California Public Agency Labor & Employment Blog

California Public Agency Labor & Employment Blog

Useful information for navigating legal challenges

Tips from the Table: Understanding the Backstory Behind a Proposal

Posted in Labor Relations, Negotiations

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

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

Posted in PERB


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

U.S. Supreme Court Holds that a Public Employee Can Assert First Amendment Retaliation Claim Based on Employer Perceptions

Posted in First Amendment

Supreme CourtOn April 26, 2016, the U.S. Supreme Court decided that a public agency can incur liability for a First Amendment violation if it demotes or disciplines one of its employee based on the agency’s mistaken belief that the employee has exercised a right of free expression.  The Court’s decision in Heffernan v. City of Paterson rejects theories advanced by the City in that case that the dimensions of constitutional free speech law should let ill-meaning public employers “off the hook” in mistaken perception cases, when an employee never technically exercised any right to speak – but the employer thought he or she had done so.  In rejecting this narrow approach, the Supreme Court has signaled that it will take a practical rather than technical view of the First Amendment in the public employment context in order to protect free speech rights for public employees.

Under the First Amendment, a public employer generally cannot take an adverse action against an employee because he or she supports a political cause or political candidate.  (There are exceptions, including an exception for certain types of high-level or politically chosen employees, and for appropriate even-handed prohibitions on partisan activity).  This is because the employee’s support constitutes the exercise of an expressive right protected by the First Amendment.

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

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

The U.S. Supreme Court agreed to hear the case.  When oral argument before the Supreme Court took place January 19, 2016, Justice Scalia appeared vigorously to defend the City’s view.  Observers thought the Justices appeared split on the legal issue raised.  Today’s opinion, however, was supported by a majority of six justices, with only Justices Thomas (who wrote a separate opinion) and Alito dissenting.

The majority opinion by Justice Breyer held that Heffernan could state a First Amendment retaliation claim against the City, and that the fact Heffernan had not actually supported Spagnola was beside the point.

The Supreme Court began by describing that, in general, the First Amendment prohibits government officials from dismissing or demoting an employee because of the employee’s engagement in constitutionally protected political activity.  The Court as a side note referenced that there are some exceptions, including that a “neutral and appropriately limited policy may prohibit government employees from engaging in partisan activity” and that in some circumstances a “political affiliation requirement” is permissible where affiliation is “an appropriate requirement for effective performance of the public office involved.”

The Court assumed that such exceptions did not apply in this case and that, instead, “the activities that Heffernan’s supervisors thought he had engaged in are of a kind that they cannot constitutionally prohibit or punish.”  (Emphasis added.)  The Court observed that existing law did not supply a direct answer to whether an employee had a claim in this situation, in particular a claim of retaliation for exercise of a right the employee did not in reality exercise.

The Court identified one of its prior cases, however, Waters v. Churchill from 1994, which served as precedent for making employer motives the decisive factor in deciding liability for First Amendment retaliation.  In that case, the employer took action on the mistaken belief the employee had engaged in personal gossip when in fact the employee had engaged in protected speech on a matter of public concern.  The Supreme Court had found that the employer lacked a motive to retaliate for protected speech in this circumstance: because of the mistake, there was no constitutional violation.  (Waters concerned a nurse’s statements to co-workers at a public hospital.)  In Heffernan, the Court reasoned that in cases like the one before it, motive should be the deciding factor as well, and not the actual speech (or lack of it) at issue.

The Court also pointed out that a rule focusing on employer motives well-served the purposes of the First Amendment:

We also consider relevant the constitutional implications of a rule that imposes liability.  The constitutional harm at issue in the ordinary case consists in large part of discouraging employees—both the employee discharged (or demoted) and his or her colleagues—from engaging in protected activities.  The discharge of one tells the others that they engage in protected activity at their peril. . . . .  The upshot is that a discharge or demotion based upon an employer’s belief that the employee has engaged in protected activity can cause the same kind, and degree, of constitutional harm whether that belief does or does not rest upon a factual mistake.

Based on this reasoning, Justice Breyer’s majority opinion holds as follows:

We conclude that, as in Waters, the government’s reason for demoting Heffernan is what counts here.  When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment and 42 U.S.C. § 1983—even if, as here, the employer makes a factual mistake about the employee’s behavior.

As a practical matter, Heffernan is a reminder to employers to consider carefully the legal ramifications of any actions based on or that affect political expression by employees.

ACA Update: Three Things You Need to Know

Posted in Retirement


This blog post was authored by Shardé C. Thomas.

1. Whether you should be paying the PCORI fee on your self-insured arrangement.

Sponsors of self-insured health plans must pay a fee to help fund the Patient Centered Outcomes Research Institute (PCORI). The PCORI fee is equal to the average number of “lives covered” during the plan year multiplied by an applicable dollar amount. The annual fee applies to self-insured plans with plan years ending on or after October 1, 2012, but before October 1, 2019, and is due by July 31 each year. For 2015 calendar year plans and plan years ending on or after October 1, 2015 and before October 1, 2016, the fee is $2.17 per covered life. Employers must report and pay the fee using Form 720 by July 31, 2016.

Self-insured plans that qualify as “excepted benefits” do not need to pay PCORI fees. However, many employers do not realize that they must pay the fee for certain self-insured arrangements. The employer must pay PCORI fees for the following types of arrangements if they are self-insured (i.e. the employer assumes the financial risk for providing the benefit):

  • Major accident and health coverage
  • Retiree-only health coverage;
  • COBRA coverage;
  • Health Reimbursement Arrangement (HRA) unless it qualifies as an excepted benefit; and
  • Flexible Spending Arrangement (FSA) unless it qualifies as an excepted benefit.

If an employee is already covered by another self-insured plan for which the employer is already paying the fee on the user, then the employer will not pay the fee again on that person. In other words, the employer will not pay the fee twice on a person who may be covered under multiple plans offered by the employer. All individuals covered during the plan year must be included when calculating the “lives covered,” which includes retirees and former employees offered COBRA coverage. If you offer a self-insured arrangement, you should ensure you are correctly calculating the “lives covered” for the purposes of the PCORI fee.

2. Whether you have an employer payment plan and why it matters.

An employer payment plan is an arrangement where the employer reimburses an employee for some or all of the premium expenses upon the employee providing proof that the insurance is in force.  The ACA considers an employer payment plan a “group health plan” that must comply with the Group Health Plan (GHP) Mandates. The GHP Mandates prohibit a group health plans from placing annual and lifetime dollar limits on essential health benefits and required provision of preventive services. The structure of certain arrangements, by their nature, cannot comply with these requirements.  Two unique examples of arrangements that may lead to GHP issues are discussed below.

HRA Funds:  HRA funds cannot be used by current employees to purchase individual market coverage (e.g. Covered California) if the employee is not also covered by another integrated group health plan.  A current-employee HRA fails to be integrated with another group health plan if the amounts credited to the HRA may be used to purchase individual market coverage.  If the amounts can be used to purchase individual market coverage, the HRA will be considered a “group health plan” and will not be able to satisfy the GHP Mandates.  Employers with employer payment plans can be penalized $100 per day for each individual with respect to whom a failure occurs. Employers should review their benefit arrangements to ensure they are in compliance with the ACA’s GHP Mandates if they qualify as group health plans.

3. Whether you must provide a Summary of Benefits and Coverage and what you should include.

Group Health Plans must provide an annual summary of benefits and coverage (SBC) to participants and beneficiaries in order to help individuals better understand the coverage and compare options. Insurers provide the SBC for fully insured plans, but the plan sponsor (i.e. the employer) must provide the SBC for self-insured plans. Employers do not need to provide an SBC for retiree-only plans and only one SBC is required if an arrangement is integrated with a group health plan.  An SBC template to use before April 1, 2017, can be found here.  An SBC template to be used on or after April 1, 2017, can be found here.

California’s New Schedule For Minimum Wage Increases – What It Means For Public Vs. Private Employers

Posted in Wage and Hour

hourglass-small.jpgThis blog post was authored by David Urban

As a result of a new law, California’s minimum wage will start increasing each year.  This will change not only the floor amount affected employers must pay employees, but also which employees will be considered “exempt” from overtime pay requirements.  Misclassifying employees as exempt can result in substantial legal liability for an employer, which is why keeping a close eye on the changes created by the minimum wage increases is important.

Public employers will be less impacted by these changes than private sector employers will be.  But as described below, there will be an effect on the public sector as well.

California’s steadily increasing minimum wage

On April 4, 2016, Governor Brown signed Senate Bill (“SB”) 3, which increases California’s minimum wage each year so that it will reach $15 per hour in 2022 (unless the increases are temporarily delayed at any point due to certain economic conditions).

Currently, California’s minimum wage is $10/hour.  The new law will increase this amount as follows for employers who employ 26 or more employees:

  1. On January 1, 2017, the minimum wage will increase to $10.50 per hour.
  2. On January 1, 2018, the minimum wage will increase to $11 per hour.
  3. On January 1, 2019, the minimum wage will increase to $12 per hour.
  4. On January 1, 2020, the minimum wage will increase to $13 per hour.
  5. On January 1, 2021, the minimum wage will increase to $14 per hour.
  6. On January 1, 2022, the minimum wage will increase to $15 per hour.

There is a delay in implementations for small businesses.  Specifically, the above schedule is delayed at each step by one year for employers with 25 or fewer employees.  Commentators have observed that under the schedule set by SB 3, California will soon have the highest minimum wage in the country.

Public employers and California’s minimum wage

Private employers clearly must comply with the new minimum wage requirements, but for public employers the issue is more complicated.

By way of background, in general, public employers in California, including cities, counties, special districts, and community college and K-12 school districts, are not subject to state wage and hour law.  Instead, generally, such employers need look only to the federal Fair Labor Standards Act (“FLSA”) and, for educational institutions, the Education Code, for guidance on wage and hour laws, such as payment of overtime and meal and rest breaks.

The state minimum wage is an exception, and unfortunately a complicated one.  As described below, the minimum wage applies to some agencies but not others, and for some types of agencies there is not yet case authority on whether it applies.  As a threshold matter, the Industrial Welfare Commission wage orders apply overtime, meal and rest break, minimum wage, and other rules on California employers, but have provisions expressly exempting public agencies from many requirements.  The exemption does not, however, list minimum wage as one of these requirements.  This has not settled the matter because there is a school of thought that the IWC does not have the legal ability to impose a minimum wage on many public sector agencies.

From this point of uncertainty, the law is as follows.  For counties and by extension charter cities, the state minimum wage should not even be an issue, because those entities already are free from compliance with such employment laws because of their exclusive rights under the state constitution to set compensation for their own employees.  The relevant cases on this point, which explain this unique right, are Curcini v. County of Alameda and Dimon v. County of Los Angeles, both from 2008.  These agencies (counties and charter cities) must abide by the federal minimum wage, which is currently $7.25 per hour.

Next, K-12 school districts must comply with state minimum wage law.  This is because a Court of Appeal decision from 2010, Sheppard v. North Orange County Regional Occupational Program, has considered whether the IWC could impose a minimum wage on the public sector and held that it could for a K-12 school district.

What about other agencies like general law cities?  No published case has issued yet applying the minimum wage to such agencies, although those agencies are well advised to take into account whether the reasoning of Sheppard will extend outside the K-12 context to their type of agency.  Counsel should be consulted in making the determination and considering the level of risk involved.

Effect on Exempt Status

For private employers, the new schedule for minimum wages increases will have a substantial effect on which employees are exempt from overtime requirements.  Private employers must follow both state and federal law governing overtime and exempt status, with state law almost always being the paramount concern because it is more favorable to employees.  For most state law overtime exemptions – for example, executive, administrative, and professional – the salary basis threshold is tied to the state minimum wage.  An employee must make more than “two (2) times the state minimum wage for full-time employment” to qualify for the exemption.  “Full-time employment” is defined as 40 hours per week.  At $10 per hour, currently this corresponds to $41,600 per year, or $3,466.67 per month.  Under SB 3, however, this level is going to rise each year, because the minimum wage is rising.  Employees whose pay is surpassed by these thresholds will no longer be considered exempt, and an employer who ignores these increases could face substantial civil liability for misclassification of employees.  This could include potentially liability for unpaid overtime and accompanying penalties, as well as attorneys’ fees if a lawsuit is brought.

Within the private sector, the new thresholds will have significant effect for private educators.  There is an overtime exemption for teachers in the California wage orders and also an exemption for teachers (specially designed for private schools) set forth in California Labor Code section 515.8.  But both exemptions have the traditional salary basis test of twice the state minimum wage for full-time employment.  In figuring out how to pay teachers, a private school may currently have to struggle to offer a beginning teacher $41,600 per year, or $3,466.67 per month, to help insure exempt status.  But SB 3 means the school will have to renew that struggle each year as the salary basis thresholds increase.

In the public sector, overtime exemptions will not be affected by the state minimum wage increases.  For public agencies, the federal FLSA governs payment of overtime, and also who is exempt from overtime requirements, e.g., executive, administrative, and professional employees.  (Again, there is the caveat that public educators should check policies under the state Education Code, and determine if they will affect exemption analysis.)  Under the FLSA, there is a “salary basis” test for many exemptions, requiring exempt employees to have a certain higher level of pay.  But that test is not connected to any state minimum wage.  Thus, the California minimum wage increases will not affect the “salary basis” thresholds for the FLSA.

As a matter of federal law, the Department of Labor in Washington D.C. is actually expected this spring to announce separate increases to the federal exemption salary basis thresholds themselves.  Our firm will report on those in a separate blog post or bulletin.

A final complexity – Deceleration of the Schedule

SB 3 allows deviations from the established schedule of minimum wages increases, based on economic conditions.  The primary possible changes are a potential “off-ramps” if and when the economy performs poorly in the next several years.  Under SB 3, on or before July 28 of each year, the state Director of Finance is required annually to determine, based on certain factors, whether economic conditions can support the scheduled minimum wage increase and to certify that determination to the Governor and the Legislature.  SB 3 also requires the State Board of Equalization to publish specified retail sales and use tax information on its Internet Web site to be used by the Director of Finance in making that determination.


Advance planning will help employers – both public and private sector – to comply with the new minimum wage thresholds.  In addition, conducting wage and hour audits of the workforce at this time, either using an independent consultant or legal counsel, will help in this effort.


Court of Appeal Overturns Superior Court Decision and Holds Teacher Tenure, Dismissal, and Layoff Laws Are Constitutional on Their Face

Posted in Education

Breaking NewsThis post was authored by Kristin D. Lindgren


On June 10, 2014, Liebert Cassidy Whitmore reported on the Superior Court decision in Vergara v. State of California.  The plaintiffs had alleged that teacher tenure, dismissal and layoff statutes found in the California Education Code unconstitutionally harmed students in two groups: (1) a general group of students who were taught by “grossly ineffective” teachers; and (2) minority and low-income students who are more likely to be taught by “grossly ineffective” teachers because schools serving these students have more than their proportionate share of such teachers.  The plaintiffs’ claims were that: (1) the probationary period for tenure is too short, thus preventing an accurate determination of whether teachers were effective before granting tenure; (2) the process for removing grossly ineffective teachers is so burdensome and complicated that it is functionally impossible to dismiss them; and (3) reductions in force (or layoffs) require the least senior teachers to be released first, thus removing effective junior teachers and retaining grossly ineffective senior teachers.  The plaintiffs sought to have the statutes declared unconstitutional as violating the equal protection clause of the California constitution.

After an eight-week bench trial, the judge held that the Education Code statutes at issue were unconstitutional.   On April 14, 2016, the California Court of Appeal for the Second Appellate District overturned the trial judge’s decision.

Evidence Submitted by the Parties

The Court of Appeal first described the evidence adduced at the original trial.  The plaintiffs’ expert witnesses testified to the negative impact grossly ineffective teachers have on student success.  The plaintiffs’ witnesses also included school district administrators, who testified to the difficulty of making a tenure decision by March 15 of a teacher’s second year, and to the difficulty and expense of terminating a teacher for unsatisfactory performance.  The plaintiffs’ witnesses also testified that the seniority-based layoff system resulted in highly effective junior teachers being laid off while grossly ineffective senior teachers were retained.

Finally, plaintiffs’ witnesses testified that ineffective teachers are often transferred into and concentrated in schools that predominately serve minority and low-income children.  Administrators testified that they often transfer poorly performing teachers to other schools as a mechanism for teacher removal.  Often, poorly performing teachers are removed from higher-performing schools and moved to lower-performing schools.

Defendants’ witnesses rebutted some of the testimony of plaintiffs’ witnesses.  For example, one expert witness testified that in-school effects on children’s achievement were generally overstated when compared to out-of-school effects.  Defendants’ witnesses also testified that teacher tenure statutes support academic freedom.  Other witnesses, including school district administrators, testified that the tenure statute gave them sufficient time to determine whether a teacher was ineffective before making a decision to non-reelect.  Administrators further testified that they were able to remove underperforming teachers through settlements and other methods, other than utilizing the teacher termination process.  Defendants’ witnesses also testified that the seniority-based layoff process was fair, and that ranking for effectiveness, rather than seniority, was difficult and contentious.

Defendants also presented rebuttal evidence regarding  plaintiffs’ testimony on the concentration of ineffective teachers at low income schools. They presented evidence that other factors cause a failure of retention and recruitment of effective teachers, such as difficult working conditions at the school.


The Appeals Court noted that “statutes relating to education are provided a presumption of constitutionality” and “policy judgments are left to the Legislature.”  The Court then went on to discuss the standard of review.  Key to its ruling, as described below, the court noted that the plaintiffs had made a “facial” challenge to the statute – seeking a holding that any application of the challenged statutes to any person in any circumstance was unconstitutional – rather than an  “as applied” challenge, which would have sought a holding that the defendants applied the statute in an unconstitutional manner.

Group 1 – Students Assigned to Grossly Ineffective Teachers

The Court began its analysis of the constitutionality of the statutes by stating that a prerequisite to an equal protection challenge is showing that “the state has adopted a classification that affects two or more similarly situated groups in an unequal manner” and describes an identifiable group impacted by the statute.   If that is the case, the Court will then determine whether the Legislature had a constitutionally sufficient reason for treating the groups differently.

The Court held that the first group identified by the plaintiffs – a general group of students who were taught by “grossly ineffective” teachers – was not an identifiable class for the purposes of equal protection analysis.  To qualify as a protected classification, a group “must be identified by a shared trait other than the violation of a fundamental right.”  Here, the Court found that the only distinction between the group identified by the plaintiffs and other students was the alleged violation of their fundamental right to an education.  As such, the Court found an equal protection challenge could not be asserted on behalf of this group.

Group 2 – Low-Income and Minority Students Who are More Likely to Be Taught by Grossly Ineffective Teachers

The Court found that the second group (minority and low-income students) did meet the definition of a “identifiable class” for the purposes of an equal protection challenge. However, the Court held that the statutes were not unconstitutional because they did not cause the alleged constitutional violation.  A statute is facially unconstitutional when a constitutional violation “inevitably flows” from the statute itself, rather than from the discretionary actions of those who implement the statute.  Such facial invalidity arises where a statute requires an unconstitutional result by its plain language, or where an unconstitutional application of the statute will flow inevitably from the text regardless of the actions of those who administer the statute.

Here, the Court found that the challenged statutes do not, by their text, impact minority and low-income students, as their text does not address them.  The Court noted that the plaintiffs could have demonstrated that the statutes violated equal protection because a negative impact on poor and minority students inevitably flows from the statutes and occurs regardless of how they are implemented, but that the plaintiffs failed to make this showing.

The Court held that, to the extent any students’ constitutional rights are violated,  it is due to the actions of those implementing the statutes—not  the statutes themselves.  According to the Court, the evidence presented at trial demonstrated that teacher assignment decisions are made by administrators and based on teacher preference, district policies, and collective bargaining agreements, and are not dictated by the statutes at issue.  The Court held that none of the findings at trial supported a conclusion that “the challenged statutes determine where grossly ineffective teachers work.”   Rather, the process of assigning grossly ineffective teachers to low-income schools was “driven by local administrators.”  While the Court found this troubling, it held that this assignment of grossly ineffective teachers “does not inevitably flow from the challenged statues and therefore cannot provide the basis for facial challenge to the statutes.”  While the evidence at trial highlighted drawbacks to the challenged statutes, it did not demonstrate a constitutional violation.

In reaching its holding, the Court only minimally addressed the seniority-based layoff statutes, stating that problems created by layoffs at lower performing schools were also the result of assignments based on administrator decisions, teacher preference, and provisions in collective bargaining agreements.  This conclusion does not appear to have taken into consideration that the layoff statutes provide significantly less discretion to administrators than rules about assignment and transfer.  The Court also did not directly address the allegation that the tenure period is too short, or consider the lack of administrative discretion in this regard.  Rather, it treated layoff and tenure under the broad umbrella of “assignment.”

The Court appeared to hint that it may have found a violation if the plaintiffs had alleged that the statute was violated as it was applied by various districts.  Indeed, the Court stated, “plaintiffs elected not to target local administrative decisions and instead opted to challenge the statutes themselves.  This was a heavy burden and one plaintiffs did not carry.”

The lead attorney for the plaintiffs issued a statement today which seems to indicate that the plaintiffs intend to appeal this decision to the Supreme Court of California.  Liebert Cassidy Whitmore will provide updates as they become available.

Note: The original superior court decision was stayed pending this appeal.  As a result, districts continued to be bound by the statutes at issue in the case.  Therefore this case does not change how districts should operate with regard to tenure, layoff and teacher discipline.  (The Court, in a footnote, stated that the 2015 changes to the teacher discipline statutes did not impact the analysis.)  Districts may, however, expect a challenge to their application of the statutes, especially with respect to assignment of teachers to under-performing schools. 

Prevention, Prevention, Prevention! It’s Time to Audit Your Agency’s Personnel Rules

Posted in Personnel Issues


Prevention of liability starts with auditing your agency’s personnel rules.  Indeed, in an employment-related lawsuit, the applicable personnel rule is often “Exhibit A.”  Each year, public agencies face changes to employment laws and regulations, best management practices, and internal changes to procedures.  Thus, the outcome of a lawsuit may just depend on whether the agency has audited and updated their personnel rules to reflect these changes.

A personnel rules audit is often a detailed, methodical and lengthy process.  As with most challenging projects, a personnel rules audit requires ample preparation and thoughtful strategy.  Here are some key questions to consider in preparation for a personnel rules audit.

  1. When was the last time your agency conducted a personnel rules audit?

If your agency’s personnel rules hail from the typewriter age, it’s probably been too long since the last personnel rules audit.  Laws change, best management practices change, and internal procedures change.  Accordingly, your agency’s personnel rules will also need to change.  During this past year, California enacted several landmark employment laws and regulations.  On July 1, 2015, AB 1522, otherwise known as the “Paid Sick Leave Law,” took effect.  On January 1, 2016, California’s new kin care leave law took effect.  These laws created a new set of “protected leaves,” which in turn could affect an agency’s sick leave, absenteeism, and abuse of leave policies in its personnel rules.  On April 1, 2016, new DFEH regulations on discrimination, harassment and retaliation took effect, which extend protections to interns and volunteers, and address gender identity and gender expression.  An agency’s discrimination, harassment and retaliation policy should reflect this expanded protection.

  1. Do your agency’s personnel rules cover the essentials?

Sure, policies on leaves and discipline are often easy to find in most agency personnel rules.  But there are many other essential policies that are often left out of personnel rules.  Some employees work two or more jobs in addition to their agency employment.  But do the agency’s personnel rules have an outside employment policy?  Employees are issued IPhones, laptops, email addresses, or vehicles.  But does the agency have an equipment use policy that regulates use?  And even more specifically, does the agency equipment policy even reference email?  Most public sector employees in California have due process rights to their employment.  But do the agency’s personnel rules provide clear definitions of categories of employees such as “for-cause employee” and “at-will employee?”  Finally, with disability discrimination claims on the rise, it’s no wonder that agencies are including a comprehensive interactive process policy in their personnel rules so that managers and human resources professionals have guidance on navigating the oftentimes choppy waters of the interactive process.

  1. Do your agency’s personnel rules “make sense?”

Personnel rules should be well organized and easy to read.  Because personnel rules are often lengthy documents, a table of contents is a must.  Headings and subheadings are also essential so that the reader has a roadmap and policies may be more easily referenced.  Personnel rules typically cover numerous categories of policies.  The breakdown of these categories should be based on similarity in personnel topics.  For example, leave provisions should be grouped together.  So if the policy on overtime is tucked away and hidden somewhere in the grievance procedure, it’s definitely time to take a closer look at how your agency’s personnel rules are organized.

  1. Do you know the “why” behind your personnel rules?

In order to effectively audit your agency’s personnel rules, it is essential to know the context behind the policies.  Do you know why a policy in the personnel rules requires what it requires?  Oftentimes, personnel rules are carried over into revised versions through the years.  But little is known as to why.  Is it because the law requires it?  Best management practice?  Neither?  For example, although state and federal law requires an employer to grant an employee leave for jury service, the law does not require that agencies pay overtime-eligible employees for time spent on jury service.  Nevertheless, agencies often pay overtime-eligible employees for time spent on jury service as an additional benefit pursuant to policy in order to treat exempt and overtime-eligible employees equally.

An audit of your agency’s personnel rules can seem like a daunting endeavor.  But regularly auditing your agency’s personnel rules is critical, and can mean the difference between liability and prevention of liability.



LCW is excited to announce the launch of Liebert Model Personnel Policy Portal (LMP3). The LMP3 is an online based one-stop shop for personnel policy needs.  Its mission is to serve as a reliable resource throughout the personnel rules audit process.

LMP3 offers online access to mandatory and essential model personnel policies, as well as important commentary and legal references that explain and provide context behind the policies.  Subscribers will also receive updated policies that reflect recent changes in the law.  For example, the LMP3 includes recent updates that reflect the new California paid sick leave and kin care laws, and discussion of the new DFEH regulations on discrimination, harassment, and retaliation.  And, as laws continue to change, subscribers will receive future updates to reflect the changes.

Visit to learn more about this service and join us for our upcoming LMP3 Demo on April 20, 2016.

Tips from the Table: Top 5 Questions for Conducting MOU Review

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.

The DFEH Issues New Guidance on Transgender Rights in the Workplace

Posted in Employment

Scales.jpgIn February 2016, the California Department of Fair Employment and Housing (DFEH) issued an “FAQ for Employers” on transgender rights in the workplace.  The publication is available online here.

The Fair Employment and Housing Act (FEHA) bans discrimination on the basis of “sex, gender, gender identity, [and] gender expression.”  Gender expression is defined by law to mean a “person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.”  The FEHA protects transgender persons, as well as persons undergoing gender transition, from discrimination and retaliation.

The DFEH FAQ identifies two kinds of gender transition: (1) Social Transition – where an individual “socially align[s]”s their gender with their “internal sense of self,” for example by an individual changing their name, pronoun, or bathroom facility usage, and (2) Physical Transition – where an individual undergoes medical treatments “to physically align their body with  internal sense of self,” for example by hormone therapies or surgical procedures.  As stated in the DFEH FAQ: “A transgender person does not need to complete any particular step in a gender transition to be protected by the law.  An employer may not condition its treatment or accommodation of a transitioning employee on completion of a particular step in the transition.”

The DFEH FAQ also provides the following specific instructions and advisements to employers:

  • Interviewers should not ask questions designed to detect a job applicant’s sexual orientation or gender identity.
  • Employers should not ask questions about a person’s body or whether they plan to have surgery (this information is generally protected by law as confidential).
  • A transgender person must be allowed to dress in the same manner as a non-transgender person of the same sex/gender. A transgender person’s compliance with a dress code cannot be judged more harshly than a non-transgender person.
  • All employees have a right to safe and appropriate restroom and locker room facilities. This includes the right to use a restroom or locker room that corresponds to the employee’s gender identity, regardless of the employee’s assigned sex at birth.
  • Where possible, an employer should provide an easily accessible unisex single stall bathroom for use by any employee who desires increased privacy, regardless of the underlying reason. This type of restroom can be used by employees who do not wish to share a restroom with a transgender coworker.
  • Use of a unisex single stall should always be a matter of choice. No employee should be forced to use one either as a matter of policy or due to continuing harassment in a gender-appropriate facility.

According to a DFEH press release, the guidance was issued following a DFEH-initiated lawsuit involving a transgender individual who had sought employment at the American Pacific Corporation (AMPAC) in Sacramento.  (See Department of Fair Employment and Housing v. AMPAC (March 2014)) AMPAC conditioned its employment offer on the applicant using shower and restroom facilities inconsistent with the individual’s gender identity and expression, until the applicant underwent physical transition.

Although AMPAC moved to dismiss the case early in the litigation, the Court denied AMPAC’s motion in a strongly-worded order, which stated, in part:

AMPAC’s “hypothetical assertions of emotional discomfort about [non-transgender individuals] sharing facilities with transgender individuals are no different than similar claims of discomfort [underlying] decades of racial segregation in housing, education, and access to public facilities like restrooms, locker rooms, swimming pools, eating facilities, and drinking fountains.”

The case settled shortly after AMPAC’s motion to dismiss was denied; part of the settlement included AMPAC’s agreement to adopt new policies that allow employees access to the facilities that correspond with their gender identity.

The DFEH is not alone in issuing guidance to employers regarding transgender employees in the workplace.  Numerous federal agencies have already provided guidance on issues pertaining to transgender workers. Examples include the Equal Employment Opportunity Commission’s brochure entitled “Preventing Employment Discrimination Against LGBT Workers,” the Department of Labor’s “Best Practices: A Guide to Restroom Access for Transgender Workers”, and a Department of Justice legal memorandum entitled “Treatment of Transgender Employment Discrimination Claims.”

Given the newly-issued guidance from the DFEH and other legal advances in this area, employers must be prepared to address issues presented by employee transitions and/or transgender employees in the ever-evolving workplace.  Legal counsel can help formulate workplace policies and bring an employer into compliance in this area.

Court of Appeal Holds that MMBA Factfinding Procedures Apply to all Bargaining Disputes

Posted in PERB

US Supreme Court

Just one day after the U.S. Supreme Court’s decision in Friedrichs v. CTA, California employee organizations scored a second victory. Yesterday, the Fourth District Court of Appeal issued its long-awaited decisions in San Diego Housing Commission v. Public Employment Relations Board and County of Riverside v. Public Employment Relations Board. Both cases challenged the Public Employment Relations Board’s (PERB) granting of an employee organization’s request for fact finding under the Meyers-Milias-Brown Act (MMBA).

In a unanimous decision, the Court in San Diego Housing Commission held that the MMBA’s fact finding procedures apply to all bargaining disputes, not just disputes arising from comprehensive negotiations for a memorandum of understanding (MOU). In so holding, the Court relied heavily on PERB’s rationale in County of Contra Costa and City and County of San Francisco , which found that AB 646’s fact finding procedures, codified at MMBA sections 3505.4 through 3505.7, apply not only to impasses over MOU negotiations, but also to bargaining impasse over any matters within the scope of representation. It summarized PERB’s rationale as follows:

• The MMBA does not contain any language expressly limiting its fact finding procedures to only those impasses pertaining to comprehensive MOU negotiations;
• PERB already applies similar fact finding procedures to discrete bargaining impasses under two other statutes within PERB’s jurisdiction (EERA and HEERA);
• Interpreting the MMBA to apply to all disputes is consistent with the legislative history of AB 646; and
• Interpreting the MMBA fact finding procedures to apply to all bargaining disputes is consistent with the parties’ obligation to bargain on any bargainable issue, and prepare an MOU to reflect that agreement.

The Court identified PERB as “one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect.” The Court explained that it must defer to PERB’s interpretation, unless clearly erroneous. In response to amicus arguments that PERB’s interpretations warranted no deference because they were issued to assist PERB in this litigation, the Court declined to speculate as to PERB’s motives.

It also rejected each of the arguments put forth by the Commission. The Court dismissed the Commission’s argument that the requisite fact finding criteria only made sense for impasses related to comprehensive MOU negotiations by noting that similar criteria apply to EERA fact finding which is not limited to MOU negotiations.

The Court also dismissed the Commission’s argument that the reference to “any applicable mediation and fact finding procedures” and “implementation of an MOU” also proves that the fact finding procedures only applied to comprehensive MOU negotiations. As the Court explained, the language at issue existed before the Legislature added the fact finding provisions to the MMBA, so offered no assistance in interpreting the statute. The Court also noted the language was more reasonably read to reflect that, absent a request, mediation and fact finding may not occur following a declaration of impasse.

In those situations, there would be no applicable impasse resolution procedures preventing a public agency from imposing its last, best, and final offer.

As for the Commission’s argument that references in AB 646’s legislative history demonstrate that the statute was meant only to apply to MOU negotiations, the Court pointed out that those references were not made by the author of the statute, but by AB 646’s supporters and opponents. The Court also noted that even if it could consider those references, they referred solely to the mandatory nature of the fact finding procedures, not the scope of its application.

While the Court agreed that the EERA and HEERA’s impasse and fact finding rules differed procedurally from the MMBA, it noted that the Commission had not explained how those procedural distinctions limited MMBA fact finding to comprehensive MOU negotiations. Finally, the Court noted that since the purpose of the MMBA is to promote full communication between public agencies and public employee organizations and provide for reasonable method of dispute resolution, it was not reasonable to presume that the reasonable resolution of disputes should be limited to just MOU negotiations and not discrete bargainable issues.

The Court applied this same rationale to its decision in County of Riverside, and remanded both cases back to their respective trial courts.

So what does this mean for agencies going forward? First, since any dispute regarding a matter within the scope of representation could result in fact finding, you can expect a delay before implementation if the fact finding is sought by the employee association or labor union. Make sure to factor in that additional time when meeting and conferring on discrete issues. Second, when faced with a bargaining dispute on matters not involving comprehensive MOU negotiations, be prepared to issue a last, best and final offer as that will be what you will have to defend in a fact finding hearing. Third, make sure to issue a written declaration of impasse as that will be what triggers the timeline for the union to request fact finding. Finally, don’t worry – as noted above, EERA and HEERA agencies have been dealing with fact finding on single-item issues for years, and they have survived. You will too.

The Commission and the County could seek California Supreme Court review. If that occurs and review is accepted, we will update our clients at that time.