We are excited to continue our video series – Tips from the Table. In these monthly videos, members of LCW’s Labor Relations and Collective Bargaining 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.
On September 7, 2017, United States Secretary of Education Betsy DeVos spoke at George Mason University Antonin Scalia Law School to discuss problems with the current Title IX enforcement system and identified the need to establish a regulatory framework that better serves all students.
BACKDROP TO DEVOS’ REMARKS
Title IX of the Education Amendments Act of 1972 is a federal civil right law that requires educational institutions to maintain policies, practices, and programs that do not discriminate against anyone on the basis of gender. Title IX applies to all educational institutions, both public and private, that receive federal funds.
The Office for Civil Rights (OCR) at the United States Department of Education is charged with the responsibility to enforce Title IX and its implementing regulations. As part of its enforcement authority, OCR released a series of Dear Colleague Letters and other guidance, providing its expectations and requirements regarding legal compliance. Through this guidance OCR made clear that gender equity under Title IX includes the institutional obligation to prevent, investigate, and stop what it termed “sexual misconduct” that impacts the educational environment. (See, e.g., Office for Civil Rights, U.S. Dep’t. of Educ., “Dear Colleague Letter: Sexual Violence” (2011); Office for Civil Rights, U.S. Dep’t. of Educ., “Questions and Answers on Title IX and Sexual Violence” (2014).) OCR’s guidance has been criticized for lowering the standard of proof schools use in adjudicating complaints of sexual misconduct. Critics also faulted OCR’s guidance for seeming to require vague and overly broad sexual harassment policies, violating due process rights of students accused of sexual misconduct, and infringing upon free speech rights.
DEVOS ANNOUNCES INTENT TO AMEND TITLE IX REGULATIONS
In her remarks, Secretary DeVos echoed the concerns that have been raised regarding the OCR guidance. She also noted considerable confusion about the guidance since it was issued, and asserted the current federal approach has done a disservice to survivors of sexual violence, students accused of sexual misconduct, and school administrators. However, instead of rescinding OCR’S guidance documents (which would be within her authority to do), DeVos announced the Department of Education will launch a public comment period to inform the development of new federal regulations pertaining to campus sexual assault policies. This is significant because a federal regulation, as opposed to a Dear Colleague Letter, has greater force in establishing the obligations of educational institutions. Secretary DeVos solicited recommendations from “important perspectives” regarding Title IX enforcement issues including alternative models to traditional adjudication, the appropriate standard of proof for campus-based proceedings, investigation methods, and the role of campus officials.
WHAT THIS MEANS FOR COVERED EDUCATIONAL INSTITUTIONS
First, no immediate action is required. Until the Department of Education publishes new regulations or provides official guidance that supersedes existing guidance, educational institutions should continue to follow the guidance of the 2011 Dear Colleague Letter and 2014 Q & A document. However, they should do so with care to ensure that the due process rights of accused students are protected. Both courts and OCR itself have found some schools violated the accused’s due process rights in their attempts to comply with Title IX.
Second, consider utilizing the public comment period: By law, Federal agencies must consult the public during rulemaking. Anyone, including individuals or institutions, may submit a comment aimed at developing and improving federal regulations, and the Department of Education will review and consider all submissions. It is an opportunity to be heard and make a record of ideas or positions on the topic.
Read Secretary DeVos’s prepared remarks for examples of problems she cites with the current Title IX enforcement system. We will provide information on the notice-and-comment process as it becomes available and continue to send out similar alerts as new developments unfold.
Religious diversity, including the protection of religious minorities, is a core American value, as shown by its prominent placement in the First Amendment of the U.S. Constitution, in the establishment and free exercise clauses. California is, unsurprisingly, a leader in religious diversity. Many religious believers adhere to, and find deep meaning in, religious observances including particular days of rest and grooming and dress standards.
These religious practices or observances may at times conflict with an employer’s otherwise neutral requirements such as work schedules or dress codes. Employers are obligated under California law to accommodate these practices unless such accommodation would place an “undue burden” on the employer.
Statutory and case law provide some insight as to when an accommodation would be found to be an “undue burden.” On January 1, 2013, California enacted the Workplace Religious Freedom Act (WRFA), which amended the Fair Employment and Housing Act (FEHA) and established that, for the purposes of religious discrimination under the FEHA, protected “religious belief or observance” includes religious dress and grooming practices.
Further, the WRFA established that an employer cannot achieve a reasonable accommodation of a religious practice by segregating the employee from the general public; i.e., requiring an employee with a religious dress or head covering to work in a back office when their ordinary duties would have them at a public counter.
Finally, the WRFA clarified that the “undue burden” standard under the FEHA is a higher bar for employers to clear than the “de minimis” standard applied by some federal courts. Accommodations can include, but are not limited to, dress and appearance policy exemptions, schedule changes, voluntary shift trades, temporary accommodations, or transfers.
Further guidance can be drawn from published case decisions. In most instances, California employers will be required to accommodate employees’ scheduling differences for religious observances such as Sabbaths or religious holidays. For example, in the 2004 case California Fair Employment and Housing Commission v. Gemini Aluminum Corp., the California Court of Appeal held that an employer violated the FEHA by failing to initiate good faith efforts to accommodate the employee’s religious observance where the employer summarily denied, without discussion, the employee’s request, made two weeks in advance, to attend an important religious convention. Likewise, the Ninth Circuit held in the 1999 case Balint v Carson City, Nevada, that an employer may have to reorganize all employees’ shifts and allow split shift’s in order to accommodate an employee’s Sabbath.
Further, the U.S. Court of Appeals for the Third Circuit held in Fraternal Order of Police Newark Lodge No. 12. v. City of Newark that if the evidence shows that the employer would make a particular accommodation for a disability, it must be willing to make the same accommodation for religion. In Newark, two Sunni Muslim police officers challenged the City’s zero-tolerance no-beard policy for officers who had not received a medical waiver. However, the department routinely gave waivers to officers with pseudofolliculitis barbae (PFB), a skin condition that results in significant inflammation from shaving. The Court held that the department disfavored religion, as compared to the secular concern of disability, by accommodating officers with PFB but not religiously observant officers, and that the department was required to accommodate the Sunni Muslim officers by allowing them to wear beards of at least the same length as officers with PFB. Although this opinion is not binding on California courts, it was authored by then-Judge Samuel Alito, who is now a justice of the United States Supreme Court. Further, the Newark opinion was followed by the U.S. Court of Appeals for the Ninth Circuit, which does have jurisdiction over California, in an unpublished case regarding an Orthodox Jewish officer of the Las Vegas Police Department. While it is uncertain if California courts would apply this standard, the safest course for California employers is to provide at least the same accommodations for religious purposes as they do for disabilities.
Employers’ obligation to attempt to accommodate religious practices can be trigged by a belief or a suspicion that the employee may need an accommodation, even if the employee has not asked for an accommodation or informed the employer of a religious observance. The U.S. Supreme Court, in its 2015 decision in EEOC v. Abercrombie & Fitch Stores, Inc., held that an employer had violated federal discrimination law when it declined to hire a candidate for employment because she wore a headscarf to her interview, which arguably violated the company’s “Look Policy” and which it believed, but did not actually know, she wore as a religious practice that required an accommodation.
However, an employer’s obligations to accommodate employee religious practices are not without limitation. Some potential accommodations do place undue burdens on employers, and do not have to be granted.
For example, a requested accommodation puts an undue burden on an employer if it would require the employer to break the law. The Fifth Circuit held that the federal government was not required to accommodate a Sikh employee’s observance of wearing of a kirpan (a small sword) with a three inch blade where federal law prohibited blades of that length in federal buildings. The Eighth and Ninth Circuits have held that employers were not required to accommodate employees’ refusal, on religious grounds, to disclose their Social Security numbers.
In the 2004 case Peterson v. Hewlett-Packard Co., the Ninth Circuit held that an employer was not required to accommodate an employee’s religious beliefs by allowing the employee to post anti-gay signs quoting Biblical scriptures in the workplace. This would have created an undue burden because an employer need not accommodate an employee’s religious practice or expression if doing so would discriminate against his co-workers, deprive those co-workers of contractual or statutory rights, or impose that employee’s religious beliefs on them. The court also rejected the employee’s proposed accommodation of the company taking down its pro-diversity posters, because it would have infringed upon the company’s right to promote diversity and encourage tolerance and good will among its workforce.
Employers should take care to give serious consideration to employee requests or needs for accommodations of religious practices, and actively participate in an interactive process with employees to find an accommodation that does not create an undue burden; it is advisable that this effort be undertaken with the advice of experienced counsel.
On September 5, 2017, United States Attorney General Jeff Sessions announced the rescission of the Deferred Action for Childhood Arrivals (“DACA”) program, a 2012 program created under the Obama administration that deferred deportations and provided work permits for those who met the program’s criteria. The Department of Homeland Security (“DHS”), the federal agency that oversees the program, formally rescinded the program via a memorandum informing the public that DACA will be phased out and will end by March 5, 2018 unless Congress passes a legislative alternative. This action rescinds the June 15, 2012, memorandum entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” which established the program. California is home to more than 200,000 DACA recipients.
Who are DACA recipients?
To qualify for DACA status, applicants were required to establish they 1) Were under the age of 31 as of June 15, 2012; 2) Came to the United States before reaching his/her 16th birthday; 3) Continuously resided in the United States since June 15, 2007; 4) Were physically present in the United States on June 15, 2012 and at the time of making his/her request for consideration of deferred action with USCIS; 5) Had no lawful status on June 15, 2012; 6) Were in school, graduated or obtained a certificate of completion from high school, obtained a general education development (GED) certificate, or were honorably discharged veterans of the Coast Guard or Armed Forces of the United States; and 7) Had not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and did not otherwise pose a threat to national security or public safety. Individuals who received DACA status are often referred to as “Dreamers”.
What did DACA provide?
Under the DACA policy, undocumented immigrants who applied and demonstrated they meet the criteria were eligible to receive deferred removal action for a period of two years, subject to renewal, and were also eligible to apply for work authorization. Only those DACA recipients who demonstrated “an economic necessity for employment” were eligible for work authorization.
What happens to current DACA holders in light of the policy rescission?
DACA recipients will retain both the period of deferred action from removal proceedings and Employment Authorization Documents (work permits) until they expire. DHS has discretion to end those benefits before they expire on a case-by-case basis. However, DHS stated it will not terminate previously granted DACA status or Employment Authorization Documents for the remaining duration of their validity periods solely based on the directives in the September 5, 2017, memo.
DHS will individually adjudicate all initial requests for DACA status that it received as of September 5, 2017. DHS will also individually adjudicate all status renewal requests received by October 5, 2017, for DACA recipients whose benefits expire between now and March 5, 2018. DACA recipients whose benefits expire after March 5, 2018, are not eligible to renew their benefits if they have not already submitted a renewal action.
DHS will continue to exercise its discretionary authority to terminate or deny deferred action at any time when immigration officials determine termination or denial of deferred action is appropriate. When an individual’s deferred action period expires or is terminated, his or her removal will no longer be deferred; that individual will be subject to deportation and will no longer be eligible for lawful employment unless Congress enacts new legislation. There is uncertainty as to what will happen during the six-month period Congress has to act.
Will this affect travel of DACA recipients?
Prior to September 5, 2017, DACA recipients had to apply for an advance parole travel document in order to re-enter the United States if they left the country for any reason. DHS will no longer approve advance parole applications for DACA recipients but will generally honor previously approved advance parole it granted. Customs and Border Patrol has authority to exercise discretion in determining the admissibility of any person presenting at the border and the eligibility of such persons for parole. DHS retains the authority to revoke or terminate an advance parole document at any time. As a result, DACA recipients should carefully consider travel outside of the United States as it is unclear how these policy changes will impact their ability to return.
Employers may be concerned about the effects of this policy change on their workplace. Depending on when an individual was granted or renewed his or her DACA status, DACA benefits could expire as soon as March 2018, if not sooner, or as late as 2020 if renewed before the October 5, 2017, cutoff date. DACA recipients who received Employment Authorization Documents have a right to work using those documents until they expire.
DACA recipients working under an Employment Authorization Document are protected from adverse employment actions. Employers may not be aware that some of their employees are DACA recipients and should not seek to identify them. California Labor Code section 1019.1 protects immigrant employees from document abuse including from an employer’s refusal to honor documents or work authorization based upon the specific status or term of status that accompanies their authorization to work. Similar protections exist under the anti-discrimination provision of the federal Immigration and Nationality Act. DACA employees are also protected against discrimination and harassment on the basis of race or national origin under both state and federal law.
However, once the Employment Authorization Documents expire, an employer can no longer employ DACA recipients without risking civil and criminal penalties. (8 U.S.C. § 1324a(a)(1)(A) and (a)(2)) Federal law prohibits the continued employment of an undocumented person once the employer knows the individual is or has become unauthorized for employment.
The phasing out of DACA does not impact a student’s ability to attend California’s higher education institutions, qualify for an exception from non-resident tuition fees under AB 540, or to apply for financial aid under provisions of the California Dream Act. AB 540 and the California Dream Act are state programs that are entirely separate and distinct from DACA and the federal enforcement of immigration laws.
What happens next?
Congress has the authority to amend the existing immigration laws. See the Frequently Asked Questions document that addresses the rescission of DACA released from DHS. We will continue to send out similar alerts as new developments unfold in this quickly changing landscape.
Violent and tragic events in Charlottesville, and the intense national debate that followed, have put the issue of hate speech at the forefront of the public’s attention. A number of publications have addressed the issue of when a private employer can discharge an employee who, on the employee’s own time, participates in organized hate speech. Publications have been careful to narrow their analysis to private employers because the issues for public employers are more complex. There are some answers, however, and public employers can and do have the ability to take decisive action.
General First Amendment Principles
What if a public employee, be it a city clerk, a teacher, a police officer or a firefighter, appears on the TV news engaging in organized expressive activities that are antagonistic to persons in protected classifications like race, gender, sexual orientation or religion? If the individual is identified publicly in the media, there can be very substantial impacts on the agency. Even if the individual is not identified, the agency could have well-founded concerns about the employee’s conduct ultimately reflecting negatively on the agency and on the employee’s effective performance of job duties.
The agency has to act in a manner consistent with the First Amendment. Although the First Amendment does not protect such forms of speech as obscenity, true threats and defamation, courts have not yet developed an exception for hate speech. In the 1992 U.S. Supreme Court case R.A.V. v. St. Paul, in an opinion by the late Justice Scalia, the Court determined that even what is commonly seen as hate speech can have constitutional protection. (A 1969 Supreme Court case, Brandenburg v. Ohio, had a similar holding.) In addition, many legal scholars have struggled to provide a concise definition of hate speech that would not be vague and impossible to apply consistently.
Just because expression has First Amendment protection, however, does not mean the speech cannot be regulated. Speech can be regulated in a manner consistent with the First Amendment so long as the government can show a sufficiently compelling interest and as long as courts determine that other specific criteria are met. As of the Summer of 2017, courts may more readily view hate speech as subject to regulation, in part because of its ability to incite violence imminently in the current climate.
Responding to Employee Conduct
If an employee engages in improper conduct outside of work, including expressive conduct, and the public employer believes the employee should be disciplined for it based on harm to the agency, there are a number of unique legal issues public employers must consider.
- Personnel or Other Rules at Issue
At the outset, the employer must identify specifically what workplace, personnel, administrative or other agency rule was violated by the employee’s expressive conduct and association. This will likely not be difficult, given that agencies, in particular public safety agencies, invariably have rules that restrict associations even outside the office (for example, prohibiting public safety employee association with felons and criminal gangs). Agencies also have various “conduct unbecoming” policies. Nevertheless, for some agencies, and for some jobs, it may be more problematic to identify a particular rule at issue, particularly if the employee classification does not involve substantial interaction with the public.
- First Amendment Considerations
Next, the public employer must consider the First Amendment free speech and association implications of disciplining employees, even assuming that a workplace rule applies to prohibit the conduct at issue. Under the First Amendment, a public employee has the right to engage in speech on matters of “public concern” that are outside of the employee’s official duties. (The Supreme Court described this framework in its cases Garcetti v. Ceballos and Connick v. Myers.) In evaluating “public concern,” courts do not take into account whether an employee’s viewpoint on a particular issue is or is not abhorrent to society. As a result, even heinous and offensive views on political or cultural issues will likely meet the “public concern” requirement. If the employee’s speech satisfies this criterion, then the public employer can only discipline an employee for the speech if the employer can satisfy a balancing test, in particular, that the employee’s speech interests are outweighed by the legitimate administrative interests of the agency. (See, Pickering v. Board of Education.)
- Off-Duty Conduct and Relation to Work
The public employer also has to contend with general principles of law that prohibit disciplining employees for off-duty conduct. The United States and California Constitutions, as well as other laws, to some extent protect the privacy of employees in their off-duty conduct. Employers can only control off-duty conduct in limited circumstances when an employee’s right of privacy in personal activities is outweighed by an employer’s legitimate workplace interests.
It is important for the employer to be able to make the required showing of impact on the agency. A public employer may be able to make this showing by demonstrating that certain off-duty conduct harms the reputation or credibility of the agency, makes the employee unable to perform his/her duties satisfactorily, impairs working relationships with fellow employees, or hinders the agency in managing and directing its work force.
Another consideration is the off chance that an employee’s expression takes place in a context that could be considered “political” within the meaning of various state statutes governing political expression of employees. In California, specific statutory provisions limit the right of public employers to restrict political activities by their employees outside of work. Government Code section 3203 limits the right of cities, counties and most districts to place any restriction on the political activities of employees. One clear exception is that safety employees cannot participate in political activity while in uniform. (E.g., Gov. Code, § 3206.) In addition, California Labor Code sections 1101 and 1102 contain restrictions on employer efforts to control, direct or coerce employees with regard to political activities.
- Concerted Activity and Labor Relations
The public employer also has to be satisfied that the speech can be the basis for discipline consistent with state labor relations laws. Thus, the employer should determine whether the speech constitutes concerted activity regarding wages, hours and working conditions. Such speech could be recognized as protected by the Public Employment Relations Board (“PERB”). An example (from the context of the private sector and the federal National Labor Relations Act (“NLRA”)) is the recent conduct of a Google employee who wrote an internal memo questioning the company’s diversity efforts and making comments explaining the low number of women in technical positions. The employee lost his job at Google, and has since claimed that his conduct was protected speech on wages, hours and working conditions, and thus supposedly protected concerted activity under federal law. It remains to be seen how the federal labor board and courts will receive his claim, and whether they will ultimately consider his contentions as against public policy as expressed in federal statutes that prohibit discrimination on the basis of sex.
In general, in identifying bases for discipline, employers can look to numerous legitimate interests of the agency to discipline employees for participating in hate activities — to avoid an appearance of bias in other administrative functions; and to avoid creating an atmosphere in an agency that can contribute to claims of discrimination or hostile environment. For public safety in particular, the appearance of a lack of bias in serving the public in vital public safety functions can provide strong support for administrative actions. As can be expected, consulting with legal counsel in this process is advisable.
A California Court of Appeal recently found that the City and County of San Francisco’s disciplinary procedure for police officers is not compliant with the Public Safety Officers Procedural Bill of Rights Act (“POBRA”), which requires that all California law enforcement agencies provide officers with certain minimum procedural rights. In Morgado v. City and County of San Francisco (13 Cal.App.5th 1), which was published on June 27, 2017, the Court of Appeal reiterated that officers are entitled to an administrative appeal of punitive action and determined that the City had not provided such an appeal.
In 2008, a private citizen filed a misconduct complaint against Officer Morgado with the City’s Office of Citizen Complaints (“OCC”), which is charged with investigating and making findings on civilian complaints of on-duty police officer misconduct. The OCC investigated and forwarded its conclusions and recommendations to the police chief, who ultimately filed a disciplinary complaint against the officer with the Police Commission. After further investigation and an evidentiary hearing, the Commission determined that the officer had engaged in misconduct, including use of unnecessary force. He was terminated in 2011 as a result of these findings. The decision of the Commission was final in that the City had no mechanism for an internal, administrative appeal of the termination.
Morgado sued the City, the OCC, the police chief, and the Commission in superior court. In the course of discovery, the City admitted that the Commission’s decision to terminate him was “the only punitive action undertaken against him” and that he did not have the opportunity to file an administrative appeal challenging that decision.
The superior court ultimately ruled in favor of the officer, vacated his termination, ordered the City to give him the opportunity to appeal the Commission’s decision to terminate his employment, and enjoined the Commission from imposing any punitive action against him without first giving him the opportunity to lodge an administrative appeal of such action.
The Appellate Court’s Ruling
The central POBRA provision at issue in the Court of Appeal’s ruling is Government Code section 3304(b), which establishes that public safety officers must be provided the opportunity to appeal punitive actions. The legislature created this appeal right so that officers can “establish a formal record of the circumstances” surrounding any punitive action and “attempt to convince the employing agency to reverse its decision[.]”
On appeal, the City took the position that the police chief’s disciplinary complaint to the Commission was the first punitive action against the officer and therefore the subsequent evidentiary hearing before the Commission fulfilled the City’s obligations under section 3304(b) to provide an appeal. Morgado argued that the termination decision following the Commission hearing was the only punitive action against him, and the City violated POBRA by failing to provide him with an opportunity to appeal the termination.
The Court of Appeal acknowledged that the police chief’s disciplinary complaint could constitute punitive action under POBRA, but found that a public agency does not satisfy section 3304(b) by only allowing an appeal of this type of “interim step” in the disciplinary process. The Court found that, even though the City provided an evidentiary hearing before the Commission, “Morgado had no opportunity to attempt to convince the City to reverse its decision to terminate him, because no further administrative proceedings occurred after the Commission made that decision.”
The Court of Appeal affirmed the superior court’s decision.
What Happens Now?
The City has indicated that it will comply with the appellate court’s ruling, but the City has not provided any details regarding the type of appeal it will provide or which City official or department will be responsible for hearing the appeal.
What Does this Ruling Mean for My Agency?
This case serves as an important reminder that the appeal right in section 3304(b) was created in order to ensure that public safety officers have the opportunity to convince the agency not to implement proposed discipline. It follows that only allowing an officer to appeal an intermediate step in the disciplinary process, even if that step appears to constitute punitive action on its own, is not sufficient to satisfy POBRA. LCW recommends that agencies take this opportunity to ensure that their disciplinary procedures for law enforcement officers are POBRA-compliant.
This post was authored by Jolina A. Abrena
Over the past decade, employers have been daunted with increased litigation, including overtime cases filed under the Fair Labor and Standards Act (“FLSA”). Indeed, in the 2016 Fiscal Year, the Wage and Hour Division (“WHD”) of the U.S. Department of Labor determined that there were violations in 10,884 FLSA overtime cases (84% of cases) with $171,917,225 in back wages owed. This is an increase from the 2015 Fiscal Year where the WHD determined there were violations in 10,496 FLSA overtime cases (78% of cases) and $137,701,703 in back wages owed.
There is some good news for employers in this litigious era. The Seventh Circuit Court of Appeals (which has jurisdiction over Illinois, Indiana, and Wisconsin) recently affirmed judgment in favor of a public agency employer where it lacked actual and constructive knowledge that members of its police department were performing off-the-clock overtime work on their smartphones. In Allen v. City of Chicago, current and former members of the Chicago Police Department’s Bureau of Organized Crime (“Bureau”) brought a collective FLSA action alleging they were owed overtime pay for time spent after normal work hours monitoring and responding to email on their mobile electronic devices (BlackBerrys).
At trial, the central issue was whether the plaintiffs were prevented or discouraged by the Bureau’s supposed “unwritten policy” from submitting overtime slips. The evidence showed that the police department has a process that officers use to obtain overtime compensation, i.e., they submit “time due slips” to their supervisors with explanations for the overtime work performed; supervisors approve the time; and the approved time due slips are sent to payroll and processed. The plaintiff-employees collectively reported and received pay for three to four thousand overtime hours per year from 2011 to 2014. During the period relevant to their FLSA overtime action, however, many plaintiffs did not submit slips for off-duty work done on their mobile electronic devices.
The plaintiffs introduced evidence of the police department’s general orders on “guidelines and responsibilities” for officers using department-issued electronic devices. These stated that officers were not required to use such devices while off-duty and that officers would not be compensated for such use except in two circumstances: (1) if the officer was on a “call-back” assignment; or (2) if a superior directed and authorized overtime for the work. The trial court determined that the general orders did not create a policy of not compensating plaintiffs for overtime worked, and they did not reaffirm an existing unwritten policy. The Court found that there was no common culture at the Bureau which discouraged plaintiffs from submitting slips for responding to email off-duty. The Court observed that some plaintiffs submitted slips for such work and were never denied compensation, and no one was ever reprimanded or disciplined for submitting such slips. The trial court concluded that the City was not liable for the uncompensated hours because the plaintiffs failed to prove that the City had actual or constructive knowledge the work had been performed.
On appeal, the Seventh Circuit affirmed the lower court’s ruling in favor of the City. In making its decision, the appellate court discussed and agreed with the ruling of the U.S. Court of Appeals for the Ninth Circuit in the 1981 case Forrester v. Roth’s I.G.A. Foodliner, Inc. In that case, the Court affirmed summary judgment for employer where the employer had no actual or constructive knowledge that the employee was engaging in overtime work. The Court described that there is no FLSA liability where the employee fails to notify the employer or deliberately prevented the employer from acquiring knowledge of overtime work. (The Ninth Circuit has jurisdiction over California.)
The Seventh Circuit rejected the plaintiffs’ position that the City had constructive knowledge where it could have theoretically known about uncompensated work through, for example, examining all its records. It noted that employers are held to the “reasonable diligence standard [which] asks what the employer should have known,” not what “it could have known.” The Seventh Circuit found that while the Bureau knew about some off-duty BlackBerry work, the Bureau did not know that such work was not being reported and paid, and the plaintiffs knew the procedures for claiming overtime pay and used them without regular reminders. The Seventh Circuit agreed with the trial court that the police department’s general orders did not establish an unwritten policy that denied plaintiffs compensation for off-duty BlackBerry work.
The Seventh Circuit’s decision reminds employers to review and update its policies for clarity and understanding and to provide training on its compensation policies. Implementing these practices can assist employers in defending against off-the-clock overtime lawsuits.
Often times, an employee may know that discipline or a poor performance evaluation is imminent. Occasionally, such an employee will engage in a preemptive strike—“You can’t discipline me or give me a poor performance evaluation now since I have submitted a complaint.” While this may not necessarily be the norm, it is also not unheard of, causing employers to go from being confident in their decision to being uncertain and worried about the possibility of costly litigation.
Many believe retaliation claims are the easiest for employees to allege and prove. Therefore, it is not surprising that retaliation claims accounted for 40.7 percent of the charges in California that were submitted to the Equal Employment Opportunity Commission (EEOC) in 2016. Similarly, the California Department of Fair Employment and Housing received 1,688 retaliation complaints in 2016, which was the second highest percentage of claims at 21 percent. An additional reason retaliation claims are much more prolific than other protected status claims is that retaliation can be asserted based upon any protected activity (e.g., whistleblower, using federal or State family leave, complaining on behalf of another person, safety, wage and hour complaints, etc.) It is not necessary to be a member of the protected class in question to assert a retaliation claim (an example would be a man complaining about alleged discrimination against women). The employee just needs some type of protected activity.
Retaliation claims are also often the most problematic for employers to defend. For example, even an employee’s “good faith belief” that he has engaged in protected activity could meet the requirements for a retaliation claim. In a 2016 case, Castro-Ramirez v. Dependable Highway Express, Inc., an employee complained about his hours being changed because it impacted his ability to take his son to dialysis. Although the employer’s refusal to accommodate the employee’s schedule may not necessarily have been unlawful, the employee had a good faith belief that the employer’s refusal was unlawful, and that was all he needed to establish that he engaged in “protected activity” for a retaliation claim. The court even went so far as to say that the employee did not have to use the words “accommodation” or “unlawful” to prove his good faith belief that the employer’s actions were unlawful.
If an employee is able to show that he engaged in protected activity, was subject to an adverse employment action (which in some circumstances can include a poor performance evaluation if it is likely impair the employee’s prospects for advancement or promotion), and there is a connection between the activity and the action, the employer then has the burden of proving that the adverse employment action was not the result of the employee’s protected activity. This is where it gets complicated. The employer must show legitimate, lawful reasons for the action taken, and on-going and consistent documentation is the employer’s most important ally in defending against retaliation claims. If the employer has a clear, written record of the reasons why an employee may be disciplined or receive a poor performance review prior to the employee making a complaint, the employer is in a much better position to defend the adverse action. Another important element is to ensure that the employer’s policies, rules, contracts or practices are applied consistently and evenly. The U.S. Occupational Safety and Health Administration (OSHA) recently recommended anti-retaliation training for employees.
Should an employee make that preemptive strike and submit a complaint or grievance in advance of the employer taking an adverse action, the employer need not be intimidated but should consider all the relevant factors before making a decision—how good is the documentation to support the decision, when did the conduct giving rise to the discipline occur, and what factors could potentially support the employee’s retaliation claim. And when in doubt consult legal counsel.
This post was authored by Matthew Nakano.
On July 11, 2017, Liebert Cassidy Whitmore’s Jennifer Rosner partnered with Department of Fair Employment and Housing (“DFEH”) Assistant Chief Counsel Paula Pearlman to present a seminar on “How to Avoid Claims of Disability Discrimination: The Road to Reasonable Accommodation.” This seminar focused on navigating the challenges of addressing an employee’s disability when it intersects with performance issues and/or conduct that normally results in discipline. This is an especially tricky area of the law full of pitfalls, where employers easily and sometimes unknowingly create liability. Throughout the seminar, Ms. Pearlman shared unique and valuable insight regarding cases that the DFEH recently prosecuted, reinforcing the following key lessons for addressing accommodations and the interactive process:
Recognize Triggers to Engage in the Interactive Process
Under the federal Americans with Disabilities Act (“ADA”) and the California Fair Employment and Housing Act (“FEHA”), an employer has a duty to engage in the interactive process once the need for an accommodation arises either by the employee’s request or by the employer’s knowledge of the employee’s disability. As a result, employers must recognize when this duty is triggered since employees often do not directly state they need an accommodation.
Triggers come in many forms, but some of the key triggers that should prompt further analysis by the employer to determine when to initiate the interactive process are:
- Medical information: doctor’s notes are often the most obvious trigger, especially when it contains restrictions (e.g., limits on lifting, sitting, standing, hours of work, etc.), or when an employee exhausts leave under workers’ compensation or a protected leave such as the FMLA/CFRA and restrictions are placed on their return to work or are medically unable to return to work.
- Employee’s actions: this may include sudden performance issues after a history of satisfactory performance, outbursts or altercations in the workplace, or noticeable physical pain or ailments that are affecting performance.
- Employee’s statements: an employee may directly request an accommodation (verbally or in writing), or may make statements indirectly indicating they may need an accommodation (e.g., “I’m having trouble getting to work on time because of my medical treatment.”).
Follow Through and Engage in the Interactive Process
Once an employer identifies that an employee may have a disability, it is equally important that the employer follow through and engage in the interactive process with the employee to determine what, if any, reasonable accommodations the employee may need and that the employer can provide. Inaction by the employer is the easiest way to create liability for a claim of disability discrimination.
The interactive process allows the employer and employee to exchange information to identify potential accommodations based on the employee’s functional limitations. Employers are encouraged to remain flexible during this process and to think of creative accommodation solutions. While both the employee and employer may suggest potential accommodations, it is ultimately the employer’s responsibility to determine what accommodations it will provide. Employers should be wary of blanket practices of denying certain types of accommodation requests and assess the reasonableness of an accommodation on a case-by-case basis.
Also key to a successful interactive process is for both the employer and employee to maintain open lines of communication. Employers should document every interactive process meeting and send a written summary of the meeting to the employee, including any determinations that the employer made regarding accommodations it will provide. Employers should also consider explaining why any accommodations that were discussed are not reasonable, or would create an undue hardship on the employer. Written documentation will not only help to avoid any misunderstanding of what accommodations are being provided, but also create a record in case there is a future dispute regarding the accommodations considered.
It is also important for employers to remember that communication over accommodations does not end once the employer initially implements the reasonable accommodations. Additional communication between employer and employee may be required to ensure that the accommodations are effective, and if not, engage in further interactive process to fine-tune the accommodations or discuss additional or alternative accommodations. Also any changes in the employee’s medical condition may require additional interactive process meetings to determine whether any changes to existing accommodations may be required.
By keeping these important lessons in mind, employers will be able to more effectively identify when to initiate the interactive process and address accommodation issues, which will in turn help the employer avoid claims of disability discrimination.
This post was authored by Alysha Stein-Manes and Kaylee E. Feick.
Last November, we reported that Governor Jerry Brown signed Assembly Bill No. 2337 (“AB 2337”) into law. AB 2337 amended Labor Code section 230.1 (“Section 230.1”) to require employers to provide written notice to employees regarding the rights of victims of domestic violence, sexual assault or stalking in the workplace.
Prior to AB 2337, Section 230.1 prohibited an employer from discriminating and retaliating against an employee who is a victim of domestic violence, sexual assault or stalking for taking time off from work to: seek medical attention for resulting injuries, receive counseling, participate in safety planning, or obtain services from a domestic violence shelter, program or rape crisis center. AB 2337 amended Section 230.1 to affirmatively require that employers provide employees with written notice of these rights. Under the amended law, an employer must now provide such written notice to all new employees upon hire and to other employees upon request.
Although AB 2337 became effective on January 1, 2017, the statute did not require employers to comply with its notice requirements until the Labor Commissioner developed and posted a model notice on the Department of Industrial Relations’ website. Employers could then use the model notice to inform their employees of their rights under Section 230.1. Last month, the Labor Commissioner released this model notice.
The Labor Commissioner’s Model Notice
The Labor Commissioner’s model notice informs employees that victims of domestic violence, sexual assault or stalking have the right to take time off from work to seek medical attention or obtain services such as counseling and safety planning. The notice explains that employees may use available vacation, personal leave, accrued paid sick leave or compensatory time off for such purposes, unless an employee is covered by a collective bargaining agreement that provides for different rights regarding use of leave. However, the notice clarifies that an employee without available paid time off may still take time off for such purposes. The notice further explains that employees have the right to request, as a reasonable accommodation, that their employers make changes in the workplace to ensure their safety. Employees who believe that their employers are violating these rights may file a complaint with the Labor Commissioner’s Office.
In order to comply with Section 230.1, employers may choose to adopt the Labor Commissioner’s model notice as their own notice to employees. Alternatively, employers may develop their own notice. If an employer elects to develop its own notice, the notice must be “substantially similar” to the Labor Commissioner’s notice.
Tips for Employers to Comply with Notice Requirements
Now that the Labor Commissioner has published its model notice, employers must immediately ensure that they provide new employees with notice of their rights under Section 230.1. Employers may also want to consider providing the notice to all employees, not just new employees. Accordingly, employers should consider updating their new employee orientation packets to include either the Labor Commissioner’s model notice or their own notice. Employers may also want to consider updating other procedures related to providing notices of employee rights to ensure compliance with these notice requirements.
Employers who decide to develop their own notice should consult with legal counsel to ensure that the notice complies with the “substantially similar” requirement of the law.
If you have questions about this issue please contact our Los Angeles, San Francisco, Fresno, San Diego, or Sacramento office.