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17.1 Classification Changes

A. When the California Department of Human Resources (CalHR) desires to establish a new classification and assigns it to Bargaining Unit 10 or intends to modify an existing one that is in Bargaining Unit 10, CalHR shall inform CAPS of the proposal during CalHR’s preparatory stages of the proposal. CAPS may request to meet with CalHR regarding these classification proposals. Such meetings shall be for the purpose of informally discussing the classification proposal and for CAPS to provide input. Upon request, CalHR may furnish CAPS with drafts of the proposed classification specifications.

B. CalHR shall notify and submit to CAPS the final classification proposal at least 20 work days prior to the date State Personnel Board (SPB) is scheduled to adopt it.

C. If CAPS requests in writing within ten (10) work days of receipt of the notice, CalHR shall meet with CAPS to discuss the final proposal. If CAPS does not respond to the notice, or if CAPS does not meet within five (5) work days from the date of request, the classification proposal shall be deemed agreeable to CAPS and be placed on SPB’s consent calendar.

D. CalHR shall meet-and-confer, if requested in writing within five (5) work days from the date SPB approved the classification change, regarding only the compensation provisions of the classification. CalHR shall respond to CAPS within ten (10) days of CAPS’ written request to meet regarding the compensation provisions of any new classification. CalHR shall not implement the proposed or revised classification until CalHR and CAPS meet-and-confer regarding the compensation.

E. Neither the classification nor the compensation provisions shall be subject to the grievance and arbitration procedure in Article 9.

17.2 Out-of-Class Grievance Process

A. Definitions

1. “Working out-of-class” (a.k.a. “out-of-class 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 employee has a current, legal appointment.

2. A “pre-arranged out-of-class assignment” is defined as the intentional assignment of out-of-class work to an employee by the employee’s appointing power, department head or designee for a defined period of time of up to 120 days or, if approved by the California Department of Human Resources, up to one year.

3. “Terminated out-of-class work or assignment” is defined as “working out-of-class” (as defined above) in which the out-of-class work or assignment has ceased either because the duties and responsibilities that created the out-of-class situation were removed, or the percentage of time spent performing the full range of duties and responsibilities fell below 50 percent, or the employee is no longer working in the position alleged to have created the out-of-class situation.

B. Pre-arranged Out-of-Class Assignments

Notwithstanding Government Code Sections 905.2, 19818.8, 19818.6, 19818.16, and 19823 an employee may be required to perform work other than that described in the specification for his/her classification for up to 120 consecutive calendar days during any 12-month period. An employee may be assigned to work out-of-class for more than 120 consecutive calendar days only with the approval of the California Department of Human Resources (CalHR). Out-of-class assignments shall not exceed one year.

Authorization and Rate of Pay

1. Rate of Pay: If an appointing power, department head or designee requires an employee to work “out-of-class” in a higher classification for more than two consecutive weeks, the employee shall receive the rate of pay, pursuant to CalHR Regulation 599.673, 599.674, or 559.676 that the employee would have received if appointed to the higher class for the entire duration of the assignment. The out of class compensation shall not be considered as part of the base pay in computing the promotional step in the higher class.

2. Rotation to Avoid Out-of-Class Pay: The State shall not rotate employees in and out of out-of-class assignments for the sole purpose of avoiding payment of an out-of-class compensation.

C. Out-of-Class Grievances

1. Exclusive Appeal Process: The grievance and arbitration procedure described in subsection E below shall be the exclusive means by which alleged out-of-class assignments shall be remedied, including requests for review by the California Department of Human Resources referenced in Government Code Section 19818.16. Out-of-class grievances shall not be filed with the Victim Compensation and Government Claims Board.

2. Out-of-Class Remedy: The grievance and arbitration procedure described in subsection E shall be the exclusive means by which alleged out-of-class appeals shall be remedied, including those referenced in Government Code Sections 19818.6 and 19818.20.

3. Retroactive Pay: The only remedy that shall be available to grievants is retroactive pay for out-of-class work.

4. Back Pay Limited to One Year: A timely filed grievance concerning out-of-class work which is granted under this Article shall not be compensated retroactively for a period greater than one (1) year before the filing of the grievance.

5. Arbitrator Limitations: Arbitrators shall not have the authority to order reclassification (reallocation) of a grievant’s position or discontinuance of out-of-class work assignments.

D. Grievance Procedure and Time Limits

1. Duty to File Timely Grievance: If an employee believes that he/she has been assigned out-of-class duties and responsibilities, he/she must file an out-of-class grievance no later than 60 days after the conclusion of the out-of-class duties/work. Any claim for back pay concerning the out-of-class work is waived if the employee fails to timely file the grievance as provided by this Section.  The grievance package shall include a complet ed CalHR 651 (Job Description Form).

2. Third Level Appeal: Out-of-class grievances shall be filed with a designated supervisor or manager identified by each department head as the third level of appeal in the usual grievance procedure found in Article 9.

3. Third Level Response: The person designated by the department head as the third level of appeal shall respond to the grievance in writing within 45 calendar days after receipt of the grievance.

4. Fourth Level Appeal: If the grievant is not satisfied with the decision rendered by the person designated by the department head at the third level of appeal, he/she may appeal the decision in writing within 21 calendar days after receipt to the Director of the California Department of Human Resources.

5. Fourth Level Response: The Director of the California Department of Human Resources or designee shall respond to the grievance in writing within 60 calendar days after receipt of the appealed grievance.

6. Arbitration Request: If the grievance is not resolved by the California Department of Human Resources, the union shall have the right to submit the grievance to arbitration within 30 calendar days following receipt of the California Department of Human Resources’ decision.

7. Arbitration Process: Article 9.12 “Formal grievance – Step 5” shall apply to out-of-class grievances except as otherwise provided in this Section.

E. Arbitrator Award: The arbitrator’s award regarding out-of-class 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.