California Public Agency Labor and Employment Blog - Useful Information for Navigating Legal Challenges

This guest post was authored by Judith S. Islas

The Court of Appeal’s decision in Sanchez v. Swissport, Inc., is a case of widespread importance, impacting the rights of employees disabled by pregnancy and pregnancy related-conditions.  In this case, the Court considered the plight of Anna Sanchez.  After becoming pregnant, she was diagnosed with a high risk pregnancy and placed on bed rest for the remaining eight months of her pregnancy.  Her employer, Swissport, provided Sanchez the required four months pregnancy disability leave.   After the four month leave ended, Sanchez was unable to return to work and requested an extended leave of absence throughout the remainder of her pregnancy.  Swissport did not agree to additional leave and terminated Sanchez’s employment because she could not return to work.

Sanchez sued for pregnancy and pregnancy related  disability discrimination, failure to engage in the interactive process, and a variety of related claims.   Sanchez claimed that after she exhausted the four months of pregnancy disability leave, Swissport had an obligation to provide her additional leave as a form of reasonable accommodation under the Fair Employment and Housing Act (“FEHA”). Swissport disagreed.  It argued that because the pregnancy disability laws expressly provide for four months leave, the leave caps at four months, and once the four months leave expired, Sanchez had no other protection under FEHA.  Therefore Swissport, argued,  it had the right to terminate Sanchez when her four months of pregnancy disability leave expired and she could not return to work.

The appellate court decisively rejected Swissport’s argument.   The Justices pointed to the language of the pregnancy disability laws, which expressly state that its remedies augment, rather than supplant, the other remedies in FEHA. Pregnancy disability leave is contained within the broader provisions of the FEHA and is only one of the protections provided to pregnant employees.  Pregnancy disability leave entitles an employee disabled by pregnancy up to four months of leave regardless of any hardship to  the employer.  The obligation to reasonably accommodate a disabled employee due to pregnancy or some other condition is a separate obligation under the FEHA. The obligation to reasonably accommodate may include a leave of absence of no fixed duration, provided that leave does not impose an undue hardship on the employer.   The Court pointed to multiple cases holding that unpaid leave for extended periods well beyond four months can be a required form of reasonable accommodation.   In this case, Swissport had an obligation to engage in the interactive process with Sanchez to determine whether additional unpaid leave was a reasonable accommodation or whether it imposed an undue hardship on Swissport.

What This Means to Employers

Employers cannot terminate employees who are disabled by pregnancy or pregnancy related conditions after the four months of pregnancy disability leave expires without extending additional rights under the Fair Employment and Housing Act.  If the employee continues to be disabled, and cannot return to work, the employer must engage in the interactive process to determine whether additional leave is a form of reasonable accommodation, and/or other possible types of reasonable accommodations.  Employers may also have a separate obligation under their own personnel rules or memoranda of understanding to provide additional leave beyond four months.  Employers should promptly consult with their legal counsel where an employee exhausts the four months pregnancy disability leave and is still unable to return to work. 

With the beginning of each new year, we make resolutions that often involve improving ourselves:  lose weight; eat healthier; get organized.  The new year is also a good time for personnel and human resources directors, managers and analysts to resolve to make their agencies an even better place to work and to reduce risk.  Here are five resolutions for public employers to consider adopting.            

1.  Get to Know PEPRA

The California Public Employees’ Pension Reform Act of 2013 went into effect at the beginning of the year.  This new law reforms the retirement systems of most public employers.  While portions of PEPRA apply to current employees, a majority of this new legislation applies to those who are “new members”.  PEPRA sets forth new requirements for “new members” regarding retirement formulas, employee contributions, final compensation, and pensionable compensation.  It also changes the playing field as to air time, post-retirement work restrictions, supplemental benefit plans and health insurance vesting.  If your agency has not taken steps to learn PEPRA yet, resolve to get to know this new law now.

2.  Review and Update Personnel Rules, Policies and Regulations

In the last few years, there have been many changes to federal and state employment laws.  These changes cover a wide variety of areas and include both new laws and amendments to existing ones.  For example, the California Fair Employment and Housing Act was amended in each of the last two years to include genetic information and gender expression as protected classifications.  Also, the California Fair Employment and Housing Commission issued new pregnancy disability regulations that went into effect at the end of 2012.  These are only two of dozens of newly adopted or amended employment laws.  Yet, despite these changes, many public employers have not updated their personnel rules, policies or regulations to reflect them.  Public employers are encouraged to audit their policies to ensure that they reflect current law. 

3.  Conduct an FLSA Audit

Wage and hour litigation continues to thrive in California.  In addition, a search of the U.S. Department of Labor’s (“DOL”) Enforcement Database shows that the agency has investigated thousands of employers in the last five years for potential violations of the Fair Labor Standards Act (“FLSA”) including many California public agencies.  Because of these risks, public employers are encouraged to conduct an FLSA audit.  The audit is the only reliable means an employer has to determine whether it is complying with the FLSA’s many requirements and regulations. It is only through an in-depth investigation into an employer's time keeping and compensation practices, and an analysis of how those particular practices measure up to FLSA requirements, that an employer can be fully assured of its compliance with the FLSA.

4.  Learn About the Affordable Care Act

The federal Patient Protection and Affordable Care Act (“ACA”) is being rolled out over several years.  For instance, the ACA eliminated reimbursement for over-the-counter drugs from health savings accounts in 2011.  The following year, ACA required employers to list certain health cost related information on W-2 forms and to provide employees with a summary of benefits and coverage.  This year the health savings account maximum contribution was lowered to $2,500.  Finally, employers will start to see the implementation of health care exchanges this year.  These exchanges are a key component of the ACA and are required to be operational by January 1, 2014.  Since key portions of the ACA have not taken effect yet, there is still time for employers to understand their obligations under this new law.     

5.  Understand Technology’s Impact on Work

Every year brings new and exciting advances in technology. These advancements have changed the way work is performed.  It has made employees more efficient, allowed them to work outside of the office, and to communicate with one another anywhere and at any time.  However, the use of these tools also has significant employment implications.  Giving non-exempt employees access to emails or remote computer access creates potential problems for employers under the FLSA.  Because the time spent checking emails and/or working could be considered hours worked, employees who engage in these activities outside of their regular work hours could have a claim against their employers for unpaid wages.  In addition, the use of social media by employees to discuss work-related matters can implicate privacy, free speech and disciplinary issues. 

Carrying out these five resolutions will go a long way to strengthen your agency and help reduce the risk of lawsuits.  If your agency needs help with implementing these resolutions, our offices are ready to assist.

Harris v. City of Santa Monica has been pending before the California Supreme Court since 2011.  Melanie Poturica and I submitted an amicus brief in the matter, supporting the City’s arguments.  On December 4, 2012, the Supreme Court held oral arguments and will issue its opinion within 90 days, in 2013.

In Harris, plaintiff disclosed to her supervisor that she was pregnant before she was terminated but while she was still on probation as a new hire.  After the City terminated her employment, she sued it alleging that she was fired for discriminatory reasons; i.e., because she was pregnant.  The City’s position was that she was terminated for poor performance.  

In October 2004, the City hired Wynona Harris as a bus driver trainee.  Harris was promoted to probationary part-time driver after having an accident.  After her promotion, she had yet a second bus accident.  Harris also failed to give management sufficient notice that she would be missing a shift. In March 2005, Harris’s supervisor gave her a three-month written performance evaluation with a “further development needed” rating.  Then Harris, again, failed to give adequate notice that she would miss a shift.  The City then decided to release Harris from her probationary position.  About one week later, Harris told her immediate supervisor that she was pregnant.  Her supervisor’s response was: “Wow.  Well, what are you going to do?  How far along are you?” Two days later, the City notified Harris of her termination. Harris subsequently sued the City for pregnancy discrimination, based in part on her supervisor’s alleged discriminatory remarks, and the case went to trial.

The issue before the Supreme Court is the application of the mixed-motive jury instruction in employment litigation brought under California’s Fair Employment and Housing Act.  In a mixed-motive case, to establish “because of” causation, the plaintiff’s initial burden is to prove that discrimination was “a” motivating factor in the adverse employment action (i.e., termination in this case) even though other factors may also have been involved.  The employer then has an opportunity to demonstrate that legitimate reasons came into play so as to defeat liability.  The trial court refused to instruct the jury on a mixed-motive defense.  The City challenges the trial court’s decision because it deprived it of its right to have the jury determine, or even consider, whether the City proved legitimate, non-discriminatory reasons for terminating Harris.  In other words, the jury was not instructed to determine whether the City would have terminated Harris for legitimate nondiscriminatory business reasons despite its knowledge that she was pregnant before it gave her notice of her termination.

We will continue to monitor this case and update you when the Court issues its opinion.

Last month, the National Labor Relations Board, the federal agency overseeing private sector labor relations, issued its much anticipated decision in Karl Knauz Motors, Inc dba Knauz BMW and Robert Becker (“Knauz BMW”).  The Board held that the BMW dealership’s “courtesy” rule, which among other things prohibited employees from making remarks that were “disrespectful” to the dealership, was an invalid restriction on what could constitute employee “concerted activities” for their “mutual aid or protection.”  Section 7 of the National Labor Relations Act (“NLRA”) prohibits employers from improperly restricting such employee concerted activities, including employee speech and discussion that meets the statutory definition, i.e., that addresses qualifying workplace issues.  As described below, Knauz BMW considers “concerted activities” in the rapidly developing context of social media.

The NLRA was passed in the midst of the Great Depression as part of Franklin D. Roosevelt’s New Deal.  The NLRA gave essentially all private sector workers in the country the right to have labor unions as their bargaining representatives and governed the bargaining relationship between unions and management.  But the Act also gave some substantial protections to employees who worked in non-union environments.  Section 7 of the Act gives private sector employees in general the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  Since its creation, Section 7 has provided employees with rights in some unique situations.  In 1962, for example, in NLRB v. Washington Aluminum Co., the U.S. Supreme Court considered the case of employees in a Baltimore machine shop who had made the collective decision to walk off the job because, as one described, it was “too damned cold to work” in their facility.  (The high that day was 22 degrees, the low was 11 degrees, and the facility’s chief source of heating had broken.)  There was testimony that part of the reason for the walk-out was to protest the conditions in the hope management would improve them.  The Supreme Court concluded that the employees’ spontaneous decision as a group to walk out constituted protected concerted activity under Section 7, so that the employer had acted in violation of the Act in subsequently firing them.  The employer had to reinstate all the employees. 

Courts have subsequently held that this “concerted activity” for “mutual aid or protection” extends not just to employee action, but to employee discussions and speech that relate to workplace issues within the scope of the statute.  Section 7 thus creates a free speech right, of a limited sort, for private sector employees as against their employers.  Its appearance over the decades in the non-unionized workplace has been sparse in the case law, possibly because the Section 7 rights cannot be asserted by trial lawyers in traditional court proceedings.  Instead, they must be asserted through unfair labor practice charges instituted through the NLRB.  Also, in workplaces without unions (which is much of the nation’s private sector today), few employees know about these Section 7 rights. 

In recent years, however, the NLRB has brought about a resurgence in this area of the law, targeting non-unionized workforces.  First, the NLRB has made an effort to advise all private sector employees of their NLRA rights, by attempting to put in place a requirement that employers – even if non-unionized – put up posters advising employees of their NLRA rights.  (Some federal courts found this poster requirement to be outside the scope of the NLRB’s power, and the requirement has been stayed pending further judicial determination.) 

In addition, the NLRB has aggressively enforced Section 7 in the new area of social media.  Starting in the last several years, NLRB regional offices across the country have begun issuing complaints in response to unfair labor practice charges by employees who allege they were terminated for harsh, joking, or critical comments about their employers made on their Facebook pages or other social media sites.  Our blog has covered these cases extensively. Examples of these cases are Hispanics United of Buffalo, which involved termination of employees who had posted on Facebook criticisms of workload and staffing decisions of their employer, and American Medical Response of Connecticut, Inc., in which an ambulance company employee was terminated for posting on Facebook vulgar and negative comments about her supervisor.

Knauz BMW was one of these early social media cases.  It happens to be the first involving an actual firing based on social media posts to be heard by the full NLRB in Washington D.C.  In Knauz BMW, a sales employee at a BMW dealership in Illinois, Robert Becker, posted on Facebook (1) remarks critical of his dealership’s choice of food and beverage for an event to celebrate a new car line (hot dogs from a cart and 8-ounce water bottles), and (2) remarks and photographs that made light of an accident at a Land Rover dealership also owned by his employer, in which the underage son of a customer drove a vehicle into a pond.  Management learned of these posts, and directed that the employee remove them, which he did.  Several days later, according to the evidence in the administrative hearing, a manager called the employee into a meeting and tossed copies of the posts in front of him, asking him “What were you thinking?”  The employee was subsequently terminated.

The NLRB’s regional office issued a complaint on the ground that the dealership had infringed upon Becker’s Section 7 rights.  An administrative law judge at the Board conducted a hearing and concluded that the employee’s comments on Facebook about the quality of food at the opening event did qualify as protected concerted activity under Section 7, because the quality of the event as a whole would have an effect on the sales commissions salespersons like Becker could earn.  But the administrative law judge ultimately upheld the employee’s termination, finding that the management had decided to terminate the employee based not on the comments about the food and beverage at the event but because of the photos and off-color jokes about the accident at the Land Rover dealership.  The judge found that the speech on Facebook about the accident was not protected concerted activity. 

On September 28, 2012, the full Board in Washington D.C. agreed with the administrative law judge and determined that the termination was lawful.  What dominated the Board’s decision, however, was not the termination but another issue the regional office had asked the administrative law judge to decide – whether provisions in the dealership’s employee handbook were so broad that they in themselves operated to inhibit employees in their exercise of Section 7 rights, so that the provisions were unlawful.  The administrate law judge had determined that the dealership’s “Courtesy Rule,” and a few other broad provisions, violated Section 7.  The Courtesy Rule provided:

Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees.  No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.

The majority of the Board agreed with the administrative law judge.  The Board described that prior precedent required that any workplace rule which “reasonably tends to chill employees in the exercise of their Section 7 rights” violates the NLRA.  It found the BMW dealership’s Courtesy Rule unlawful “because employees would reasonably construe its broad prohibition against ‘disrespectful’ conduct and ‘language which injures the image or reputation of the Dealership’ as encompassing Section 7 activity, such as employees’ protected statements -- whether to coworkers, supervisors, managers, or third parties who deal with the Respondent -- that object to their working conditions and seek the support of others in improving them.”  The Board observed that nothing in the policy or handbook advised employees that Section 7 rights were excluded from this prohibition.  The Board also observed that an employee reading the policy would “reasonably assume” an employee’s statements of protest or criticism to be “disrespectful” or “injur[ious] to the reputation of the dealership” and thus prohibited by the Courtesy Rule.  

A few weeks before the full Board decided Knauz BMW, it issued a decision that did not involve a termination, but that does provide guidance on private employee free speech on social media in light of Section 7.  In Costco Wholesale Corp, on September 7, 2012, the Board held that Costco’s social media policy prohibiting the posting of any statements that “damage Costco . . . defame any individual or damage any person’s reputation” violated Section 7 by chilling employee’s speech that could constitute protected concerted activity.

What do these NLRB decisions mean for the public sector?  They are not binding on public sector employers, whose labor relations standards are instead governed by state law.  In addition, the California laws governing public sector labor relations have different language on employee rights.  Nevertheless, PERB and California courts interpreting these statutes often look to federal authorities for general guidance, and it is worthwhile for public sector employers to be vigilant of the private sector agency rulings and also to review employment policies that may affect employees’ abilities to criticize their workplace, complain about pay or workplace safety issues, or complain about the operations of their agency.  

Disciplining employees is a necessary part of employment.  However, employers often struggle with employees who engage in misconduct, especially where the employer believes the employees should be terminated.  Recently, we came across the story of a Florida police officer which highlights the importance of conducting a thorough investigation before imposing discipline.

German Bosque is a Sergeant with the City of Opa-locka’s Police Department.  In the nearly 20 years he had worked with the Department, Bosque had been fired at least six times.  The terminations were based on a wide range of misconduct including use of excessive force, failing to turn in arrest reports, hiding drugs in a police car, stealing from suspects, falsifying police reports, calling in sick in order to take vacation in Mexico, and engaging in unauthorized police chases, one of which resulted in the deaths of four people.  In addition, Bosque himself had been arrested and jailed three times.  

Although this misconduct would seem sufficient to support termination, Bosque managed to be reinstated with full back pay each time.  Bosque reportedly bragged about his ability to work for a law enforcement system that allows bad cops to remain employed, even when facing criminal charges.  Currently, Bosque is at home on paid administrative leave pending another investigation into misconduct charges. 

The press covering Bosque’s story identify a variety of reasons why he has been able to win his job back repeatedly.  These reasons range from the Police Department’s lack of resources to corruption at the City.  However, the City’s failure to investigate Bosque’s misconduct properly provides the most important lesson for public employers.  Press reports indicate that the City either mishandled the investigations into Bosque’s misconduct or failed to investigate at all.  As a result, the disciplinary charges against Bosque were either dropped or overturned due to insufficient evidence. 

A thorough investigation should be conducted when a manager or supervisor reasonably believes that an employee has engaged in misconduct.  If the employee appeals the agency’s disciplinary action, the agency will have the “burden of proof”, meaning that it must prove the truth of the allegations supporting the discipline by a preponderance of the evidence, that they are more likely true than false (or more than 50%).  Therefore, an investigation should be done to determine if the facts supporting discipline are more likely than not true.  A manager’s or supervisor’s reasonable suspicion will not be enough to sustain a disciplinary action. 

Thorough investigations include compiling details about the misconduct, including the names of witnesses, dates, times, and locations.  Thus, when conducting an investigation, any documents and physical evidence should be gathered and reviewed.  This can include letters, emails, witness statements, photographs or videos.  In addition, witnesses should be interviewed to discover the factual details of the alleged misconduct.  Finally, managers and supervisors should always coordinate with the agency’s human resources or personnel department when conducting workplace investigations regardless of whether an outside investigator will be used.  Consulting with human resources/personnel will help determine the scope of the investigation to be conducted and who should conduct the investigation. 

Agencies who have questions about conducting investigations should consult legal counsel.  You are welcome to contact any one of LCW’s offices.  LCW’s workbooks Evaluation and Discipline and Disciplinary and Harassment Investigations also contains tips and guidelines for conducting investigations.

This guest post was authored by Alison L. Carrinski

Last year we reported on the case U.S. v. Nosal, in which the U.S. Ninth Circuit Court of Appeals held that an employee may be criminally liable when he or she misuses employer data in violation of the employer’s computer use policy.  Reversing course, the Ninth Circuit recently reheard this case en banc and narrowed the scope of the Computer Fraud and Abuse Act (CFAA) to apply when an employee hacks into a computer, but not when an employee misuses information that employee already has authorization to access.

David Nosal, a former employee of an executive search firm, convinced some of his former colleagues to use their log-in credentials to download confidential company information, including source lists and contact information from a confidential database.  The employees handed this confidential information over to Nosal.  While the employees had authorization to access the information, they violated the company’s policy prohibiting disclosure of confidential information.

The U.S. government charged Nosal with, among other things, violating the CFAA for aiding and abetting his former colleagues to “exceed [their] authorized access” with intent to defraud the company. 

The issue in this case was the meaning of “exceeds authorized access.”  Nosal argued that this term refers to “hacking”—where an employee who only has access to some data on a computer “hacks” into or accesses, other data.  The government argued, however, that this term also includes situations where an employee has unrestricted physical access to a computer but uses the information in an unauthorized manner.

The Ninth Circuit Court of Appeal, sitting as a panel of eleven judges, agreed with Nosal’s narrow interpretation of what “exceeds authorized access” means under the CFAA.  The Court characterized the intent of the law to apply to traditional computer “hackers”—those that break into data without authorization—rather than those who misappropriate data they already have access to.  The Court noted that in 1984 Congress enacted the CFAA to combat the growing problem of computer hacking, rather than the more recent issue of misappropriation of data.

In reaching its conclusion, the Court also examined how the term “exceeds authorized access” appears throughout the CFAA.  One section of the law makes it a crime to “exceed authorized access” of a computer connected to the Internet, whether or not there is criminal intent.  The Court reasoned that if “exceeds authorized access” included misusing data that users already had authorization to access, millions of employees would find themselves in violation of this provision of the CFAA.  The Court cited numerous examples of obscure private policies of large, frequently visited websites, such as Amazon, Facebook, or eBay, which users unknowingly violate without repercussion all the time.  If an expansive interpretation of the CFAA applied, these website users may become criminally liable—the Court determined Congress did not intend such a scenario.

The CFAA creates a private right of action for employers.  However, this ruling clarifies that employers may not invoke the CFAA when an employee misuses data that he or she has authorization to access.  Nonetheless, an employer may discipline an employee for violating the employer’s computer use policy.  Therefore, it is important for employers to create, maintain and train employees on a comprehensive computer use policy that places clear limits on an employee’s use of agency data.

The Ninth Circuit Court’s narrow reading of the CFAA provision diverges from that of other circuit courts, therefore, there is a chance the U.S. Supreme Court may review this issue.

This guest post was authored by Meredith Karasch

We have all heard about the scandal at Penn State that brought down college football royalty.  We cringe at what happened (or didn’t happen).  We agree there was a moral obligation to report child abuse.  However, moral obligation aside, all public and private entities need to know that, if this situation occurred in California, anyone who failed to report suspected child abuse may not only be out of a job.  They would be prosecuted. 

I know what you are thinking; “This doesn’t apply to us, we are not a school.”   Maybe you are not even a public agency.  Please keep reading.  All public and private entities must know that everyone who works with minors is required to report any suspicion of child abuse when they learn of it “within the scope of his or her employment.”    

The California Penal Code contains provisions detailing who are mandated reporters in the Child Abuse and Neglect Reporting Act.  You may be surprised about the scope of those who are “mandated reporters.”  The list includes far more than teachers and other school district employees.  Here is a partial list:

• An administrator of a public or private day camp;
• An administrator or employee of a public or private youth center, youth recreation program, or youth organization;
• An administrator or employee of a public or private organization whose duties require direct contact and supervision of children;
• Any employee of a county office of education or the State Department of Education, whose duties bring the employee into contact with children on a regular basis;
• A public assistance worker;
• A peace officer or police department employee;
• A non-volunteer firefighter;
• A physician, surgeon, psychiatrist, psychologist, dentist, resident, intern, podiatrist, chiropractor, licensed nurse, dental hygienist, or optometrist;
• An EMT or paramedic;
• A coroner or medical examiner;
• A commercial film and photographic print processor;
• An animal control officer;
• A clergy member.

In order to trigger the duty to report, a mandated reporter must actually know or have an objectively reasonable suspicion that abuse or neglect has occurred.  A mandated reporter must make a telephone report to a child protective agency immediately and follow up with a written report in 36 hours.  Reporting to a supervisor does not satisfy the reporter’s duty.  People who report suspected abuse generally have immunity from liability.  On the other hand, a mandated reporter who fails to report an incident of suspected child abuse “is guilty of a misdemeanor punishable by up to six months confinement in a county jail or by a fine of $1,000 or both.” 

We would like to use this as a teachable moment:  this situation, and the abuse itself, might have been prevented if everyone who was a witness or heard suspicions from a witness knew exactly what to do.  All entities should train their mandated reporters regarding their duties, as well as the procedures they must follow to fulfill those duties.  

Does it ever feel like managing the workplace can be like keeping the peace between children fighting in the back seat of the family car?  This was the feeling in a recent out-of-state case where a Court held that an employer was not liable for the alleged hostile work environment created amongst bickering co-workers or for retaliation because the employer promptly investigated each and every complaint and responded appropriately.

Vance was a part-time catering assistant at a University.  She complained to administration that a co-worker had used a racial epithet to refer to her and/or African-American students and had boasted that her family had ties to the Ku Klux Klan. The University immediately investigated, corroborated the complaint, issued the co-worker a written warning, and had two supervisors counsel the co-worker.

From there, the story devolved into a series of complaints by Vance against her co-workers and vice versa that reminds one of children fighting. The complaints included:

• Co-worker blocked Vance’s exit from elevator
• Co-worker complained Vance said “you are an evil bitch”
• Co-workers were allegedly slamming pots and pans down in the kitchen
• Co-worker said the word “payback” to Vance
• Co-workers “glared” at Vance
• A supervisor “mean-mugged” Vance
• Vance was given diminished work duties and less overtime after her promotion
• Vance told co-worker “Just the beginning bitch-you better watch your house”
• Co-workers smiled at Vance and gave her “weird” looks
• Co-worker said to Vance “are you scared?”
• Co-worker splattered gravy on Vance

For each of these complaints, the University instigated an investigation.  In each investigation, the University found the alleged conduct had not occurred, or that it was a case of “he said – she said,” in which case the University counseled both employees. Even in instances where the alleged conduct could not be sustained, the University reminded Vance and her co-workers to treat each other with respect.

In the midst of all of this, Vance applied for and accepted a promotion to a full-time caterer position. Her duties remained somewhat the same, but also included other duties.  Vance was eligible for overtime, but because she took some FMLA leave, called into work sick on many occasions, and left work early, she often did not have enough regular hours to receive overtime.

Vance filed a lawsuit against the University for, among other things, hostile work environment based on race and retaliation, both in violation of Title VII of the Civil Rights Act. After summary judgment in favor of the University, Vance appealed and the Seventh Circuit Court of Appeals upheld the decision.

Other than the initial complaint about the co-worker’s use of a racial epithet, the Court struggled to find that any of the other complaints alleged conduct motivated by race.  Be that as it may, the Court found that there could not be any employer liability.  Where co-workers are the ones culpable for making a work environment hostile, liability only attaches under Title VII where the employer has been negligent either in discovering or remedying the harassment.

At every turn, the University investigated each complaint, involved the appropriate supervisory personnel, and took appropriate remedial action based on the facts and circumstances known to the University. 

“As we have said before, prompt investigation is the ‘hallmark of reasonable corrective action."

The Court concluded Vance’s claim that the University retaliated because of her complaints by promoting her, diminishing her work duties and denying her overtime, was similarly without merit.  The promotion was sought by Vance and was not an adverse employment action. Her duties changed to the extent of that promotion and were similar in nature to another employee in the same position.  Because of Vance’s frequent leaves, she worked fewer regular hours in order to even qualify for overtime. She failed to establish that she should have received the same overtime hours as her counterpart. 

It cannot be stressed enough that, when employers are put on notice of a potential complaint of hostile work environment, discrimination or retaliation, they must immediately investigate the complaint.  If the investigation reveals any wrongdoing, you must take appropriate remedial action.  Even if the investigation does not reveal wrongdoing, consider other reasonable steps, such as workplace harassment training for all employees in the affected department or division.  These few measures will insulate the employer from liability or arduous jury trials for conduct perpetrated amongst co-workers.

LCW offers a comprehensive guide for employers on conducting Disciplinary & Harassment Investigations, as well as training and materials on Preventing Workplace Discrimination, Harassment and Retaliation.

There was a collective sigh of relief from employers and school districts alike this week when a California Court of Appeal overturned a personnel commission’s decision to reinstate a middle school administrator after he posted a pornographic and obscene ad on the popular Craigslist website soliciting (free) sex.

Frank Lampedusa was a tenured dean of students in the San Diego Unified School District when he placed an ad on Craigslist stating in obscene, vulgar and albeit misspelled and grammatically incorrect phrases that he wished to engage in sexual relations with another adult.  The ad also contained pictures of Lampedusa’s face and genitalia.  An anonymous parent of a student reported the ad to San Diego police who notified the District. Lampedusa was placed on paid administrative leave and served with notice of intent to dismiss for “evident unfitness for service” and “immoral conduct,” among other charges.

Certificated public educators may appeal their termination to a three-member commission on professional competence.  Such a commission ordered Lampedusa reinstated, reasoning that the District failed to establish a nexus between his conduct and his performance as an educator.  The District sought relief in Superior Court and ultimately the Court of Appeal.

The Court of Appeal held that the commission’s decision must be set aside and that Lampedusa’s conduct did in fact constitute grounds for dismissal, applying the “Morrison factors” which are used to determine whether a nexus exists between misconduct and the impact on performance as an educator.

The Court surprisingly gave weight to the hearsay evidence of the anonymous parent complaint to find that the conduct had an adverse effect on students.  Nonetheless, Lampedusa’s principal also testified that she lost confidence in Lampedusa’s ability to serve as a role model for students, thus establishing an adverse effect on other educators.  The Court also gave weight to the fact that the conduct was not remote in time and that Lampedusa served as an administrator and educator in a middle school.  Lampedusa’s conduct was further aggravated by the fact that he posted graphic, pornographic photos, and obscene written material on a website open to the public, that he admitted to posting similar ads in the past, that he would probably post tamer ads in the future, and that he believed he had not done anything immoral.

The Court also relied on evidence that Lampedusa did not take responsibility for his conduct, but rather stated that he expected parents and students to take care not to look at such ads on Craigslist (reasoning that ads are preceded by an advisory that the content is explicit and that users should be at least 18 years of age).  Lampedusa also claimed to believe that, if a student saw his ad, it would not affect his ability to teach them effectively.

The Court also found that Lampedusa’s conduct was immoral because it evidenced indecency and moral indifference. The Court further noted that disciplining Lampedusa for publicly posting his ad did not infringe on his constitutional rights or the rights of other teachers.  These factors established evident unfitness for service. 

This case is a victory for employers, not to mention students, parents and our schools.  It is worth noting here that this educator was not disciplined for his private sexual conduct and certainly, such conduct between two consenting adults was not the issue.  It is the fact that this educator, in poor judgment, decided to post obscene and pornographic statements and photos publicly that justifiably cost him his job.

Harris v. City of Santa Monica is currently pending before the California Supreme Court.  It is unclear at this point when a decision will be handed down, but we are closely monitoring the case and will continue to do so.  Oral arguments have not been held yet.

In Harris, plaintiff disclosed to her supervisor that she was pregnant before she was terminated but while she was still on probation as a new hire.  After she was terminated she sued the City and alleged that she was fired for discriminatory reasons; i.e., because she was pregnant.  The City’s position was that she was terminated for poor performance.   

The issue before the Supreme Court is the scope of permissible jury instructions.  The trial court refused to instruct the jury on a mixed-motive defense.  In a mixed-motive case, to establish “because of” causation, the plaintiff’s initial burden is to prove that discrimination was “a” motivating factor in the adverse employment action (i.e., termination in the Harris case) even though other factors may also have been involved.  The employer then has an opportunity to demonstrate that legitimate other reasons came into play so as to defeat liability.  The trial court refused to instruct the jury on a mixed-motive defense and thereby deprived the City of its right to have the jury decide whether the City had proved its legitimate, non-discriminatory reasons for terminating Harris.  In other words, the jury was not instructed whether it could determine if Harris would have been terminated for legitimate reasons even though the City had knowledge she was pregnant before she was terminated.

This case has far reaching implications for all California employers, and especially for government employers.  The State Supreme Court has held that public employment in California is governed by statute, not by contract, and thus permanent government employees must be afforded due process protections before they can be terminated from public employment.  However, government entities can release probationary employees without cause and without the right to appeal.  Probationary employees can be terminated for any reason, so long as the reason is not in violation of the law.

The probationary period is an integral part of the recruitment, hiring and evaluation process.  This time period is relied upon by government employers as an opportunity to gauge objective and subjective factors relating to work performance during the period before the employee gains permanent status.  Failing to apply the mixed motive defense can severely hamper this opportunity.  For example, suppose a probationary employee is nearing the end of her probationary period and three supervisors gather to evaluate her performance to determine whether the employee will be awarded permanent status.  Assume that two of the supervisors describe compelling and overwhelming legitimate, nondiscriminatory reasons to terminate the employee during the probationary period.  However, assume that one of the supervisors makes a discriminatory remark about the employee’s gender during the meeting.  (That supervisor should surely be counseled and disciplined for making such an inappropriate remark.)  Assume further that the employee is still terminated during the probationary period because of the legitimate and nondiscriminatory performance based reasons, and despite the discriminatory remark about her gender.  This hypothetical serves as an example of the need for public employers to be able to assert the mixed motive defense.  The public employer’s hands should not be tied where one supervisor, for example, makes a stray discriminatory remark where compelling and legitimate reasons exist and are relied upon for the dismissal of an employee.  Moreover, the public employer’s hands should not be tied where the same decision would have been reached even if the discriminatory remark had not been made. 

Public employers cannot afford to let probationary employees gain permanent status unless the employee’s performance warrants it.  This is particularly important given California’s budgetary problems that require public agencies to do more with less.  The trial court’s refusal to instruct the jury on a mixed motive defense deprived the City of its right to have the jury decide whether the City had proved its legitimate, non-discriminatory reasons for terminating Harris even though the City had knowledge she was pregnant before she was terminated.

This guest post was authored by Mary Dowell and Meredith Karasch 

The Los Angeles Superior Court recently approved a class action settlement that allows LAUSD, in a layoff, to skip teachers at 45 schools in order to prevent constitutional violations in the right of students to be provided with a minimum level of education.  This case has received a great deal of attention for its effect of limiting seniority based layoffs in LAUSD.  The teacher’s union, UTLA, fought this settlement vigorously to protect teachers’ seniority rights in a layoff, excluding all other factors.

The suit began when students sued to enjoin teacher layoffs at schools in Watts, Boyle Heights and Pico-Union, alleging the seniority based layoffs violated their right to a minimum level of education the California Constitution guarantees.  These schools were hard to staff and undergoing reform efforts, and thus teachers were energetic and new.  The layoffs eliminated these teachers who had low seniority but were working to reform the schools.  Vacancies created by layoffs caused instability because the teachers on the reemployment lists did not want to work at these schools and many classes were staffed by short and long term substitutes. 

The parties negotiated a settlement, allowing LAUSD to skip all teachers at 45 “Targeted Schools,”  chosen based on low performance, high teacher turnover, and the growth in test scores over time, indicating reform efforts.  UTLA (who LAUSD brought in as a defendant) opposed the settlement because it violated seniority rights.  The judge determined the settlement was fair and legal.

The settlement is historic for several reasons.  First it allows skipping based on a school, rather than by teacher as is normally done.  Additionally, the settlement is based on a provision in the education code allowing skipping “for purposes of maintaining or achieving compliance with the constitutional requirements related to the equal protection of the laws.”  However, no case has defined the right a minimum level of education, nor has any court interpreted this provision to apply to the rights of students as opposed to teachers.  The judge found that the law’s requirement that layoffs occur on a strict seniority basis includes the principle that layoffs cannot violate students’ constitutional right to an education. 

Although the case ended with a settlement, large urban school districts which have schools with qualities similar to the “Targeted Schools,” may be able to use the judge’s findings to skip teachers at under-performing schools with high teacher turnover.  It is not clear whether this theory will extend beyond the K-12 school context, but if agencies believe a seniority based layoff will impact constitutional rights of third parties, they should consult counsel.  Liebert Cassidy Whitmore attorneys are available to advise any clients who may be faced with layoffs.