14.2 Out-of-Classification Grievances and Position Allocation Hearing Process

1. Definitions
1. An employee is working “out-of-class” when the employee spends a majority (i.e., more than fifty percent [50%]) of the employee’s time over the course of at least two (2) consecutive work weeks performing duties and responsibilities associated with a higher level existing classification that do not overlap with the classification in which said employee holds an appointment.

Duties that are appropriately assigned to incumbents in the employee’s current classification are not out-of-class.

Duties appropriately assigned are based on the definition and typical tasks enumerated in the California SPB specification.

Training and Development assignments are not out-of-class work.

2. For purposes of this section, a classification is at a “higher level” if the maximum salary of the highest salary range (excluding alternate range criteria other than deep class criteria)

is any amount more than the maximum salary of the highest range of the class in which the employee holds an appointment.

3. When an employee is performing the duties of a vacant position properly assigned to a higher class or the duties of an absent employee whose position is properly assigned to a higher classification, the employee shall be considered to be working out-of-class.
2. Authorization and Rate of Pay
1. Notwithstanding Government Code sections 905.2, 19818.8, and 19818.16, an employee may be temporarily required to perform out-of-class work by the employee’s department for up to one hundred twenty (120) calendar days in any twelve (12) consecutive calendar months when it determines that such an assignment:
1. Is of unusual urgency, nature, volume, location, duration, or other special characteristics; and,
2. Cannot feasibly be met through use of other civil service or administrative alternatives.
2. Departments may not use out-of-class assignments to avoid giving civil service examinations or to avoid using existing eligibility lists created as the result of a civil service examination.
3. When an employee is assigned out-of-class work, the employee shall receive the rate of pay the employee would have received pursuant to Title 2 California Code of Regulations sections 599.673, 599.674, or 599.676 if appointed to the higher classification.
4. Out-of-class work may be discontinued by departments at any time; however, departments may not rotate employees in and out of out-of-class assignments to avoid payment of out-of- class compensation.
5. Out-of-class pay shall not be considered as part of the employee’s base pay when computing the rate due upon promotion to a higher level.
3. Out-of-Class Grievances and Allocation Appeals
1. The grievance and arbitration procedure described in subsection D below shall be the exclusive means by which alleged out-of-class assignments shall be remedied, including requests for review by CalHR referenced in Government Code section 19818.16 or the State Victim Compensation and Government Claims Board.
2. The grievance and arbitration procedure described in this section shall be the exclusive means for appealing position allocation or reallocation referenced in Government Code sections 19818.6 and 19818.20.
3. Employees may not separately file out-of-class grievances and position allocation or reallocation grievances pertaining to the same duties and responsibilities.
4. The only remedy that shall be available (whether claiming out-of-class work or position misallocation) is retroactive pay for out-of-class work. Said pay shall be limited to out-of-class work performed (a) during the one (1) year calendar period before the employee’s grievance was filed; and (b) the time between when the grievance was filed and finally decided by an arbitrator.
5. Arbitrators shall not have the authority to order reclassification (reallocation) of a grievant’s position or discontinuance of out-of-class work assignments.
4. Grievance Procedure and Time Limits
1. An employee’s grievance initially shall be discussed with the employee’s supervisor.
2. If the grievance is not resolved to the satisfaction of the grievant a formal grievance shall be filed on a CalHR 651 (Job Description Form) provided by the State within:
1. Fourteen (14) calendar days after receipt of the decision rendered by the supervisor; or
2. Twenty-one (21) calendar days after the date the employee’s duties allegedly changed such that the employee stopped working out of classification or the employee’s position became misallocated.
3. However, under no circumstances may the period in which to bring the grievance be extended beyond the twenty-one (21) calendar days in item b above.
3. Out-of-class and misallocation grievances shall be filed with a designated supervisor or manager identified by each department head as the department level of appeal in the usual grievance procedure found in Article 6.
4. The person designated by the department head as the department level of appeal shall respond to the grievance in writing within forty-five (45) calendar days after receipt of the grievance.
5. If the grievant is not satisfied with the decision rendered by the person designated by the department head at the department level of appeal, the grievant may appeal the decision in writing within twenty-one (21) calendar days after receipt to the Director of CalHR.
6. The Director of CalHR or designee shall respond to the grievance in writing within sixty (60) calendar days after receipt of the appealed grievance.
7. If the grievance is not resolved by CalHR, the Union shall have the right to submit the grievance to arbitration in accordance with Article 6, section 6.11.
8. Article 6, section 6.11 (Arbitration Level) shall apply to out-of-class and misallocation grievances except as otherwise provided in this section.
5. The arbitrator’s decision regarding out-of-class and misallocation grievances shall be final and binding on the parties. Said awards shall not be subject to challenge or review in any forum, administrative or judicial, except as provided in Code of Civil Procedure section 1286.2 et seq.