Bill Text: CA SB411 | 2021-2022 | Regular Session | Amended

California Senate Bill 411 (Prior Session Legislation)

NOTE: There are more recent revisions of this legislation. Read Latest Draft

Bill Title: Public Employees’ Retirement System: employment without reinstatement.

Sponsorship: Partisan Bill (Democrat 1)

Status: (Passed) 2021-07-23 - Chaptered by Secretary of State. Chapter 136, Statutes of 2021. [SB411 Detail]

Download: California-2021-SB411-Amended.html

Amended IN Senate March 08, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Senate Bill

No. 411

Introduced by Senator Cortese

February 12, 2021

An act to amend ~~Section 3541.5 of the Government Code, relating to public educational employment.~~ Sections 21202 and 21220 of the Government Code, relating to public employees’ retirement.

LEGISLATIVE COUNSEL'S DIGEST

SB 411, as amended, Cortese. ~~Educational employment relations: Public Employment Relations Board: investigations: unfair practices.~~ Public Employees’ Retirement System: employment without reinstatement.

Existing law, the Public Employees’ Retirement Law (PERL), creates the Public Employees’ Retirement System (PERS), which provides pension and disability benefits to its members and prescribes their rights and duties. Existing law, the Public Employees’ Pension Reform Act of 2013 (PEPRA), prescribed various limitations on public employees, employers, and retirement systems concerning, among other things, work after retirement. PERL generally prohibits retired PERS members from working for an agency participating in the system without reinstatement in the system, unless that employment is otherwise specifically authorized. PEPRA also prohibits retirees from serving or being employed directly, or through a contract, with a public employer, as defined, in the same retirement system from which they receive their benefits, except as expressly permitted. Both PERL and PEPRA generally prescribe limits on the manner and duration that retired members may be employed without reinstatement. PERL requires a person who is employed in violation of its reinstatement requirements to be reinstated in the member category previously held and on the date on which the unlawful employment occurred. In these circumstances, PERL requires that a retired member reimburse the system for the person’s allowance received during the periods of the unlawful employment, to pay to the system employee contributions that otherwise should have been paid, and to contribute for associated administrative expenses, as specified. PERL requires employers in these circumstances to pay to the system the employer contributions that otherwise should have been paid and to contribute for associated administrative expenses, as specified.
This bill would eliminate the above-described requirement that a person employed without reinstatement in a manner other than authorized by PERL be reinstated, instead providing that reinstatement is permissive. The bill would make conforming changes and make specific reference to the duties of employees and employers regarding reinstatement after retirement in violation of PEPRA.
Existing law grants public school employees the right to form, join, and participate in the activities of employee organizations of their own choosing for the purpose of representation on all matters of employer-employee relations. Existing law establishes the Public Employment Relations Board, and gives the board specified powers relating to employer-employee relations, including the power to investigate unfair practice charges filed by an employee, employee organization, or employer. Existing law grants the board exclusive jurisdiction to make an initial determination as to whether the charges of unfair practices are justified, and, if so, what remedy is necessary, as specified.
~~This bill would make nonsubstantive changes to the latter provision.~~

Vote: MAJORITY Appropriation: NO Fiscal Committee: NOYES Local Program: NO

The people of the State of California do enact as follows:

SECTION 1.

Section 21202 of the Government Code is amended to read:

21202.

A person employed in violation of Section 21220 ~~shall~~ may be reinstated to membership in the category in which, and on the date on which, the unlawful employment occurred.

SEC. 2.

Section 21220 of the Government Code is amended to read:

21220.

(a) A person who has been retired under this system, for service or for disability, may not be employed in any capacity thereafter by the state, the university, a school employer, or a contracting agency, unless the employment qualifies for service credit in the University of California Retirement Plan or the State Teachers’ Retirement Plan, unless ~~he or she~~ the person has first been reinstated from retirement pursuant to this chapter, or unless the employment, without reinstatement, is authorized by this article. A retired person whose employment without reinstatement is authorized by this article shall acquire no service credit or retirement rights under this part with respect to the employment.

(b) Any retired member employed in violation of this ~~article~~ article, Section 7522.56, or Section 7522.57 shall:

(1) Reimburse this system for any retirement allowance received during the period or periods of employment that are in violation of law.

(2) Pay to this system an amount of money equal to the employee contributions that would otherwise have been paid during the period or periods of unlawful employment, plus interest ~~thereon.~~ thereon, if reinstated pursuant to Section 21202.

(3) Contribute toward reimbursement of this system for administrative expenses incurred in responding to this situation, to the extent the member is determined by the executive officer to be at fault.

(c) Any public employer that employs a retired member in violation of this ~~article~~ article, Section 7522.56, or Section 7522.57 shall:

(1) Pay to this system an amount of money equal to employer contributions that would otherwise have been paid for the period or periods of time that the member is employed in violation of this article, plus interest ~~thereon.~~ thereon, if reinstated pursuant to Section 21202.

(2) Contribute toward reimbursement of this system for administrative expenses incurred in responding to this situation, to the extent the employer is determined by the executive officer of this system to be at fault.

(d) If an employer fails to enroll, solely for the administrative recordkeeping purposes of the system, a retired member employed in any capacity, without reinstatement, within 30 days of the effective date of hire, the board may assess the employer a fee of two hundred dollars ($200) per retired member per month until the retired member is enrolled in those administrative aspects of the system.

(e) If an employer fails to report the pay rate and number of hours worked of a retired member employed in any capacity, without reinstatement, within 30 days following the last day of the pay period in which the retired member worked, the board may assess the employer a fee of two hundred ($200) per retired member per month until the information is reported.

(f) An employer shall not pass on to an employee any fees assessed pursuant to subdivisions (d) and (e).

SECTION 1.Section 3541.5 of the Government Code is amended to read:
3541.5.
The initial determination as to whether the charges of unfair practices are justified, and, if so, what remedy is necessary to effectuate the purposes of this chapter, shall be a matter within the exclusive jurisdiction of the board. Procedures for investigating, hearing, and deciding these cases shall be devised and promulgated by the board, and shall include all of the following:
~~(a)Any employee, employee organization, or employer shall have the right to file an unfair practice charge, except that the board shall not do either of the following:~~
~~(1)Issue a complaint in respect of any charge based upon an alleged unfair practice occurring more than six months before the filing of the charge.~~
(2)Issue a complaint against conduct also prohibited by the provisions of the agreement between the parties until the grievance machinery of the agreement, if it exists and covers the matter at issue, has been exhausted, either by settlement or binding arbitration. However, when the charging party demonstrates that resort to contract grievance procedure would be futile, exhaustion shall not be necessary. The board shall have discretionary jurisdiction to review the settlement or arbitration award reached pursuant to the grievance machinery solely for the purpose of determining whether it is repugnant to the purposes of this chapter. If the board finds that the settlement or arbitration award is repugnant to the purposes of this chapter, it shall issue a complaint on the basis of a timely filed charge, and hear and decide the case on the merits. Otherwise, it shall dismiss the charge. The board shall, in determining whether the charge was timely filed, consider the six-month limitation set forth in this subdivision to have been tolled during the time it took the charging party to exhaust the grievance machinery.
(b)The board shall not have the authority to enforce agreements between the parties, and shall not issue a complaint on any charge based on alleged violation of any agreement that would not also constitute an unfair practice under this chapter.
(c)The board shall have the power to issue a decision and order directing an offending party to cease and desist from the unfair practice and to take such affirmative action, including, but not necessarily limited to, the reinstatement of employees with or without back pay, as will effectuate the policies of this chapter.