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socrateaser, Lawyer
Category: California Employment Law
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Experience:  Retired (mostly)
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I have a question about the interpretation of the provision

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I have a question about the interpretation of the provision in Government Code Section 21224 that says that, when a PERS retiree is hired to perform work of limited duration requiring specialized skills, “the rate of pay for the employment shall not be less than the minimum, nor exceed that paid by the employer to other employees performing comparable duties.”

We have a temporary part-time position in our Planning Department for a Project Manager for our General Plan and Zoning Update. Because this is not a permanent position, it was decided not to create a new job classification, but that the position would be filled by a contract employee under the Public Service Employee (PSE) classification, which is a catch-all category for temporary part-time assignments, with a salary range from minimum wage up to about $90 per hour. In this particular case, the pay was set at $75 to $90 per hour, with the specific job duties spelled out in the contract. We subsequently hired a PERS retiree to fill this position, who, of course, is limited to 960 hours per year, receives no benefits, and is paid only for hours worked.

In addition to this PSE Project Manager contract position, we have three other planners in the department: an Assistant Planner ($30 to $36/hour), an Associate Planner ($38 to $46/hour), and a Senior Planner ($42 to $51/hour). These are permanent full-time positions with benefits. All have both long-range and current planning duties in their job descriptions; the differences are in the level of experience and responsibility. Our PSE Project Manager has more experience than all of them, having previously served as a Principal Planner in another city, and has extensive experience in General Plan and Zoning Updates.

The question is: should the PSE Project Manager, as a PERS retiree, be paid at the $75-90 rate that was previously established for the position, or should he be paid at the $42-$51 rate of the Senior Planner?

One interpretation is that “other employees performing comparable duties” refers to other existing City employees in established job classifications, and the closest match to the PSE Project Manager’s job is that of a Senior Planner. Therefore, we should reduce his pay from the current $75-90 rate to the $42-$51 rate of the Senior Planner. Up until now, we have not been in conformance with Section 21224, and lowering the pay would bring us into conformance.

Another interpretation is that “other employees performing comparable duties” refers to anybody else that the City might hire for the PSE Project Manager positions who was not a PERS retiree, and who would be paid at the $75-$90 rate. Under this interpretation, we are in conformance with Section 21224 and lowering the pay to that of a Senior Planner would put us out of conformance.

Which is the correct interpretation? Thanks for your help.
Submitted: 5 years ago.
Category: California Employment Law
Expert:  socrateaser replied 5 years ago.

The "hidden" meaning behind the law, in my view, is that it is attempting to avoid violation of the federal Equal Pay Act, which prohibits discrimination of employees based on sex/gender. To wit:

  • "No employer . . . shall discriminate within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees . . . at a rate less than the rate at which he pays wages to employees of the opposing sex . . . for equal work on the jobs the performance of which requires equal skill, effort and responsibility, and which are performed under similar working conditions . . ." 29 USCA § 206(d)(1).

The phrase, "other employees performing comparable duties," is gender neutral, but the similarities to the Equal Pay Act is unmistakable. So, the question is, given the current labor market, of which your agency is a part, is the wage offered for the new employee position nondiscriminatory? Does the new job require equal skill, effort and responsibility and is it performed under similar working conditions. If yes, then pay at the rate of the other employees currently working in your agency is appropriate. If no, then the wage must reflect the appropriate market rate, because the other employees are not actually working under similar working conditions.

Hope this helps.

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