Friday, January 23, 2009

Who is an “Employee”

San Francisco Unified School District (2009) PERB Decision No. 2000-E (Issued on 1/20/09)

A former employee of the San Francisco Unified School District (District) filed an unfair practice charge seeking salary benefits that were awarded retroactively in a MOU entered into by the District and Union after he left his employment. The Board affirmed the dismissal, finding that, “In order to have standing to file an unfair practice charge under EERA, a charging party must have been an employee, employee organization, or employer at the time of the alleged unfair practice.” Because the charging party was not an employee at the time the unfair practice arose, the Board held that he did not have standing to bring an unfair practice charge.


This decision doesn’t break any new legal ground. However, I just wanted to note that the issue of who is an employee can get tricky in certain situations, especially when it comes to remedies. For example, there are many public agencies throughout California that are attempting to modify retirement benefits, particular retiree health benefits. Several of these jurisdictions have implemented (or attempted to implement) changes. The unions in response have filed unfair practice charges. In the event an unfair practice is found, what is the remedy and who benefits? Normally, the remedy is to return to the status quo ante (ie the way things were before the change). In terms of who is covered by the remedy, certainly anyone who was an employee at the time a public agency made the change should be covered. However, what about individuals who were already retired – and thus not employees – at the time the unfair practice arose? Are they covered by PERB’s remedy? Retirees certainly wouldn’t have standing to bring an unfair practice charge on their own, so should they be allowed to go around that statutory prohibition by piggybacking onto a charge brought by current employees? Many of these issues are currently pending on the Board’s docket and it will be interesting to see what the Board decides.