Mandatory Reinstatement

(Revised 6/2021)

Definition

A Mandatory Reinstatement right entitles an employee to return to their former position with all of the status and rights that they had before vacating the position. To have Mandatory Reinstatement rights, the employee must be in a circumstance covered by a reinstatement statute and meet all of the legal requirements specified for that particular type of reinstatement (e.g., prior status in general civil service).

Key Terms

Former Position

Government Code Section 18522 defines “former position” as either a or b outlined below:

a. A position in the classification to which an employee was last appointed as a probationer, permanent employee, or career executive, under the same appointing power where that position was held, and within a designated geographical, organizational, or functional subdivision of that state agency as determined appropriate by the board. 

b. With the concurrence of both the appointing power and the employee, a position in a different classification to which the same appointing power could have assigned such an employee in accordance with this part. However, the former position shall not include positions from which the employee has been separated through disciplinary action, rejected during a probationary period, terminated under Government Code Section 19889.3, or terminated, demoted, or transferred in accordance with Government Code Section 19253.5; or terminated on a nonpunitive basis under Government Code Section 19585.

*An employee has the right to return to their last appointed position as a probationer, permanent employee, or career executive, under the same appointing power where the employee held status. The placement may be within a designated geographical, organizational, or functional subdivision of the state agency as deemed appropriate by State Personnel Board.

Status

Employee “status” in civil service refers to the rights and privileges that employees gain from successful competition in an examination followed by an appointment to the class examined for and the assumption of its duties. Status rights include, but are not limited to, employee tenure, reinstatement, seniority, and leaves of absence. 

The term “status” is usually applied only to permanent or probationary employees or, in some cases, to other types of employees who have previously had permanent or probationary status. Employees serving under limited-term or temporary authorization appointments do not acquire status in a position or class from such appointments, although such service maintains the continuity of state service and thereby preserves previously acquired status rights. 

Probationer and Probationary Status

Government Code Section 18527 defines “probationer” as an employee who has probationary status. “Probationary status” means the status of an employee who has been certified and appointed from an employment list, or has been reinstated after resignation, or has been transferred or demoted but who has not completed the probationary period. 

Permanent Employee and Permanent Status

Government Code Section 18528 defines “permanent employee” as an employee who has permanent status. “Permanent status” means the status of an employee who is lawfully retained in their position after successful completion of the probationary period or job examination period under the Limited Examination and Appointment Program.

Career Executive Assignment

Government Code Section 18547 defines “career executive assignment” as an appointment to a high administrative and policy-influencing position within state civil service in which the incumbent’s primary responsibility is the managing of a major function or the rendering of management advice to the top-level administrative authority. Employees in such appointments serve in these positions subject to termination and at the termination of their appointment, may have a right of return under Government Code Section 19889.4.

Authority

California Code of Regulations (CCR), Title 2, Sections 548.150 to 548.155 and Government Code Sections 19140 to 19144 govern and define Mandatory Reinstatement.

Employees with Permanent Status

Government Code Section 19140.5 applies to permanent employees, or employees who have previously had permanent status and who, since receiving permanent status, have had no break in service due to a permanent separation. This section mandates that an employee who is terminated from a temporary or limited-term appointment, rejected during probation, or demoted from a managerial position, pursuant to Government Code Section 19590, shall be reinstated to the position they held at the time they accepted the appointment, provided there was no break in the continuity of state service and the reinstatement is requested within 10 working days after the effective date of the termination. 

Exempt

Government Code Section 19141 applies to employees in exempt positions who previously had permanent status in civil service. This section mandates that employees who vacate civil service positions to accept appointments to exempt positions shall be reinstated to their former position, in accordance with Government Code Section 18522, at the termination of the exempt appointment, provided the employee accepted the appointment without a break in the continuity of state service and the employee makes a written request to the appointing power to be reinstated to their former position within 10 working days after the effective date of the termination. For purposes of this section, if the appointing power to which the reinstatement is to be made and the employee agrees, the employee may be reinstated to a vacant position in any department, commission, or state agency for which the employee is qualified and which is at substantially the same level as their former position. 

Government Code Section 19143 mandates that at the termination of any temporary separation, the employee shall be reinstated to their former position. 

Career Executive Assignment
CCR, Title 2, Section 548.153 applies to employees who are terminated from a Career Executive Assignment (CEA) after completing at least 10 years of state service who request reinstatement, in writing, within 10 days of receiving notice of the termination of their CEA appointment. “Former position” is defined by &bhcp=1" target="_blank">CCR, Title 2, Section 548.150.

Policy

It is the policy of the Department of General Services (DGS) to comply with all legal requirements pertaining to Mandatory Reinstatements as defined above and to mandatorily reinstate employees who have reinstatement rights to their former positions. 

Process

The intent of the Mandatory Reinstatement provisions is to “make the employee whole” and to ensure that the employee does not lose previous civil service rights as a result of accepting another civil service appointment.

An employee’s Mandatory Reinstatement right must be honored by the appointing power upon the employee’s request within specified time limits. The reinstatement rights may be honored by offering any position that falls within the definition of “former position” that is applicable to the particular type of reinstatement in question.  If there is no vacant position available, the employee must still be reinstated to an appropriate position. Any overstaffing that occurs as a result of the reinstatement would be resolved through layoff or securing approval for a temporary misallocation.

The following reasons allow for temporarily separated employees to have mandatory reinstatement rights to their former positions:

• Employees returning from Training and Development assignments, and Temporary or Limited-term appointments with prior permanent civil service status
• Rejection on probation, with prior permanent civil service status
• Military leave
• Leaves of absence
• Disability retirement
• Non-industrial Disability Insurance (NDI)
• Industrial Disability Leave (IDL)
• Exempt appointments

At the termination of any temporary separation, the employee shall be reinstated to their former position as defined above.

Responsibilities

Employee

The employee is responsible for informing the appointing power, by way of notifying the Personnel Officer, of their intent to exercise Mandatory Reinstatement rights as soon as reasonably possible. 

• For permanent employees, or employees who previously had permanent status and who, since receiving permanent status, have had no break in the continuity of state service due to a permanent separation, the reinstatement must be requested within 10 working days after the effective date of the termination.  
• Employees in an exempt position who previously had permanent status in civil service and have had no break in the continuity of state service must make a written request to the appointment power to be reinstated to their former position within 10 working days after the effective date of the termination of the exempt appointment.
• Permanent, probationary, or exempt employees who begin active duty within 90 calendar days from the effective date of their long-term military leave or within 10 calendar days from the effective date of their short-term or emergency military leave and who want to return to their job after completing military leave must contact the department to request reinstatement within six months after termination of military service under their long-term military leave or within 10 days after termination of military service under their short-term or emergency military leave.

Department (Appointing Power)

When an employee is notified of their termination or rejection during probation, the department should also inform them of all reinstatement options they have, how to pursue each option, and the specific time limits for exercising the options. 

When an employee informs an appointing power of their intent to exercise their Mandatory Reinstatement right, the appointing power must determine the class of reinstatement and identify the actual position to which the employee will be reinstated. 

If the employee is being reinstated to a class other than that of the former position, the employee should be informed of the appointing power’s intention to do so as soon as possible. If there is a disagreement over the class of reinstatement, the appointing power should follow the involuntary transfer standards and seek necessary approvals. 

The appointing power shall document the reasons for the involuntary transfer, if applicable, and maintain the documentation pursuant to CCR, Title 2, Section 26. 

State Controller’s Office (SCO)

Provides the employment history information that is necessary to determine an employee’s reinstatement rights. 

Department of Human Resources (CalHR)

All layoffs, including those caused by reinstatements, are administered by CalHR, subject to the State Personnel Board (SPB) merit review and application of Government Code Section 19997.5. 

Mandatory transfers between locations, including those caused by reinstatement, fall under CalHR jurisdiction.