California Public Agency Labor & Employment Blog

California Public Agency Labor & Employment Blog

Useful information for navigating legal challenges

Siri, If I Have to Wait After My Shift for a Security Check, Is That Considered Work?

Posted in Uncategorized, Wage and Hour


This blog post was authored by Danny Y. Yoo.

In December 2014, we reported on Integrity Staffing Solutions, Inc. v. Busk, a case involving, in which the United States Supreme Court held that time spent going through security checks was not compensable work time.  (See our blog post here).  Just last month, we reported on Balestrieri v. Menlo Park Fire Protection District, in which the Ninth Circuit Court of Appeals held that time spent by firefighters traveling from one station to another to pick up or drop off “turnout gear” was not compensable.  (See our blog post here).

On November, 7, 2015, a District Court in Northern California found in favor of another tech giant, Apple, on the issue of security checks after the end of employees’ shifts.  In Frlekin v. Apple, Inc., employees who worked in Apple stores filed a lawsuit alleging that they should have been compensated for time waiting while their bags were being checked by a manager or a security guard.  The employees’ FLSA claims were dismissed following Integrity Staffing Solutions, but their state claims remained.  (Note: Public agencies are likely not subject to the California state laws at issue in the Apple case.)  The District Court dismissed the state law claims upon motion for summary judgment.

In its analysis of state law, the District Court focused on whether the employee had “no plausible way to avoid the activity.”  In other words, was the activity “mandatory and not optional at the discretion of the worker”?  The District Court held that employees could have avoided waiting for the security check by simply leaving their bags at home.  That is, Apple never required employees to bring bags to work with them.  In the event, however, that an employee chooses to bring a bag, the employee is subjecting himself or herself to Apple’s bag check policy.

While this case secured another wage and hour victory for employers, your agency must still be careful to ensure your employees are not “working” immediately before or after a scheduled shift.  Is showing up a few minutes early to prepare for a presentation considered work?  What about staying past your shift to clean equipment and supplies that you were using during the shift?

Under the FLSA (which will apply to public agencies), work performed by employees is not compensable if it is considered “de minimis.”  This means insubstantial or insignificant periods of time which cannot be precisely recorded for payroll purposes.  For example, if an employee finishes a phone call a few minutes past her shift, those few minutes may not compensable as de minimis.  On the other hand, if an employee were coming in early prior to every shift and performing the same duties every time, it might be considered compensable work, even if only for a few minutes.

Practical Tip: Use rounding principles to keep track of time in increments of 15 minutes or smaller.

Requiring employees to keep track of time in 15 minute increments, or smaller increments, will help employers assert the de minimis rule.  This type of policy will show that an employer’s records are kept accurately in consistent increments of time and that on average employees are being fully compensated for their work.  Be warned, however, that rounding cannot operate to the detriment of the employee over time.  As an obvious example, a rounding policy that permits an employee to work up to 14 minutes without being compensated will operate to the employee’s detriment over time.

City May Recoup Costs From Former Peace Officer For Peace Officer Standards And Training (“POST”) Certification

Posted in Public Safety Issues

Police-Officer_Small.JPGOn August 12, 2015, the Court of Appeal for the Fourth District held that police officers’ agreement to reimburse a city for training costs if they quit within five years was valid only to the extent the training related to Peace Officer Standards and Training (“POST”) certification mandated by law. The Court held that employer-mandated training or agency-specific training, on the other hand, is not reimbursable to the city because this training is completed for the benefit of the city, and seeking reimbursement for it would be a violation of Labor Code section 2802.  The case, In Re Acknowledgment Cases, is a significant one for agencies that have, or are considering implementing, similar agreements whereby they require peace officers to reimburse the agency for the cost invested in officers’ POST certification and training in the police academy.

The City of Los Angeles required that all newly hired police officers attend and graduate from the Los Angeles Police Academy.  In the early 1990’s, the city realized that many officers who graduated from the academy were leaving within a few years to join other law enforcement agencies. The city sought to find a way to cut back on this attrition.  To do so, the city enacted Los Angeles Administrative Code section 4.1700 (“LAAC section 4.1700”).  That section provided that any police officer hired by the Los Angeles Police Department was required to reimburse the city a prorated portion of the cost of training at the academy if he or she voluntarily left the LAPD after serving less than 60 months following graduation from the academy and went to work for another law enforcement agency within one year after terminating employment with the LAPD.  LAAC section 4.1700 further provided that upon application for a job as a police officer, the applicant shall sign an agreement stating that he or she agrees to comply with the terms of LAAC section 4.1700.  The agreement was called “the acknowledgement,” hence the title of this case.

Back in August 2001, the city sued former LAPD officer Anthony Alvo alleging that Alvo was required by the terms of the acknowledgement to reimburse the city $34,000 for training costs incurred by the city.  Alvo had left the city’s employment within 60 months of graduating from the LAPD academy to work for another agency.  Alvo and another former LAPD officer (who had also signed the acknowledgement, and whom the city had threatened with legal action) denied the allegations and filed a cross-complaint against the city on behalf of themselves and other former officers who had been sued by the city.  Judgment was entered against the former officers on the cross-complaint, and they (“Appellants”) appealed contending that LAAC section 4.1700 and the acknowledgement violated Labor Code section 2802.

Labor Code section 2802, subdivision (a), provides that, “An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties….”  Appellants asserted that because the LAPD required all newly hired officers to attend its academy, the cost of the academy was a necessary expenditure incurred as a direct consequence of the discharge of the officer’s duties, and that LAAC section 4.1700 and the acknowledgment were therefore void.  Labor Code section 2802 gives no direction as to whether costs of employee training are to be borne by the employer or employee, and the Court found no cases addressing training as a cost covered by section 2802.  In interpreting statutes, however, California Courts give “great weight” to how administrative agencies with expertise in the area interpret them, and therefore the Court turned to an administrative agency’s opinion on liability for training costs under Labor Code section 2802.

In 1994, the Department of Industrial Relations, Division of Labor Standards Enforcement (“DLSE”), issued an opinion letter which stated that where an individual must, as a matter of law, have a license to carry out the duties of his or her employment, the employee can be required to bear the cost of obtaining the license. The DLSE further opined that an employer must, however, bear the cost of training which is not required to obtain the license but is intended solely to enable the employee to discharge his or her duties for the benefit of the employer.

The Court in In Re Acknowledgement Cases, observed that to operate as a police officer in the State of California, a POST certificate is required.  Under Penal Code sections 832 and 13510.1, a POST certification is deemed by the legislature to be a “professional certificate” and is in effect a licensure to act as a peace officer.  Since police officers are required by statute to be licensed or certified to perform the duties of a police officer in the state, under the reasoning of the DLSE’s 1994 opinion letter, the city can require the employee peace officer to bear the cost of this licensure.

The Court observed that in the case before it, the LAPD’s academy training consisted of 644 hours of POST training and 420 hours of “department required” training.  The 420 hours of department-required training addressed issues that were specific to the city, such as crime patterns and trends and specific department policies.  The Court held that such training, which was not required by statute or public policy but was rather instituted purely to satisfy the needs of the city, was employer-mandated training and therefore an expense which the city must bear.  As such, LAAC section 4.1700 and the acknowledgement were deemed void in their entirety as they required reimbursement to the city for both POST training and department required training costs.

While LAPD’s Administrative Code section and acknowledgement were found to be void, the Court made clear that a city can seek reimbursement for training costs incurred purely for POST certification.  The takeaway from the In Re Acknowledgement Cases is that a police department may implement and enforce a policy whereby police officers agree to reimburse the city for specific POST training costs incurred by the city in putting officers through a police academy, if that officer violates the policy within a fixed period of time after graduating from the academy.  In other words, POST training costs must be borne by the employee, while employer-mandated training costs must be borne by the employer.

Public Employers Dealing with Employees with Disabilities Can Feel Like Being Stuck on the California Freeways

Posted in Disability, FMLA

La_city_hwysFans of the late night television show Saturday Night Live probably have seen the recurring sketch called, “The Californians.”  “The Californians” is a soap opera, and the characters portray Californian stereotypes, such as poking fun at the way Californians speak and drive and their obsession over traffic.  One of the recurring jokes is that Californians regularly discuss which freeways and roads they take to get somewhere.  The characters constantly reference the 405 or the 10 (common freeways in Los Angeles).

Discussing disability issues with employees can often feel like a discussion in “The Californians.”  Only, instead of freeways and roads, employees constantly throw out terms like “accommodation,” “medical leave,” “workers’ compensation leave,” “pregnancy,” “maternity leave,” or “injury.”  Employees often reference taking FMLA (Family Medical Leave Act) even if they do not know what it stands for or what a serious health condition means.

Disability issues can get complicated when different leaves intersect and overlap.  Employees may not know the difference between FMLA, California Family Rights Act (CFRA) and Pregnancy Disability Leave (PDL).  However, employers are not only expected to, but can be held liable, if they do not apply the leaves correctly and deny an employee a statutorily protected right.  For example, FMLA now has a section entirely dedicated to military leave and circumstances that warrant leave for an employee who is a family member of a military serviceman or woman. Moreover, when an employee’s leaves under FMLA/CFRA expire, the employer is then confronted with a whole new set of rights and obligations under the American with Disabilities Act (ADA) and Fair Employment in Housing Act (FEHA) which require employers to engage in a timely, good faith interactive process.  Moreover, the new CFRA regulations restrict how often employers can request a certification and an employer’s ability to contact an employee’s doctor to seek clarification about the employee’s work restrictions.  But what if the employer is confronted with a situation of revolving doctor notes and there is no end in sight?  How much leave does an employer have to provide before it becomes unreasonable?  And how do you respond to the employee who demands that the employer pay the costs for an accommodation that the employer feels is an unreasonable expense for the agency to absorb?

And where does workers’ compensation fit in to all of this?  Workers’ compensation claims can take years to litigate.  What is the employer required to do with the disabled employee who cannot return to his/her essential job duties during this time?  The worker’s compensation attorney may be telling the employer that the employee cannot be separated until the claim is either accepted or denied or a specific treatment is authorized.  But how long will that take?  And then what? Does the employer have to wait until all treatment options are exhausted?  All the while, the department head is getting frustrated because the employee has been on leave for six months with no indication of return and wants to terminate him/her.  The job must get done!  And, if you have public safety officers, where does 4850 leave tie in?  And what benefits need to be provided during all of these different leaves?

And what happens when the interactive process breaks down and no reasonable accommodation is available or the employee refuses a vacant alternate position?  Can the employer terminate the employee?  Where does disability retirement come in and what due process is owed to the employee?  And what if somewhere in all of this, the employee commits an act of misconduct – can the employer terminate now?  Like the seemingly never ending freeways – where does it end?!

First – Remain calm!

Second – Determine which leaves apply and when.  It may be helpful to create a timeline detailing all of the applicable leaves and how much time they afford the employee.

Third – Gather all of the relevant documentation.  Do you have all of the information you need to designate the leave as FMLA/CFRA or to engage in the interactive process.

Fourth – Once the need for reasonable accommodation arises either by the employee’s request or by the employer’s knowledge of the employee’s disability, the employer must engage in the interactive process. It is as follows:

 Analyze job functions and establish essential and nonessential job tasks;

 Identify precise limitations of the position held by the employee;

 Identify possible accommodations and assess how each will enable the employee to successfully perform the position; and

 Consider the preference of the employee or applicant to be accommodated and implement the accommodation that is most appropriate for both the employee/applicant and the employer.

 In selecting from among several alternatives of reasonable accommodation, the expressed choice of the employee/applicant must be given primary consideration unless another equally effective accommodation exists which may be utilized instead.

On November 17, 2015, LCW will be answering all of your questions about the disability process.  This full-day seminar, titled “Advanced Disability GPS for Public Employers – an A to Z Map for Navigating Your Way Through the Disability Process,” will give you the necessary tools to address difficult and complicated factual scenarios.  Visit our website to learn more. This will be an advanced level seminar.

Rate Hike Ahead: CalPERS’ Proposed Strategy Means Contribution Rates Will Continue to Rise for the Foreseeable

Posted in Retirement


This blog post was authored by Michael Youril

Employers contracting with the California Public Employees’ Retirement System (“CalPERS”) are still grappling with rate increases initiated in 2013 which continue to build for the foreseeable future. Now, CalPERS has signaled a possible additional increase as it considers moving towards the adoption of a risk mitigation strategy.  While the strategy will hopefully stabilize contribution rates over the long run and ensure the long-term sustainability of the fund, it will definitely send employer contribution rates even higher for years to come.

Employer rates have increased dramatically in recent years as a result of three actuarial changes by CalPERS.  First, CalPERS reduced the “discount rate” from 7.75% to 7.5% which increased employer contribution rates beginning in 2013.  The “discount rate” is an actuarial assumption of the average projected market return on investments.  Generally, the higher the discount rate the lower the employer contribution rate because the employer receives a “discount” on their contributions based on a projection of market investment returns.  Second, CalPERS made changes to its smoothing and amortization policies.  This resulted in yet another rate hike starting 2015.  Third, CalPERS made changes to actuarial assumptions based on mortality (i.e., people, men in particular, are living longer).  The rate increase for this initiates in 2016.   At this time, some employer plans already have employer contribution rates that are in excess of 40 percent, or even 50 percent, of payroll.

Here comes a possible fourth rate increase. An agenda item prepared for the CalPERS Board of Administration’s August 18, 2015 meeting states, “[w]e are in a period of negative cash flow with a rapidly maturing public employee workforce.”  The item further states that CalPERS “expect[s] employer contribution rate volatility to continue to increase over the next 20 to 30 years.”  CalPERS staff has indicated that a mitigation strategy is necessary to reduce these risks.  In other words, CalPERS needs to address the fact that market investment returns are not meeting expectations and that a large number of baby boomers are retiring.

Under the plan, CalPERS will reduce its “discount rate” again when its investment returns exceed certain goals in a given year.  CalPERS will then move to safer assets and more conservative investments, which will likely have a lower rate of return, but will be less risky and volatile.  One of the primary concerns facing the fund is the risk of another recession, such as the one which began in 2008 and caused the fund to have a return on investment of negative 24 percent for the year.  Another dramatic drop of that magnitude could damage the sustainability of the fund and further increase contribution rates.

Unfortunately, the strategy of reducing the discount rate and moving to more conservative investments will send employer contribution rates even higher.

Tips from the Table: Pros and Cons of Coalition Bargaining

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.

Second Circuit Holds That Sufficiency of Pre-Suit EEOC Investigation Is Not Reviewable

Posted in Discrimination

AnotherGavel.jpgIn a case called EEOC v. Sterling Jewelers, Inc., the Second Circuit Court of Appeals recently held that, as matter of first impression, while federal courts may review whether the EEOC conducted an investigation into a formal charge of discrimination against an employer, federal courts may not review the sufficiency of the investigation.

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employment discrimination based on race, color, national origin, and other protected classifications. The Equal Employment Opportunity Commission (EEOC)  interprets and enforces Title VII.  Before the EEOC can bring an enforcement action against an employer, among other things, it must investigate the charges of discrimination.  The term “investigation,” however, is not defined by Title VII.   There are no specific steps or actions that the EEOC is required to take in conducting its investigation.   In order to ensure compliance with Title VII, the federal courts have been vested with the power to review whether the EEOC has fulfilled its pre-suit administrative obligations, including whether it has conducted an investigation.

In Sterling, the EEOC brought an enforcement action against Sterling Jewelers based on 19 charges of nationwide sex-based discrimination in pay and promotion.  The district court granted summary judgment in favor of Sterling Jewelers finding that the EEOC had failed to prove that it had conducted a pre-suit investigation.  The EEOC appealed that determination resulting in this Second Circuit decision.

The court held that judicial review of an EEOC investigation is limited to the sole question of whether the EEOC conducted an investigation.  This means the courts may only review whether an investigation occurred, but not the sufficiency of the investigation.  In order to prove that it fulfilled its pre-suit investigative obligation, the EEOC must show that it took steps to determine whether there was reasonable cause to believe that the allegations in the charge against the employer are true.  The courts, however, do not get to decide what those steps should have been, only whether investigative steps were taken.  Accordingly, to show that it met its obligation to investigate, the EEOC can usually just present an affidavit which states that the EEOC investigated the charges and that provides a general outline of the steps it took to investigate.

The Court cited several reasons for this approach.  First, it noted that this limited review respects the expansive discretion that Title VII gives to the EEOC in investigating discrimination claims, while still ensuring that the EEOC follows the law.  Second, the court reasoned that “Title VII ultimately cares about substantive results.”  Thus, allowing courts to review the sufficiency of an EEOC investigation would effectively make every Title VII suit a two-step action: First, the parties would litigate the question of whether the EEOC had a reasonable basis for its initial finding, and only then would the parties proceed to litigate the merits of the action.  This type of extensive judicial review “would expend scarce resources and would delay and divert EEOC enforcement actions from furthering the purpose behind Title VII —eliminating discrimination in the workplace.”

Although this Second Circuit decision is not binding on California employers, it is a good reminder of the expansive discretion the EEOC is afforded in carrying out its investigation and enforcement obligations.

Should We Still Call It “Kin Care”? – SB 579 Expands Labor Code Section 233’s Sick Leave Protections and Modifies Child-Related Activities Leave Under Labor Code Section 230.8

Posted in Employment, Legislation

Sacramento-Town-Hall.jpgOn October 11, 2015, Governor Jerry Brown signed SB 579 into law – this bill makes significant modifications to the current “Kin Care” law (Labor Code section 233) and the Child-Related Activities Leave law (Labor Code section 230.8).  SB 579’s changes to the Kin Care law and the Child-Related Activities Leave law will have a major impact on the current policies and practices of most California employers.  Below is a summary of the impact of the law and best practices employers can implement before it goes into effect on January 1, 2016.

A. SB 579 Modifications to Kin Care Law (Labor Code section 233)

  1. Overview of Existing Law

Under the existing Kin Care law, California employers who provide paid sick leave or PTO to employees are required to allow an employee to take up to one-half of his/her annual accrual of such sick leave/PTO to attend to the illness for the following family members:  parent, child, spouse, or registered domestic partner.  For example, if an employer provides 12 days of paid sick leave, the employer must allow employees to use at least 6 days of paid sick leave to care for an ill family member, subject to the same terms and conditions for an employee’s own sick leave use.  Employers are prohibited from denying an employee the right to use one-half of their annual accrual of sick leave or PTO to care for such covered family members or discharging, threatening to discharge, demoting, suspending, or in any manner discriminating against an employee for using, or attempting to exercise the right to use sick leave in such a manner.

  1. Interaction of Current Kin Care Law with Paid Sick Leave Law

Following the recent enactment of California’s Paid Sick Leave law (Labor Code sections 245-249) on July 1, 2015, many employers were left confused about how to practically administer the Paid Sick Leave law with the existing sick leave protections provided under the Kin Care law.  For example, the Paid Sick Leave law provides an employee the ability to take sick leave to care for a broader definition of “family member,” including parent, child, spouse, registered domestic partner AND parent-in-law, grandparent, grandchild, and sibling.

The end result of reading the current Paid Sick Leave law and Kin Care obligations together is that an employee’s use of covered paid sick leave to care for a family member pursuant to the Paid Sick Leave law does not necessarily count towards the employee’s Kin Care entitlement – rather, it will depend on which family member the employee is caring for.  For example, under these current laws, an employee may use the Paid Sick Leave law to care for a parent-in-law, grandparent, grandchild, or sibling, but such leave would not count as Kin Care leave for those family members.

This difference in definition between the two laws and the deviation in protections for employees left many employers confused about what type of sick leave use was protected and for what reasons.

  1. New Changes to Kin Care Law

Because the definition of “family member” was not uniform between the Kin Care leave protections and the new Paid Sick Leave Law, the main purpose of SB 579 was to harmonize those definitions and make the two laws more compatible.  However, SB 579 did not just focus on harmonizing the definition of “family member” between the two laws.  Rather, it took the more dramatic step of applying the protections of Kin Care leave beyond caring for a family member to any sick leave taken for the reasons provided under the Paid Sick Leave Law.  Once SB 579 goes into effect on January 1, 2016, Labor Code section 233 will be amended to provide employees with protected leave for their use of one-half of their annual accrued sick leave or PTO for the additional following reasons:

  1. The diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee.
  2. The diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee’s family member.
  3. An employee who is a victim of domestic violence, sexual assault, or stalking.

In effect, beginning January 1, 2016, what we now know as “Kin Care” leave will no longer be used solely for the purpose of taking care of an employee’s “kin” or family members, but rather will apply to almost any use of covered sick leave by an employee.  To a certain degree, this change in the law seems to take away the purpose of the previous title of “Kin Care” leave.  As a result, we may want to use the broader title of “Protected Sick Leave”.  For purposes of the remainder of this article, we will use the term “Protected Sick Leave” when referring to the revised Labor Code section 233.

  1. Interaction of New Protected Sick Leave Provisions with the Paid Sick Leave Law

One major benefit to employers of SB 579’s changes to Labor Code section 233 is that employers may no longer have to track the specific use of an employee’s paid sick leave or PTO to determine if it was used for the employee’s own illness or that of a covered family member.  In general, an employee’s initial paid sick leave usage in a year will now count towards both the Paid Sick Leave Law (greater of 3 days or 24 hours) and the Protected Sick Leave law’s protections (one-half of their annual accrual of sick leave/PTO).

  1. Other Impacts of the New Protected Sick Leave Provisions

There are two other major impacts that SB 579’s new Protected Sick Leave provisions will have on employers:

a. Potential Limitation on Ability to Seek Doctor’s Notes for Sick Leave Absences Covered by the Protected Sick Leave Provisions

Currently, Labor Code section 233 does not affect an employer’s right to request a doctor’s note to verify the need for sick leave to care for a parent, child, spouse, or registered domestic partner to the extent that the employer’s policy has such a requirement otherwise for the employee’s own sick leave use.  This is provided for in Labor Code section 233(a), which states in part:

All conditions and restrictions placed by the employer upon the use by an employee of sick leave also shall apply to the use by an employee of sick leave to attend to an illness of his or her child, parent, spouse, or domestic partner.

However, SB 579 removes this sentence from Labor Code section 233(a).  As a result, this begs the question of whether an employer can request a doctor’s note from an employee for use of Protected Sick Leave for one-half of the annual accrual of sick leave/PTO used in a year for these sick leave purposes.  Following the implementation of SB 579’s modifications to Labor Code 233, it will continue to be unlawful to discriminate or retaliate against an employee who uses Protected Sick Leave.  As noted in the new Labor Code section 233(c):

(c) An employer shall not deny an employee the right to use sick leave or discharge, threaten to discharge, demote, suspend, or in any manner discriminate against an employee for using, or attempting to exercise the right to use, sick leave to attend to an illness or the preventive care of a family member, or for any other reason specified in subdivision (a) of Section 246.5.

This suggests that employers who provide a more generous amount of paid sick leave cannot require a doctor’s certification for an employee’s use of Protected Sick Leave.  Otherwise, an employer’s insistence on requiring a doctor’s certification may be deemed to be discrimination or retaliation for using Protected Sick Leave.

The reason for concern here follows the recent interpretations the Labor Commissioner has made regarding the Paid Sick Leave law.  While the Paid Sick Leave law is silent on whether employers can request verification of the need to use paid sick leave, it does require employers to provide an employee with paid sick days upon oral or written request (Labor Code section 246.5(a)) and allows an employee to determine how much paid sick leave he or she needs to use (Labor Code section 246(j)).  The Paid Sick Leave law also points out that employers cannot deny an employee the right to use AB 1522 covered paid sick leave or retaliate against an employee for using such covered paid sick leave.  The Labor Commissioner has indicated in presentations on the Paid Sick Leave Law that an employer’s insistence on verification of AB 1522 sick leave through the use of a doctor’s note could be deemed to be a denial of the use of such covered paid sick leave and therefore be unlawful.  The only exception to this appears to be for the use of paid sick leave for victims of domestic violence, sexual assault, or stalking as the Paid Sick Leave law references Labor Code sections 230 and 230.1, which do allow an employer to request certification for unscheduled absences.

This same logic may now potentially apply to Labor Code section 233 where the statute no longer expressly allows employers to enforce their terms and conditions on the use of sick leave/PTO, including the requirement of a medical note.  Therefore, absent further clarification from the Labor Commissioner, employers should allow an employee to use up to one-half of their annual sick leave/PTO for a covered sick leave purpose without requesting a doctor’s note.

EXAMPLE:  An employer provides 10 days of paid sick leave a year and their policy provides that they can request a doctor’s note to verify sick leave use.  Beginning January 1, 2016, 5 days of paid sick leave would be covered under the Protected Sick Leave law.  As a result, the employer in this example will now have to wait until after an employee uses 5 days of sick leave before requiring a doctor’s note as provided in the employer’s policy.

b. Impact of Protected Sick Leave on Excessive Absenteeism Policies and Other Adverse Employment Actions

Employers will need to review their sick leave policies and excessive absenteeism policies to ensure compliance with the changes to Labor Code section 233.  The major impact here will be an employee’s protection from disciplinary action or other adverse employment action based on their use of sick leave or PTO that falls under the Protected Sick Leave provisions of Labor Code section 233.  Similar to the application of Kin Care leave, an employee’s use of one-half of their annual accrual of sick leave or PTO in a year for the expanded reasons noted earlier is now protected.  As a result, such Protected Sick Leave time should not be counted towards excessive absenteeism determinations, be referenced in performance evaluations, or used otherwise in any disciplinary/adverse employment actions.

B. SB 579 Modifies Child-Related Activities Leave Law to Now Include Time to Enroll with a Child Care Provider

Labor Code section 230.8 currently requires employers with 25 or more employees to allow an employee to take off up to 40 hours per year (up to 8 hours/month) for “child-related activities” if the employee is a parent with one or more children attending kindergarten, grades 1 to 12, or is at a licensed child care provider.  Beginning January 1, 2016, SB 579 modifies Labor Code section 230.8 as follows:

  • “Child-Related Activities” now includes finding, enrolling, or reenrolling a child in a school or with a licensed child care provider.
  • The law also includes leave to address a child care provider or school emergency, including a request that the child be picked up from school/child care, behavioral/discipline problems, closure or unexpected unavailability of the school (excluding planned holidays), or a natural disaster.
  • “Parent” is now defined to include a parent, guardian, stepparent, foster parent, or grandparent of, or a person who stands in loco parentis to, a child.

The other provisions of Labor Code section 230.8 generally remain intact.  The covered employee is only allowed to take up to 40 hours per year of such leave in a year.  Except for the need to address a child care provider or school emergency, the use of such leave can be limited to 8 hours per month.  Employers can also require that employees who use this leave be required to utilize any available vacation, PTO, comp time, or other personal leave for any such absences related to child-related activities.  In addition, employees must provide reasonable notice to their employer of the need for such child-related activities leave.

C. Practical Tips for Employers to Prepare for SB 579

For most employers, the major impact of SB 579 will be on existing sick leave/PTO, Kin Care leave, and Child-Related Activities policies and practices.  Here are some practical steps that can be taken to prepare for these changes to the law:

  • Even though many employers recently revised their sick leave/PTO policies in light of the recent Paid Sick Leave Law, those policies that provide a more generous amount of paid sick leave should be reviewed again to ensure compliance with SB 579. Employers will need to make sure that their more generous sick leave/PTO polices allow employees to use at least one-half of their total annual accrual of paid sick leave for the now expanded Protected Sick Leave purposes.
  • Review policies and practices related to doctor’s notes or other verification requirements for sick leave use and use caution when applying such requirements to an employee’s use of Protected Sick Leave of one-half of their total annual accrual of paid sick leave in a year.
  • Review policies and practices related to excessive absenteeism, performance evaluations, and any other disciplinary/adverse employment action to ensure that an employee’s use of sick leave or PTO for Protected Sick Leave purposes are not factored into any such actions.
  • Employers should review their policies and practices related to Child-Related Activities and ensure that the changes to Labor Code 230.8 are implemented and applied to employee requests for such leave.

Similar to the Paid Sick Leave Law, there are many areas of SB 579 that are open to interpretation.  LCW will provide updates on any such interpretations from the Labor Commissioner or any other governmental agency as they become available.

We will discuss SB 579, as well as other new bills that will impact California’s Public Employers, during our 2016 Legislative Update webinar on December 10, 2015. Register today, as the spots are limited to the first 100 attendees.

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

To receive these Special Bulletins on the day they are released, please send your email address to

Balestrieri v. Menlo Park Fire Protection District Adds Clarity to What Type of Work is Compensable Under the Fair Labor Standards Act

Posted in FLSA

hourglass-small.jpgThis blog post was authored by Jennifer Rosner.

On December 9, 2014, in Integrity Staffing Solutions, Inc. v. Busk[1], the U.S. Supreme Court held that workers need not be paid for time spent waiting and undergoing security screenings while leaving their work facility.  Under the Fair Labor Standards Act (“FLSA”), activities that are preliminary or postliminary to the principal activity or activities that the employee is employed to perform are generally not compensable.  But preliminary and postliminary activities are compensable if they are “integral and indispensable” to an employee’s principal activities.  The Court in Integrity Staffing helped clarify what type of work is compensable under these standards, but left many questions unanswered as to how these standards would apply in other contexts.

On September 4, 2015, in Balestrieri v. Menlo Park Fire Protection District[2], almost one year after the Supreme Court decided Integrity Staffing Solutions, Inc.,the Ninth Circuit has helped answer these questions for public employees.  In Balestrieri, the Ninth Circuit analyzed whether a firefighter’s time spent traveling from one fire station to another in order to pick up or drop off “turnout gear,” before or after working voluntary overtime shifts, constitutes compensable time giving rise to an overtime claim.  The Court held that plaintiffs were not entitled to overtime for taking their gear to temporary duty stations because this activity was not integral and indispensable to the principal activities the plaintiffs were employed to perform and was “preliminary” or “postliminary” under the FLSA.

As background, turnout gear is the protective safety clothing worn when fighting fires.  Menlo Park Fire Protection District (“District”) does not require firefighters to store their turnout gear at a particular station, and provides firefighters with two sets of turnout gear.  The firefighters are free to take all of their gear home with them, and bring it back with them at the beginning of a shift.   They generally, however, prefer to leave their gear in the fire station, because of the bulk and dirt, and concerns about exposing their families to the materials on soiled gear.  The firefighters generally work two consecutive 24-hour shifts, beginning and ending at 8AM, followed by 96 hours off duty.

The turnout gear issue in this case arose from occasions when a firefighter volunteers to work an overtime shift in a fire station other than his home station.  This happens, for example, if a firefighter at another station calls in sick or is on vacation, leaving the station understaffed.  Firefighters sign up to be called to work at visiting stations when necessary so assignments are often voluntary although a firefighter may also be ordered to work at another station when necessary.  These “temporary assignments” are lucrative because if a firefighter worked his two day shift at his home station, he is paid at time and a half for overtime on the visiting shift.  The firefighter gets paid when he reports at the beginning of the shift at the visiting station, with his gear.

In Integrity Staffing Solutions, Inc., the Supreme Court ruled that an activity is not compensable under the FLSA just because the employer requires it or because it is done for the benefit of the employer.  Rather, even activities required by the employer and for the employer’s benefit may be “preliminary” or “postliminary” activities (and thus not compensable) if they are not integral and indispensable to the “productive work that the employee is employed to perform.”  Thus, in Integrity Staffing Solutions, Inc., the Supreme Court held that security screenings were not “integral and indispensable” to the employees’ duties as warehouse workers even though the employer required the security check before the employee could leave the building and go home.  The activity was not tied to the productive work that the employee was employed to perform. 

Similarly, in Balestrieri when the firefighter put his name on the list for overtime calls, he is free to take his gear home, and if he gets a call, he can go to the visiting station for the assigned shift without even stopping by his home station.  Thus, driving to the home station first is not “indispensable to the firefighters’ principal activities.”  The Court in Balestrieri observed that firefighters are employed to engage in the prevention, control, and extinguishment of fires or response to emergency situations where life, property or the environment is a risk.  Loading up turnout gear to report to a shift at a visiting station—when they knew they could be going to a different station and chose not to bring their gear home– is “two steps removed” from that activity and not “integral and indispensable” to it.

This was a significant case for employers in that the Court further narrowed the parameters for compensation under the “integral and indispensable test.”  The Court explained in the context of firefighters how the activity has to be tied to the productive work that the employee is employed to perform for it to be compensable.  Thus, in determining what pre and post-shift activities should be paid, employers should focus on whether the activity is indispensable and integral to the productive work the employee is hired to perform, and not just on what the employer requires or whether the activity benefits the employer.

[Note: Richard Bolanos, Suzanne Solomon, and Arlin Kachalia of Liebert Cassidy Whitmore’s San Francisco Office represented the employer Menlo Park Fire Protection District in this appeal in the Ninth Circuit.]

[1] 134 S.Ct. 1490 (2014)

[2] 800 F.3d 1094 (9th Cir. 2015)

Attorney General Issues Opinion Approving Brady List Procedures

Posted in Public Safety Issues

Breaking-News1.jpgOn October 13, 2015, California Attorney General Kamala D. Harris issued a Published Opinion, No. 12-401, relevant to a law enforcement agency’s dual responsibilities to comply with Brady v. Maryland and California’s Pitchess statutes in the wake of the California Supreme Court’s recent decision in People v. Superior Court (Johnson).  The Attorney General approved, over the objections of the California Highway Patrol, a Brady procedure that is similar to procedures adopted by multiple prosecutors.

Ventura County District Attorney Gregory Totten, prior to the announcement of the Johnson decision, requested the Attorney General’s opinion on two questions:

  1. Does Penal Code section 832.7, subdivision (a), authorize a district attorney, for the purpose of complying with the United States Supreme Court’s ruling in Brady v. Maryland, to directly review the personnel files of peace officers who will or are expected to be prosecution witnesses?
  2. To facilitate compliance with Brady v. Maryland, may the California Highway Patrol lawfully release to the district attorney’s office the names of officers against whom findings of dishonesty, moral turpitude, or bias have been sustained and the dates of the earliest such conduct.

The Attorney General noted that the first question was directly answered by the Johnson decision: Section 827, subdivision (a) does not authorize a district attorney to directly review such files without complying with Pitchess.

Regarding the second question, the Attorney General opined that the CHP may lawfully release to the district attorney’s office a list of the names of officers against whom the aforementioned types of findings had been sustained.  The Attorney General noted that while the Johnson opinion did not squarely decide the issue of whether the practice of providing such a list was permissible, it “plainly described, and approved of, a policy substantially similar to the one we consider here.”  The opinion further states: “We believe the Supreme Court’s approval of the policy was logically necessary to its decision, and we therefore regard the Johnson decision as good authority for the proposition that such a policy is legally valid.”

Prior to the Attorney General’s Published Opinion, the California District Attorneys Association proposed an “External Brady Policy” to govern the review of CHP officers for Brady purposes.  Under this proposed policy, a qualified representative of the CHP would examine the files of CHP officers who have been the subject of complaints, arrests, or internal investigations for the purpose of identifying (1) offers against who there have been sustained misconduct within the preceding five years that reflect moral turpitude, untruthfulness, or bias on the part of the officer; and (2) officers who have been convicted of a moral turpitude offense, or who are on probation for any offense, or have criminal charges pending against them.  Based on this information, the CHP would be expected to compile a secure database or list of officers who had such sustained findings, although the conduct itself would not be described on the list.  In turn, prosecutors would have access to this Brady list and could search it for the names of officers who had been subpoenaed.  Prosecutors would then have to file a Pitchess/Brady motion to obtain and review the actual records.  Officers who had been placed on the Brady list would be informed, and would have the right to appeal their placement on the list.

The CHP argued in opposition to the proposed policy that it could not lawfully disclose the information (names/dates) called for by the proposed “External Brady Policy” to a district attorney.

First, the CHP argued that it was not part of the “prosecution team” and that it instead had a “hybrid status” similar to the California Department of Rehabilitation.  The Attorney General rejected this argument and opined that when CHP officers act on the government’s behalf or assist the government’s case, both the individual officers and the CHP itself are part of the prosecution team.

Second, the CHP argued that the proposed policy improperly delegated the prosecution’s Brady duty to the CHP.  The Attorney General also rejected this argument, stating that Brady imposes obligations “not only on the prosecutor, but on the government as a whole.”

The CHP argued that it was not qualified to determine what material in its officers’ files is relevant for Brady purposes, because it would lack knowledge of the particular case.  The Attorney General acknowledged that the prosecutor is in a better position to make Brady determinations in a particular case, and can tell a law enforcement agency what types of documents to look for.  However, the Attorney General found, this does not make the kind of initial review in the proposed “External Brady Policy” unworkable, and the Attorney General pointed to two cases in which similar initial screening policies were upheld.

Finally, the CHP argued that the compilation and disclosure of the Brady list information would violate officers’ rights under the POBRA.  The attorney General stated, “While POBRA does contain some privacy protections, it expressly contemplates that an officer’s name may be placed on a Brady list or otherwise disclosed pursuant to Brady.  We conclude that, so long as CHP complies with POBRA’s procedural requirements, a policy that asks the CHP to perform an initial file review and disclose Brady list information does not violate POBRA.”

What does this mean for your agency?

The Attorney General Opinion is advisory and not binding, but it can be considered persuasive authority by courts.  Many prosecutors across the state have been reviewing their Brady policies and procedures in the wake of the Johnson decision.  Some prosecutors have already adopted policies like the one described in the Attorney General’s Opinion.  It is likely that this Opinion will encourage even more prosecutors to revise their Brady policies to request law enforcement agencies to affirmatively provide prosecutors with the names of specific peace officers that have potential Brady material in their personnel records without having to disclose the substance.

The Attorney General Opinion provides further reason for employers to carefully consider the level of discipline to be imposed in cases which call an officer’s credibility into question or otherwise involve behavior demonstrating moral turpitude.  It is important to remember that the Public Safety Officers Procedural Bill of Rights Act was amended in 2013 to add Government Code section 3305.5, prohibiting an employer from taking punitive action against a peace officer because the officer’s name is included on a so-called Brady list or because the officer’s name may otherwise be subject to disclosure pursuant to Brady.  Nevertheless, an employer may impose punitive action against a peace officer for the underlying conduct that landed the officer on the Brady list provided that the punitive action is timely imposed within the one year statute of limitations.

As suggested by the Attorney General Opinion, deciding whether to include an officer’s name on a Brady list may not always be an easy decision.  Law enforcement employers are encouraged to seek expert advice from their police legal advisors in deciding what information to provide to prosecutors.  Ideally, working together, prosecutors and law enforcement leaders will be able to agree upon procedures that protect the privacy of officers, resolve the concerns of law enforcement employers, and meet the needs of prosecutors.

If you have questions about this topic, 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

[Updated] Governor Brown Adopts CRONEY Bill That Impacts Agencies with COIN Ordinances

Posted in Labor Relations, Negotiations

OCapitoln October 9, 2015, Governor Jerry Brown signed SB 331, the Civic Reporting Openness in Negotiations Efficiency Act (CRONEY bill), into law.  The CRONEY bill, effective January 1, 2016, applies to cities, counties, and special districts that have adopted a “Civic Openness In Negotiations” (COIN) or a similar type of ordinance.

In recent years, some agencies adopted COIN ordinances to increase transparency in the collective bargaining process.  COIN ordinances typically include some or all of the following provisions: utilization of an independent negotiator, retaining an independent economic analysis of fiscal impacts of contract terms and proposals made in labor negotiations, publication of offers and counteroffers (“sunshine” provisions), and disclosure when members of the governing body have communication with representatives of employee associations.

While there are already certain procedures and requirements that govern public contracting, the CRONEY bill imposes additional procedures on agencies with a COIN or similar ordinance for labor negotiations on their contract negotiations for public contracts valued at $250,000 or more in the following areas: accounting, financing, hardware and software maintenance,  health care, human resources, human services, information technology, telecommunications, janitorial maintenance, legal services, lobbying, marketing, office equipment maintenance, passenger vehicle maintenance, property leasing, public relations, public safety, social services, transportation, or waste removal.

Therefore, any agency with a COIN or similar ordinance for labor negotiations, except when contracts are needed to respond to temporary public safety emergencies or a state of war, will be required to do each of the following for other public contracts covered by the CRONEY bill:

  • Designate an independent auditor to review and report on the cost of any proposed agency contract. The report must contain recommendations regarding the fiscal impact of each contract provision.  The report must be provided to all parties and made available to the public at least 30 days before the issue can be heard by the governing body and at least 60 days before the governing body can vote on the contract.
  • Disclose all offers and counteroffers to the public within 24 hours on the agency’s website.
  • Before approving any contract, an agency must release the following information about each negotiation session regarding that contract: a list of names of those in attendance, the date, the length of the meeting, the location, and relevant facts regarding that session.
  • Each governing body member and staff members of governing body offices must disclose publically all communications regarding the negotiations they have had with any official or unofficial representative of the private entity involved in negotiations, within 24 hours of the communication.
  • The governing body may not make a final determination on any contract decision until the matter has been heard at least two times at public meetings of the governing body.

Agencies who have already adopted a COIN or similar ordinance will be subject to the above requirements unless they suspend, repeal, or revoke that ordinance.

For agencies considering adopting a COIN ordinance, strong consideration must be given to the CRONEY bill requirements.  As an alternative to adopting a COIN ordinance, agencies may consider negotiating some or all of the COIN topics as ground rules in negotiations with each of its bargaining units, rather than adopting agency-wide legislation.  Agencies may also consider enacting a resolution or policy to achieve increased transparency in the collective bargaining process.  LCW believes that there is some risk that a resolution (which is also legislative action by the elected body) would subject the agency to the CRONEY bill.  As for an enactment like a policy (e.g., a transparency policy), the bill does not seem to apply to such an enactment given the words chosen by the legislature.  It will be interesting to see if such a challenge is made.  Certainly, an agency can propose ground rules in labor negotiations which propose that the parties’ proposals are made public.  This is not an enactment of any kind by the legislative body; rather, it is direction to the labor negotiators.  There is no requirement to go to impasse on ground rules.  Importantly, agencies should remember that even without a COIN ordinance, they retain the management right to determine whether to utilize the services of an outside negotiator, how to cost proposals, and to negotiate desired ground rules.

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