California Public Agency Labor & Employment Blog

California Public Agency Labor & Employment Blog

Useful information for navigating legal challenges

With Labor Negotiations Approaching, is Your Agency Ready for a CalPERS Audit?

Posted in Retirement

Retirement-Sign.jpgThis blog post was authored by Michael Youril

The California Public Employees’ Retirement System (“CalPERS”) substantially increased the number of public agency audits it conducted last year.  As discussed in our previous post, the audit process can be long, complex, and time-consuming.  An audit can also result in significant liability or administrative headache for an agency when its reporting practices and labor agreements are not in compliance with the Public Employees’ Retirement Law (“PERL”) and applicable regulations.  It can also cause conflict between the agency and employee organizations regarding how to correct past mistakes and implement compliant policies and language.

As agencies gear up for negotiations on successor labor agreements, agencies can use this time to conduct an “internal audit” of their labor agreements and existing policies to ensure that they are in compliance with the PERL and other provisions of law.  A proactive internal audit allows agencies to identify and correct any errors so that they can be addressed at the bargaining table, before the agency is locked into a labor agreement and confronted with an unlawful provision that needs to be corrected after-the-fact on a piecemeal basis.  It can also correct errors before compliance agencies come knocking.

CalPERS recently issued Circular Letter No. 200-064-14, which discusses items of special compensation that are commonly misreported.  In order to qualify as special compensation and be included in calculating pension benefits, payment must meet the definitions set forth in the PERL and applicable California Code of Regulations provisions.  The Circular Letter identifies, among others, the following common reporting errors CalPERS discovered during its audits:

  • Longevity Pay – Longevity pay should not have additional requirements other than length of service, or service in a particular class, for a minimum period exceeding five years.  For example, where a longevity incentive is combined with educational or performance requirements, the additional requirements remove the payment from the definition of “longevity pay” and the item may be excluded by CalPERS.
  • Uniform Allowances – Agencies must report the value of uniforms provided to employees, even if no specific payment is made directly to the employees. The value of the uniform should also be set forth in the labor agreement.  Items solely for personal health or safety are not reportable.  Moreover, uniform allowances are not reportable for “new members” subject to the Public Employees’ Pension Reform Act (“PEPRA”).
  • Bonus – In order to qualify as a “bonus,” the bonus must be made to a group or class, awarded for superior performance or merit, and in accordance with a “program or system…to plan and identify performance goals and objectives.”  Bonus pay is also not reportable for new members subject to PEPRA.

Agencies should conduct internal audits to determine whether any of their policies, labor agreements, or reporting practices contain the errors identified by CalPERS.  For example, agencies should ensure that they are differentiating among “classic members” and “new members” in reporting certain items of special compensation.  Agencies should also review whether their labor agreements are at odds with any other legal requirement, such as the Fair Labor Standards Act or the Affordable Care Act.  Correcting these issues early on can save the agency time and money in the event of an external audit by a compliance agency.

On February 3, 2015 at 10:00 am, Liebert Cassidy Whitmore will be conducting a webinar regarding internal reviews and audits of labor agreements.  Peter Brown and Steve Berliner will walk agencies through common mistakes in labor agreements and negotiations.  For details, or to register, click here.

NLRB Rules that Employers Must Presumptively Allow Employees to Use Work Email for Statutorily Protected Communications

Posted in Employment

Email SymbolsThis blog was authored by Alex Polishuk

Employer email policies often prohibit employees from using workplace emails for communications that do not relate to business purposes.  However, under a recent National Labor Relations Board (“NLRB” or “Board”) decision, business-use-only email policies may now be unlawful.  In Purple Communications, Inc. (2014), the NLRB ruled that employers must presumptively allow employees to use their work issued email accounts for statutorily protected communications during nonworking time.

By way of background, Section 7 of the National Labor Relations Act provides employees with, among other things, the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection (29 U.S.C. Section 157).  This includes, among other things, the right to communicate about union organization, wages, or working conditions.  Purple Communications specializes in providing sign language interpreters for video communications between deaf and hard-of-hearing individuals.  Purple Communications established a policy prohibiting employees from using its email system except for “business purposes.”   The Communications Workers of America filed an unfair labor practice charge with the NLRB challenging the policy as unlawful.

The NLRB’s lengthy and detailed decision in this matter first focused on its previous decision in Register Guard (2007), which held that an employer may completely prohibit employees from using the employer’s email system for non-business related purposes, including Section 7 activities, if the employer’s ban was not applied discriminatorily.  In the instant decision, the NLRB overruled the Register Guard decision, observing, among other things, that it “failed to perceive the importance of email as a means by which employees engage in protected communications.”  Thereafter, the NLRB ruled that employees who have rightful access to their employer’s email system in the course of their work cannot be restricted from using that email for communications protected under Section 7, e.g., communications about union organization, wages, or working conditions.  While the NLRB indicated that its decision is “limited,” it appears to vastly expand the rights of employees to use workplace email during nonworking hours.

Although the NLRB recognized several caveats to its ruling, the Board did not provide detailed instructions about the application of these exceptions.  For example, the NLRB recognized that employers could enforce a blanket ban on nonwork time use of work issued email accounts.  However, the NLRB indicated that this would be “the rare case where special circumstances justify a total ban on nonwork email use by employees[,]” which would require the employer to “demonstrate the connection between the interest it asserts and the restriction.”  The NLRB gave no examples or explanations of what these “special circumstances” may entail.

The NLRB also affirmed employers’ right to monitor their computers and email systems for “legitimate management reasons,” such as ensuring productivity and preventing email use for purposes of harassment or other activities that could give rise to employer liability.  The NLRB also acknowledged that employers may inform their employees that they have no expectation of privacy in their use of the employer’s email system.  The NLRB also addressed concerns that that its instant ruling may leave employers vulnerable to allegations of “unlawful surveillance” of employees’ Section 7 activity.

The NLRB did not explain what exactly it meant by “unlawful surveillance.” Rather, the NLRB indicated that it was “confident…that we can assess any surveillance allegations by the same standards that we apply to alleged surveillance in the bricks-and-mortar world.”  The dissenting members were not as confident and expressed concern over employers’ right to monitor their email systems.  Member Phillip A. Miscimarra opined that “[n]obody will benefit when employees, employers, and unions realize they cannot determine which employer-based electronic communications are protected, which are not, when employer intervention is essential, and when it is prohibited as a matter of law.”

For the public sector, the NLRB’s decisions are only persuasive and or advisory.  However, public sector employers should not take much solace from NLRB’s lack of jurisdiction over its affairs.   This decision may reflect a sea of change in this area of the law generally.  It is not unusual for the Public Employment Relations Board (“PERB”), which does have jurisdiction over the public sector, to adopt NLRB rulings.  This could be particularly true in instances in which PERB attempts to conform legal principles it develops to the realities of current technology.

The effect of the Purple Communications, Inc. decision, until and unless it is overturned on appellate review, appears to be substantial.  Employers who have a business-use-only policy for their email systems should consider modifying their rule.  Further, employers with a blanket prohibition on use of workplace email during nonworking hours should have in place an articulable policy justifying its rule, and one that will satisfy the Purple Communications standards for such a rule.  Additionally, employers that monitor their email systems must ensure that their method of surveillance is uniform with regard to all employees and minimize the potential for claims of disparate monitoring of protected concerted activity.  And finally, in light of the expansive rights to work-issued emails that the Purple Communications, Inc. decision secured for employees, employers should confirm that their policies clearly inform employees that they do not have a right to privacy with respect to emails sent or received using the employer’s email system and that the employer reserves the right to monitor and review all such communications.

The Mendiola Decision: When Sleeping and Personal Time Is Still Part of an Employee’s Job

Posted in Wage and Hour

hourglass-small.jpg

This blog post was authored by Steven Tang.

Public agencies are exempt from most requirements of the state Industrial Welfare Commission’s (IWC) wage orders, including provisions on daily overtime.  However, the state minimum wage requirements in each of the wage orders do apply, and so the California Supreme Court’s new Mendiola v. CPS Security Solutions, Inc. decision regarding an employer’s obligations under state wage orders may impact some public employers.

In Mendiola, the Supreme Court ruled that on-call hours for employees residing at a worksite are considered hours worked under Wage Order 4.  The FLSA provides that employees residing on an employer’s premises on a permanent basis or for an extended period of time are not considered to be working for all the time the employee is on the premises, and CPS argued this same principle should be read into Wage Order 4.  The Court disagreed and concluded that CPS had to count all of the resident employees’ on-call time as hours worked because the employees remained under CPS’s control and the time was spent primarily for CPS’s benefit.  The Supreme Court also ruled that sleep time may not be excluded from 24-hour shifts under Wage Order 4.

The Mendiola decision may impact some public agency employers based on state minimum wage requirements for hours worked.  If an agency has employees who reside permanently or for extended periods at the worksite and may be subject to on-call time, and/or who work 24-hour shifts with sleep time excluded, the agency should ensure that the employees’ total compensation still meets the state minimum wage laws when the on-call time and sleep time are included as hours worked.

It is also noteworthy that the California Correctional Police Officers Association submitted a friend-of-the-court brief in this case supporting the employees.  It is possible that public employees may try to extend the Mendiola case to apply to public employer standards for on-call time and sleep time.  We do not believe this would be a strong position to argue given the Court’s reasoning in the case, but we would not want to be accused of being asleep on the job for failing to mention it.

First Amendment Law in 2015 – 8 Areas to Watch (Part II)

Posted in First Amendment

globeTuesday’s post discussed four important issues in First Amendment law which will involve the Supreme Court and other courts deciding fairly traditional, “earth bound” questions of free speech.  Today’s post explores more unusual challenges facing the courts in 2015.

1. Individuals’ Speech on Facebook:

Does the First Amendment protect an individual who makes menacing and violent statements on social media that cause the persons named in the posts to fear for their physical safety?  What if the individual claims he was “just venting” and had no subjective intent for the statements to be taken seriously?  The U.S. Supreme Court will answer these questions in 2015, in the case Elonis v. United States.

Speech that constitutes a “true threat” has traditionally had no First Amendment protection.  But the U.S. Supreme Court has never specifically defined what constitutes a “true threat.”  Anthony Elonis was convicted of transmitting in interstate commerce threats to injure another person; he was sentenced to 44 months in federal prison.  Elonis had posted extremely disturbing statements on his Facebook page regarding his ex-wife, those at amusement park at which he had previously worked, FBI agents who visited his home, and others.  His Facebook posts ruminated morbidly and with apparent relish on his thoughts about committing various violent acts against them.  For example, after his former wife obtained a “protection from abuse” order against him, he posted on Facebook that he wondered if the protection order, when placed in a pocket, was “thick enough to stop a bullet.”

Elonis defended himself against the criminal charges by arguing that he never subjectively intended to cause anyone actually to fear physical harm.  He argued this lack of intent should exempt him from criminal liability even if a reasonable person would view his posts as threatening.  He argued further that his Facebook statements should not come within the definition of “true threats” and thereby lose any First Amendment protection.  The Court heard oral argument in the case on December 1, 2014, but there did not appear any consensus among the Justices about a particular “true threat” definition.

Importance for Our Clients: The U.S. Supreme Court’s decision in Elonis will have ramifications outside the context of criminal law.  For example, if the Court broadly defines what constitutes a “true threat,” then this will allow public employers and educators much more freedom consistent with the First Amendment to discipline employees and students who make threatening statements on social media and on-line.

2. Search Engines:

Next year may also bring case law interpreting the free speech rights at issue in a very significant new context – First Amendment rights relating to search engine results.  The issue was presented squarely last year to a federal court in New York City in the case of Zhang v. Baidu.com Inc.  There, a group of residents in the U.S. sued Baidu, a company considered to be the equivalent of Google in the People’s Republic of China.  The plaintiffs argued that Baidu had removed the web content of Chinese political dissidents from its search results, so that Chinese speakers in America could less readily gain access to the dissidents’ views.  The plaintiffs argued that this manipulation of search results constituted censorship in violation of First Amendment rights and violation of other laws.  Baidu, however, prevailed on a motion to dismiss.  The federal court determined that Baidu’s search results were in fact the company’s own protected speech under the First Amendment (under the well-known case Citizens United v. Federal Election Commission, corporations have strong free speech rights).  Thus, in the Court’s view, it would violate the First Amendment for any court to interfere with Baidu’s editorial decisions of which search results to present to its users.  Although the case applied to a Chinese company, clearly the reasoning applies to American search companies such as Google and Yahoo!.

Significance for Our Clients:  The parties in the Baidu litigation stipulated to dismissal of the appeal before the U.S. Court of Appeals for the Second Circuit could hear the matter.  Nevertheless, if another lawsuit of this type arises against Baidu or any other search engine, it could establish far-reaching precedent that search results are protected speech of the search engines that produce them.  This in turn would mean that search engine results are not only in many ways immune (because of constitutional free speech principles) from regulation by Courts  but also from regulation by Congress.  Those concerned about these issues could even initiate litigation along these lines in 2015, in order to set a precedent sooner rather than later on this important issue.  The issues presented in Baidu are in some ways the mirror opposite of those addressed by government agencies, which are themselves bound by the First Amendment and whose own constitutional free speech rights are less clearly defined.  Nevertheless, how courts and the public will regard these novel issues will shed light on how they address matters routinely encountered by government actors.

3. College Students – Speech Areas:

Many public colleges limit picketing, demonstrations, petition-gathering, hand-billing, and other similar activities to designated speech areas on campus.  Ideally, these speech areas are large and located in parts of campus well-trafficked by members of the community.  Many legal commentators and free speech practitioners believe Courts will soon provide further guidance on what the First Amendment requires of colleges in their configuring these areas.  A few commentators, in fact, call for Courts, in the name of free speech principles, to order a near-complete ban on speech areas, and for opening up the bulk of a public college campus to organized expressive activities by students and outsiders.  On the other hand, many colleges believe that speech areas serve as an important way to support free speech while preserving the intended educational and academic uses for a college campus.

Importance for Our Clients: Prominent free speech advocates have pledged to file lawsuits in the coming months challenging limits on how students can express themselves on college campuses, and a few such challenges have already been brought.  As a result, 2015 will likely see new case law in this area.  For California, the issue is not limited to public institutions like community colleges, the University of California, and California State University.  In California, private colleges as well must contend with developments in free speech law, because the “Leonard Law,” Education Code section 94367, confers substantial statutory free speech rights on students enrolled in private colleges and universities.  These statutory free speech rights are intended to mirror some of the constitutional rights of students in public colleges and universities.

4. All Users of the Internet – “Net Neutrality”:

Finally, an issue that will likely see significant developments in 2015 is the issue of “net neutrality,” the concept of internet law developed by a host of legal commentators, free speech advocates, politicians, academics and others, and that been described as “the free speech issue of our time.”  The concept of “net neutrality” in simplified form means that the private cable companies which make the internet physically possible should be prohibited from using their status to discriminate against the various speakers on the internet – whether based on viewpoint, identity, or other factors.  Net neutrality would also require that those companies not discriminate based on whether the speaker is willing to pay more for their internet service.  The companies, on the other hand, have argued as a threshold matter that because they are private entities, they are not subject to the First Amendment.  They have argued further that although they are regulated by the Federal Communications Commission (“FCC”), they do not have the status of “common carriers” like telephone companies, and therefore should, if they choose, be free to provide faster internet service to entities willing to pay a premium, and be free to engage in other control over their services that does not offend free speech norms.  The primary battleground for net neutrality is the FCC, which has rendered some decisions in the area but has not recently taken a decisive step either way.  (A secondary battleground for the concept is the U.S. Court of Appeals for the District of Columbia Circuit, which reviews whether the FCC’s decision making is within its statutory authority; earlier this year on January 14, 2014, the D.C. Circuit found in Verizon v. FCC that the agency had exceeded its authority in enacting particular net neutrality rules.  Part of the FCC’s challenge going forward is to enact rules that comport with the D.C. Circuit’s reasoning.)

The arguments in favor of net neutrality have been around for years, but President Obama’s recent announcement on November 10, 2014 that his administration fully supports net neutrality, and encourages the FCC fully to embrace the concept in regulating internet service providers, has given the debate new significance.  The President’s statement came after a strong showing that net neutrality is important to the general public.  The federal government, in the six months prior, had received over four million comments from members of the public calling for passage of strong net neutrality rules.

Significance for Our Clients: This high-tech, Washington D.C. free speech issue does not directly affect those who routinely address free speech claims day-to-day, like public employers and educators.  But following the issue does show how the public, federal agencies, business leaders, and Courts view significant free speech issues, and hence how they will view speech issues in other contexts.

We will keep you posted on 2015 developments in these areas of the law affecting public employers and educators.

Tips from the Table: MOU Audits and Reviews

Posted in Labor Relations, Negotiations

We are proud 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.

Are you getting ready for labor negotiations? Join Peter Brown for a 1-hour webinar on the importance of conducting an MOU Review/Audit and what to look for.

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First Amendment Law in 2015 – 8 Areas to Watch

Posted in First Amendment

constitution_against_flagPart I

The year 2015 will likely be a stand-out year for new developments in First Amendment law.  The end of this year has seen free speech at the top of the news on a near-daily basis.  Protests of police department practices, sparked by events in Ferguson, Missouri and New York City, swept the country this fall despite unusually cold conditions.  The protests were marked by civil disobedience, with California cities like Los Angeles and Oakland scoring very high nationwide in number of arrests.

But while events like these, including protests in support of urgent causes, will likely continue to take up headlines in coming months, there are a number of significant legal issues that have been under development in the American judicial system that will probably be ripe for resolution in 2015.  They may gain less attention, but they will represent significant shifts in the law.  The following are eight such issues:

1. Government Expression:

Some legal academics and commentators take the view that government entities themselves (states, cities, counties, and public educational institutions) have no First Amendment rights.  They take this view even though it is clear governments have the ability and often an obligation to speak in furtherance of the public interest.

In 2015, the Ninth Circuit will hear a case that may answer the question whether the First Amendment protects the speech of government agencies in some way.  The case is Gingery v. City of Glendale, in which the Ninth Circuit will decide whether it was proper for the City to allow a statue commemorating “comfort woman” in one of its parks.  The statue is of a seated Korean woman, with a plaque commemorating the plight of women from Korea, the Philippines, China, and elsewhere described as having been subjected to sexual exploitation by the Japanese military in World War II.  The plaintiffs in Gingery are individuals, one of whom is a Glendale resident of Japanese descent, who believe the statue violates the U.S. Constitution.  They argue the Constitution confers foreign relations policymaking on the Executive Branch, and forbids local governments from speaking out on issues of international relations in the way Glendale has.  The federal District Court dismissed the Gingery complaint on the basis that the plaintiffs lacked standing to bring the suit – i.e., that they were not harmed in any sufficiently tangible way by the “comfort woman” statue.  The Court also found, as an alternative basis for dismissing the complaint, that Glendale’s statue conveyed a message that was actually consistent with United States foreign policy.  In particular, the U.S. government has previously called upon Japan to accept full responsibility for mistreatment of women in occupied territories during World War II.  The plaintiffs have now appealed to the U.S. Court of Appeals for the Ninth Circuit.

In the background of the arguments and reasoning, however, is the question of whether the City of Glendale has its own First Amendment rights, and hence the ability to assert that its expression, by way of the statue, should not be censored by federal doctrine or the federal courts.  There is very little law in this area, but the District Court’s reasoning in Gingery did contain language acknowledging that the statue constituted speech or expression by the City.  The Court’s reasoning further suggested that courts should refrain from interfering with the expression of local government entities.

Importance for Our Clients:  In the Gingery case, the Court of Appeals will define to what extent local governments can speak out on questions relating to international law and international relations.  This issue is not limited to placement of monuments, but can apply to many other forms of local government speech as well.

2. Speech by Public Employees:

In employment litigation, public employees frequently allege that they suffered dismissal or discipline in retaliation for having exercised First Amendment rights – for example, for making off-color postings on Facebook, criticizing management, engaging in union activities, or whistleblowing to government regulators or the press.  2015 will no doubt bring additional significant case law in this area.

Generally, public employees only have limited constitutional free speech rights against their employers.  The U.S. Supreme Court has ruled that they can sue employers for retaliation under the First Amendment if among other things they spoke on a matter of “public concern,” spoke in a way that was not pursuant to their “official duties” as a public employee, and suffered an “adverse employment action” as a result.  Even if the employee’s claim meets these tests, the employer can still prevail in a lawsuit if the reasons for the employment action satisfy a balancing test between the government interests of the employer and the speech rights of the employee.

A couple of unanswered questions in this area of the law, which Courts could well address in the next year, include, first, to what extent an employee’s engaging in optional activities that foster or improve the employee’s ability to carry out job responsibilities satisfies the definition of speech pursuant to “official duties.”  Some Courts take a broad view of “official duties” in this respect – for example, the U.S. Court of Appeals for the Second Circuit (which covers New York) held in 2010 in Weintraub v. Board of Education that a public school teacher’s filing a grievance over the administration’s failure to discipline a student who misbehaved in his class actually qualified as the teacher’s speech pursuant to “official duties.”  The Second Circuit reasoned that this was because the teacher’s goal in the grievance was to help him do his own job.  It is unclear whether the Ninth Circuit’s “official duties” test is currently broad enough to incorporate this reasoning.

Next, Courts could provide more guidance on what exactly constitutes an “adverse employment action” for purposes of a First Amendment retaliation claim.  The Ninth Circuit just provided some additional detail in a short opinion in the case Thomas v. County of Riverside, decided in August 2014.  The Court held that the following management actions by the County could constitute adverse employment actions: prohibiting the employee in that case from using break time to travel between work sites, removing her from a paid teaching position at a community college, rescinding her previously approved vacation, and removing her from an unpaid position on a committee.  The Court described that adverse employment actions could also include involuntary transfers and investigations.  In other cases in the next year, the Ninth Circuit could provide more detail, or even a further articulation of the applicable test for what will satisfy this element.

Importance for Our Clients:  First Amendment claims, meritorious or not, very frequently appear in employment litigation in the public sector, and arise in many different contexts.  This area of the law significantly affects public employers.

3. Speech by Private Sector Employees: Social Media and Electronic Communications Rules:

The First Amendment binds the government, not private businesses.  Nonetheless the National Labor Relations Act (“NLRA”), a federal law passed in the 1930’s to regulate management-union relations, grants employees of private companies limited, statutory free speech rights as against their employers.  Workers have the rights among other things to engage in concerted activities for their own protection and to communicate with each other regarding wages, hours, and working conditions.  These statutory rights exist regardless of whether the employees are represented by a union.

These rights have gained substantial prominence in recent years because the National Labor Relations Board (“NLRB”), the federal agency charged with administering the NLRA, has rendered a number of surprising decisions in the context of social media.  In highly publicized cases, the NLRB has found that if private businesses promulgate workplace rules on employee social media use that interfere too much with employees’ ability to speak on-line about such matters as their wages, hours, or working conditions, then those workplace rules will violate the NLRA and be void.  In addition, the Board has overturned discipline of particular employees as well, finding that their employers cannot punish them for harshly criticizing and embarrassing management on social media sites.

On December 11, 2014, the NLRB issued another decision in this area that drastically breaks new ground in favor of private sector employees.  In Purple Communications, the NLRB ruled that electronic communications policies that prohibit employees from using the employer’s email system for anything but work are presumptively invalid, because they prevent employees from engaging in Section 7 concerted activity and communications.  If a policy prevents employees from (on their own non-working time) communicating with each other about wages, hours and working conditions, then the NLRB’s view is that this violates Section 7 rights.  Critics of the NLRB Purple Communications decision are decrying that it provides employees a right to use the employer’s own property against it in discussions about workplace matters, and even a right to use the employer-owned e-mail system as a platform for organizing union representation.  Federal courts, however, do have the final say over whether the NLRB’s interpretation of employees’ statutory rights is legitimate, and 2015 may well bring a judicial decision weighing in on this new authority.

Importance for Our Clients: Public sector labor relations are governed not by the federal NLRA, described above, but instead by state labor relations statutes.  In California, the Public Employment Relations Board (“PERB”) has jurisdiction over those state laws.  Although PERB often follows NLRB precedent, on this issue, for whatever reasons, PERB decisions have not yet picked up on the NLRB’s expansive social media decisions.  That said, we do anticipate that PERB will eventually confirm them as the law of the public sector workforce as well, unless the decisions are modified by courts’ rulings on the NLRB cases.  Many commentators do believe that these decisions by the NLRB overstate the statutory speech rights of private sector employees, and 2015 may see judicial decisions that cut back on the very extensive protections developed by the NLRB.  Finally, it worth note that the language of public sector labor relations statutes like the Meyers-Milias-Brown Act (“MMBA”) and the Educational Employment Relations Act (“EERA”) is in fact different from the language of the National Labor Relations Act when it comes to describing worker collective rights.  It is theoretically possible that PERB will pull back from the NLRB’s interpretations, given the differences in statutory language and the numerous other protections for employee speech in the public sector.

4. Government or Individual Speakers:

The U.S. Supreme Court just weeks ago decided to take up a case that poses the following theoretical question: who is the “speaker” when the government hosts speech in particular contexts, and selects which invitees’ messages will be conveyed.  The distinction of who is the “speaker” makes a difference because the speaker is the one whose rights will be protected under the First Amendment.  The case in this area is Walker v. Sons of Confederate Veterans, in which the plaintiffs, including a non-profit organization and two of its officers, argue that the State of Texas should allow them to depict Confederate battle flags on specialty license plates.  Texas has a system of allowing non-profit organizations and others to select plate designs with individually selected expressive messages, within certain prescribed limits.  The plaintiffs argue that in creating this system, Texas has created a “forum” for public expression on the license plates.  As such, plaintiffs argue, Texas cannot discriminate against certain viewpoints or speech in its selection of messages.  In defending the case, Texas has taken the diametrically opposite view – it argues that it is itself speaking through the license plates, by deciding to accept content from individual driver requests.  (See the discussion of the City of Glendale case, above).  Texas also argues that even if the Court adopts the plaintiffs’ “forum” view, it is still legitimate under the First Amendment for the state to prescribe limits against accepting plate messages that “might be offensive to members of the public.”

The theoretical distinction between individual speech and government speech can arise in many circumstances and serve as a very powerful defense to government agencies.  Indeed, the Walker decision will likely rely heavily on the 2009 U.S. Supreme Court case Pleasant Grove City v. Summum.  There, the Court faced a scenario in which a city in Utah had accepted a Ten Commandments monument for one of its parks, as well as other monuments, but had decided not to accept a monument proposed for donation by Summum, a group whose religious views were less mainstream.  Summum argued that the city was bound by the First Amendment and could not discriminate in accepting monuments on the basis of the speaker’s viewpoint.  The Supreme Court evaded the viewpoint-discrimination charge against the City by holding that it was the City of Pleasant Grove itself that was “speaking” by choosing which monuments to accept for donation.  Accordingly, the city could refuse to accept a monument without violating the First Amendment.

Significance for Our ClientsWalker will help determine the extent to which government agencies can use this powerful “government speech” defense in First Amendment cases.  The defense will increase in importance as more governments decide to sponsor platforms or methods by which the public can communicate.

Watch for Part Two of this blog post, which will tackle free speech issues involving cutting edge technology, the internet, and colleges.  

Questions and Answers about California’s New Paid Sick Leave Law (AB 1522)

Posted in Employment

Breaking-News1.jpgThis post was authored by Gage Dungy and Stephanie Lowe.

The recently enacted Assembly Bill 1522 (“AB 1522”), enacting the Healthy Workplaces, Healthy Families Act of 2014 (“Paid Sick Leave law”), has left employers with a multitude of questions about how to apply the new law and how it will affect their existing sick leave policies.  While the law itself went into effect on January 1, 2015, the implementation of the actual paid sick leave provisions for employees is not effective until July 1, 2015.

Although there are still numerous questions regarding the implementation of AB 1522 which need to be better answered, here are four practical impacts of this law that employers need to being thinking about now:

1.  Most employees who do not currently receive any paid sick leave, will now be eligible for paid sick leave under this law and employers need to be prepared to apply the Paid Sick Leave law provisions to these uncovered employees.  This includes temporary, seasonal, and part-time employees.

2. Employers will need to modify their current policies and practices regarding paid sick leave to implement the provisions of the Paid Sick Leave law.

3. Employers should work with their Payroll and Human Resources Departments to ensure they are aware of the new Paid Sick Leave law and are properly tracking its use by employees and ensuring that paid sick leave accrual information is provided to employees.

4. For employers who already provide paid sick leave for their employees, the Paid Sick Leave law will not likely provide additional leave to those employees, but additional restrictions (e.g., the entitlement to allow use for familial relationships not typically permitted by sick leave provisions) will likely apply for the first 3 days or 24 hours in a 12-month period.

However, the Paid Sick Leave law – codified as Labor Code sections 245 through 249 – tends to raise more questions than it answers.  The plain language of the Paid Sick Leave law is vague and ambiguous, and it does not consider how the Paid Sick Leave law will interact with existing and related laws involving paid sick leave (e.g., Labor Code sections 233 and 234 – “Kin Care law”, various provisions of the Education Code that already provide paid sick leave, and local paid sick leave ordinances).  In December 2014, the California Division of Labor Standards Enforcement (“DLSE” or “Labor Commissioner”) did issue a Frequently Asked Questions (FAQ) webpage that does help provide some guidance on the application of the Paid Sick Leave law: http://www.dir.ca.gov/dlse/Paid_Sick_Leave.htm

However, the Labor Commissioner’s FAQ webpage provides more of an overview of the Paid Sick Leave law as written and does not provide any interpretations of the law’s ambiguities.  Unfortunately, the Labor Commissioner does not actually have the authority to promulgate regulations to interpret the Paid Sick Leave law.  As a result, any clarifications of the law will likely need to come in the form of clean-up legislation from the Legislature.  Whether any such clean-up legislation will happen is uncertain.  This means that many open questions regarding the Paid Sick Leave law still cannot be fully answered at this time.

In the meantime, Liebert Cassidy Whitmore has analyzed several issues that may arise as employers look to ensure compliance with the Paid Sick Leave law and has provided the following questions and answers below to assist in this regard.  Due to the ambiguities in AB 1522, we unfortunately do not have all the answers on how this law will apply but instead have tried to provide a reasonable interpretation where possible.  Nonetheless, employers should review their current sick leave policies and practices carefully and remain up to date on any future legislation or guidance regarding the Paid Sick Leave law as July 1, 2015 approaches.  We encourage employers to consult with legal counsel when drafting paid sick leave policies.

PAID SICK LEAVE LAW QUESTIONS AND ANSWERS

1)    For what purposes must paid sick leave be provided under AB 1522?

AB 1522 requires that covered paid sick leave be provided for the following three purposes:

a)     Diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee;

b)     Diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee’s family member (includes parent, child, spouse, registered domestic partner, parent-in-law, sibling, grandchild or grandparent); or

c)     For an employee who is a victim of domestic violence, sexual assault, or stalking, the purposes described in Labor Code section 230(c) and Labor Code Section 230.1(a).

For employers who currently have paid sick leave or paid time off policies, the permissible uses allowed under AB 1522 are likely more expansive than  current sick leave policies.  For example, the Paid Sick Leave law includes the use of sick leave to care for a parent-in-law, sibling, grandchild, or grandparent, who are not covered “family members” under California’s Kin Care law (Labor Code sections 233-234) and are not covered under most employer sick leave policies.

For employers who plan to limit the use of AB 1522 paid sick leave to 24 hours or 3 days in a 12-month period, they should be prepared to track an employee’s use of paid sick leave to see if it qualifies for one of these three reasons.

The application of this new Paid Sick Leave law will result in only the first 24 hours or 3 days of sick leave applying to one of these relationships when the employer caps sick leave in a 12-month period.

Therefore, once the first 24 hours or 3 days in a 12-month period have been used by an employee, an employer does not need to provide sick leave for these AB 1522 covered reasons and can fall back on the permissible reasons of any additional paid sick leave provided by the employer’s policy.

2)    Which employees are covered by the Paid Sick Leave law?

Almost all employees are covered under the new Paid Sick Leave law.  There are very limited exceptions from the law for the following types of employees:

  • In-Home Supportive Services (IHSS) employees;
  • Certain airline cabin crew and flight deck employees;
  • Construction Industry employees covered under a valid collective bargaining agreement with regular hourly pay of not less than 30 percent more than the state minimum wage and premium overtime wages; or
  • Any employee covered by a collective bargaining agreement if the agreement provides a regular hourly pay of not less than 30% more than the state minimum wage ($11.70/hour based on the current $9/hour minimum wage; $13/hour based on $10/hour minimum wage effective January 1, 2016), premium overtime wages, paid sick leave, and final and binding arbitration of paid sick leave disputes.

Absent one of these exceptions, all other employees are covered under the Paid Sick Leave law.  This includes part-time, seasonal, and temporary employees.  Under AB 1522, employees are entitled to begin accruing paid sick leave after 30 days of employment and can begin using paid sick leave after 90 days of employment.

3)    For employers who already have paid sick leave or paid time off (PTO) polices in place, what changes must be made to ensure such policies comply with AB 1522?

The Paid Sick Leave law provides that employers who already have sick leave/PTO policies in effect do not need to provide any additional paid sick leave under AB 1522 if they meet the following requirements:

a)     Make paid sick leave available for the same purposes and conditions as AB 1522; and

b)     Ensure their policies either:

i.     Satisfy the accrual, carry over, and use requirements of AB 1522, or

ii.     Provide no less than 24 hours or 3 days of paid sick leave for employees to use for each year of employment, calendar year, or 12-month period.

However, it is not entirely clear from this provision whether the AB 1522 accrual, carry-over and use requirements must apply to all of the paid sick leave provided by an employer, or just to a minimum of 3 days or 24 hours in a 12-month period.  The Labor Commissioner’s FAQ sheet unfortunately does not provide a lot of insight on how an employer’s current sick leave and PTO policies will interact with the Paid Sick Leave law.

We believe that so long as an employee’s accrual of paid sick leave/PTO is greater than or equal to the 1 hour for every 30 hours worked accrual rate noted in the Paid Sick Leave law and such accruals can carry-over to subsequent years, the only effect of the law on a current policy is that the first 3 days or 24 hours of sick leave used in a 12-month period must be for one of the reasons covered under this law.  Although we feel that this is a reasonable interpretation of the law’s application to an employer’s current paid sick leave/PTO policies, this is an area that is not  settled.

4)    How do the use, accrual, and carry-over requirements of the Paid Sick Leave law interact? 

From a practical standpoint, most employees are going to accrue covered paid sick leave under the Paid Sick Leave law at a faster rate than they can use it in a 12-month period if an employer provides for such a cap.  Part-time and temporary employees who have fewer hours worked will accrue less sick leave.  Here’s a summary of the use, accrual and carry-over requirements of the Paid Sick Leave law:

Use:  An employer may cap the paid sick leave an employee is allowed to use in a 12-month period to 24 hours or 3 days.

Accrual:  Under the Paid Sick Leave law, the rate of accrual of 1 hour of paid sick leave for every 30 hours worked is the minimum rate of accrual an employer must provide.  An overtime exempt employee is deemed to work 40 hours per workweek unless the exempt employee’s normal workweek is less than 40 hours and the actual hours worked in that normal workweek would apply.

Accrual Cap/Carry-Over:  An employee’s actual accrual of covered sick leave under the Paid Sick Leave law would still continue even if an employee has already used the allotted 3 days or 24 hours required by law in a 12-month period.  For a full-time employee who works 2,080 hours in a 12-month period (average of 40 hours a week), the full paid sick leave accrual could technically be 69 hours.  However, the Paid Sick Leave law allows an employer to cap the maximum accrual of covered paid sick leave for an employee at 48 hours or 6 days.  Although the covered paid sick leave accruals can be capped, the Paid Sick Leave law requires that an employee be allowed to carry-over their covered paid sick leave accruals year to year.

5)    How does the “24 hours or 3 days” 12-month use cap and “48 hours or 6 days” accrual cap apply to employees who work shifts greater or fewer than 8 hours per day (e.g., a full-time employee who works 10-hour shifts or a part-time employee who works 4-hour shifts)?

AB 1522 does not well define “hours” versus “days.”  The difference in interpretation greatly affects the definitions of “24 hours or 3 days” for purposes of the 12-month use cap and the “48 hours or 6 days” for purposes of the accrual cap for employees who work shifts greater or fewer than 8 hours.

One unofficial interpretation we heard from the Labor Commissioner’s office was to provide covered sick leave at the greater amount of 24 hours or 3 days.  Such an interpretation would mean that an employee who works a 12-hour shift would actually be able to use up to 3 days/36 hours of paid sick leave and accrue up to 6 days/72 hours of paid sick leave.  Conversely, for a part-time employee who only works a 4-hour shift, this interpretation would mean that the employee would be able to use up to 24 hours of covered paid sick leave (the equivalent of 6 part-time days) and could theoretically accrue up to 48 hours of paid sick leave in a 12-month period.  However, keep in mind that a part-time employee who normally works 4-hour shifts may not necessarily work enough hours to reach the full 48 hour cap in a 12-month period.

Absent further clarification of the law, the interpretation of 24 hours or 3 days and 48 hours or 6 days will be an open question. The safest (and most generous) approach would be to provide sick leave and accrual caps at the greater amount of the hours/days thresholds.

6)    Does a non-exempt employee accrue sick leave for overtime hours?

Overtime hours worked by non-exempt employees would also be considered hours worked for purposes of determining sick leave accruals based on the accrual formula of 1 hour of sick leave for every 30 hours worked.  The fact that hours worked were overtime hours as opposed to straight time hours would have no impact on the accrual rate, which is based on any and all hours worked.

7)    How does providing paid sick leave time upfront at the beginning of each 12-month period impact an employer’s obligations under AB 1522?

The Paid Sick Leave law provides that an employer does not have to satisfy the accrual and carry-over methods if it provides the full amount of paid sick leave at the beginning of each 12-month period.  We believe this means that an employer need only provide 3 days or 24 hours of paid sick leave that can be used for the purposes allowed under the Paid Sick Leave law and does not necessarily need to provide all of its annual sick leave accruals from any other sick leave policy up front.  However, we recognize that vast majority of employers require their employees to accrue sick leave each pay period as opposed to providing them with an allotment of sick leave.  Allowing an allotment is not required by AB 1522.  It is simply a method of complying with the law.

8)    How does the Paid Sick Leave law interact with California’s Kin Care law (Labor Code sections 233-234)?

Since 2000, California employers who have provided paid sick leave or PTO to employees must allow an employee to take up to one-half of an annual accrual such sick leave/PTO to care for a parent, child, spouse, or registered domestic partner.  See Labor Code sections 233-234.  However, AB 1522 now puts a different spin on the Kin Care law as there is a broader definition of “family member” under AB 1522, including grandparent, grandchild, sibling, and parent-in-law.  The end result of reading the AB 1522 and Kin Care obligations together is that an employee’s use of paid sick leave to care for a family member pursuant to AB 1522 will not necessarily count towards the employee’s Kin Care law entitlement – rather, it will depend on which family member the employee is caring for.

EXAMPLE:  Acme Employer has a paid sick leave policy which provides employees with 12 paid sick leave days (96 hours) a year.  Below are some scenarios of how we believe that the Paid Sick Leave law would interact with the Kin Care law and Acme Employer’s paid sick leave policy:

(i)        Employee John Doe takes his first three days of sick leave in a 12-month period for his own illness, because he has the flu. 

  • In this situation, we believe Acme Employer’s obligations under the Paid Sick Leave law have been satisfied as the first three days of the sick leave are for one of the covered reasons under the law.  However, none of this sick leave time would be covered under the Kin Care law and John Doe would still be eligible to use up to 6 days of remaining sick leave to care for a parent, child, spouse or registered domestic partner.  He would also have the remaining 9 days of sick leave available per the Acme Employer sick leave policy.

(ii)       Employee John Doe takes his first three days of sick leave in a 12-month period to care for his grandchild (2 days) and his brother (1 day). 

  • Similar to the first scenario, we believe Acme Employer’s obligations under the Paid Sick Leave law have been satisfied as the first three days of the sick leave are for one of the covered reasons under the law.  However, none of this sick leave time would be covered under the Kin Care law and John Doe would still be eligible to use up to 6 days of remaining sick leave to care for a parent, child, spouse or registered domestic partner.   He would also have the remaining 9 days of sick leave available per the Acme Employer sick leave policy.

(iii)      Employee John Doe takes his first three days of sick leave in a 12-month period to care for his Dad (2 days) and his wife (1 day). 

  • Unlike the first two scenarios, this scenario would involve overlap between the Paid Sick Leave law and the Kin Care law.  We believe Acme Employer’s obligations under the Paid Sick Leave law have been satisfied as the first three days of the sick leave are for one of the covered reasons noted in the law.  In addition, this sick leave time would be covered under the Kin Care law and John Doe would still be eligible to use up to 3 days of remaining sick leave to care for a parent, child, spouse or registered domestic partner.   He would also have the remaining 9 days of sick leave available per the Acme Employer policy.

9)    Does the Paid Sick Leave law provide employers with the ability to verify an employee’s need to use sick leave (e.g., obtain a doctor’s note)?  Are employers precluded from requesting such information?

The Paid Sick Leave law is silent on whether employers can request verification of the need to use paid sick leave or verification of the amount (number of hours or days) of paid sick leave needed as a condition of granting paid sick leave under AB 1522.

However, AB 1522 requires 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 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.  Therefore, an employer’s insistence on verification of AB 1522 sick leave does not come without risk of an employee claiming he or she was denied coverage of paid sick leave under the law.

The only exception to this appears to be for the use of AB 1522 paid sick leave for victims of domestic violence, sexual assault, or stalking as AB 1522 references Labor Code sections 230 and 230.1, which do allow an employer to request certification for unscheduled absences.

This possible inability to require verification of sick leave use would most likely only apply to the first 24 hours or 3 days of paid sick leave used in a 12-month period.  Any sick leave use contractually provided by an employer after that would be subject to any verification requirements imposed by the employer’s internal policy.

10)                    Does an employer have to reinstate accrued paid sick leave for former employees who are re-employed within one year?

Yes. The Paid Sick Leave law provides for the reinstatement of a former employee’s accrued paid sick days at the time of re-hiring so long as the employee resumes employment within one year of his or her previous departure of employment with the employer.  However, if an employer’s policy allows employees to cash out their sick leave at the time of separation of employment, there is no paid sick leave to reinstate as it no longer exists.

We do not believe this would apply to any accrued sick leave an employee received beyond that required under the Paid Sick Leave law’s accrual and cap/carry-over requirements.

This reinstatement provision applies to all covered employees, including any seasonal or temporary employees who work for an employer sporadically each year.  It also appears that an employee who is rehired within one year of separation is eligible to use any previously accrued and unused paid sick leave immediately upon rehiring or reinstatement even if he/she did not work the requisite 90 days during their previous employment.  Absent further guidance, employers should carefully examine the reinstatement of paid sick leave for eligible former employees who did not work the requisite 90 days in their previous employment.

11)                    Are transfers of sick leave permitted?

Transfers of sick leave from one employee to another employee are not described by the new law— it is neither permitted nor prohibited by AB 1522.  The Paid Sick Leave law notes that it does not limit or affect any other policy that provides for greater accrual or use by employees of sick days.  However, it is not clear if an expanded “use” of sick leave would also include the ability to transfer sick leave to another employee.  Therefore, it is possible that transfers of sick leave covered under AB 1522 may be allowed if an employer permits such transfers under its own internal policy.

As AB 1522 provides an employee a statutory right to certain accruals of sick leave, it is not entirely clear if such a right can be contractually waived by the employee to be transferred to another employee.  Therefore, it is very important that any such transfers of AB 1522 sick leave by an employee be voluntary and expressly authorized by the employee at a minimum.  A safer approach may be to allow the transfer of sick leave under an employer’s internal policy, except for those sick leave accruals statutorily protected under AB 1522 (e.g., ensure that an employee has at least 24 hours or 3 days of paid sick leave to use personally in a 12-month period before allowing him or her to transfer any additionally accrued sick leave).

12)                    Are employers required to provide written notice to employees of their available sick leave balances?

Yes, the Paid Sick Leave law requires employers to provide each employee with written notice of sick leave balances on an itemized wage statement or in a separate writing provided on the designated pay date with the employee’s payment of wages.  Although public employers are not required to provide an itemized wage statement under Labor Code section 226, they are still required to provide their employees with their paid sick leave balances in writing each designated pay date.

13)                    Are PERS retired annuitants who perform post-retirement work for a PERS agency entitled to paid sick days?

We believe the answer is Yes.  AB 1522 includes PERS retired annuitants in its definition of employees eligible for paid sick days and PEPRA does not preempt AB 1522.  Even if a PERS retired annuitant performs temporary, limited-term work for a PERS agency, under AB 1522, he or she is probably entitled to paid sick days if he or she works for 30 days or more within a year and is entitled to begin using accrued paid sick days on the 90th day of employment.  The same reasoning would also apply to retired annuitants under a ’37 Act County Retirement System.  To date, CalPERS has not yet formally commented on the effect of the Paid Sick Leave law on retired annuitants.

14)                    Are employers prohibited from requiring employees to find substitute employees for the time they are out on covered paid sick leave?

The Paid Sick Leave law prohibits an employer from requiring that an employee search for or find a replacement worker to cover the days during which the employee uses paid sick days.  See Labor Code section 246.5(b).

15)                    What requirements of the Paid Sick Leave law go into effect on January 1, 2015?  Do employers have to provide individual written notices to each employee by this date?

The code sections of the law go into effect on January 1, 2015 even though the actual implementation of paid sick leave does not begin to apply until July 1, 2015.  Employers should be prepared to satisfy the new posting requirement by January 1, 2015.

The Paid Sick Leave law does require that each employer put a posting up in the workplace regarding the Paid Sick Leave law, similar to other required workplace postings (e.g., Minimum Wage, FMLA, etc.).  A copy of this poster is available on the Labor Commissioner’s website:

http://www.dir.ca.gov/dlse/Publications/Paid_Sick_Days_Poster_Template_(11_2014).pdf

Although the Paid Sick Leave law also amended Labor Code section 2810.5 to require that employers provide individual employees with a written notice on the Paid Sick Leave law, public employers are exempt from Labor Code section 2810.5.  Therefore, public employers are not required to provide such an individual written notice to their employeesSee Labor Code section 2810.5(c)(1).

Note:

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

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

 

 

Employee Time Spent Going Through Security Checks Is Not Compensable Work Time

Posted in FLSA, Wage and Hour

hourglass-small.jpg

This blog post was authored by James E. Oldendorph Jr.

On December 9, 2014, the U.S. Supreme Court unanimously held that workers need not be paid for the time spent waiting to and actually undergoing security screenings while leaving their work facility.  (Integrity Staffing Solutions, Inc. v. Busk (Dec. 9, 2014, No. 13-433.)  This decision reverses the judgment of the Ninth Circuit Court of Appeals.

Integrity Staffing Solutions, Inc. (“Integrity Staffing”) provides warehouse space and staffing to companies such as Amazon.com.  In order to prevent theft, Integrity Staffing required its warehouse workers who retrieved and packaged orders for Amazon customers to undergo a security screening before leaving the warehouse each day.  Jesse Busk and Laurie Castro were Integrity Staffing employees who worked in warehouses in Nevada.  In 2010, they sued Integrity Staffing seeking back pay and overtime under the Fair Labor Standards Act (“FLSA”) for the time spent passing through these security screenings.  They alleged that they spent up to 25 minutes each day waiting to be searched, removing their wallets, keys, and belts, and passing through metal detectors.

Under the 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.  Despite countless lawsuits regarding these issues, courts have inconsistently interpreted these terms and what is required to be paid work time under the FLSA.

Here, the Ninth Circuit had focused on the fact that the company required its employees to pass through these security screenings.  And, because the screenings benefited the employer by preventing theft, the Court of Appeals concluded that the screenings were indispensable to the employees’ work activities.  Last week, the Supreme Court disagreed and held that Integrity Staffing’s security screenings were postliminary activities and not required to be paid.

The Supreme Court focused on two factors.  First, the security screenings were not the principal activity which the employees were employed to perform.  The company employed the workers to retrieve items and ship orders to Amazon customers – not to undergo security screenings.

Second, the screenings were not “integral and indispensable” to the employees’ job duties as warehouse workers.  That is, the employees could still perform their job duties even if the company stopped conducting the screenings.  The Court noted that the FLSA analysis should be focused on whether the activities are tied to productive work, and not whether the employer requires the activity.

The employees argued that Integrity Staffing could have reduced the wait time by having more security screening lines or staggering the times employees got off of work.  But the Court found that these arguments are better suited for the collective bargaining table rather than an FLSA court case.

While this decision has limited applicability to most public employers who have very limited, if any, security screenings, this ruling does provide insight as to what is truly considered compensable work time.  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 on what the employer requires or whether the activity benefits the employer.

FLSA lawsuits are still on the rise and these cases are very fact-specific.  Employers should contact legal counsel before applying these rulings to their specific work situations.

California Supreme Court Allows Hearing Officers to Rule on Pitchess Motions in Administrative Disciplinary Appeal Hearings

Posted in Public Safety Issues

Gavel-and-Flag.jpgThis post was authored by Alex Polishuk.

On December 1, 2014, the California Supreme Court issued its decision in Riverside County Sheriff’s Department v. Stiglitz, ruling that a hearing officer in an administrative appeal hearing has the authority to rule on a Pitchess motion for discovery of peace officer personnel records. The Court largely relied on the phrasing of California Evidence Code section 1043 which expressly allows Pitchess motions to be filed with an appropriate “administrative body.”

The underlying facts of the case involve Kristy Drinkwater, a former correctional deputy with the County, who was terminated for falsifying time records in order to obtain unearned compensation.  Per the terms of an applicable memorandum of understanding, Ms. Drinkwater appealed her termination to a hearing officer, Jan Stiglitz.  During the appeal hearing, Drinkwater submitted a Pitchess motion to Stiglitz requesting discovery of disciplinary records of other sworn personnel who were investigated for similar misconduct but allegedly received less discipline.  Initially, Stiglitz denied the motion because Drinkwater did not identify the employees whose records were sought.  In a renewed motion, Drinkwater identified the employees by name and sought only redacted records.  Stiglitz found good cause and ordered production. The County filed a petition for writ of administrative mandate seeking to compel Stiglitz to vacate his decision.  However, shortly before the trial court was set to rule on the writ petition, the Court of Appeal decided Brown v. Valverde (2010), holding that Pitchess discovery of confidential peace officer personnel records is not available in a DMV administrative license suspension hearing.  Relying on Brown, the County argued that only a judicial officer may rule on a Pitchess motion.  The trial court agreed with the County and Drinkwater and her union appealed.  The Court of Appeal reversed and ruled that a hearing officer in an administrative appeal of the dismissal of a correctional officer has the authority to rule on a Pitchess motion.  Now the Supreme Court has affirmed the Court of Appeal’s ruling.

At the root of the Supreme Court’s lengthy and detailed decision is the language of the Pitchess statutes, i.e. Evidence Code sections 1043 and 1045.  The Court explains that a Pitchess motion consists of a two-step process.  First, Evidence Code section 1043 requires the moving party to establish good cause for discovery of the requested records, which are confidential under Penal Code section 832.7. Next, if good cause is established, Evidence Code section 1045 requires an in camera hearing, i.e. a private review, to determine the relevance of the requested documents.  Notably, Section 1045 repeatedly refers to “the court” as the entity that must conduct the in camera review, determine relevance, and issue appropriate protective orders.

In its decision, the Supreme Court stresses that the inclusion of the term “administrative body” in Section 1043 reflects the Legislature’s intent that administrative hearing officers are authorized to rule on Pitchess motions.   The Court explains that the repeated use of the term “court” in Section 1045, cannot nullify the term “” in Section 1043.   The Court remarks that “[i]f the Legislature intended that only the superior court could rule on Pitchess motions, it could easily have said so.”  The Court also takes the position that if an administrative hearing officer could not rule on a Pitchess motion then Section 1043 authorizes an “idle act,” i.e. filing a motion with a body not authorized to rule on it.  The Court adds that had the Legislature intended that Pitchess motions could only be conducted in the superior court, it could have but did not provide a mechanism to transfer a motion from an administrative proceeding to the superior courts.  The Court ruled that by permitting filing with an appropriate administrative body in Evidence Code section 1043, the Legislature intended to allow administrative hearing officers to decide such motions without court intervention.

Additionally, the Court remarks that its conclusion is consistent with the purpose of the POBRA, which is to provide peace officers an opportunity to administratively appeal an adverse employment decision.  The Court also states that its ruling was in line with the Pitchess scheme of providing a balance of interest between a litigant’s discovery interest with an officer’s confidentiality interest.

It’s the Most Wonderful Time to Minimize Liability

Posted in Employment, Workplace Policies

Happy HolidaysIt is that time of the year again… the holiday season.  Time to celebrate!  Many employers throw festive holiday or year-end parties complete with food, alcohol and entertainment.  According to a Society of Human Resource Management Survey on Holiday/Year End Activities, in recent years about two-thirds of organizations have held holiday parties for their employees.  However, as we have pointed out in years past, sometimes holiday parties can create legal liability for the employer.  According to one recent study, about one in three employers reported some misconduct at holiday parties.  Below we provide a few tips to minimize the potential for a new year legal hangover.

If the party is going to be off-site, as about 60% of them are, choose an appropriate venue and entertainment for your organization.  This may sound obvious, but avoid the local dive bar or franchise known for scantily-clad servers.  Avoid controversial entertainment such as MCs, comedians or music with vulgar language or messages that some employees may find offensive.  Also, mistletoe is an invitation for harassment claims, so avoid mistletoe as decoration.

The relaxed atmosphere and eat, drink and be merry attitude at holiday parties make it more likely that employees will feel less inhibited than they normally do.  Employees tend to dress more provocatively than usual.  Employees may over-indulge in alcohol consumption. Employees may feel more comfortable making inappropriate or off-color remarks about the appearance, gender, sexual orientation, race, ethnicity or religion of others.  An employee may feel emboldened to make a sexual advance towards another employee that may or may not be wanted.  All of these things could lead to claims of harassment, discrimination or even injuries to employees or other third parties.

For these reasons, before the party, consider taking the time to remind employees of the employer’s policies on alcohol and drugs, harassment and discrimination, and workplace violence, as well as dress code and relationship policies.  Employees should be advised that these policies apply at the holiday party which is an employer-sponsored event and that misconduct at the party in violation of these policies could result in discipline.  In addition, supervisors and managers should be reminded of their reporting obligations with respect to harassment, discrimination and workplace violence.  If any misconduct is reported, it should be promptly investigated.

Not surprisingly, excessive alcohol consumption is often related to holiday party misconduct. Intoxicated employees have impaired judgment.  So, if you choose to serve alcohol at the holiday party, consider taking the following steps in planning the party to minimize risk of misconduct or injury.

  • Hire professional bartenders who are trained to deal with serving guests who may be excessively consuming alcohol.  Don’t make an employee responsible for serving drinks.
  • Consider serving beer and wine and avoiding hard alcohol.
  • Consider having a drink ticket system or cash bar to limit alcohol consumption.
  • Avoid spiked punch or mixed alcoholic beverages that disguise the amount of alcoholic content in each drink.
  • Serve food containing starches or protein to slow alcohol absorption.
  • Make non-alcoholic beverages available and stop serving alcohol well before the party-goers will be leaving the party.
  • Designate a supervisor or manager (who is exempt under the FLSA) to provide discrete oversight over employees during the party.
  • Advise employees who intend to drink to do so responsibly and plan for safe transportation home. Encourage use of cabs, designated drivers and, if possible, consider providing transportation for employees who have been drinking.

Taking steps to plan an appropriate holiday party can go a long way towards minimizing risk of liability so that everyone can enjoy this wonderful time of year.