California Public Agency Labor & Employment Blog

California Public Agency Labor & Employment Blog

Useful information for navigating legal challenges

Title IX and Sexual Violence in the Wake of the Failures of the Rolling Stone ‘A Rape on Campus’ Narrative: What All Educational Institutions Need to Know

Posted in Education

iStock_000002619779XSmallIn recent months, partially in reaction to several investigations initiated by the U.S. Department of Education’s (“DOE”) Office for Civil Rights (“OCR”), the news media has drawn attention to the prevalence of sexual violence on college campuses and scrutinized administrative responses to claims of such violence.  The height of this attention arguably came in November 2014 when Rolling Stone published ‘A Rape on Campus,’* a story largely centered on an alleged gang rape at a fraternity house on the University of Virginia’s (“UVA”) campus.  Almost immediately following the story’s publication, however, other news outlets began to question the accuracy of the Rolling Stone narrative.  The Washington Post brought attention to the author’s failure to interview the alleged perpetrators.  Slate called attention to the fact that the author did not interview at least one of the alleged victim’s friends, in whom she had claimed she had confided immediately following the attack.  In response to the skepticism surrounding the accuracy of the reporting, as well as to the author’s own concerns following publication that she may have gotten it wrong, Rolling Stone commissioned faculty at the Columbia University Graduate School of Journalism to conduct an independent review into the narrative’s accuracy.

The Columbia University Graduate School of Journalism Report (the “Columbia Report” or “Report”) was published on April 5, 2015.  The Columbia Report characterizes ‘A Rape on Campus’ as a “journalistic failure,” finding significant gaps in the reporting, editing, supervision and fact-checking processes, which had they been examined should have caused Rolling Stone to reconsider publishing the story at all.  The Report also notes that a four-month independent investigation by the Charlottesville, Virginia police department found that there was “no substantive basis to support the account alleged in the Rolling Stone article.”  Rolling Stone published the report in its April 5, 2015 issue, retracting the November narrative and removing it from its website.

While the Columbia Report calls attention to Rolling Stone’s journalistic faux pas – condemning the author and magazine’s failures to adequately balance the sensitivity of victims with the demand for verification, fact checking, and understanding of legal guidelines – it more subtly serves as a commentary on the “do’s and don’ts” for educational institutions when they are confronted with claims of sexual harassment and violence (hereinafter “sexual misconduct”).  Importantly, it also serves as a reminder that an allegation of sexual misconduct affects both alleged victims and perpetrators, and that the law requires that educational institutions establish impartial and equitable procedures to protect the rights of both the parties involved.

The OCR investigations mentioned above were initiated pursuant to the DOE’s jurisdiction under Title IX of the Education Amendments of 1972 (“Title IX”) (20 U.S.C. section 1681 et seq.; 34 CFR Part 106).  Title IX promotes freedom from discrimination on the basis of sex in educational programs or activities receiving federal finance assistance.   While OCR has focused its compliance efforts on institutions of higher education, Title IX also applies to preschools, local education agencies (“LEAs”), and elementary and secondary schools.

Title IX prohibits discrimination on the basis of sex, which includes sexual harassment, defined in part as “unwelcome conduct of a sexual nature,” and sexual violence, defined as “physical sexual acts perpetrated against a person’s will or when a person is incapable of giving consent,” whether the harassment is perpetrated by employees, peers, or third parties.  (Office for Civil Rights, U.S. Dept. of Education, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third parties (2001) (“2001 Guidance”); Office for Civil Rights, U.S. Dept. of Education, Dear Colleague Letter (2011) (“2011 DCL”); Office for Civil Rights, U.S. Dept. of Education, Questions and Answers on Title IX and Sexual Violence (2014) (“2014 Q&As”)).  Upon notice of “sufficiently serious” sexual harassment or misconduct, educational institutions are required to take prompt and effective action to (1) end the misconduct and (2) prevent its reoccurrence.  (2001 Guidance).  The OCR has described that under Title IX, educational institutions must abide by the following procedures:

  1. Establish policies and procedures, including:
    • A Nondiscrimination Policy & Notice, which must be distributed to employees and students;
    • Designating an employee as the “Title IX Coordinator” to comply with and carry out the institution’s responsibilities under Title IX, including receiving and initiating investigations of all complaints of sexual misconduct; and
    • Written grievance procedures which provide a prompt and equitable resolution of student and employee complaints.
  2. Require all “responsible employees” (defined as a person who is authorized to take action to redress sexual misconduct, who has a duty to report such misconduct or as a person a student reasonably believes has such authority) to report sexual misconduct to the Title IX Coordinator;
  3. Engage in a fact-finding investigation to determine whether the misconduct occurred. Investigations must be prompt, adequate, reliable, and impartial;
  4. Train and educate employees and students about their rights and obligations under Title IX; and
  5. Take remedial actions to address claims of sexual misconduct, including investigating complaints, implementing interim protective measures, and disciplinary action, as well as affirmative steps to prevent future reoccurrence.

(2014 Q&A, section C).

Educational institutions’ carrying out responsibilities under Title IX, however, do not negate their responsibilities to protect other legal rights of the alleged victims or perpetrators.  Specifically, OCR has emphasized that “the rights established under Title IX must be interpreted consistently with any federally guaranteed due process rights,” meaning that such rights of both the complainant and alleged perpetrator must be considered and protected throughout the investigation and disciplinary processes.  (2014 Q&A, section C).  Furthermore, privacy rights are often implicated in the course of Title IX investigations.  For example, the Family Educational Rights and Privacy Act (“FERPA”) (20 U.S.C. section 1232g; 34 CFR Part 99) protects the privacy of student education records.

Under FERPA, institutions cannot release the contents of a student’s education records without consent of the student or a minor’s parent or guardian.  (34 CFR section 99.31).  Thus, an alleged victim or news outlet like Rolling Stone cannot request to see the disciplinary records of the alleged victim or perpetrator.  In fact, the Columbia Report notes that the author of ‘A Rape on Campus’ requested an interview with UVA’s Associate Dean of Students.  While the Dean agreed to speak with her in hypothetical terms, she told the Rolling Stone journalist that she would not discuss specific cases.  ‘A Rape on Campus’ criticized the administration’s secrecy.  But as the Columbia Report notes, administrators are bound by other legal requirements as well, and as such, the Rolling Stone journalist should have gained a deeper “understanding of the tangle of rules and guidelines on campus sexual assault” before she sought to hold UVA accountable.  Like other media criticism, the Columbia Report recognizes that some institutions’ Title IX procedures are flawed; but, one should not rush to judgment without a more holistic understanding of how Title IX interacts with other legal requirements.  Indeed, another implicit and significant message of the Rolling Stone narrative is that all institutions should regularly review their Title IX policies and procedures and stay up-to-date with changes in both federal and state laws to ensure compliance with all applicable standards.

Note: While this post serves as a reminder to educational institutions about their obligations under Title IX, educational institutions’ obligations do not end here.  Educational institutions must comply with other state and federal laws addressing harassment and violence.  For example, institutions of higher education receiving federal funding must comply with The Clery Act and institutions of higher education receiving state funding must comply with California’s new ‘Yes Means Yes’ law (Educ. Code section 67386).  Community College Districts must comply with Title 5 of the California Code of Regulations (Ca. Code Regs., tit. 5, section 59300 et seq.).  Mandated reporting laws may apply to all institutions, whether public or private. California’s Penal and Education Codes promulgate other requirements.  Educational institutions must ensure compliance with all applicable, and sometimes conflicting, laws and regulations.  For these reasons, we recommend institutions consult with legal counsel to ensure proper compliance.  

Labor Negotiations – A Defining Moment for Overtime Calculations

Posted in FLSA, Wage and Hour

hourglass-small-copy.jpgThis blog post was authored by Michael Youril.

With labor negotiations beginning, many public agencies need to take a fresh look at how they are defining their overtime obligations in their labor agreements.  Simple changes in language can clarify the intent of the parties, avoid costly interpretive disputes and lawsuits, and assist the agency in paying employees their correct wages.

When reviewing overtime definitions, the first thing to keep in mind is the difference between overtime required under the Fair Labor Standards Act (“FLSA”) and overtime required under a labor agreement or agency policies, but not required under the FLSA.  The FLSA sets the irreducible floor for when overtime must be paid.  The FLSA also requires that agencies pay overtime required under the FLSA at one and one-half times the employee’s “regular rate of pay.”  The “regular rate of pay” must include “all remuneration for employment paid to, or on behalf of, the employee,” except payments that are specifically excluded.  Most of the premium pays public employers pay employees must be included in the regular rate of pay calculation, such as standby pay, education pay, and special assignment pay.

For FLSA overtime worked, employers must pay employees based on the FLSA regular rate of pay for that specific workweek.  And the regular rate of pay for an employee may vary from one workweek to another if, for example, the employee receives shift differential pay or standby pay in one workweek, but not the other.  It’s important, however, to note that employers are not permitted to average the work hours or the regular rate of pay in a 14-day pay period.  An “overpayment” in one work period cannot offset the liability resulting from an underpayment in a different work period.  Under the FLSA, each workweek stands alone.

Overtime that is not required under the FLSA, but that is agreed to through labor agreements or provided by agency policy, sometimes referred to as “contract overtime,” does not have to be paid at the FLSA “regular rate of pay.”  In other words, the agreement or policy creates an overtime entitlement that is more generous than what the FLSA requires.  A common example of “contract overtime” is overtime paid on hours worked beyond 40 hours paid (which may not be 40 hours actually worked). Overtime that is not required under the FLSA can be paid at any premium rate the parties agree upon.

Unfortunately, many labor agreements and policies use a catch-all definition of overtime that is not compliant with the FLSA, or use a several inconsistent definitions of overtime throughout the labor agreement or policy that lead to confusion.  Labor agreements or policies often define overtime as one and one-half times the “base rate,” “hourly rate,” “base hourly rate,” “regular rate of pay,” “regular rate,” or “normal rate.”  These definitions often have no clear meaning, violate the FLSA, or result in unintended overpayments.  We highly recommend that employers review their policies and labor agreements to ensure consistent and clear use of pay-related terms.

Tips from the Table: Doing Your Homework on the Other Side of the Table During Negotiations

Posted in Labor Relations, Negotiations

We are excited to continue our video series – Tips from the Table. In these monthly videos, members of LCW’s Labor Relations and Negotiations Services practice group will provide various tips that can be implemented at your bargaining tables. We hope that you will find these clips informative and helpful in your negotiations.

Tattoos. Piercings. The Workplace. Like it or Not, the Millennials are the Future Workforce.

Posted in Employment, Workplace Policies

Adult male adjusting necktie.Keeping track of monikers for the generations since World War II can be puzzling.  You have Baby Boomers, Generation X, and Millennials, but the Millennials are also known as Generation Y.  Just who are these Millennials?  They were born in the 80s—enough said.  The Millennials have been creating some interesting challenges for the Baby Boomers and Gen Xers in the workplace, namely due to the Millennials’ penchant for tattoos and piercings.  According to the Pew Research Center, forty percent of Millennials have at least one tattoo and usually more than one.  Tattoos are no longer taboo.  In fact, the number of tattoo artists increased in the United States from 500 in 1960 to more than 10,000 in 1995.

With forty percent of the current and upcoming workforce having one or more tattoos, it is becoming increasingly difficult for employers to take a wholesale anti-tattoo position.  Since the Baby Boomers and Gen Xers are still greatly responsible for hiring and promoting employees, they have no choice but to adapt and change their perceptions of tattoos in the workplace.  In a survey, thirty-one percent of the employers responded that they would be less likely to promote an employee with a visible tattoo and thirty-seven percent said they were less likely to promote an employee with piercings.  In that particular study, these two categories represent the highest percentage reasons not to promote an employee.  How long, though, can these attitudes persist when the workforce is increasingly filled with Millennials?  (And as the cases discussed below indicate, the issue is important for Human Resources because in many circumstances, treating employees differently because of their tattoos can be illegal.)

Some, but not all, employers have tattoo policies, which usually do not completely forbid tattoos but require that visible tattoos are covered at work.  Is this a practical approach for Millennial employees?  Probably not.  Millennials are far more likely not only to have visible tattoos but also a greater number of tattoos than previous generations.  Unfortunately for the Millennials, the legal and practical realities have not yet met to form a solid agreement.  Legally, in California tattoos are generally considered protected speech subject to the First Amendment; yet, it is still for the most part lawful for employers, including public employers, to have reasonable policies regulating tattoos in the workplace.  What those policies look like and whether they are Millennial-friendly is an unpredictable variable.

Some employers attempt to create a balance between allowing visible tattoos while also restricting them.  Whether this is a reasonable solution remains to be seen.  In 2012, a candidate for Liquor Enforcement Officer with the Pennsylvania State Police (PSP) was rejected for the position due to a visible tattoo.  The PSP’s policy was that visible tattoos were reviewed by a committee, which determined whether a candidate’s tattoo had to be removed or covered.  In this case, Scavone v. Pennsylvania State Police, the PSP informed the candidate one of his tattoos had to be removed to qualify for the position.  The candidate refused and was not hired.  He then filed a lawsuit in federal court, alleging claims for violation of due process and equal protection.  The Third Circuit Court of Appeals, in an unpublished decision, rejected his claims, noting that it is not a fundamental constitutional right to have a tattoo.  The Court further held that his “class of one” theory (he was treated differently than other similarly situated individuals without a rational basis) failed because it is not applicable in the public employment context.

What about the employee who asserts his tattoos are associated with his religion?  “Don’t tread on me” says the employee who displays visible tattoos depicting readily identifiable Ku Klux Klan symbols.  The court in Swartzentruber v. Gunite Corp.  dealt with this very issue.  When Swartzentruber’s co-workers complained about his tattoo of a hooded figure standing in front of a burning cross, his employer required him to cover it but he neglected to follow those instructions, which led to further complaints.  Eventually, he was monitored by supervisors to keep the tattoo covered at work, and this conduct by his employer led him to file a religious discrimination lawsuit.

Without making a specific finding the tattoo was an actual religious symbol entitled to protection, the court determined “Gunite accommodated his tattoo depiction of his religious belief that many would view as a racist and violent symbol by allowing him to work with the tattoo covered” and the law requires nothing more.

Regulating tattoos is now and will continue to be a particular challenge for employers.  Some things to keep in mind when creating and enforcing policies are that employers still have a right to generally regulate employee appearance at work and make employment decisions based upon certain aspects of appearance.  For example, in Riggs v. City of Fort Worth, the court agreed with the police chief’s decision that an officer’s tattoos created an unprofessional appearance and that this adequately supported his being removed from a bike patrol assignment.

As always, common sense should prevail when making decisions about employment policies and actions concerning tattoos and piercings.  Millennials and their tattoos are here to stay—at least until the next generation takes over.

The Affordable Care Act’s Cadillac Tax – What Employers Need to Know

Posted in Healthcare

Healthcare.jpgThis blog post was authored by Stephanie J. Lowe

Beginning in 2018, the Internal Revenue Service (“IRS”) will subject plan sponsors to an excise tax if they provide overly generous levels of health benefits to employees above a certain threshold.  The IRS recently released Notice 2015-16 to introduce the future excise tax on high cost employer-sponsored health coverage, also known as the Cadillac Tax.  The Cadillac Tax will impose a 40% excise tax on any excess benefit an employer provides to an employee through its applicable employer-sponsored health coverage.  The IRS will tax plans where the aggregate cost of the applicable employer-sponsored health coverage exceeds a statutory dollar limit ($10,200 for self-only coverage and $27,500 for self and spouse or dependent coverage), subject to various adjustments.

Employers will be responsible for calculating whether the health plans employees enroll in provide an excess benefit.  The calculations are based on the health coverage the employee actually enrolls in, not just what is offered to the employee.  ALL employer plans, not just large employers, are potentially subject to the Cadillac Tax.

Since the Department of Treasury (“Treasury”) and IRS are still working on developing final regulations for the Cadillac Tax, the Treasury and the IRS have invited comments on issues related to the Cadillac Tax.  Here is what employers need to know about the upcoming Cadillac Tax:

What law governs the Cadillac Tax?

The Cadillac Tax was added as part of the Affordable Care Act by Section 49801 of the Internal Revenue Code (Code).  IRS Code section 4980I(a) imposes a 40% excise tax on any “excess benefit” provided to an employee, and section 4980I(b) provides that an excess benefit is the excess, if any, of the aggregate cost of the applicable coverage of the employee for the month over the applicable dollar limit for the employee for the month.

When does the Cadillac Tax go into effect?

The IRS will begin to enforce the Cadillac Tax for taxable years beginning after December 31, 2017.  This means that the Cadillac Tax will first apply in 2018.

What is “applicable employer-sponsored coverage”?

The Cadillac Tax applies to applicable employer-sponsored coverage.  Applicable employer-sponsored coverage (“applicable coverage”) is coverage under any group health plan that an employer makes available to an employee and that is excludable from the employee’s gross income or would be excludable if it were employer-provided coverage.    A “group health plan” means a plan (including a self-insured plan) that provides health care to employees, former employees, the employer, other people associated or formerly associated with the employer in a business relationship, or their families.

The types of coverage included in applicable coverage are:

  1. Health Flexible Spending Accounts (FSAs);
  2. Archer Medical Savings Accounts (MSAs);
  3. Heath Savings Accounts (HSAs) (including employer contributions and employee pre-tax salary reduction contributions);
  4. Governmental plans, which is defined as coverage under any group health plan established and maintained primarily for its civilian employees of the federal government, state government, political subdivision, or an agency of the government;
  5. Coverage for on-site medical clinics, but excludes on-site medical clinics that only provide de minimis medical care;
  6. Retiree coverage;
  7. Multiemployer plans;
  8. Certain excepted benefits offered as independent, non-coordinated benefits (including coverage only for a specified disease or illness and hospital indemnity or other fixed indemnity insurance) if the payment for the coverage is excluded from gross income or a deduction is allowed; and
  9. Coverage provided through an on-site medical clinic (more guidance needed).

Note:  The IRS anticipates that future guidance will provide that an HRA is applicable coverage.

Types of coverage excluded from applicable coverage are:

  1. Coverage for accident or disability income insurance only;
  2. Coverage issued as a supplement to liability insurance;
  3. Liability insurance (including general and automobile liability insurance);
  4. Workers’ Compensation insurance;
  5. Automobile medical payment insurance;
  6. Credit-only insurance;
  7. Other insurance under which medical care is secondary to other insurance benefits;
  8. Long-term care coverage;
  9. Stand-alone dental or vision coverage;
  10. Certain excepted benefits offered as independent, non-coordinated benefits (including coverage only for a specified disease or illness and hospital indemnity or other fixed indemnity insurance) if the payment for the coverage is not excluded from gross income, which includes coverage only for a specified disease or illness and hospital indemnity.

What is the applicable dollar limit?

The Cadillac tax will apply to plans where the aggregate cost of the applicable coverage the employee enrolls in exceeds a statutory dollar limit.  There are two annual applicable dollar limits under the Cadillac Tax—one for an employee with self-only coverage and one for an employee with other-than-self-only coverage, which is minimum essential coverage provided to the employee and at least one other beneficiary such as a spouse or dependent or a multiemployer plan.  The applicable dollar limits will be redefined each year.  For 2018, the applicable dollar limit will be $10,200 per employee for self-only coverage and $27,500 per employee for other-than-self-only coverage.  In addition to the limits set each year, various adjustments may increase the applicable dollar limits in certain circumstances.  For example, a cost-of-living adjustment will be applied each year to determine the applicable dollar limit.  Other adjustments include an age and gender adjustment, a qualified retiree adjustment, and a high-risk profession adjustment.

What is an “excess benefit”?

An excess benefit is the cost of applicable coverage that goes over the applicable dollar limit.  Employers who provide an excess benefit to employees will be subject to a 40% excise tax on the amount of the excess benefit.  This is determined on a monthly basis.  Section 4980I(b) defines an “excess benefit” as the excess of (A) the aggregate cost of the applicable coverage of the employee for the month, divided by (B) the applicable dollar limit for the employee for that month (1/12 of the annual statutory dollar limit).

What determines the cost of applicable coverage?

The excise tax is based on the cost of the applicable coverage the employee is actually enrolled in, not just the coverage offered to the employee.  The employer will determine the cost of applicable coverage for the Cadillac Tax according to rules similar to the rules an employer uses to determine the COBRA applicable premium.  Similar to the COBRA rules, the Treasury anticipates the cost of applicable coverage for an employee will be based on the average costs of applicable coverage for an employee and all similarly situated employees, rather than based on the characteristics of each individual.  Notice 2015-16 goes into further detail about how the Treasury proposes to divide employees into similarly situated groups.

A. Self-Insured Plans

For self-insured plans, there are two methods for self-insured plans to compute the COBRA applicable premium that the Treasury explores as a method to determine the cost of applicable coverage: (1) the actuarial basis method and (2) the past cost method.   The actuarial basis method involves an actuarial estimate of the cost of providing coverage for a self-insured plan.  The past cost method determines the cost of applicable coverage based on the cost to the plan for similarly situated beneficiaries for the same 12-month determination period.  The Treasury is still considering timelines for when the 12-month determination period can take place.  The costs taken into account under the past cost method include claims, premiums for stop-loss or reinsurance policies, administrative expenses, and the employer’s reasonable overhead expenses.

B. Health Reimbursement Accounts (HRAs)

The Treasury and IRS expect that the future regulations will provide that an HRA is applicable coverage under the Cadillac Tax.  They are still considering various methods for determining the cost of applicable coverage under an HRA.  One approach is to base the cost of applicable coverage on the new amounts made available to a participant each year.  This approach might provide employers with greater certainty about the cost of applicable coverage under an HRA from year-to-year.  Another approach is to add all claims and administrative expenses of an HRA for a particular period and divide that sum by the number of employees covered for that period.  The Treasury requests comments on the types of methods for calculating the cost of applicable coverage for an HRA in order narrow down the choices to one method.

How will the Cadillac Tax affect employers with CalPERS plans?

While it is too early to definitively determine whether or which CalPERS plans will provide an excess benefit over the statutory dollar amount, CalPERS plans will likely be subject to the Cadillac Tax if they do not change by 2018.  One preliminary estimate conducted by CalPERS showed that one of the out-of-state plans and one of the PPO plans may be impacted.  CalPERS states that it has been working aggressively to keep its rates down.

Where can I send comments about the Cadillac Tax?

The Treasury and the IRS invite employers to comment on issues related to the Cadillac Tax.  These comments will be considered in the development of the proposed regulations that will be issued in the future and subject to public notice and comment.

Individuals may mail comments to CC:PA:LPD:PR (Notice 2015-16), Room 5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington D.C. 20044 between now and May 15, 2015.  Comments may also be e-mailed to with “Notice 2015-16” in the subject line by May 15, 2015.  The Treasury and IRS plan to issue a second notice inviting more comments on additional Cadillac Tax issues that were not addressed in Notice 2015-16.

More information can be found in the IRS Notice 2015-16.

New CFRA Regulations Impacting Family and Medical Leave Will Be Effective July 1, 2015

Posted in Employment, FMLA


This blog post was authored by Connie C. Almond and Danny Yoo

In 2008, the U.S. Department of Labor issued revised regulations interpreting the federal Family and Medical Leave Act (“FMLA”).  Since then, California employers have been left uncertain as to which of the changes the Department of Fair Employment and Housing would adopt for similar family care and medical leave under the California Family Rights Act (“CFRA”).

The California Fair Employment and Housing Council (“FEHC”) just issued the final revised CFRA regulations which will go into effect on July 1, 2015.

The new CFRA regulations followed some, but not all, of the 2008 FMLA regulations.  This Special Bulletin highlights the most significant impacts the new CFRA regulations will have on California employers.  Employers can review the full text of the CFRA regulations here.

Here is a summary of the regulations’ highlights:

  • Unlike the 2008 FMLA regulations, the CFRA regulations still do not allow for an employer to require a new medical certification form until the first certification has expired. In other words, the employer cannot ask for a new medical certification if the employee has a certification certifying the employee’s “lifetime” condition.
  • Like the 2012 Pregnancy Disability Leave (“PDL”) regulations, the CFRA regulations state that an employee’s right to maintenance of health benefits under the CFRA is a separate and distinct right from an employee’s right to maintenance of health benefits under the PDL.
  • Similar to the FMLA, employers can only retroactively designate leave as CFRA leave if it provides appropriate notice to the employee and it does not cause harm to the employee.
  • Employees who are receiving disability benefits or partial wage replacement benefits while on CFRA leave are not considered to be on “unpaid leave.” Therefore, employers cannot require those employees to use any accrued paid leave during the CFRA leave.
  • There are new notice requirements that employers will need to implement at their physical worksites and possibly their websites.

Eligibility for Leave

Definition of “spouse.”

The CFRA regulations now expressly include registered domestic partners and same-sex partners in marriage in the definition of “spouse.”  (2 C.C.R. section 11087(r).)

Definition of “key employee.”

The CFRA regulations have essentially adopted the FMLA regulations’ definition of a “key employee.”  Subject to certain notice requirements, an employer can deny a key employee who takes CFRA leave reinstatement to the same or comparable position.

Fraudulently-obtained CFRA Leave.

The CFRA regulations include a “new” permissible defense for CFRA leave that is fraudulently obtained or used.  This is not necessarily a “new” defense, but the regulations now expressly state, “An employee who fraudulently obtains or uses CFRA leave from an employer is not protected by CFRA’s job restoration or maintenance of health benefits provisions.  An employer has the burden of proving that the employee fraudulently obtained or used CFRA leave.”  (2 C.C.R. section 11089(d)(3).)  Employers who suspect fraudulent use of CFRA leave should seek legal counsel if they are going to deny leave (or discipline an employee) based on fraud.

Medical Certification

Definition of “inpatient care.”

An illness, injury, impairment, or physical or mental condition that involves “inpatient care” qualifies as a “serious health condition.”  Previously, “inpatient care” meant an “overnight stay” in a hospital, hospice, or residential health care facility.  The regulations interpreting the FMLA still define “inpatient care” as an “overnight stay.”  (29 C.F.R. section 825.114.)  However, the new CFRA regulations only require an “expectation” that the individual will remain overnight.  (2 C.C.R. section 11087(q)(1).)  This means an individual who is admitted to the hospital with the expectation that he or she will stay overnight, but is discharged later or transferred to another facility, still qualifies as a person with a “serious health condition.”


The 2008 FMLA regulations allow employers to request recertification of a serious health condition at least once every six months, even for lifetime conditions.  (29 C.F.R. section 825.308.)

However, the old and new CFRA regulations only allow an employer to request recertification “[u]pon expiration of the time period the health care provider originally estimated.”  (2 C.C.R. section 11091(b).)  The FEHC did not adopt the FMLA’s recertification provision because “[l]imiting the circumstances for which an employer may seek recertification is necessary to preserve privacy rights and protect employees on CFRA-qualifying leave from the unnecessary burden of being required to repeatedly justify their need for leave when medical authorization for the leave has already been provided.”

As such, because an employee with a serious health condition is likely using FMLA and CFRA leave concurrently, California employers still cannot request a medical recertification from employees with certified lifetime conditions.

Second opinion on medical certification.

The FMLA regulations (and former CFRA regulations) allow employers to require the employee to obtain a second opinion of his or her own serious health condition, if the employer simply has a “reason” to doubt the validity of the medical certification provided by the employee.  (29 C.F.R. section 825.307.)  The new CFRA regulations now clarify that the employer must have a “good faith, objective reason” to doubt the validity of the medical certification before requiring a second medical opinion.  (2 C.C.R. section 11091(b)(2).)

Notice Requirements

The new CFRA regulations change some of the notice requirements for employers.

Upon receiving a request for CFRA leave, the employer shall respond within five business days.  (2 C.C.R. section 11091(a)(6).)  This is different from the previous requirement of 10 calendar days.  Although the CFRA regulations do not adopt the specific notice requirements set forth in the FMLA regulations – the general notice, eligibility notice, rights and responsibilities notice, and designation notice – we recommend that employers use the same notices for both FMLA and CFRA for administrative ease and to ensure compliance with all notice requirements.  (Please note, however, when requesting medical certification from the employee, we recommend that California employers do not use the DOL’s sample form because it does not take into account the California Confidentiality of Medical Information Act.)

Every employer must post a notice explaining the CFRA provisions and procedures for filing complaints “in conspicuous places where employees are employed.”  (2 C.C.R. section 11095(a).)

In addition, employers must post the notice “where it can be readily seen by employees and applicants for employment.”  (2 C.C.R. section 11095(a) (emphasis added).)  “Electronic posting is sufficient to meet this posting requirement as long as it otherwise meets the requirements of this section.”  (Id.)  Employers may post the CFRA notice on an Intranet site, but employers will also need to post the notice in an area accessible to applicants.

Retroactive Designation of Leave

The FMLA regulations allow the employer to retroactively designate leave as FMLA leave with appropriate notice, provided that “the employer’s failure to timely designate leave does not cause harm or injury to the employee.”  (29 C.F.R. section 825.01.)

Similarly, the CFRA regulations only allow retroactive designation of leave as CFRA leave when the employer provides “appropriate notice to the employee and where the employer’s failure to timely designate does not cause harm or injury to the employee.”  (2 C.C.R. section 11091(a)(1)(B).)

Notably, the “harm or injury” must be caused by the employer’s failure to designate the leave as FMLA or CFRA leave earlier.  This is different from the harm an employee purportedly suffers from not being able to take additional leave time.

Although the regulations do allow for employers to designate leave retroactively, it is imperative employers designate leave and provide appropriate notice to employee as soon as practicable.

Use of Accrued Paid Leave While on CFRA Leave

Although not a change from the prior CFRA regulations, the new regulations clarify that an employer may require or an employee may elect to use vacation or paid time off while the employee is on CFRA leave.  In contrast, an employee may elect or an employer may require an employee to use accrued sick leave only if the CFRA leave is: (1) for the employee’s own serious health condition, or (2) for another reason mutually agreed upon between the employer and employee.  In other words, without employer agreement, employees cannot use sick leave to care for a family member with a serious health condition or for bonding leave.  (2 C.C.R. section 11092(b)(1).)

Use of sick leave to care for family members.

Even if the employer and employee do not “mutually agree” to allow use of accrued sick leave to care for a family member, the employer may still be required to allow the employee to use some of the sick leave for the employee to care for a family member with a serious health condition.  Labor Code section 233 (“kin care leave”) states that employers who provide sick leave “shall permit” employees to use accrued and available sick leave in an amount not less than the sick leave that would be accrued during six months of the employee’s current rate of entitlement.  The employee’s kin care leave to attend to an illness of a child, parent, spouse, or domestic partner could run concurrently with the employee’s CFRA leave.

In addition, AB 1522 (“Paid Sick Leave Law”), effective July 1, 2015, requires employers to provide up to three days of paid sick leave for employees to use for their own illnesses or to care for sick family members.  The overlap between the Paid Sick Leave Law and CFRA will only be for the caring of a parent, child, spouse, or registered domestic partner.  Most likely, this will be the same overlap covered by kin care leave.  (See Question 8 in our Special Bulletin on AB 1522, available here).

Employees receiving disability insurance while on leave.

An employee who is on paid disability leave or receiving Paid Family Leave (a form of insurance provided by the state) concurrently with his or her CFRA leave is not considered to be on “unpaid leave.”  Therefore, the employer cannot require any such employee to use paid time off, sick leave, or accrued vacation.  (2 C.C.R. section 11092(b)(2) and (3).)

Interaction with Pregnancy Disability Leave

In 2012, the FEHC published PDL regulations stating that an employee’s right to maintenance of health benefits while on PDL is a separate and distinct entitlement from an employee’s right to maintenance of health benefits while on CFRA leave.  (2 C.C.R. section11044(c).)  The new CFRA regulations reinforce the FEHC’s interpretation that the entitlements under the two leaves are separate and distinct.  (2 C.C.R. section 11092(c)(2).)  This would allow for an employee to potentially receive health benefits for up to 29 1/3 weeks.  Although the CFRA statute (Cal. Gov. Code section 12945.2(f)) arguably allows employers to limit maintenance of health benefit coverage 12 weeks, our recommendation is that employers follow the FEHC regulations and maintain health benefits during both the PDL and the CFRA leave separately.

What Does This Mean For Your Agency?

Update your leave policies.

With the new regulations going into effect on July 1, 2015, this gives your agency time to update its leave policies to comply with the new regulations.

Update your posted notices.

Update the notices posted by your agency in accordance with the updated text in the new regulations.  (See 2 C.C.R. section 11095(d).)  This includes any notices on your website.  However, as stated above, notices should be accessible to both employees and applicants.

Train your managers and supervisors.

Leaves laws are complicated and change frequently.  We suggest that agencies periodically train managers and supervisors regarding the new leaves laws and how they interact with each other.  This is a good year to provide training in light of the new Paid Sick Leave Law and the new CFRA regulations.

On April 2, 2015, we will be hosting a webinar where our attorneys will highlight the most important new requirements under the CFRA for California employers. Updates to definitions, notice requirements, medical certification requirements, and health benefits provisions are just some of the areas that will be addressed.  Register Today >


If you have questions about this issue, please contact our Los Angeles, San Francisco, Fresno, San Diego, or Sacramento offices.

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This article was also published on the firm’s California Public Agency Labor and Employment Blog.  To view other blog posts, please visit

Designating FMLA Leave in the Aftermath of Escriba v. Foster Poultry Farms

Posted in FMLA

Medical LeaveWhen the Ninth Circuit Court of Appeals, which covers California, issued its decision in Escriba v. Foster Poultry Farms last year, the decision was viewed as a victory for employers.  Now, however, the decision is raising more questions than answers as employers struggle with designating FMLA leave.

In Escriba, an employee declined to use FMLA when she left work to care for her ill father, opting to use two weeks of vacation time instead.  When the employee was terminated for failing to report back to work after the two weeks, she filed a lawsuit claiming that her termination was unlawful interference with her FMLA rights.  The Court upheld the termination because the employee chose not to have her time off count as FMLA leave and therefore, she was not entitled to job protection under the Act.  The Court concluded that an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.

Straightforward right?  Not so much.  Since the Escriba decision, employers are now unsure what to do when an employee refuses FMLA leave and when the reason for the leave is clearly an FMLA-triggering event.  Are employers now prohibited from designating leave as FMLA when the employee doesn’t want it so designated?  Or, can an employer designate leave as FMLA even if an employee prefers to use another type of leave?

The answer to these questions is that employers may still designate leave as FMLA even if the employee wants it to be considered differently, if the absence is for an FMLA qualifying reason.

First, there is nothing in the Escriba decision that expressly prohibits employers from unilaterally designating FMLA leave.  Escriba is an odd case involving strange facts, and among these is that for whatever reason, the company chose to accept the employee’s request to use vacation time to cover the absence even though the company had information that the leave could have qualified for FMLA.  The Court’s reasoning never contradicts that the company could have designated the leave as FMLA if it wanted, but simply elected not to do so.

Second, the FMLA regulations support an employer’s right to designate FMLA leave if the employee’s absence is for a FMLA-qualifying reason.  The regulations state the employer is responsible in all circumstances for designating leave as FMLA-qualifying, and for giving notice of the designation to the employee.  In particular, under the regulations when the employer has enough information to determine whether the leave is being taken for a FMLA-qualifying reason (e.g., after receiving a certification), the employer must notify the employee, generally within five business days, whether the leave will be designated and will be counted as FMLA leave.  If the employer determines that the leave will not be designated as FMLA-qualifying (e.g., if the leave is not for a reason covered by FMLA or the FMLA leave entitlement has been exhausted), the employer must notify the employee of that determination.

Sometimes employees will attempt to prevent employers from designating FMLA by not providing a medical certification.  If this happens, the employer can still designate FMLA if it has enough information to determine that the leave qualifies under the FMLA.  While obtaining medical certification is strongly recommended, the regulations do not expressly require it.  The regulations state “if any employer has sufficient information to designate the leave as FMLA immediately after receiving notice of the employee’s need for leave, the employer may provide the employee with the designation notice at that time.”  For example, in Escriba, the employee told her employer that she wanted time off to care for her ailing father.  In holding that the employee could refuse FMLA leave, the Court implicitly suggested that the employee’s care for her father was an FMLA-qualifying event even though there was no evidence that a medical certification was provided.

Nevertheless, employers who want to designate FMLA leave without medical certification should proceed with extreme caution and consult with legal counsel.  Improperly designating FMLA leave when no qualifying reasons exist could lead to an FMLA interference claim.

Beware! General Law Cities and Special Districts Must Comply with California Minimum Wage Laws for Employee Travel Time

Posted in Wage and Hour


hourglass-small.jpgThis blog post was authored by Megan Lewis

Public agencies are exempt from most, but not all, California’s wage and hour laws. Generally, the federal Fair Labor Standards Act (“FLSA”) governs public agencies’ wage and hour obligations. But general law cities and special districts are also subject to California’s minimum wage laws for some employee travel time.

Here are some common questions (and answers!) to help you navigate this confusing, and still developing, issue.

• When is travel time compensable for general law city or special district employees?

There is no simple answer that can cover every scenario, but these are some general principles.

General law cities and special districts are not required to pay employees for their commute time in their personal vehicles between home and their regular work locations. If an employee uses a take-home vehicle to commute and is very restricted from using the agency vehicle for personal use, such as not being allowed to run personal errands or transport others during the home-to-work commute, then the travel time may be compensable, depending on how restricted the time is.

Likewise, where an employee travels to a non-regular job site, any additional time it takes the employee to reach the new location in excess of his or her normal commute time is generally compensable.

Where an employee is required to travel out-of-town for work, the employee is entitled to be compensated for travel time to and from his or her destination. This includes time spent driving or as a passenger (in a car, airplane, bus, taxi, etc.), as well as time spent buying a ticket, waiting to board, and the like. However, if the employee took his or her regular meal period or engaged in purely personal pursuits (i.e., stopping at a tourist attraction to sightsee along the way), the agency may deduct that time, although this area of the law is still evolving.

• Does travel time have to be paid at the same rate as other types of work?

Not necessarily. General law cities and special districts can establish a separate rate of pay for travel, as long as the rate does not fall below the state minimum wage requirements, but they must do so before the employee engages in the travel. However, where an employer has agreed to pay a fixed hourly rate of pay for any work performed, which is often the case for public agencies, travel time must be paid at that regular hourly rate, or, if applicable, the required overtime rate.

• If we are paying for travel time, do we still have to reimburse expenses?

Yes! Employers have an independent obligation to reimburse employees for expenses incurred in the course of employer-required travel. The employer’s payment of travel expenses, meal expenses, conference expenses, etc. does not offset or negate the employer’s obligation to pay for the employee’s actual travel time.

Travel time is one of the trickiest areas of wage and hour law for all agencies. If your agency does not have a current policy regarding when employee travel time is compensable, we recommend working with legal counsel to develop a policy that is in compliance with the laws applicable to your specific agency.

Tips from the Table: Must-Have Items in Your MOUs

Posted in Labor Relations, Negotiations

We are excited to continue our video series – Tips from the Table. In these monthly videos, members of LCW’s Labor Relations and Negotiations Services practice group will provide various tips that can be implemented at your bargaining tables. We hope that you will find these clips informative and helpful in your negotiations.

Appellate Law – The Final Judgment Rule and its Exceptions

Posted in Litigation

Gavel-and-Books.JPGMany times, parties to a lawsuit receive trial court rulings in the midst of the litigation that are unfavorable, oppressive, and seem to them to be demonstrably wrong.  The parties want to appeal immediately, but their counsel will say that cannot happen, citing the “Final Judgment Rule.”  The rule certainly sounds dark and fateful.  Perhaps courts intend it to be, because the rule serves to deter disgruntled litigants from appealing while the trial court case is ongoing, and typically requires those litigants to wait months, or even years, to appeal.  So what is this rule?  And perhaps more importantly, what are ways to gain access to an appellate court early without offending it?

The Final Judgment Rule (sometimes called the “One Final Judgment Rule”) is the legal principle that appellate courts will only hear appeals from the “final” judgment in a case.  A plaintiff or defendant cannot appeal rulings of the trial court while the case is still ongoing.  For example, a party that loses its motion to compel discovery, motion for summary judgment, or demurrer cannot appeal these decisions, at least not until a final judgment has been entered in the case, concluding the lawsuit in the trial court.  The Final Judgment Rule has existed for hundreds of years, and serves the purpose of promoting judicial efficiency – cases would practically never end if the party who lost a motion while the case was pending could appeal it, wait for a decision from the court of appeal, and then continue with the trial court case.

Moreover, the Final Judgment Rule greatly reduces appellate court workloads by tending to make it so that only very important issues are ultimately presented to those courts.  If a party loses a motion early in the trial court case, they may certainly feel wronged.  But in the weeks or months afterward, the case may settle, the issue may fade in importance, or the trial court might actually decide to change the ruling, making appellate review unnecessary.  Postponing review conserves appellate court resources, and those of the parties as well.  In addition, postponing appellate review allows the appellate court to rule on all the challenges to the trial court’s decisions at the same time, thereby further promoting efficiency.  The appellate court will not have to consider “piecemeal” appeals.

The Final Judgment Rule may make sound policy sense.  But it is not much comfort to a litigant who has lost an important motion in court many months before the actual trial will start and cannot immediately appeal the bad ruling.

There are, however, some ways around the Final Judgment Rule.  Here are examples of four significant ways, and the circumstance under which each is available.

  1. Petition for Writ of Mandamus:

This is the classic method for obtaining relief while a litigation matter is still ongoing.  This type of petition to an appellate court seeks a “writ of mandamus” (sometimes also called a “writ of mandate”), essentially an order from the appellate court to the trial court directing it the trial court to change its decision or take some other action.  This type of writ is available in both federal and state courts.

The advantage of a petition for writ of mandamus is that it is available to overturn essentially any ruling or order made by a trial court, even though the lawsuit is still ongoing.  The disadvantage of this type of petition, however, is that it is entirely discretionary in the court of appeal.  The court of appeal is free to turn down any writ petition, even one that clearly has merit, and the court of appeal denies the overwhelming majority of petitions for writ of mandamus seeking review of trial court orders.  The state court percentage of accepted petitions is low and the number is even lower in federal court.  The reason these writs are so often denied on this summary basis (i.e., without even considering whether they raise a valid legal point) is that courts of appeal rarely see any reason to depart from the underlying principles of the Final Judgment Rule.

There are particular types of scenarios in which appellate courts are more likely to decide a writ on the merits.  One is when issues of privilege or confidentiality are concerned.  For example, when a trial court orders a litigant to disclose sensitive personnel records of individuals or information in which the litigant claims attorney-client privilege, the need for appellate review is immediate.  If the litigant obeys the trial court’s order, then the disclosure will be made, and the alleged harm done, before any appellate court can determine whether the trial court’s ruling in fact was correct.  It is widely understood that in these scenarios, appellate courts will more likely choose to intervene in the midst of litigation.

Another example is when the issue raised by the writ petition is one of great public importance, and when the party who files the petition can persuade the court that the public would be well served by the appellate court immediately reviewing and providing guidance on that particular issue without waiting for the case to conclude.

  1. A Preliminary Injunction Ruling:

The parties can also immediately appeal a trial court’s ruling granting or denying injunctive relief.  Trial courts have the power to issue preliminary injunctions at the beginning of a case that can operate to preserve the status quo.  For example, a trial court can order that a public college must stop enforcing a rule that supposedly stifles student First Amendment free speech rights.  Trial courts can make these orders based on an initial showing by the plaintiff, at the beginning of the case, that they are likely to succeed on the merits of their claim, that they are likely to suffer irreparable harm if the preliminary injunction is not granted, and that general equities and the public interest support issuance of the injunction.

Not only are these types of orders for injunctive relief by trial courts (either granting or denying) immediately appealable, but in the federal appellate courts, appeals of injunctions are given priority over other types of cases.

  1. Rulings on Anti-SLAPP Motions:

An immediate appeal is also available from a state trial court’s ruling on what is known as an “anti-SLAPP motion.”  This type of motion can be used by a defendant, including a public entity, in response to a lawsuit that challenges conduct by the defendant in furtherance of the defendant’s right of petition or free speech as defined by the anti-SLAPP statute.  (SLAPP stands for “Strategic Lawsuit Against Public Participation,” and is meant to refer essentially to meritless lawsuits brought against persons or organizations to punish them for and/or deter them from speaking out on important issues or petitioning the government for redress.)  The statute defines protected activities very broadly.  Indeed, courts have interpreted the definition to include government statements in various types of proceedings, including internal investigations conducted by public entities as to their employees.  (Hansen v. California Dept. of Corrections and Rehabilitation.)

If the anti-SLAPP statute applies in a given context, then the defendant can make a motion at the outset of the case to have a trial court determine if there is any “probability” of success on the claim.  If the plaintiff cannot present evidence making this showing of a “probability,” then the trial court rules in favor of the defendant.  If the defendant wins the motion, the trial court will require the plaintiff to pay the defendant’s attorneys’ fees and costs.  Thus, another very important way to have an appeal heard early in state court is to bring an anti-SLAPP motion.

  1. Qualified Immunity Decisions:

Another judicial determination that is often immediately appealable, in the midst of litigation, is a federal trial court’s decision on the defense of qualified immunity.  This is a defense available to individuals who are officials or employees of government agencies and are named personally in federal civil rights lawsuits.  In general, the defense of qualified immunity applies when the individual defendant is challenged for actions he or she took relating to an area of law that is unclear or unsettled.  If it is sufficiently difficult for the individual to tell what is constitutionally prohibited in the situation in question, then this defense will apply.  Qualified immunity will not provide a defense to claims for declaratory or injunctive relief against the individual, but it will serve as a defense to a monetary damages claim.

If the trial court either grants or denies a motion based on qualified immunity in the middle of the case, then either side respectively can appeal the determination, if the appeal involves essentially legal questions such as whether the plaintiff’s alleged rights at issue were sufficiently unclear to merit applying the defense.  The defense applies in a wide variety of cases brought against government officials and employees.  Significantly, individual defendants can claim the qualified immunity defense in wrongful termination cases in which the former employee claims violation of his or her constitutional free speech or due process rights.

Each of these four ways to obtain appellate review on an interlocutory basis — i.e., in the middle of the case — are available to public entity defendants.  This gives public entities a unique ability in many cases to structure the defense to obtain immediate access to an appellate court, and thus have important matters resolved before the case concludes.

For other litigation posts on related issues, see prior LCW posts: “Anti-Slapp Motions As A Litigation Resource For Public Employers,” “Extending Qualified Immunity To Private Individuals,” and “Appellate Law — What Are Amicus Curiae Briefs?”