S.C. Declines to Hear Case on Corrections Furloughs

Thursday, December 22, 2011

Page 3

S.C. Declines to Hear Case on Corrections Furloughs

By a MetNews Staff Writer

The state Supreme Court yesterday denied review of a First District Court of Appeal decision allowing the state to furlough unionized correctional officers.

The court voted 6-0 to allow the ruling in Brown v. Superior Court (California Correctional Peace Officers’ Association), A127292, to stand. The First District’s Div. Two ruled in October that the three-day-per-month furlough program initiated during Gov. Arnold Schwarzenegger’s administration is lawful as applied to facilities manned by employees represented by the California Correctional Peace Officers Association.

Justice Kathryn M. Werdegar was absent and did not participate in the vote.

Div. Two, in an opinion by Justice James A. Richman, reversed Alameda Superior Court Judge Frank Roesch’s order that back pay be provided to correctional officers represented by CCPOA.

After the matter was briefed for appeal, but before it was argued, the California Supreme Court decided Professional Engineers in California Government v. Schwarzenegger (2010) 50 Cal.4th 989, which upheld the legality of the two-day-per month unpaid furlough implemented by executive order in December 2008—and the addition of a third day via a second executive order—necessitated by the dire condition of the state’s finances.

Pursuant to these executive orders, the Department of Personnel Administration implemented a furlough program pursuant to which CCPOA members were placed on a “self-directed” furlough, through which they were encouraged to take their furlough hours off within each month, but were permitted to accumulate furlough leave credits to be used at a future date. CCPOA members were required to utilize accumulated furlough hours prior to utilizing other types of paid leave, including vacation, annual leave, personal leave, or holiday credits.

More than two dozen lawsuits were filed by employee organizations in response to Schwarzenegger’s directives. CCPOA contended the governor had unlawfully usurped the Legislature’s sole authority under Government Code Sec. 19826 and Art. III, Sec. 3 of the California Constitution to adjust the salaries of union-represented state employees, as well as various provisions of the Labor Code.

CCPOA argued that “because few, if any, employees are permitted to use furlough days in the month that they accrue…, but all employees’ monthly salaries are reduced by approximately 13.5 percent, the harmed employees’ only compensation for up to three days worked each month is a non-negotiable furlough credit,” so that “defendants unilaterally stopped paying employees for three days per month, whether the employees worked those days or not.”

Roesch was persuaded, finding the “self-directed furlough program, as implemented, constitutes a salary reduction” in that “for those pay periods in which an employee works more hours than those for which he or she is compensated at the regular rate of pay constitutes a salary reduction…contrary to the requirements of Government Code § 19826(b).”

The trial judge also determined correctional employees were being required to work the same number of hours in the pay period set by a memorandum of understanding with the state, but were not paid for three days’ worth of time worked, so they were not being paid the minimum wage for those hours worked, in violation of Labor Code Secs. 223—which prohibits an employer secretly “pay[ing] a lower wage while purporting to pay the wage designated by statute or contract”—and 1711—which sets the minimum wage for labor in California.

He then granted a writ of mandate commanding the governor to pay the affected CCPOA members “their full salaries in cash or cash equivalent at the end of each pay period for all hours worked during each preceding pay period, without reduction, and at rates delineated for such classifications in the current State of California Civil Pay Service Scales….”

Richman, however, said the trial court’s ruling could not survive Professional Engineers, because that case established that the Legislature had in effect retroactively validated the furlough program by reducing the appropriated funds for the agencies whose employees were then being furloughed.

He added that the Legislature’s revisions to the Budget Acts also established that there was no violation of Labor Code Sec. 233 “because CCPOA’s members were being paid according to the governing statutes, in this instance, the revisions to the Budget Acts.”