45139.5.
(a) Notwithstanding any other law, except Section 45298, vacancies for part-time and full-time positions of an education employer shall be offered with priority to current regular nonprobationary classified employees who meet the minimum job qualifications of the position, or who could meet the minimum job qualifications before their start date, unless otherwise negotiated by the education employer and the exclusive representatives of the applicable employees. The education employer shall adhere to the following requirements:(1) The education employer shall provide all of its classified employees and their exclusive representatives notice of, and instructions for applying for, any new classified position at least 10 business days before the general public is authorized to apply for the position. In order to qualify for the right of first refusal to that position pursuant to this section, an employee must apply for the position within 10 business days of the notice. The education employer shall not offer the position to any applicant until that 10-day period has expired, and may only award the position in accordance with the requirements of this section. If no qualified, internal candidate applies for or accepts the new position within at least 10 business days after the education employer provides notice, only then may the education employer offer the new position to an external applicant.
(2) (A) An education employer shall grant the new position as a right of first refusal to a current regular nonprobationary classified employee who applies for the position and who meets the minimum job qualifications of the position or who could meet the minimum job qualifications before their start date. If there is more than one such applicant, priority among those applicants shall be determined in the following order:
(i) By seniority among applicants currently working in the same classification as the new position for whom the new position would represent an increase in hours or wages.
(ii) If there are no qualified applicants from the same classification, then among applicants in other classifications for whom the new position would represent an increase in hours or wages, and awarding the position among those applicants according to the education employer’s standard method of selection.
(B) In no case, except pursuant to Section 45298, shall the education employer select someone for an open position who is not currently employed by the education employer if there is at least one current regular nonprobationary classified employee who has applied for and would accept the position, and who meets its minimum job qualifications or could meet the minimum job qualifications before their start date.
(3) An employee who accepts a new assignment may elect to either add the hours for the new assignment to their current assignment, if feasible, or, if the new assignment is more hours than their current assignment, the employee may replace their current assignment with the new assignment. If the employee elects to add the new assignment to their current assignment and the hours for the new assignment overlap with the hours for their current assignment, the education employer shall provide reasonable modifications to the assignment schedules to allow the employee to work both assignments. This paragraph shall not be construed as to require an education employer to grant additional hours that would qualify the employee for overtime pay.
(b) An education employer shall accept a current part-time employee’s number of years of service with the education employer, regardless of the capacity in which they were earned, when that part-time employee applies for an additional part-time assignment that requires a certain number of years of service.
(c) Classified employees who work part-time assignments that equal the number of hours for a full-time assignment for the same education employer shall receive the same benefits as employees who work a full-time assignment.
(d) Classified employees shall not be retaliated against for either refusing a vacancy or accepting a vacancy.
(e) Notwithstanding subdivision (a), applicants shall not be offered a vacancy if the total of the regular hours of the two positions would require overtime pay or otherwise violate the federal Fair Labor Standards Act of 1938 (29 U.S.C. Sec. 201 et seq.) or any other state or federal law.
(f) This section shall apply to county offices of education, school districts, and joint powers authorities comprising county offices of education or school districts, regardless of whether the county office of education, school district, or joint powers authority comprising county offices of education or school districts has adopted the merit system.
(g) For purposes of this section, “education employer” means a county office of education, school district, or joint powers authority comprised of county offices of education or school districts.
(h) To the extent that this section conflicts with a provision of a collective bargaining agreement entered into by an education employer and an exclusive bargaining representative pursuant to Chapter 10.7 (commencing with Section 3540) of Division 4 of Title 1 of the Government Code, and that is in effect as of January 1, 2024, this section shall not apply to the education employer until the expiration or renewal of that collective bargaining agreement.
(i) (1) This section shall not apply to an employee who is in the process of completing a written performance improvement plan, who was previously involuntarily demoted from the same position as the vacancy, who has been suspended, or who is the subject of a pending disciplinary action for suspension or dismissal.
(2) This section shall not apply to confidential or management employees, as defined pursuant to subdivisions (c) and (g), respectively, of Section 3540.1 of the Government Code, nor to vacancies for confidential or management positions.
(j) This section does not supersede the rights provided to a person pursuant Section 45298.