Monterey Peninsula Unified School District (2014) PERB Decision No. 2381-E (Issued on 6/27/14)
Here are the relevant facts: The employee receives a termination notice on February 9, 2010. On March 29, 2010, the employee files an unfair practice charge with PERB alleging that the proposed termination is retaliatory. The employee requests a hearing before the Office of Administrative Hearings (OAH), which concludes that the termination is warranted. On September 7, 2010, the district adopts the OAH decision sustaining the termination. On March 14, 2011, the employee files a first amended unfair practice charge with PERB to include allegations regarding his actual termination on September 7, 2010. The Board agent rejects the allegations regarding the termination as untimely since the first amended charge was filed more than six months after the date of termination.
The Board began its analysis by setting forth the existing rule that:
[T]he limitations period for a termination of employment or imposition of lesser discipline, commences on the date the termination or lesser discipline becomes effective, not on the earlier date on which an employer may provide an employee notice of its intention to terminate or impose the discipline. (Regents of the University of California (2004) PERB Decision No. 1585-H (Sarka).)
However, the Board noted that the problem with this rule is that employees are not only protected from an actual retaliatory termination, but also from the threat of retaliatory termination. Accordingly, “an employer giving an employee notice of the intent to terminate or discipline (viz., a threat of termination or discipline) for an unlawful reason would also violate employees’ statutory protections and thus by itself constitute an unfair practice.” Because of this “duality” the Board held that it is necessary to announce a clarification of the statute of limitations rule in these situations:
We conclude that where a charging party timely alleges that an employer’s notice of intent to terminate or discipline is unlawful under our statutes, and thereafter, following utilization by the parties of due process procedures, the employer does in fact either terminate or discipline the employee, an amended charge alleging that the termination or discipline itself either was unlawfully motived or interfered with the exercise of employee rights, will be deemed to relate back to the timely-filed charge.
Applying this clarification to the facts of the case, the Board held that the allegations involving the termination in the first amended charge related back to the original charge, and thus were timely.
- In my opinion, the public policy goal in Sarka was to allow time to complete the due process required in public employee discipline cases before requiring an unfair practice charge to be filed. By having the limitations period run from the actual date of discipline, an employee hopefully would not feel pressured to file an unfair practice charge before the hearing process had concluded. In some cases, the employee will prevail at a hearing and therefore a PERB charge may not be necessary. However, as the Board notes in this case, it’s possible that the threat of discipline by itself may be an actionable unfair practice. In that case, I agree that the employee should be able to file an unfair practice charge based on the threat. Obviously, there are some practical problems with trying to litigate a termination case before the termination has actually occurred; but conceptually, I think the Board’s clarification of the Sarka rule is fine.
- As a practical matter, the due process in employee discipline cases is almost always faster than PERB. So even if an employee files a PERB charge upon receiving a notice of termination, any due process hearing will likely be completed by the time the PERB hearing occurs. So this clarification shouldn’t have much of an actual impact on employers.