California Public Agency Labor & Employment Blog

California Public Agency Labor & Employment Blog

Useful information for navigating legal challenges

It’s Not FMLA Unless I Say So!

By Wage & Hour Blogger on Posted in FMLA, Wage and Hour

This blog post was authored by Jennifer Rosner.

In a 2014 decision of the U.S. Court of Appeals, the Ninth Circuit Court in California held that an employee can affirmatively decline to use leave under the Family Medical Leave Act (“FMLA”).  However, buyer beware!  If an employee affirmatively declines to use FMLA to which he/she would otherwise be entitled, the employer may be shielded from a lawsuit if it takes an adverse employment action against the employee based on that leave.

The FMLA provides job protection to an eligible employee who takes leave (up to 12 workweeks per year) to care for the employee’s spouse, child or parent with a serious health condition.  However, in Escriba v. Foster Poultry Farms, an employee declined to use FMLA when she took an extended leave of absence to care for her ill father.  When the employee was terminated for failing to comply with the company’s absence policy, she filed a lawsuit claiming that her termination was an unlawful interference with her FMLA rights.  The Court held that the termination was lawful because the employee had expressly declined to have her time off count as FMLA leave and therefore, was not entitled to job protection.

Maria Escriba worked at a Foster Farms processing plant for 18 years.  On November 19, 2007, she met with her immediate supervisor to request two weeks vacation leave to care for her ailing father in Guatemala.  Her supervisor asked if she needed more time in Guatemala to care for her father, and Escriba responded that she did not.  The supervisor told her that if she later decided to request more than two weeks leave, she would need to visit Human Resources.  Escriba then went to the Foster Farms facility superintendent and told him she was going to Guatemala because her dad was very ill.  She told him she was using two weeks of vacation time and asked her for an additional two weeks as a “favor.”  The superintendent told Escriba to send a note or documentation to Human Resources for the extra time.  He did not instruct Escriba regarding her rights and obligations under FMLA and did not take any steps to designate her time off as FMLA.  Escriba never requested any additional time from Human Resources.

Escriba then traveled to Guatemala to care for her father.  While there, she decided that returning to work after two weeks would not be practical but she failed to make contact with her employer to extend her leave.  Sixteen days after she was supposed to return to work, Escriba called her union representative who informed her that she was going to be terminated under Foster Farm’s “three day no-show, no-call rule.”  Under this policy, an employee is automatically terminated if absent for three work days without notifying the company or without seeking a leave of absence.  Escriba then sued Foster Farms, claiming that the company interfered with her right to take FMLA leave.

To establish a case of FMLA interference, an employee must establish that 1) he/she was eligible for FMLA protection; 2) the employer was covered by the FMLA; 3) the employee was entitled to leave under the FMLA; 4) the employee provided sufficient notice of intent to take leave; and 5) the employer denied the employee FMLA benefits to which he/she was entitled.  Here, the Court found that Escriba elected not to take FMLA leave after telling her supervisor that she only wanted vacation time and that she did not need additional time off.  She also knew that her supervisor only handled requests for vacation whereas Human Resources had handled her past fifteen requests for FMLA leave.  Moreover, Escriba had intended to take vacation time and not family leave.  Accordingly, Escriba did not express intent to take leave under the FMLA.

Thus, this case demonstrates that an employee cannot have it both ways – the employee cannot decline to use FMLA (even if the leave qualifies for FMLA) and then try to hide behind FMLA protections after the fact.  Accordingly, once an employee declines to use FMLA, the employee assumes the risk of the decision.  Thus, as in this case, if an employee declines FMLA leave, and goes on an unauthorized leave of absence, the employee can be lawfully terminated (consistent with agency policies).  Because the FMLA does not require that an employee expressly ask for “FMLA leave” to fall under its protections, we recommend that the employer should inquire of the employee if it is necessary to determine whether FMLA is being sought by the employee and obtain the necessary details of the leave to be taken.

New Guidance on Employer Control Over Employee Social Media

By Jeffrey C. Freedman on Posted in Social Media

This post was authored by Jeffrey C. Freedman.

Picture this: you are your agency’s Human Resources Director. One morning a fellow Director from another Department comes to visit you. She tells you she was sitting before her home computer the prior evening and found a Facebook post from one of her employees complaining about his pay and benefits, making defamatory comments about her, and stating his plan to take his issues to his union. A number of “likes” and comments agreeing with him had been posted by at least six of his co-workers, all of whom work in her Department. She tells you she became worried that mutiny is afoot. Next, she says she has reviewed the agency’s personnel rules and employee policies and found a provision that prohibits employees from disparaging other employees. She now asks whether she has any recourse. More specifically, she asks whether the employee who posted this can be fired. What answer do you give her?

The answer depends on analysis of two separate areas of law: First Amendment rights to freedom of speech and public employee rights to participate with fellow employees in advancing and protecting the terms and conditions of their employment. This article will deal with the second area; issues under the First Amendment involve, among other concerns, whether the speech relates to matters of public concern as opposed to only private, personal matters. We have addressed this topic elsewhere. Issues relating to employee rights to discuss working conditions arise under laws including the Meyers-Milias-Brown Act (MMBA) for employees of cities, counties, and special districts, the Education Employment Relations Act (EERA), and others. This topic became a matter of concern recently after the National Labor Relations Board (“NLRB”) overturned an earlier precedent on the legality of employer policies, which was then followed by a document entitled “Guidance on Employer Rules” issued by the NLRB’s General Counsel. The NLRB enforces and interprets federal labor relations law, which applies only to private employers.  But since the California Public Employment Relations Board (PERB) routinely looks to the NLRB for guidance, an examination of this recent development is worthwhile for public employers.

The NLRB’s 2017 decision in a case involving Boeing reversed a 2004 decision on the Board’s criteria in determining whether employer work rules unlawfully infringed on private sector employee rights “to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The new criteria give more leeway to employers to adopt facially neutral rules as long as the application of such rules does not interfere with employee rights. Under the 2004 criteria, many rules were presumed to be unlawful even if their wording was facially neutral – as long as  their wording could be interpreted as infringing on employee rights. The General Counsel’s memorandum, GC 18-04 (issued this past June 6), read the 2017 criteria as focusing on a balance between an employee’s right to engage in protected concerted activities and an employer’s ability to maintain discipline and productivity in the workplace. The General Counsel broke the various types of work rules into these categories:

1-Rules that are generally lawful to maintain because, when reasonably interpreted, they do not prohibit or interfere with employee exercise of protected rights or because the potential adverse impact on protected rights is outweighed by the rule’s business justifications. These include rules protecting confidential and proprietary information or documents, which are presumptively lawful since generally these do not relate to negotiations issues or to employee wages, hours, or other terms and conditions of employment. Also presumptively lawful are rules on civility, insubordination, conduct on the job that adversely affects operations, disruptive behavior, and defamation, for example.

2-Rules requiring scrutiny because they may well interfere with employee rights, such as prohibitions on disparaging the agency, as opposed to individual employees, speaking to the media, making false statements that do not rise to the level of defamation, confidentiality rules that are overbroad, and rules banning off-duty conduct that are overbroad.

3-Rules that are per se unlawful such as rules prohibiting discussion of wages, benefits, or working conditions, or rules that would limit employee rights to join outside organizations.

So what about the Department Director’s question? Can that Facebook-posting employee be disciplined, up to termination? First of all, clearly every employee has the unlimited right to complain about pay and benefits. So imposing discipline for this complaint would clearly be unlawful, as would taking action because of the employee’s statement of intent to complain to the union. However, defaming a specifically named employee, in this case the Department head, depending on the specific content and context, is not protected activity and could warrant some level of discipline. Whether termination would be warranted, especially in the context of this employee’s other statements, which are legally protected, is something else, and should be reviewed by HR along with the agency’s legal counsel. In any case, HR should consider revising and supplementing the agency’s personnel rules and employee policies in light of the NLRB General Counsel’s Guidance.

Tips for Responding to SB 1421 Requests

By Guest Author on Posted in Public Safety Issues

This post was authored by J. Scott Tiedemann & Lars T. Reed.

On January 1, 2019, California Senate Bill 1421 went into effect. The new law allows members of the public to obtain certain peace officer personnel records that were previously available only through the Pitchess procedure by making a request under the California Public Records Act (“CPRA”).

We described this legislation in detail in a previous Special Bulletin. In short, SB 1421 amends Government Code Section 832.7 to mandate disclosure of records and information related to certain high-profile categories of officer misconduct: officer-involved shootings, certain uses of force, sustained findings of sexual assault, and sustained findings of certain types of dishonesty.

Immediately after the new law went into effect on January 1, public agencies across California began receiving broad CPRA requests for records covered by SB 1421. Below are our answers to some frequently asked questions and general tips for how to respond to SB 1421 requests.

For case-specific questions, agencies should consult legal counsel to ensure compliance with all relevant laws.  To that end, LCW has dedicated a team of lawyers to help clients deal with these time-sensitive and complex requests.

Does SB 1421 apply to records from before January 1, 2019?

SB 1421 does not explicitly state whether it applies to records created before the law’s effective date, January 1, 2019, and this question is the subject of some ongoing litigation.

In at least one case, a superior court judge has issued a temporary stay directing a public agency to refrain from retroactively enforcing SB 1421 pending a more detailed hearing. In addition, two police unions separately petitioned the California Supreme Court for a writ barring retroactive application of SB 1421 to records predating January 1, 2019. On January 2, 2019, the Supreme Court denied both of those writ petitions without commenting on the merits of their legal arguments. None of these cases have any binding effect as precedent, so the question whether SB 1421 applies retroactively remains unanswered for the moment. It seems likely that the courts will eventually provide some clarification as litigation continues, but the clarification likely will not come in time to help agencies with the first round of requests that they have already received.

In the meantime, pending guidance from the courts or clarifying legislation, we recommend that agencies seek case-specific legal advice to decide whether they will disclose records regardless of when the records were created, or only disclose responsive records that are created after January 1, 2019.  Recognizing that there may be some room for debate, we believe that it is more likely than not courts will interpret SB 1421 to require disclosure of at least some records that predate 2019.

Each approach carries with it some risk, so agencies should carefully weigh the risks and potential benefits.  In mitigation of some of the risks associated with releasing personnel records predating 2019, agencies should consider providing advance notification to the affected peace officers and their labor unions to afford them the opportunity to seek judicial relief from the anticipated disclosure.

How soon must an agency respond to a request for records?

Under the CPRA, an agency generally has 10 days from the receipt of a request for public records to determine whether any part of the request seeks copies of disclosable records in the agency’s possession. However, in “unusual circumstances” the agency may extend this deadline by up to 14 days by providing a written notice to the requesting party. For purposes of the CPRA, “unusual circumstances” means any of the following:

  • The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request.
  • The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request.
  • The need for consultation, which shall be conducted with all practicable speed, with another agency having substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein.
  • The need to compile data, to write programming language or a computer program, or to construct a computer report to extract data.

For “blanket” requests that seek a wide range of records or information covered by SB 1421, a public agency may have cause to invoke one or more of these grounds, but the determination should be made on a case-by-case basis.

If and when an agency determines that a CPRA request seeks disclosable records, it should “promptly” make those records available or provide copies of them. The CPRA does not set a specific time frame for the actual disclosure of records; this will vary depending on the circumstances of any given request, including the size and scope of the request and the possible need to redact nondisclosable information.

Is SB 1421 limited to records of administrative investigations?

No. SB 1421 applies to “peace officer or custodial officer personnel records” and all other “records maintained by any state or local agency” relating to a covered incident. This includes, but is not limited to, all of the following:

  • Investigative reports.
  • Photographic, audio, and video evidence; transcripts or recording of interviews.
  • Autopsy reports.
  • Materials compiled and presented for review to the district attorney or to any person or body charged with determining whether to file criminal charges against an officer in connection with an incident, or whether the officer’s action was consistent with law and agency policy for purposes of discipline or administrative action, or what discipline to impose or corrective action to take.
  • Documents setting forth finding or recommended findings.
  • Copies of disciplinary records relating to the incident, including any letters of intent to impose discipline, any documents reflecting modifications of discipline due to the Skelly or grievance process, and letters indicating final imposition of discipline or other documentation reflecting implementation of corrective action.

May an agency delay the disclosure of records relating to ongoing cases?

Possibly, depending on the nature of the case. SB 1421 sets out several circumstances in which agencies may delay the mandated disclosure of records.

Internal investigations into sexual assault or dishonesty

Records pertaining to alleged sexual assault or dishonesty by an officer are only subject to disclosure under SB 1421 if the allegations are sustained by a law enforcement or oversight agency. Under Penal Code section 832.8(b), “sustained” means “a final determination by an investigating agency, commission, board, hearing officer, or arbitrator, as applicable, following an investigation and opportunity for an administrative appeal pursuant to Sections 3304 and 3304.5 of the Government Code, that the actions of the peace officer or custodial officer were found to violate law or department policy.”  Thus, if the investigation is ongoing, or an appeal from discipline is pending, then the allegations have not been sustained and the records are not yet subject to disclosure.

Criminal investigations related to a use of force incident

During an active criminal investigation related to an officer-involved shooting or the use of force resulting in death or great bodily injury, an agency may delay disclosure for up to 60 days from the date the force occurred or until the district attorney determines whether to file criminal charges related to the use of force, whichever is sooner. The agency may extend the delay further if disclosure could reasonably be expected to interfere with a criminal enforcement proceeding. If disclosure is delayed under one of these provisions, then the agency must comply with several requirements for specific written notice to the requesting party.

Criminal prosecutions related to a use of force incident

If criminal charges are filed related to a use of force incident, the agency may delay the disclosure of records or information until a verdict on those charges is returned at trial, or, if a plea of guilty or no contest is entered, the time to withdraw that plea has expired.

Administrative investigations related to a use of force incident

During an administrative investigation of a use of force incident, an agency may delay disclosure of records while the investigating agency determines whether the use of force violated a law or agency policy. The delay is limited to 180 days after the employing agency’s discovery of the use of force, or allegation of use of force, by a person authorized to initiate an investigation, or 30 days after the close of any criminal investigation related to the use of force, whichever is later.

May a public agency provide redacted versions of requested records?

Possibly, if the redactions are for one of a set of specific reasons outlined in SB 1421:

  • To remove personal data or information, such as a home address, telephone number, or identities of family members, other than the names and work-related information of peace and custodial officers.
  • To preserve the anonymity of complainants and witnesses.
  • To protect confidential medical, financial, or other information of which disclosure is specifically prohibited by federal law or would cause an unwarranted invasion of personal privacy that clearly outweighs the strong public interest in records about misconduct and serious use of force by peace officers and custodial officers.
  • Where there is a specific, articulable, and particularized reason to believe that disclosure of the record would pose a significant danger to the physical safety of the peace officer, custodial officer, or another person.
  • Other circumstances not listed above, where, on the facts of the particular case, the public interest served by not disclosing the information clearly outweighs the public interest served by disclosure of the information. This language mirrors the catch-all provision of the CPRA, and courts will likely interpret the law similarly.

In particular, it is likely that many records within the scope of SB 1421 contain privileged documents, such as attorney-client communications. Given the high volume of anticipated records requests and the large amount of potentially disclosable files, responding agencies should take particular care in examining responsive records to avoid inadvertently giving away privileged materials.

SB 1421 dramatically increases public access to peace officer personnel records and other public records. But there are a number of issues left unclear and compliance with the new law will require a careful balancing of the public right to access public records against the privacy interests of officers, crime victims, complainants, witnesses and other third parties. Agencies that receive CPRA requests pursuant to SB 1421 should work closely with trusted legal counsel to navigate successfully between these competing interests when responding to the requests.

Governor Signs SB 1421 and AB 748, Dramatically Increasing Public Access to Peace Officer Personnel Records

By Paul D. Knothe on Posted in Public Safety Issues

This post was authored by Paul D. Knothe.

On September 30, 2018, Governor Edmund G. Brown, Jr. signed two significant pieces of legislation, Senate Bill 1421 and Assembly Bill 748, that will require major changes in how law enforcement agencies respond to requests for peace officer personnel records. We described this legislation in detail in a previous Special Bulletin.

In short, these two statutes will allow members of the public to obtain certain peace officer personnel records that were previously available only through the Pitchess procedure by making a request under the California Public Records Act (“CPRA”) request.

Effective January 1, 2019, SB 1421 amends Government Code Section 832.7 to generally require disclosure of records and information relating to the following types of incidents in response to a request under the CPRA:

  • Records relating to the report, investigation, or findings of an incident involving the discharge of a firearm at a person by a peace officer or custodial officer.
  • Records relating to the report, investigation or findings of an incident in which the use of force by a peace officer or custodial officer against a person results in death or great bodily injury.
  • Records relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency that a peace officer or custodial officer engaged in sexual assault involving a member of the public. “Sexual assault” is defined for the purposes of section 832.7 as the commission or attempted initiation of a sexual act with a member of the public by means of force, threat, coercion, extortion, offer of leniency or any other official favor, or under the color of authority.   The propositioning for or commission of any sexual act while on duty is considered a sexual assault.
  • Records relating to an incident in which a sustained finding of dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation, or prosecution of a crime, or directly relating to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including but not limited to, any sustained finding of perjury, false statements, filing false reports, destruction of evidence or falsifying or concealing of evidence.

AB 748 requires agencies, effective July 1, 2019, to produce video and audio recordings of “critical incidents,” defined as an incident involving the discharge of a firearm at a person by a peace officer or custodial officer, or an incident in which the use of force by a peace officer or custodial officer against a person resulted in death or great bodily injury, in response to CPRA requests.

These statutes have different timelines for production of records, and different circumstances under which production of records can be delayed or records can be withheld. Further, agencies may wish to evaluate their document retention policies in light of these new disclosure requirements.  Agencies should work closely with trusted legal counsel to ensure compliance with both statutes.

New Year, New Laws, New Obligations

By Alysha Stein-Manes on Posted in Legislation

This post was authored by Alysha Stein-Manes.

As we ring in the new year, employers will be tasked with implementing new laws that Governor Brown signed into law this past fall.  Here is a summary of a few major bills that go into effect on New Year’s Day:

1. AB 1976: Lactation Accommodations

AB 1976 amends Labor Code section 1031, regarding lactation accommodations in the workplace.  California law requires employers to provide a reasonable amount of break time to accommodate employees who want to pump or express breast milk for an infant child and to provide these employees with the use of a room or other location, other than a toilet stall, close to the employee’s work area to express breast milk in private.  With AB 1976, beginning on January 1, 2019, employers may no longer designate the lactation location as anywhere in a bathroom.  An employer will comply with the new law if the employer provides a temporary lactation location that meets all of the following requirements:

  • The temporary location must be private and free from intrusion while an employee expresses milk;
  • The temporary location is used only for lactation purposes while an employee expresses breast milk;
  • The temporary location otherwise meets the California law requirements for lactation accommodations, found in Labor Code sections 1030-1033; and
  • The employer is unable to provide a permanent lactation location because of operational, financial, or space limitations.

AB 1976 also creates an exemption for employers who can demonstrate to the Department of Industrial Relations (“DIR”) that providing a room or location, other than a bathroom, would impose an undue hardship when considering the size, nature, and structure of the employer’s business.  An employer must request the exemption from the DIR.  However, even if the DIR grants the employer an exemption, the employer is still required to make reasonable efforts to provide an employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee’s work area to express breast milk in private.

Relatedly, for public colleges and universities, beginning on January 1, 2020, another bill, AB 2785 will amend the Education Code to require California Community Colleges and the California State University, and encourage the University of California, to provide reasonable accommodations on their respective campuses for a lactating student to express breast milk, breastfeed an infant child, or address other needs related to breastfeeding.

Reasonable accommodations for students will include, but will not be limited to, the following:

  • Access to a private and secure room, other than a restroom, to express breast milk or breastfeed an infant child. The room must have a comfortable place to sit, and include a table or shelf to place a breast pump or any other equipment to express breast milk.  A campus of the California Community Colleges and the California State University may use an existing facility to meet these requirements;
  • Permission to bring a breast pump and any other equipment to express breast milk onto a college or university campus; and
  • Access to a power source for a breast pump or any other equipment to express breast milk.

The lactation accommodation must be available to a student whenever a student is required to be present on campus.

As public colleges and universities begin to implement the requirements of AB 1976, they should begin to consider how they plan to also comply with student accommodations beginning in 2020.

2. SB 1085: Paid Leaves of Absence for Union Stewards and Officers

SB 1085 creates paid leave for stewards and officers to participate in employee organization or union activities.  The new law will require public employers to grant reasonable leaves of absence without loss of compensation or other benefits, including retirement benefits, for employees to serve as stewards or officers of the employee organization.  The exclusive employee organization must make the request to the employer on behalf of the employee for whom it seeks leave.  Agencies may grant the leave on a full-time, part-time, periodic, or intermittent basis.

An employee organization is not obligated to use leave and may end an employee’s granted leave at any time. If, however, the employee organization elects to request this leave, it must reimburse the public agency for all compensation paid to the employee on leave, unless otherwise provided in a collective bargaining agreement or memorandum of understanding. An employee organization is required to make such reimbursements to the public agency on or before 30 days after receiving certification from the public agency showing payment to the employee.

At the end of the leave, the employee has a right to reinstatement to the same position and work location he or she held before the leave, or, if not feasible, a substantially similar position without loss of seniority, rank, or classification.

The law will require the public agency and employee organization to reach a mutual agreement on procedures for requesting and granting leave. Public agencies should be prepared to meet and have discussions with employee organizations to come up with an agreement on how this new paid leave of absence will be provided.

3. SB 1421: Peace Office Records

As described in detail in a prior Special Bulletin, SB 1421 amends the Penal Code to require the disclosure of certain peace officer personnel records under the California Public Records Act (“CPRA”).  To date, such records could only be released pursuant to a Pitchness motion.

SB 1421 specifically amends Penal Code section 832.7 to generally require the disclosure of records and information relating to the following types of incidents in response to a request under the CPRA, without a Pitchess motion:

  • Records relating to the report, investigation, or findings of an incident involving the discharge of a firearm at a person by a peace officer or custodial officer.
  • Records relating to the report, investigation, or findings of an incident in which the use of force by a peace officer or custodial officer against a person results in death or great bodily injury.
  • Records relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency that a peace officer or custodial officer engaged in a sexual assault involving a member of the public. “Sexual assault” is defined for the purposes of section 832.7 as the commission or attempted initiation of a sexual act with a member of the public by means of force, threat, coercion, extortion, offer of leniency or any other official favor, or under the color of authority. The propositioning for or commission of any sexual act while on duty is considered a sexual assault.
  • Records relating to an incident in which a sustained finding was made of dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation, or prosecution of a crime, or directly relating to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including but not limited to, any sustained finding of perjury, false statements, filing false reports, destruction of evidence or falsifying or concealing of evidence.

Relatedly, AB 748 delays the effect of SB 1421 for certain videos or audio recordings.  Specifically, effective July 1, 2019, law enforcement agencies will be required to produce, in response to CPRA requests, video and audio recordings of “critical incidents,” defined as an incident involving the discharge of a firearm at a person by a peace officer or custodial officer, or an incident in which the use of force by a peace officer or custodial officer against a person resulted in death or great bodily injury.

  1. SB 1343: Anti-harassment Training Requirements

As a reminder, SB 1343 expands existing harassment training requirements for public and private employers, to encompass private sector employers with five or more employees and mandate harassment training for nonsupervisory employees of qualified employers.  We addressed these new requirements in detail in post earlier this month.

Court Confirms Commute Time in Company Vehicle is Non-Compensatory

By Erin Kunze on Posted in Wage and Hour

This post was authored by Erin Kunze.

Last month, the Court of Appeal for the Third Appellate District of California found that an employee’s time traveling between home and a job site in an employer’s vehicle was not compensable, despite the employer restricting the employee’s activities during the commute time at issue.  Notably, this case analyzed a California wage and hour law on travel time that applies to public sector employers other than counties or charter cities.

In Hernandez v. Pacific Bell Telephone Company, Pacific Bell established a “Home Dispatch Program” by which it allowed employees to take work vehicles home, and to use those vehicles to travel to various job sites without first checking in at a central garage.  The “Home Dispatch Program” was voluntary in nature.  Employees who chose to participate were required to be at their first worksite by 8:00 a.m., and were not compensated for any time before 8:00 a.m. spent driving from their homes to the initial worksite.  Nor were the employees paid for time spent driving home with equipment and tools after their last appointment.  However, during these commutes, participating employees were prohibited from talking on cell phones while driving (even before doing so was illegal), and were prohibited from making personal stops to run errands or drop off or pick up children from school while using the company vehicle.

Employees who did not opt to participate in the Home Dispatch Program were required to commute to and from a company garage each day, where they would pick up and drop off company vehicles.  Such employees were not compensated for their home-to-garage commute time.  Instead, they would be compensated once they arrived at the garage site at 8:00 a.m.

Employees who participated in the Home Dispatch Program brought suit against Pacific Bell claiming that the control Pacific Bell exerted over their commute time, while using a company vehicle, rendered the time compensable.  Relying on State law, the Court determined that, because the Home Dispatch Program was optional and employees were not required to use the company vehicle to commute to and from their worksites, they were not under the employer’s control, and the travel time was not compensatory.  The Court further articulated that carrying tools and equipment in company vehicles during the home-to-site commute times did not make the time compensatory because employees were not required to engage in any effort or extra time to effectuate the transport.  Notably, employees who participated in the Program were compensated when they were required to travel to and from the central garage to load equipment and tools needed for that week.

While this case does not necessarily change existing law, it clarifies that prohibiting employees from stopping for personal errands or carrying other passengers while commuting in an employer’s vehicle does not necessarily render the commute time compensatory under California law.  Rather, the question will be whether the use of the employer’s vehicle for that purpose, with the corresponding restrictions, was required by the employer.  In this case, because the Home Dispatch Program was optional and voluntary, employees were not entitled to compensation for their commute to and from various worksites at the start and end of the otherwise regular workday using a company vehicle.

We encourage public agencies to consult legal counsel to assess whether and how this case impacts the agency or its existing rules.

Federal District Court Strikes Down Affordable Care Act. What Now for Employers?

By Guest Author on Posted in Healthcare

This Special Bulletin was authored by Heather DeBlanc and Amit Katzir.

A federal district judge in Texas ruled last Friday that the Patient Protection and Affordable Care Act’s individual mandate was unconstitutional and that the ACA’s other provisions were therefore also invalid.

The decision centers around the ACA’s “shared responsibility payment,” a penalty on individuals who decline to purchase insurance coverage pursuant to the ACA’s individual mandate.  Construing this penalty as a tax, the U.S. Supreme Court ruled in 2012 that the individual mandate was constitutional under Congress’ power of taxation.  However, last year, Congress reduced the shared responsibility payment amount to zero, effective January 1, 2019, as part of the Tax Cuts and Jobs Act of 2017.  According to last week’s district court ruling, when this change in the law takes effect, it will eliminate the individual mandate’s constitutional hook.

Had the story ended there, the ruling could have been easily overlooked by employers as impacting only individual taxpayers.  However, the district judge went a step further, finding that the remainder of the ACA was untenable absent the individual mandate.  He held, therefore, that the entire law, which includes various provisions directed at employers, was invalid.

What Now for Employers?

The ACA’s employer provisions include:

  • The employer shared responsibility provisions (aka the “employer mandate”), which requires “applicable large employers” (those with 50 or more full-time employees and full-time equivalents) to offer minimum essential coverage that is “affordable” and provides “minimum value” to at least 95% of their full-time employees (including dependents) or potentially incur penalties;
  • Restrictions on reimbursement arrangements that constitute “employer payments plans” (discussed here and here);
  • Various reporting requirements; and
  • The Cadillac Tax, which was previously postponed until 2022.

In response to the ACA, many employers have reexamined and, in some cases, significantly changed their health benefits programs for employees.  Many employers have also shifted resources to satisfy their reporting obligations under the ACA.

With a federal court now saying that the ACA no longer passes legal muster, what is an employer to do?

For now, the federal government has no immediate plans to stop enforcing the ACA.  The case will almost certainly undergo review by a higher court.  Indeed, the same day the Texas ruling came down, the White House stated that the law will remain in effect pending the appeal process.  In the meantime, employers should still plan to comply with the ACA’s information reporting requirements for 2018, including the requirement to provide written statements to employees by March 4, 2019 and electronically file Forms 1094C and 1095C by April 1, 2019.

We will provide updates as the case makes its way through the courts.  Stay tuned.

Update:  On December 30, 2018, the district court ordered that its ruling be stayed pending an appeal of the case.  In the meantime, the ACA’s employer provisions remain in effect.

Key Insights from the DFEH’s Annual Report

By Megan Lewis on Posted in Discrimination, Harassment

This post was authored by Megan Lewis.

The Department of Fair Employment and Housing (DFEH) recently issued its 2017 Annual Report, which provides a fascinating glimpse into who is filing complaints and why.

The DFEH is the largest state civil rights agency in the country.  Its stated mission is to protect the people of California from unlawful discrimination in employment, housing, and public accommodations, and from hate violence and human trafficking.  To accomplish its mission, the DFEH receives, investigates, conciliates, mediates, and prosecutes complaints of alleged violations of various statutes, including the Fair Employment and Housing Act (FEHA) and the Unruh Civil Rights Act.  The DFEH began issuing annual reports regarding its operations after the California Legislature authorized the DFEH to file lawsuits in state court in 2013.

How Many Complaints Were Filed?

More than ever before.

The DFEH received nearly 25,000 complaints from members of the public in 2017, which is a notable increase from 2016 (+5%) and a whopping 25% increase from 2014.  Over half of the claims filed in 2017 were requests for an immediate “Right-to-Sue” letter, which allows a complainant to bypass the DFEH’s investigation process and instead file a case in civil court.

What Kind of Complaints? 

Mostly employment, almost 20% of which were based on age.

The vast majority (90%) of complaints filed were related to employment matters, while another 5% related to housing issues.

Of the employment-related complaints:

  • 19% were based on age
  • 16% were based on disability
  • 11% were based on sex/gender (another 7% were based on sexual harassment)
  • 11% were based on having engaged in protected activity
  • 10% were based on race (another 4% were based on national origin)
  • 22% were based on other issues

Who is Filing All These Complaints?

People who live in Southern California, and more white people than any other racial group.

People who live and/or work in Los Angeles County submitted the most complaints of any county in the state in 2017, about a third of the total number of complaints the DFEH received that year.  This is unsurprising given that Los Angeles County is by far the most populated county in California.  Orange County, San Diego County, San Bernardino County, and Riverside County round out the top 5.

In Northern California, Alameda County submitted the most complaints, followed closely by Sacramento County and San Francisco County.

In terms of race and national origin, more whites (31%) and Americans (52%) filed complaints than any other groups (at least with respect to the 52% of complainants that disclosed their race and the 35% that disclosed their national origin).  The DFEH does not track other demographic information at this time.

How Are These Complaints Resolved?

The DFEH received 24,779 complaints in 2017, only 19,032 of which were ultimately filed.  Of those, the DFEH investigated 6,160 complaints.

The DFEH facilitated nearly $13 million in settlements in 888 matters.

140 claims were referred to the DFEH’s attorneys in the Enforcement Division, and just 25% of those (35 matters) resulted in litigation filed by the DFEH.

The report is silent on the outcome of the remaining 5,000 or so complaints.

What’s Next?

More total complaints, and more related to discrimination and harassment on the basis of sex/gender.

In 2017, the DFEH launched a new cloud-based filing and case management system that allows members of the public and their representatives to submit complaints online for all of the civil rights laws the DFEH enforces.  We expect that instituting online filing will result in a significant increase in total complaints submitted.  We also think it is very likely that, in the wake of the “me too” movement, the DFEH will report a spike in sex/gender claims and sexual harassment claims submitted in 2018.

DFEH Provides Guidance on Impact of New SB 1343 Harassment Training Requirements: Some Questions Answered, Many Still Remain – Including Possibility that ALL Supervisory and Nonsupervisory Employees Need to Be Trained or Retrained Again in 2019

By Gage Dungy and Guest Author on Posted in Harassment, Legislation

This Special Bulletin was authored by Gage C. Dungy and Lars T. Reed.

Since 2005, Assembly Bill 1825 has required private sector employers with 50 or more employees and all public employers provide two hours of sexual harassment training to supervisory employers within six months of assuming a supervisory position and again at least every two years.  This has commonly been referred to as “AB 1825” supervisor harassment training and is codified under Government Code section 12950.1 and interpreted in the Department of Fair Employment and Housing’s (DFEH) regulations at 2 C.C.R. § 11024.

As part of the 2018 Legislative Session, Governor Jerry Brown signed into law Senate Bill 1343, which expands existing harassment training requirements to lower the private sector employer threshold down to 5 or more employees and to mandate one hour of harassment training for nonsupervisory employees of qualified employers, which includes all public agencies.  While the law becomes effective January 1, 2019, it requires most existing nonsupervisory employees to undergo harassment training by January 1, 2020.  In the case of temporary and seasonal employees, such training must be provided within certain timelines after January 1, 2020.  To assist employers in satisfying this obligation, SB 1343 also directs the DFEH to develop and make available two interactive, online training courses – a two-hour training for supervisory employees and a one-hour training for nonsupervisory employees.

While on the surface, SB 1343 appears to simply expand mandated harassment training requirements to include all nonsupervisory employees, the implementation of this new law has raised a number of questions for employers.  Among them, how employers can administer a training program that will comply with the new requirement and whether any previous mandated or optional harassment training provided to employees will satisfy this new law.

On November 26, 2018, the DFEH announced a new online resources page for employers, which includes information on required postings and other tools for addressing California’s discrimination and harassment laws.  Also included is a “Sexual Harassment Prevention Training and SB 1343 FAQ” to assist with SB 1343 compliance.

While the DFEH’s SB 1343 FAQ sheet addresses some interpretation questions,, it leaves many questions unanswered.  In addition, the DFEH’s SB 1343 FAQ sheet implies that all supervisory and nonsupervisory public employees (with the exception of temporary or seasonal employees) will need to be trained or retrained in 2019, regardless of whether they were provided compliant harassment training in 2018.

Responding to some common questions, below is our understanding of the law as written and initially interpreted by the DFEH in its SB 1343 FAQ sheet:

Who is now required to undergo harassment training under SB 1343?

Under SB 1343, most California employees must undergo harassment training. Supervisory employees who have already been covered by AB 1825 harassment training requirements must continue to receive at least two hours of harassment training within six months of becoming a supervisor, and at least every two years thereafter. Nonsupervisory employees now must receive at least one hour of harassment training within six months of hire and at least every two years thereafter.

Seasonal and temporary employees or “any employee that is hired to work for less than six months” are required to undergo the applicable supervisory or nonsupervisory training within 30 calendar days after the hire date or within 100 hours worked, whichever occurs first.  SB 1343 clarifies that temporary employees provided by an outside temporary services employer (e.g., temp agency) must be provided any applicable harassment training by that temporary services employer.

When will the DFEH issue the online interactive training courses to comply with SB 1343?

SB 1343 requires the DFEH to develop and make available to employers on its website online, interactive training courses that satisfy the two-hour supervisory and one-hour nonsupervisory training requirements.  However, the DFEH’s SB 1343 FAQ sheet indicates that the DFEH expects to have these courses available by “late 2019”, and it does not provide a more specific date for the release of the online training materials.

In the meantime, the DFEH has issued a “toolkit” for sexual harassment prevention, which includes a sample training presentation that employers may use in conjunction with a qualified trainer, as defined in the existing DFEH regulations at 2 C.C.R. § 11024.

In short, compliance with SB 1343’s training requirements in calendar year 2019 may either have to wait until “late 2019” for the DFEH to provide its materials or utilize sooner alternate sources.

What is the difference between the one-hour nonsupervisory harassment training and the two-hour supervisory harassment training required under SB 1343?

Other than the shorter training time, SB 1343 does not specify how the new one-hour harassment training for nonsupervisory employees should differ from the existing two-hour harassment training for supervisory employees.

The required content in the existing two-hour AB 1825 supervisory harassment training – including requirements specific to supervisory employees – is set forth in the DFEH’s regulations at 2 C.C.R. § 11024. The DFEH’s SB 1343 FAQ sheet references these existing regulations but does not note that the regulations have not been revised relative to SB 1343.  It is likely that future DFEH rulemaking will result in revised regulations, but no regulatory changes have been proposed at this time, and the DFEH has not announced a timeline for any such changes.   Absent further clarification from the DFEH, the only insight into what content is required in the new one-hour nonsupervisory harassment training will be the DFEH’s own online training course, which is scheduled to be released in “late 2019” as mentioned above.

At this time, we recommend modeling the one-hour training for nonsupervisory employees closely after the existing DFEH regulations for AB 1825 supervisor training at 2 C.C.R. § 11024.  However, where the existing regulations are specific to supervisory employees, we believe such content would not need to be included in a nonsupervisory employee training.

When is the deadline to provide harassment training to employees under SB 1343?

SB 1343 requires that most public employees – supervisory and nonsupervisory – receive the harassment training between January 1, 2019 and January 1, 2020.  After the initial training, follow-up training must be provided to employees every two years thereafter.  In addition, any new supervisory or nonsupervisory employees who assume such positions on or after January 1, 2019 are required to undergo their initial harassment training within six months of assuming such a position.

The only exception to this rule applies to seasonal and temporary employees who are hired to work for less than six months – the obligation to provide training to such employees does not become effective until January 1, 2020.  On or after that date, SB 1343 requires the employer to provide training to seasonal or temporary employees hired to work less than six months within 30 calendar days from the date of hire, or before the employee reaches 100 hours worked, whichever comes first.

If my agency already provided the required AB 1825 supervisory employee harassment training in calendar year 2018 as part of their two-year training track in accordance with existing law, does SB 1343 require us to retrain those employees again in 2019?

Based on the DFEH’s SB 1343 FAQ sheet, the answer appears to be “Yes”.  SB 1343 amends Government Code section 12950.1(a) to add the following new sentence:

An employer who has provided this training and education to an employee after January 1, 2019, is not required to provide training and education by the January 1, 2020 deadline.

Practically speaking, this new sentence is awkward in its application.  If an employer that is required to provide the applicable harassment training by January 1, 2020 provides such training after January 1, 2019, that employer would then not be required to provide the training by the January 1, 2020 deadline.  This sentence would probably make more sense if the initial date referenced was January 1, 2018, and not January 1, 2019.  Therefore, it is not clear if this language was intentional or a clerical error on the part of the Legislature.

More importantly, this new sentence in Section 12950.1(a) does not distinguish between existing AB 1825 supervisory training that employers are already mandated to provide every two years and the new SB 1343 nonsupervisory training.  As a result, a possible interpretation of Section 12950.1(a) is that employers who provided the required supervisory training in calendar year 2018 believing such supervisory employees would not need to be trained again until calendar year 2020 would now have to retrain the same employees a year earlier in calendar year 2019.

The DFEH’s SB 1343 FAQ sheet appears to follow this interpretation that ALL supervisory and nonsupervisory employees (except temporary or seasonal employees) be trained or retrained in calendar year 2019, regardless of whether they were otherwise previously provided harassment training in calendar year 2018 in accordance with existing law.  As noted in the DFEH’s SB 1343 FAQ sheet:

What if my employees were trained between January 1 and December 31, 2018?

The law requires that employees be trained during calendar year 2019.  Employees who were trained in 2018 or before will need to be retrained.

As a result of this initial interpretation from the DFEH, some employers who provided the required every-two-year supervisory training in calendar year 2018 may now have to provide the training again, one year sooner in calendar year 2019.

While this is the DFEH’s initial interpretation of SB 1343, we believe there is a strong possibility the DFEH will either provide additional clarification or the Legislature may provide clean-up legislation to address this scenario.  LCW is actively working with public agency groups such as the League of California Cities, CSAC, and CSDA to seek such clarification from the Legislature and the DFEH.  It is our understanding that a number of other employer groups impacted by this interpretation are doing the same thing.

Keep in mind that nothing in SB 1343 changes the existing two-hour harassment training requirements for supervisory employees.  To require supervisory employees who were provided the required harassment training in calendar year 2018 to be retrained a year early does not seem necessary or consistent with the intent of the original law, in addition to creating additional expense and operational impacts to the affected employer.  Therefore, agencies who have supervisory employees who were trained in calendar year 2018 may want to wait and see if the DFEH or Legislature provides clarification on the impact of SB 1343 before scheduling affected employees for retraining in calendar year 2019.

My agency has already been providing harassment training to nonsupervisory employees.  Are we already in compliance with SB 1343?  When do we have to train these employees again?

This is also an issue that is not entirely clear under SB 1343’s bill language and the DFEH’s interpretation of the new law.  Prior to SB 1343, many employers voluntarily chose to require nonsupervisory employees to attend harassment training.  In many instances, employers had nonsupervisory employees attend the same AB 1825-compliant, supervisor training.

However, as noted above, SB 1343’s bill language and modifications to Government Code section 12950.1 does not provide any indication of what type of training will satisfy the obligations of the new nonsupervisor training.  It would seem reasonable that any harassment training provided to nonsupervisory employees prior to SB 1343 that is otherwise in compliance with existing DFEH regulations at 2 C.C.R. § 11024 would be compliant with this new law. However, this is not entirely clear based on SB 1343’s statutory language.

Furthermore, as noted above, to the extent any such compliant harassment training was provided to nonsupervisory employees in calendar year 2018 or before, it appears that the DFEH’s initial interpretation of SB 1343 requires that all nonsupervisory employees be retrained in calendar year 2019.  Absent further clarification from the DFEH or the Legislature, it appears that any previous harassment training provided to nonsupervisory employees will not satisfy SB 1343’s requirements, and such employees should be retrained in calendar year 2019.

My agency has new employees who were provided SB 1343 compliant harassment training at their previous employment.  Does our agency need to provide them with harassment training again?  What about seasonal and temporary employees who return to our agency each year and were previously provided harassment training?  Does our agency have to provide them with harassment training each time they are re-hired as a seasonal or temporary employee?

This is another question that is not entirely clear based on SB 1343’s statutory language.  However, existing DFEH regulations regarding supervisory employees who were previously trained provides some guidance that may be extended to these other scenarios.  As noted under 2 C.C.R. § 11024(b)(5):

(5) Duplicate Training. A supervisor who has received training in compliance with this section within the prior two years either from a current, a prior, an alternate or a joint employer need only be given, be required to read and to acknowledge receipt of, the employer’s anti-harassment policy within six months of assuming the supervisor’s new supervisory position or within six months of the employer’s eligibility. That supervisor shall otherwise be put on a two year tracking schedule based on the supervisor’s last training. The burden of establishing that the prior training was legally compliant with this section shall be on the current employer.

Since the DFEH’s SB 1343 FAQ sheet references and incorporates these existing regulations, there is a strong argument that 2 C.C.R § 11024 (b)(5) would also apply to new employees who were trained previously or to previous seasonal or temporary employees who were trained at previous employment within the past two years.  In such a scenario, the employer would need to provide the affected employee a copy of the employer’s anti-harassment policy and then ensure that any follow-up harassment training be provided otherwise in accordance with the law.  Nonetheless, we caution employers to await further clarification on this issue from the DFEH.

In conclusion, there is a lot about the application of SB 1343’s new harassment training requirements that remains to be settled.  While the DFEH’s SB 1343 FAQ sheet provides some guidance, it appears that many unanswered questions remain.  As noted, LCW is actively working to seek clarification from the DFEH and the Legislature and will provide further updates as the information becomes available.

In the meantime, LCW offers both supervisory and nonsupervisory harassment training that are compliant with SB 1343.  For more information on our training programs, contact our Training Coordinator Anna Sanzone-Ortiz at asanzone@lcwlegal.com or (310) 981-2051 or Director of Marketing and Training Cynthia Weldon at cweldon@lcwlegal.com or (310) 981-2000.

If you have any questions about this Special Bulletin, please contact attorneys in our Los Angeles, San Francisco, Fresno, Sacramento, or San Diego offices for further guidance.