Los Angeles County Professional Peace Officers' Assn. v. County of Los Angeles

• Decision Date: 22 July 2008
• Docket Number: No. B200582.,B200582.
• Citation: 165 Cal.App.4th 63,80 Cal. Rptr. 3d 572
• Court: California Court of Appeals Court of Appeals
• Parties: LOS ANGELES COUNTY PROFESSIONAL PEACE OFFICERS' ASSOCIATION et al., Plaintiffs and Respondents, v. COUNTY OF LOS ANGELES, Defendant and Appellant.

165 Cal.App.4th 63

80 Cal. Rptr. 3d 572

LOS ANGELES COUNTY PROFESSIONAL PEACE OFFICERS' ASSOCIATION et al., Plaintiffs and Respondents, v. COUNTY OF LOS ANGELES, Defendant and Appellant.

No. B200582.

Court of Appeals of California, Second District, Division Five.

July 22, 2008.

As modified August 19, 2008.

[165 Cal.App.4th 64]

Law Offices of Gregory G. Kennedy and Gregory G. Kennedy for Defendant and Appellant.

Silver, Hadden, Silver, Wexler & Levine and Stephen H. Silver for Plaintiffs and Respondents.

[165 Cal.App.4th 65]

OPINION

ARMSTRONG, J.

Labor Code¹ section 4850 provides that when a public safety officer (like each plaintiff here) "is disabled, whether temporarily or permanently, by injury or illness arising out of and in the course of his or her duties, he or she shall become entitled . . . to a leave of absence while so disabled without loss of salary . . . ." (Italics added.) The statute is part of the workers' compensation law. Its purpose "is to provide special benefits to police, sheriffs, and firefighters. `The reason for such exceptional treatment for policemen and firemen is obvious: not only are their occupations particularly hazardous, but they undertake these hazards on behalf of the public. The Legislature undoubtedly sought to ensure that policemen and firemen would not be deterred from zealous performance of their mission of protecting the public by fear of loss of livelihood.' (51 Ops.Cal.Atty.Gen. 32, 34 (1968).)" (Biggers v. Workers' Comp. Appeals Bd. (1999) 69 Cal.App.4th 431, 440 .)

The principal question in this case is whether Los Angeles County's (the County) policies concerning payment for excess accumulated vacation hours violate section 4850. This is the problem: normally, a deputy sheriff who has accumulated more than 320 hours of vacation time may defer the hours in excess of 320 to the following year. If the excess hours are not used by the end of that year, in reliance on the County Code,² the County pays the deputy for the hours. If this "cash out" payment takes place during the deputy's final compensation measurement period (the period used to determine salary for purposes of retirement benefits), the cash out payment is "pensionable income." It is reported to the Los Angeles County Employees Retirement Association and is part of the calculation of the deputy's salary for purposes of retirement benefits. (Ventura County Deputy Sheriffs' Assn. v. Board of Retirement (1997) 16 Cal.4th 483 [66 Cal.Rptr.2d 304, 940 P.2d 891].) Such a cash out payment will effectively increase the deputy's retirement benefit for years to come.

However, a deputy who retires in the year following a section 4850 leave, that is, the year following a work-related injury, is compensated for the excess hours differently.³ The County will not cash out deferred excess hours if the deputy is on section 4850 leave at any time during the deferral year. The hours remain in the deputy's account (Los Angeles County Prof. Peace Officers' Assn. v. County of Los Angeles (2004) 115 Cal.App.4th 866, 868 ), but if the deputy retires in the year following section 4850 leave, he or she will never have the opportunity to cash out or use the hours. That deputy is compensated for the hours at retirement. Under established law, that payment is not pensionable income. (In re Retirement Cases (2003) 110 Cal.App.4th 426, 474-477 .) It is not reported to the Los Angeles County Employees Retirement Association and does not become part of the pension calculation.

This means that, for example, a deputy who has accumulated excess vacation hours, but who has never been injured on duty, might collect more in retirement benefits than a deputy who has been injured on duty, even if the two have the same employment history in terms of rank, years of experience, and so on. It also means that a deputy who retires after taking leave due to a non-job-related injury, perhaps a ski accident, might collect more than a deputy who retires after having suffered an injury in the course of his or her duties, even if the deputies are in other respects identical.

(1) Plaintiffs' theory is that this different treatment violates section 4850. The trial court agreed, as do we.

Facts and Trial Court Proceedings

The individual plaintiffs⁴ in this case are retired deputy sheriffs who were on section 4850 leave in the year prior to retirement, and who were paid for their deferred excess vacation hours at retirement. As noted, those payments did not become part of calculation of salary for purposes of retirement, and the plaintiffs' retirement benefits are thus lower than they would have been if the hours had been cashed out. They and the Los Angeles County Professional Peace Officers' Association filed this action for declaratory relief, challenging the County policy which denies employees on section 4850 leave the cash out option. The complaint sought a declaration that the County's policy violated sections 4850 and 132a⁵ (which prohibits discrimination against disabled employees) and constitutional guarantees of equal protection of the law, and impaired the employees' rights under their employment contract.

The trial court found for the plaintiffs on all theories, declaring that the County's policy violated section 4850 and the declared policy of the State of California set out in section 132a denied plaintiffs equal protection of law under the federal Constitution, and unconstitutionally impaired plaintiffs' vested contractual rights. The court ordered the County to report to the Los Angeles County Employees Retirement Association, as pensionable income, the amounts which should have been paid to plaintiffs in a cash out at the end of the deferral year.

We affirm the judgment on the ground that the County's policy violated the Labor Code, and thus need not, and do not, address the County's challenges to the trial court findings on equal protection and contract theories.

Discussion

1. "Salary"

(2) Section 4850 prohibits discrimination in "salary." "Salary" includes sick pay and other fringe benefits which accrue incident to the employee's service and to which the employee is entitled. (Mannetter v. County of Marin (1976) 62 Cal.App.3d 518, 524 ; Los Angeles County Prof. Peace Officers' Assn. v. County of Los Angeles, supra, 115 Cal.App.4th at p. 870.)

The County's principle argument on appeal is that the right to cash out deferred excess vacation hours does not constitute salary under section 4850. It relies on Mannetter v. County of Marin, supra, 62 Cal.App.3d 518 and on Los Angeles County Prof. Peace Officers' Assn. v. County of Los Angeles, supra, 115 Cal.App.4th 866.

In Mannetter, a deputy sheriff who could not work an assigned holiday shift due to a work-related injury was paid his regular salary for the day, but not the higher rate applicable if a deputy was "required to work" on a holiday. He claimed a section 4850 violation, but the court found none. The court held that the employee had not been "required to work" on the holiday, and that "To hold otherwise would mean that an employee . . . could argue that during the leave of absence he would have received a promotion and raise and since the industrial accident proximately caused him to lose this employment opportunity, he should also be indemnified for this loss. [¶] Although there is a strong public policy to indemnify fully an employee for loss resulting from an industrial injury, this policy does not include indemnification for benefits that an employee might have received as a condition of employment during the period of time he was on a leave of absence." (Mannetter v. County of Marin, at pp. 524-525; see also Fenn v. Workers' Comp. Appeals Bd. (2003) 107 Cal.App.4th 1292 [overtime pay mandated by federal Fair Labor Standards Act not "salary" for purposes of § 4850].)

The County's argument under Mannetter is that plaintiffs' case is "based upon the assumption that if they were not on 4850 pay, they might have worked the entire calendar year before they retired without either using or being ordered to use excess, deferred vacation pay."

First, at trial, the County stipulated that it "would not assert that it would have implemented any policy or established practice of forcing all employees in the positions or assignments occupied by the Individual Plaintiffs to use excess vacation prior to the end of the deferral year."

Moreover, Mannetter supports plaintiffs' position, not the County's. The case held that "the word `salary' as used in section 4850 includes fringe benefits which accrue incident to the employee's service and which require nothing more of the employee than his being or remaining an employee in the service of the employer." (Mannetter v. County of Marin, supra, 62 Cal.App.3d at p. 524.) The overtime or holiday pay at issue in Mannetter and Fenn required the employees work at specified times or a certain number of hours, that is, to do something more than remain an employee. The right to cash out deferred overtime hours does not. It is available to all employees other than those who retire after section 4850 leave. Under the distinction drawn in Mannetter, it is plaintiffs who prevail.

Prof. Peace Officers' Assn. also supports plaintiffs' position, not the County's. That case applied Mannetter to the same statutes, county code sections, and County policies at issue here. Plaintiffs in that case were investigators for the district attorney's office. Like these plaintiffs, they took section 4850 leave and retired in the next year. Like these plaintiffs, they claimed that the County's policy violated section 4850.

However, the facts of that case were different in one critical respect. In Prof. Peace Officers' Assn., the district attorney supplied uncontradicted evidence that as a matter of policy and practice its employees were not allowed to accumulate excess vacation hours. The holding of the case, that there was no violation of section 4850, was...