California Public Agency Labor & Employment Blog

California Public Agency Labor & Employment Blog

Useful information for navigating legal challenges

Trend Alert: Closing the Wage Gap

Posted in Discrimination, Employment, Legislation, Wage and Hour, Workplace Policies

In 2015, women earned 80% of what men earned, according to the United States Census Bureau.  The disparity is even more prevalent for women of color.  But California has taken steps to close the wage gap, including amendments to the Equal Pay Act in 2016 and 2017, and more equalizing legislation may be on the horizon.

As discussed in a previous blog post, California amended its version of the Equal Pay Act in 2016 to require equal pay for “substantially similar work when viewed as a composite of skill, effort, and responsibility, performed under similar working conditions” rather than equal pay for “equal” work.

However, unsurprisingly, the new legislation did not close the pay gap overnight.  In fact, according to a report released last fall, California state employees experience higher disparity (20.5%) in pay between female and male employees than private sector employees nationwide.

There is clearly still work to do, and the revamped Equal Pay Act may only be the beginning.

Last month, the San Francisco Board of Supervisors voted unanimously to adopt legislation that severely restricts San Francisco employers’ ability to consider salary history in the hiring process.  Specifically, the law prevents employers from asking job applicants how much they earned in previous positions, though they can inquire about an applicant’s salary expectations.  Under the new law, employers are also forbidden from considering an applicant’s salary history when deciding whether to make an offer and/or what salary to offer (unless the applicant disclosed salary information).  Similarly, the law prohibits employers from disclosing a current or former employee’s salary history without the employee’s written consent.  This law, which will take effect next summer but provides for a one-year grace period, applies to all San Francisco employers, including public agencies.

The theory behind this legislation is that taking salary history into account has a disproportionately negative impact on women, whose salaries have historically been lower as a result of the wage gap.  The hope is that if employers are not able to consider an applicant’s previous salary when deciding what salary to offer, they will instead base the salary offered on what is appropriate given market demands.  New York City, Philadelphia, and Massachusetts have all passed similar provisions over the last couple of years.

And California may be next.

In May, the state Assembly voted to send Assembly Bill 168 to the Senate.  If it passes, the law would ban all California employers, including governmental employers, from asking applicants about their salary history and/or other compensation and benefit information.  Private employers would also be required to provide applicants the pay scale for the position, upon request.  Though similar legislation has failed twice in the recent past, last month the bill passed through the State Senate’s Labor and Industrial Relations Committee.

Another pending bill that could impact the wage gap is AB 1209, which is being called the “Gender Pay Gap Transparency Act” and would take effect on July 1, 2020.  The law would require large employers (those with more than 250 employees) “to include gender pay data as part of their annual reporting to the Secretary of State.”  Specifically, covered employers would be required to analyze and publish the difference between the mean salary and median salary of male exempt employees and female exempt employees (broken down by job classification or title), as well as the difference between the mean compensation and median compensation for male board members and female board members.  This information would have to be updated yearly.  Notably, the Equal Employment Opportunity Commission requires private employers with 100 or more employees to submit similar information through what is known as an EEO-1 report.  This bill has passed through the state Assembly and is now pending in the Senate.

LCW will be monitoring this legislation closely as it moves through the Senate.

Tips from the Table: Preparing for 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 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.

Legislation to Watch: California Rules on Government Ethics

Posted in Brown Act, Ethics, Legislation, Public Sector

In the first half of 2017, some two-dozen bills have been introduced in the State Legislature with the potential to impact laws regulating government ethics, transparency, and political activity.  Legislation proposed in the State Assembly and State Senate seeks to repeal portions of existing law, and, at the same time, impose stronger penalties for violating remaining statutes.  This legislation has been introduced by both Democrat and Republican members of the State Legislature, some bills with bi-partisan support.

Targeting government ethics, Assembly Bill 403, introduced in February 2017, seeks to establish a “Legislative Employee Whistleblower Protection Act” to prohibit retaliation against legislative employees who file complaints alleging violations of legislative ethics.  If passed, this would complement the existing Whistleblower Protection Act that prohibits state agency employees from directly or indirectly using or attempting to use their official authority or influence for the purpose of intimidating, threatening, coercing, commanding, or attempting to intimidate, threaten, coerce, or command any person for the purpose of interfering with the right of that person to disclose to a legislative committee improper governmental activities.  Assembly Bill 802 seeks to “forever disqualify” a public official from holding office in the state if the individual is convicted of felony voter intimidation.  And Assembly Bill 955 seeks to increase the terms of imprisonment for those who give or offer to give bribes to members of the legislative body of a city, county, school district, or other special district.

Targeting government transparency, Assembly Bill 1333 would require every local government agency that maintains a website to post on that site notice of any upcoming election in which voters will vote on a tax measure or proposed bond issuance of the agency.  The same Bill would require local agencies that publish electronic newsletters to include the notice in such newsletters.

Several bills (of Assembly and Senate origin) seek to amend the Political Reform Act by changing regulations on campaign funding contributions, disclosures, and expenditures.  To curtail conflicts of interest, these bills also seek to extend restrictions on employment for the period following service in an elected office or other specified position.  For example, Senate Bill 679 would extend the time period prohibiting former legislators from engaging in paid lobbying activity from one to two years.  And Assembly Bill 551 would specify that this prohibition applies to independent contractors of local government agencies who are appearing or communicating on behalf of the agency.

Current law and proposed legislation impacting government ethics are largely codified in three major statutory schemes: (1) the Ralph M. Brown Act (“Brown Act”), (2) California’s Public Records Act (“CPRA”), and (3) the Political Reform Act.  (Other statutes do apply, though!)  Speaking to government transparency, the Brown Act, first enacted in 1953, declares that the “people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.  The people insist on remaining informed so that they may retain control over the instruments they have created.”  (Gov. Code, § 54950.)  Under this principle, the Brown Act sets forth the general principle that public agency governing bodies meet and discuss business in a forum that is “open” to the public, and which provides the public with adequate notice about meeting logistics and subject matter.  The Act allows governing bodies to meet in “closed” session – thereby restricting public access to such meetings – only when a specific statutory exception applies.  For example, a governing body may meet in closed session to discuss pending litigation, labor contract negotiations, or real property transactions.  In these cases, the public interest is served by allowing the governing body to meet in closed session where potentially adverse parties, or a competitor for real property, will not be privy to the governing body’s legal or negotiations strategy.  Discussions pertaining to personnel matters, which impact an individual’s privacy, may also be conducted in a closed session under appropriate circumstances, and with appropriate notices provided.

Like the Brown Act, the CPRA encourages government transparency.  Specifically, the CPRA provides that the Legislature, “mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.”  (Gov. Code § 6250.)  Also, like the Brown Act, the CPRA requires public agencies to make public records open for inspection by members of the public unless a specified statutory exception applies.   For example, personnel and medical records, the disclosure of which would constitute an “unwarranted invasion of personal privacy,” are exempt from disclosure even if prepared, owned, used, or retained by a state or local agency.   The CPRA also includes a catch-all exemption that allows a public agency to withhold a public record when the “public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.”  Even here, the balancing is one of two competing public interests.  Thus, like the Brown Act, the overarching theme of the CPRA is public access to public information.

The third statutory scheme discussed here, the Political Reform Act, prohibits members of the Legislature, state, county, district, judicial district, or city officers or employees from being “financially interested” in any contract made by them in their official capacity, or by anybody or board of which they are members.   It is this Act that requires statewide elected officers, candidates for elective office, and certain public officers to file a statement of economic interest – or “Form 700” – in connection with their positions.  Chief Administrative Officers, City Managers, and candidates for and persons holding the office of City Council, City Treasurer, City Attorney, and/or Mayor are required to complete statements of economic interest, as are candidates for and persons holding the office of district attorney, county counsel, county treasurer, and/or member of a board of supervisors.  Anyone appointed to another state board, commission, or similar “multimember” body of the state, heads of local government agencies, and members of local government boards or commissions are also required to complete statements of economic interest.   In addition to these disclosure requirements, the Political Reform Act regulates lobbying activity, political campaigns, and campaign financing in the State of California.  For example, the Act regulates political mailings; it prohibits mass mailings at public expense, and requires appropriate identifying information on such mailings.

While issues pertaining to government transparency, confidentiality, and conflicts of interest are the topic of much discussion on the Federal level, California public agencies are well-advised to keep an eye on potential changes stemming from the State Legislature, which, if passed, will impact local agency obligations here in California.

Legislature Passes Employee Orientation Bill (AB 119) – What Do Public Employers Need to Know?

Posted in Labor Relations, Legislation, Negotiations

This post was authored by Ashley Bobo

On Tuesday, June 27, 2017, Governor Brown signed Assembly Bill 119 into law. The law applies to public agencies including cities, counties, special districts, trial courts, state civil service agencies, the Los Angeles County Metropolitan Transportation Authority, public schools (K-12), community colleges, California State Universities, Universities of California and school districts. AB 119 adds Section 3555 to 3559 to the California Government Code to amend the labor relations statute to the jurisdictions listed above. Additionally, it amends Sections 6253.2 and 6254.3 of the California Public Records Act. The law requires that 1) an exclusive representative (e.g., recognized public employee unions, employee associations) be provided the right to access new employee orientations and to compel collective bargaining processes related to the structure, time and manner of such orientation access and 2) exempts public employees’ personal email addresses from disclosure under the California Public Records Act. The law went into effect immediately upon the Governor’s signature.

  1. Exclusive Representative Access to New Employee Orientation

AB 119 states that “the ability of an exclusive representative to communicate with the public employees it represents is necessary to ensure the effectiveness of state labor relations statutes, and the exclusive representative cannot properly discharge its legal obligations unless it is able to meaningfully communicate through cost-effective and efficient means with the public employees on whose behalf it acts. In most cases, that communication includes an opportunity to discuss the rights and obligations created by the contract and the role of the representative, and to answer questions.

The law requires each public employer to provide the exclusive representative mandatory access to the new employee orientations of the employees it represents.

Questions and Answers Regarding the New Law:

Q: What is a “new employee orientation”?

A: “New employee orientation” means the onboarding process of a newly hired public employee in which employees are advised of their employment status, rights, benefits, duties and responsibilities, and any other employment related matters. It does not matter which medium the orientation takes place in, whether it is in person, online, or through other mediums.

Q: Who is considered a newly hired public employee?

A: The definition includes any new employee regardless of whether they are being hired to a permanent, temporary, full time, part time, or seasonal position.  However, the right to access new employee orientations is limited to bargaining unit employees represented by that exclusive representative only.

Q: Does the employer need to provide the exclusive representative with any information about the newly hired public employees before the orientation?

A: Yes. Within 30 days of hiring the employee, the employer must provide the representative with the name, job title, department, work location, work, home, and personal cellular telephone numbers, personal email addresses on file with the employer, and the home address of the new hire. The employer must also provide the representative with a list of all of that information for all employees in the bargaining unit at least every 120 days unless more frequent or more detailed lists are required by an agreement with the exclusive representative.         

Q: How far in advance does an employer need to let the exclusive representative know about the orientation?

A: Employers are required to provide the exclusive representative with at least 10 days notice of the orientation. Employers do not have to give 10 days notice of an orientation if there is an urgent need that is critical to the employer’s operations that was not reasonably foreseeable.  The purpose of this notice period is to give the employer and representative an opportunity to negotiate over the details of the new employee orientation.

Q: In what way does an employer have to provide the exclusive representative access to new employee orientations?

A: The new law requires that a public employer and the exclusive representative negotiate over the “structure, time, and manner” of the access of the exclusive representative to a new employee orientation.  Generally speaking, this would encompass the following issues:

  • At what time during the employee orientation an exclusive representative will be provided access to new employees (beginning, middle, end, etc.).
  • How much time the exclusive representative is provided to meet with the new employees.
  • The content of what the exclusive representative will discuss with new employees.
  • Whether new employees are required to attend the part of the orientation with the exclusive representative.
  • How to address exclusive representative access where new employee orientations include employees from multiple bargaining units.

Q: What happens if the employer and the exclusive representative can not come to an agreement about the structure, time, and manner of access to the representative to the new employee orientation?

A:   If an agreement is not reached either party can make a demand to participate in binding interest arbitration. Binding interest arbitration under this bill provides that the dispute be submitted to a third-party arbitrator who is then authorized “to approve either party’s proposal in its entirety, to approve a proposal using both the employer’s and exclusive representative’s final proposals, or to modify the proposals by the parties.” The decision of the arbitrator is binding.  The parties will equally share all costs of arbitration.

  1. Exemption of public employees’ personal email addresses from disclosure under the California Public Records Act

The fundamental principle of the Public Records Act is that governmental records shall be disclosed to the public, upon request, unless there is a specific reason not to do so. Even though the law strongly emphasizes the need for the public to have access to governmental records, the law still recognizes that an individual’s privacy is of utmost importance.  Where personal or intimate information is extracted from a person employed by the government (e.g., a government employee or appointee, or an applicant for government employment/appointments a precondition for the employment or appointment), a privacy interest in such information is generally recognized.

The Public Records Act already allows agencies to withhold the home addresses, home telephone numbers, personal cellular telephone numbers, and birthdates of all employees of a public agency. This information is not considered public records. The new law now adds employees’ personal email addresses to the list of information that may be withheld by the employer unless the employee uses the email address to conduct public business, or necessary to identify a person in an otherwise disclosable communication.

Given that the California Supreme Court, in City of San Jose v. Superior Court (Smith), recently held that communications by a public employee concerning public business on a personal account, such as email, is subject to disclosure under the California Public Records Acts, it is important that public agencies develop proper policies and procedures regarding the use of personal devices by employees and officials to conduct public business.  In addition to developing strong policies, agencies should also provide training to their employees on these policies and document the training.

AB119 adds Section 3555 to 3559 to the California Government Code and amends Sections 6253.2 and 6254.3 of the California Public Records Act.

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

Discipline for Officer-Provoked Force Incidents after County of Los Angeles v. Mendez

Posted in Public Safety Issues

Police Siren 2This post was authored by Paul Knothe and Kaylee Feick

On May 30, 2017, the United States Supreme Court issued a decision in County of Los Angeles v. Mendez.  LCW attorneys, J. Scott Tiedemann and Leighton Henderson, submitted an amicus curiae brief to the United States Supreme Court in the case on behalf of the Los Angeles County Police Chiefs Association. (What are Amicus Curiae Briefs?)

The decision rejected the “provocation doctrine” adopted by the U.S. Court of Appeals for the Ninth Circuit (the federal appellate court covering California and other western states).  Other federal Circuit courts had sharply questioned the “provocation doctrine,” and no other federal Circuits adopted it.  Under the doctrine, an officer’s otherwise reasonable use of force could nonetheless be a basis for civil liability if the officer earlier committed an intentional or reckless Fourth Amendment violation that provoked a violent confrontation.  The Mendez decision not only has ramifications for civil lawsuits arising out of the use of force but also has potentially significant implications for administrative discipline of peace officers for officer-provoked incidents involving the use of force.

In Mendez, a confidential informant alerted the Los Angeles County Sheriff’s Department that a potentially armed and dangerous parolee-at-large had been seen at a residence in Lancaster. While three officers searched the interior of the residence, two officers searched the back of the property, which housed a one-room shack and multiple metal storage sheds.  Without a search warrant and without announcing their presence, the officers opened the door of the shack, conduct which the Ninth Circuit held violated the Fourth Amendment.  (The Supreme Court did not review the Ninth Circuit’s holding as to the warrantless entry.)  When the officers entered the shack, they found Angel Mendez holding a BB gun.  The officers immediately opened fire, severely injuring Mendez and his girlfriend.  After a bench trial, the District Court found that the officers’ use of force was unreasonable under the provocation doctrine because the officers provoked the violent confrontation by entering the shack in violation of the Fourth Amendment.  The Court of Appeals affirmed the application of the doctrine.

The basic operation of the doctrine was as follows: when confronted with the BB gun, the officers’ response was objectively reasonable under the circumstances.  Nevertheless, because the officers had themselves created the confrontation through their own Fourth Amendment violation in their warrantless entry into the shack, prompting Mendez to pick up the BB gun, the “provocation doctrine” meant that shooting Mendez was also a Fourth Amendment violation.

In its Mendez decision, the Supreme Court vacated the judgment of the Court of Appeals and rejected the provocation doctrine.  The Court noted the provocation doctrine instructed courts to look not just at the use of force itself, but to look back in time to determine if there was any separate Fourth Amendment violation that related to the eventual use of force. The Court reasoned this type of inquiry was incompatible with Fourth Amendment jurisprudence because it mistakenly conflated distinct claims and allowed a separate Fourth Amendment violation (in this case the warrantless entry), rather than the force itself, to serve as the basis for an excessive force claim.  In rejecting the provocation doctrine, the Court reaffirmed that the exclusive test for determining if an officer’s use of force complies with the Fourth Amendment is whether the force is objectively reasonable under the totality of the circumstances.

Considerations for Peace Officer Discipline

A department should always carefully review its disciplinary policy before implementing discipline for an officer-provoked force incident.  In many, if not most, department policies, the standard for the use of force is the Constitutional standard of reasonableness.  Departments using the Constitutional standard cannot rely on the provocation doctrine to discipline a peace officer whose use of force was otherwise reasonable under the totality of the circumstances.  However, some departments may have language in their policies to support discipline for uses of force that are not constitutionally unreasonable, such as where a department’s policy contains language requiring officers to use “no more force than necessary.”

Further, an officer’s provoking pre-force conduct may still be part of the totality of the circumstances analysis for objective reasonableness.  In a footnote in the Mendez decision, the Court specifically stated that it was not deciding the question of whether the officers’ provoking conduct could be part of the totality of the circumstances analysis for objective reasonableness. Instead, the Court noted the question should be addressed to the Ninth Circuit on remand.  At least for the time being, the law does not appear to prohibit considering the officer’s pre-force provoking conduct to be a circumstance that could make a use of force unreasonable.

In many cases, an officer’s provoking conduct may be grounds for discipline under a department’s policy, even if the force the officer subsequently used is not.  For example, in many police department policies, an officer’s discourteous, disrespectful, or discriminatory treatment of any member of the public is a basis for discipline.  Additionally, many police department policies have language prohibiting officers from threatening to inflict bodily injury on another person.

In such cases, when disciplining an officer for the provoking conduct, the consequences of the use of force that follows can still be relevant to the level of discipline under Skelly v. State Personnel Board, even if the force was not constitutionally unreasonable. In Skelly, the Supreme Court of California held that the extent to which an employee’s conduct resulted in harm to the public service is the critical factor for determining the appropriate level of discipline.  Therefore, if an officer’s misconduct provokes a suspect to violently confront the officer, and the officer uses deadly force on that suspect, the department could, when disciplining the officer for the provoking conduct, take into account the fact that the officer’s misconduct resulted in the death of the suspect and therefore harm to the public service.

Final Judgment Rule – Four Exceptions to Keep in Mind

Posted in Appeals, Litigation

Judge 2Many times, parties to a lawsuit receive trial court rulings in the midst of the litigation that are unfavorable, oppressive, and seem to them to be demonstrably wrong.  The parties want to appeal immediately, but their counsel will say that cannot happen, citing the “Final Judgment Rule.”  The rule certainly sounds dark and fateful.  Perhaps courts intend it to be, because the rule serves to deter disgruntled litigants from appealing while the trial court case is ongoing, and typically requires those litigants to wait months, or even years, to appeal.  So what is this rule?  And perhaps more importantly, what are ways to gain access to an appellate court early without offending it?

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

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

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

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

1. Petition for Writ of Mandamus:

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

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

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

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

2. A Preliminary Injunction Ruling:

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

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

3. Rulings on Anti-SLAPP Motions:

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

If the anti-SLAPP statute applies in a given context, then the defendant can make a motion at the outset of the case to have a trial court determine if there is any “probability” of success on the claim.  If the plaintiff cannot present evidence making this showing of a “probability,” then the trial court rules in favor of the defendant.  If the defendant wins the motion, the trial court will require the plaintiff to pay the defendant’s attorneys’ fees and costs.  If defendant loses the motion, defendant can immediately appeal that loss, without the case going to final judgment. Thus, another very important way to have an appeal heard early in state court is to bring an anti-SLAPP motion.

4. Qualified Immunity Decisions:

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

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

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


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

Summer Lovin’, Had Me A Look At The Recreational Establishment Exemption. Tell Me More, Tell Me More!

Posted in Wage and Hour

Swimming_pool_with_lane_ropes_in_placeWhile Danny Zuko and Sandy may have had themselves a blast during those summer lovin’ months, this may be a good time for your agency to take a look at the FLSA “recreational establishment” exemption.  This is a unique exemption that will exempt those employees working at “recreational establishments” from the traditional overtime threshold of 40 hours per week.

The United States Department of Labor (“DOL”) has defined an establishment as a “distinct physical place of business” and not necessarily the entire business or enterprise.  In so doing, the DOL has also opined that the following may be recreational establishments, even when operated by a public agency: stadiums, golf courses, swimming pools, summer camps, ice skating rinks, zoos, beaches, and boardwalk facilities.  In other words, your entire agency does not have to qualify as a recreational establishment, but it can be a distinct business within your agency, such as a swimming pool or a summer camp.

If your agency operates a “recreational establishment,” then employees who are employed solely for the purposes of the operation of the recreational establishment may be exempt from the FLSA.  For example, seasonal employees hired to operate a swimming pool that only operates for the summer may be exempt.  On the other hand, an employee who is employed by your agency, who happens to work at the recreational establishment during its limited operation, will likely not qualify.

The key inquiry in determining whether this exemption applies is whether your agency is operating a “recreational establishment.”  The FLSA exempts:

any employee employed by an establishment which is an amusement or recreational establishment, organized camp, or religious or non-profit educational conference center, if (A) it does not operate for more than seven months in any calendar year, or (B) during the preceding calendar year, its average receipts for any six months of such year were not more than 33 ⅓ per centum of its average receipts for the other six months of such year. (29 U.S.C. § 213(a)(3).)

The reasoning behind this exemption is that recreational establishments have a “particular character” that may require longer hours in a shorter season.

First Way to Qualify: the establishment does not operate for more than seven months in any calendar year

Simply look at how many months in a year the establishment operates.  If the establishment is closed for more than seven months, then it will qualify as a “recreational establishment.”  Examples might be a pool that only operates in the summer or an ice skating rink that only operates in the winter.

It should be noted that this timing requirement is applied to the establishment, not the employee.  In other words, seasonal employees do not qualify for the “recreational establishment” exemption because they only work for three months a year.  For example, a lifeguard who is only hired for the three months that a City pool is open may qualify because the City pool only operates for three months, not because she is only being hired for three months.

Second Way to Qualify: average receipts for any six months were more than 33 1/3 % of establishment’s average for the other six months of the year.

This will require a little math, but it is relatively straightforward.  The establishment can operate year-round, and if any six months of receipts are one-third of the other six months, then it can qualify.  Examples of this might be pools, in which you charge admission that experiences sharp peak seasons and slack seasons.

The key here is “receipts.”  The word receipt suggests that there is a specific cost to the consumer that is being collected by the establishment, e.g., admission fees.  In other words, we would not use the cost of the monthly electricity bill to calculate “average receipts.”

FLSA audit is an effective method for proactively ensuring that an agency understands and meets all necessary obligations under the statute. Visit our website to see whether you need to schedule an FLSA Compliance Audit for your agency.

Is Your Public Agency Aware of These Lesser Known Job-Protected Leaves?

Posted in Employment, Public Sector

Vacation Request 2Many public agencies are familiar with the well-known reasons why an employee can take time off of work, such as for paid sick leave, family and medical leave, disability or industrial injury leave, and jury duty leave.  However, in California, there are a few “lesser known” leaves that often get overlooked.  These leaves include School Activities Leave; Leave for Victims of Domestic Violence, Sexual Assault and Stalking; and Leave to Perform Emergency Duties or Attend Related Training.  While these types of leaves may be less famous compared to others, they nonetheless apply to public agencies and provide employees with important job-protection rights.

When a leave provides job protection, an employer cannot discharge, threaten to discharge, demote, suspend, or in any other manner discriminate or retaliate against an employee for taking time off for the purposes of the leave.  Employers who do not abide by the required terms and conditions of the leave may be required to reinstate the employee and reimburse the employee for lost wages and work benefits.  Employers could also be subject to a civil penalty or found guilty of a misdemeanor.

Below is a refresher course on these lesser known leaves.  The next time one of these situations arises, your public agency should be able to identify the need for leave and the employee’s rights under the law.

School Activities Leave (Labor Code section 230.8)

Employers with 25 or more employees working in the same location are required to provide School Activities Leave.  School Activities Leave gives an employee with up to 40 hours of job-protected leave each year if the employee is a parent of one or more children in kindergarten through grade 12 or attending a licensed child care provider and the employee requests leave for a qualifying reason.  For purposes of this leave, a “parent” means a parent, guardian, stepparent, foster parent, or grandparent of, or a person who stands in loco parentis to, a child.

An employee may take up to eight hours of School Activities Leave in any calendar month (out of the 40 hours allotted each year) for one of the following reasons: (1) to find, enroll, or reenroll a child in a school or licensed child care provider; or (2) to participate in activities of his/her child’s school or licensed child care provider.  An employee may also use School Activities Leave, without a use limit per month, to address a school or child care provider emergency.  Emergencies include behavioral or disciplinary problems, school closure, the school making a qualifying request for the child to be picked up, or a natural disaster.

Employees are required to provide reasonable notice to an employer for planned absences.  Employers are allowed to request documentation from the employee of school-related activities.  The documentation must come from the school or child care provider.

When an employee takes School Activities Leave for a planned absence, the employee is required to simultaneously use existing vacation, personal leave, or compensatory time off to cover time away.  An employer also has the discretion to allow employees to take School Activities Leave on an unpaid basis.

If more than one parent of a child works for the same agency at the same worksite and both want to use School Activities Leave for a planned absence, only one parent may use School Activities Leave at a time.  The first parent to give notice to the employer gets to use School Activities Leave.

Leave for Victims of Domestic Violence, Sexual Assault, and Stalking (Labor Code sections 230 & 230.1)

Employers with 25 or more employees are required to provide job-protected leave for employees who are victims of domestic violence, sexual assault, or stalking for the following purposes:

  • To seek medical attention for injuries caused by domestic violence, sexual assault, or stalking;
  • To obtain services from a domestic violence shelter, program, or rape crisis center;
  • To obtain psychological counseling related to an experience of domestic violence, sexual assault, or stalking; or
  • To participate in safety planning and take other actions to increase safety from future domestic violence, sexual assault, or stalking, including temporary or permanent relocation.

To use this leave, the employee must give the employer reasonable advance notice of the intention to take time off, unless such notice is not possible.  If an employee does not provide advance notice, the employee has the opportunity to provide certification to the employer of the reason for the absence.  Certification could be a police report, a court order, evidence of a court appearance, or documentation from a licensed medical professional or domestic violence counselor.

When an employee takes this leave, the employer has a duty to maintain the confidentiality of the employee’s request and reasons for the leave.  The leave required by the statute does not need to be paid by the employer, but the employee may use existing vacation, personal leave, or compensatory time off to cover time away, unless otherwise provided by a collective bargaining agreement (the statute provides that a collective bargaining agreement cannot diminish rights the statute provides).

On or before July 1, 2017, the Labor Commissioner is expected to create a notice to inform employees of their rights to use victim’s leave.   Once the Labor Commissioner’s Office posts this notice on its website, employers will be required to provide notice of this leave to new employees upon hire and to other employees upon request.

In addition to providing leave for victims of domestic violence, sexual assault, or stalking, employers are also required to provide reasonable accommodations for the safety of the victims while at work, if the victims make a request for such accommodations.

Leave to Perform Emergency Duties or to Attend Related Training (Labor Code section 230.3)

Employees are allowed to take time off to perform emergency duties as a volunteer firefighter, a reserve police officer, or emergency rescue personnel.   However, public safety agencies do not have to provide this leave if the employee’s absence would hinder the agency’s availability to provide public safety or emergency medical services.

An employee who performs duties as a volunteer firefighter, a reserve peace officer, or as emergency rescue personnel, and who works for an employer with 50 or more employees, shall be permitted to take temporary leaves of absence, not to exceed an aggregate of 14 days per calendar year, for the purpose of engaging in fire, law enforcement, or emergency rescue training.

For purposes of this leave, the term “emergency rescue personnel” means any person who is an officer, employee, or member of a fire department or fire protection agency of the federal government, the state, a city, county, district, or other public or municipal corporation, or of a sheriff’s department, a police department, or a private fire department, whether that person is a volunteer or partly paid or fully paid, while he or she is actually engaged in providing emergency services.

If you have any questions about these leaves, please contact our Los Angeles, San Francisco, Fresno, San Diego, or Sacramento office.

California Legislation to Watch in The Final Journey to the Governor’s Desk

Posted in Legislation

786x496@100dpi - 4The California Legislature is working hard to push bills through to the general assembly and senate votes that are scheduled for September.  A number of bills making their way to that final vote are noteworthy for public employers.

PERB, Firefighters and the Right-to-Sue

Right-to-sue notices may not be just for Department of Fair Housing and Employment (DFEH) complaints.  If Senate Bill No. 548 passes, the Public Employment Relations Board (PERB) will have the authority, and may be required, to issue right-to-sue notices to an employee organization that represents firefighters under two circumstances: (1) if PERB dismisses the unfair practice charge for failing state a viable claim or (2) if PERB has not issued a decision within 150 days from the filing of the unfair practice charge.  The California Professional Firefighters organization explains in its analysis of the bill that PERB was supposed to have provided a “more efficient and timely resolution of labor disputes between public employers and public employee firefighters”; however, PERB’s workload has caused delays “that match or exceed those previously experienced in superior court.”  The California Professional Firefighters further argue that since they are prohibited by law from striking during labor disputes, allowing union access to superior court would decrease delay in resolving those disputes.  The bill would require that litigation be initiated within one year from the right-to-sue notice. The Senate Floor passed the bill on May 4, 2017, and ordered it to the Assembly.

Local Public Agencies Say “What About Us?”

Existing law exempts certain state agency documents related to the collective bargaining process from the California Public Records Act.  However, under current law, the exemption applies only to state agencies and not local public agencies.  Assembly Bill 1455, if passed, would establish the same public records exemption for local public agencies.  Specifically, documents regarding collective bargaining that reveal the local agency’s “deliberative process, impressions, evaluations, opinions, recommendations, meeting minutes, research, work product, theories, or strategy, or that provide instruction, advice or training to employees who do not have full collective bargaining and representation rights” would not need to be disclosed.  The legislation is a result of a superior court judge’s decision that the public records exemption for state agencies did not extend to local public agencies.  The bill is in the Assembly and recently passed review by the Judiciary Committee.

Conflict of Interests in Collective Bargaining

Senate Bill No. 371 is one of the several bills aimed at changing statutes that concern collective bargaining.  Existing law is that an individual who is covered by a collective bargaining agreement is not allowed to represent the agency in employer/employee negotiations—which seems to be an obvious requirement to avoid conflicts of interest. Senate Bill No. 371 proposes to modify the statutory language in Government Code section 3505.9 from “an individual who will be covered by a memorandum of understanding” to “an individual who will be affected, directly or indirectly, by a memorandum of understanding.  The bill proposes a definition of “affected, directly or indirectly” that would include anyone “who may derive increased benefits or compensation from the existence of the memorandum of understanding.”  Several employee organizations are opposed to the bill, including the California Professional Firefighters, which noted in its opposition to the bill that a public agency is capable of determining who should represent the agency in collective bargaining.  The bill failed to pass the Senate Committee on Public Employment and Retirement; however, on May 9, reconsideration was granted.  Stay tuned.

Firefighters Want Out of PERB – Peace Officers Want In

Presently, most peace officer employee organizations are not within PERB’s jurisdiction. The author of Assembly Bill 530 contends that adding peace officer associations into PERB’s jurisdiction “will allow peace officer unions to use the expertise of PERB and give smaller unions the ability to defend themselves against unfair labor practices.”  The further argument in support of the bill is that labor disputes involving peace officer unions “go to the Superior Court, which can be costly and time-consuming,” which is in direct contrast to the firefighters’ argument noted in SB 548 (discussed above) that PERB takes too long to resolve disputes.  AB 530 is supported by several peace officer associations, and was passed by the Assembly Committee on Public Employees, Retirement and Social Security and sent to the Appropriations Committee.  There, it was placed in the suspense file on May 10, 2017, to allow for consideration on the fiscal impact on PERB.

If interested in following the progress of any of these bills, the California Legislative Information website allows individuals to track bills to receive updates.

California Legislation Seeks to Limit Public Agency Activities Surrounding Immigration Enforcement and Religious Freedom

Posted in Education, Employment, Legislation, Public Safety Issues

786x496@100dpi - 6In December 2016, shortly after the November 8 presidential election, members of the California Legislature introduced for consideration a series of bills addressing immigration enforcement. Within the series, three bills would place limitations on a public agency’s ability to participate in federal immigration enforcement efforts and collect personal information regarding an individual’s religion, national origin or ethnicity:

  1. Assembly Bill 699 – Safe Schools for Immigrant Students: AB 699 seeks to establish various policies and protections governing public school districts and charter schools in order to promote safe and equitable learning environments for all pupils, regardless of their immigration status. In this vein, AB 699 expressly protects persons in public schools from discrimination, harassment, intimidation or bullying based on their immigration status. AB 699 also seeks to provide direction to school officials and Local Educational Agencies by creating rules for the place, manner, and procedure for Immigration and Customs Enforcement (ICE) officials seeking to enter a public schoolsite. Under the bill, school officials are prohibited from allowing an ICE official or employee to enter a schoolsite for any purpose, without first providing valid identification, a written statement of the purpose of the visit, a valid judicial warrant or court order, and approval to enter the schoolsite from the superintendent of the school district, the superintendent of the county office of education or the principal of the charter school. Furthermore, even if the ICE agent meets these requirements, schools would be required to limit access to facilities where pupils are not present. AB 699 also prohibits school officials from collecting information or documents about the immigration status of pupils or their families. AB 699 encourages schools to work with students’ families to update emergency contact information in the event that a pupil’s parent or guardian is taken into custody. Schools would be encouraged to contact all persons on the emergency contact list before engaging Child Protective Services to arrange for the pupil’s care. Lastly, the bill would require school districts to provide counseling and other support services to pupils who are affected by federal immigration enforcement activities.
  1. Senate Bill 31 – California Religious Freedom Act: SB 31 would establish the California Religious Freedom Act. The Act would prohibit a state or local agency or public employee holding him or herself out as an agent of the agency from providing or disclosing to the federal government personal information regarding an individual’s religious beliefs, practices or affiliation, when the information is sought for compiling a database of individuals based on religious belief, practice, or affiliation, based on national origin or based on ethnicity for law enforcement or immigration purposes. In the event that the federal government were to enact laws or regulations requiring persons to register their religion, national origin, or ethnicity, SB 31 would also prohibit state and local law enforcement from using agency or department moneys, facilities, property, equipment or personnel to investigate, enforce, or assist in the investigation or enforcement of violations of these laws or regulations. The bill would prohibit state and local law enforcement agencies and their employees from collecting information on religious belief, practice, or affiliation from any individual except (1) as part of a targeted investigation based on a reasonable suspicion that the individual has engaged in or been the victim of criminal activity where such activity has a clear connection to religious belief, practice, or affiliation, or (2) when necessary to provide religious accommodations. However, agencies may still compile aggregate non-personal information about religious belief, practice, or affiliation, national origin or ethnicity, and share such information with other local, state or federal agencies. SB 31 would take effect immediately upon the Governor’s signature.
  1. Senate Bill 54 – California Values Act: SB 54 establishes the California Values Act. The Act would prohibit state and local law enforcement agencies, including school police and security departments, from using their resources to carry out immigration enforcement activities. Such activities include, but are not limited to, making arrests based on civil immigration warrants; performing the functions of an immigration officer; inquiring into an individual’s immigration status and providing an individual’s personal information to federal immigration authorities. Despite these limitations, local and state law enforcement agencies will continue to be permitted to:
    • share with federal immigration authorities information about an individual’s criminal history;
    • make inquiries necessary to grant visas to potential victims of crime or trafficking;
    • respond to a notification request by federal immigration authorities regarding persons currently serving sentences for violent felonies; and
    • participate in a joint law enforcement task force with federal agencies, so long as the primary purpose of that task force is not immigration enforcement.

However, to the extent that a state or local law enforcement agency chooses to participate in joint law enforcement task forces with federal immigration agencies, the agency would be required to issue a report every six (6) months regarding the joint activities. Finally, the bill would require all public schools, including elementary and secondary schools, charter schools, the California Community Colleges and the California State University, public libraries, and specified healthcare facilities and courthouses to implement a model policy, to be drafted by the California Attorney General, which prohibits public school assistance with immigration enforcement activities. Other entities would be encouraged to establish the model policy.

All three bills are currently making their way through the various fiscal and policy committees of the State Assembly and Senate. This week, Governor Brown issued a revised state budget, popularly known as the “May Revision,” which reallocates certain budget items based on the State’s financial outlook. To the extent that these bills have a fiscal impact, their future success will depend on the changes the Government made to the State budget.

We will provide you updates in the coming months regarding the status of these bills.