Lawmakers Okay Budget Bill Addressing Union Dues Collection and Communications about Membership Rights

June 2018
Number 29

California lawmakers have approved a budget trailer bill that imposes new obligations on public sector employers related to deducting union dues and fees from workers’ paychecks. Governor Jerry Brown signed Senate Bill (SB) 866 on the same day the United States Supreme Court barred the collection of mandatory agency fees that cover unions’ cost of providing services, which the Court deemed a violation of workers’ First Amendment free speech rights. (See 2018 CNB No. 27.)

The Governor signed the bill, which combines the language of several other pieces of pending legislation intended to protect public agency unions, on June 27, 2018. Like all budget bills, the provisions in SB 866 became effectively immediately.

Dues Processing

SB 866 would standardize dues processing requirements across public agency unions and would expand the requirements to include employees of the Judicial Council, and also public transit district employees who are not already covered by a specific collective bargaining law. The bill also covers municipal employees and both certificated and classified employees who work for public school and community college district employers.

SB 866 imposes explicit requirements on public agency employers and generally makes unions responsible for portions of the dues collection process. Specifically, the bill:

  • Authorizes employee organizations, bona fide associations and both current and retired public agency employees to request payroll deductions and requires employers to honor such requests.
  • Specifies that revocation of an authorization must be determined by the terms of the authorization and requires public employers to direct employee requests to cancel or change deductions to the employee organization.
  • Clarifies the period in which payroll deductions commence after the employee organization notifies the public employer that it has written authorization for the deductions.
  • Bars a public employer from requiring an employee organization to submit a copy of a written authorization before commencing payroll deductions, unless a dispute arises about the existence or terms of the authorization.
  • Requires unions to indemnify public employers against claims regarding dues deductions made in reliance on information provided by the union.
  • Permits public agencies to recover, from the dues and fees transmitted to unions representing most certificated K-12 staff and academic employees of community colleges, the actual reasonable cost of making the deductions. Fees transmitted to unions representing classified school and community college district employees must still be deducted free of charge.

New Employee Orientation

Additionally, the bill makes the date, time and location of new employee orientation sessions confidential. Under SB 866, only invited employees, union representatives and vendors contracted to provide services for the sessions may be given date, time and location information for orientation sessions. These new provisions are in furtherance of SB 119, which mandated union access to new employee orientation sessions and became effective on January 1. (See 2017 CNB No. 34.)

Employer Communication

The bill restates existing law that took effect January 1 that bars public employers from discouraging or deterring public employees or applicants from becoming or remaining union members and additionally prohibits public employers from discouraging or deterring employees or applicants from authorizing union representation or the deduction of union dues or fees.

SB 866 also subjects to the meet and confer process any mass communication regarding public employees’ right to support or join, or to refrain from supporting or joining, a union. If an agreement about the content of the communication is not reached, public employers must include a communication of “reasonable length” from the union representative with any communication they send regarding this right.

The Public Employment Relations Board (PERB) is granted jurisdiction for enforcing the bill’s provisions.

If you have any questions about SB 866, the new state budget or labor relations in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Dulcinea A. Grantham

Partner

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

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Supreme Court Rules Public Sector Union Agency Fees Are Unlawful

June 2018
Number 27

This news brief is intended for public school districts, including community colleges. For the Janus news brief intended for municipalities and special districts, click here.

Overturning a longstanding precedent, the United States Supreme Court has held in Janus v. AFSCME that public employees may not be compelled to pay mandatory agency fees, or “fair share” fees, to public-sector unions, because such fees violate the First Amendment.

The Janus decision will have a sweeping, nationwide impact on public sector labor unions. The Court’s 5-4 decision immediately affects laws in at least 22 states, including California, that currently allow public sector unions to charge and collect agency or fair share fees.

Background

Mark Janus is an Illinois public sector employee who sued the American Federation of State, County and Municipal Employees (AFSCME), arguing that a state law allowing the union to charge and collect fees from non-members violated his and other workers’ First Amendment rights.

The Supreme Court previously decided this issue in 1977 in the case of Abood v. Detroit Board of Education, then holding it was constitutional for public sector unions to collect agency fees from nonunion members to defray the cost of collective bargaining and other activities, provided nonunion members were not required to pay for a union’s political or ideological activities. The Court now holds in Janus that states and public-sector unions may no longer collect agency fees from nonconsenting employees.

The Court held that compelling employees to subsidize the speech of private speakers, including public-sector unions, violates the First Amendment, noting that “[c]ompelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned.”

Critically, “Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.” In anticipation of the ruling, California’s newly adopted Senate Bill (SB) 866, signed into law by the Governor on June 27, makes several changes regarding public employers’ deduction of union dues and fees. Among these is a requirement for public employers to rely on the representations of the union regarding an employee’s deduction authorizations. Given the Supreme Court’s holding, this provision of SB 866 potentially runs afoul of the First Amendment, as interpreted and applied in Janus.

Additional notable statements made by the Court in Janus include:

  • Unions can be effective even without agency fees, without which designation of a public-sector union as the exclusive representative still confers many benefits.
  • Representation of nonmembers, even without agency fees, furthers the union’s interest in keeping control of the administration of the collective bargaining agreement, since the resolution of one employee’s grievance can affect others.
  • Going forward, it would likely be unconstitutional for a public sector employer to adopt a collective bargaining agreement that discriminates against nonmember employees.
  • Individual employees who are not members of a union may potentially be required to pay for certain services of a union, such as representation at disciplinary proceedings.

Next Steps and Considerations for Public Agency Employers

1. Stop Agency Fee Deductions

The Court’s decision in Janus is effective immediately, meaning employees who are non-members cannot be charged agency fees. Accordingly, employers must stop deducting agency fees from the paychecks of public employees. Going forward, an employer may not deduct fees unless an employee clearly and affirmatively consents to the deduction before it is implemented.

SB 866 creates a layer of potential complication because it modifies the law to require public employers to rely on the representations of the union regarding an employee’s deduction authorizations. This likely leaves public agency employers with at least three potential options: (1) stop agency fee deductions immediately without communication with union leadership; (2) stop the agency fee deductions after providing a notice to union leadership as to the employees who the public agency believes to be agency fee payers and whose deductions will be halted with the July paycheck; or (3) stop the fee deductions after the union and public employer agree to the list of employees whose fee deductions will be halted, and rely on the new provisions of SB 866 requiring the union to defend and indemnify the employer in the event a fee payer brings suit to recover fees deducted subsequent to the issuance of the Janus decision.

To avoid future lawsuits, public agencies are encouraged to have their human resources and payroll departments work collaboratively with union leadership to identify employees who are agency fee payers and develop a strategy to ensure prompt compliance with Janus. For many public school district employers, working closely with their county office of education will be critical to accurately updating payroll records to ensure employees are no longer charged agency fees going forward.

2. Implement a Communication Plan

Public agency employers who have agency fee provisions in their union agreements should develop a communication plan to address the likely questions that will come from employees and unions in the days and weeks following this decision. Specifically, taking steps to identify a single point person to respond to questions regarding the impacts of theJanus decision will ensure cohesive and clear messaging and avoid the potential for managers and supervisors to inadvertently run afoul of laws prohibiting discouraging or deterring union membership. In developing these communication strategies regarding whether, and how, to communicate the Janus decision to employees, employers should remain neutral and mindful of applicable law, including SB 285, which prohibits employers from deterring or discouraging public employees from becoming or remaining members of a union, and SB 866, which restricts a public employer’s ability to communicate with employees about the Janus decision.

Specifically, under SB 866, any “mass communication” sent to employees or applicants concerning their rights to join or support or refrain from joining or supporting their union requires a meet and confer process with the applicable union. Any mass communication concerning the Janus decision will likely fall within this provision and requires the parties to attempt to craft a mutually agreeable content, or follow the alternate process of distributing two sets of mass communication: one from the employer and one from the union.

Public agency employers are further encouraged to provide an update on the case to their unrepresented managers and supervisors, along with governing board members, and to provide talking points in the event they are faced with questions about the Janus decision.

To assist our clients, we are developing a communication template. If you are interested in receiving this, please contact one of our offices.

3. Examine Collective Bargaining Agreements

After these immediate next steps are in place, in consultation with legal counsel, public agency employers should review their collective bargaining agreements to determine how the Court’s decision impacts current contract language, assess what articles are impacted by Janus, and determine whether any immediate action or negotiation is required.

While the Court’s decision may not immediately impact current dues-paying union members, some members could choose to opt out of union membership in the future as a result of the Court’s decision, in accordance with applicable collective bargaining agreements and membership agreement. To the extent membership in a union and attendant dues deductions are premised on an opt-out article or practice, wherein the employee is automatically in the union and automatically charged union dues unless he or she ops out, such provisions will need to be negotiated with the union to comply with Janus so that an employee clearly and affirmatively consents to union membership.

Related Bills

In addition to SB 866, please be aware that there are other bills pending in the California Legislature that address union dues and labor relations. Lozano Smith is tracking all of these pending bills and will provide updates if any are adopted by the Legislature and signed by the Governor.

Guidance Measures – Full Suite of Resources

Lozano Smith has partnered with leading associations and has also developed several training opportunities and resources to assist public agency employers in addressing new requirements and obligations. We invite you to download and register for any of the following:

  • Webinar: Join a panel of Lozano Smith attorneys for a live webinar on Friday, June 29. This interactive podcast will break down the Janus decision and SB 866 and offer a guide for implementation. Registration is open here.
  • Toolkit: Lozano Smith will be soon publishing an in-depth resource with answers to frequently asked questions, an implementation checklist, templates for communication, and more.
  • CASBO Workshop: The Northern Section Human Resources Professional Development Workshop Series will feature Dulcinea Grantham presenting a legal update exploring the impact of Janus. Registration is open here.
  • ACSA FAQ: Lozano Smith helped lead the development of a comprehensive overview specific to Janus and SB 866. This FAQ is available for download here.

For assistance responding to the immediate and long-term impacts of Janus, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Dulcinea Grantham

Partner

Gabriela D. Flowers

Senior Counsel

Erin M. Hamor

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Ninth Circuit Rules Employee’s Prior Salary Cannot be used as Basis for Wages

June 2018
Number 25

The Ninth Circuit ruled in Rizo v. Yovino that using an employee’s prior salary as a basis for establishing their initial salary is a violation of the federal Equal Pay Act.

The decision is based on a policy adopted by the Fresno County Office of Education, which determined a new employee’s initial salary by adding 5 percent to their previous salary. The Ninth Circuit found that this policy was impermissibly based on sex, in violation of the federal Equal Pay Act, because using previous salary to set new wages carries the risk of perpetuating a discriminatory wage disparity from the employee’s past employers.

Background

Aileen Rizo, the plaintiff in the case, was hired by Fresno County Office of Education as a math consultant after having been employed in Arizona as a middle and high school math teacher. Based on her low previous wages, Rizo was placed at step 1 of level 1 of the salary schedule. Several male math consultants, who previously worked in California, were hired after Rizo. Later, Rizo learned that she was being paid much less than her male counterparts and she filed a pay disparity complaint and subsequently sued the county office.

The federal Equal Pay Act prohibits paying female employees less than their male counterparts for similar work. There are four exceptions to this general rule, including when the difference in pay is based on a “factor other than sex.”

The county office argued that their policy was lawful because the wage difference was based on Rizo’s prior salary from Arizona, not because she is a woman, and therefore meets the catchall exception in the federal Equal Pay Act.

The Ninth Circuit disagreed, stating the Equal Pay Act’s catchall exception should not be used to continue sex-based wage disparities, counter to the primary purpose of the Equal Pay Act itself. The catchall exception should instead be read in light of the law’s surrounding context and legislative history to mean male and female employees can be paid differently based on a legitimate, job-related “factor other than sex,” such as the employee’s education, training, or experience. The Ninth Circuit also clarified that the decision would not prohibit continuing use of salary schedules, as long as an employee’s prior salary is not used to set an initial or promoted employee’s placement on the salary schedule.

This decision is consistent with Assembly Bill (AB) 168, which prohibits employers from asking job applicants for their salary history, as part of the Legislature’s effort to equalize reported discrepancies in pay between men and women. AB 168 went into effect on January 1, 2018. (See 2017 Client News Brief No. 68.)

If you have any questions about this case or need assistance revising your district’s salary schedule criteria, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Michael E. Smith

Partner

Joshua Whiteside

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

California Adds “Nonbinary” Gender Option to Identification Documents, Impacting All Public Entities

March 2018
Number 13

On October 15, 2017, Governor Jerry Brown signed Senate Bill (SB) 179, known as the “Gender Recognition Act,” which adds a “nonbinary” gender option to state driver’s licenses, identification cards, and birth certificates. Most of this bill’s provisions are set to take effect on September 1, 2018, including a provision allowing an individual to petition a California court to recognize their gender as nonbinary, which would then allow them to subsequently request a new birth certificate reflecting their gender identity.

Public entities will need to address the nonbinary gender option now available to employees and students on official documents. Job application forms will likely require revision to allow the indication of nonbinary gender. Training may be necessary to inform employees about the new law and to re-instruct them about responding appropriately to new job applicants or existing employees who identify with a nonbinary gender, which could be included as part of a public entity’s sexual harassment training. SB 396, also passed in 2017, requires employers with 50 or more employees to conduct training on harassment based on gender identity, gender expression, and sexual orientation. Further, school employees will likely need guidance
on how to address potential issues that may arise on campus regarding nonbinary persons.

SB 179 follows Assembly Bill (AB) 1266, made effective January 1, 2014, which allows students to participate in school programs and activities and use facilities consistent with their gender identity. While AB 1266 is often considered in relation to transgender students, the law itself refers to gender identity, which includes those identifying as nonbinary.

School districts, community college districts, and charter schools should update student forms to ensure the indication of nonbinary gender is available for the 2018-2019 school year. The California Department of Education, in its guidance on AB 1266, states, “when a school district receives documentation that a legal name or gender has been changed, the district must update the student’s official record accordingly.” This would apply to all official student records including a gender designation, including but not limited to enrollment and registrations forms, IEPs, 504 plans, report cards, and transcripts. Districts should also contact their electronic student information system providers to ensure electronic systems are updated accordingly in advance of the 2018-2019 school year.

If you have any questions about the implementation of SB 179, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Dulcinea A. Grantham

Partner

Sarah L. Garica

Partner

Joshua Whiteside

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

When Politics and Walkouts Come to the Workplace: Considerations for Teachers, Superintendents, and Governing Boards

March 2018
Number 8

The February 14 mass shooting at Marjory Stoneman Douglas High School has inspired a groundswell of political activism at K-12 schools across the country. Lozano Smith previously reported on considerations and implications of student activism surrounding this issue. (See 2018 Client News Brief No. 7.) School districts must also consider if and how to regulate and respond to employee speech surrounding the gun control debate and other controversial topics. Additionally, governing boards should consider the legal and political implications of engaging in speech on these types of hot-button issues.

Public schools face a difficult balancing act: how to preserve government neutrality and an employee’s First Amendment rights while fulfilling their core mission of education. Similarly, a public employer’s response to employee speech and activism is highly dependent on specific facts, and may take various forms.

Governing Board Speech Rights

School boards may take political positions, as long as they do not support a candidate or ballot measure. Individual board members may also make political statements, as long as they identify their expression as reflecting a personal viewpoint, and not the viewpoint of the governing board. Aside from any legal issues, taking a position on a controversial topic could result in both positive and negative reactions from the local community. Alternatively or in addition to taking a position on a topic of concern, governing boards can facilitate discussions about local solutions to serious problems like school safety in order to engage the staff, students, parents, and stakeholders without alienating the community.

Superintendent Speech Rights

Like board members, superintendents also should identify when they are speaking on a political issue in their personal capacity or in their capacity as a representative of the district. Boards may also direct the superintendent to make public statements on an issue on their behalf. However, a superintendent should be wary of taking a position on any controversial matter without clear direction from the board.

Teachers’ Speech Rights

Any analysis of restrictions on teachers’ political activities and speech depends on several considerations. As a general rule, schools cannot discipline or penalize teachers based on political speech or activities outside of work. However, there are exceptions when a teacher is speaking as a public school employee rather than as a private citizen. Analyzing political statements or activities in the workplace is more complex.

Limited First Amendment free speech protections apply to political statements in the workplace. The U.S. Supreme Court held inGarcetti v. Ceballos that public employees do not have First Amendment protections when making statements pursuant to their official duties. In a case before the Seventh Circuit Court of Appeals,Mayer v. Monroe County Community School Corp., the court held that a public school teacher was not entitled to share personal political viewpoints during a classroom session on current events, as the teacher’s viewpoint departed from the curriculum adopted by the school system. Many school districts have board policies regarding controversial issues.

Teachers also may not walk out of the classroom during on-duty time. Public employees have no right to abandon their work for political purposes. However, during off-duty periods like lunch breaks, public employees generally can engage in political expression subject to certain exceptions based on the location and manner of the speech.

Another potential form of speech is a “sick-out” among employees. This occurs when more employees than usual take sick leave to make a political statement. Sick-outs implicate a number of employment-related First Amendment and collective bargaining issues. Like student walkouts, districts must respond to the conduct, rather than the statement, at issue. Public employers generally cannot discipline employees for engaging in speech or conduct protected by the Constitution. In a case concerning a sick-out to protest school funding concerns, a Michigan court held that speech promoting or encouraging a sick-out was protected by the First Amendment, and not a call to strike.

Districts should prepare contingency plans for days when a large number of teachers is expected to be absent to ensure proper staffing levels. Schools can also work with their labor partners, student protest leaders, and other parties to anticipate concerns and staffing impacts of walkouts or sick-outs. Moreover, districts can refer to their collective bargaining agreements for information about how to verify sick leave absences for their employees.

With the exception for board or board-authorized speech noted above, public agencies themselves should generally refrain from adopting political stances. Public resources, including services, supplies or equipment, cannot be used to support or condemn a particular ballot measure or candidate, and students and employees must be treated equally no matter their political opinion. This holds true in the classroom, where discussion of current events (and associated opinions) is inevitable. Teachers can facilitate a discussion, but insertion of a teacher’s personal opinions is inappropriate. For example, offering extra credit or encouraging attendance at a pro-gun control rally would also be official support for a particular viewpoint, and improper. However, encouraging students to attend political rallies or events irrespective of the subject matter or viewpoint is viewpoint-neutral, and may be consistent with some curricula.

Lozano Smith is prepared to help school districts navigate options and responses tailored to the specific needs and concerns of their particular school community.

If you have any questions about student walkouts, or student free speech rights in general, please contact an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Dulcinea A. Grantham

Partner

Gabriela D. Flowers

Senior Counsel

Tilman A. Heyer

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

School District Policy Prohibiting Active Strikers from Entering School Grounds Violated the First Amendment

February 2018
Number 6

A public school district’s policies prohibiting picketing and the display of signs and banners on District property violated the free speech rights of picketers and their supporters, the Ninth Circuit has ruled. (Eagle Point Educ. Ass’n. v. Jackson County School District No. 9 (9th Cir. Jan. 26, 2018, Nos. 15-35704, 15-35972) ___ F.3d ___.)

Background

Anticipating a teacher strike, the Jackson County School District No. 9 in Oregon adopted two resolutions that targeted would-be strikers and their supporters. One resolution prohibited picketing on any property owned or leased by the District, and also prohibited picketers from entering school facilities for any reason. The second disallowed signs and banners in or on facilities leased or owned by the District, unless written approval of the superintendent was obtained in advance.

The policies prevented striking teachers who were also parents from visiting their children at school on any day that they were in the picket line, and a striking teacher was turned away from attending a weekend flower sale at the local high school. A high school senior who drove onto campus with a sign on her windshield that read “I Support D9 Teachers” was prohibited from parking in the school parking lot, while several students were told not to come to school for a day after they voiced their support of the striking teachers on Facebook.

The union, a union member, and a student sued the District alleging that the policies violated their free speech rights under the First Amendment and the Oregon Constitution. Judgment was entered in their favor, and the District appealed.

In reviewing the case, the Ninth Circuit considered District facilities and school grounds to be non-public forums, meaning speech on the property could be restricted so long as the restrictions were reasonable and viewpoint neutral. But the court held that the District’s policies were not viewpoint neutral, adding that they were directly aimed at stifling disagreement with the District’s position on the strike. The court noted that the District made it known that they wanted to avoid sending “a garbled message to parents and taxpayers by allowing striking teachers access to school property to picket, chant, and display signs and banners.”

The District argued that the policies were reasonably necessary in order to keep school operating without issue during the strike, but the court disagreed, finding that the District offered no evidence to show that there was any risk of disruption or violence on campus due to potential picketing, signs, or banners. The court also noted that the restrictions were not tailored to address disruption of instructional time.

Takeaways

While this decision does not preclude public school districts from taking action to ensure normal school operations during a strike, it serves as a reminder that any restrictions imposed must be reasonable under the circumstances and must not be aimed at suppressing expressions of disagreement with district positions.

For more information about this ruling or about addressing student and staff free speech rights in general, please contact an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Dulcinea A. Grantham

Partner

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Retiree Work Hour Limitation Suspended for Fire and Mudslide Response Work

February 2018
Number 4

Governor Jerry Brown has suspended the 960-hour per year work hour limit for retired annuitants who assist California counties battling fires and mudslides. CalPERS announced Brown’s suspension of the rule in a January 29 Circular Letter.

Governor Brown issued a pair of executive orders lifting the work hour limit and other rules in an effort to expedite hiring of emergency workers and to streamline the recovery of communities devastated by the disasters. In addition to suspending the work hour limitation for retired annuitants who assist in disaster response and recovery in the affected counties, the emergency orders exempt retired annuitants hired to expedite disaster recovery from separation and break in service requirements and also, limits on the duration of emergency appointments, the Circular Letter says.

Generally, CalPERS retirees may only work 960 hours per year. Retirees who have reached normal retirement age may only be employed with such an employer after their first 180 days of retirement have passed and only during an emergency to prevent stoppage of public business or because they have skills needed to perform work of limited duration, unless an exception applies.

Retirees who have not reached normal retirement age must have a bona fide separation in service. Normal retirement age is defined by CalPERS as the benefit formula age for a position, i.e. age 55 for the 2% at 55 retirement formula. For a bona fide separation to have taken place, the employee must have a 60-day separation from employment and there must not be a pre-determined agreement between employer and employee to work after retirement.

The suspension applies to hours worked to expedite disaster response and recovery in the affected counties beginning on the date a state of emergency was declared and remaining in place until the declaration is lifted. The Governor issued state of emergency declarations on the following dates:

  • Napa, Sonoma, Yuba, Butte, Lake, Mendocino, Nevada and Orange counties: October 9, 2017
  • Solano County: October 10, 2017
  • Ventura County: December 5, 2017
  • Santa Barbara County: December 7, 2017

Per the Circular Letter, all other provisions related to working after retirement will continue to apply, including the requirement that local government agencies continue to enroll and report retired annuitants to CalPERS, the limits on hourly compensation rates and the prohibitions on other forms of compensation in addition to the hourly pay rate, including any benefit, incentive, or compensation in lieu of benefits.

Any agency employing a retired annuitant pursuant to the waivers must notify the director of the California Department of Human Resources. Notification may be sent via email to wildfirerecovery2017@calhr.ca.gov.

In its letter, CalPERS said it will continue to monitor work hours for retired annuitants covered by the Governor’s executive orders and will communicate to confirm when a violation of the work order limitation is found and if it is accepted under the exception in the executive orders. Anyone with questions about the waivers may contact CalPERS’ Customer Contact Center at (888) 225-7377.

For more information about the impact of the Governor’s executive orders or about pensions in general, please contact an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Thomas R. Manniello

Partner

Michele Ellson

Paralegal

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.