This post was authored by Matthew Nakano.
As public agencies near the end of the first quarter of the new fiscal year, now is the ideal time for California Public Employees’ Retirement System (CalPERS) agencies to verify that hours worked are being tracked for certain types of employees. The consequences for failing to accurately monitor hours worked can be significant if these employees work beyond certain limits during a fiscal year. Since agencies are still in the first quarter of the fiscal year, it’s not too late to catch potential tracking issues before it results in costly consequences due to an inadvertent oversight in this area.
The following are three common employment situations that require careful tracking of hours for CalPERS purposes and an explanation of the consequences for working beyond established thresholds:
As discussed in our earlier blog post, AB 1487 enacted Government Code section 20480, which went into effect on January 1, 2018. AB 1487 limits the amount of time an employee can work in an “out-of-class appointment” to 960 hours per fiscal year. An “out-of-class appointment” is defined as “an appointment of an employee to an upgraded position or higher classification by the employer or governing board or body in a vacant position for a limited duration.” A “vacant position” is defined as “a position that is vacant during recruitment for a permanent appointment.” A “vacant position” does not include a position that is temporarily vacant due to another employee’s leave of absence. CalPERS requires agencies to report all out-of-class appointments, as well as the number of hours worked in the out-of-class appointment, regardless of whether the total amount of hours exceeds 960 in a fiscal year.
If an employee works more than 980 hours in an out-of-class appointment, the employer will be required to pay CalPERS an amount equal to three times the employee and employer contributions that would otherwise be paid to CalPERS for the difference between the compensation paid for the appointment and the compensation paid and reported to CalPERS for the member’s permanent position for the entire period the member serves in the out-of-class appointment as well as a $200 administrative fee.
Under certain circumstances, and in compliance with Government Code section 21221(h), a CalPERS retired annuitant may be appointed on an interim basis to a vacant position during the recruitment for a permanent appointment if the governing body deems the position to require “specialized skills” or during an emergency to prevent stoppage of public business. Such an appointment does not require reinstatement from retirement. A retiree may only be appointed once to this vacant position.
Additionally, under Government Code section 21224, a CalPERS retired annuitant may serve without reinstatement from retirement if appointed either during an emergency to prevent stoppage of public business or because the retired person has “specialized skills” needed in performing work of a limited duration.
Under both Government Code sections 21221(h) and 21224, a retired annuitant is limited to working 960 hours for all employers each fiscal year. Thus, if a retired annuitant also works for another CalPERS employer during the same fiscal year, those hours will also count towards the 960-hour limit. Also, all hours worked by a retired annuitant must be reported to CalPERS with each payroll cycle. If a retired annuitant exceeds the 960-hour limit: (1) he or she will be reinstated from retirement retroactive to the first day of employment in the position; (2) both the employer and employee will have to pay retroactive contributions plus interest to CalPERS as well as administrative fees; and (3) the employee will have to reimburse CalPERS for any retirement allowance received since the date of employment in the position.
Less Than Full-Time or Part-Time/Temporary Employees
Many agencies have less than full-time or part-time/temporary employees who work on a seasonal, intermittent, on-call, limited-term, or irregular basis (e.g., lifeguards, community center instructors, etc.), and are not normally enrolled in CalPERS unless the employee was already a CalPERS member when he/she was first hired by your agency. These employees will be eligible for membership after 1,000 hours of paid service or 125 days (if paid on a daily or per diem basis) in a fiscal year. Overtime hours as well as paid sick leave or vacation time is included in calculating the 1,000 hours. If an employee works more than 1,000 hours or 125 days, the employer will be required to enroll the employee in CalPERS. Failure to enroll an employee into membership within 90 days of becoming eligible for membership may result the employer being required to pay all arrears costs for member contributions and a $500 administrative fee.
CalPERS agencies should consult with legal counsel if they are unsure of whether they need to track hours for a particular position, or require assistance in developing strategies to ensure hours worked do not exceed the statutory limits.