REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS – Restoration of Benefits

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Losses related to post-employment benefits, including retiree health benefit losses, defined contribution plan losses, and CalPERS defined benefit plan losses, are compensable. (Contra Costa County Fire Protection District (2019) PERB Decision No. 2632-M, p. 58; City of San Diego (2015) PERB Decision No. 2464-M, p. 45, affirmed sub nom. Boling v. Public Employment Relations Bd. (2018) 5 Cal.5th 898, 920.) Making employees whole for defined benefit losses normally requires an offending employer to remit contributions to the pension plan to ensure that the employees receive service credit for the backpay period, thereby placing them in the same situation as if the unfair practice had not occurred. (See, e.g., City of Glendale (2020) PERB Decision No. 2694-M, p. 74; Gov. Code, § 20969.3 [applicable to terminations of CalPERS participants on or after January 1, 2017]; Matter of Kareemah M. Bradford (2017) CalPERS Board Decision No. 17-01 [proper to restore service credit to CalPERS participants who were terminated prior to January 1, 2017 and then reinstated].) Any interest owed to the pension plan, on either party’s contributions, is the employer’s responsibility. (City of Glendale, supra, PERB Decision No. 2694-M, p. 74.) Such arrangements may become more complicated if an employee began withdrawing retirement benefits during the backpay period. Such an employee can choose to “unretire” (which may involve paying back distributions already received, with the goal of a more valuable retirement benefit later) or to choose an alternate means of estimating retirement benefit losses. (Id. at p. 73; Gov. Code, § 21198.)