This blog post was authored by Danny Y. Yoo.
CalPERS issued a Circular Letter on July 12, 2016, which provided information on its compliance review process and its most common findings, including employing retired annuitants. In our practice, we have also observed some confusion surrounding the specifics on how to hire a retired annuitant. Let’s take a look at the restrictions on hiring retired annuitants, and more importantly, the exceptions to those restrictions.
First of all, the general rule is that an agency cannot hire a retired annuitant to work for your agency without reinstating that individual back into CalPERS.
This may sound incorrect because you know of agencies (maybe even yours!) that have hired retired annuitants. The California Public Employees’ Retirement Law and Public Employees’ Pension Reform Act of 2013 do outline exceptions to the general rule. It is through these exceptions that agencies have been able to hire retired annuitants. The two common exceptions are found in Government Code sections 21221(h) and 21224. However, when an agency is utilizing either one of these exceptions, it must be aware of the strict and complicated requirements associated with these exceptions.
REQUIREMENTS COMMON TO SECTION 21221(H) AND 21224 APPOINTMENTS
Whether your agency appoints a retired annuitant to a vacant position under Section 21221(h) on an interim basis or hires an annuitant for a limited duration pursuant to Section 21224 for extra help, the following restrictions apply to both types of employment:
- The retiree may only work a combined total of 960 hours for all contracting agencies.If the retiree is working or has worked for two or more agencies that contract with CalPERS, the total combined hours cannot exceed 960 hours in a fiscal year. Please be aware if the retiree is working for you and any other CalPERS agency.
- The compensation shall not exceed the maximum monthly based salary paid to other employees performing comparable duties as listed on a publicly available pay schedule for the vacant position divided by 173.333.Your agency is limited in how much it can pay a retiree. The maximum rate is set by the publicly available pay schedule, and your agency cannot pay the retiree more than that rate.
- The retiree shall not receive any benefits, incentives, compensation in lieu of benefits, or any other forms of compensation in addition to the hourly rate.Your agency must only pay the retiree the hourly rate, as discussed above. As a retiree, he or she cannot receive any benefits, such as health insurance, vacation days, or personal use of a company vehicle.
- The appointment must not be any sooner than 180 days after the retiree’s retirement date, unless there is an exception.There are exceptions to the 180-day wait period, and the two exceptions used most by our clients are the firefighter or public safety officer exception and the critically needed position exception, applicable to non-sworn employees. If your agency is using the “critically needed position” exception, the governing body must certify the nature of the position and the necessity to fill a critical need. This certification and resolution should be received by CalPERS before the retiree’s hire date. Please note that certification for a “critically needed position” is different from the certification that the appointment requires “specialized skills.”
Also, note that these exceptions to the 180-day wait period are not available to retirees who accept an incentive to retire.
- If the retiree is under normal retirement age, there must be a bona fide separation in service.A bona fide separation requires: (1) no pre-determined agreement between the employer and the member to work after retirement; and (2) there is a 60-day separation from employment. Please note that there are no exceptions to this 60-day separation. This means that even if the retiree can meet an exception of the 180-day wait period, if he or she is under normal retirement age, he or she must still serve a 60-day wait period.
- The retiree cannot have received any unemployment insurance payments for retired annuitant work for any public employer within 12 months prior to the appointment date.The retiree must certify in writing to your agency that he or she did not receive any unemployment insurance payments within 12 months prior to the appointment for previously retired annuitant work with any CalPERS employer.
REQUIREMENTS FOR SECTION 21221(H) APPOINTMENTS
Appointments under Section 21221(h) are interim appointments into vacant positions. In general, this exception is used for upper-level positions because the appointment must be made by the agency’s governing board. The requirements for a Section 21221(h) appointment are as follows:
- The appointment must be an interim appointment of limited duration.The appointment must have a start and end date. It should not be left open-ended or indefinite. Note that this is different from the 960-hour limit discussed above.
- The appointment must occur during recruitment for a permanent appointment.Your agency should be conducting open recruitment during the period of the interim appointment. If there is no longer an ongoing recruitment for whatever reason, the agency may need to terminate the interim appointment.
- The governing body must deem that the appointment requires specialized skills or is necessary during an emergency to prevent stoppage of public business.Under Section 21221(h), even though the authority to make interim appointments may be delegated to an individual, the statute requires that the governing body deem that the appointment requires specialized skills or is during an emergency. For many of your agencies, the governing body is a board or a council.
- The appointment can only be made once.The retiree cannot be appointed to the same position twice. This also means the retiree’s appointment cannot be extended, even if he or she has not worked 960 hours in a fiscal year.
REQUIREMENTS FOR SECTION 21224 APPOINTMENTS
Appointments under Section 21224 are for “extra help,” such as eliminating a backlog, working on a special project, or performing work that is an excess of what permanent employees are able to do. This exception should not be used to fill a vacant position. The requirements for a Section 21224 appointment are as follows:
- The appointment must of limited duration.Similar to above, the appointment must have a start and end date, and it should not be left open-ended or indefinite.
- The appointing power must deem that the appointment requires specialized skills or is during an emergency to prevent stoppage of public business.Under Section 21224, the appointment may be made by anyone with the power to hire persons for employment.
As you can see, these requirements require analysis on the individual retiree and the work that will be performed. If your agency is considering hiring a retired annuitant, seek legal counsel to ensure that your agency is in compliance with the law to avoid potential ramifications.