Terminating the Employment Relationship

To minimize the risk of part-time and temporary employees claiming that they are regular employees, these employees should be required to sign an acknowledgment indicating their at- will status, and agencies should follow the guidelines for preserving at-will status outlined above. Additionally, agencies should take great care to follow their own rules, ordinances and resolutions regarding part-time and temporary employment. The case of Jenkins v. County of Riverside 28 is instructive. In Jenkins , the County hired the employee as an office assistant and designated her as a “temporary” employee under the County’s rules. Initially, the employee was hired to perform a specific task. However, the County did not release her after she completed the task a few months later. Instead, the County kept the employee and assigned her to another department with other regular staff. For the next six years, the employee worked for the County under its temporary designation. During this time frame, the County regularly evaluated her performance and allowed her to work over the 1,000 hour ceiling specified in the County’s rules for temporary workers. However, the employee clearly realized she was temporary as evidenced by the fact that she applied for a “regular” position at least seven times during her six year temporary assignment. After six years of temporary employment, the County summarily terminated the employee without affording her Skelly rights (i.e. without notice and without affording either a pre- discipline meeting or a post-discipline appeal hearing) and without specifying a reason. The employee sued, alleging she could only be terminated for cause and was entitled to Skelly rights because she was a “de facto” regular County employee. She pursued both federal and state claims, ultimately culminating in conflicting decisions by the federal and state courts. The Ninth Circuit Court of Appeals agreed with the employee and held that the County’s designation should be overlooked because it ignored its rules regarding “temporary” workers and for all intents and purposes treated her as a “de facto” regular employee. The Ninth Circuit’s decision indicates that an agency may not be able to rely on its designation of an employee’s status alone. Agencies should take care to follow their rules and treat employees in accordance with the designation given. In the parallel state court action, the California Court of Appeal rejected the Ninth Circuit’s decision as a misconstruction of California law. Specifically, the Court of Appeal rejected the federal court’s characterization that the employee was deemed “temporary” simply because the County arbitrarily “said so.” According to the Court, the County’s designation of the employee as temporary was not an arbitrary post-hoc decision. On the contrary, the County’s salary ordinance, which expressly created both regular and temporary positions, had been in place beforehand. Because the authorizing legislation—the salary ordinance—provided for the classification beforehand, the County was entitled, under its constitutionally-granted legislative powers, to characterize the employee as temporary. Thus, the employee’s status as temporary was dependent entirely on the contents of the authorizing legislation and her longevity at the position was not enough to change her employment status.

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 25