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With the approaching election year, we can anticipate a high level of political activity from the public to support their views of what should be the country’s future.  No doubt, at times this political activity will encroach on the workplace, and for public agency employers, this can create unique problems.  State statutes and agency rules limit the political activities of government employees, but at the same time those employees have free speech rights under the U.S. Constitution’s First Amendment, and can sometimes successfully assert those rights against their employer if the employer attempts to limit their speech.    

As agencies look forward to 2024, advance planning will help maintain an orderly, fair, well-functioning, and legally compliant operation.  This post describes various standards for agency management to keep in mind.   

Employee Free Speech on Social Media, at Events and Rallies, and in the Office

Under First Amendment principles, a public employee cannot be disciplined for their speech (1) on matters of “public concern” (2) that is outside the scope of the employee’s “official duties,” and (3) that prevails in a balancing test which weighs disruption of a government agency’s operations against the importance of the speech interest at issue.  As Courts have phrased it, the balancing is “whether the [state]’s legitimate administrative interests outweigh the employee’s First Amendment rights.” 

Suppose a city employee posts publicly on social media that he supports one side in the upcoming election, and harshly denigrates anyone who supports the other side.  Then suppose coworkers complain, arguing that they have needlessly suffered an insult from the employee and this has inhibited their productivity.  The answer to the existence of First Amendment protection will depend on application of the three elements described above.  First, the speech will be on a matter of “public concern” since it relates to an issue, the Presidential election, of great importance to the public at large.  Second, since the employee posted during off-work time and without any connection to job duties, their social media speech will pass the “official duties” hurdle of the First Amendment protection test, and proceed to the third element.   In that element, the balancing test, Courts would look to whether the speech has disrupted the operations of the agency – would simply offending coworkers be enough?  Some cases involving politics do have sufficiently egregious facts and level of acrimony that the disruption test will favor the employer, and result in no constitutional free speech protection for the employee’s statements.

On the other hand, what about a reference librarian at a county library who feels it is their duty to mention their own political views to patrons any time they answer a reference question?  Answering reference questions is in the librarian’s “official duties,” and no First Amendment protection should exist for them in their speech in carrying out this duty (at least not as to their government employer).  The same answers would hold for speech, political or otherwise, rendered pursuant to any employee’s “official duties,” be they a police officer, building inspector, firefighter, or other type of worker.  (There is an exception to this “official duties” rule for certain work by professors, as described in LCW’s prior post.)

Political Activities on Work Premises or During Work Time

Under California law, public agencies can prohibit employees from engaging in “political activities” at the actual workplace, even including political activities during personal time at work.  Government Code section 3207 provides: a local agency “by establishing rules and regulations, may prohibit or otherwise restrict the following: (a) Officers and employees engaging in political activity during working hours” and “(b) Political activities on the premises of the local agency.”

The Government Code provides that public agencies should not place restrictions beyond these, however.  Section 3203 provides: “no restriction shall be placed on the political activities of any officer or employee of a state or local agency.”

Excessive Workplace Discussions About Politics

What if employees do not actively “electioneer” at the office, but do distract themselves with lengthy discussion and debates about the election.  Public employers should and generally do have rules that prohibit using excessive personal time during work hours.  There is nothing wrong with invoking these rules in this circumstance, as long as agencies apply the rules without showing favoritism to one side in a debate or issue.  The First Amendment generally authorizes rules at an agency’s office that may affect speech as long as the rules qualify as “reasonable” and “viewpoint-neutral.”

Political Activities in Uniform

California statutes prevent public employees from being in uniform when engaging in political activities.  Government Code section 3206 provides that “[n]o officer or employee of a local agency shall participate in political activities of any kind while in uniform.”  As to public safety officers and firefighters in particular, California law provides that their employers cannot prohibit them from engaging in “political activity,” except when they are on duty or when they are in uniform.  (Gov. Code, §§ 3302, subd. (a), 3252, subd. (a).)

Coercing or Controlling Employee Political Activities

Next, public agencies should never appear to be trying to control or coerce their employees into voting a certain way or holding particular political views.  Labor Code section 1102 provides: “No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.”  Labor Code section 1101 prevents employers from promulgating rules that have the same effect.  It provides: “No employer shall make, adopt, or enforce any rule, regulation, or policy: (a) Forbidding or preventing employees from engaging or participating in politics . . .” or “(b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.”  Public employers have strong arguments that these particular statutes do not apply to them, given current case law interpreting the Labor Code.  Nevertheless, the safest course is altogether to avoid any control or coercion of the type prohibited by these statutes.

Employee Use of Any Agency Resources for Partisan Politics

What if an employee attempts to use copy machines, office supplies, office e-mail, office computer systems, or other resources for political activity related to an election, and actually presents a good reason why this use advances a bona fide purpose of the agency?  They could claim educational benefit or public outreach.  California law prohibits this use.  Merely by way of example, the California Supreme Court in Stanson v. Mott in 1976, held squarely that agency use of resources to support one side in an election (in that case to support passage of a bond measure) violates state law.  Enacted in 2001, Government Code section 54964 writes into law the Stanson holding.  In addition, Government Code section 8314 provides: “It is unlawful for any elected state or local officer, including any state or local appointee, employee, or consultant, to use or permit others to use public resources for a campaign activity . . . . .”

Another example, for California public educational institutions in particular, is Education Code section 7054, which provides: “No school district or community college district funds, services, supplies, or equipment shall be used for the purpose of urging the support or defeat of any ballot measure or candidate, including, but not limited to, any candidate for election to the governing board of the district.”  The statute imposes criminal penalties for a violation.  (There are exceptions described in Section 7054.1, however, for allowing board members and administrators to appear before citizen groups and provide reasons why the board called a bond election and allowing responses to inquiries from the citizen groups.) 

Conclusion

Questions regarding free speech and political activities of agency employees can present complex legal issues, and in most situations, it is prudent to seek advice of counsel.

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Assembly Bill 1484, which enhances the representational rights of temporary employees of California local government agencies, was recently signed into law by Governor Newsom. While the Meyers Milias Brown Act (MMBA) (Government Code section 3500 et seq.) currently gives temporary employees of public sector agencies the right to form, join, and be represented by an employee organization, AB 1484 enhances those rights and imposes new duties on local agencies. The intent of the legislation is to ensure that temporary employees are protected by state laws, and to ensure that the increasing use of temporary employees does not undermine public employee labor relations.

AB 1484 takes effect January 1, 2024 and adds Government Code section 3507.7 to the MMBA.  It obligates local government agencies to do the following with respect to temporary employees who have been hired to perform the same or similar type of work that is performed by permanent employees who are represented by a recognized employee organization:

1. Upon request of a recognized employee organization, add temporary employees to the same bargaining unit as permanent employees who perform the same or similar type of work.

    2. Once temporary employees are added to a bargaining unit in response to a labor organization’s request, promptly participate in bargaining with the labor organization over wages, hours, and terms and conditions of employment for temporary employees.

    3. The employer must provide temporary employees, upon hire, with a copy of their job description, wage rates, eligibility for benefits, anticipated length of employment, and procedures to apply for open, permanent positions.  This information must also be provided to the recognized employee organization within five days of hire.  Although not explicitly clear, the law appears to require the information to be provided to the recognized employee organization regardless of whether the employee organization has requested that temporary employees be added to a bargaining unit.

    4. Along with the list of new employee information provided to an employee organization under Government Code section 3558, the employer must also provide the anticipated end date of employment for each temporary employee, or actual end date if the temporary employee has been released from service since the last list was provided.  This appears to require that employers provide the personal contact information of temporary employees to the recognized employee organization regardless of whether the employee organization has requested that temporary employees be added to a bargaining unit.  Employers are reminded that Government Code section 3558 permits employers to meet and confer over procedures to give employees notice and the opportunity to opt out of having their home addresses, personal telephone numbers, and personal email addresses provided to a labor organization, consistent with County of Los Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 905.

    Agencies are not required to make changes to existing bargaining units unless a labor organization requests that temporary employees be added. Some labor organizations may choose not to add temporary employees to existing units based on the preferences of existing members and current temporary employees.

    If temporary employees are added to a bargaining unit pursuant to such a request, they are not automatically entitled to the same terms and conditions of employment as their permanent employee counterparts. Rather, the parties are required to bargain over terms and conditions for temporary employees. The bill specifically notes that the issue of whether a temporary employee should receive seniority or credit for their time in temporary employment upon obtaining permanent employment is a matter within the scope of representation.

    Initially, an agreement over temporary employee terms can be an addendum to the existing memorandum of understanding. Thereafter, if the labor organization so requests, the terms and conditions of employment for permanent and temporary employees must be included in the same memorandum of understanding.

     “Temporary employee” per AB 1484 means a temporary employee, casual employee, seasonal employee, periodic employee, extra-help employee, relief employee, limited-term employee, per diem employee, and any other public employee who has not been hired for a permanent position.  This can also include a retired annuitant who meets the definition of temporary employee.  It does not include an employee employed by a temporary services employer as defined in Section 201.3 of the Labor Code.[1]  The bill does not apply to temporary employees hired pursuant to a written agreement between a public employer and a labor organization that primarily represents employees in the building and construction trades.  The bill does not apply to independent contractors.

    The legislation specifies that it does not supersede or provide any exemption to the restrictions or requirements related to individuals working after retirement from a public retirement system.

    Complaints alleging violations of the new Government Code section 3507.7 shall be processed as unfair practice charges at the Public Employment Relations Board pursuant to Government Code Section 3509.

    There will undoubtedly be numerous questions about AB 1484 that are not clearly answered by the bill.   You should prepare for the implementation of AB 1484.  Trusted legal counsel can help you with your questions as well as strategize with you over the unique issues you will face in implementing AB 1484 at your agency.

    [1] Labor Code section 201.3 defines a temporary services employer as “an employing unit that contracts with clients or customers to supply workers to perform services for the clients or customers and that performs all of the following functions:

    (A) Negotiates with clients and customers for matters such as the time and place where the services are to be provided, the type of work, the working conditions, and the quality and price of the services.

    (B) Determines assignments or reassignments of workers, even if workers retain the right to refuse specific assignments.

    (C) Retains the authority to assign or reassign a worker to another client or customer when the worker is determined unacceptable by a specific client or customer.

    (D) Assigns or reassigns workers to perform services for clients or customers.

    (E) Sets the rate of pay of workers, whether or not through negotiation.

    (F) Pays workers from its own account or accounts.

    (G) Retains the right to hire and terminate workers.

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    Last week, on October 31, 2023, the U.S. Supreme Court heard argument in two important cases concerning the First Amendment and government agencies.  Both cases present the question of when and how First Amendment free speech standards apply to government officials in curating public comments on their social media pages.  

    The cases are O’Connor-Ratcliff v. Garnier involving Trustees of the Poway Unified School District near San Diego, and Lindke v. Freed, involving a City Manager in Michigan.  In both cases, members of the public posted comments on the officials’ Facebook or Twitter (now X) pages and had their comments deleted, hidden, or blocked by the officials.  The federal appellate court in Garnier found in favor of the members of the public, whereas the court in Lindke found in favor of the official.  Both cases turned on the key disputed legal issue of whether the officials’ activities on their social pages constituted state action.  First Amendment free speech protection binds only government actors, and if the officials could prove their social media pages basically operated only as their personal pages, then they could avoid liability for improper censorship in deleting comments or blocking members of the public. 

    In reviewing and deciding the two cases, the U.S. Supreme Court will need to resolve inconsistencies between the federal appellate courts on how to test if state action exists in this social media context.  As a very general matter, the test applied by the appellate court in Garnier emphasized how the official’s page appears to the public, whereas the Freed court emphasized how the social media page actually functioned as an extension of the work of the official’s agency.

    This post describes these two cases, which illustrate how the legal issues come up in practice.  It then describes some general guidelines for public agencies regarding how to address issues of censorship on social media while awaiting the U.S. Supreme Court’s decisions.

    Underlying facts of the cases:

    O’Connor-Ratcliff v. Garnier involves two members of the Poway Unified School District Board of Trustees, who in 2014 created public Facebook and Twitter pages to promote their campaigns for office.  As the Court of Appeals’ opinion described: “After they won and assumed office, the two used their public social media pages to inform constituents about goings-on at the School District and on the PUSD Board, to invite the public to Board meetings, to solicit input about important Board decisions, and to communicate with parents about safety and security issues at the District’s schools.”  The Garniers, parents of two children in the District, often left comments on the social media pages critical of the Trustees, and at times re-posted the same long criticisms.  The Trustees first deleted or hid these posts, and then eventually blocked the Garniers from the pages.  The Garniers thereafter sued, alleging this constituted censorship of their speech that violated the First Amendment.

    Lindke v. Freed involved the Facebook page of Port Huron City Manager James Freed, who posted both personal content and content related to his job.  As the Court of Appeals’ opinion described: “Freed was an active Facebook user whose page featured a medley of posts.  He shared photos of his daughter’s birthday, his visits to local community events, and his family’s weekend picnics. He also posted about some of the administrative directives he issued as city manager.  And when the Covid-19 pandemic hit in spring 2020, he posted about that too, sharing the policies he initiated for Port Huron and news articles on public-health measures and statistics.”  Plaintiff Kevin Lindke took issue with how Freed was handling the pandemic response, and posted critical comments on the Facebook page.  Freed responded by deleting the posts, and eventually blocking Lindke from the page to prevent Lindke from commenting.  Freed then sued for violation of his First Amendment rights.

    Oral argument before the Supreme Court:

    The U.S. Supreme Court heard both cases on the morning of October 31, 2023, in an argument session that spanned about three hours to cover both cases.  Plaintiffs’ side for the most part advocated an appearance-based test for state action.  Under this test, if it appeared that the official was exercising his government authority in maintaining the page, even if it was by simply posting updates news reports about local issues, or information about upcoming decisions, then this favored a finding of state action.  Also, it would support state action if the way the individual used social media was only possible because of their office.  On the other hand, the public officials supported a test that would be less easy for plaintiffs to satisfy.  It required the existence of government requirement or control over what the official did or the official’s actual exercise of government authority through the social media presence.

    There appeared no consensus among the Justices as to which test to apply, and argument focused a good deal on the Justices asking questions that explored the outer parameters of what their ruling would mean.  For example, Justice Thomas asked a couple of times whether it was important, and how it mattered, that the alleged public forum at issue resided on privately owned property in cyberspace subject to its own rules and regulations, of Facebook and X respectively.  Justice Kagan emphasized in her questions that, in developing a test for state action in the context social media, the Court was considering a medium that has changed rapidly in a short period of time and that could undergo further fundamental changes relatively soon.

    With the cases now both submitted, Supreme Court decisions in the cases could issue in the next several months, but more likely toward June 2024.  The Supreme Court in its opinions will then be able to provide guidance on these important issues in time for the November 2024 election.

    Practical considerations for agencies and government officials while the cases are pending:

    How can agencies honor their obligations under the First Amendment yet avoid having their public officials serve inadvertently as the message board for certain types of content?  There are a number of ways (until the U.S. Supreme Court provides further guidance through its opinions in Garnier and Lindke).

    First, agencies can recommend that public officials separate their personal social media presence from the pages they intend to use that have any significant relationship to their government work.  This may mean one page for personal use (ideally limited to friends or other particular connections) and one page related to the individual’s government work. 

    Second, for public official social media pages that do reference government work or agency operations, public officials can set up their own rules or guidelines for how their pages should operate so that their decisions to curate comments can have a good chance of complying with First Amendment standards.  Indeed, cities, counties, special districts, and other government agencies that maintain their own social media pages already often do, and should, have such policies.  An official’s putting such a policy into place involves developing it in specific written terms (ideally with the help of counsel) and then notifying social media page users of the policy. The policy can specify, for example, that obscene, defamatory, and other similar types of public comments are not permitted.  It can also specify that comments have to relate to the matter originally posted.  The policy can describe that repetitive or overly long comments, subject to a specific word or other limitation, will be deleted.   

    In general, the policy must satisfy the “forum analysis” standards of free speech law, a primary requirement of which is that the policy operate in a “viewpoint-neutral” way.  This means that the public official in almost all circumstances cannot suppress one view on a topic yet allow comments favoring the opposing view.  In addition, the official must be able to justify the policy’s restrictions on certain types of comments in a way that will satisfy forum analysis requirements.

    We will keep you advised of developments.  Because this area of law is developing rapidly, it is best to involve legal counsel in crafting policies related to social media and for which there are any First Amendment concerns.

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    In 2022, the California Legislature passed and Governor Newsom approved, Assembly Bill 2188 (AB 2188).  Effective January 1, 2024, AB 2188 amends California’s Fair Employment and Housing Act (“FEHA”) to make it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person if the discrimination is based on either of the following:

    1. The person’s use of cannabis off the job and away from the workplace; or
    2. An employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.

    This year, the California Legislature passed and the Governor approved, Senate Bill 700 (SB 700), which further modifies the law enacted by AB 2188 to also make it unlawful for an employer to request information from an applicant for employment relating to the applicant’s prior use of cannabis.  Further, a person’s prior cannabis use obtained from the person’s criminal history may only be considered or inquired into to the extent the employer is permitted to do so under California’s Fair Chance Act (Gov. Code, § 12952), or other state or federal law.

    In the October 2022 blog post, New Law Prohibits Discrimination in Employment for Outside-of-Work Cannabis Use, LCW wrote about what employers need to know about AB 2188 in anticipation of its January 1, 2024, effective date, and recommended employers do the following in consultation with trusted legal counsel to prepare for AB 2188 to take effect:

    • Assess which categories of employees, if any, may be exempt from AB 2188;
    • Review drug and alcohol free workplace policies for any necessary changes to comply with AB 2188, and make those revisions in time to be adopted effective January 1, 2024; and
    • Review and update any drug testing policies and practices for employees covered by AB 2188 to eliminate testing that screens for non-psychoactive cannabis metabolites, and instead use testing that only indicates impairment on the job, such as the presence of THC.
    • Make those revisions in time to be adopted effective January 1, 2024.

    In addition to the above and in consideration of SB 700, employers should further review and assess their hiring practices to ensure that they are not requesting from applicants any information relating to prior cannabis use, except where permitted under California’s Fair Chance Act or other state or federal law.  Trusted legal counsel can assist employers in determining how AB 2188 and SB 700 impacts their practices and operations, and to help in taking the necessary steps to prepare for these two pieces of legislation to take effect.

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    It was Friday July 5, 2013.  I was sitting in my doctor’s office.  I was desperately hoping I was fine, but had a sinking feeling I was having a miscarriage.  The doctor’s office was packed because it was closed the day before.  I was anxious, scared, and had a current of emotions coursing through me. If that wasn’t enough to worry about, a partner I was working for at my law firm at the time (not LCW) kept emailing me asking when I could meet that day to discuss a case. While I did not want him thinking I was making excuses and secretly taking off for the long weekend, I did not feel comfortable saying anything more than I was at a doctor’s appointment.  He kept asking me when I would be in, but I had no idea how long it would take, and felt that if my suspicions unfortunately proved to be true, I would not be mentally or physically able to go into the office that day.  In the end, I was having a miscarriage, I did not go into the office, and told him I was sick and could not meet.  I did however go on a business trip with that partner on Monday and pretend everything was fine, when it certainly was not.

    Now with recently enacted legislation, California employees will have the right to leave for reproductive loss that will hopefully avoid them having to face the pressure of working when suffering a miscarriage or other reproductive loss.  On October 10, 2023, Governor Newsom signed Senate Bill No. 848 which requires employers with five or more employees to provide up to five days of Reproductive Loss Leave for employees starting January 1, 2024.  California is the second state to provide employees with Reproductive Loss Leave.

    Requirements of Reproductive Loss Leave

    Who does the law apply to?  Employers with five or more employees and the state and any political or civil subdivision of the state, including, but not limited to, cities and counties.

    Who is eligible to take reproductive loss leave?  An employee that has worked for the employee for 30 days and has suffered a reproductive loss event.  A “reproductive loss event” is defined as “the final day of a failed adoption, failed surrogacy, miscarriage, stillbirth, or an unsuccessful assisted reproduction.” “Assisted reproduction” “means a method of achieving a pregnancy through an artificial insemination or embryo transfer.” (Cal. Govt. Code sections 12945.6 (a)(1) and (7).)

    How much leave is an employee able to take, and when can they take the leave?  The employee is able to take up to five days of leave, which must occur within three months from the reproductive loss event.  However, if the employee uses Pregnancy Disability Leave (PDL) or leave under the California Family Rights Act (CFRA), the leave can commence within three months from the end of that leave.  The leave can be on nonconsecutive days.

    Can employees take Reproductive Loss Leave more than once?  Yes.  If an employee experiences more than one reproductive loss event within a 12-month period, an employer must allow the employee to take up to 20 days of Reproductive Loss Leave within a 12-month period.

    Are employees required to be paid on leave?  Reproductive Loss Leave shall be taken pursuant to any existing applicable leave policy of the employer.  In the absence of a leave policy, Reproductive Loss Leave is unpaid.  Employees can use sick, vacation, or other available paid leave.

    Are employees required to submit documentation?  No, the law does not require employees to submit any documentation or medical certification to take Reproductive Loss Leave.

    Anything else employers should know about Reproductive Loss Leave?  Yes!

    1. The law requires confidentiality.  All information employees provide to request Reproductive Loss Leave should be kept confidential and only shared with internal personnel or counsel as needed.
    2. Like with PDL and CFRA, employers may not interfere with an employee’s right to take Reproductive Loss Leave, or retaliate against employees for requesting or taking this leave.
    3. Employees should create written policies providing Reproductive Loss Leave to employees.
    4. It should be understood that employees undergoing a miscarriage, failed adoption, or other reproductive loss event are suffering mentally and/or physically.  Employers should provide notice to all employees on the availability of Reproductive Loss Leave.  Create a workplace that is open and inclusive and where employees can feel secure in their jobs and not fear retaliation from requesting or taking Reproductive Loss Leave.  Employers should be supportive of employees requesting this leave, not pressure them to work through it, and should also be understanding that allowing employees this leave to heal or grieve, will allow employees to come back to work more focused and able to perform at their best.
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    On October 4, 2023, Governor Newsom signed Senate Bill (“SB”) 616 into law.

    SB 616 amends the Healthy Workplaces, Healthy Families Act of 2014 (Labor Code sections 245-249) to increase the minimum number of paid sick days to which employees, including public employees, are entitled as well as the minimum number of days employees may carry over from one year of employment to the next. While these substantive changes do not apply to employees who are covered by certain Memorandums of Understanding (“MOUs”) or Collective Bargaining Agreements (“CBAs”), employees covered by such contractual agreements nevertheless will receive certain procedural protections against discrimination and retaliation related to the use of paid sick leave that they did not previously possess.

    Before SB 616 takes effect January 1, 2024, here is what your agency needs to know about the law, so that your agency can revise your personnel policies as necessary to comply with the new legal obligations.

    The Current Law

    The Healthy Workplaces, Healthy Families Act of 2014 (Labor Code sections 245-249) establishes paid sick leave entitlements for most employees in California.

    Currently, the substantive benefits and procedural protections under the law do not extend to employees who are covered by an MOU or a CBA that provides the following: (1) paid sick days, leave or time off; (2) final and binding arbitration; and (3) a regular hourly rate of pay not less than thirty percent (30%) more than the state minimum wage (i.e., $20.80 per hour on January 1, 2024 when the minimum wage increases to $16.00 per hour).

    Under the current law, employers must allow covered employees to accrue paid sick leave at a rate not less than one (1) hour of leave accrued for every 30 hours of work (known as the 1:30 accrual rate). Employers may use a different accrual method, so long as employees receive a minimum of three (3) days (or 24 hours) of paid sick leave by the employees’ 120th calendar day of employment. Alternatively, current law allows employers to front-load the “full amount of leave” (i.e., providing three (3) days (or 24 hours) of paid sick leave) at the beginning of each year of employment, calendar year, or 12-month period).

    While current law entitles covered employees to accrue and carry over from one year of employment to the next a certain amount of paid sick leave, the law does not require employers to allow employees to accrue more than six (6) days (or 48 hours) of paid sick leave nor does the law require employers to allow employees to carry over more than three (3) days (or 24 hours) of such leave. If an employer elects to front-load sick leave, the employer is not obligated to allow employees to carry over any sick leave that they may have remaining at the end of the year because there is the understanding that employees will receive their full allocation of sick leave at the beginning of the next year of employment, calendar year, or 12-month period.

    The current law also only provides procedural protections to covered employees (i.e., those not subject to MOUs or CBAs like those defined above). Such employees receive statutory protection related to their use or attempted use of paid sick leave, including the right to use accrued sick leave and the right to be free from discrimination related to the use or attempted use of such leave and to be free from retaliation if they file a complaint with the Labor Commissioner regarding paid sick leave violations. Employees who are not covered by the Healthy Workplaces, Healthy Families Act are not entitled to these procedural protections currently.

    The New Paid Sick Leave Landscape

    The enactment of SB 616 will make a number of significant changes to paid sick leave entitlements for and procedural protections available to employees under the Healthy Workplaces, Healthy Families Act.

    The new law does not change 1:30 accrual rate set forth under the existing law. However, for employers that use a different accrual method, the law now requires that they provide employees a minimum of five (5) days (or 40 hours) of paid sick leave by the employees’ 200th calendar day of employment. This new statutory requirement supplements the existing requirement that such employers provide employees three (3) days (or 24 hours) of paid sick leave by the employees’ 120th calendar day of employment.

    Under the new law, the alternative front-loading approach remains available to employers, so long as the employer front-loads the “full amount of leave”, which under the new law is five (5) days (or 40 hours) of paid sick leave. 

    The new law also increases the minimum amount of paid sick leave that employers must allow employees to accrue to 10 days or 80 hours and increases the minimum amount of paid sick leave that employers must allow employees to carry over from one year of employment to the next to five (5) days or 40 hours. However, employers that elect to front-load five (5) days (or 40 hours) of paid sick leave are still not required to allow employees to carryover leave from one year to the next.

    Finally, the new law extends the procedural protections that were previously only available to employees who were not covered by an MOU or CBA to those that are covered by such a contractual agreement.

    Steps to Making Sure Your Organization Is Ready

    Given these significant changes to paid sick leave law, it is important that employers act promptly in order to ensure compliance with the new legal obligations when they take effect January 1, 2024.

    1. Review the Agency’s Paid Sick Leave Policies: Review the agency’s existing paid sick leave policy to ensure that the policy satisfies the new substantive requirements regarding accrual and carry-over of paid sick leave under the Healthy Workplaces, Healthy Families Act for employees who are covered by the law and entitled to those substantive benefits.
    2. Review the Agency MOUs or CBAs: Review and analyze the agency’s MOUs and CBAs to determine whether the agreements provide for (1) paid sick days, leave or time off; (2) final and binding arbitration; and (3) sufficient compensation to employees. If the MOUs or CBAs do not satisfy the requirements for exemption from the substantive requirements under Labor Code section 245, understand that the employees covered by such MOUs or CBAs will be entitled to those substantive benefits.
    3. Consider the Status of an Employee: For employers with part-time employees, consider the front-loading approach, which will likely reduce the administrative burden associated with the monitoring hours worked by employees who may work irregular hours.
    4. Provide Procedural Protections for All Employees: Extend the procedural protections set forth under Labor Code section 246.5 to all employees, including those that are covered by an MOU or CBA that satisfies the requirements for exemption from the substantive requirements of the Healthy Workplaces, Healthy Families Act.
    5. Communicate: Communicate to affected employee organizations any changes to policy or practice that the agency must make in order to comply with the changes to the law. An agency does not need to negotiate a change that is necessary in order to comply with the law, but it should communicate that it is changing its policy or practice and provide the employee organizations an opportunity to identify any negotiable effects or impacts of the decision and request to bargain those effects or impacts.
    6. Document, Document, Document: Maintain thorough records that the agency reviewed and, if necessary, revised its policies or practices to comply with the law.
    7. Consult Trusted Legal Advisors: If you are uncertain about how the changes in the law may affect your agency or if you need guidance in updating your policies, consider consulting with your trusted legal advisors.

    By following these steps, your agency can ensure that it is fully prepared for the changes that will take effect January 1, 2024.

    This article was originally published in October 2019.  The information has been reviewed and is up-to-date as of October 2023.

    Many workplaces and schools engage in Halloween celebrations, and with good reason.  LCW is no exception:

    However, Halloween parties can be scary for risk managers, as they carry the potential to put a few skeletons in an employer’s closet.  Here are some tricks to keep your Halloween party from raising the specter of liability:

    • Employees Should Know They are Free to “Ghost”.  Participation in any Halloween festivities should be entirely optional.  Employees may not feel comfortable celebrating Halloween; for some employees, it may be prohibited by their religious beliefs.  Nobody should be required to take part, and an employer should not tolerate teasing or ostracism of an employee who opts out.  It’s only fun if everyone’s having fun.
    • When Choosing Costumes, Don’t Let the Zombies Eat Your Brain.  Dracula, Frankenstein, Mickey Mouse, Elsa and/or Anna, a cowboy, an M & M, a puppy, any of the three PJ Masks. . . there are nearly unlimited options for inoffensive Halloween costumes.  And yet, every year, some ghouls make the news by wearing costumes that would give any employer nightmares.  Human Resources professionals can reduce this risk by providing common-sense guidance as to what is an appropriate costume for a Halloween celebration at the office:
      • An attempt to “wear” or parody another culture, religion, race, or identity is not a costume; it’s an exhibit in someone else’s lawsuit for harassment or discrimination.  It should go without saying that blackface or brownface is unacceptable.  The same is true of traditional cultural dress.  A good costume does not make one’s colleagues feel caricatured, mocked, or belittled for their protected characteristics.  On the other hand, an employee should not be prohibited from wearing expressions of his or her own identity.  Context matters.
      • At some point, Halloween shifted from being an opportunity for kids to get free candy to an opportunity for adults to free themselves of their inhibitions.  Inhibitions can be a good thing at work.  A Halloween costume should not expose any part of an employee’s body that ordinary work clothes would not.  If a costume is described by the seller as “sexy” or some euphemism therefor, it is probably better saved for a non-work outing.  Bottom line: the provisions of the employer’s dress code related to appropriate attire still apply.
    • No Creepy Behavior.   Despite HR’s best efforts, some employees may wear provocative costumes to the office.  This does not give other employees license to make comments or engage in conduct that would otherwise violate the employer’s harassment or other conduct policies.  If the behavior is beyond the pale, Halloween does not provide a get-out-of-Hades-free card.
    • Stay Safe Out There. If your employees work with equipment that may impact their health or safety, extra care should be taken to ensure that costumes do not imperil employees.  Some Halloween revelers like to accessorize costumes with fake weapons; realistic-looking toys could cause legitimate fear; these should not be allowed.

    If an employer utilizes these few simple tricks, the office Halloween party should be a treat, and the only stomachache a risk manager should suffer is from raiding the candy bowl.

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    The California Civil Rights Department recently modified the regulation (2 CCR § 11017.1) associated with California’s Fair Chance Act.  The regulation addresses an employer’s restrictions and obligations for considering an applicant or employee’s criminal history.  The modified regulation took effect on October 1, 2023.

    Employers should be aware of the modifications to this regulation, and should review their current hiring policies and practices and make any necessary or appropriate revisions.  We discuss some of the key modifications and clarifications below.

    Modifications & Clarifications to the Individualized Assessment

    California’s Fair Chance Act generally prohibits employers from inquiring about or using an applicant’s criminal history before the employer makes the applicant a conditional offer of employment, with some limited exceptions.

    When an employer intends to deny an applicant due to conviction history (either solely or in part) a position it conditionally offered to the applicant, the employer must first conduct an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.  As part of the individualized assessment, the employer must consider, at minimum, the following factors:

    1. The nature and gravity of the offense or conduct;
    2. The time that has passed since the offense or conduct and/or completion of the sentence; and
    3. The nature of the job held or sought.

    The modified regulation provides examples of the types of information that employers may consider for each of the above factors.  First, consideration of the nature and gravity of the offense or conduct may include:

    • The specific personal conduct of the applicant that resulted in the conviction;
    • Whether the harm was to property or people;
    • The degree of the harm (e.g., amount of loss in theft);
    • The permanence of the harm;
    • The context in which the offense occurred;
    • Whether a disability, including but not limited to a past drug addiction or mental impairment, contributed to the offense or conduct, and if so, whether the likelihood of harm arising from similar conduct could be sufficiently mitigated or eliminated by a reasonable accommodation, or whether the disability has been mitigated or eliminated by treatment or otherwise;
    • Whether trauma, domestic or dating violence, sexual assault, stalking, human trafficking, duress, or other similar factors contributed to the offense or conduct; and/or
    • The age of the applicant when the conduct occurred.

    Second, consideration of the time that has passed since the offense or conduct and/or completion of the sentence may include:

    • The amount of time that has passed since the conduct underlying the conviction, which may significantly predate the conviction itself; and/or
    • When the conviction led to incarceration, the amount of time that has passed since the applicant’s release from incarceration.

    Third, consideration of the nature of the job held or sought may include:

    • The specific duties of the job;
    • Whether the context in which the conviction occurred is likely to arise in the workplace; and/or
    • Whether the type or degree of harm that resulted from the conviction is likely to occur in the workplace.

    The modified regulation states that an applicant’s possession of a benefit, privilege, or right required for the performance of a job by a licensing, regulatory, or government agency or board is probative of the applicant’s conviction history not being directly and adversely related to the specific duties of that job.

    The modified regulation also requires employers to consider any evidence of rehabilitation or mitigating circumstances that is voluntarily provided by the applicant, or by another party at the applicant’s request, before or during the individualized assessment.

    Modifications & Clarifications to Employer’s Notice Obligations

    The modified regulations also amend and expand upon an employer’s notice obligations when, after conducting the individualized assessment, the employer makes a preliminary decision that the applicant’s conviction history disqualifies the applicant from the employment conditionally offered.  In that event, an employer is required to provide written notice to the applicant that contains all of the following:

    1. Notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer.
    2. A copy of the conviction history report utilized or relied on by the employer, if any (e.g., consumer reports, credit reports, public records, results of internet searches, news articles, or any other writing containing information related to the conviction history that was utilized or relied upon by the employer).
    3. Notice of the applicant’s right to respond to the notice before the preliminary decision rescinding the offer of employment becomes final.
    4. An explanation informing the applicant that, if the applicant chooses to respond, the response may include submission of (a) evidence challenging the accuracy of the conviction history report that is the basis for the preliminary decision to rescind the offer, or (b) evidence of rehabilitation or mitigating circumstances.
    5. Notice of the deadline for the applicant to respond, if the applicant chooses to do so, which must be at least five business days from the date of the applicant’s receipt of the notice (the modified regulation provides direction on determining when notice is received based on various methods of transmission).

    The modified regulation provides a number of examples of evidence, including documentary evidence, of rehabilitation or mitigating circumstances that applicants may provide.  Employers cannot require applicants to provide evidence of rehabilitation or mitigating circumstances.  If, however, applicants choose to provide that information, employers must accept it.

    The modified regulation further prohibits employers from taking a number of actions during this process, including:

    1. Requiring an applicant to provide a specific type of documentary evidence (e.g., a police report as evidence of domestic or dating violence);
    2. Disqualifying an applicant from the employment conditionally offered for failing to provide any specific type of documents or other evidence;
    3. Requiring an applicant to disclose their status as a survivor of domestic or dating violence, sexual assault, stalking, or comparable statuses; and/or
    4. Requiring an applicant to produce medical records and/or disclose the existence of a disability or diagnosis.

    As under the prior regulation, if an applicant provides timely written notice to the employer that the applicant disputes the accuracy of the conviction history and is taking specific steps to obtain evidence supporting the applicant’s assertion, then the applicant must receive at least five additional business days to respond before the employer’s decision to rescind the conditional employment offer becomes final.

    Also as under the prior regulation, employers must consider any information submitted by the applicant before making a final decision regarding whether or not to rescind the conditional offer of employment.  The modified regulation, however, provides that when considering evidence of rehabilitation or mitigating circumstances, employers may consider the following factors in addition to those set forth above as part of the individualized assessment:

    1. When the conviction led to incarceration, the applicant’s conduct during incarceration, including participation in work and educational or rehabilitative programming and other prosocial conduct;
    2. The applicant’s employment history since the conviction or completion of sentence;
    3. The applicant’s community service and engagement since the conviction or completion of sentence, including but not limited to volunteer work for a community organization, engagement with a religious group or organization, participation in a support or recovery group, and other types of civic participation; and/or
    4. The applicant’s other rehabilitative efforts since the completion of sentence or conviction or mitigating factors.

    Employers remain obligated to provide written notice to an applicant when the employer makes a final decision to rescind the conditional offer and deny an application based solely or in part on the applicant’s conviction history.  Employers may use the sample Final Notice to Revoke Job Offer form, and other forms, from the California Civil Rights Department.

    Expanded Definition of “Applicant”

    The modified regulation expands the definition of “applicant” to generally include:

    1. Any individual who files a written application or, where an employer or other covered entity does not provide an application form, any individual who otherwise indicates a specific desire to an employer or other covered entity to be considered for employment;
    2. Individuals who have been conditionally offered employment, even if they have commenced employment when the employer undertakes a post-conditional offer review and consideration of criminal history;
    3. Existing employees who have applied or indicated a specific desire to be considered for a different position with their current employer; and
    4. An existing employee who is subjected to a review and consideration of criminal history because of a change in ownership, management, policy, or practice.

    Certain Positions Remain Exempt from the Pre-Conditional Offer Inquiry/Use Prohibition

    Under the modified regulations, certain positions continue to be exempt from the prohibition on pre-conditional offer criminal history inquiry and use.  For example, employers may continue to inquire about or use criminal history before a conditional offer of employment for positions with criminal justice agencies, or for positions for which a state, federal, or local law requires an employer to conduct criminal background checks or to restrict employment based on criminal history.

    The modified regulations do, however, clarify that in order for the exemption to apply for positions for which a state, federal, or local law requires an employer to conduct criminal background checks or to restrict employment based on criminal history, the applicable law must require that the employer – and not another entity (e.g., an occupational licensing board) – conduct the criminal background check.

    Modifications & Clarifications to the “Job Related and Consistent with Business Necessity” Burden Shifting

    If an applicant or employee demonstrates that an employer’s policy or practice of considering criminal convictions creates an adverse impact on applicants or employees based on classifications protected by the Fair Employment and Housing Act, the burden shifts to the employer to establish that the policy or practice is nonetheless justifiable because it is job-related and consistent with business necessity.  In doing so, the employer must take into account at least the following factors:

    1. The nature and gravity of the offense or conduct;
    2. The time that has passed since the offense or conduct and/or completion of the sentence; and
    3. The nature of the job held or sought.

    The modified regulation clarifies that if an employer demonstrates that its policy or practice of considering criminal convictions is job-related and consistent with business necessity, adversely impacted employees or applicants may still prevail in a claim against the employer if they can demonstrate that there is a less discriminatory policy or practice that serves the employer’s goals as effectively as the challenged policy or practice, such as a more narrowly targeted list of convictions or another form of inquiry that evaluates job qualification or risk as accurately without significantly increasing the cost or burden on the employer.

    Final Note

    As this article does not address every aspect of the modified regulation, employers are encouraged to contact trusted legal counsel to assist with fully understanding all of the modifications and their impact on the employer’s hiring policies and practices.