Full Answer
What is permissive reinstatement?
It is the policy of the Department of General Services (DGS) to comply with rules and regulations governing permissive reinstatement by ensuring that any person seeking to permissively reinstate, must be eligible to do so.
Does CEA reinstatement have discretion?
Departments have total discretion on whether to fill a position with a permissive reinstatement subject to the restrictions listed above; this includes CEA reinstatements.
Is reinstatement a privilege?
Permissive reinstatement is a privilege and not a mandatory right, which allows a former employee the opportunity to be re-employed without having to re-compete in an examination. An eligible person may reinstate with any department to his/her former classification, a lower class in the same series, or to other class to which ...
When is a refusal to reinstate established?
Where a definite date of reinstatement has been agreed upon at the beginning of the leave, a refusal to reinstate is established if the Department or employee proves , by a preponderance of the evidence, that the leave was granted by the employer and that the employer failed to reinstate the employee to the same or a comparable position by the date agreed upon.
Is an employee entitled to the same position?
The employee is entitled to the same position or to a comparable position that is equivalent (i.e., virtually identical) to the employee's former position in terms of pay, benefits, shift, schedule, geographic location, and working conditions, including privileges, perquisites, and status.
Can an employee be reinstated during CFRA?
An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the CFRA leave period. An employer has the burden of proving, by a preponderance of the evidence, that an employee would not otherwise have been employed on the requested reinstatement date in order to deny reinstatement. As per (a) (1) of this section, this burden shall not be satisfied if the employee has been replaced or the employee's position has been restructured to accommodate the employee's absence.
What is a no rehire agreement?
Employment litigation settlement agreements often include a mutually negotiated “ no-rehire” provision by which the departing employee agrees not to seek employment with the company in the future. A recently enacted California law will require companies to refrain from including such provisions in most instances.
When does AB 749 become effective?
AB 749 is scheduled to become effective on January 1, 2020, and will apply only to settlement agreements entered into on or after January 1, 2020. California courts have previously held that overly broad no-rehire provisions are void under California Business and Professions Code Section 16600.
What is AB 749?
Nothing in AB 749 requires an employer “to continue to employ or rehire a person if there is a legitimate nondiscriminatory or nonretaliatory reason for terminating [the employment relationship] or refusing to rehire the person.”.
Is no rehire retaliation?
The Equal Employment Opportunity Commission (EEOC) also takes the position that including no-rehire provisions in settlement agreements may be considered unlawful retaliation, including for filing discrimination or harassment claims with the EEOC.
Can an aggrieved person enter into a settlement agreement?
Harassment exception. An employer and an “aggrieved person” are allowed to enter into a settlement agreement “restrict [ing] the aggrieved person from obtaining future employment with the employer, if the employer has made a good faith determination that the person engaged in sexual harassment or sexual assault.” “Sexual harassment” and “sexual assault,” for purposes of AB 749, follow the definitions established by existing California law. What constitutes a “good faith determination,” however, is not defined in AB 749. How and when those determinations should or must be made are also not addressed.
Can you reinstate your name on your employment list?
Your name cannot be restored to the employment list if you received a permanent full-time appointment. However, if your name was on a promotional list at the time of your separation, and you reinstate within six months of that separation, you may request that your name be restored to the promotional list.
Can a freeze on hiring be a temporary assignment?
A freeze on hiring may vary by classification, location, or department. You should also be aware that in addition to reinstatement, a department has the option of filling vacancies by transfer, appointment from the employment list, or temporary assignment, rather than by reinstatement.
Can you be reinstated to the same class if you were terminated?
If you were separated for failure to meet conditions of employment, you may only be reinstated to the same class when you meet the requirements, or you may be reinstated to comparable classes which do not require the same conditions of employment. (Persons terminated for cause have no reinstatement rights.) For more information on Eligibility after Dismissal, go here .
Can a department approve a permissive reinstatement?
A department is never obligated to approve a permissive reinstatement. Persons looking for reinstatement frequently find it helpful to attach a copy of their State civil service employment history to applications for employment.
Can you be reinstated to a full time job if you were separated?
You may be reinstated to a full-time job only if you previously held a permanent full-time position in the class or a comparable class.
Is reinstatement a mandatory right?
Reinstatement pursu ant to Section 19140 is a permissive reinstatement - not a mandatory right. If you were separated for failure to meet conditions of employment, you may only be reinstated to the same class when you meet the requirements, or you may be reinstated to comparable classes which do not require the same conditions of employment.
Who must serve a request to reinstate an appeal?
The request to reinstate the appeal must be served to all parties in the case, and the trial court BEFORE it is filed in the Court of Appeal. Learn more about how to serve a request to reinstate the appeal
How long does it take to reinstate an appeal?
The Court of Appeal only has jurisdiction – or legal authority – over a case for 30 days after the dismissal order. The Court of Appeal cannot extend the time to file a motion to reinstate your appeal.
What is a motion and other filing?
Motions & other filings – including motions to augment the record and motions to dismiss or reinstate the appeal
When can a respondent file a motion to dismiss an appeal?
The respondent can file a motion to dismiss the appeal any time after the appellant files a notice of appeal and before the case is submitted for decision after oral arguments. This document is filed by the respondent in the Court of Appeal. If a motion to dismiss an appeal is filed before the record is filed in the Court of Appeal, the respondent must include certain information listed in California Rule of Court 8.57 (a).
Who files the waiver of court fees?
Who files this form? Both the appellant and the respondent can ask the trial court and Court of Appeal to waive their court fees if they cannot afford to pay. This form is not served to other parties. It is only filed with the court.
How long can a court order be made?
If the issue in a motion is time sensitive, the court may give an order with a waiting period of less than 15 days. During the waiting period, other parties have an opportunity to challenge the request.
Can you serve documents electronically in California?
Serving documents to the trial court. The trial court may be served by mail and some trial courts may be served electronically. Always check with your trial court to see if they accept electronically served documents. Serving documents to the California Supreme Court.