Disabled California Public Safety Officers Have Right To Cash Out Vacation Time

Section 4850 of the California Labor Code provides that when a public safety officer “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….” Section 4850 is part of California’s Workers’ Compensation Law, and has the listed purpose of providing “special benefits to police, sheriffs, and firemen.” The reason for such exceptional treatment for policemen and firemen is not only that their occupations are hazardous, but that they undertake these hazards on behalf of the public.

Los Angeles County has a policy where vacation hours in excess of 320 at the end of a year are cashed out. If this “cash out” payment takes place during a deputy sheriff’s final compensation measurement period, the cash out payment is treated as pensionable income. However, a deputy who retires in the year following a Section 4850 workers’ compensation leave, that is, the year following a work-related injury, is compensated for the excess hours differently. The County will not cash out deferred excess hours if the deputy is on Section 4850 leave at any time during the deferral year, and the hours remain in the deputy’s account. 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. Instead, that deputy is compensated for the hours at retirement and, under established law, that payment is not pensionable income.

The Los Angeles County Professional Peace Officers’ Association challenged the County’s practices, arguing that the treatment of vacation time violated Section 4850. The California Court of Appeals agreed with the Association.
The Court reasoned that 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.” The Court found that under this definition, the right to cash out vacation time constituted the equivalent of “salary.”

The County contended that the Association’s argument was entirely too speculative, and essentially was “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.” The Court read the record differently, observing that “at trial, the County stipulated that it would not have implemented any policy or established practice of forcing employees in the positions or assignments occupied by the Individual Plaintiffs to use deferred excess vacation prior to the end of the deferral year. The County cannot now argue that plaintiffs might have been ordered to use excess vacation hours.

“Here, the County had no policy of forcing employees to use excess hours, and the evidence was that it had no practice to that effect, either. While the County introduced evidence purporting to establish that a relatively small percentage of the non-executive peace officers employed by the Sheriff’s Department received deferral year end cash outs during the time period covered by the proceeding, the trial court found the evidence inadequate, pointing out that the County did not present evidence on whether the employees who did not cash out hours had excess deferred hours which could have been cashed out, and that the County’s witnesses acknowledged that many of the employees had not worked long enough to have accumulated excess hours.”

Los Angeles County Professional Peace Officers’ Association v. County of Los Angeles, 2008 WL 2806976 (Cal.App. 2008).

This article appears in the November 2008 issue