Issue: Compliance-Hearing Decision; Ruling Date June 1, 2001; Ruling #2001-068; Agency: Department of Corrections; Outcome: In compliance, hearing officer; decision stands.

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

COMPLIANCE RULING OF DIRECTOR

In the matter of the Department of Corrections

June 1, 2001 Response to Grievant’s Request for Reconsideration of

EDR Ruling Dated March 20, 2001 (Ruling 2001-LL)

EDR Ruling #2001-068

ISSUE:

Should the Department of Employment Dispute Resolution (EDR) reverse its March 20, 2001 ruling, which holds that the hearing officer did not exceed his authority by directing

the agency to deduct unemployment insurance compensation from the grievant’s award of back pay?

RULING:

No. For the reasons discussed below, the March 20, 2001 ruling will remain in effect.

EXPLANATION:

The grievant, by counsel, requested reconsideration and reversal of this Department’s March 20, 2001 compliance ruling, which held that her unemployment insurance compensation could be deducted from her back pay award as "interim earnings." In support, grievant’s counsel notes that in discussing the deduction of "interim earnings" from back pay awards, EDR’s Rules for Conducting Grievance Hearings states that "interim earnings are those earned from work undertaken to replace the loss of state employment."1 He argues that unemployment insurance compensation cannot be considered as interim earnings and therefore cannot be deducted from the grievant’s back pay because unemployment insurance compensation is not "earned from work undertaken to replace the loss of state employment."

We disagree. While unemployment compensation is not earned as a result of "work" performed after the loss of state employment, it is nevertheless a type of interim income to the grievant, specifically designed "to replace the loss of state employment." Therefore, the hearing officer’s deduction of unemployment insurance compensation does not conflict with the Rules for Conducting Grievance Hearings.

And in any event, the Grievance Procedure Manual expressly defines "interim earnings" as "[i]ncome earned in lieu of state salary or other regularly earned compensation."2 If there is any conflict between that definition and the language contained in the Rules for Conducting Grievance Hearings, the Grievance Procedure Manual is controlling.3 Because unemployment insurance compensation is "income earned in lieu of state salary," it clearly falls within the controlling definition for "interim earnings" and was properly ordered to be deducted from the grievant’s back pay award.

Neil A. G. McPhie, Esquire
Director

Felicia Johnson
Employment Relations Consultant

1 Rules for Conducting Grievance Hearings, p. 9.
2 Grievance Procedure Manual, p. 23; see also Grievance Procedure (July 1, 1995, as revised July 1, 1999), p. 15 (containing the identical definition).
3 Rules for Conducting Grievance Hearings, p. 1 (this "handbook is to be used in conjunction with the Grievance Procedure; should there be a conflict, the Grievance Procedure controls").