General Counsel for Massachusetts' Human Resources Division
The state's Human Resources Division (HRD) offers those cities and towns covered by the civil service law a number of helpful resources to assist with layoffs and other related issues such as bumping and seniority rights.
At this time, most permanent civil service employees in municipalities are in the police and fire departments. There are 84 civil service fire departments and 169 civil service police departments in the Commonwealth.
Appointing authorities must base reductions in force on the employment status of individuals serving in the impacted positions. The basic order of separation is as follows: (1) employees appointed on an emergency basis; (2) individuals appointed on a provisional basis, regardless of their date of appointment, and always before any employees appointed from a civil service eligible list; (3) employees in temporary appointments, regardless of their date of appointment, and always before any permanent employees; (4) permanent part-time municipal employees in the order of seniority, but always before any permanent full-time employees; and (5) permanent part-time state employees are retained in preference to each of the above categories. In calculating a seniority date for a permanent part-time state employee, employment time is pro-rated and equated to full-time status.
If layoffs must be made from among employees holding full-time permanent appointments in the same title, they are made according to the employees' seniority within the departmental unit. Seniority is defined as the first date of permanent civil service employment after certification from an eligible list. When an employee holds permanent status in anything other than an entry level title, his/her seniority date is not determined by the date of appointment to the higher title, but by the original date of permanent appointment to a civil service position, unless that seniority date has been interrupted by breaks in service or a transfer, as defined in M.G.L. c. 31, § 33. This has been modified in some communities by several Special Acts, which require that seniority in grade be the determining factor. (Check with your town counsel to determine whether your town has passed such legislation.). If layoffs must be made from among full-time permanent employees in the same title, with the same seniority date, those layoffs must be made based on basic merit principles, as defined in M.G.L. c. 31, § 1. However, notwithstanding all other provisions, disabled veterans must be retained in employment in preference to all other categories of employees, including non-disabled veterans. M.G.L. c. 31, § 26.
Tenured employees are civil service employees who are employed either following an original appointment to a position on a permanent basis and completion of a probationary period, or a promotional appointment on a permanent basis. Before a tenured employee is laid off, the employee must be provided with written notice of separation by the appointing authority. The appointing authority has the obligation of ensuring that the employee actually receives the notice, even if the employee is on military or other leave. The employer must inform the employee of the employment action contemplated, give the specific reasons for such action, and provide a copy of M.G.L. c. 31, §§ 39-45 with the notice. The appointing authority must hold a full hearing concerning the reasons for layoff. If the layoff is contemplated because of lack of work, lack of money, or abolition of position, written notice of the time and place of the hearing must be given at least seven days before the hearing. After the hearing, a written decision of the appointing authority must be provided to the employee.
A tenured employee who has received notice of separation may, within seven days of receiving notice, file a written consent to demotion to a position in the next lower title or titles in succession in the official service or to the next lower title or titles in the labor service if there is an employee in those titles junior in seniority. An appointing authority may not extend the period for filing beyond seven days. Tenured employees who opt for demotion waive their rights to a hearing concerning their layoff before the appointing authority and the Civil Service Commission.
The termination of any employee working in a civil service position must be reported to the Human Resources Division. Separation of a permanent employee must be reported immediately to insure that the reinstatement and reemployment rights of such employees are protected. This is especially critical for employees separated as a result of lack of work, lack of money, or abolition of position.
Under M.G.L. c. 31, § 39, a permanent employee who was laid off from a permanent civil service position has the right to be reinstated to that position if it becomes available at any time within ten years from the effective date of the layoff. Reinstatement is made according to seniority in the departmental unit. Under M.G.L. c. 31, § 40, a permanent employee who was laid off from a permanent civil service position has reemployment rights for a period of two years. The name of such employee will be placed on a statewide reemployment list for the title that the person held permanently.
In 2008-2010, the Civil Service Commission released several decisions addressing layoffs based on lack of funds. Appointing authorities are given wide discretion in making decisions regarding elimination of positions, layoffs, and reorganization of its departments due to financial reasons. An appointing authority is reasonably justified in separating an employee from his/her position for a lack of funds upon a demonstration of a good faith belief that such separation was reasonably necessary as a cost-saving function. Once an appointing authority meets its burden of proof by articulating legitimate economic reasons for layoffs, the burden shifts to the employee to prove that the economic reasons were perpetual, and the layoffs were made in bad faith. Absent evidence that lack of funds is pretext for an improper motive, the Commission will not override a good faith determination by the appointing authority that a layoff is made for cost-saving purposes. Recent decisions in which the Commission upheld the Appointing Authority's decision to layoff employees due to lack of funds include: Rysz v. City of New Bedford (2009), Pike v. City of New Bedford (2009) and Amaral et al. v. City of Fall River (2009).
The Commission has also issued recent decisions regarding the issues of firefighter seniority ( Ponte et al v. Fall River (2009) and Estrella v. New Bedford (2009)) and bumping rights of those civil service employees in the labor service ( Almeida v. New Bedford School Committee (2009) and those civil service employees in the official service ( Tomashpol v. Chelsea Soldiers Home (2009)).
Anyone wishing to receive weekly updates from the Commission regarding recent decisions should email the Commission at email@example.com and put EMAIL ALERT in the subject line.
Editor's note: this article represents the opinions and conclusions of the author and not those of the Department of Revenue.
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