Section 61 - Claims for Back Pay and Requests for Back Pay Hearings(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.Cal. Code Regs. Tit. 2, § 61
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.
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.