THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: Saturday, July 9, 1994 TAG: 9407090221
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY TONI WHITT, STAFF WRITER
DATELINE: PORTSMOUTH LENGTH: Medium: 74 lines
The city is encouraging mid- and upper-level city employees whom it laid off last week to reapply, in many cases for less prestigious jobs at lower salaries.
But the laid-off employees won't be given preference over more qualified outside candidates, City Manager V. Wayne Orton said.
Because the employees would be new hires, their years of service with the city wouldn't count in determining their pay.
When the city eliminated 39 positions and laid off 35 employees, it already had 130 job vacancies, many of them in lower-level positions. Although rehiring laid-off workers into lesser jobs might be tough on employee relations, labor-law experts say it's legal.
Unless discrimination came into play, the experts said, Orton was within his rights. He could have fired all 35 employees at will, they said, and has no obligation to rehire them.
``There's a general employment-at-will rule that's been around since the late 1880s,'' said Daniel Levin, a lawyer who teaches employment law at the University of Colorado's school of business. ``The rule says an employer can fire you if you don't have a contract, for any reason - or no reason. Courts still cite that as a basic rule in almost every state.''
In Virginia, a right-to-work state, that is the rule.
``Employees at the federal, state and local level tend to have more protection than private because they are working for political entities,'' said Joan Dent, executive director of the Virginia Governmental Employees Association. ``But when you get to the position where they say this job is no longer needed, legally they are within their right. It's really unfortunate, but there's very little recourse for these employees.''
Dent said a common practice in state and federal government is ``bumping,'' in which senior employees avoid the ax by taking the jobs of less experienced co-workers.
In the state system, employees who are laid off also get preference over other candidates if new positions open up.
But the city decided not to allow bumping or use preferential rehiring.
Orton said he didn't think it would be more fair to bump other qualified employees.
One expert warned that the city should be careful in rehiring, especially since it is not offering preference to the workers it laid off.
``They have to make sure employees are not rehired in a discriminatory manner,'' said David A. Larson, who teaches employment discrimination and labor law at Creighton University's School of Law in Nebraska. ``The employees may want to look at that, because that's always a possibility.''
Larson said that if the city rehires only its younger employees or discriminates against a group, such as women or minorities, in rehiring laid-off workers, then employees might be able to overturn the original layoffs based on discrimination.
Orton said he has ``a firm commitment to provide employment to those employees'' who want another city job.
He said he is being as flexible as he can with employees who are close to retirement. ``Where I have administrative flexibility, I will use it,'' he said.
Orton has long said that the city has more positions than it needs.
With the latest cuts, he has eliminated a total of 177 jobs and estimates the cuts will save the city nearly $7 million a year.
``This was not a judgment that was made without careful consideration,'' Orton said. ``If you look at the world, it's entirely consistent with what's happened in places like the banking industry and the shipyard.'' ILLUSTRATION: City Manager V. Wayne Orton said the workers won't get priority
over more qualified outside candidates.
by CNB