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socrateaser
socrateaser, Lawyer
Category: California Employment Law
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Experience:  Retired (mostly)
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Last December I was promoted to an "acting position" because

Resolved Question:

Last December I was promoted to an "acting position" because the department had plans for a re-organization and did not wan to make the promotion permanent until that waas done. I have been working in the position since that time, and there has been no movement on the re-organization. This was a promotional position that I had previously tested for and was on the list for, in fact I took a competetive interview to move into the acting spot. Now I am being told that the re-org will happen this Spring but I will need to re-test to secure my current position. My question is, do I have any recourse here? It doesn't seem fair to have to re-test to keep a position that I have been in for over a year.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  socrateaser replied 1 year ago.
Hello,

If (1) the employer has a written set of rules under which promotions are applied for, considered and granted, (2) you had knowledge of the rules before you were promoted, (3) and the employer has violated those rules, then you would have recourse via a breach of contract claim against the employer. Otherwise, Cal. Labor Code 2922 controls and the employer can effectively do whatever it wants, which includes changing its decision, "at will": at any time, for any reason, or for no reason at all.

Note: if this is a government or union job, then you may have other rights based upon your union contract or through a grievance process concerning classified employment advancement (civil service). For any other employer, my answer is valid.

I realize that this probably isn't what you want to read, but the best I can do here is to save you time in looking for a legal resolution, where none may exist. Review your employee handbook and any other written policy guides concerningn promotions and see if you can find something that the employer may have done which violates those rules. If you find something, then you may have legal recourse.

Please let me know if I can be of further assistance.

NOTICE: If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!
Customer: replied 1 year ago.
That's what I was afraid of. It is a civil service job, but I don't think there is any recourse there. Thank you.
Expert:  socrateaser replied 1 year ago.
Actually, if it's a civil service job, then you could file a grievance and simply complain that it's "arbitrary and capricious" for you to be required to test for a job that you have successfully performed for the past year. In effect, you will be punished for no reason -- and that violates due process. So, you may find that if you push it until an administrative law judge has to make a decision after a hearing, that you may actually prevail.

I can't promise that outcome, but there is a chance, based on your stated facts.

Hope this helps.
socrateaser, Lawyer
Satisfied Customers: 34857
Experience: Retired (mostly)
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