Wrongfully Demoted Employee Is Not Entitled To Back Pay For Periods When The Employee Was Not Available For Work

Davis v. Los Angeles Unified School District Personnel Commission (2007) ______ Cal.App.4th _______; (07 C.D.O.S. 7732, filed June 28, 2007)

A classified employee of the Los Angeles Unified School District received a disciplinary demotion.  However, before he received notice of the demotion, he was placed on disability leave for reasons unrelated to his employment.  Two years later the Personal Commission found that his demotion was wrongful and ordered him reinstated, but did not award him back pay for the period of time that he was disabled and therefore unavailable for work.  The Court of Appeal held that because back pay is a “make-whole remedy” intended to restore the employee to the financial situation that would not have existed but for the employer’s wrongful conduct, an employee is not entitled to earnings which he or she would not have received had the wrongful termination not occurred.