and would accept the position, and who meets the minimum job qualifications of the position at the time of their application for the position.
(3) An employee who accepts a new assignment may elect to either add the hours for the new assignment to their current assignment, if feasible, or, if the new assignment is more hours than their current assignment, the employee may replace their current assignment with the new assignment. If the employee elects to add the new assignment to their current assignment and the hours for the new assignment overlap with the hours for their current assignment, the education employer shall provide reasonable modifications to the assignment schedules to allow the employee to work both assignments. This paragraph shall not be construed as to require an education employer to grant additional hours that would qualify the employee for overtime pay.
(c) If a part-time employee applies for an additional part-time assignment that requires a certain number of years of service, the education employer shall accept that current part-time employee’s number of years of service with the education employer, regardless of the number of hours worked each year while employed.
(d) Classified employees who work part-time assignments that equal the number of hours for a full-time assignment for the same education employer shall receive the same benefits as employees who work a full-time assignment.
(e) (1) An education employer shall not discourage, retaliate against, or prohibit a classified employee from applying for a vacant or open position, or retaliate against a classified employee for either refusing or accepting a vacancy.
(2) An education employer shall give classified employees fair consideration for any position.
(f) Notwithstanding subdivision (b), applicants shall not be offered a vacancy if the total of the regular hours of the two positions would require overtime pay or otherwise violate the federal Fair Labor Standards Act of 1938 (29 U.S.C. Sec. 201 et seq.) or any other state or federal law.
(g) This section shall apply to community college districts and joint powers authorities comprising community college districts, regardless of whether a community college district or joint powers authority comprising community college districts has adopted the merit system.
(h) For purposes of this section, “education employer” means a community college district or joint powers authority comprising community college districts.
(i) (1) This section shall not apply to an employee who is in the process of completing a written performance improvement plan, who was previously involuntarily demoted from the same position as the vacancy, who has been suspended, or who is the subject of a pending disciplinary action for suspension or dismissal.
(2) This section shall not apply to confidential or management employees, as defined pursuant to subdivisions (c) and (g), respectively, of Section 3540.1 of the Government Code, nor to vacancies for confidential or management positions.
(j) This section does not supersede the rights provided to a person pursuant to Section 88117.
(k) (1) To the extent that this section conflicts with a provision of a valid collective bargaining agreement entered into by an education employer and an exclusive bargaining representative pursuant to Chapter 10.7 (commencing with Section 3540) of Division 4 of Title 1 of the Government Code, and that is in effect as of July 1, 2025, this section shall not apply to the education employer until the expiration or renewal of that collective bargaining agreement.
(2) The requirements of this section may be waived or modified by mutual agreement pursuant to a valid collective bargaining agreement entered into by an education employer and an exclusive bargaining representative pursuant to Chapter 10.7 (commencing with Section 3540) of Division 4 of Title 1 of the Government Code, provided that the waiver or modification is explicitly stated in the agreement and directly references this section.
(l) This section shall become operative on July 1, 2025.