California Public Agency Labor & Employment Blog

California Public Agency Labor & Employment Blog

Useful information for navigating legal challenges

Holidays and the Workplace: Be Merry or Bah Humbug

Posted in Employment, Workplace Policies

Happy-Holidays-messageReady or not, the holidays are here.  Not only are the holidays a time to reflect on the passing year, but also a time full of fun, festive celebrations.  As you get ready for this season’s festivities at work, make sure to keep in mind following tips that can help your agency stay in the festive mood without the post-holiday hangover of a lawsuit.

Religious Holiday Accommodations

For many, the holidays are a time for religious observance.  For example, a Christian employee working the night shift may ask for the evening off to attend Christmas Eve mass or a Jewish employee may request time off to observe Hanukah.  Both federal and state discrimination laws require employers to accommodate their employees’ sincerely held religious beliefs, practices, and observances.  Thus, employers who are confronted with requests for time off should try to accommodate them unless doing so would impose an undue hardship.  Accommodating an employee may mean changing the employee’s schedule or allowing the employee to switch shifts with a co-worker.

Workplace and Workspace Decorations

Before decking the halls, employers should consider the location of holiday decorations.  Employers who plan to decorate common work areas should strive to avoid the appearance of endorsing one religion over another.  For example, if a nativity scene is displayed in the reception area or lunch room, the employer may be perceived as favoring the Christian religion. Some employees may this find offensive.  Therefore, employers who wish to decorate the workplace should use non-religious, winter themed decorations such as snowflakes, candy canes, holly and gingerbread houses.

Since non-religious decorations are permissible, there is always debate over whether a Christmas tree is a religious symbol.  While  a decorated tree  may have religious connotations for some people, the U.S. Supreme Court has determined that a Christmas tree is a secular nonreligious symbol.  This view was also adopted by the EEOC.  Thus, employers may include Christmas trees among their decorations even if an employee objects.  However, for purposes of promoting positive employee relations, employers should be sensitive to the diversity of their workplace.  Thus, even if you have a tree, ornaments with religious connotations, such as crosses, angels, or nativity references should not be allowed.

Employees who wish to decorate their own personal workspaces with Christmas, Kwanzaa or Hanukah themed decorations present a more difficult question.  Prohibiting employees from displaying religious holiday themed decorations in their own workspaces may give rise to claim of violation of free speech and religious expression.  Because the law requires employers to accommodate religious beliefs, employers should not try to suppress religious expression in an employee’s personal workspace unless it creates an undue hardship on business operations.

Finally, mistletoe should never be allowed in any area of the workplace including individual workspaces because it could lead to sexual harassment or hostile work environment claims.

Holiday Gift Exchanges

The traditional holiday gift exchange where one “Secret Santa” employee gives a gift to a randomly assigned employee has largely been replaced by the “white elephant” gift exchange.  Employees favor this type of gift exchange because it is fun and the gifts up for grabs are often humorous.  However, this game can easily turn into blood sport as employees become competitive and even downright vicious towards each other in their quest for the best gift.

In order to ensure fun for all employees, the announcement of a gift exchange should include language reminding employees to select gifts appropriate for the workplace.  For example, employees should be discouraged from buying items that contain profane, graphic or sexual content.  In addition, employees should be reminded that the gift exchange is a festive occasion where everyone should be treated respectfully.  A very modest limit on the cost of such gifts should be established, such as $10 or $15.

Holiday Parties

The two biggest concerns for employers about holiday parties are potential legal liability from sexual harassment and drinking and driving.  Because employees typically “let their hair down” during these events, they may not conduct themselves the same way they do at work.  Also, alcohol clouds judgment. A luncheon rather than an evening event is more prudent for all these reasons. If a festive evening is the preferred celebration, employers may want to consider taking the following preventative steps to reduce liability.

Employees should be reminded of the employer’s discrimination, harassment and alcohol and drug policies.  In addition, employers should designate a supervisor or manager to provide discrete oversight over employees during the party.  For example, if an employee appears to have had too much to drink, a supervisor or manager can intervene and make arrangements for the employee to get home safely.  If alcohol is served, employers should limit the amount consumed by either issuing drink tickets to employees or stopping the service of alcohol well before guests start leaving the party.  Finally, if a harassment complaint is made after the party, employers should make sure they promptly investigate it.

Texas Judge Orders Nationwide Halt of the DOL’s New Overtime Rule

Posted in Wage and Hour

Breaking-News1.jpgOn Tuesday, November 22, 2016, Judge Amos Mazzant of the U.S. District Court in the Eastern District of Texas (a 2014 Obama-appointee) issued a preliminary injunction barring implementation of the U.S. Department of Labor’s (DOL) new rule (“Final Rule”) raising the salary threshold for certain overtime exemptions under the Fair Labor Standards Act (FLSA).  The Final Rule was set to go into effect in less than two weeks – on December 1, 2016.  The Court’s order halting implementation applies “nationwide,” i.e. to all states, and is effective immediately absent further judicial order.  It remains to be seen whether the DOL will appeal or seek other relief, or what final position it will take on the effectiveness of the order.

As we reported in prior blog posts, in May of this year, the DOL issued a Final Rule that raises the federal salary basis for exempt employees to $47,476 per year, effective December 1, 2016.  The Final Rule increases the salary threshold level for the highly compensated employee exemption from $100,000 per year to $134,004 per year, and adjusts salary levels automatically every three years.  The Office of Management and Budget estimated the new rule will extend overtime coverage to more than 4 million employees nationwide.

The November 22, 2016 Order calls the Final Rule into question.  California public and private employers will have to await further developments in the coming days to determine whether the DOL can mount an effective litigation strategy to overturn the order, or concede that it will have to forego implementing the Final Rule for the time being.

Background – The Judicial Challenge

On September 20, 2016, two federal lawsuits were filed in the Eastern District of Texas against the DOL seeking to overturn the Final Rule. The lawsuits – one filed by a coalition of twenty-one states (State of Nevada et al. v. U.S. Department of Labor) and the other filed by a coalition of business groups (Plano Chamber of Commerce et al. v. U.S. Department of Labor) – advance numerous legal theories to challenge the rule, including that the DOL failed to follow proper procedures when adopting the new salary threshold and that the automatic indexing for upward adjustments runs contrary to the terms of the FLSA. The lawsuit filed by the states also argues that the Final Rule is unconstitutional because the DOL does not have the power to dictate how state governments pay their employees and spend state resources. The states’ lawsuit argues further that the FLSA delegates too much power to the DOL and that the 1986 decision extending the FLSA to the states, Garcia v. San Antonio Metro. Transit Authority, should be overruled.  The lawsuits also ask the courts to block enforcement of the rule.

On October 12, 2016, the state plaintiffs moved for an emergency order that temporarily enjoins (or halts) the implementation and enforcement of the Final Rule pending further judicial review.  Shortly thereafter, the lawsuits were consolidated.  Oral arguments on the plaintiffs’ emergency stay were held November 16, 2016.

The November 22, 2016 Decision

To prevail on their motion for preliminary injunction, the plaintiffs were required to demonstrate a number of factors, including that there is a substantial likelihood that their case will succeed on the merits and that the plaintiffs are likely to suffer irreparable harm if the injunction is not granted.

In its evaluation of whether the plaintiffs’ lawsuit would succeed on the merits, the Court first examined plaintiffs’ argument that the FLSA has been unconstitutionally applied to the states.  Although the Court found persuasive plaintiffs’ argument that the Supreme Court’s Garcia decision may have been implicitly overruled, the Court ultimately concluded that Garcia has not been specifically overruled thus the FLSA applies to the states.

However, the Court agreed with the plaintiffs in finding that the Final Rule’s new salary threshold conflicts with the statutory text of the FLSA because it gives too much weight to the salary component of the exemption, i.e. doubling the salary threshold in effect made that test “supplant” the statutorily-mandated “duties test.”   The Court reasoned that, because the DOL promulgated regulations that conflict with the text of the FLSA, the Final Rule is contrary to Congressional intent and therefore likely to be declared unlawful.  As for irreparable harm, the Court agreed with the plaintiffs that implementation of the Final Rule would increase costs, which, for the states, means a detrimental effect on government services that benefit the public.  The Court also found that the balance of hardships weighs in favor of granting the preliminary injunction because the defendants failed to articulate any harm suffered by delaying implementation of the Final Rule.  The Court further found that the public interest is best served by an injunction because the legality of the Final Rule should be determined with finality prior to implementation.

Finally, citing, in part, to an August 2016 decision by another Texas Federal Judge that issued a nationwide injunction to ban enforcement of the Department of Education’s rule related to transgender bathroom policies, the Court determined that proper scope of the injunction is nationwide because the Final Rule is applicable to all the states.

The full text of the Order is available here.

DOL Response

In a written statement released after the November 22, 2016 Order was issued, the Department of Labor stated “[w]e strongly disagree with the decision by the court, which has the effect of delaying a fair day’s pay for a long day’s work…We are currently considering all of our legal options.”  It remains to be seen whether the DOL will appeal the order or seek other relief.  The appeal would be heard by the Fifth Circuit Court of Appeals, which is generally regarded as one of the more conservative Circuit Courts.  Moreover, it is possible that Congressional action to overturn or amend the DOL regulations will gain momentum if legislation reaches President-elect Trump’s desk with the regulation placed on hold by the Courts.

What Should Be Done Now?

The state of the law is uncertain in all regards.  Legal counsel should be consulted about steps to take.  Any employer who has been planning to raise compensation levels per the new regulations should hold off on taking concrete action pending further developments.  We will report on further significant developments as we learn them.

Third Annual Review of Unbelievable Employment Cases

Posted in Employment

Gavel 2Yes, these are real cases involving real people.

Everyone in Southern California Would Need to be Accommodated If This Were a Disability

A former employee in New Jersey sued her employer for wrongful termination after she requested an accommodation for her disability: an inability to drive in rush hour traffic due to anxiety and depression. According to the employee, her condition was aggravated by heavy rush hour traffic. (I think we can all relate!) When she asked for a schedule that would allow her to avoid rush hour traffic, claiming she needed an accommodation due to her disability, the company approved shorter work days. Not long after the company agreed to accommodate the employee, she received a poor performance review, demotion, and ultimately was terminated. Oddly, she may have a case if she is able to prove retaliation or disability discrimination. Based on the employer’s decision to accommodate the employee, it is reasonable to infer that the employer accepted that she was disabled or regarded her as disabled. In California, when an employer “regards” an employee as disabled, it has the same legal effect as if the employee actually was disabled—the employee can sue for, among other, things disability discrimination and failure to accommodate.

Don’t Mix Dune Buggies and Alcohol Because Workers’ Compensation May Not Be There For You

Evidently, dune buggies still exist and consist of large wheels, wide tires, and are for use on sand dunes. Alcoholic beverages may impair your ability to drive. A “traveling employee” (not to be confused with gypsy Travelers) is covered by workers compensation in all places while traveling for work. If an employee is pursuing “normal creature comforts and reasonably comprehended necessities,” he may be covered. But, if he engages in “strictly personal amusement ventures,” he has left the scope of employment. When an employee was injured after wrecking a dune buggy while driving intoxicated, workers compensation was denied because driving a dune buggy while intoxicated was not a normal or reasonably comprehended necessity during work travel. Go figure.

You Will Have a Positive Attitude At Work! Or Not.

The National Labor Relations Board (NLRB) ruled that a company could not have a policy that required employees to “maintain a positive work environment by communicating in a manner that is conducive to effective working relationships.” The union complained that the policy was too broad and vague and would inhibit employees from complaining about working conditions. The NLRB agreed, striking down “the rule to restrict potentially controversial or contentious communications and discussions” because employees may fear that “the [employer] would deem [such discussions] to be inconsistent with a ‘positive work environment.’” However, this is not to be confused with the employer’s right to have work rules that prohibit insubordination or a negative attitude that is disruptive to the workplace.

Come on Down! The Price is Right!

An important tip for employees—don’t tell your employer that you are unable to stand, sit, kneel, squat, climb, bend, reach or grasp, but then spin the big wheel on The Price is Right, twice. The former postal worker, who had been on workers’ compensation for several years before her appearance on The Price is Right, raised her arm above her head, grabbed the wheel, and sent it spinning. Hopefully, she won prizes because she is going to need them after she pled guilty to workers compensation fraud. She also probably should not have gone ziplining while on a cruise. Workers compensation fraud is serious and employers should be proactive in working with the claims administrators to recognize potential fraud.

An Employee’s Argument Unbelievably Has Come Down To This…

The general rule is that employees are entitled to receive a legal defense from the public agency employer if they acted within the scope of employment. Not surprisingly, when a jail guard thought it would be funny to serve a “penis-tainted” sandwich to an inmate, he was subsequently sued by the offended inmate. The guard demanded that his employer provides him a legal defense in the lawsuit. You may be wondering, what did he argue? This is a good one.

The guard said it was common for jokes and pranks to occur in the jail and, while not condoned, such acts were not discouraged. The guard claimed he was just playing one of those “jokes and pranks” when he took a sandwich, opened the sandwich, had an inmate place his penis in the sandwich, photographed the inmate’s penis in the sandwich, and served the sandwich to a different inmate. The genius then showed the penis photograph to the inmate who had eaten the sandwich. Isn’t he hilarious? The guard also claimed he was entitled to a defense because he was acting within the course and scope of his employment by giving a sandwich to an inmate. The court disagreed with the guard, stating that “[a]lthough serving food to inmates is part of [the guard’s] job duties . . . the meal served was one plainly unauthorized by [the employer] and obviously outside of [his] authorized duties.”


Until next year!

Related posts:

Tips from the Table: Caucuses During Negotiations

Posted in Labor Relations, Negotiations

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

Sexual Misconduct On Campus – Lessons From Due Process Litigation

Posted in Education

College-campus-from-aboveOne of the most contentious issues in higher education continues to be how to punish and deter student-to-student sexual assault, protect students and assault survivors, and at the same time fully honor the legal rights of all concerned.  Title IX of the Education Amendments of 1972 prohibits institutions of higher education from discriminating “on the basis of sex.”  The federal Department of Education, Office for Civil Rights (“OCR”) has in recent years aggressively applied this law to combat sexual assault, opening a record number of investigations of colleges and universities and issuing extensive guidance on OCR’s expectations of what institutions need to do to bring their disciplinary procedures into compliance with Title IX.

Colleges and universities face a different but related responsibility in the same context – the need to afford constitutional due process to those accused of sexual assault.  Expelling or suspending a student without affording such due process can result in liability for a civil rights violation, which in turn can render administrators liable for damages and attorneys’ fees.  A due process violation can also help pave the way for a Court to impose injunctive relief to prevent future violations.

This blog entry will describe five prominent cases, either recently decided or expected in the next 12 months that contain – or will contain – critical guidance to public and private institutions of higher education.    

But before that description, this short discussion introduces some general concepts for those not familiar with this area of the law.

The Ground Rules

First, the basic test for student due process comes from a 1975 U.S. Supreme Court case, Goss v. Lopez, which involved discipline in the context of student unrest.  In Goss, the Supreme Court held that student due process had two over-arching requirements – in the words of the Court, “some kind of notice” and “some kind of hearing.”  “Hearing” corresponds to “some kind of meaningful opportunity to be heard.”  The Supreme Court did not hold that a full evidentiary hearing was required to impose discipline on a student, i.e., sworn testimony, right to cross-examination, right to introduce witnesses, etc.  Indeed, the Supreme Court described in another much-cited due process case, Matthews v. Eldridge, that due process is a “flexible concept,” and that the process due depends in substantial part on the severity of the penalty imposed.

Second, constitutional standards like due process bind government entities such as state universities and community colleges.  They do not, however, apply to private colleges and universities.  Nonetheless, private institutions must abide by common law rules of fairness (some codified by statute), and these incorporate or parallel due process rights.  Courts can apply the standards interchangeably, and thus public and private institutions must take account of precedent in both areas.

Third, as a matter of practice, institutions are beginning to implement different types of models for student discipline in sexual misconduct cases – the “hearing model” and the “investigator model.”  The hearing model has been regarded as a traditional approach.  This consists of an investigation, often by an independent firm that the institution hires, followed by a hearing with many of the same components as an administrative hearing – one or more neutral decision-makers, sworn testimony, cross-examination of witnesses (with appropriate safeguards for cross-examination of alleged victims), and detailed findings.

Increasingly, however, institutions, both public and private, are adopting the “investigator model,” in which no formal evidentiary hearing takes place.  Instead, the student facing discipline (often called the “respondent” in due process litigation) receives traditional notice of the charges against him or her, and then a comprehensive investigation takes place, conducted sometimes by a single person and often by an independent firm.  This investigation provides the respondent with a meaningful opportunity to be heard in a thorough interview by the investigator.  The respondent may also provide documents, names of witnesses, and other information.

The New Cases

  1. Requirement of the Hearing Model – John Doe v. Regents of the University of California (U.C. San Diego)

Note: It is general practice in litigation to protect the accused student’s identity by referencing them as “John Doe” in the case caption and pleadings, and often the alleged victim is referenced as “Jane Roe.” 

This important case is on appeal and will help determine the due process requirements of the “hearing model,” the first of the two described above.  In this case, which gained media attention, the accused student faced charges of nonconsensual sexual contact in the course of a dating relationship.  The university conducted a hearing, and the student was found responsible.  The student challenged his discipline in state trial court, however, and the trial court found in July 2015 that the university had infringed the accused student’s due process and other rights in the course of his administrative hearing.

This trial court decision is not precedential, meaning it does not represent the law of California.  Instead, it is only one court’s interpretation of the law.  It is important, however, because the trial court’s findings will be those considered by the Court of Appeal, which will likely set binding precedent on those particular points.

The trial court’s findings included these.  First, the court found fault in the university’s screening cross-examination questions posed to the alleged victim and declining to ask her a number of questions proposed by the respondent relating to his communications with her.  Second, the trial court found it improper for the University to have placed a partition that blocked respondent from seeing the alleged victim as she testified, so that there was no ability for respondent to confront this witness against him.  Third, the trial court pointed out that respondent was not provided the alleged victim’s statement or other witness statements before the hearing in order to help him formulate a defense.

The university has argued to the Court of Appeal that under well-established law, due process does not require a full judicial hearing with right to cross-examine witnesses in order for the university to discipline a student.  Accordingly, the trial court erred in finding due process principles had been violated.

The case was argued and submitted in the Court of Appeal on October 12, 2016, and a decision is expected in the next several months.

  1. Requirements of the Investigator Model – John Doe v. University of Southern California

Earlier this year on April 5, 2016, the Court of Appeal in John Doe v. University of Southern California, issued a published decision setting legal precedent in this area.  The Court did not consider whether the investigator model per se satisfied constitutional due process; indeed since the University of Southern California (“USC”) is a private institution, the Court did not need to do so.  But the Court did decide the case under principles of common law fairness using due process concepts.  The Court never indicated the investigator model itself failed to satisfy fairness standards, and in fact acknowledged that due process does not always require a “full dress evidentiary hearing.”

Instead, the Court of Appeal found flaws in the way the university implemented its investigator model.  First, the Court found that the university violated notice standards by only citing student code sections to the accused student at the outset of the investigation, without describing the facts underlying the charges.  The Court also found that the university improperly changed the theory of the case after the initial findings and during the internal university appeal process.

The facts of the case concern a group sexual encounter at a fraternity party in which respondent and the alleged victim, referred to as Jane Roe, engaged in allegedly non-consensual sex and in which Roe also engaged in sex with others at the party after respondent had left the room.  The university’s investigation and report focused on alleged sexual assault by respondent and whether Roe consented to sexual contact with him.  But when the case was appealed internally, the appeals panel determined that discipline was appropriate on a different theory, in particular that Doe had encouraged other students during the group encounter to slap Roe’s buttocks and endangered Roe by leaving her in a room with other men.  The Court of Appeal observed that because the theory of the case during the investigation was different in this way, John Doe was not provided an adequate opportunity to defend his actions relating to the slaps or leaving the room.  In light of this, the Court of Appeal found he was deprived of adequate notice.

The Court of Appeal also found that the university violated principles of fairness by not providing John Doe with the evidence against him as part of the process.  The fact that John Doe would have been given the information had he asked was insufficient.

The university petitioned the California Supreme Court for review, but review was denied.  Accordingly, the case now constitutes binding legal precedent for the propositions that institutions using the investigator model must provide adequate notice of the factual bases at the outset of the investigation; that they may not substantially alter theories of responsibility late in the disciplinary process; and that the accused student should, as part of the investigation, be provided access to the evidence against them.

  1. More on the Investigator Model  Expected — John Doe v. University of Southern California

In 2017, the Court of Appeal will likely decide another case involving USC that will shed further light on the legal requirements of the investigator model, including the extent to which it is fair for investigators effectively to serve as decision makers. In this case, on February 8, 2016, USC won outright in the trial court.  The university had expelled a student based on a finding he had engaged in sex with a student who was intoxicated and unable to consent.  The trial judge rejected the respondent student’s administrative challenge to his expulsion, and issued a well-reasoned, 15-page decision sustaining the discipline and upholding the university’s investigator model system.

In doing so, the Court rejected a number of challenges the student had made to the system, including a challenge that the investigator in the case should not have also served as the effective decision maker.  The trial court’s order found the use of the single investigator complied with common law principles of fairness, and notions of due process.  The court explained that without some showing of impermissible bias, “there is nothing per se improper in [the investigator’s] role as both an investigator and adjudicator.  Essentially, [the investigator] was both a factfinder who operated on her own initiative and also accepted the party’s submission.  Contrary to Petitioner’s assertion, no evidence in the record suggests [she] was acting as a prosecutor when she investigated the matter.”

The expelled student has appealed the trial court’s decision.  Unless the case is otherwise resolved, it could well result in additional published guidance in California on elements of fairness and due process.

  1. Gender Bias in Procedure? — John Doe v. Columbia University

Another recent case, decided July 29, 2016, has approached an alleged lack of due process from a different angle – from the perspective of Title IX itself, and its prohibition on discrimination “on the basis of sex.”  The U.S. Court of Appeals for the Second Circuit, covering New York and other Eastern states, considered the federal lawsuit brought by a male student who conducted the university’s hearing model, as implemented by the university, discriminated against him as a man, and thereby violated Title IX.  Plaintiff alleged in his lawsuit that, following an investigation and then a formal hearing, the university had suspended him, after the hearing panel found that he had “directed unreasonable pressure for sexual activity toward the Complainant over a period of weeks” and that “this pressure constituted coercion [so that] the sexual intercourse was without consent.”

The federal district court dismissed plaintiff’s complaint, but the Court of Appeals reversed the decision, finding that the student had set forth facts that could make out a case for sex discrimination.  The Court of Appeals relied on the following alleged facts: (1) the investigator and the panel had declined to seek out potential witnesses whom Plaintiff had identified as sources of information favorable to him; (2) “[t]he investigator and the panel failed to act in accordance with University procedures designed to protect accused students” (the Court’s discussion does not specifically identify the flaws), and (3) according to the complaint allegations “[t]he investigator, the panel, and the reviewing Dean . . . reached conclusions that were incorrect and contrary to the weight of the evidence.”  Finally, significantly, the Court pointed to complaint allegations detailing publicity surrounding the university’s previous responses to sexual assault against female students, and the pressure this put on the university, and stated that those allegations further supported the claim of anti-male bias.

The Court of Appeals decision does not mean that the university is liable, but instead only that the trial court was wrong in dismissing the complaint at the outset.  The university will still have an opportunity to defend itself through pre-trial motions and if necessary by evidence at trial.  The case, however, highlights the need to ensure that processes have fairness protections that guard against accusations of gender-bias.

  1. The OCR Weighs In on Due Process (Through the Lens of Title IX) — Wesley College Investigation

Finally, the Department of Education, OCR, itself has now weighed in on due process.  Normally, the OCR has focused on system-wide protections for victims and potential victims, and not the rights of accused students.  But in the Wesley College matter, the OCR regional office in October 2016, determined that the small Delaware college had in fact violated Title IX by not affording an accused male student certain procedural protections.  The Wesley matter concerned the college’s expulsion of a male student for allegedly live-streaming a female student’s sexual encounter without her knowledge.  The expulsion took place seven days after discovery of the conduct, shortly before graduation.

The OCR found that the college’s process was flawed, first, because there was no investigatory interview of the accused student in question, even though college policies provided that all parties and witnesses in this type of case would be interviewed.  The OCR also found it was improper for the college not to provide the accused student the incident report, the findings of the college’s investigation, or other evidence against him.  The OCR further observed that the accused student was not made aware of a particular witness’s testimony during the hearing or provided the opportunity to question the witness.  Wesley has entered into a Resolution Agreement with OCR to address these issues.

 *  *  *  *  *

We will report on important developments in this area, through blog entries or special bulletins, as they occur.

Can California Employers Require Employees To Pass On Marijuana Even If It’s Legalized On Election Day?

Posted in Employment, Workplace Policies

marijuana_legal_gavelThis post was authored by Megan Lewis.

Twenty years ago, California became the first state to legalize medical marijuana.  Since then, numerous other states have legalized marijuana for medicinal use.  What about more general legalization? Though a previous attempt in 2010 failed, a recent poll indicates that California is in fact poised to join the small group of states, including California’s west coast neighbors Washington and Oregon, that have legalized marijuana for recreational use.

If it passes on November 8, Proposition 64 (also known as the “Adult Use of Marijuana Act”) would, among other things:

  • Legalize the recreational use of marijuana for adults age 21 years or older;
  • Legalize possession of up to one ounce of marijuana or up to 8 grams of concentrated cannabis for adults age 21 or over; and
  • Allow the State of California to regulate and tax the sale of marijuana for recreational use.

You can see the full text of Proposition 64 here.

However, Proposition 64 would also leave significant restrictions on recreational marijuana use in place.  For example, smoking marijuana would still be prohibited while driving and anywhere smoking tobacco is prohibited.

If Proposition 64 passes, Californians will be able to legally possess and smoke recreational marijuana virtually immediately (though other elements of the law will take longer to implement).  Keep reading for answers to questions you may have about what impact Proposition 64 may have on your agency if it passes on Election Day.

If recreational marijuana is legal, can my agency still require a drug-free workplace?

YES!  Proposition 64 explicitly “allow[s] public and private employers to enact and enforce workplace policies pertaining to marijuana.”  This is critical language that was included in Proposition 64 in order to ensure that employers are able to maintain or create their own policies regarding their employees’ marijuana use.

Although the possession and recreational use of marijuana would be legal, it does not follow that employers would be required to allow employees to either possess or use it in the workplace.  Alcohol is legal, but most employers prohibit the consumption of alcohol in the workplace and/or during work hours.  The same should be true of marijuana.  Given the likelihood that this proposition is going to pass, agencies should examine their policies as soon as possible to determine whether they need to be updated in order to explicitly state the agency’s expectations regarding the possession and use of marijuana at work.

Even if an employee has a prescription?

It appears so.  However, the reigning California case on this issue (Ross v. RagingWire Telecommunications, Inc.) may be vulnerable if marijuana is legalized in California.

In the Ross case, the California Supreme Court held that employers are not required to accommodate an employee’s use of marijuana, even if the marijuana was recommended by a health care professional.  The Court noted that, although the Compassionate Use Act of 1996 prohibits people who use marijuana under the care of a physician from being charged criminally, the Act does not grant marijuana the same status as a legal prescription drug.  (Health & Safety Code section 11362.5) Similarly, the Court reasoned that, since the California Fair Employment and Housing Act (“FEHA”) does not require employers to accommodate illegal drug use, the employer could lawfully terminate the employee for using medical marijuana.  The Court further stated that marijuana cannot be “completely legalize[d] for medical purposes” because it is illegal under federal law.  (Government Code section 12940 et seq.)

Though Ross will continue to be good law if Proposition 64 passes, based on the Court’s reasoning, it is very possible that a court examining identical facts could come to a different conclusion if marijuana becomes legal in California.  The two statutes discussed above, the Compassionate Use Act and the FEHA, are state laws.  Therefore, if marijuana were legal in California, a court could determine that medicinal marijuana does now have the same status as other prescription drugs and/or that the FEHA does require accommodation of medical marijuana use because it no longer constitutes illegal drug use.  This change, of course, is particularly likely in an employee-friendly state like California.

On the other hand, even if Proposition 64 passes, marijuana will continue to be designated a Schedule I drug under the federal Controlled Substances Act, which means that the use and possession of marijuana will remain illegal under federal law (though the Department of Justice established in a 2013 memorandum to prosecutors that prosecuting state medical marijuana cases is not a priority).  A court could point to the federal law and maintain that the applicability of the Compassionate Use Act and the FEHA are limited.

Speculation aside, there is no language in Proposition 64 that would change the status quo with respect to accommodating medical marijuana use.  Any changes will likely be established through litigation on these issues.

If recreational marijuana is legal, can my agency prohibit employees from using marijuana while off-duty?

Employees of public agencies have a constitutional right to privacy with respect to their off-duty conduct unless such conduct has a nexus to their employment.

For that reason, courts have usually upheld random drug testing of employees in safety-sensitive positions but invalidated random testing of other employees.  However, the law in this area is still evolving, and employers should consult with legal counsel before implementing any policy that prohibits off-duty marijuana use and/or establishes random drug-testing of employees.

You’re Ready for the Election to Be Over. But Are You Ready for Election-Related Employment Issues?

Posted in Employment

Elections.jpgEvery election has its share of controversy and hot-button issues; the 2016 election, however, is a spectacle the likes of which few of us have ever seen.  It is inevitable that employees will talk about the election in the workplace, and, especially in this volatile political climate, these discussions can result in heated arguments.  Because political dialogue – especially this year – can touch on issues of race, national origin, religion, sexual orientation, disability, and other protected classifications, employers sometimes struggle with whether political speech should be permitted in the workplace.  The following tips can help employers avoid liability and maintain collegiality in the workplace without infringing on their employees’ ability to vote and engage in political expression.

Time Off to Vote

Under California Elections Code section 14000, all employees have the right to take time off to vote if they do not have sufficient time outside of working hours to vote in a statewide election.  If the employee believes that time off will be needed to vote on Election Day, he or she must give the employer at least two days’ notice.  Employees can take off as much time as they need to vote; however, employers are only obligated to provide employees with two hours of paid leave to vote.  Any additional leave time needed by the employee can be unpaid unless a collective bargaining agreement or personnel rule provides otherwise.  Further, time off for voting shall be only at the beginning or end of the regular working shift, whichever allows the most free time for voting and the least time off from the regular working shift, unless other arrangements are mutually agreed to between the employee and employer.

Campaign Bumper Stickers, Posters, and Other Paraphernalia

Employees who wish to decorate their own personal workspaces with campaign stickers, posters, or other decorations present special challenges.  For example, prohibiting employees from displaying campaign posters endorsing a particular presidential candidate in their own workspace may violate free speech rights.  Unless the agency has a policy prohibiting employees from displaying all forms of non-business related materials or a non-solicitation policy, employers should not try to suppress political displays in an employee’s personal workspace unless it creates an undue hardship on business operations.

However, paraphernalia that is insulting or derogatory toward protected classifications such as race, national origin, or gender is a different matter. If an agency becomes aware of such material displayed in the workplace, it should investigate the matter pursuant to its anti-harassment, discrimination and retaliation policy.

Political Activity

The Government Code prohibits public employers from restricting the political activities of any officer or employee.  Further, Labor Code section 1101 prohibits employers from making or enforcing any policy that prevents employees from participating in politics, becoming a candidate for public office, and controlling or directing the employees’ political activities or affiliations.  Additionally, under Labor Code section 1102, employers may not coerce employees under threat of termination to follow or refrain from engaging in political action or activity.

However, notwithstanding these restrictions, public agencies may adopt rules and regulations prohibiting officers and employees from engaging in political activity during work hours and on agency premises.  This means agencies can implement a policy or enforce existing rules that essentially require employees to perform work during the hours they are paid to work, and not use that time for politics.

Peace officers and firefighters are prohibited by law from wearing their uniforms while participating in political activities of any kind.  Therefore, for example, a peace officer’s wearing his or her uniform but also wearing a hat promoting a candidate would be prohibited.  Agencies can also prohibit peace officers and firefighters from engaging in political activity while on duty.  Finally, public employers may prohibit other types of officers or employees from participating in political activities of any kind while in uniform.


This post is only meant to provide an overview of issues employers face during an election season.  For example, this post does not cover sections of the Education Code regarding political activity by employees.  Because there are many aspects to political expression in the workplace, employers are encouraged to contact counsel with questions.

Three Common Pitfalls in the Reasonable Accommodation Process

Posted in Employment

Wheelchair 2The Reasonable Accommodation Process continues to be an important issue for public sector employers. Under the ADA and FEHA, the employer has the duty to identify and implement a reasonable accommodation to allow a disabled employee to perform the essential functions of the job. Over the past several years, we have seen numerous public agencies have challenges with determining appropriate accommodations. As a result, we would like to re-emphasize some of the common pitfalls in this process:

1.     Over-reliance on the written job description

Job descriptions are critical in the disability interactive process for identifying the essential functions of the job.  This is one reason why we repeatedly urge employers to update job descriptions.  However, the employer should refrain from over-relying on the written job description for identifying the essential functions without considering what is actually occurring in the workplace.  For instance, a written job description for a parks maintenance worker may list removal of trees as an essential job function and state that this function requires the worker to use a heavy piece of equipment such as a wood chipper.  However, in practice, the maintenance workers may have only removed one tree in the last several years.   So this essential function may not be essential after all.  This is a fact-specific determination that should be made on a case-by-case basis. The important thing for the employer to do when determining the essential functions is to make the relevant inquiries of incumbents and supervisors for the job position and consider how the job is currently being performed.

2.     Failure to consider all vacant positions for reassignment

Reassignment to a vacant position should be considered in these circumstances: (1) accommodation within the individual’s current position would pose an undue hardship; (2) the employee can no longer perform the essential functions of the current position even with accommodation;  (3) if both the employer and employee agree that reassignment is preferable; or (4) if the employee so requests.

The employee with a disability is entitled to preferential consideration for assignment to a vacant position over other applicants and incumbent in-house candidates unless doing so would violate a bona fide seniority system.

The employer is not required to create a position.  Again, however, it is important for the employer to be aware of what is actually occurring in the workplace.  For example, the employer should inquire and consider whether there is a position that will be vacant within a reasonable period of time.

3.     Failure to analyze the undue hardship defense thoroughly

Undue hardship is an ADA and FEHA defense to the employer’s obligation to provide reasonable accommodation to a disabled employee.  The employer must affirmatively show that a requested accommodation creates an undue hardship.   Employers will sometimes cursorily conclude that the requested accommodation is too expensive and would cause financial difficulty and therefore is an undue hardship.  However, financial difficulty is not enough.  There are numerous factors, including cost, that must be considered when evaluating an undue hardship defense.  Employers should review all the ADA and FEHA factors and carefully analyze whether a requested accommodation would cause undue hardship.   Keep in mind that hardship is not enough to justify denying accommodations.  The hardship must be “undue.”  The hardship must create a significant difficulty or expense to the employer.  In enacting the ADA and FEHA requirements, Congress and the California legislature intended that some hardships must be shouldered by employers in order to accommodate disabled employees and applicants.

When Retirees Earn Post-Retirement Income, Is Your Agency Responsible for Their Increased Costs to Medicare?

Posted in Retirement

Retirement-Sign.jpgAfter the retirement parties are over, some individuals never truly retire.  Instead of taking it easy, some retirees choose to perform post-retirement work for non-CalPERS employers.  For example, a retired police captain may work for a private security firm and or a retired Human Resources director may open a private consulting practice.  While a retiree’s work for a non-CalPERS employer does not raise any issues regarding public agencies hiring retired annuitants, what many retirees do not realize is that if they earn a high amount of income and qualify for Medicare, Social Security will charge them an increased amount of their participation in Medicare.  This increased amount is called an “income-related monthly adjustment amount” (“IRMAA”).

The increased IRMAA may also impact public agencies if retirees have a vested contractual right to the agency’s retiree health care and possibly, payment of the IRMAAs.  The retiree may expect the public agency to pay for the IRMAA or reimburse the retiree for the IRMAA.  Depending on the contractual language conferring retired health care benefits, which may include full payment for Medicare, and the vested nature of such benefit, an agency may be responsible for covering the IRMAA.

Which Retirees are Subject to an IRMAA?

An individual’s most recent federal tax return determines the amount of his/her income.  Individuals who file taxes as “married, filing jointly” and have a modified adjusted gross income greater than $170,000 are subject to an IRMAA.  Individuals who file taxes using a different status and have a modified adjusted gross income greater than $85,000 are subject to an IRMAA.  If a Medicare beneficiary performs post-employment work and earns a high income, the Act requires Social Security to charge an adjusted IRMAA amount to the beneficiary for enrollment in Medicare Part B and/or Medicare Part D.

The Medicare Part B IRMAA

Medicare Part B provides medical insurance for services and supplies that are considered medically necessary to treat a disease or condition.  Individuals pay a monthly premium for Medicare Part B.  In addition to the standard monthly premium, an individual whose modified adjusted gross income exceeds the threshold amount is required to pay an IRMAA.  Failure to pay the billed amount may result in termination of the beneficiary’s coverage.

The Medicare Part D IRMAA

Medicare Part D provides prescription drug coverage.  For those participating in CalPERS health insurance, CalPERS prohibits retirees from enrolling in a separate, non-CalPERS Medicare Part D plan.  The Part D IRMAA must be paid through a withholding from the beneficiary’s Social Security benefit.  Where the beneficiary’s Social Security benefit is not sufficient, or the beneficiary has no Social Security benefits, Medicare directly bills the beneficiary.  Failure to pay the Part D IRMAA will result in termination of coverage.

When Retirees Seek Payment or Reimbursement for IRMAAs

If a retiree seeks payment or reimbursement for an IRMAA by a public agency, the public agency may understandably view the amount as an unnecessary burden.  After all, it does not make sense that the agency should pay for a retiree’s personal decision to perform post-retirement work, particularly when the retiree makes a lot of money from that work.  When faced with such a request, the public agency must determine two things: (1) whether any post-employment benefit to medical insurance is vested, and (2) if so, whether the benefit includes IRMAAs?

To determine if a post-employment benefit is vested, the agency must carefully review the language of any written documents creating any post-employment benefit.  A memorandum of understanding, personnel rule, employment contract, or other agency policy may create a post-employment benefit.  The idea of a vested right is that an employer promises a benefit in the future if the employee provides service today and the employer promises that the benefit will not be terminated or modified.

If a post-employment benefit has vested, the next step is to determine what post-employment benefit the employee is vested in by again looking to the language of the document creating the benefit, as well as the long-standing practices approved by the governing board that may give rise to implied contractual terms.  Does the agency’s document promise to pay the “full cost” of medical insurance in post-employment?  How does the document define what constitutes “medical insurance” and could it conceivably include Medicare?  If the language provides or could be interpreted to provide a vested right to the payment of Medicare premiums, then the agency may be responsible to pay the IRMAAs.

To complicate matters, many agencies provide post-retirement health coverage through CalPERS.  When retirees turn 65, CalPERS requires them to apply for Medicare Part A and Part B in order to keep their CalPERS health coverage.  Based on contractual language, a retiree could argue the agency has promised he/she can remain enrolled in lifetime health insurance at no cost.  Since he/she must enroll in Medicare Part B at age 65 to keep CalPERS medical insurance, the retiree could claim the agency has an obligation to pay for all of Medicare Part B, including IRMAAs.

Be careful in drafting MOU language, personnel rules, resolutions or other documents which confer retiree health care coverage and avoid the implication that the agency could be liable for payment of the IRMAAs. If retirees from your agency request payment or reimbursement for IRMAAs and you are unsure of your agency’s obligation to cover these costs, seek legal counsel to ensure that your agency is in compliance with any vested, contractual rights based on the specific language in your agency’s documents.

Tips from the Table: FLSA and Contract Overtime

Posted in FLSA, Labor Relations, Tips from the Table

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.