Terminating the Employment Relationship

A county or district’s decision to offer ’37 Act golden handshakes is not subject to bargaining under the Meyers-Milias-Brown Act. 319

L AYOFFS

Section 6

A layoff is yet another way an employer may end the employment relationship with an employee. Despite the direct and indirect costs, as well as the legal and practical concerns they raise, layoffs are often unavoidable in today’s climate of budget crises and the long-term uncertainties of local government financing. In order to protect against liability arising from layoffs, the same three basic principles an agency should apply to other types of employment separations also apply to a layoff: (1) comply with the rules; (2) have documents that support the decision; and (3) treat everyone the same. A. L AYOFF R ULES An employer must follow its internal rules regarding not only the circumstances that can prompt layoffs, but also the procedure to follow in implementing the layoffs. Failure to do so could result in a laid off employee successfully asserting a right to reinstatement, back pay and benefits for the period that they were improperly laid off. If that happens, the employer can lay off the individual again, in compliance with its internal rules. However, the error would be costly in terms of back pay and benefits, as well as legal fees. Of course, before an agency can comply with its rules and procedures, it must first have them in place. Having specific rules and procedures in place will prevent an employee or group of employees from later claiming that an agency manipulated the layoff procedure to achieve a specific result. B. D UTY TO M EET AND C ONFER O VER I MPACT OF L AYOFFS Government Code section 3505 sets forth the obligation to engage in collective bargaining and to “meet and confer in good faith” regarding “wages, hours, and other terms and conditions of employment.” Government Code section 3504 excludes from the scope of representation (and therefore from the scope of bargaining) matters related to the “merit, necessity, organization of any service or activity provided by law.” Unfortunately, there have been relatively few judicial interpretations of this statutory exclusion from the duty to bargain. Although the exercise of certain management rights may be outside the scope of bargaining, the impact or effect of such an exercise by management creates a duty to negotiate. In Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608 [116 Cal.Rptr. 507, 526 P.2d 971], the California Supreme Court cited with approval cases decided under the National Labor Relations Act that

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 92