Final Non-Precedential Decision Adopted: April 25, 2002

By: Howard Schwartz, DPA Chief Counsel

Seven appeals of denial of out-of-class pay were consolidated and heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on March 7, 2002, at Sacramento, California.

Douglas Moffett, Employment Relations Specialist, Association of California State Supervisors (ACSS) represented appellants.

Mary Shaw represented the Department of Forestry and Fire Protection (DFFP). Marjorie Imai represented DPA. 1

Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.

ACSS filed the instant out-of-class grievance on behalf of all appellants with the DFFP on January 19, 2001.2 DFFP denied the grievance at the third level on approximately June 13, 2001. Appellants appealed the third level denial to DPA. On August 8, 2001, DPA issued a preliminary determination denying the claim. Appellants appealed the preliminary decision denying the claim and requested a hearing on September 7, 2001.

Government Code sections 19815.4(e) and 19818.16 provide for DPA to review and consider a denial of an out-of-class grievance from an excluded employee if the employee files a timely appeal. The time for filing an appeal is within thirty (30) calendar days after service of the preliminary determination. Appellants are excluded employees, and their appeal was timely filed. Therefore, this matter is properly before DPA for review.

Each appellant claims she worked out-of-class as a PSS II since at least December 1998. Some claimed they have worked out of class since 1990. As relief from working out of class, appellants originally requested they be compensated for their out-of-class work, be given career credit for their out-of-class work, and be upgraded in place without having to participate in a testing process. At the time of hearing, all but one of the appellants had been promoted to the PSS II class.3

Pursuant to Government Code section 19818.6, appellants are only entitled to reimbursement for out-of-class work for the 12-month period immediately preceding the filing of the grievance in January 2001. In this case, all appellants, with the exception of appellant seven, have already received partial compensation for this period because they were either formally placed in an out-of-class assignment or they received a promotion to the PSS II class within the 12-month period.

The DFFP’s headquarters is located in Sacramento. In the late 1980’s, the DFFP decentralized its business operation and established two region offices, a northern office and a Southern office. The Northern office is located in Santa Rosa and the Southern office is located in Fresno. Each of the region offices has a Regional Administrator who has overall responsibility for the personnel function within the region.

DFFP has approximately 22 ranger units located throughout the state. The number of employees assigned to the ranger unit varies. The number of permanent employees at the ranger units involved in this case ranges from approximately 61 to 200. During the fire season, the number of employees assigned to the ranger unit may almost double as firefighters are hired on a seasonal basis.

Each ranger unit has a Division Chief who is the Chief Administrative Officer for the unit. The PSS in the unit reports to, and is supervised by, the Division Chief. The PSS is the only human resources specialist specifically assigned to, and located in, the ranger unit.

The duties and classification of the PSS I in the ranger unit have been a topic of discussion and some controversy since at least 1990 when DPA sought input into changing the Personnel Assistant classification to the Personnel Services Specialist classification. The State Personnel Board (SPB) series specification for the PSS classes was last revised in January 1991 when the title changed.

In November 1996, the PSS I workload was on the agenda of a personnel meeting held in Sacramento. As a result of this 1996 meeting, a committee was formed to look into classification and workload issues. The committee consisted of Division Chiefs, Regional Administrators, and personnel and finance employees from various ranger units. At its March 26, 1997, meeting the committee recommended that revised duty statements be made. It also preliminarily recommended that PSS I’s in the ranger units be promoted to PSS II’s. Although the committee never formalized its recommendations, at least some PSS I revised duty statements were completed in December 1998. Some of these revised duty statements were submitted as part of the grievance package in this case. DFFP and DPA used these duty statements as a basis for evaluating appellants’ out-of-class claims.

PSS duties and classifications were again discussed at a DFFP meeting held on August 4, 1999. An issue memorandum regarding this meeting reflects a recommendation that PSS I’s be reclassified to Staff Services Analysts.

During negotiations of the Bargaining Unit 1 Memorandum of Understanding (MOU), which took effect on July 1, 1999, the California State Employees Association (CSEA),4 and the state identified fourteen (14) complex duties which could be used by state departments to clarify the existing PSS I and PSS II class specifications. The purpose of the clarification of these specifications was to “open the door” to allow more of the PSS I’s in the ranger units to be reallocated to the PSS II class. DPA issued these clarification standards on August 10, 2000, in Personnel Management Liaison Letter (PML) 2000-49.

DFFP analyzed the ranger unit PSS I positions based on the guidance criteria in PML 2000-49. It found that these positions met the requirements for the PSS II class. Therefore, all appellants, except appellant seven, were either placed in out-of-class assignments or promoted to the PSS II class beginning on or about October 1, 2000.

The classification of PSS I is one in a series of five Personnel Services Specialist classifications that are used by the state. Positions in these classifications apply State laws, departmental and control agency rules and regulations, and bargaining unit provisions to a variety of personnel transactions. The PSS I, is the entry level trainee, and journey level of this series. The PSS I may work either under close or general supervision. The PSS I performs difficult and complex duties in a variety of functional personnel transaction areas and may serve as a lead person with two or less subordinates.

The classification of PSS II is the advanced journey level within the Personnel Services Specialist classifications. The PSS II may be any “one person transaction operation that assumes full charge for all phases of transaction work.” Or, in entities with a Personnel Services Supervisor II or III as the highest level transaction position, the PSS II may perform the most difficult and complex duties as a “staff specialist.”

Factors affecting the allocation of a position to the PSS I or PSS II class include the variety and complexity of work, independence of action and decision, supervision received, supervisory responsibilities, and the level and amount of personal contact with employees and the public. In cases of borderline allocations, criteria such as widespread and numerous field offices; 24-hour operations; large seasonal operations; high turnover; high overtime; number of classes used; number of employees served; number of attendance reporting units; number of bargaining units used; the degree of independence and judgment required in resolving personnel problems; and the consequence of error are also considered.

The primary distinction between the PSS I and PSS II is that the PSS II assumes “full charge for all phases of transaction work.”

It was undisputed at hearing that the PSS II is a higher classification than the PSS I. During the relevant period, appellants received $3,519 when they were promoted to the PSS II class.5

In determining whether or not appellants’ assigned work was performed at the higher classification of PSS II, one must evaluate the kind and variety of duties performed and the relative amount of time spent performing the duties. Employees will be considered as working in a higher classification when they are performing the full range of duties of the higher class on a regular and consistent basis (at least 50% of the time).

Job descriptions listing typical duties of the appellants were introduced at hearing. The parties agreed that these descriptions accurately describe the functions performed by appellants both currently and during the relevant time period of this claim when they were in the PSS I class. Typical duties performed by the appellants include the following:

1. ACCOUNTING/ BUDGET/ AND COMPUTER LIASION FUNCTIONS

The PSS in the ranger unit enters, maintains, and monitors information for all permanent and seasonal employees in the unit in DFFP’s “PACMANS” program. The information in this system includes the employee’s name, phone number, address, social security number, birth date, number of dependents, station, supervisor, work week, position number, bargaining unit, salary, special pay, and benefits. The PSS also compiles labor distribution reports to assist in the reconciliation of all pay and benefits in master data bases and initiates journal vouchers where discrepancies occur. Monthly exception reports and employee master file updates are supplied to the headquarters accounting office.

The PSS in the ranger unit also monitors the status of the ranger unit’s personal services’ budget. She compiles this budget information and provides it to the Division Chief. She attends meetings with unit staff to discuss budget projections and to forecast future personnel budget expenditures.

The PSS compiles and audits reports for the Division Chief to use in the preparation of county billings and compiles year-end encumbrances for submittal to the headquarters accounting office.

She also participates on various statewide committees to aid in the development of computerized functions and acts as an information technology liaison with both independent contractors and personnel in other state departments.

Appellants’ one, two, three, five, and six report they spend approximately 25% of their time on these duties. Appellant four reports spending 20% of her time on these duties. Appellant seven reports spending 10% of her time in these areas.

2. SALARIES, ALLOWANCES, PAYROLL, AND PERFORMANCE REPORTS FUNCTIONS

The PSS in the ranger unit is responsible for identifying, monitoring, processing, and auditing base salary and allowances, and appropriate pay adjustments for each employee. The PSS identifies when pay adjustments such as Merit Salary Adjustment’s, longevity pay, education incentive pay, fire-mission pay, pay for performance, meal expenses or dock may be required. Once the appropriate allowances and payroll adjustments are identified, the PSS completes the Personnel Action Request (PAR) and keys it into the State Controller’s (SCO) database. When warrants or other payroll documents come to the unit, the PSS verifies the document’s accuracy, distributes it and/or makes any required adjustments.

The PSS also tracks when uniform replacement allowances are due for both seasonal and permanent employees, initiates and processes the required form at the appropriate time and keys the required information into the SCO’s system. The PSS monitors the timeframes for annual Individual Development Plans and/or probationary reports, prepares the appropriate documentation and sends it to the supervisor for completion. Once the documents are completed, the PSS I obtains any required signatures and is responsible for final processing and distribution.

All appellants report spending 20% of their time on these duties.

3. APPOINTMENTS, SEPARATIONS, TRANSFERS, AND POSITION CONTROL FUNCTIONS

The PSS is responsible for assuring that all unit employment appointments are made in accordance with existing state laws, rules, and relevant memoranda of understanding. The PSS initiates and completes hiring packages including up-to date organizational charts and duty statements for the hiring of new employees or the creation of new positions. The PSS requests employment certification lists from the region office, schedules interviews, and when applicable, may participate as a member of an interview panel. When an employee is hired, the PSS initiates and completes the required hiring documents and enters the data into the SCO’s data system. The PSS provides orientation information to new or returning employees and assists the employees in completing and understanding benefit options and appointment documents.

The PSS is also responsible for correctly documenting and processing employees that transfer or separate from the unit. She compiles separation packets and provides them to stations in the unit. When employee’s separate and completed documents are received from the stations; the PSS determines the amounts payable to or owed by the separating employee. After this determination, the PSS completes the required documentation and enters the information into the SCO’s data system. The PSS then verifies and logs monies that are paid and received. The PSS mails final warrants and employment status documents to the separated employee. When an employee transfers, the PSS mails the personnel files and other related documents to the receiving unit.

The PSS maintains a current roster of all coded positions within the unit, noting the history of employee movement in each position. She is also responsible for auditing, correcting, and maintaining the correct number of positions on the “Schedule 8.” This position listing is submitted to DFFP’s budget office and used to validate ranger unit employee positions and funding.

All appellants report spending 20% of their time performing these duties.

4. ATTENDANCE AND OVERTIME FUNCTION

Each month, the ranger unit PSS prepares and disseminates employee timesheets. The PSS verifies proper leave credits and use, overtime, and dock time and posts leave balances for each employee. The PSS advises the employee’s supervisor and the employee when discrepancies occur and she requests corrected time reports. She audits monthly attendance reports and 28-day work period overtime reports for accuracy and proper coding. She compiles pay information from the timesheets and keys this pay data into the SCO database. When warrants are received, she verifies the time and rate, corrects discrepancies and releases the warrant to the employee.

All appellants, except appellant four, report spending 15% of their time performing these duties. Appellant four reports spending 20% of her time in this area.

5. FIREFIGHTER I PROCESSING FUNCTION

The PSS receives all Firefighter I applications. She enters this information into the Firefighter I Applicant database and updates this information as required. She mails the Firefighter questionnaire to all prospective returning firefighters to ascertain if they will be returning for the current fire season. Upon return of the questionnaire, she assesses the diversity of the returning applicant pool and estimates the number of new hires to be made. The PSS coordinates the unit’s Firefighter interview process by scheduling the interviews and notifying the applicants. She keys the results of the interviews into the Firefighter I database and notifies the applicant of the results of the interview. She conducts the Firefighter selection meeting with unit station representatives and assists in identifying prospective employees. After the selection is made, she makes job offers to appropriate applicants and coordinates receipt and completion of the health questionnaire. The PSS notifies the new hire of when to report to work and of uniform requirements.

All appellants, except appellant seven, report spending 10% of their time performing these duties. Appellant seven reports spending 5% of her time performing these duties.

6. BENEFITS, WORKER’S COMPENSATION AND MEDICAL FUNCTIONS

The PSS is the Benefit Officer for the ranger unit. She disseminates benefit information to all employees and keeps them apprised of all changes. She initiates, completes, processes, and audits benefit enrollment and/or change forms for all types of benefits through various agencies including DPA, SCO, EDD, the Public Employee Retirement System (PERS), and the State Compensation Insurance Fund (SCIF).

The PSS initially receives all Employee’s Claim for Workers’ Compensation Benefits forms and mails the original forms to SCIF and copies to the Region Office. She acts as a liaison with SCIF, the injured employee and, in cases where the employee loses work time, with DFFP’s Region Office. She keeps in contact with the injured employee as he/she progresses through treatment and return to work. In some cases, the PSS works with the Division Chief and Region Office to identify light duty and or reasonable accommodations for the injured worker. The PSS works with the Region Office and SCIF to determine the number of lost and/or light duty days and keeps an active log of all injuries on the required Cal/Osha report for end-of-the-year submittal to the Region Office. The PSS also schedules perspective employees for pre-employment medical examinations and participates as required in obtaining and reporting emergency medical assistance.

All appellants with the exception of appellant seven report spending 5% of their time performing these duties. Appellant seven reports spending 25% of her time working in this area.

7. MISCELLANEOUS FUNCTIONS

The PSS performs a variety of other personnel-related duties, including maintaining the unit’s official confidential employee personnel files; human resources general files; compiling and submitting the monthly vacancy report; keeping a working inventory of personnel forms and revision dates; conducting employee training; aiding in the preparation of adverse actions; processing subpoenas and court orders; preparing Family Medical Leave Act/California Family Rights Act packages for Region Office approval; coordinating completion of conflict of interest statements; and calculating interest on settlements and back pay awards.

All appellants reported spending 5% of their time performing these duties.

Both DFFP and DPA contend that the work performed by appellants did not meet the SPB class specification criteria for the PSS II class until DPA issued PML 2000-49 on August 10, 2000. This PML provided “allocation guidance to departments to reallocate positions from PSS I to PSS II, when sufficient job complexity exits.” It provided this guidance and clarification of the SPB class specification by listing 14 specific complex areas that may assist a department in determining if a position reallocated from the PSS I to the PSS II class.

Prior to August 10, 2000, both DFFP and DPA contend that appellants did not meet the requirements for the PSS II class because they do not have full-charge responsibility for all personnel transactions as required by the pre-existing class specification. At hearing, DPA defined “full charge for all transaction work” as being responsible “from day one, beginning to end.”

DPA and DFFP testified that they concluded appellants do not have full charge for all personnel transactions because:

1. Appellants do not perform all steps in processing lost time workers’ compensation injuries. Personnel in the Region Office process non-industrial disability (NDI) and industrial disability leave (IDL);

2. Appellants do not generate hiring certification lists. These are provided to the ranger unit by the Region Office;

3. Appellants do not process state form 607, which is used to establish or abolish positions and record changes in established positions and classifications; and

4. Appellants are not the sole personnel resources in DFFP. Other personnel specialists are available in DFFP in the Region and Sacramento headquarters offices. These offices regularly disseminate pay letters, PML’s, PERS material or other pertinent information. They issue temporary directives, intake summaries and manuals to the ranger units and they are available to provide assistance and direction to ranger unit personnel. DPA testified that the PSS II class has traditionally been used primarily in small departments where no other personnel resources are available.

Appellants challenged DFFP and DPA’s contention that they did not have full charge responsibility for all phases of transaction work. They testified that a Division Chief who generally has no specific training or background in personnel supervises them. They testified that their supervisors rely on them to work independently and to provide accurate information to all employees in the unit on a variety of benefits, personnel processes, and salary issues. They testified that their supervisor, unit employees, DFFP’s Region and Headquarters Office, and other state agencies such as the PERS and the SCO rely on them and their calculations for the accuracy of the payroll, benefits, and timely pay adjustments. Appellants testified that they work with the Division Chief to monitor established positions, to track the current cost of such positions compared to the budget, and to project future personnel costs for such positions. They contend they are responsible for the processing and accuracy of all personnel transactions concerning the ranger unit. They report that 5% of their work may be checked by outside sources.

Appellants testified that they worked with both SCIF and the Region Office on workers compensation cases. They testified that they receive all initial reports of work injuries, track employees’ lost work time as a result of the injury, maintain contact with an injured worker who was losing time, and that they are involved with the Division Chief in identifying potential light duty or reasonable accommodation positions. Appellants testified that they work with the Region Office on lost time injuries by providing workers compensation documents and copies of doctors reports, verifying the number of lost days and benefits, and substantiating the amount of the pay warrant to be given to the injured employee. In most instances, appellants did not dispute that the actual processing of the IDL or NDI was completed at the Region Office.

Appellants did not challenge the state’s contention that they received employment certification lists through the Region Office or that the Region Office completed the state form 607. They contend that once they get the certification lists, they are responsible for ensuring that appointments are made consistent with applicable State laws. They also testified they are fully responsible for the hiring transaction process, and in at least one instance, an appellant testified that she certified the firefighters’ employment list. In regard to the 607 process, appellants assert that the 607 is merely the final step in a multiple step process initiated, researched, and justified by the PSS at the ranger unit.

Appellants did not contest the departments’ contention that they are not the sole personnel resource within DFFP. They did testify, however, that they are the sole personnel specialists at the ranger unit. Appellants testified that they receive little assistance or direction from DFFP sources outside of the ranger units. They testified that when they have questions, they usually either contact the relevant control agency or one of the other personnel specialists in another ranger unit. They also testified that they usually receive updated information directly from the control agency before they receive it from DFFP sources. Appellants further testified that they usually do receive assistance or information from DFFP sources if they call them.

 

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Government Code section 19818.18 provides an employee who works out of class with the right to request reimbursement by filing an appeal with DPA. Reimbursement may be granted only if the employee proves that he/she has performed duties outside the scope of his/her present classification. If the employee can establish satisfactorily that he/she has performed such duties, DPA has the responsibility for determining whether he/she is entitled to be reimbursed, for duties performed, pursuant to Government Code section 19818.18. In accordance with the provisions of section 19818.16(a) retroactive payment of an out-of-class claim shall be awarded for a period no greater than one year preceding the filing of the claim.

In seeking reimbursement, an appellant has the burden of proof and the burden of going forward in the appeal hearing. In determining whether or not the assigned work is in a higher classification, the kind and variety of duties performed and the relative amount of time, which the employee spent performing the duties must be evaluated.

In this case, appellants perform a wide variety of difficult and complex duties; exercise independence of action and decision making; receive minimal supervision; have frequent personal contact with employees and the public; and are held to a high degree of consequence of error. They have full charge for all transaction work at the ranger unit.

The fact that appellants do not independently approve or key IDL or NDI forms, do not personally compose employment certification lists, or do not personally complete State form 607 does not automatically relieve these employees of the responsibility of tracking, monitoring, and ensuring the accuracy, and completion of these activities. The Division Chief and the unit employees rely on the PSS to obtain, assess, assimilate, and distribute this information in various ways and formats. In the final analysis, the PSS assumes responsibility for this information within the ranger unit’s transaction processing. The class specification does not require the PSS II to work in a vacuum.

The fact that the appellants do not personally perform these activities also does not substantially affect the amount of time appellants spend performing duties within the PSS II class. Based on appellant’s undisputed reports, it is clear that they spend will over 50% of their time performing duties commensurate with full charge responsibility for all transaction work at the ranger unit.

Although DFFP and DPA previously based their reallocation decisions on PML 2000-49, this reliance was misplaced. This PML provides guidance and clarification, but it does not replace the existing allocation criteria in the 1991 SPB class specification. Appellants’ duties did not change. Therefore, appellants meet the class specification criteria for the PSS II class both before and after issuance of the August 10, 2000, PML.

Consequently, it is concluded appellants’ duties are consistent with that of a PSS II and appellants were required to work out-of-class between January 2000 and the time of their formal out-of-class assignment, appointment to the PSS II class, or separation from State service.

Government Code section 19818.16(b) limits appellants’ recovery to one year’s salary differential. Accordingly, all appellants except appellant seven should be awarded the difference between the salary for a PSS I and a PSS II that they have not already received for the period between January 19, 2000, and January 18, 2001. Appellant seven should be awarded the difference between the salary for a PSS I and a PSS II for the period between January 19, 2000, and December 31, 2001, when she separated from state service.

 

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that the claim of the seven appellant’s for out-of-class compensation as a PSS II effective January 19, 2000, through the time of their formal PSS II out-of-class assignment, promotion, or separation is granted. All other claims for compensation or any other remedy is denied.

 

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1. Imai worked at DPA during the relevant period and did the DPA analysis denying appellant’s out-of-class claim.

2. The Association of California State Supervisors filed one grievance on behalf of all appellants. Individual case numbers were assigned for administrative purposes.

3. Appellant seven was not promoted to the PSS II class or put on an out-of-class assignment prior to her separation from state service. The reason for this was not made part of the hearing record.

4. CSEA is the exclusive bargaining representative for State Bargaining Unit 1, which includes those represented employees in the PSS I and II classes.

5. The pay range for the PSS I and PSS II classifications between January 2000 and January 2001 were not made part of the record.