California Public Agency Labor & Employment Blog

California Public Agency Labor & Employment Blog

Useful information for navigating legal challenges

PERB Leaves Open the Question as to Whether an Employee Has a Right to Union Representation during a Performance Evaluation Meeting

Posted in Labor Relations

AnotherGavel.jpgBy: Adrianna E. Guzman and Joshua A. Goodman

The Public Employment Relations Board (PERB) has long held that employees are entitled to union representation if they are required to attend a meeting where they have a reasonable belief that discipline may result from the meeting (Weingarten rights).  In Redwoods Community College District v. Public Employment Relations Board (1984), PERB expanded these Weingarten rights by stating that the right of representation also applies to “highly unusual circumstances.”  What constitutes “highly unusual circumstances” has not been tested, at least until recently.  In early 2015, PERB expanded an employee’s right to union representation to matters other than discipline when it held that employees are also entitled to union representation at an interactive process meeting.

More recently, a PERB Administrative Law Judge (ALJ) was presented with the question as to whether the right of representation applied to performance evaluation meetings.  The ALJ ruled that under the circumstances of this case the performance evaluation meeting did not involve “highly unusual circumstances” and as a result, found no violation of the law.  The case was appealed to the Board on other grounds, and in State of California (California Correctional Health Care Services) (CCHCS), PERB, in dicta, commented upon but ultimately left open the issue of whether that right to union representation extended to performance evaluation meetings.

The facts in the case are as follows: Caesar Kindipan began working as a registered nurse at one employer facility in 2011.  On July 9, 2014, a supervisor he did not know approached him and asked that he join her and another supervisor in a conference room so she could administer his annual performance review.  Although the parties disputed the specifics of the meeting, the PERB ALJ deciphered the following “essentially undisputed” facts.

The meeting occurred when Kindipan was not ordinarily scheduled to work, as he was working an overtime shift.  He was called into the meeting with no notice by a supervisor whom he had never met.  During the meeting, the supervisor delivered a negative performance evaluation and a counseling memorandum on matters that had not previously been brought to Kindipan’s attention.  Even though Kindipan had worked for his employer for a few years, this was his first performance evaluation, and thus, he did not know what to expect during the meeting.  During the meeting, he indicated his displeasure with the supervisor’s negative assessment of his performance.  He indicated that he wanted to leave the meeting to speak with his union representative and to check on his patients.  The second supervisor told Kindipan that his attempt to end the meeting bordered on insubordination, but neither of the supervisors actually disciplined nor threatened to discipline Kindipan for leaving the meeting prematurely.

Kindipan’s union filed an unfair practice charge alleging that Kindipan’s employer violated Kindipan’s rights by refusing to permit him to summon a union representative to the meeting.  The ALJ found that Kindipan was not entitled to representation for several reasons.  The meeting was not investigatory in nature, as the purpose was not for the supervisors to obtain information, but rather to provide a routine performance appraisal and a counseling memorandum to Kindipan.  During the meeting, the supervisors conveyed to Kindipan that they were unsure why he was responding to their evaluation and defending himself, and further indicated that they did not expect him to answer questions or provide responses.  The ALJ determined that their attempt to limit Kindipan’s response to their assessment supported the fact that they were not meeting with him as part of any investigation.

In addition, the conversation during the meeting was limited to items already documented in the performance evaluation.  According to the ALJ, this indicated that the supervisors were not attempting to glean information for possible discipline against Kindipan.  Moreover, the fact that the meeting was scheduled with no notice and at the convenience of the supervisor did not trigger any right for Kindipan to have a representative at the meeting.  The ALJ noted that the circumstances of the meeting created stress, but “poor supervisory practices do not necessarily give rise to a violation.”  Finally, the fact that there were two supervisors in the meeting does not, on its own, generate the right to union representation.

The specific facts of CCHCS were critical to the ALJ’s decision that the meeting at issue was not investigatory and did not rise to the level of “highly unusual circumstances.”  Therefore, the meeting did not trigger the employee’s right to representation.  Even though the employer conducted the meeting under less than ideal circumstances (e.g., no notice to the employee, not on the employee’s regular shift, and employee was not familiar with the supervisor providing the assessment), the ALJ still found that the conditions did not entitle the employee to representation.

The employer appealed the ALJ’s decision regarding another aspect of the case (i.e., whether the proposed order regarding a finding that the agency’s directive to stop issuing e-mails was overbroad); the union did not file an appeal regarding the finding of no right to representation.  Nonetheless, PERB chose to comment on the issue of the right to representation.  In a footnote, it explained that the panel had “differing views” as to whether the employer interfered with employee rights by not allowing Kindipan’s representative to attend the meeting.  It also stated however, that since neither the employer nor the union excepted to or argued the ALJ’s finding on that issue, the Board would not discuss it.  Significantly however, it specifically also chose not to adopt that portion of the ALJ’s proposed decision dealing with the issue of right to representation.

While the CCHCS case leaves open the question as to whether an employee has a right to union representation during performance evaluation meetings, the Board’s footnote and the ALJ’s discussion are instructive as to what employer actions may trigger a right to representation.  For instance, employers should clearly communicate the purpose of performance evaluation meetings to employees ahead of time so employees have an understanding of what to expect during the meeting.  Employers should also be careful not to use the meeting to seek information that could lead to discipline.  Remember, the purpose of the meeting is to review the employee’s prior performance and establish goals for improvement, if necessary.  It should not to be used as an investigatory tool to question employees about conduct or performance issues not already raised in the evaluation, as doing so may entitle the employee to union representation.  Finally,  to reduce the risk of having the performance evaluation meeting being found to have occurred under “highly unusual circumstances,” employers should provide the employee with advance notice of the meeting, and have a supervisor with whom the employee is familiar conduct the meeting.

California Court Okays Employer’s Formula Used to Calculate Overtime Compensation on Flat-Sum Bonuses

Posted in Wage and Hour

hourglass-small.jpgThis blog post was authored by Amit Katzir.

A recent California Court of Appeal decision sheds light on what formula an employer may use to calculate overtime pay for an employee who receives a flat sum attendance bonus in the same pay period it was earned.  In Alvarado v. Dart Container Corp., the Court of Appeal held that an employer may follow the federal law formula, and need not apply an alternative formula endorsed by the California Division of Labor Standards Enforcement (“DLSE”) that is more generous to employees.

The case is summarized in more detail below:

Hector Alvarado worked for Dart Container Corp. (“Dart”) as an hourly employee.  Dart paid Alvarado a flat sum attendance bonus of $15 for any Saturday or Sunday on which he completed a full shift.

During at least some weeks in which he earned an attendance bonus, Alvarado also worked overtime.  For these weeks, Dart was required to incorporate Alvarado’s attendance bonuses into his regular rate of pay, which in turn would determine Alvarado’s overtime compensation.  To satisfy this requirement, Dart calculated the regular rate for Alvarado using the following formula derived from federal law:

  1. Multiply the employee’s straight hourly rate by any overtime hours worked.
  2. Add the amount from Step 1 to the amounts owed for regular non-overtime work and extra pay such as attendance bonuses.
  3. Divide the sum from Step 2 by the total number of hours worked to arrive at the regular rate.

After determining Alvarado’s regular rate, Dart divided it in half and multiplied this amount by Alvarado’s overtime hours to obtain his “overtime premium.”  The overtime premium was then added to the amount calculated in Step 1 above to obtain Alvarado’s total overtime pay.

Dart’s formula for calculating the regular rate, while consistent with federal law, conflicted with the formula provided in DLSE Manual sections 49.2.4.2 and 49.2.4.3.  By way of background, the DLSE Manual contains DLSE’s interpretive positions on various California labor laws.  Under the DLSE formula, in calculating the regular rate for an employee who receives a flat sum bonus, the bonus amount must be divided by the employee’s regular hours during the period to which the bonus applies rather than the employee’s total hours.  Accordingly, under the DLSE formula, Alvarado’s regular rate and his overtime compensation would have been higher than under the federal law formula that Dart applied.

Alvarado sued Dart alleging, among other things, that Dart violated California law by not using the DLSE formula to calculate his regular rate.  The trial court rejected Alvarado’s claim and the Court of Appeal affirmed, holding that Dart was not required to follow the DLSE formula.  “[T]he DLSE Manual does not carry the force of law,” the Court explained.  The Court noted that state law could regulate overtime pay on bonuses in a more restrictive manner than federal law.  Here, however, there was no California law or regulation which specified a method for computing overtime on flat sum bonuses.  Accordingly, the Court held, Dart was only required to follow the federal law formula in computing Alvarado’s regular rate, which it did.

The Alvarado case is a reminder that in calculating amounts due for overtime, employers should ensure they are properly accounting for attendance bonuses and similar forms of additional compensation.  Regular rate calculations can raise complex legal issues and are a frequent source of litigation.

Note:  With limited exceptions, public agencies are subject only to federal wage and hour laws.

Pension Reform Follow Up

Posted in Pension, Retirement

Retirement-Sign.jpg

This blog post was authored by Erin Kunze.

In December, we reported on renewed proposals to amend California’s Constitution, as it relates to public employee pension benefits. At that time, former San Jose Mayor, Chuck Reed, and former San Diego City Councilmember, Carl DeMiao, were aiming to move one of two voter initiatives towards the November 2016 ballot, depending on the Attorney General’s title and summary of their proposed initiatives. The initiatives would require voter approval for any enhancement to the pension or retiree healthcare benefits of new employees and cap employer pension plan contributions as a percentage of base employee compensation. This month, Mr. Reed and Mr. DeMaio announced that they are postponing their efforts and setting sites for the 2018 ballot, citing financial considerations and the pending Supreme Court decision in Friedrichs v. California Teachers Association. LCW will keep you updated on the progress of these initiatives.

Court of Appeal Provides Guidance on the Timing of Notice to Officers “Prior To” an Interrogation Under the POBR

Posted in Public Safety Issues

Breaking-News1.jpgThis post was authored by Laura Kalty and Danny Yoo.

The Court of Appeal issued its decision in Ellins v. City of Sierra Madre,[1] which provides public agencies with guidance on when to disclose the nature of an investigation prior to interrogating a peace officer pursuant to the Public Safety Officer Procedural Bill of Rights Act (POBR).  This case was handled by Laura J. Kalty and Danny Y. Yoo out of Liebert Cassidy Whitmore’s Los Angeles Office.

Government Code section 3303(c) states that an officer who is under an investigation that could lead to punitive action “shall be informed of the nature of the investigation prior to any interrogation.”  The Court of Appeal in Ellins held that this “requires an officer to be informed of the nature of the investigation ‘reasonably prior to’ the investigation – that is, with enough time for the officer to meaningfully consult with any representative he elects to have present.”

In the underlying case, the City of Sierra Madre began an investigation when it learned that Police Officer John Ellins was potentially improperly using CLETS (a highly confidential database) to conduct searches of his ex-girlfriend and her family.  Out of concern for the safety of his ex-girlfriend, the City initially informed Ellins that he was under investigation for abuse of his police powers.

Then, on the morning of his scheduled interview, the City informed Ellins of the specific nature of the investigation, i.e., his improper searches.  The City’s investigator had previously discussed with Ellins’ attorney that they could have time to meet and discuss the specific charges, and Ellins’ attorney estimated she would need approximately one hour.  After a written and verbal interrogation admonition, Ellins and his attorney were permitted to meet in private to discuss the specific charges, just as they had requested.  Ellins met with his attorney for approximately 25 minutes, but when he returned, he refused to go forward with the interview, citing insufficient notice of the nature of the investigation.  The Chief of Police ordered him to cooperate and participate in the interview, and he still refused.  The City terminated him not only for the improper searches, but also for insubordination.

Ellins argued that the City’s actions violated his POBR rights because it did not inform him of the nature of the investigation sufficiently “prior to” the interrogation.  He argued that he did not have a meaningful opportunity to consult with his attorney about the specific nature of the investigation.  The Court of Appeal held that the City’s decision to postpone the disclosure of the specific nature of the investigation until immediately prior to the interrogation, but then permitting Ellins time to consult with his attorney, did not violate the POBR.  Specifically, the Court stated, “an employing department with reason to believe that providing this information might risk the safety of interested parties or the integrity of evidence in the officer’s control may delay the notice until the time scheduled for interrogation as long as it thereafter grants sufficient time for consultation.”  The Court held the City did not violate the POBR and upheld the termination.

PRACTICAL APPLICATION:

An agency does not have to disclose the nature of an investigation to an officer at the outset of an investigation, but only prior to the interrogation.  An agency may delay disclosure of the specific nature of the investigation to the officer if it believes that earlier disclosure would jeopardize the safety of any interested parties or the integrity of the evidence under the officer’s control.  However, after disclosure of the nature of the investigation – even if it is immediately prior to the interrogation – the agency must give the officer a meaningful opportunity to consult with his or her representative.  How much time is required to provide a “meaningful opportunity” is going to depend on the facts of the case and the exigencies of moving forward with the interrogation.  For example, the Ellins Court noted that the question of whether Ellins had an official reason to be running searches in the CLETS database on his ex-girlfriend was “straight-forward legally and factually.”

Where an agency does not have concerns about the impact of disclosing information to the officer, the more conservative approach is to give reasonable advance notice of the nature of the investigation prior to the interrogation.  But the Ellins case now gives agencies some additional strategic options where there are concerns about the impact of disclosing the specifics of what is being investigated.

Although this was a case decided under the POBR, this decision will also likely apply to the Firefighter Bill of Rights (FBOR). The FBOR was modeled after the POBR, and the language in Government Code section 3253(c) in the FBOR is virtually identical to Government Code section 3303(c) in the POBR.

Note: While the Ellins Court stated that the officer must have enough time to consult with a representative who “he or she elects,” the right to a representative is found in Government Code section 3303(i) and is addressed more squarely in Upland Police Officers Association v. City of Upland (2003), a case handled Peter Brown and Scott Tiedemann also of Liebert Cassidy Whitmore’s Los Angeles office.  In Upland Police Officers Association, the Court held the officer’s choice of a representative must be reasonable, e.g., he or she cannot choose a representative who will never be available.  In fact, the Ellins Court relied on Upland Police Officers Association to “infuse a reasonableness requirement” into Section 3303(c).


[1] This California appellate decision is separate from Ellins v. City of Sierra Madre, 710 F.3d 1049 (9th Cir. 2013), a decision published in the Ninth Circuit Court of Appeals.  The issue in the Ninth Circuit case was whether Ellins’ speech as the union president was protected speech.  The Ninth Circuit held that when Ellins was speaking in his capacity as a union representative, his speech was that of a private citizen and thus protected.  For our review of the Ninth Circuit decision visit: http://www.lcwlegal.com/84321.

Five First Amendment Issues to Watch in 2016 – Public Employment and Education

Posted in Education, Employment, First Amendment

US Supreme CourtAn unprecedented number of protests – at educational institutions and in city streets – occurred nationwide last year, and protests continue to serve as focal points for public attention and debate going into 2016.  The legal realm concerning free speech is in a similar state of turbulence for public employers and for educators.

Here are five First Amendment legal areas that will develop substantially in 2016.

1. Public Employee Free Speech Claims

Courts have spent decades formulating what elements a public employee needs to prove to prevail on a claim that his or her employer has violated First Amendment rights.  Indeed, the U.S. Court of Appeals for the Ninth Circuit, which covers states such as California, Washington, Nevada, and Hawaii, has taken the lead in formulating applicable rules, in particular in landmark cases such as Dahlia v. Rodriguez, Ellins v. Sierra Madre, and Desrochers v. San Bernardino.

This coming year, the U.S. Supreme Court in Heffernan v. City of Paterson will consider another aspect of employee First Amendment claims: claims by public employees that their agency has retaliated against them based on the agency’s mistaken impression that the employee supports a particular political cause.  Under the First Amendment, a public employer generally cannot take an adverse action against an employee because he or she supports a political cause or a particular political candidate (although there are exceptions for certain types of high-level or politically chosen employees).  Public employers are prohibited from taking action based on an employee’s political activity because the activity constitutes the exercise of an expressive right protected by the First Amendment.

Jeffrey Heffernan’s case, being heard in 2016 by the Supreme Court, presents a unique twist.  His employer allegedly retaliated against him based on the perception that he had exercised such a right, when Heffernan had not actually done so.  Heffernan, a police officer for the Town of Paterson, New Jersey, was asked by his bedridden mother to pick up a campaign sign for her to put on her lawn.  The campaign sign supported an individual running for City Council, Lawrence Spagnola, who was evidently opposed to the mayor and police chief.  Heffernan went to a distribution center, picked up a sign from campaign workers, and talked briefly with Spagnola’s campaign manager.  Someone from the City observed him doing so, and reported the activity back to the Chief of Police.  The next day, the Chief demoted Heffernan and downgraded his assignments, stating explicitly that the demotion was because Heffernan supported Spagnola.  Heffernan responded he did not actually support him in any way.

In the Court of Appeals, this response proved the undoing of Heffernan’s constitutional claim; the Court found that because he had not actually exercised any constitutional right to free speech or association, he could not assert any constitutional retaliation claim.

The U.S. Supreme Court in late 2015 agreed to hear the case.  The issue the Court will consider is whether a First Amendment “perception” claim is viable.  In doing do, it will resolve a split among federal appellate courts throughout the country.  Heffernan has argued that public employer retaliation against employees for supporting political causes is generally unconstitutional, and that ill-meaning employers should not escape liability just because they turned out to be wrong about the employee’s political leanings.  The City, on the other hand, contends that although statutory anti-discrimination laws typically recognize “perception” claims (e.g., a discrimination claim based on the perception someone has a disability), constitutional law, including First Amendment, law traditionally does not.  Moreover, if a public employer terminates or disciplines an individual for an erroneous reason, an employee can usually seek a remedy under applicable personnel rules, collective bargaining agreement protections, or sometimes statutory protections.  (In fact, California Labor Code sections 1101 and 1102 contain restrictions on employer efforts to control, direct, or coerce employees with regard to political activities.)

Oral argument before the U.S. Supreme Court took place January 19, 2016, and the Justices appear split on the legal issue raised.

2. Compulsory Union Fees

In 2016, the U.S. Supreme Court will decide another First Amendment case that calls on the Court to further develop an area of law that has been the subject of a number of prior decisions.  In Friedrichs v. California Teachers Association, the Court will consider whether an “agency shop” requirement for public school teachers violates the First Amendment.  An “agency shop” requirement mandates that employees represented by a union in collective bargaining pay at least a “service fee” – even if they are not union members and even if they disagree with what the union is seeking to do on their behalf.  Critics of agency shop arrangements contend that forcing such employees to fund union “speech” with which they disagree violates First Amendment free speech principles.  In 1977, in Abood v. Detroit Board of Education, the U.S. Supreme Court found such “agency shop” requirement for public teachers constitutional.  The U.S. Supreme Court has agreed to review Friedrichs apparently to re-consider this 1977 Abood decision.

The financial stakes at issue in Friedrichs are significant.  The Plaintiffs in the cases, who include California teachers who are not members of their unions and object to how their union funds are being used, put the issue as follows: “This is a challenge to the largest regime of state compelled speech for public employees in the Nation.  Each year, the State of California compels its public school teachers to make hundreds of millions of dollars in payments to Respondent California Teachers Association (“CTA”), Respondent National Education Association (“NEA”), and their local affiliates. California law makes these payments mandatory for every teacher working in an agency-shop school—which is virtually every teacher—regardless of whether that teacher opposes the positions CTA takes in collective bargaining and regardless of whether the positions CTA takes in collective bargaining are directly contrary to that teacher’s on-the-job interests.”

Oral argument before the U.S. Supreme Court took place January 11, 2016.  The Justices appeared to observers to be inclined to strike down Abood and thereby deal a substantial financial setback to public sector unions.  A decision will issue later in the year.

3. Radical, pro-violence speech on social media

The 2016 Presidential campaign will no doubt bring vivid rhetoric from candidates on many topics, and it will almost certainly address the extent to which radical ideologies should be permitted to proliferate in the United States by way of social media and the internet.  Many blame radical and pro-violence internet speech for the home-grown terrorism perpetrated by the San Bernardino shooters in fall of 2015.  Even some prominent legal scholars are calling for another look at First Amendment doctrine as it applies to internet speech promoting violence, or promoting adherence to adversaries of the United States such as ISIS.  Many believe that private forums such as Facebook and YouTube have substantial latitude to limit radical speech.  This is because the First Amendment only prohibits governments, and not private companies, from restricting free speech.  Many legal scholars believe that unless the government somehow prompts or substantially facilitates censorship of speech on these forums, there is no First Amendment issue.

The problem for public agencies and public educators, however, is that they themselves sometimes host social media.  For example, a police department may have a space on its website in which the public is invited to comment, or a community college may allow students to set up accounts and post their thoughts on various issues.  The police department and community college are bound by the First Amendment and state constitutional free speech principles when they engage in these activities.  Accordingly, they will have to work with counsel and carefully evaluate how, if possible, to address radical speech, including hate speech and speech promoting violence, that arises in any on-line fora they host.  Case law may appear in this area in the next year clarifying these issues.  But it is very likely instead that the public debate in 2016 – informed by actors who are aware of and are striving to understand and apply free speech principles – will take the laboring oar at the outset in trying to balance free speech and safety.

4. Micro-aggressions

The final issues described in this post apply mostly to educators.  First, the concept of “micro-aggressions,” which social scientists developed decades ago, has now become a mainstream concern among college and university students, faculty, and administrators.  A traditional definition of “micro-aggressions” is that they refer to “everyday verbal, nonverbal, and environmental slights, snubs, or insults, whether intentional or unintentional, which communicate hostile, derogatory, or negative messages to target persons based solely upon their marginalized group membership.”  They have also been described as “brief and commonplace daily verbal, behavioral, and environmental indignities” that have this effect.  An obvious example is a judge who, upon taking the bench and viewing the courtroom, immediately assumes a person of color is a litigant rather than a lawyer.  Another example is asking a person who is Latino or Asian if they were born in America or where they were born.  Proponents of micro-aggression theory argue that even more minor statements or mis-assumptions, although they may seem harmless, in fact by strength of accumulation impair the performance of persons in protected classifications and create significant inequities in society.

What are First Amendment concerns raised by micro-aggression theory?  The initial answer is none, because as a social science theory, and as a principle of responsible etiquette, the expectation that people will steer clear of micro-aggressions does not constitute an attempt to punish anyone for protected speech.  The First Amendment considerations arise, of course, when a government institution does threaten to punish individuals for engaging in micro-aggressions, or whenever the theory starts to carry legal weight.  It could conceivably carry such weight in the education context in grading of class assignments (if a student was graded down for using micro-aggressions), in personnel decisions as to faculty (if a faculty member was admonished or rated lower for the same reason), and even in making decisions as to whether a hostile work or educational environment exists (although micro-aggressions may not contribute much to the overall analysis, one could argue they should not be considered irrelevant).  When micro-aggressions are taken this far, plaintiffs’ free speech lawyers and many legal scholars have substantial concerns.

For further reading on this topic, the following are articles that have drawn substantial attention, from the Atlantic, Washington Post, and Psychology Today.

5. Trigger Warnings and Safe Spaces

These concepts, like micro-aggressions, will likely draw substantial attention from free speech activists and academics in the coming year.

“Trigger Warnings” – one dictionary definition is a stated warning that the content of a text, video, etc., may upset or offend some people, especially those who have previously experienced a related trauma.”  As this concept is being applied in colleges and universities, a faculty member at the beginning of a graphic discussion of sexual assault, violence, hate speech, or other similar matters might be expected to provide a trigger warning to students in advance, and even allow students to be excused from the discussion.

“Safe spaces” – there are varied definitions for “safe space” in education, but common features are that they are physical or virtual places, made available for the benefit of members of the LGBT community, or for persons in traditionally marginalized protected classifications, in which they can expect support for their identity, life choices related to their status, and viewpoints; or in which they at least will not encounter hate speech or discord based on their protected status.  The term “safe space” also appears in the context of how colleges respond to sexual assault survivors.

What First Amendment concerns are raised?  As with micro-aggressions, if failure to abide by expected practice for trigger warnings and safe spaces leads to censorship of speech at a public institution, then there could be violation of the First Amendment.  If a public college actually disciplines a student, faculty member, or employee for violating the rules of a “safe space,” for example, merely because the person makes a brusque statement about gender roles or lifestyle choices, that might well be determined to infringe on protected speech.  Public institutions can enact rules that restrict speech, but in doing so must be able to demonstrate that the rules serve sufficiently important reasons and that other criteria are met.  Also, a public institution’s standards on speech cannot be overly vague.  In addition, Courts are very concerned about rules that effectively suppress certain viewpoints, even unpopular ones, and it is easy for rules about safe spaces and trigger warnings to have that effect.

Another First Amendment concern will arise if a public college chooses to expand, by substantial orders of magnitude, the scope of what is considered a “safe space.”  For example, a college might designate its entire main library, its central quadrangle, or any social media sites it maintains. This could lead to significant suppression of speech and substantially raise the risk that a Court will find a constitutional violation.  Many also think that excessive trigger warning expectations or requirements in university classrooms interfere with the academic freedom of faculty.

For further reading, the following are some prominent articles addressing trigger warnings and safe spaces, from Time and The New York Times.  

We will report on substantial developments in all the foregoing areas as they arise.

Does My Agency’s Absence Control Policy Comply with California’s New Kin Care Leave Laws?

Posted in Employment

Medical LeaveIn recent years, many California public agencies of all sizes have developed absence control policies to manage employee abuse of sick leave and other types of leaves.  Generally speaking, these policies track each employee’s leave usage and establish various procedures, such as performance improvement plans and/or discipline, in the event an employee’s leave usage is deemed excessive and/or abusive.  At the same time, California law continues to expand employees’ rights to sick leave, as well as employees’ rights to use sick leave for preventive care and on behalf of family members.  As a result of this expansion, your absence control policy may not be compliant with California’s “Kin Care” leave laws.

Effective January 1, 2016, California’s Kin Care leave laws now give employees the right to take half of their annual sick leave to care for not only ill family members but also themselves.[i]  Also, the term “family member” now includes spouses, children, parent in-laws, and grandparents, and Kin Care leave may be taken to care for family members with more minor illnesses, such as common colds, or for serious health conditions, such as those covered by the Family Medical Leave Act (“FMLA”) and/or the California Family Rights Act (“CFRA”).[ii]  For more on the broad definitions of “Kin Care” and “Protected Sick Leave” under California law, see this October 2015 post.

It is a paradox: As public agencies attempt to hold employees more accountable for excessive absenteeism, California law is simultaneously creating broader leave rights for California employees.  One unintended result is that employer absence control policies that fail to exclude all the new forms of protected leave may infringe on employee leave rights.  Indeed, under California Labor Code section 234, it is a violation of California law for an employer absence control policy to count Kin Care leave as an absence that may lead to or result in discipline, discharge, demotion, or suspension.   Also note that the Labor Commissioner has opined that any paid time off policies that directly or indirectly allow time off in the event of illness are sick leave policies and may be covered by California’s Kin Care leave laws.

Below is an example of Labor Code section 234 in practice:

Under her MOU, Nancy accrues twelve paid sick days per year.  Under California’s Kin Care law, Nancy is entitled to use 6 of those days for the purposes of Kin Care (or Protected Sick Leave).  Between January and March, Nancy uses sick leave for the following: three (3) sick leave days to take her registered partner’s mother to doctor’s appointments for various ailments and preventative care; one (1) sick day to take her foster child to the hospital for a broken knee; two (2) sick days to treat her own common cold; and one (1) sick day to take her biological child to various medical appointments.

Nancy’s employer has an Absence Control Policy that analyzes employee attendance every three months.  Under the Policy, employees who take more than six (6) sick days in a three-month-period are subject to discipline.  Per the terms of the Policy, Nancy was excessively absent for the period of January through March due to the seven sick days she took.  However, the employer’s absence reporting system does not distinguish between protected and non-protected sick leave.  Here, six of Nancy’s sick days qualify as Kin Care and/or Protected Sick Leave.  (Remember: Protected Sick Leave now includes leave to care for the employee’s own common cold and is also protected as Kin Care!)  Thus if the employer follows the law and counts only Nancy’s one non-protected sick leave day as an absence that could lead to discipline, Nancy’s leave usage is no longer excessive under the Policy. 

Nancy’s employer must change its Policy to appropriately exclude leave protected under California’s Kin Care law from absences that lead to discipline.  Her employer should also implement an absence reporting system that differentiates between protected and non-protected leave.  If Nancy’s employer had disciplined her for using Kin Care leave rights pursuant to the Agency’s absence control policy, the Agency’s policy would violate Labor Code section 234.

In summary, employers must exclude Kin Care leave from the type of leave that counts toward excessive absenteeism.  First, employers must understand the full extent of leave protected under California’s Kin Care laws.  Second, employers may need to implement new systems for tracking all the various forms of protected Kin Care leave.  Third, employers need to treat Kin Care leave differently from non-protected leave, such as vacation, when applying absence control policies.  And finally, employers may need to draft new absence control policies that expressly exclude protected leave, including Kin Care leave, from the type of absence that is counted toward excessive absenteeism.

[i] See Cal. Lab. Code section 233(a), incorporating Cal. Lab. Code section 246.5.

[ii] See Cal. Lab. Code sections 245.5(c) and 246.5.

Tips from the Table: Factfinding

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.

Are Your Teachers Still Exempt? The Impact of California’s Minimum Wage Increase On Independent School Teachers.

Posted in Wage and Hour

hourglass-small.jpgThis blog post was authored by Alex Polishuk.

Effective January 1, 2016, California’s minimum wage increased to $10.00 per hour. This rate is applicable to and affects independent schools. At first glance, the takeaway from the new law seems apparent – a rise in minimum wage increases the hourly compensation for hours worked by minimum-wage employees. The change is particularly important when considered in combination with recent legal precedents that have expanded the meaning of “hours worked.” For example, as we previously wrote about here, the California Supreme Court has found that in certain instances sleep time may be considered “hours worked,” for certain employees.

The minimum wage increase, however, has another important implication for independent schools. California’s overtime laws require employers to compensate “non-exempt” employees who work in excess of eight hours in one workday or in excess of 40 hours in one workweek, at a rate of either one and one-half or two times the regular rate of pay, depending on the amount of excess time worked. Exempt status is determined, in substantial part, by whether an employee earns a monthly salary of at least two times the state minimum wage of $10.00 per hour. The minimum wage increase, therefore, now sets a higher compensation threshold that employees must meet to reach exempt status.

Criteria for exempt status for private sector employees are set forth by California’s Labor Code and by the Industrial Welfare Commission. Particularly, California Labor Code section 515.8 sets forth requirements that independent school teachers must meet to satisfy the “exempt” status. The labor code provision exempts a teacher at a private elementary or secondary academic institution (K-12) from overtime if the following conditions are met:

  • The employee is primarily engaged in the duty of teaching, instructing, or lecturing;
  • The employee regularly exercises discretion and independent judgment in performing the duties of a teacher;
  • The employee attains at least a baccalaureate or higher degree from an accredited institution of higher education, or compliance with the California Commission on Teacher Credentialing, or the equivalent certification authority in another state; and
  • The employee earns a monthly salary equivalent to no less than two times the state minimum wage for full-time employment.

In other words, an employee is not automatically exempt by virtue of working in a “teaching” position. Before the recent rise in minimum wage, an independent school teacher had to earn $3,120 per month or $37,440 per year to meet the salary test of section 515.8. Now, however, in order to be classified as exempt, a teacher must earn at least $3,466 per month or $41,600 per year. A teacher earning less than $41,600 annually will not be considered exempt from overtime requirements. Part time teachers must meet the same monthly salary requirement in order to be considered exempt; the salary test is not pro-rated.

With this in mind, Schools also need to consider recent enactments by numerous cities around California that recently raised their local minimum wage above state level. For example, the minimum wage for the City and County of San Francisco is $12.25 per hour (and scheduled to increase on July 1, 2016) while the minimum wage for the City of Los Angeles will go up to $10.50 beginning July 1, 2016 (for employers with twenty-six or more employees) and will annually rise every year until reaching $15.00 beginning July 1, 2020. Schools located in a municipality that has implemented a local minimum wage above the state $10.00 level must ensure that employees are paid at a minimum of the local hourly minimum wage for all hours worked.

Importantly, however, while employees must be paid minimum wage pursuant to local ordinances, exempt status for teachers will still be based on California’s state mandated minimum wage. The requirement of Labor Code section 515.8 requires a monthly salary of “two times the state minimum wage for full-time employment.” In other words, section 515.8 does not look to local minimum wage in determining exempt status.

In light of these new laws, Schools should review the compensation schedules of their employees to ensure compliance with state and local minimum wage requirements. Schools should confirm that all employees are being compensated at a minimum rate of $10.00 per hour for all hours worked. Schools should also review the annual compensation for their exempt teachers and ensure that it meets the new requirement of being compensated at an annual rate of $41,600 per year. If a teacher’s compensation does not meet this threshold, then he or she will not be eligible for “exempt” status.

The Broad Scope of the California Public Records Act: Caldecott v. Superior Court Affirms that Courts Interpret the Act to Favor Disclosure

Posted in Education

AnotherGavel.jpgThis post was authored by Liara Silva and Alysha Stein-Manes

Last month, the California Court of Appeal issued a decision in Caldecott v. Superior Court (2015), finding that the Newport-Mesa Unified School District (“District”) was obligated under the California Public Records Act (“PRA”) to release certain documents related to an employee’s hostile work environment claim where the documents were also related to other claims made against the District’s superintendent.

While employed as the District’s Executive Director of Human Resources, John Caldecott (“Caldecott”) filed a complaint against the District’s superintendent, Fred Navarro (“Navarro”).  The complaint alleged that Navarro: (1) created a hostile work environment for three of his cabinet members; (2) improperly approved and reported compensation for an administrator that may have inflated the administrator’s retirement compensation; (3) recommended pay increases using improper criteria; (4) incorrectly reported income used to calculate retirement compensation; (5) approved improper salaries for new employees; and (6) failed to audit the retirement agency’s reporting practices.

The District authorized an investigation into Caldecott’s claims, but Caldecott claimed that no investigation was ever conducted. The District’s board sent Caldecott a written statement, which allegedly said, “Caldecott’s complaint regarding . . . Navarro does not warrant any action by the Board beyond this response.”  Navarro terminated Caldecott without cause six weeks later, which Caldecott alleged was in retaliation for his complaint.  Caldecott then made a request pursuant to the PRA for copies of the District’s response to his complaint as well as an email he sent to the District’s board regarding the response.

The District denied the PRA request and Caldecott filed a petition for writ of mandate and complaint for declaratory and injunctive relief, requesting that the court order the disclosure of the requested documents.  The trial court ruled that Caldecott’s request was moot because he already possessed the documents.  In addition, it found that because the documents were connected to his hostile work environment claim, the documents were exempt from disclosure under Government Code section 6254, subdivision (c), which exempts certain personnel records from disclosure.  Caldecott appealed.

Building upon prior court decisions, the appellate court (“Court”) held that the public interest in disclosure outweighed any privacy interests in nondisclosure and ordered production of the documents, subject to certain redactions and non-disclosure pursuant to attorney-client privilege.

First, the Court found that the fact that Caldecott already had the documents in his possession was irrelevant under the PRA.   Caldecott sought the documents in order to publish them without fear of liability for doing so.  The Court explained that a requester’s motive and purpose for seeking public records is irrelevant; rather, whether records require disclosure is a question of whether the disclosure serves a public purpose.

The Court rejected the District’s arguments that the documents were exempt from disclosure under Government Code sections 6254, subdivision (c) (pertaining to personnel files) and 6255, subdivision (a) (pertaining to the deliberative process) for the following reasons:

  • Government Code section 6254, subdivision (c) exempts from disclosure “[p]ersonnel, medical or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.” For the exemption to apply, courts first determine whether the disclosure would “compromise substantial privacy interests.”  If privacy interests are implicated, courts then determine whether the potential harm to the privacy interests outweigh the public interest in disclosure.  In making this second determination, courts consider “the extent to which disclosure . . . will shed light on the public agency’s performance of its duty.”  (Caldecott)  The Court found that there is a strong public interest in judging how Navarro responded to Caldecott’s claims.  The Court emphasized that this was particularly true in light of his decision to almost immediately terminate Caldecott without cause following his complaint.  Further, the Court stated that there is a strong public interest in assessing how the District’s board treated the serious allegations of misconduct against its highest-ranking administrator.  Thus, disclosure of the documents would shed light on the District’s performance of its duties.
  • Government Code section 6255, subdivision (a), has been interpreted to exempt from production documents which would disclose the “mental processes by which a given decision was reached” and the “substance of conversations, discussions, debates, deliberations and like materials reflecting advice, opinions and recommendations by which government policy is processed.” (Caldecott) The District argued that producing the requested documents would impede open discussions and debates between high-level District officials about the merits of District programs. The Court explained, however, that this “deliberative process privilege” is a “qualified, limited privilege” and found no evidence that the District’s response to Caldecott’s complaint contained the substance of actual discussions or debate, information showing how government policy was formed, or any evidence that production would interfere with discussions or debate.

Likewise, the Court ruled that the official information privilege under the Evidence Code did not apply.

The Court also found that although one of Caldecott’s claims concerned a hostile work environment, such a claim did not necessarily make it a personnel matter exempt from disclosure.  The Court emphasized that Caldecott was not concerned that the matter be kept private.  Further, although some of the documents Caldecott requested pertained to his hostile work environment claim, they also pertained to his other allegations for which the exemption did not apply.

Finally, the Court explained that in assessing the public interest in disclosure of an employee’s alleged wrongdoing, courts are required to independently review documents to determine whether they reveal sufficient indicia of reliability to support a reasonable conclusion that a complaint was well founded.  The PRA does not require that an agency impose discipline or that allegations be sustained in order to release complaints to the public.  Furthermore, where the alleged wrongdoing is performed by a high-ranking public official such as Navarro, courts may use an even lesser standard of reliability.  Here, the Court was unable to conclude that the allegations against Navarro and the District were so unreliable that they could not be anything but false.  Thus, the Court remanded the matter back to the trial court and ordered that it review the documents and direct the District to produce the documents, redacted as needed to protect third-party privacy rights.  The Court also exempted from production those documents determined by the trial court to be subject to the attorney-client privilege.

The Caldecott decision should serve as a reminder that the PRA strongly favors the disclosure of public records.  Courts will narrowly interpret exemptions such as those pertaining to protecting personnel files, the deliberative process and official information.  Courts will determine whether a public agency relying on these exemptions has met its burden of establishing that the public’s interest in non-disclosure outweighs disclosure.

Agencies should also be aware that the PRA mandates that a court order the award of costs and attorney fees to a plaintiff when that court orders the production of documents pursuant to the PRA.  Such costs and attorney fees, of course, can be significant.

Show Me the Money! Before You Can Spend It, Do You Know What It Costs?

Posted in Labor Relations, Negotiations

Costing

It’s that time of the year when we begin to negotiate labor agreements set to end on June 30th.  Have you started your preparations for the negotiating process? One critical step in labor negotiations is costing your existing MOU.  What do we mean when we say “costing?”  It means you should be able to identify what each item in the MOU costs on a fiscal year basis and thereby determine the total cost of the contract to your agency.

Direct & Indirect Costs – What are They?

Collective bargaining agreements contain both direct costs and indirect costs.  It is important to understand each of these concepts and determine their value.  Direct costs are items that send cash out the door – compensation components and employer paid benefits are the two largest types of direct costs.  Direct costs break down even further into categories such as pensionable, taxable, or those paid to a third party on behalf of an employee.  Some direct costs can be determined by position; others are “bucket items” for which multi-year averages are the best method to determine costs. Indirect costs are typically the value of contract provisions where cash isn’t necessarily leaving the organization but the provision has a value, for example, sick leave.  For most employers, the value is a productivity cost.  However, in other cases where you have minimum staffing, sick leave may result in direct costs via the payment of overtime (to cover the work of the sick employee).

Costing Methodology 

The process of costing is time consuming and can be tedious.  Also, often agencies rely on what they previously budgeted to spend vs. what they are actually spending.  It is recommended that you understand the difference and focus on what you are actually spending.   In addition, it is important to establish your costing methodology and then communicate it to key stakeholders (i.e. City Manager, Finance Director, HR Director, Elected Officials, etc.).  It is easier to start with the costing of the current MOU and reach consensus on the methodology long before you engage in developing proposals and seeking authority for the next MOU.  A good example is the frequently asked question – what would a 1% salary increase cost?

Well, we need to be clear about the question – 1% of base pay or 1% of total comp? Are we including the value that 1% has on overtime costs?  Have we factored in escalating provisions that we have previously agreed to pay like the employer rate for retirement benefits or the impacts of health insurance premiums that were already negotiated and exist in the MOU?  If the base pay for a bargaining group totals $6,287,290 and the total cost for the group is $9,664,591 – then thinking through the 1% question in this way makes a big difference!

Who handles the costing?  Is it the finance department, the budget office, Human Resources?  Hopefully, it is a collaborative effort. If you are fortunate to have a finance system that can prepare costing information and create costing scenarios – you are LUCKY!  For most agencies, downloading data from payroll and finance systems into Excel spreadsheets to run costing calculations is more common.  Have a conversation with your bargaining team leadership and chief negotiator early so you can determine the plan for costing.

Is Costing Really Helpful?

Absolutely! Understanding what each item costs sets the framework for identifying what each proposal in the negotiation process costs.  Both agency and union proposals need to have a value identified in order to determine the feasibility of the proposal.  Additionally, when you have analyzed the cost, you will clearly see what the real impact of a proposal might be.  Clear costing data adds credibility to the meet and confer process.  You should be able to share costing information across the table and it can serve as an effective tool in explaining why items may not be able to be realized during negotiations.  If you find yourself at impasse, and engaged in the fact-finding process, then your costing data will be essential during the fact-finding hearing.

As public agencies begin to see improvements in the financial condition of their organization, costing will continue to be a critical component in labor negotiations.  The long-term sustainability of the compensation structure and the ability to work within the structure require a solid and complete understanding of labor costs.  Effectively using costing to determine one-time costs, the best use of a dollar, structural costs that increase in future years, etc. are issues elected officials want to understand and that you should understand as well.

Join us at Liebert Cassidy Whitmore’s Pre-Conference Workshop on Wednesday, February 24, 2016, for an in-depth look at “Costing Labor Contracts.”