The Human Resources Division has determined there is a need to clarify the means by which employees who have been separated from employment pursuant to Civil Service Law Chapter 31, Section 39 because of lack of work, lack of money or abolition of positions may be recalled to work in either their own or another department. The order of appointments made subsequent to recalls is also being clarified.
Order of Recall
The sequence of recall is as follows:
- Reinstatement to one’s former department under the provisions of Law Chapter 31, Section 39
- Reemployment under the provisions of Law Chapter 31, Section 40
Permanent employees who have been separated from permanent civil service positions because of lack of work, lack of money or abolition of positions have the right to be reinstated in the same unit and in the same or similar positions to those formerly held if positions become available at any time within ten years from the effective date of their separation. Such reinstatements must be effected before appointments are made to the title through any other means, including issuance of a reemployment list or certification from an open competitive eligible list.
Permanent employees who have been separated from permanent civil service positions because of lack of work, lack of money or abolition of positions have reemployment rights for a period of two years. The name of such employees will be placed by the Personnel Administrator on a statewide reemployment list for the title previously held by those employees.
Order of Appointments
Subsequent to exhausting recall procedures through reinstatements under Section 39 and use of the reemployment list pursuant to Section 40, the order of appointments is as follows:
- Disability Retirees returning to work
- Transfers pursuant to Law Chapter 31, Section 35 or Reinstatement to one’s former department pursuant to Law Chapter 31, Section 46.
- Appointments from the intermittent or reserve force (where applicable).
- Appointments from eligible lists.
Disability Retirees returning to work
Chapter 306 of the Acts of 1996 provides for automatic reinstatement of an employee after clearance by the medical panel.
Appointing authorities no longer have discretion as to reinstatement because retired members cleared by a medical panel are automatically to be reinstated, White v. Boston, 428 Mass. 250, 254 (1998).
In Sullivan v. Brookline, 435 Mass. 353 (2001), the Supreme Judicial Court determined that an individual who has been retired on disability benefits for longer than five years must go through a two-step process before returning to work:
• A regional medical panel must declare that the individual’s condition has changed and he or she is no longer disabled.
• The individual must complete a retraining program.
Central to the Brookline case was the Supreme Judicial Court’s interpretation of two laws:
Law Chapter 32, Section 8, paragraph 2, which requires cities and towns to reinstate individuals who are no longer disabled, and
Law Chapter 31, Section 39, which requires individuals who have been away from their job for more than five years to complete a retraining process.
A tenured employee may be transferred to a similar position in the same or in another departmental unit after request in writing for approval of such transfer made to the Administrator by the Appointing Authority or authorities for such unit or units and with the approval of the Administrator. The transfer request must include reasons, which, in the opinion of the Administrator, are sound and sufficient to show that the transfer will be for the public good and will not impose unreasonable hardship on such employee. A position shall not be considered similar if it has a title higher than that of the position from which the transfer is to be made or if the requirements for appointment to such positions are substantially different.
Permanent employees who become separated from their positions for reasons other than lack of work, lack of money or abolition of position (e.g. resignation) may be considered for reinstatement in either their former department. This consideration is at the option of the Appointing Authority and requires the approval of the Personnel Administrator based on whether or not the reinstatement would be in the public interest. Section 46 does not create any right to recall and it is inapplicable to recalls of persons separated pursuant to Section 39. No person shall be recalled under Section 46 unless the Appointing Authority has exhausted recall procedures under Sections 39 and 40.
Where applicable, original appointments to the lowest title in a regular police or fire force shall be made from among the permanent members of an intermittent or reserve force. Seniority for these original appointments is computed from the first date of full-time employment as a permanent employee on the regular force in conformity with the provisions of Law Chapter 31, section 33. No person shall be appointed under Section 60 unless the Appointing Authority has exhausted reinstatement and reemployment procedures under Sections 39 and 40.
Law Chapter 31, Sections 25, 26, 27, 58A, 59, 60A, 61A and 61B. Appointments from eligible lists shall be made in accordance with the provisions of Chapter 31, Sections 25, 26, 27, 58A, 59, 60A, 61A and 61B as well as the applicable Personnel Administration Rules.