California Public Agency Labor & Employment Blog

California Public Agency Labor & Employment Blog

Useful information for navigating legal challenges

Independent Contractor = No CalPERS Membership, Right? Not so Fast!

Posted in Retirement

Retirement-Sign.jpg

This blog post was authored by Oliver Yee.

The use of independent contractors in the public sector is becoming more and more common. With rising pension costs coupled with budget cuts, utilizing an independent contractor in lieu of an employee to provide services may be considered a cost-effective approach.  These independent contractors can take the form of a “temp worker” or a specialized professional.  But, just because the agency and the independent contractor (or the contractor’s employment/temp agency) agree pursuant to a contract that the individual serves in an “independent contractor” capacity does not mean that CalPERS will consider the individual a contractor for the purpose of qualification for CalPERS membership.  Rather, CalPERS applies the common law definition of “employee” to determine whether the individual is a contractor or employee, irrespective of the parties’ contractual agreement regarding the nature of the relationship.  The common law test for whether an individual provides services as an employee considers several factors.  But, the single most important factor is whether the employer controls the manner and means of accomplishing the result desired.

Controlling the Manner and Means of the Work – The Neidengard Decision

The precedential decision issued by CalPERS, In the Matter of the Application for CalPERS Membership Credit by Neidengard and Tri-Counties Assoc. for the Developmentally Disabled (Precedential Decision No. 05-01), illustrates a common scenario and cautionary tale for public agencies on the use of independent contractors.  Importantly, the decision provides agencies with guidance on how CalPERS applies the “most important” factor in the common law test for defining an employee – whether the employer controls the manner and means of accomplishing the result desired.  In this case, due to budget cuts, various professional employees of the agency, primarily physicians, were terminated from employment.  However, the physicians were allowed to continue to provide their services on a contractual basis.  Accordingly, they entered into annual professional services agreements that designated their status as “independent contractors.”  These agreements were continuously renewed on an annual basis.  One of the physicians provided services in this capacity for about eight years, and later filed a request for service credit with CalPERS for that eight-year period.  CalPERS applied the factors of the common law test for defining an employee, and determined that the physician served as an “employee” of the agency, not an independent contractor, during that eight-year period.  CalPERS reasoned that the agency exercised “considerable if not complete control” over the individual’s work.  He used the agency’s examination rooms, supplies and equipment to perform his services.  The records for his patients were stored on agency premises.  Agency staff scheduled his clients for services, provided records for his review, and the agency required his participation at important agency meetings regarding the services and needs of the agency.  The agency selected the community forums and training sessions that he participated in.  And, his work was ongoing and continuous, not based on a specific time or project limitation.  In addition, CalPERS specifically noted that the individual’s right to pension benefits through CalPERS could not be waived by private agreement, e.g. the prior agreements between the agency and individual that designated him as an independent contractor.

Tips for Avoiding the Inadvertent “Employee” Designation

In many instances, independent contractors provide valuable and efficient services to a public agency.  Public agencies that utilize independent contractors should regularly review the manner in which the independent contractors provide services to the agency so as to avoid having a contractor later be designated as an “employee” of the agency for the purpose of CalPERS membership. Specifically, public agencies should consider the following guidelines in the review process.

  • Carefully track the length of time that any independent contractor provides services.  The longer the individual provides services, the greater the chance he/she can successfully claim the status of common law employee.
  • Agencies that contract with outside firms for labor should include a provision in the contract which establishes a specific length of service to be provided, and ties that length of service to a specific project/services to be completed.  Agencies should abide by those limits and guidelines.  In order to better avoid CalPERS coverage, the length of the service term should be less than six months.
  • Do not issue the independent contractor agency property, equipment or resources in a permanent manner.  For example, do not issue the individual a specific agency email address, business card, or permanent office space.
  • The independent contractor should not supervise agency employees.  Nor should agency supervisors supervise the independent contractor.  The independent contractor should not issue or be issued performance evaluations, or discipline.
  • The contractor should be paid on a project basis, rather than an hourly basis, except in limited circumstances (e.g., attorney services).

Careful consideration of the practical realities of the independent contractor relationship at the time of entering into an agreement will help to prevent unintended results and inadvertent CalPERS membership.

The Anticipation And Wait Is Over – The New FLSA Salary Basis Test Regulations Are Here!

Posted in FLSA

DOLThis post was authored by Jolina A. Abrena and Gage Dungy

On May 18, 2016, the U.S. Department of Labor (“DOL”) issued new regulations modifying the weekly salary and annual compensation threshold levels for white collar exemptions to FLSA overtime requirements.  These regulations become effective December 1, 2016.  It is critical for employers to become familiar with these new regulations, among other reasons because misclassification of employees as being exempt from FLSA overtime requirements is a costly mistake.

Overview Of The FLSA Salary Basis Test And Highly Compensated Employee Rules

Certain employees can be exempt from the FLSA’s overtime requirements.  The most common overtime exemptions under the FLSA are the so-called “white collar” overtime exemptions (executive, administrative, professional).   To qualify for an executive, administrative or professional exemption, an employee must receive a minimum salary and be paid on a salary basis (“salary basis test”) and perform the appropriate duties (“duties test”).  The last adjustment to the salary basis test placing it at its current weekly salary of $455/week ($23,660/ annually) was in 2004.  At that time, the FLSA regulations were also amended to add in a new “highly compensated” employees overtime exemption for employees that make at least $100,000 annually,  have a primary duty performing office or non-manual work, and customarily and regularly perform at least one of the exempt duties or responsibilities of an exempt executive, administrative or professional employee.

What Are The New Key Provisions?

The newly published FLSA regulations that become effective December 1, 2016, make the following changes:

  1. The weekly salary threshold level is more than doubled from $455 per week ($23,660 annually) to $913 per week ($47,476 annually);
  2. The total compensation needed to exempt highly compensated employees is increased from $100,000 annually to $134,004 annually;
  3. There is now a mechanism that automatically updates these salary and compensation levels every three years, beginning January 1, 2020; and
  4. Employers are now able to use nondiscretionary bonuses and incentive payments made on a quarterly or more frequent basis to satisfy up to 10 percent of the new standard salary level of $913. (U.S. Department of Labor, Wage and Hour Division, Fact Sheet)

However, the new FLSA regulations do not make any changes to the FLSA duties tests, which in general also must be satisfied for an employee to qualify for the FLSA overtime exemptions.

Below is a comparison of the current and new FLSA Salary Basis Test:

2004 FLSA regulation
(can be found 
here)
NEW 2016 FLSA regulation
(effective December 1, 2016)
Minimum Weekly Salary At least $455 per week (or $23,660 annually) At least $913 per week (or $47,476  annually)
Minimum Annual Compensation for Highly Compensated Employees

 

At least $100,000 annually At least $134,004 annually
Automatic updating  mechanism None Salary and compensation levels will be automatically updated every three years, beginning on January 1, 2020.
Inclusion of Nondiscretionary bonuses and incentive payments Permits nondiscretionary bonuses and incentive payments (including commissions) to count toward the total annual compensation requirement for highly compensated employees. Payments of nondiscretionary bonuses and incentive payments that are made on a quarterly or more frequent basis; can go towards 10 percent of the required salary level amount of $913/week; and the employer may make a “catch-up” payment each quarter.

 

Next Steps For Public Employers To Prepare For The New Regulations

Given that the new salary basis test threshold of $913 per week and highly compensated employee threshold of $134,004 annually will go into effect on December 1, 2016, public employers should audit all exempt job positions to determine which job positions are affected by these new salary basis test regulations.  For those exempt job positions that are below or close to being below these new salary levels, employers should evaluate one of the two following options:

  1. Increase the salary for the exempt job position to meet or exceed the new salary levels to maintain the overtime exemption; or
  2. Convert the affected exempt job position to nonexempt status that would qualify for overtime.

If an impacted job position is to remain exempt, the employer should look to increase the salary levels to a level at or higher than the new salary levels that will go into effect on December 1, 2016.  Keep in mind that the effective date for these new salary levels – December 1, 2016 – is a Thursday.  Therefore, to the extent that the relevant 7-day FLSA workweek for an affected exempt employee begins prior to that (e.g., Sunday), the employer should look to implement the increased salary level at the beginning of that workweek.

If an impacted job position will be converted to nonexempt status, the employer should carefully examine the impacts of this decision and look to take the following steps:

  • Provide advance notice to the affected employee about the reclassification;
  • Provide training on timekeeping and overtime policies and procedures to the affected employee and their supervisors to ensure compliance with any new overtime obligations; and
  • Implement any necessary changes to the payroll system regarding the new nonexempt classification and determine what additional compensation received by the employee needs to be incorporated into the FLSA regular rate of pay for overtime calculations.

A new nonexempt employee must accurately report work hours and comply with the agency’s overtime policies and procedures.  This is critical because the FLSA imposes an affirmative obligation on employers to keep accurate time records, and requires prompt payment of wages, including overtime.  Late payment of overtime and improper calculations of overtime pay are also common and costly mistakes for employers.  Without accurate time and payroll records, the employer may face liability for liquidated damages (twice the amount of compensation due) in the event that an FLSA lawsuit is filed alleging overtime claims or liability for back wages.

To the extent that affected exempt job positions involve represented employees, any such actions taken to change wages, hours, and working conditions may also trigger an agency’s obligation to meet and confer with the pertinent employee organization over the decision or effects and impacts of such decision. Employers are urged to consult with their legal counsel or labor relations professionals regarding the impact of any meet and confer obligations.

Even where a public employer does not have any exempt employees affected by these new salary basis test regulations, it may also be prudent to assess whether current exempt positions perform the appropriate duties to satisfy the executive, administrative, or professional exemptions.  For example, an agency can assess whether an “Analyst” position performs work directly related to the operations of the department and actually exercises discretion and independent judgment with respect to matters of significance in order to meet the duties test for the administrative exemption. (29 C.F.R. sec. 541.200(a)(2-3).)  An audit of exempt positions is also beneficial because an employer may be liable for unpaid compensation and liquidated damages going back up to three years for a willful violation of the FLSA in misclassifying an employee as overtime exempt.  (29 U.S.C. sec. 255.)

LCW’s wage and hour attorneys routinely conduct FLSA audits and provide wage and hour advice and counsel to our public agency clients and are available to advise agencies on the impact of these new FLSA salary basis test regulations.  If you have any questions about this issue, please contact our Los Angeles, San Francisco, Fresno, San Diego, or Sacramento office.

PERB Reaffirms That a Bargaining Impasse is Not Broken Unless a Party Makes a Significant Concession

Posted in PERB

AnotherGavel.jpgThis post was authored by Adrianna E. Guzman and Joshua A. Goodman

Picture this scenario: an employer and a union engage in negotiations for a successor Memorandum of Understanding (MOU), and after several months, reach tentative agreement on some, but not all of the proposals.  At that point, one of the parties issues a written declaration of impasse, and the duty to bargain is suspended.  The union does not request factfinding, and the employer does not impose its last, best, and final offer, but maintains the status quo.  At one point, the employees represented by the union engage in a lawful strike, but then go back to work, and the parties remain at impasse.

A month later, the union representative contacts the employer and expresses an interest in participating in negotiations.  The employer and the union exchange emails regarding the meeting, and settle on a date for the meeting.  A few days before the agreed-upon meeting, however, the union informs the employer that it needs to reschedule the meeting because the bargaining unit is still at impasse.  Approximately two weeks later, the bargaining unit commences a five-day strike.  The employer files an unfair practice charge claiming that the strike is unlawful because the parties had resumed negotiations.

Did the parties break impasse?  Was the strike unlawful?

A recent Public Employment Relations Board (“PERB” or “Board”) decision answered those very questions.  In County of Trinity (2016) PERB Dec. No. 2480-M, the Board examined what constitutes a change in circumstance that would break impasse.  Relying on its own precedent, the Board reiterated that impasse is broken once either party offers a significant concession from a prior bargaining position.  It clarified, however, that merely contemplating making a concession is not the same thing as actually making a concession and will not break the impasse.

In County of Trinity, the County and the United Public Employees of California, Local 792 (“UPEC”) negotiated for a successor MOU for employees in the County’s General Unit (“GU”), but reached an impasse after several months.  In December 2014, the GU employees engaged in a lawful strike which the County did not challenge.

On January 14, 2015, UPEC’s negotiator informed the County’s negotiator of UPEC’s interest in participating in a meeting regarding negotiations.  Over the next month, the parties exchanged emails to set up a meeting, which was eventually scheduled for February 26, 2015.  Five days before the scheduled meeting, however, UPEC informed the County that the meeting would need to be rescheduled and indicated that “for now the GU is still at impasse for the 2014 negotiations.”  Approximately one week later, UPEC informed the County that it planned to strike, and from March 2, 2015 through March 7, 2015, engaged in a strike.  The County filed an unfair practice charge alleging that UPEC violated the Meyers-Milias-Brown Act by engaging in an unlawful strike.  When PERB’s General Counsel refused to issue a complaint, the County appealed the dismissal of its charge.

The question for the Board was whether UPEC’s conduct in contacting the County to set up a meeting regarding the negotiations and then exchanging emails with the County about setting up such a meeting constituted a break in the impasse.  The Board said it did not.

In reaching its decision, PERB noted that when a union and a public agency are engaged in the negotiation process, both parties have an obligation to bargain in good faith.  Such good faith includes a limitation on unions from striking during the negotiation process.  But if the parties reach impasse, certain employees are permitted to strike because the duty to bargain in good faith is suspended during that time.  Impasse can, however, be broken if either party offers to make a significant concession that suggests agreement may be possible—not guaranteed, just possible.  But mere speculation about a concession is insufficient to revive the bargaining process.  As the Board explained, “[a] handful of non-substantive emails exploring the parties’ interest in and availability for a meeting does not rise to the level of changed circumstances sufficient to revive the bargaining obligation.”  The Board found that the County provided no evidence that either party’s bargaining position had changed from what it was at the time impasse was declared.  The Board also distinguished a willingness to consider a concession from an actual offer to make a concession, and determined that a willingness to consider is not, in and of itself, a concession.  The Board further noted that the ‘totality of circumstances’ test, used to determine whether a party is negotiating in good faith, does not apply when parties are at impasse.

So how do you know if impasse has been broken?  Here are three tips to help you make that determination.

  1. Did either the agency or the union withdraw its impasse declaration? If so, impasse has been broken.
  2. Did either the agency or the union offer a concession from its prior bargaining position? If not, impasse has not been broken.
  3. If either the agency or the union offered a concession from its prior bargaining position, was that concession significant enough to indicate that agreement may be possible? If so, impasse has been broken and the parties must return to the table.

While County of Trinity did not change the determination as to what is required to break impasse, its holding is still instructive because it identifies what does not break impasse and what options an agency has when faced with an ongoing impasse.

U.S. Departments of Justice and Education Issue Significant Guidance Regarding Transgender Students in Schools

Posted in Constitutional Rights

Breaking News

This blog post was authored by Kim A. Overdyck.

On May 13, 2016, the U.S. Department of Justice  (DOJ) and Department of Education (DOE) issued a “Dear Colleague Letter” and accompanying Examples of Policies and Emerging Practices for Supporting Transgender Students in response to the high volume of questions received regarding civil rights protections for transgender students. The letter does not add any requirements to current law, but it provides significant guidance on these issues. The guidance is summarized below:

“Dear Colleague Letter”

Title IX of the Education Amendments of 1972 (Title IX), and its implementing regulations, prohibits sex discrimination in educational programs and activities operated by recipients of federal financial assistance. The letter summarizes a school’s Title IX obligations regarding transgender students and explains how the DOE and DOJ will evaluate a school’s compliance with these obligations.  The term “school” refers to recipients of federal financial assistance at all educational levels, including school districts, colleges, and universities.  It excludes those schools controlled by a religious organization, to the extent that compliance would not be consistent with the organization’s religious tenets.

The Title IX prohibition against sex discrimination includes discrimination based on a student’s gender identity, including transgender status.  To clarify what gender identity and transgender status mean, the letter provided the following terminology:

  • Gender identity” refers to an individual’s internal sense of gender. A person’s gender identity may be different from or the same as the person’s sex assigned at birth;
  • Sex assigned at birth refers to the sex designation recorded on an infant’s birth certificate should such a record be provided at birth;
  • Transgender describes those individuals whose gender identity is different from the sex they were assigned at birth. A transgender male is someone who identifies as male but was assigned the sex of female at birth; a transgender female is someone who identifies as female but was assigned the sex of male at birth; and
  • Gender transition refers to the process in which transgender individuals begin asserting the sex that corresponds to their gender identity instead of the sex they were assigned at birth.  During gender transition, individuals begin to live and identify as the sex consistent with their gender identity and may dress differently, adopt a new name, and use pronouns consistent with their gender identity.  Transgender individuals may undergo gender transition at any stage of their lives, and gender transition can happen swiftly or over a long duration of time.”

The DOE treats a student’s gender identity as the student’s sex for the purpose of Title IX.  This means a school cannot treat a transgender student differently from other students of the same gender identity.  According to the letter, this interpretation is consistent with courts’ and other agencies’ interpretation of federal laws prohibiting sex discrimination.

Title IX requires that when a student, or the student’s parent or guardian, notifies the school administration that the student is asserting a gender identity different from what is on the school records, the school will begin treating the student consistent with the student’s gender identity.  Because transgender students are often unable to obtain identity documents reflecting their gender identity, requiring students to produce these documents, in order to treat them consistently with their gender identity, may violate Title IX when it has the effect of limiting or denying students equal access to educational programs or activities.  The obligation to ensure nondiscrimination applies even in circumstances where other students, parents, or community members raise objections or concerns.  The letter is clear that the desire to accommodate others’ discomfort does not justify a policy that singles out and disadvantages a particular class of students.

In discussing Title IX compliance, the letter focuses on four areas summarized below

1. Safe and Nondiscriminatory Environment

Schools have a responsibility to provide a safe and nondiscriminatory environment for all students, including transgender students.  Harassment based on gender identity, transgender status, or gender transition is harassment based on sex.  If this sex-based harassment creates a hostile environment, the school must take “prompt and effective steps to end the harassment, prevent its recurrence, and as appropriate, remedy its effects.”

2. Identification Documents, Names, and Pronouns

Title IX requires a school to treat students consistent with their gender identity, even if there is a discrepancy between their educational records and identity documents regarding their sex.  School staff and contractors are to use pronouns and names consistent with a transgender student’s gender identity.

3. Sex-segregated Activities and Facilities

Restrooms and lockers; athletics; single-sex classes; single-sex schools; social fraternities and sororities; housing and overnight accommodations; and other sex-specific activities and rules are discussed.  Under certain circumstances, Title IX’s implementing regulations allow schools to provide sex-segregated restrooms, locker rooms, shower facilities, housing, and athletic teams, as well as single-sex classrooms.  However, the school must allow transgender students to participate in activities and have access to facilities consistent with the gender, with limited exceptions.

4. Privacy and Education Records

Nonconsensual disclosure of personally identifiable information, such as the student’s birth name or sex assigned at birth, may harm and invade the privacy of transgender students and violate the Family Educational Rights and Privacy Act (FERPA).  However, the “legitimate educational interest” exception still applies.  As far as directory information is concerned, a school may not designate a student’s sex, including transgender status, as directory information.  Doing so could be harmful or an invasion of privacy.  A school may receive a request to update a student’s education records to make them consistent with their gender identity.  Under FERPA, a school must consider the request of an eligible student or parent to amend an education record that is inaccurate, misleading, or in violation of the student’s privacy rights.  Under Title IX, a school must respond to a request to amend information relating to a student’s transgender status consistent with its general practices for amending other students’ records.

Examples of Policies and Emerging Practices for Supporting Transgender Students

The accompanying Examples of Policies and Emerging Practices for Supporting Transgender Students provides practical examples to meet Title IX requirements and includes policies and procedures schools across the country are implementing to support transgender students.  The common questions addressed in the document are student transitions; privacy, confidentiality and student records; activities and facilities; and terminology.  California examples include Los Angeles Unified School District issuing policies on confirming a student’s gender identity and ensuring transgender students have an opportunity to participate in athletics consistent with their gender.  Another is El Rancho Unified School District issuing policies that provide students with the right to openly discuss and express their gender identity and guidelines for addressing issues related to gender and gender-non-conforming students.

California Law

It is important to note that California has had similar protections for a number of years.  The Education Code prohibits public schools in California from discriminating on the basis of specific characteristics, including gender, gender identity, and gender expression.  A student can participate in sex-segregated school programs and activities, including athletic teams and competition, and use facilities consistent with their gender identity, irrespective of the gender listed on the educational records.

How we can help

If your educational institution needs assistance, please contact one of our five offices state-wide. We can:

  • Provide training
  • Create and update your policies and procedures
  • Investigate Title IX violations
  • Assist in responding to Title IX complaints
  • Provide advice and counsel on how to best ensure compliance.

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

To receive these Special Bulletins on the day they are released, please send your email address to info@lcwlegal.com.

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

Does SB 178 Restrict a Public Employer’s Ability to Search an Employee’s Electronic Devices and Emails?

Posted in Privacy

Capitol

This post was authored by Gage C. Dungy and James Van

Overview

On January 1, 2016, Senate Bill 178 (“SB 178”) – the California Electronic Communications Privacy Act – became law and is codified under Penal Code section 1546, et. seq.  This new law generally limits a government entity from being able to search or access information on an electronic device (e.g., smartphone, computer) or electronic information on a network (e.g., email) without a search warrant or court order.

SB 178 provides that a government entity shall not do any of the following:

(1)  Compel the production of or access to electronic communication information from a service provider.

(2)  Compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device.

(3)  Access electronic device information by means of physical interaction or electronic communication with the electronic device.

(Pen. Code, §§ 1546.1(a)(1)-(3).)

The legislative intent of SB 178 appears to be aimed at law enforcement agencies conducting criminal investigations. The use of the terms “law enforcement” and “police” generally throughout the bill’s analysis supports this conclusion.  For instance, the stated purpose of the bill is “intended to both codify and expand on existing case law to generally require law enforcement entities to obtain a search warrant before accessing data on an electronic device or from an online service provider.”].”  (Assembly Privacy and Consumer Protection)

Impact on Public Agency Employers

While this new law was generally intended to address privacy concerns around law enforcement searches of electronic devices and communications, if it is determined by courts to broadly apply to government entities it may negatively affect the ability to conduct such searches of an employee’s electronic devices or communications.

SB 178 generally protects an “authorized possessor” of electronic devices, defined as “the possessor of an electronic device when that person is the owner of the device or has been authorized to possess the device by the owner of the device.” (Pen. Code, § 1546(b).)  (emphasis added).  A government entity may only access electronic information “with the specific consent of the authorized possessor of the device.”  (Pen. Code, §§ 1546.1(c)(3).) (emphasis added).

  1. Searches of Government Employer Owned Devices and Electronic Information

We do not believe that this section of SB 178 would be interpreted to allow a public employee who has been provided an electronic device owned by the government entity to exert the rights of an “authorized possessor” under this law and decline a search by the government entity that actually owns the electronic device.  Nonetheless, this ambiguity in the law does highlight the importance for public agencies to clarify in their electronic use policies that an employee’s use of an electronic device owned by the government agency is subject to search and the obligation to surrender the electronic device at any time by the public agency.

In addition, SB 178 does not say that a government entity is prohibited from searching for electronic information on its own network or email system. Rather, the statute provides that a search to “compel the production of or access to electronic communication information from a service provider” can only occur with a warrant or court order. Therefore, SB 178 does not appear to apply to searches of an internal network or email system maintained by the government entity itself.  Interpreting the statute’s restrictions otherwise would mean that a government entity that maintains its own network and email system needs a warrant or court order to search its own network and email system.  We do not believe that is reasonable, nor what the Legislature intended through the passage of SB 178.

  1. Searches of Employee’s Personally Owned Devices or other Electronic Information Not Maintained by the Government Employer

Importantly, the statutory language in SB 178 does appear to limit a government entity from searching an employee’s personal electronic device and personal electronic information maintained by a service provider (e.g., personal email account such as Gmail or Yahoo).  This is because when it comes to such electronic devices, the government entity is not the owner or the “authorized possessor” of the device.  In the case of an employee’s personally owned cell phone, the employee is the owner and/or “authorized possessor” of the cell phone and would either have to give permission to a government entity to search the device or the government entity would have to get a search warrant/court order to conduct such a search of the device.

The same result would also most likely apply for searches of other electronic information provided by an outside service provider.  To the extent that a government entity does not directly control an employee’s electronic information that is being sought, the government entity would need to get permission from the employee to search it or otherwise get a warrant or court order to compel a third party service provider to disclose such information.

Conclusion

While the impact of SB 178 on government entities in the employment context is not yet entirely clear, here are a few best practices public employers can take:

  • Review and revise electronic communications policies to limit an employee’s expectations of privacy in the use of government-owned electronic devices and the use of work email maintained by the governmental entity;
  • Reinforce that a public employee’s authorization to use a government-owned electronic device is at the sole discretion of the government entity and can be modified or revoked at any time, that such electronic devices are subject to search, and an employee is obligated to surrender the electronic device back to the government entity at any time; and
  • Seek legal counsel before compelling a public employee to allow a search of their personally owned electronic devices or of personal electronic information that is maintained by an outside service provider and not directly controlled by the government entity.

The New SF Paid Family Leave Ordinance: Does it Apply to your Agency or School, When does it go into Effect, and What Benefits are Required?

Posted in Workplace Policies

SF City Hall

This blog post was authored by Stacy L. Velloff

On April 5, 2016, the San Francisco Board of Supervisors passed a new ordinance, which was signed by San Francisco Mayor Ed Lee on April 21, 2016, requiring San Francisco employers to provide paid family leave benefits to employees who have a newborn child, newly adopted child, or new foster child.  SF Paid Family Leave is intended to be coordinated with California’s Paid Family Leave benefits. In general, subject to the maximum benefits, employers will be required to pay 45% of the employee’s weekly wage for up to 6 weeks in order to bring the employee to full pay during that period of leave.

Which Employers will be Required to Comply with SF Paid Family Leave?

The new law will be applicable to employers with at least 20 employees, as long as one of those employees works in San Francisco.  Significantly, an employee will not be entitled to SF Paid Family Leave simply because that employee lives in San Francisco – the key factor is whether the employer employs at least one employee who works in the City.

The new law does not apply to employees covered by a bona fide collective bargaining agreement (CBA) if the new law’s requirements are expressly waived in clear and unambiguous terms in the CBA or if the CBA was entered into before the law’s effective date.   

Which Employees are Entitled to SF Paid Family Leave?

SF Paid Family Leave will be available to all employees who:

  • Have been employed by a covered employer for at least 180 days, including part-time and temporary employees.
  • Work at least eight hours per week (and at least 40% of the employee’s total weekly hours) within San Francisco.
  • Are Eligible to receive California Paid Family Leave benefits to bond with a new child.

When Does the New SF Paid Family Leave Law go into Effect?

The effective date of the new SF Paid Family Leave law depends on the size of the employer:

  • For employers with 50 or more employees, the effective date is January 1, 2017.
  • For employers with 35 or more employees, the effective date is July 1, 2017.
  • For Employers with 20 or more employees, the effective date is January 1, 2018.

These employee counts are based on total employees, regardless of where the employees are located.

How are SF Paid Family Leave Benefits Coordinated with State Paid Family Leave?

The California Paid Family Leave program, which is administered by the Employment Development Department (“EDD”), provides eligible workers with partial wage replacement when taking time off to bond with a newborn, newly adopted child, or new foster child.  The program is funded through state disability insurance contributions.  Subject to maximums, California Paid Family leave currently provides payment of 55% of the employee’s weekly wages (up to a maximum weekly benefit of $1,129) for up to 6 weeks for the purpose of baby-bonding.  An employer’s supplemental contribution obligation under SF Paid Family Leave is proportionally capped based on State Paid Family Leave.  Using the 2016 State rates, an employer’s maximum weekly supplemental compensation amount under the new law would be $924 per week.  (The calculation of this figure is as follows: the State’s current maximum weekly benefit amount ($1,129) is 55% of $2,053; the remaining 45% of this number, $2,053, is $924.)

Consistent with California Paid Family Leave benefits, an employee can use SF Paid Family Leave at any time within the first 12 months after the birth or placement of the child.  It is important to note that on January 1, 2018, the maximum weekly benefit for California Paid Family Leave will be increasing to between 60%-70% of weekly wages, and thereby reducing the portion paid by the employer through SF Paid Family Leave.

How are SF Paid Family Leave Benefits Coordinated with Vacation?

Employees may be required to use up to two weeks of accrued vacation when California Paid Family Leave starts, which would leave the employer with the additional 4 weeks of supplemental payments as part of SF Paid Family Leave.

Can Employers be Reimbursed when an Employee Fails to Return to Work after using SF Paid Family Leave?

Yes.  To receive SF Paid Family Leave, an employee must sign a form created by San Francisco’s Office of Labor Standards Enforcement (OLSE), agreeing to reimburse all supplemental compensation received if he or she voluntarily separates from employment within 90 days of returning to work at the end of his or her leave period, if the employer makes a written request for reimbursement.

What are the Notice Obligations?

Covered employers must conspicuously post an OLSE-created notice at each workplace or job site where any covered employee works that informs employees about their SF Paid Family Leave rights.  Notices must be posted in English, Spanish, Chinese, and any language spoken by at least five percent of employees at the workplace or site.

What are the Recordkeeping Requirements?

Employers must keep records documenting supplemental compensation paid as part of SF Paid Family leave for three years.

A link to the ordinance can be found at http://sfgov.org/olse/paid-parental-leave-ordinance.

Avarice. Desperation. Moral Bankruptcy. Should Employers Care What Motivates Employee Theft?

Posted in Workplace Policies

FraudRecently, an already cash-strapped small California city realized that a finance employee embezzled $4.3 million over twelve months.  Multiple theories emerged about what would motivate an educated, professional with a clean employment history to steal money from his public employer, and from the unwitting citizens, who were impacted by the massive theft.  An interesting theory was that he wanted to help his parents, who were going through bankruptcy.  Does the motivation matter?  Not really.  Are there particular individuals who may be more likely to commit theft?  Probably.

Rather than worrying about the motivation, the employer’s attention should focus on the areas of high risk for embezzlement and theft.  In the Report to the Nations on Occupational Fraud and Abuse 2012 Global Fraud Student, the Association of Certified Fraud Examiners (ACFE) presented a comprehensive analysis of occupational fraud.  The study found that 77% of fraud occurred in the following departments: accounting, operations, sales, executive/upper management, customer service, and purchasing.  The study further noted that most perpetrators had clean records: 87% of the “fraudsters had never been charged or convicted of a fraud-related offense, and 84% had never been punished or terminated by an employer for fraud-related conduct.”  The embezzling city employee described above fell right into this profile.

In December 2014, the California State Auditor released its report on “Theft of State Funds, Waste of Public Resources, Improper Headquarters Designation and Improper Travel Expenses, Dishonesty, Incompatible Activities, and Other Violations of State Law.”  Some of the “highlights” from the report include:

  • “A manager embezzled $3,500 in state funds when she recycled surplus state property and kept the proceeds.”
  • “A full-time employee lied to his manager about the need to telecommute, and instead worked a second full-time job without his agency’s knowledge.”

Where do employers go wrong and what can they do proactively to reduce or eliminate employee theft?  Occasionally, fraud in the workplace is uncovered through outside reviews, such as audits.  While audits may be useful to detect fraud in some circumstances, employers should not rely on these outside reviews.  According to the ACFE, only 3% of reported fraud is found through an external audit.  The ACFE noted the highest percentage of fraud detection resulted from employee tips; this accounted for roughly 43% of detected frauds.  Since this likely is the most effective detection method, employers should have a policy or procedure in place that explains to employees how to report suspicious activity and includes a statement on anti-retaliation.  The policy’s existence alone, however, is not enough.  Employers need to take affirmative steps to inform employees of the policy and its importance.

Another area on which employers may focus to uncover or reduce employee fraud is plain and simple observation. The State Auditor’s report was particularly critical of a manager who failed adequately to monitor an employee’s telecommuting activity.  The manager was supposed to evaluate the employee’s job performance but concluded that as long as no one complained about the employee, the employee must have been performing well.  The manager failed in his duties to monitor his subordinates, which cost the public agency thousands of dollars.

As part of observing employees, the AFCE identified 16 common red flags that serve as warnings of employee fraud.  In 36% of the reported cases of employee fraud, the employer noted “living beyond means” as a red flag, which was the highest percentage of all potential red flags.  The second and third highest were financial difficulties and unusually close relationships with vendors or customers.  Educating management in recognizing red flags is an important way for employers to detect and prevent employee fraud.  Other than tips of fraud, attentive management is the most effective means for observing and recognizing fraudulent activity.

Employers would benefit from reviewing existing policies on reporting fraud and making any necessary adjustments.  If no policy currently exists, implementing one would be useful.  Then, training management and notifying all employees of the policy can follow to ensure the policies have their intended effect.

Ninth Circuit Clarifies Analysis of Reasonableness of Use of Force by Police

Posted in Public Safety Issues

Police-Car.jpgLaw enforcement agencies’ policies, in accordance with U.S. Supreme Court precedent, uniformly require that force used by officers be objectively reasonable under the circumstances.  When considering disciplining an officer for violating a use of force policy, it is therefore critical to understand what the courts consider unreasonable.  This is a nuanced and fact-intensive analysis.  The 9th Circuit Court of Appeals’ April 1, 2016 decision in Lowry v. City of San Diego (although it did not arise in a disciplinary context) helps to clarify this inquiry.

Sara Lowry returned to her office after an evening drinking in nearby bars and decided to sleep on an office couch.  During the night, she got up to use a restroom, accidentally set off a security system, and returned to sleep.  Responding to the security alarm, a San Diego Police Department officer arrived at the office and saw a door propped open.  He announced, “This is the San Diego Police Department!  Come out now or I’m sending in a police dog!  You may be bitten!”  Lowry was asleep and did not hear.  After making this announcement two or three times without receiving a response, the officer released the dog into the office, off-leash.

SDPD dogs are trained to enter a building, find a person, bite that person, and not release the bite until a police officer arrives and removes the dog.  Such a bite has the potential to be fatal.

Fortunately, the SDPD dog’s bite of Lowry was not fatal.  When the officer found Lowry, the dog jumped on her and bit her lip, causing it to bleed profusely.  The officer told Lowry, “I can’t believe that’s the only damage.  You’re very lucky.  She could have ripped your face off.”

Lowry sued the City, alleging a violation of her Fourth Amendment rights.  The trial court granted the City’s motion for summary judgment, determining basically that the facts were not sufficient for a jury to find in Lowry’s favor.  Lowry appealed, and the U.S. Court of Appeals for the Ninth Circuit reversed the trial court.

Level of Force Depends on What Could Have Happened, Not Just What Did Happen

The Ninth Circuit disagreed with the trial court’s finding that releasing the police dog off-leash was a “moderate” use of force.  Previous Ninth Circuit cases had held that use of a police dog was a “severe” level of force.  The trial court had found that those cases were different, and therefore did not follow them, because the dog’s encounter with Lowry was “very quick” and Lowry’s injuries were “slight,” noting that in one of the other cases, the police dog had bitten the plaintiff several times, dragged him between four and ten feet, and nearly severed his arm.

The Ninth Circuit stressed that by focusing solely on the amount of force that was applied to Lowry (a relatively short bite to the lip), the trial court had failed to properly consider the type of force the SDPD had used (an off-leash dog that was trained to bite and hold) and the potential harm that it may cause.  Citing a prior decision, the Court noted, “if a police officer fires a gun at a fleeing misdemeanor suspect but the bullet only grazes the suspect’s leg, we would not dismiss the force as non-severe because the bullet did not do the damage that it foreseeably could have done.”  Therefore, the Court held, a reasonable jury could find that releasing the dog into the office off-leash was a “severe” use of force.

The Ninth Circuit then weighed the use of “severe” force against the circumstances facing the officers on the scene, and held that a reasonable jury could find that a use of “severe” force was unreasonable under the circumstances.

A Reasonable Jury Could Find Circumstances did not Justify Severe Force

The Ninth Circuit considered the following in deciding that “severe” force might not have been justified.  First, it found that a reasonable jury could find that Lowry did not pose an immediate threat to the safety of the officers or others.  The trial court had found that the officers reasonably and objectively feared for their own safety and that of any possible hostage because the officers responded to a burglary alarm, the door to the office suite was ajar but no lights were on, and they did not know whether or not the suspect was armed.  In stating its disagreement, the Ninth Circuit wrote, “The district court’s reasoning assumes that any person inside an office building where a security alarm has been tripped at night necessarily poses an immediate threat to their safety or that of others.  We find this assumption unwarranted.”

Second, the Ninth Circuit rejected the trial court’s finding that Lowry’s failure to respond to the officer’s commands to leave the suite could be construed as an attempt to evade arrest.  The Court of Appeals held that a reasonable jury would not be compelled to make that inference and noted, “The mere failure to respond to an officer’s orders, without more, generally does not support the use of serious force – especially if the [subject] has not heard the commands.”

Third, the Ninth Circuit held that the factor of the severity of the suspected crime – burglary – weighed only slightly in favor of a finding of reasonableness.  The Court clarified that even where the suspected crime is a felony and not a misdemeanor, the analysis of the reasonableness of the use of force depends on the level of danger the suspected crime poses.  Citing Supreme Court authority and a Bureau of Justice Statistics study, the Ninth Circuit held that, although it can be dangerous, “Burglary is not an inherently dangerous crime.”

Fourth, the Court held that the fact that the officer gave warnings before releasing the dog weighed only slightly in favor of reasonableness, because Lowry did not hear.

Finally, the Court held that a reasonable jury could find that the officer should have considered the alternative tactic of keeping the dog on-leash, allowing him to exercise greater control.

Law enforcement agencies should consider the Lowry decision’s analysis when making disciplinary decisions involving possible policy violations for the use of police dogs or other potentially serious levels of force.

Tips from the Table: Understanding the Backstory Behind a Proposal

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.

No Relief For Unions That Fail to Timely File Factfinding Requests In Accordance With MMBA and PERB Regulations

Posted in PERB

Gavel-and-Books.JPG

This post was authored by Erik Cuadros and Adrianna E. Guzman

When it comes to negotiations, sometimes, as we all know, the parties cannot reach agreement, despite everyone’s best efforts.  At that point, either party may declare impasse.  That written declaration of impasse, however, triggers certain statutory impasse procedures, and could lead to factfinding.

But unlike some of the other statutes under PERB’s jurisdiction, the Meyers-Milias-Brown Act (MMBA) only allows an exclusive representative to request factfinding.  To obtain factfinding under the MMBA, all the recognized employee organization has to do is file a request form with PERB within the following time periods:

  1. Not sooner than 30 days, but not more than 45 days, following the appointment or selection of a mediator pursuant to either the parties’ agreement to mediate or a mediation process required by the public agency’s rules; or
  2. If the dispute is not submitted to mediation, not later than 30 days following the date that either party provided the other with written notice of a declaration of impasse.

Yet despite the ease in filing a request for factfinding, and despite the clear language of the statute, employee organizations occasionally miss the deadline.  In City of Redondo Beach and Lassen County In-Home Supportive Services Public Authority, PERB rejected requests that it take a more lenient approach to these deadlines.

On April 26, 2016, PERB reiterated that if an employee organization wants mandatory factfinding under the MMBA, it must strictly comply with those deadlines.   In Santa Cruz Central Fire Protection District (2016) PERB Order No. Ad-436-M (a case handled by LCW attorneys, Jack Hughes and Adrianna E. Guzman), PERB cited to its prior decisions, and made clear the following points:

  1. A willingness to discuss the possibility of mediation is not the same thing as an agreement to mediate;
  2. If you want to “undeclare” impasse, then say so in clear and unambiguous terms, like “we undeclare impasse”;
  3. In MMBA cases, PERB will not investigate facts to determine whether an actual impasse exists, but will only look at the clear and unambiguous statutory and regulatory window periods to determine whether a factfinding request is timely.

In Santa Cruz Central Fire Protection District, the District and the Professional Firefighters, IAFF Local 3605 (“Union”) engaged in several months of negotiations for a successor MOU, but could not reach an agreement.  On May 29, 2015, the Union gave the District its written declaration of impasse, thus, triggering the deadline to request factfinding.  On June 1, 2015, the Union sent a follow-up letter informing the District that it was willing to return to the table to “break the impasse” or select a mediator.  It also advised that if the District did not agree to either option, it would request factfinding.

The District responded on June 18, 2015. Although it did not agree to return to the table, it did acknowledge that the parties were at an impasse.  The District also confirmed the impasse meeting (required under the District’s local rules) scheduled for June 30, 2015—two days after the 30-day deadline to request factfinding.  On the issue of mediation, the District advised that it was “willing to discuss the possibility [of mediation] but hope[d] that the Parties [would] break their impasse or reach agreement [during] the June 30 meeting.”

On June 25, 2015, the Union confirmed the scheduled meeting and informed the District that it had decided that “it would be premature to submit a Request for Factfinding at this time.”  The Union did not, however, withdraw or “undeclare” its prior declaration of impasse.  Instead, it wrote that it understood the District’s June 18 letter to mean that the Union’s “Declaration of Impasse does not become operative until after the impasse meeting.”   The District did not respond to the Union’s statement.

During the June 30, 2015 impasse meeting, the District presented its last, best, and final offer, and the Union presented a modified “supposal” from what it had presented two months earlier.  The parties did not reach an agreement at that meeting.  Instead, the parties held a second impasse meeting on August 1, 2015, but were still unable to reach an agreement.    When that meeting concluded, the District informed the Union that it was not interested in mediation.

On August 18, 2015, the Union sent the District a new written declaration of impasse.  The Union claimed that this new declaration was necessary because the parties meeting on June 30, 2015 broke the impasse.  On September 3, 2015, the Union filed its factfinding request with PERB.

After considering the Union’s request and the District’s opposition, PERB’s Office of General Counsel (“OGC”) determined that since the parties had not submitted their dispute to mediation, the Union should have filed its factfinding request within 30 days of its declaration of impasse.  The OGC denied the Union’s request because it was untimely.  According to the OGC, the Union’s May 29, 2015 written declaration of impasse triggered the 30-day window period for the Union to file its factfinding request.

In appealing the OGC’s determination, the Union sought to blame the District for the Union’s failure to timely file its request.  The Union claimed that the District’s “agreement” to mediate the impasse forced the Union to hold off on requesting factfinding until a mediator was selected or appointed.  Thus, the Union claimed, the deadline to request factfinding had not yet been triggered. The Board, however, did not buy that argument, and pointed out that the Union provided no evidence of an agreement to submit the impasse to mediation.  As the Board explained, the District’s June 18 letter expressing its “willingness” to discuss the “possibility” of mediation did not demonstrate a clear agreement to mediate.  Absent such an agreement, “it was incumbent on the [Union] to file its request for factfinding during the initial 30-day window period.”  The Board noted that that Union chose not to do so.

The Union next claimed that its request was timely because it had twice “undeclared” impasse.  It argued that it first “undeclared” impasse on June 1 when it informed the District that it would proceed to factfinding only if the District declined its invitation to return to the table or its request to select a mediator.  It claimed that it “undeclared” impasse a second time on June 25, when it wrote the District that its declaration of impasse did not become operative until after the impasse meeting.  The Board rejected both arguments, and found that neither letter embodied a “clear withdrawal” of the Union’s prior impasse declaration.

For its final argument, the Union claimed that its modified “supposal” broke impasse on June 30, thereby nullifying its May 29 declaration of impasse.  Again, the Board rejected the Union’s claim.  The Board explained that under the MMBA, PERB must accept a declaration of impasse at face value and is not permitted to investigate the underlying facts to determine whether an impasse actually exists for purposes of factfinding.

So what does this recent ruling regarding MMBA factfinding tell us?  Well, at least a few things.  This ruling sends a clear signal to both unions and local agencies, that once a written declaration of impasse has been issued, the statutory window period for filing factfinding requests begins. A union’s mistaken belief that it thought the deadline was put on hold, or that it thought there was an unspoken understanding that impasse was broken, will not garner that union any relief from the statutory deadlines. PERB’s ruling also tells us that withdrawing an impasse declaration requires nothing more than a simple statement to the other party that the impasse declaration is withdrawn.  Finally, PERB’s ruling tells us that to ensure there is no confusion as to whether impasse has been declared or undeclared, or whether there has been or has not been an agreement to mediate, an employer should make sure its communications are clear and concise as to its position on impasse and mediation.