375. Out-of-Class Assignments

Introduction

Definition

For excluded and most rank-and-file employees, OOC work is defined as performing, more than 50 percent of the time, the full range of duties and responsibilities allocated to an existing class and not allocated to the class in which the person has a current, legal appointment. This means the employee has been inappropriately assigned the duties of a higher classification.

Please refer to the appropriate Memorandum of Understanding (MOU) for exact definition of OOC work.

Alternatives to OOC Assignments

OOC assignments should only be used as a “last resort” to accommodate temporary staffing needs. All civil service alternatives should be explored first before using OOC assignments. Specifically, managers and supervisors should examine the feasibility of using the following alternatives any time an OOC assignment is being considered:

• Limited-term appointment
• Temporary reassignment of work to appropriately classified positions
• Rotating assignments
• Training and development (T&D) assignments
• Acting assignments under the State Personnel Board (SPB) Rule 302.3 (compensable up to 60 workdays)

  NOTE: SPB Rule 302.3 should not be used when the acting assignment can reasonably meet the OOC provisions in a current MOU agreement or in the DPA Rule  599.810. In addition, SPB Rule 302.3, pertaining to acting assignments, should not be used in sequence with MOU or DPA Rule 599.810 (see Section 4).

• Compelling Management Need Assignments under SPB Rule 442 (Noncompensable). For more information, see Sections 300 and 330 of this manual.

DPA Preapproval

OOC assignments are inappropriate in the following situations unless approved in advance by DPA:

• To exempt positions or levels. DPA may approve an OOC assignment to an exempt position or level. However, the exempt position must first be evaluated as a civil service position and a salary determination made based on the classification of the position if it were allocated to a civil service class. All OOC assignments to an exempt position must be coordinated with the Exempt Unit at DPA.
• To supervisory, CEA, and other excluded positions or levels, requiring classification preapproval by DPA. (Classifications requiring preapproval are identified in the pay scales as MCR III under Modified Classification Review; MCR II classes may also require preapproval if the duties were not previously approved by DPA.) Before considering preapproval in these situations, DPA will require the department to document that there are no viable alternatives to OOC and that there is a plan to correct the OOC by the end of 120 days.
• For managerial employees: DPA must approve an OOC assignment for employees designated managerial. Approval of the OOC assignment will be based on the specific circumstances of each case.
• To positions or levels not authorized in the department’s budget. Before considering preapproval in these situations, DPA will require specific written notice from the Department of Finance that funding is available.
• Where the employee’s class specification provides for the proposed duties or work assignment. An example would be an Assistant Section Chief acting for the Section Chief.

OOC Duties Assigned

Certain MOU provisions and DPA Rule 599.810 allow for short-term OOC assignments to meet temporary staffing needs. Should OOC work become necessary, the assignment would be made pursuant to the applicable MOU provision or DPA regulation (see below). Before assigning the OOC work, the appointing power should have a plan to correct the situation before the 120 day time period expires.

Out-of-Class Duties – Represented Employees

MOU provisions for compensating rank-and-file employees assigned OOC duties are indicated below:

Bargaining Units 1, 2, 3, 4, 10, 11, 14, 15, 16, 17, 18, 19, 20, and 21

An employee may be temporarily required to perform out-of-class work by his/her department for “up to 120 calendar days in any 12 consecutive calendar months.” However, employees in Unit 14 may work up to “120 days calendar days” in a fiscal year. When an employee is assigned OOC work for two consecutive weeks or more, they shall receive the rate of pay they would have received pursuant to DPA Rules 599.673, 599.674, or 599.676 if appointed to the higher classification. OOC pay shall not be considered as part of the employee’s base pay when computing the rate due upon promotion to the higher level. These bargaining units also limit OOC pay to work performed (a) during the one (1) year calendar period before the employee’s grievance was filed; and (b) the time between the grievance being filed and finally decided by an arbitrator.

Bargaining Unit 5

There is no bargaining agreement provision allowing the assignment of OOC work.

Bargaining Unit 6, 7, 9

An employee who is required to work in a higher classification for more than 15 consecutive calendar days shall receive a pay differential of 5 percent over his/her normal daily rate for that period in excess of 15 calendar days. If the employee is required to work in a higher classification for 30 consecutive calendar days or more, the employee shall receive a 5 percent pay differential over his/her normal daily rate from the first day of the assignment, not to exceed the maximum of the “to” class, (see DPA Rule 599.671). If the assignment to a higher classification is not terminated before it exceeds 120 consecutive calendar days, the employee shall receive the difference between his/her salary and the salary of the higher class at the same step the employee would receive if he/she were to be promoted to that class, for that period in excess of 120 consecutive calendar days. The 5 percent differential shall not be considered as part of the base pay in computing the promotional step in the higher class.

Bargaining Unit 8

No employee can be involuntarily assigned to work OOC. If the department head or his/her designee requires an employee in writing to work in a higher classification for more than 30 consecutive days (and the employee consents) the employee shall receive a pay differential of 5 percent over his/her normal daily rate of the class to which he/she is appointed for that period in excess of 30 days not to exceed the maximum of the “to” class (see DPA Rule 599.671). If a department head or designee requires in writing (and the employee consents) an employee to work in a higher classification for 60 consecutive calendar days or more, the employee shall receive a pay differential of 5 percent over his/her normal daily rate of the class to which he/she is appointed from the first day of the assignment. If the assignment to a higher classification is not terminated before it exceeds 120 consecutive calendar days, the employee shall be entitled to receive the difference between his/her salary and the salary of the higher class at the same step the employee would receive if he/she were to be promoted to the class, for that period in excess of 120 consecutive calendar days. No employee will be assigned to OOC work for more than one year. The differential shall not be considered as part of the base pay in computing the promotional step in the higher class.

Bargaining Unit 12, 13

When an employee is required in writing to work in a higher classification, the employee shall be entitled to receive the difference between his/her salary and the salary of the higher class at the same salary rate the employee would receive if the employee were to be promoted to that class along with any differentials currently earned in the lower classification. Out-of-class assignments will be typically be made for one-week increments. Filling in for a supervisor on a short-term basis (less than one week) does not constitute out-of-class work.

Out-of-Class Duties – Excluded Employees

Confidential, supervisory, and other nonmanagerial excluded employees are eligible to be compensated for OOC assignments based on provisions established by DPA Rule 599.810.

NOTE: Individuals designated as managerial and exempt are not covered by the specific provisions of DPA Rule 599.810. Each request for the OOC assignment of a managerial or exempt employee will be determined on a case-by-case basis.

In accordance with DPA Rule 599.810, confidential, supervisory, and other nonmanagerial excluded employees are eligible to be compensated for OOC assignments subject to certain provisions. Employees performing in a higher class for more than 15 consecutive workdays shall receive the rate of pay the excluded employee would receive if appointed to the higher class for the entire duration of the assignment, not to exceed one year. Assignments must be made in advance and in writing. Assignments may exceed 120 calendar days with a proper certification of need statement filed with DPA (see Justification of OOC Assignments which Exceed 120 Days).

Managerial Employees

As members of the management team, employees in managerial classes can reasonably be expected to perform work as needed to help the department function smoothly. For limited periods of time, a manager should be expected to fulfill a wide range of assignments not normally part of his/her assignment and classification without additional compensation.

Positions that are designated managerial, range from civil service classes that are part of the middle bank of managers within an organization up through the executive level. Despite this rather broad range of managerial positions, all incumbents in positions designated managerial receive enhanced benefits and additional salary on a regular basis. These “rewards” can be viewed as offsetting the need for compensation for short-term performance of OOC work.

There are rare circumstances when a department determines a managerial OOC assignment must continue beyond a short time frame and additional compensation is appropriate. Under such circumstances, a department may submit a request to DPA for payment of managerial OOC compensation. DPA will review each request on a case-by-case basis. The authority to pay managerial OOC compensation is not delegated to any appointing power.

In accordance with GC Section 19818.16(a), a managerial employee may file a request to be compensated for OOC work. An employee should follow the same grievance procedure used by other excluded employees. However, while the department may deny such a request, only DPA has the authority to approve a grievance to pay OOC compensation to managerial employees.

The rate of pay for an employee performing OOC duties to a CEA position is determined by the appointing power.

In reviewing both a department’s request and an employee’s request for OOC compensation, the following circumstances will be taken into consideration:

• If the managerial employee’s class specification indicates that the position is either designated as the assistant or could reasonably be expected to fill in for the vacant manager position, and there is a one-on-one relationship or where they are in the same organizational level, DPA may allow OOC compensation when the assignment exceeds 90 days. Compensation shall not exceed nine months.
• If the OOC assignment is clearly one that would not normally be expected of the incumbent’s class, either because of the class specification or organizational placement, then DPA may allow OOC compensation when the assignment exceeds 90 calendar days. Compensation shall not exceed nine months.
• Payment will commence on the 91st day.

Examples:

• A manager who acts for his/her boss, and is not designated as the next in charge, and is one of several subordinates at the same level.
• A manager who acts in a position at a level above that of their immediate supervisor.
• A manager who acts in a higher position that is not related to his/her normal assignment. An example would be when an Assistant Chief of Division X is assigned as Acting Division Chief of Division Y.

OOC assignments must include the full range of duties and responsibilities of the higher level class. When serving in such capacity, the incumbent must have all of the powers and authority vested in the position served. If such power and authority are limited or withheld, the incumbent is not considered to serve in an OOC capacity and the request should be denied.

Reasonable efforts must be made to avoid the OOC assignment. Assignment of out-of-class to managerial employees must be approved by DPA. If approved, OOC compensation will begin after the standards have been met. Requests to DPA to compensate managerial employees for out-of-class assignments must also address the department’s plan to correct the out-of-class assignment.

Exempt Positions

It is DPA’s policy that employees “acting” in lieu of an exempt appointee (i.e., working OOC as an exempt) will do so without further compensation. The basis for this policy are many including:

• There is great flexibility in the recruitment, selection, and appointment of exempt employees and most “acting” assignments are for short duration (less than six months).
• Persons in an acting capacity generally are not carrying out the full range of duties of the exempt position and rarely have the total responsibility of the permanent exempt incumbent (e.g., most “acting” exempts do not make significant changes such as reorganizing functions, discontinuing programs, setting forth long range strategic plans, etc.).
• Most exempt positions have an assistant or deputy who normally “act” in their absence. The regular salary level of these assistants and deputies recognize that they act in lieu of their exempt manager. Consequently, when these assistants act for an exempt during recruitment process, they are already fully compensated.
• Compensating someone for working OOC as an exempt circumvents the exempt appointment process.

Justification for Out-of-Class Assignments Which Exceed 120 Days

All OOC assignments which exceed 120 days must be reported to DPA no later than day 130 of the assignment, unless delegated to the department. DPA will not normally accept the department’s failure to complete an examination as a basis for continuing the OOC assignment beyond 120 days. Extensions may be granted when the examination is in process and virtually completed. For assignments to exceed 120 calendar days, the appointing power or his/her chief deputy must file a statement with DPA on DPA Form 720 certifying that the additional OOC work is required to meet a need that cannot be met through other civil service or administrative alternatives.

NOTE: Departments with delegated authority to approve OOC assignments are required to keep substantiation of the need for the assignment.

Out-of-Class Grievances

Employees who were not formally assigned OOC duties, but who believe they have been and/or are performing OOC work may file an OOC grievance as described below.

OOC Grievances – Represented

As stipulated in their MOUs, all represented employees (except in Bargaining Unit 5) may file grievances concerning any disputes arising from OOC assignments in accordance with the respective bargaining unit grievance procedure. The grievance process begins with the employee preparing an OOC grievance form as specified in the contract [ Job Description (DPA 651)]. In order for a department to approve and pay an OOC grievance, it must be reviewed and responded to at the designated department level. Grievances that are denied at the department level of review may be appealed to the Director of DPA, the final level of review. If an OOC grievance has been approved at the designated levels within the department, it is no longer required that the grievance be sent to DPA for a final level of review. Reimbursement payments are calculated based on applicable bargaining unit OOC payment provisions.

OOC Grievances – Excluded

Excluded employees who believe that they have been assigned OOC duties may file an Excluded Employee Grievance STD-631 along with a Job Description (DPA 651) form within 30 days of the completion of the alleged OOC duties. If the grievance is deemed untimely at the first level, it can be denied on that basis.

The department’s third level will respond within 30 calendar days of receiving the OOC grievance. The grievant may appeal the response to DPA within 30 days. OOC grievances must be reviewed and approved by DPA as a final level of review before they can be processed for payment. Reimbursement payments for excluded employees are based on DPA Rule 599.810.

Timelines – Filing of OOC Grievances

An OOC grievance must be determined to be timely in order to be reviewed. The grievance must be dated and filed in writing at the first level. For rank-and-file employee grievances, the appropriate contract must be referenced for filing requirements. For excluded employees, OOC grievances must be filed within 30 days of the cessation of the alleged OOC duties.

One-Year Limitation on Retroactive OOC Grievances

OOC Grievances – Standards of Review

General Standards

In determining whether or not the assigned work is in a higher classification, the kind and variety of duties performed, and the relative amount of time which the employee spent performing these duties must be evaluated in the same way that a position reallocation request is evaluated. An employee will be found to be working in a higher classification only when he/she is performing the full range of duties of the higher class on a regular and consistent basis (at least 50 percent of the time) and the position meets all of DPA’s classification allocation guidelines ( Section 180) to warrant allocation to the higher class.

Specific Standards

An employee is not considered to be working OOC if he/she meets any one of the criteria below:

• He/she is performing the full range of the duties described in the employee’s class. In other words, an employee who is performing the duties of his/her class the majority of the time is not considered to be working OOC even though these duties may substantially overlap those of another class at the same or higher level.
• The employee is performing the prescribed duties on a compelling management need assignment, a T&D Assignment, in an apprenticeship or other training classification, or when performing duties different from the employee’s regular duties because of injury, illness, or return-to-work program.
• If DPA approves a change in allocation standards and an employee alleges that he/she was working in a higher classification prior to the effective date of the change in the standards.
• SPB establishes a new class which describes duties that were previously properly allocated to another class and an employee alleges that he/she was working in a higher class prior to establishment of the class.
• The grievance is based upon alleged accelerated movement in a deep class series (e.g., Staff Services Analyst, Ranges A, B, and C) or from the trainee to/through journey level of a class series.

Victims Compensation and Government Claims Board (VCGCB)

Employees should not be advised to pursue OOC grievances through VCGCB. The proper recourse is for employees to follow the administrative process associated with OOC grievances as described in this section. If the employee is represented by a bargaining unit contract and the contract specifies that DPA is the final level of review in OOC, then the decision rendered by DPA is the final decision.

Payment of Grievances

For OOC grievances where departments are authorized to approve and pay direct (as specified in the bargaining unit contracts), payment can be made via the Form 674 process. STD-674, “Payroll Adjustment Notice,” must be submitted to DPA for managerial-designated employees.

For OOC grievances which must be reviewed and approved by DPA as the final level of review, reimbursements are paid through the Controller’s Premium Pay Unit. When DPA certifies approval of a specific time period for OOC work, the “ Release of All Claims” form and the payment form are initiated by DPA and sent to the personnel office in the employee’s department for calculation of the correct amount for the OOC payment.