Seniority Rosters

With so many layoffs happening, it is a good time to review the salutary features of seniority lists. Under civil service law and in most labor contracts, layoffs are done by reverse seniority, so the newest employees are laid off first. This makes close reference to a seniority roster essential, for it is at this time that ambiguity in the hiring dates can affect those who leave and those who stay. For example, consider the client who was hired and fired before completing his probation period. Later he was hired by another department and worked there for many years. Then, he was laid off without his employer’s taking into account his earlier employment. If such employment had been counted, he would not have been laid off.

To avoid such questions coming up at the last minute, civil service law clearly requires that the seniority roster be posted:

G.L. Ch.31, §67: “Each appointing authority shall submit to the administrator, on or before March first of each year, a list of civil service employees in its department as of January second of the same year. Such list . . . shall be made under the penalties of perjury, shall specify the series and title of the position of each such employee and the seniority of such employee as determined pursuant to section thirty-three
“Each such appointing authority shall sign such list and post it forthwith in all areas under its control where five or more civil service employees begin their tour of duty. Such list shall be so posted immediately after it is submitted to the administrator so that it may be inspected during a reasonable period before May first of the year it is submitted. The date of posting such list shall appear on the list which shall remain posted for one year after such date of posting...”

There are criminal penalties for neglecting this duty.

For employees the advantages of access to this list are to catch mistakes and to resolve such mistakes directly with the employer. Where an employee is laid off without having had access to a posted list, and if the layoff is appealed, the employee should always allege the violation of Section 67 if layoff selection is an issue. If the appeal can succeed for other reasons, the violation of Section 67 can be argued for attorneys’ fees and criminal penalties, which might be enough to persuade the employer to settle early.

It seems that employers do not like to post these lists where there are many provisional employees because it might prompt those provisional employees to ask for examinations. It also holds up the civil service employees as having an advantage. However, there is an important strategic reason for employers to post the seniority rosters: In negotiating with unions, employers usually find that public sector unions prefer layoffs to contract concessions, while the employer would prefer to pay less for the same number of workers. Perhaps the union hopes that the public will demand more employees, particularly in schools and in public safety. Perhaps the union believes it is more important to preserve historic contract gains so future employees will have well paying jobs with benefits not depreciated. If the soon-to-be-laid-off employees could see their names at the bottom of the lists, perhaps they would be more motivated to change the position of their union.

GG:msw (L046-02, 6/6/09 ver.)