April 17, 2017

Two New Laws Impacting CalSTRS and CalPERS Members

BY: Nate Kowalski, Jorge Luna, Joshua Morrison

Two laws that went into effect on January 1, 2017 should help some CalSTRS and CalPERS members.

Special Needs Trusts May Be Designated Beneficiaries

Assembly Bill 1875 amended various sections of the Education Code to allow Defined Benefit Program members and Cash Balance Benefit Program participants to designate a special needs trust as an option or annuity beneficiary. A special needs trust shields the assets and income of disabled individuals and protects their eligibility for other public benefits and services.

Previously, option beneficiaries could only be an individual or individuals. Granting lifetime benefits to disabled individuals could jeopardize their eligibility for other public benefits and services.

The amendments also allow members and participants to change an existing option or annuity beneficiary to a special needs trust without penalty, as long as the trust’s beneficiary is the same as the previously named option or annuity beneficiary.

Employees Who Are Involuntarily Terminated and Reinstated May Receive Benefits 

California Government Code section 20969.3 was amended to provide that an employee who is involuntarily terminated and subsequently reinstated pursuant to an administrative, arbitral, or judicial proceeding is entitled to all retirement benefits, including compensation and service credit, that the employee otherwise would have accrued.

The amended statute further states that contributions must be made for the period for which salary is awarded. The amendment does not specify whether the employee or employer must make these contributions. The legislative history emphasizes “reinstatement,” so presumably the delegation of contributions would be the same as if the employee had never been terminated.

The amended statute also requires employers to notify the pension board of an employee’s reinstatement within five days of the decision becoming final.

Note that this amendment does not apply to employees who are reinstated pursuant to a settlement agreement or to employees who were terminated before January 1, 2017.

Comment

It makes a mockery of due process to argue that an employee who successfully defends disciplinary charges—and is reinstated to employment—must still be denied CalPERS benefits.  For that reason, many governmental and educational agencies already report such service to CalPERS. This law doesn’t fully resolve the due process problem, but is at least a positive step in more closely aligning California Public Employees’ Retirement Law with practical reality.

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CATEGORIES: Public Pensions

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Attorney Bio(s)

nkowalski

Nate Kowalski

Partner

562-653-3200

nkowalski@aalrr.com

Nate Kowalski is a Partner in the Cerritos office and Chair of the firm’s Public Entity Labor and Employment Practice Group. He is an accomplished litigator who represents employers in both the private and public sectors. Mr. Kowalski has litigated hundreds of sensitive and complex labor and employment cases in state and federal courts and has achieved remarkable results for his clients in hearings, arbitrations, trials and appeals.

full bio

jluna

Jorge Luna

Partner

562-653-3200

jluna@aalrr.com

Jorge Luna is a partner in the Cerritos office of Atkinson, Andelson, Loya, Ruud & Romo. Mr. Luna has been practicing law since 1996 in a variety of areas, including employment, construction, business litigation, intellectual property and entertainment. For the past 12 years, Mr. Luna has focused his practice exclusively on employment matters, with an emphasis on litigation. Mr. Luna represents employers in all aspects of labor relations and employment law matters, including employment discrimination, harassment, retaliation and wrongful termination. Mr. Luna has extensive experience preparing, handling and managing litigation matters, including taking cases up to and through trial and subsequent appeals. Specifically, he addresses budgets, initial pleadings, discovery, dispositive motions, mediations, arbitrations, bench trials, jury trials and appeals.

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Joshua Morrison

Joshua Morrison

Senior Counsel

(562) 653-3200

jmorrison@aalrr.com

Joshua Morrison represents California public school districts in all aspects of general education law. His areas of specialty practice include public employee discipline/dismissal, administrative hearings, matters before the Public Employment Relations Board, petitions for writ of mandate, retirement health benefits, PERS/STRS, and school district audit appeals.

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