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DPA Case Number 04-A-0146 - Denial of Out-of-Class Claim

​DPA Case Number 04-A-0146 - Denial of Out-of-Class Claim

Final Non-Precedential Decision Adopted: June 2, 2005
By: Michael T. Navarro, Director


This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on May 18, 2005, at Riverside, California.
Appellant was present and represented herself.
Charles A. DeCuir, Senior Staff Counsel, represented the Department of Social Services (DSS), respondent.
Phyllis Bonilla, Staff Personnel Program Analyst, Classification and Compensation Division, represented DPA.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.


On June 10, 2004, appellant filed an out-of-class grievance with DSS claiming she worked out of class as an Office Services Supervisor III (OSS III). On August 12, 2004, DSS denied the grievance. Appellant filed an amended grievance on August 18, 2004 claiming she worked out of class as an Office Services Supervisor II (OSS II). DSS denied the amended grievance on August 24, 2004. Appellant appealed the denial to DPA on September 24, 2004. DPA issued its preliminary determination denying the grievance on October 28, 2004. The appellant filed a request (appeal) from the denial of the out-of-class claim on November 19, 2004.
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 so long as the employee files a timely appeal. The time for filing an appeal is within 30 calendar days after service of the preliminary determination. Appellant’s appeal is considered timely. Therefore, it is concluded that this matter is properly before DPA for review.


Appellant claims that from March 15, 2004 through February 2005, she worked out of class as an OSS II. As relief from working out of class, appellant requested permanent reclassification to an OSS II and a back-pay adjustment.
At hearing, appellant also requested that the State re-evaluate the OSS I and OSS II classifications because she believed the difference in the classifications was unclear and that the duties in the classes overlapped.
Pursuant to Government Code section 19818.16, appellant is only entitled to reimbursement for out-of-class work for the 12-month period immediately preceding the filing of her grievance. Appellant was allowed to amend her June 2004 grievance on August 18, 2004 to claim out-of-class work as an OSS II instead of an OSS III. Therefore, pursuant to the Government Code, the period under consideration for this appeal is March 15, 2004 through August 18, 2004.


Prior to March 15, 2004, appellant worked in the Children’s Residential Programs Office (CRPO). The CRPO issues licenses for children’s foster care, group homes, and small family homes. It is located on the second floor of the Culver City building. Appellant was the only State employee in the CRPO from October 2003 through May 2004. As the only employee in the office, she performed all the required work in the office which included tasks which would have otherwise been performed by a Word Processing Technician (WPT) and an Office Technician (OT). Beginning in May 2004, a seasonal part-time employee was loaned to the office on an intermittent basis. Three senior citizen volunteers also worked in the CRPO on a part-time basis during at least a portion of the period relevant to this appeal. Some students also worked in the office on an intermittent basis. Appellant supervised all of the part-time and intermittent help.
On March 15, 2004, appellant began working in the Child Care Program Office (CCPO) as well as the CRPO. Appellant spent approximately four hours of each day in each of her assigned offices. The CCPO is located on the fourth floor of the Culver City building. The CCPO is responsible for issuing licenses to child care facilities. It had a clerical support staff consisting of three WPT’s and three OA’s. Prior to appellant’s assignment, the CCPO did not have a supervisor. When appellant was assigned to the CRPO, she supervised all of the office staff in the CRPO and the CCPO. In exchange, one of the employees from the CCPO went to the CRPO office on the second floor on a part-time basis to assist with the clerical work in that office.


The classification of OSS I (T) is one in a series of classifications used by the State to train, plan, organize, and direct a staff of clerical employees who perform a variety of general office and related clerical support tasks, including, but not limited to, functions such as typing, stenography, filing, accounting, and cashiering. The OSS I is the working supervisor level. Under general supervision, the OSS I trains new employees, supervises a small group engaged in difficult clerical work, and personally performs the most complex work.
The OSS I (Typing) supervises employees who type letters, reports, bills, vouchers, receipts, lists, schedules, orders, and notices; compile statistical data; prepare acknowledgments and replies from form letters; transcribe dictating machine records; prepare stencils, arrange routine material for typing; proofread; check columns of figures; check and tabulate statistical data; receive, distribute and dispatch mail, maintain mailing lists; secure, prepare and copy data and other information; check and alphabetize records and files; and operate office machines.
The OSS II is the first full supervisory level. Under general direction, the OSS II plans, organizes, and directs the work of a medium-sized group engaged in difficult clerical work.
The primary differences between the OSS I and OSS II classifications are the size of the staff being supervised, the difficulty of the work being performed, and the designation that complex clerical work is routinely performed by an OSS I as the working supervisor.
It was undisputed at hearing that the OSS II was a higher classification than OSS I (T). In 1993, the salary range for an OSS I (T) was $2,465 through $3,001 per month. The salary range for an OSS II was $2,759 through $3,355. The salary range for these classes as of 2004 was not provided.


DSS determined appellant was performing duties appropriate for her classification of OSS I (T).
In its preliminary determination, DPA also found that appellant was performing duties appropriate to the OSS I (T) classification. It held that although the amount of work performed by the appellant increased when she worked in both offices the nature and difficulty of the work did not increase. DPA found appellant supervised a “medium group of employees” that performed routine office/clerical support tasks rather than the most difficult office/clerical work cited in the OSS II specification.
In making this determination DPA relied on documentation presented by the appellant, the SPB class specifications and its Allocation Guide.1
The Allocation Guide clarifies that an OSS I (T) may supervise as many as eight subordinates, may perform supervisory duties from 20% to 75% of the time, and may supervise one or more functions if the functions are relatively routine. It also reiterates that the OSS I personally performs the most complex work. DPA considers personnel work such as attendance reporting, workers’ compensation and benefit calculations and related personnel issues complex work.
The Allocation Guide also clarifies that the OSS II may supervise from five to fifteen employees depending on the complexity or difficulty of the work being performed by the subordinates. The Allocation Guide states that the OSS II level should have 75% to 100% supervisory duties and that the OSS II may occasionally handle the most complex and sensitive problems. In addition, the Allocation Guide provides that the OSS II class may supervise anywhere from one to more than three functions depending on their complexity.


Appellant challenged respondents’ decision that she did not work out of class by relying on the amount of time she spent doing each of the tasks defined in DSS’ duty statement for the OSS II.
The appellant argued she spent 114% or more of her time supervising clerical staff while the DSS’s duty statement for the OSS II estimates that the incumbent will perform this duty only 75% of the time. Appellant contended she provided administrative support for the District Manager and Licensing Programs Supervisor(s) on complex or sensitive correspondence memos 16% of the time while the OSS II duty statement requires that only 10% of an incumbent’s time be spent in this activity. Appellant alleged she spent 20% or more of her time monitoring and reviewing the maintenance of office control records and logs while the OSS II duty statement requires the incumbent perform this duty only 6% of the time. Although the OSS II duty statement requires an incumbent to spend 4% of their time participating in recruiting and hiring of administrative support staff, handling staff relations problems, and evaluating performance and support staff training, appellant argued she spent 10% or more of her time performing these duties. Appellant further argued she spent 10% or more of her time ensuring that all office equipment was functioning while the OSS II duty description only required that 3% of an incumbent’s time be spent on this activity. She further maintained that she spent 10% or more of her time reporting any breakdown in established procedures and problems to the District Manager and/or five Licensing Supervisors while the OSS II duty statement estimates that the incumbent will spend only 2% of her time participating in such activity. Appellant also argued that she supervised three OA’s and four WPT’s thus meeting the supervision requirement in the OSS II duty statement which requires an incumbent to supervise at least eight State employees consisting of five or more OA’s; two WPT’s; and one OT.
Appellant further urged that the challenging task of supervising two Programs be considered.


“’Out-of-class work’ is defined as, more than 50 percent of the time, performing the full range of duties and responsibilities allocated to an existing class and not allocated to the class in which the person has a current, legal appointment.” (DPA Rule 599.810.) An employee will be considered as working in a higher classification when she is performing the full range of duties of the higher class on a regular and consistent basis (at least 50% of the time).
All of the specifications, Allocation Guides, and duty statements for the classifications of OSS I (T) and OSS II require both classifications to have supervisory responsibility for clerical staff. This is an overlapping duty. Although appellant alleged she performed this task “114% or more of her time,” there was no record she worked overtime and this figure is unreliable based on her other estimates of time performing other tasks. She estimated she performed other tasks 66% of the time.
Many of the duties appellant reported performing may be supported by descriptions of both the OSS I and OSS II classifications. These overlapping duties include not only the supervisory duty described above but also the support for the District Manager and Licensing Program Supervisor(s) on complex or sensitive correspondence or memos; reporting to the District Manager any breakdown in established procedures and problems in clerical operation; participating in the recruitment and hiring of clerical staff, handling problems of staff relations, evaluating performance, and resolving personnel problems; being responsible for training; and, monitoring and having knowledge of office equipment.
The two most distinguishing duty factors reported by appellant are the work she personally performed and the type of work performed by those she supervised. She reported she personally maintained the workers’ compensation, attendance, health benefit, Savings Plus Plan and all personnel-related records for 62 employees. This is the complex work which the OSS I specification requires the incumbent to routinely perform. The OSS II specification envisions the work would be supervised, but not routinely performed by the incumbent. At hearing appellant admitted that such work would normally be performed by an OT but that she did not supervise this classification. In addition, the work performed by those classifications that appellant did supervise fits within that described by the specification as that which would be supervised by an OSS I. While it is unrefuted that appellant performed more work when she was assigned to both the CRPO and CCPO offices, there was no evidence that any of the work performed by those appellant supervised was of a complex or, technical nature.
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Government Code section 19818.16 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 has performed duties outside the scope of his present classification. If the employee can establish satisfactorily that he performed such duties, DPA has the responsibility for determining whether he is entitled to be reimbursed, for duties performed pursuant to Government Code section 19818.16. 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. This is the only remedy statutorily available for an appeal from a denial of a reimbursement claim for out-of-class work.
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 in performing the duties, must be evaluated.
In this case appellant failed to prove that she spent 50% or more of her time performing the duties of the higher classification of OSS II. As recognized by the appellant, a majority of the duties between the two classifications are overlapping. Appellant spent the majority of her time performing functions that could be performed within either the OSS I or OSS II classification. The number of employees supervised, the type of work performed by those being supervised, the classifications of those being supervised, and appellant’s personal performance of the complex tasks are all within the scope of the OSS I classification.
Although appellant’s claim for out-of-class pay cannot be granted, she must be commended for her willingness to assume an increased workload to assist DSS during its personnel shortage.
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that the September 24, 2004 appeal from Denial of Out-of-Class Claim is denied.
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1. Pursuant to its authority and responsibility in Government Code section 19818.6, DPA uses its Allocation Guide to supplement and clarify the SPB specification because the description contained in the SPB specification for the OSS series is insufficiently definitive for making allocation decisions.
  Updated: 5/3/2012
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