Backpay award for failure to comply with order of reinstatement runs from date of ALJ's proposed decision, PERB rules in retaliation case

We recognize that a reinstatement order is not merely a means of vindication or of restitution of private rights and that the policy of the act, in behalf of the public welfare, requires that coercive effects of discrimination upon all employees be dissipated by means of reinstatement, where the act so authorizes.

NLRB v. Mall Tool Co. (7th Cir. 1941) 119 F.2d 700, quoted by the Public Employement Relations Board (PERB).

In County of Riverside (2013) PERB Decision No. 2336-M, PERB upheld a backpay award as a remedy for the County‚Äôs failure to comply with a reinstatement order.  PERB further held that the backpay award should be calculated from the date the administrative law judge's proposed decision would have become final.  PERB's ruling emphasizes the importance of the reinstatement remedy in retaliation cases, and highlights the serious consequences employers face when failing to comply with a remedial order.

In a prior decision, the PERB Board, upon appeal by the County, held that the County retaliated against a public employee for engaging in protected activities.  Among other things, PERB ordered the County to make the employee whole in two relevant ways:  first, immediate reinstatement to the same or a similar position; and second, backpay for any losses suffered because of the unlawful termination.

PERB subsequently held a compliance hearing.  The judge found that backpay liability was cutoff at the date the employee would have been laid off along with other employees in the same classification.  But because the County had not immediately reinstated the unlawfully terminated employee, the judge further ordered backpay from the date the PERB Board issued the remedy.

The County appealed the judge's further award of backpay.  On review, the PERB Board upheld the further award of backpay.  The Board, in fact, ruled that the backpay award should be based on the date  the administrative law judge's proposed decision would have become final, because the more severe backpay award would further the purposes of the Meyers-Milias Brown Act (MMBA).

By Sean Graham | October 30, 2013

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