REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS – In General
Single Topic for Decision 2760S
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1201.01000 – In General
Reversing a discriminatory refusal to promote does not run afoul of the merit principle; rather, it is discrimination that frustrates the merit principle. PERB has considerable discretion in crafting a remedy to fit the circumstances of each case. Combining back pay with front pay is typically warranted where there is no vacancy into which an employee can immediately be placed. (See Horsford v. Bd. of Trustees of Cal. State Univ. (2005) 132 Cal.App.4th 359, 388; accord State of California (Department of Corrections) (2001) PERB Decision No. 1435-S, p. 50.) Having considered all competing factors, PERB directed the employer to reclassify the employee retroactively to the AGPA classification, assign him appropriate duties at San Quentin until the position at San Quentin which the employee was discriminatorily denied next becomes vacant, and place the employee in that position if he is still an active State employee at that time. PERB thus accomplished both back pay and front pay through retroactive reclassification, without specifying what AGPA position or duties the employer must provide the employee, other than that they be appropriate AGPA duties that the employee can reasonably learn to perform. PERB noted that it fashioned the remedy in this manner primarily because the AGPA classification comprises a diverse swath of both administrative and programmatic roles, and declining to place the employee automatically in the next available AGPA position avoids the risk of placing the employee in a job he cannot reasonably be expected to learn or perform.