Current through Register 2024 Notice Reg. No. 38, September 20, 2024
(a) This section applies to Appellants:
(1) who are entitled to salary pursuant to
Government Code sections
19584,
19180,
19253.5,
and
19585;
and
(2) whose appeals with the
board resulted in a final board decision:
(A)
revoking or modifying Appellant's adverse action;
(B) restoring a rejected probationer to his
or her position;
(C) revoking or
modifying a medical demotion, transfer, or termination; or
(D) revoking or modifying a non-punitive
termination, demotion, or transfer.
(b)
(1) Any
Appellant described in subdivision (a) may file a claim with the board for back
pay, if Respondent has not restored the Appellant's salary, with appropriate
interest, and, if appropriate, the reinstatement of all relevant benefits.
Appellant shall, consistent with section
52.4, serve Respondent with a copy
of a back pay claim.
(2) Any
Respondent that is a party to a proceeding in which the board has directed the
payment of appropriate salary, benefits, and interest to an Appellant described
in subdivision (a) may file a request for a back pay hearing, in the event that
the Respondent and the Appellant are unable to agree to the salary, benefits,
and interest, if any, due to Appellant. Respondent shall, consistent with
section 52.4, serve Appellant with a copy
of the request for back pay hearing.
(c) A claim for back pay or a request for
back pay hearing shall include:
(1) A
description of any salary for which Respondent has reimbursed Appellant,
including the total dollar amount of salary and the time period for which the
salary is being reimbursed;
(2) A
description of any benefits for which Respondent has reimbursed Appellant,
including the total dollar amount of benefits and the time period for which the
benefits are being reimbursed;
(3)
A description of any interest for which Respondent has reimbursed Appellant,
including the rate, the total dollar amount of interest, and the time period
for which the interest is being reimbursed;
(4) A description of any salary which remains
unpaid by Respondent, including the total dollar amount of unpaid salary and
the time period that corresponds to the unpaid salary;
(5) A description of any benefits which
remain unpaid by Respondent, including the total dollar amount of unpaid
benefits and the time period that corresponds to the unpaid benefits;
(6) A description of any interest payments
which remain unpaid by Respondent, including the total amount of unpaid
interest, the rate that Respondent should have paid, and the time period that
corresponds to the unpaid interest payments;
(7) A description of what, if any, other out
of pocket expenses remain unpaid by Respondent, including the total dollar
amount of unpaid expenses and the time period that corresponds to the unpaid
expenses; and
(8) A statement of
any other issues that remain unresolved between Appellant and
Respondent.
(d) Within 45
days of receipt of a back pay claim, Respondent or Appellant shall file an
answer to the back pay claim or request for back pay hearing filed by the
opposing party. The answer shall include:
(1)
A description of any salary for which Respondent has reimbursed Appellant,
including the total dollar amount of salary and the time period for which the
salary is being reimbursed;
(2) A
description of any benefits for which Respondent has reimbursed Appellant,
including the total dollar amount of benefits and the time period for which the
benefits are being reimbursed;
(3)
A description of any interest for which Respondent has reimbursed Appellant,
including the rate, the total dollar amount of interest, and the time period
for which the interest is being reimbursed;
(4) An explanation for why Respondent has not
paid Appellant additional salary which Appellant claims he or she is owed, if
applicable;
(5) An explanation of
why Respondent has not paid Appellant additional benefits which Appellant
claims he or she is owed, if applicable;
(6) A description of why Respondent has not
paid Appellant additional interest payments which Appellant claims he or she is
owed, if applicable;
(7) A
description of why Respondent has not paid Appellant the other out of pocket
expenses which Appellant claims he or she is owed, if applicable; and
(8) A statement of any other issues which
remain unresolved between Appellant and Respondent.
(e) A claim for back pay or request for back
pay hearing which meets all of the requirements of this section shall be
scheduled for an evidentiary hearing, as described in Article 6.
(f) Prior to the parties'
prehearing/settlement conference, as described in section
57.1, the Appellant and Respondent
shall meet and confer to determine the issues which remain unresolved between
the parties and the facts to which the parties can stipulate.
(g) Consistent with section
57.1, the ALJ conducting a
prehearing/settlement conference for a back pay claim or request for back pay
hearing shall instruct the parties who shall have the burden of proof for
contested issues. Instructions shall include the following:
(1) Appellant shall have the burden to prove
that he or she is entitled to the reimbursement of any salary and benefit
described in section
51.2, subdivision (i);
(2) Respondent shall have the burden to prove
that the back pay for an Appellant entitled to salary pursuant to Government
Code sections
19584,
19253.5,
or
19585
should be offset because Appellant earned, or might reasonably have earned,
salary during any period commencing more than six months after the initial date
of the suspension, demotion, transfer, or termination;
(3) Respondent shall have the burden to prove
that the back pay for an Appellant entitled to salary pursuant to Government
Code section
19180
should be offset because Appellant earned, or might reasonably have earned,
salary in private or public employment during the period the rejection was
improperly in effect; and
(4)
Respondent shall have the burden to prove that Appellant was not ready, able,
and willing to perform the duties of his or her position for any period of time
that the Appellant was subject to the improper action or
rejection.
1. New
subarticle 6 (section 61) and section filed 4-12-2013; operative 4-12-2013
pursuant to Government Code section
11343.4(b)(3)
(Register 2013, No. 15). For prior history of section 61, see Register 90, No.
22.
Note: Authority cited: Section
18701,
Government Code. Reference: Sections
19584,
19180,
19253.5,
and
19585,
Government Code.
