California Public Agency Labor & Employment Blog

California Public Agency Labor & Employment Blog

Useful information for navigating legal challenges

Three Tips For An Effective Workplace Security Plan

Posted in Workplace Policies

This post was authored by Melanie L. Chaney.

Recent national events remind us that violence in the workplace has been, and continues to be, a huge issue for employers. The beginning of a new year is a great time for reflection on events from the previous year, identifying any lessons learned, and making any necessary adjustments.

In California, the law imposes a duty on all employers to provide a safe workplace. All employers are required to have a workplace security plan.  If your agency does not have a workplace security plan, or if the plan has not been reviewed recently, we recommend taking the time now to address the matter.   Here are a few preventative measures employers should incorporate into an effective workplace security plan.

  1. Demonstrate a strong management commitment to preventing workplace violence.

All employees should be made aware that the agency is committed to providing a safe work environment that is free of violence and that management will not tolerate violence, or the threat of violence, against or by any employee.

The security plan should provide that management will investigate and appropriately deal with any reported act of violence or threat of violence. Dealing with threats of violence can be particularly challenging. In the majority of cases, a threat will not lead to a violent act.  However, a threat affects workplace security and requires a response.  No threat should be taken lightly.  All threats, whether idle or serious, should be taken seriously and investigated. Every case should be examined and evaluated on the basis of its particular nature and circumstances. Even if, after investigation, it is determined that a threat was made in jest, a record of the threat should be made. If a pattern develops, threats that appear harmless in the beginning may turn out to be indicative of a more serious problem.

  1. Have a clear, written workplace violence policy provided to employees.

It is critical to ensure that all employees know the workplace violence policy and understand that all claims of workplace violence will be investigated and remedied promptly. Accordingly, the workplace violence policy should be provided to all employees and be easily accessible. The policy should make clear to all employees that engaging in violence or the threat of violence is unacceptable and could lead to discipline, up to and including termination, and/or criminal prosecution.

The policy should also provide a system for employees to communicate information about workplace security hazards, including means by which employees can inform the employer of hazards without fear of reprisal. The policy should expressly state that any person, acting in good faith, who initiates a complaint or reports an incident under the policy, will not be subject to retaliation or harassment.

  1. Provide workplace violence prevention training and education for all employees.

Training is a key factor in an effective workplace security plan. The agency should regularly train and educate all employees, supervisors, and managers regarding risk factors, crime awareness, assault and rape prevention, how to diffuse hostile situations, and what steps to take during an emergency.

If you need any assistance with developing or reviewing your workplace security plan or anti-violence policies, attorneys at all LCW offices are available to consult.

California Supreme Court Rules that State Law Requires a Different Regular Rate of Pay Calculation than the Fair Labor Standards Act

Posted in FLSA, Wage and Hour

The post was authored by Lisa S. Charbonneau.

On March 5, 2018, the California Supreme Court issued a decision in the case Alvarado v. Dart Container Corporation, in which employee Hector Alvarado sued his employer under the California Labor Code for back overtime compensation under the theory that his employer had incorrectly calculated his “regular rate of pay.”

Under both the California Labor Code and the Federal Fair Labor Standards Act (FLSA), the regular rate of pay is the rate an employer must use to pay overtime premiums to employees who work overtime hours. The regular rate of pay can change from workweek to workweek because it must reflect the per-hour value of all compensation the employee has earned. This includes additional compensation an employee could earn on an hourly basis (e.g., shift differentials or on-call pay) and any non-hourly compensation an employee could earn (e.g., a flat dollar amount for a bonus or bilingual pay).  Specifically at issue in Alvarado was how to calculate the per-hour value of a lump sum bonus of $15 per day paid for work performed on a weekend day for purposes of the regular rate under California law.[1]

Regulations promulgated by the U.S. Department of Labor (DOL) unequivocally state how to calculate an employee’s regular rate under the FLSA when he or she is paid a lump sum bonus. As set forth in the DOL regulations at 29 C.F.R. section 778.110(b), to calculate the per-hour value of a lump sum bonus under the FLSA, an employer must divide the weekly bonus amount by the total hours actually worked by the employee in the week.[2]  In Alvarado, the employer followed the FLSA in its method of calculating the regular rate when an employee was paid the $15 per day bonus.  The plaintiff challenged this method as illegal under State law.

In a matter of first impression, the California Supreme Court in Alvarado departed from the Federal regular rate standard, opining that under State law, the per-hour value of a lump sum bonus such as that paid to Mr. Alvarado must be calculated by dividing the lump sum bonus by the number of non-overtime hours actually worked in the week.  Applied to the example in footnote 2, under California law as announced in Alvarado, to arrive at the per-hour value of the $75 bonus, the employer must divide the $75 by 40, the number of non-overtime hours actually worked in the week.  The California method results in a per-hour value of $1.88 (as opposed to the $1.50 result under the FLSA), which would be added to the $30 hourly rate for a regular rate of $31.88 (as opposed to the $31.50 result under the FLSA).

The California Supreme Court’s Alvarado decision is limited to flat-sum bonuses or pays (e.g., $75 a week, $300 per month or any flat dollar amount that can be converted into a weekly equivalent).   As such, other pays which are not flat-sum amounts are likely not covered by the decision.

The significance of Alvarado for private sector employers in California may be great where employers have been relying on the FLSA to incorporate non-discretionary lump sum bonuses (or other flat-sum payments) into the regular rate calculation.  The significance of Alvarado for most public sector employers, however, is negligible.  Although Alvarado sets a new standard for calculating the regular rate under the California Labor Code, most public sector agencies are exempt from the requirements of the California Labor Code and need only comply with the overtime requirements of the FLSA.  Indeed, for public sector employers, this decision offers clarity in that the California Supreme Court has confirmed that under the FLSA, the required regular rate divisor is that of all hours actually worked, not just all non-overtime hours worked.

This decision is also a reminder of the importance of clearly articulating negotiated forms of compensation in labor agreements. Failure to specify whether a payment is purely hourly, paid on a certain number of hours, or has no bearing on hours may have unintended FLSA regular rate consequences.  For example, if you do not intend on paying an agreed upon additional hourly pay for overtime hours, state that clearly in your MOU.

If you have questions about whether your agency is covered by State wage and hour laws and therefore subject to the holding in Alvarado v. Dart Container Corporation, or about any other aspect of this decision our attorneys are available to help with your questions.

[1] Under California and Federal law, non-discretionary bonuses must be included in the regular rate of pay. 

[2] For example, where an employee paid $30 per hour works 50 hours in a week and earns a bonus (or other lump sum includable in the regular rate) of $75 for the week, under the FLSA, the regular rate of pay is calculated as follows:  $30 x 50 = $1500 + 75 (for the additional bonus) = $1,575.00.  $1,575.00 divided by 50 = regular rate of pay of $31.50.  As you can see, under the FLSA, the per-hour value of the bonus is divided by the total hours actually worked by the employee.


Supreme Court Hears Oral Argument on Agency Shop Fees Case

Posted in Labor Relations

This post was authored by Joshua A. Goodman.

In October 2017, we reported  that the U.S. Supreme Court agreed to review Janus v. AFSCME, a case out of Illinois challenging the constitutionality of mandatory agency shop fees for public employees.  Illinois, like California, is one of several states where agency shop arrangements are authorized in the public sector.

An agency shop requires that, as a condition of employment, an employee within the defined bargaining group either join the recognized employee organization, or pay a service fee to the organization (typically an equivalent amount) for collective bargaining and other activities conducted on the employee’s behalf.  However, the Supreme Court has held that unlike union dues, agency shop fees may not be used to express political views, support a political candidate, or otherwise advance an ideological cause unrelated to collective bargaining, as doing so violates First Amendment free speech principles.

The plaintiffs in Janus assert that an agency shop arrangement likewise infringes on their free speech rights because collective bargaining with a government agency is essentially tantamount to political speech intended to influence policymaking.  The Supreme Court addressed, and rejected, the same argument 40 years ago in Abood v. Detroit Bd. of Ed.  Thus, the plaintiffs in Janus have requested that Abood be overruled.

This is not the first time the Supreme Court has considered overruling Abood.  The same issue recently arose in the 2016 case of Friedrichs v. California Teachers Assoc.  However, that case resulted in a 4-4 split among the justices at a time when the ninth seat on the Court was vacant following the death of Justice Antonin Scalia.  As a result, Abood remained the law.

Oral arguments at the Supreme Court in Janus were heard by the justices on February 26, 2018. The justices and lawyers addressed issues including, but not limited to, the “free-rider” issue of non-dues/fee payers benefitting from union representation, the efficacy of unions and the number of collective bargaining contracts that may be invalidated if Abood is overturned, the scale and scope of matters within the realm of public concern, and the impact of the decision on labor peace.

While Friedrichs had a split vote, that will not happen in Janus because Justice Neil Gorsuch was appointed to fill the vacant position. Analysts predict that Abood will now be overruled, effectively putting a stop to agency shop arrangements in every state.

A decision is expected by June 2018.  As an initial step, agencies with agency shop agreements should review their collective bargaining agreements to determine if there is a severability clause and the parameters of these clauses. A severability clause essentially provides that if any provision of the contract is deemed to be illegal, the rest of the terms of the agreement survive. Agencies may receive requests from union representatives trying to anticipate and/or determine next steps. Specific strategies on how to respond will need to be developed with your agency’s chief negotiators and legal counsel, and of course will ultimately depend on the final decision in Janus.

We will continue to monitor the case and provide updates as they become available. 

CalPERS Reduces Amortization Period with Impacts to Employer Contribution Rates

Posted in Retirement

This post was authored by Stephanie J. Lowe and Frances Rogers.

The California Public Employees’ Retirement System (CalPERS) recently decided to change its Actuarial Amortization Policy (“Amortization Policy”), which will impact employer contribution rates for contracting agencies. The revised Amortization Policy will go into effect for public agencies in the 2021-2022 fiscal year, which will be based on the June 30, 2019 actuarial valuations.  The policy changes include:

  • Shorter amortization periods from 30 years to 20 years.
  • Level dollar amortization payments for unfunded accrued liability (“UAL”) bases
  • Elimination of 5-year ramp-up and ramp-down on UAL bases attributed to assumption changes and non-investment gains and losses that occur on or after the effective date of the policy change.
  • Elimination of 5-year ramp-down on investment gains and losses occurring on or after the effective date of the policy change.
  • A 15-year maximum amortization period for inactive employers (this provision is effective for the June 30, 2017 actuarial valuations).

In layman’s terms, an amortization period broadly refers to the length of time which a borrower pays off a debt. CalPERS amortizes gains and losses in investments over a standard amortization period which is currently 30 years.  Longer amortization periods generally provide lower annual contributions but greater cumulative contributions due to interest costs.  Further, to control rate volatility, the current policy uses “direct rate smoothing” that phases in certain costs associated with actuarial assumptions over a 5-year period and phases them out again during the last 5 years of the amortization period (i.e., the ramp-up and ramp-down).

According to CalPERS, the combination of the current amortization schedule, “direct rate smoothing,” and the payment escalators have contributed to more “negative amortization” in the earlier years of the amortization schedule.  Negative amortization means the payments on the debt are not sufficient to cover the interest accrued on that debt.  Thus, reducing an amortization period, as well as eliminating direct rate smoothing for most sources of unfunded liability, can provide faster recovery of funded status following market downturns and decrease expected cumulative contributions, according to a CalPERS Finance and Administration Committee report.

While contracting agencies had the voluntary option to contribute based on a 20 or 15 – year amortization period, most contribute on the 30-year schedule because employer contribution rates remain lower. Thus, agencies on the 30-year schedule will experience higher employer contributions once the revised amortization policy goes into effect.  The change to the amortization base established prior to the effective date of this new policy will continue according to the employer’s current schedule.

Level Dollar Amortization for UAL Payments

Under the current policy, payments on changes that adversely impact an employer’s UAL base begins with a lower initial payment that increases each year by the payroll growth assumption (“escalator” approach). The revised Amortization Policy will require agencies to pay a higher initial amortization payment for changes in the UAL base established on or after the effective date of the new policy, and thereafter the employer will a level dollar amount throughout the remainder of the amortization period, assuming no changes to the discount rate or amortization methods occur.  This will result in higher initial payments, but is expected to reduce interest costs and eliminate negative amortization.

Elimination of Direct Rate Smoothing for Non-Investment Impacts

The current Amortization Policy utilizes direct rate smoothing, or a “ramp-up” and “ramp-down” approach, for phasing-in contribution increases resulting from changes in actuarial assumptions and non-investment gains and losses. This allows for gradual contribution increases in the first five years of the amortization period and gradual lower payments in the last five years.  The policy now eliminates this direct rate smoothing due to a change in actuarial assumptions or experience and non-investment gains and losses.  The policy will keep ramp-ups for investment gains and losses.

Elimination of Ramp-Downs for Investment Gains and Losses

Under the current policy, CalPERS allows a “ramp-down” in base payments for investment gains and losses at the end of the amortization period. For example, under a 30 year amortization period, agencies would pay a reduced percentage of the base payment in the final four years for investment gains and losses (80% of the base payment in Year 27, 60% in Year 28, 40% in Year 29, and 20% in Year 30).  The policy changes completely eliminate all ramp-downs, which includes ramp downs for investment gains and losses, UAL due to a change in actuarial assumptions, and non-investment gains and losses.

Amortization Periods for Inactive Employers

Public agencies without active CalPERS members are subject to a closed amortization period of no more than 15 years. This change will begin with the June 30, 2017 actuarial valuations.

Effect on CalPERS Agencies

Annual actuarial valuation reports published by CalPERS for each contracting agency already contain information regarding the 20-year amortization schedule as an alternative to the 30-year schedule. An agency can refer to these reports to see what the agency’s balance and payment structure would be like under a 20-year amortization schedule, although they do not necessarily reflect all impacts of the changes in the Amortization Policy.

Under the revised policy, employers will experience additional contribution rate increases over the next few years. Employers may also see higher year-to-year contribution increases due to actuarial losses than would otherwise be expected under the current policy.  Agencies should prepare for these increased costs as they prepare for future negotiations and long-term budgeting.

Changes to Projections Due to Reduction in Discount Rate

According to the CalPERS Finance and Administration Committee report, the policy changes will also affect amortization projections and payments related to the scheduled discount rate change from 7.25 percent to 7 percent. The discount rate, or rate of return, is the percentage of expected returns on investments CalPERS makes.  In December 2016, the CalPERS Board voted to adopt an incremental reduction in discount rate over a three-year period beginning with the 2018/2019 fiscal year for contracting agencies.  Each one of the three reductions to the discount rate have a five-year ramp up.  The result is a long-term payment of interest-only.  Projections on the impact to employer contribution rates as a result of the lowered discount rate did not take into consideration a reduced amortization period that goes into effect with the 2021-2022 fiscal year.  The new changes to the Amortization Policy could result in unanticipated increases to employer contributions.

Tied into the changes in the Amortization Policy, the CalPERS Board of Administration recently approved new actuarial assumptions based on a study of CalPERS membership. CalPERS released Circular Letter 200-014-18 (February 8, 2018) to inform agencies that the assumption changes will impact employer contribution requirements by increasing the percentage of payroll costs and the employer UAL contribution. CalPERS will implement the new actuarial assumptions with the June 30, 2017 actuarial valuations, which will set the employer contribution requirements effective July 1, 2019.

For more information on these changes, please contact one of our offices. The issues presented here are not exhaustive so please consult with legal counsel for further information.

U.S. Appeals Court Tells Public Employers to Stay Out of Employee’s Bedrooms

Posted in Employment, Privacy, Public Safety Issues

This blog was authored by Megan Lewis.

Earlier this month, in Perez v. City of Roseville, the U.S. Court of Appeals held that terminating a police officer for engaging in an off-duty, extramarital affair with a co-worker could violate the officer’s right to privacy under the U.S. Constitution.

Background Facts

Perez, a probationary police officer, was initially reprimanded after an internal affairs investigation revealed that she had been involved in an off-duty sexual relationship with a fellow officer. (The investigation was initiated by a complaint from the second officer’s wife.) Though the investigation found no evidence of on-duty sexual contact between the two officers, the investigator found a number of calls and texts between them while one or both was on duty, which “potentially” violated Department policy. Perez was reprimanded for “conduct unbecoming” and “unsatisfactory work performance.”

The officer appealed the reprimand and, after her appeal hearing, she was terminated by the Police Chief without explanation. The Chief claimed he made the decision to terminate Perez based on performance issues that arose after the internal affairs investigation that were unrelated to the affair.

The Court of Appeals’ Ruling

The officer filed an action in federal court alleging among other things that her termination violated her constitutional rights to privacy and intimate association because it was impermissibly based in part on management’s disapproval of her private, off-duty sexual conduct. The trial court granted summary judgment for the City, but the Court of Appeals reversed as to the privacy and intimate association claims because Perez had presented sufficient evidence that “[a] reasonable factfinder could conclude that [the Internal Affairs Captain overseeing the investigation] was motivated in part to recommend terminating Perez on the basis of her extramarital affair, and that he was sufficiently involved in Perez’s termination that his motivation affected the decisionmaking process.” Perez now has an opportunity to prove her allegations at a trial.

The appellate court stated it has “long held” that public employers must take care not to “encroach excessively or unnecessarily upon the areas of private life,” or to “eliminate the development of ordinary human emotions from the workplace…unless such development is incompatible with the proper performance of one’s official duties.” Therefore, the Court held, terminating a police officer for private, off-duty sexual conduct violates the “constitutional guarantees of privacy and free association” unless the department can demonstrate that “such conduct negatively affects on-the-job performance or violates a constitutionally permissible, narrowly tailored regulation.”

What does this mean for your agency?

The Court viewed the case as addressing “how much control the government can force individuals to cede over their private lives in exchange for the privilege of serving the public by means of government employment.” The answer seems to be not much (at least in terms of off-duty sexual conduct) unless the conduct negatively impacts the employee’s performance or violates a legitimate policy.

The majority opinion was authored by Judge Stephen Reinhardt with full agreement from a Montana federal court judge sitting temporarily with the Court of Appeals. Judge A. Wallace Tashima issued a strongly worded concurrence that also included major disagreements with Reinhardt. Whether either side seeks review by the U.S. Supreme Court remains to be seen. However, the bottom line is that this decision was not a final victory for Perez. The case was returned to the trial court in Sacramento where Perez will need to prove at trial that the true reason for her termination was her managers’ personal disapproval of her off duty conduct. As a probationary employee, she was subject to termination for any reason, or indeed no reason, as long as the reason was not an illegal one.

Public Employers Dealing with Employees with Disabilities Can Feel Like Being Stuck on the California Freeways

Posted in Disability, FMLA

La_city_hwysFans of the late night television show Saturday Night Live probably have seen the recurring sketch called, “The Californians.”  “The Californians” is a soap opera, and the characters portray Californian stereotypes, such as poking fun at the way Californians speak and drive and their obsession over traffic.  One of the recurring jokes is that Californians regularly discuss which freeways and roads they take to get somewhere.  The characters constantly reference the 405 or the 10 (common freeways in Los Angeles).

Discussing disability issues with employees can often feel like a discussion in “The Californians.”  Only, instead of freeways and roads, employees constantly throw out terms like “accommodation,” “medical leave,” “workers’ compensation leave,” “pregnancy,” “maternity leave,” or “injury.”  Employees often reference taking FMLA (Family Medical Leave Act) even if they do not know what it stands for or what a serious health condition means.

Disability issues can get complicated when different leaves intersect and overlap.  Employees may not know the difference between FMLA, California Family Rights Act (CFRA) and Pregnancy Disability Leave (PDL).  However, employers are not only expected to, but can be held liable, if they do not apply the leaves correctly and deny an employee a statutorily protected right.  For example, FMLA now has a section entirely dedicated to military leave and circumstances that warrant leave for an employee who is a family member of a military serviceman or woman. Moreover, when an employee’s leaves under FMLA/CFRA expire, the employer is then confronted with a whole new set of rights and obligations under the American with Disabilities Act (ADA) and Fair Employment in Housing Act (FEHA) which require employers to engage in a timely, good faith interactive process.  Moreover, the new CFRA regulations restrict how often employers can request a certification and an employer’s ability to contact an employee’s doctor to seek clarification about the employee’s work restrictions.  But what if the employer is confronted with a situation of revolving doctor notes and there is no end in sight?  How much leave does an employer have to provide before it becomes unreasonable?  And how do you respond to the employee who demands that the employer pay the costs for an accommodation that the employer feels is an unreasonable expense for the agency to absorb?

And where does workers’ compensation fit in to all of this?  Workers’ compensation claims can take years to litigate.  What is the employer required to do with the disabled employee who cannot return to his/her essential job duties during this time?  The worker’s compensation attorney may be telling the employer that the employee cannot be separated until the claim is either accepted or denied or a specific treatment is authorized.  But how long will that take?  And then what? Does the employer have to wait until all treatment options are exhausted?  All the while, the department head is getting frustrated because the employee has been on leave for six months with no indication of return and wants to terminate him/her.  The job must get done!  And, if you have public safety officers, where does 4850 leave tie in?  And what benefits need to be provided during all of these different leaves?

And what happens when the interactive process breaks down and no reasonable accommodation is available or the employee refuses a vacant alternate position?  Can the employer terminate the employee?  Where does disability retirement come in and what due process is owed to the employee?  And what if somewhere in all of this, the employee commits an act of misconduct – can the employer terminate now?  Like the seemingly never ending freeways – where does it end?!

First – Remain calm!

Second – Determine which leaves apply and when.  It may be helpful to create a timeline detailing all of the applicable leaves and how much time they afford the employee.

Third – Gather all of the relevant documentation.  Do you have all of the information you need to designate the leave as FMLA/CFRA or to engage in the interactive process.

Fourth – Once the need for reasonable accommodation arises either by the employee’s request or by the employer’s knowledge of the employee’s disability, the employer must engage in the interactive process. It is as follows:

 Analyze job functions and establish essential and nonessential job tasks;

 Identify precise limitations of the position held by the employee;

 Identify possible accommodations and assess how each will enable the employee to successfully perform the position; and

 Consider the preference of the employee or applicant to be accommodated and implement the accommodation that is most appropriate for both the employee/applicant and the employer.

 In selecting from among several alternatives of reasonable accommodation, the expressed choice of the employee/applicant must be given primary consideration unless another equally effective accommodation exists which may be utilized instead.

Tips from the Table: Grievances & Statute of Limitations Provisions For Contract Violations

Posted in Labor Relations

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

Influenza Season Strikes Again: What Employers Should Do to Minimize the Effects on Your Workforce

Posted in FMLA

This blog was authored by Lisa S. Charbonneau.

Flu season is upon us again. This year hospitals across California have reported unusually high numbers of patients with flu-like symptoms  and news outlets say this flu season is on track to being the worst in 10 years.   What, if anything, can employers do to manage and minimize the effects of flu season on employees?

Employees Should Take Advantage of Their Available Sick Leave

Many employees come to work sick or fall ill at work but do not leave. Employees who are sick in the work place may cause the sickness to spread to other employees, leading to productivity loss.  To best promote the use of sick leave when employees are sick, employers should clearly inform employees that they are expected to use their sick leave when necessary and if they experience symptoms at work, they should go home – and stay home until they have recovered.  Importantly, managers who come to work sick set a poor example for their supervisees.  Therefore, managers should be similarly advised not to come to work while sick or displaying flu-like symptoms.

Send Home Employees Who Show Visible Signs of a Contagious Illness at Work

An employer can require an employee to go home if he or she is showing signs of a contagious illness – even if the employee does not want to leave work. The best practice is to take this action when an employee shows extreme signs of illness, e.g. loud and repeated coughing, hacking, or sneezing.  When sending an employee home due to visible illness, employers must ensure they are acting in a non-discriminatory, non-retaliatory, and neutral manner.  Employers should consider establishing policies or procedures with language confirming the right to remove sick employees from the workplace.

Employees May Use Sick Leave to Care for Family Members with the Flu

California’s Paid Sick Leave Law provides that employees may use up to one half of their annual accrued sick leave to care for their family members. The definition of family members is quite broad; the term includes children, parents, spouses, domestic partners, grandparents, grandchildren, siblings, and parent-in-laws.  Employers cannot deny an employee the right to use protected paid sick leave and are prohibited from retaliating against employees for using such leave.

The Flu Could Trigger FMLA/CFRA Entitlements

If the flu constitutes a “serious health condition” under the FMLA/CFRA, an affected employee would be entitled to avail themselves of their FMLA/CFRA rights, including by taking protected leave for their own flu or to care for a family member with the flu (assuming all other legal requirements are met). The flu may be a “serious health condition” if the employee is unable to work or perform other regular daily activities for three consecutive calendar days and the employee requires treatment from a healthcare provider twice within thirty days and/or requires continuing treatment under the supervision of a health care provider.

Although employers cannot escape influenza season, employers do have tools to address the effects of contagious illnesses in the workplace. For more information on leave entitlements for California employees, including California’s new Protected Paid Sick Leave Law, please visit the LCW Liebert Library here:

And don’t forget to wash your hands!


Trouble-Shooting the Hiring Process for a Public Agency

Posted in Hiring

This post was authored by David Urban.

The stock market is at all-time highs, and unemployment and inflation are low. For many California public sector employers, the strengthened economy means more hiring.  Although this is good news, the hiring process does carry legal risks, just as did downsizing and other similar matters in bad economic times.

Here are six areas of the hiring process in the public sector that deserve particular attention from a legal perspective.  This is not an exhaustive list of such areas, or a complete list of considerations, but it provides a general framework for what to trouble-shoot before hiring begins in earnest.

  1. Utilize Accurate Job Descriptions: At the very outset of the hiring process, it is critical to develop accurate and sufficiently detailed job descriptions.  These will prove important not only for hiring, but also for legal issues that may arise later during the course of the employment relationship.  An accurate job description will help the agency demonstrate that questions on job applications and during interviews are legitimate and non-discriminatory, and help those in the hiring process focus on eliciting those facts that are job-related.  Also, in the context of disability discrimination laws, in both the hiring process and during employment, an agency’s identification of the “essential functions of the job” will be critical.  Under both federal and state law, a court will treat the job description prepared by the employer prior to advertising or interviewing for the job as evidence of what constitute essential functions.

Detail in the job description can also be very important, because vague or overly general job descriptions may not provide proper guidance either to applicants deciding whether to seek the job, or to agency personnel making the hiring decisions. Misunderstandings about the nature of the job can produce charges of discrimination or of failure to accommodate.  At a minimum, a job description should contain: (a) justifiable job-related educational requirements, (b) necessary vocational skills, (c) required work experience, (d) examples of duties, (e) unusual physical requirements, (f) work hours, and (g) compensation.  Where possible, job requirements should be validated by experts using professionally accepted validation methods.

  1. Establish a Uniform Screening Process for Applications: The next phase to consider is the initial “screening” of applications for those who are not qualified or not competitive in light of the quality and experience of other applicants.  As a general matter, an employer’s initial “screening” must be conducted in a neutral manner that does not result in an unjustifiable disproportionate impact with regard to a protected characteristic, such as race, gender, religion, and age over 40.  Accordingly, the agency should establish a set of job-related screening criteria which do not result in exclusion of individuals who are qualified and competitive for the job.  The agency should also have a process in place to make a separate review of the fairness and appropriateness of screening criteria, to make sure the screening guidelines are followed uniformly, and to confirm that decisions were not influenced by improper considerations.
  2. Focus Interviews on Job-Related Questions, and Avoid Improper Questions: Like other aspects of the hiring process, interviews must be conducted in a non-discriminatory manner.  Questions should focus on qualifications for the job in question, and not pertain to protected characteristics.  Some unlawful questions are straightforward, such as asking about an applicant’s race, age, religion, or other protected characteristics.  But according to the Department of Fair Employment and Housing (“DFEH”), the list also encompasses some questions that bear indirectly on these matters, such as questions about the date of completion of school, religious days the applicant observes, or the applicant’s birthplace.  There are, however, ways questions can be phrased to request information the employer legitimately needs without creating an impression of bias.  (For example, it would be appropriate to ask which languages an applicant speaks, but only if relevant to the job at issue.)

It is vital that agencies ensure that those employees conducting interviews have received training in what constitute protected classifications, and what questions are prohibited. Also, interviewers should be thoroughly familiar with the job description and the nature of the job in question.

  1. Background Investigations, Including Reference Checks: Background investigations pose unique legal challenges.  To fill some positions such as police officer, a public agency is actually required by law to conduct such an investigation.  However, applicants have state and federal constitutional privacy rights that bear on what information an agency can seek and in what manner the information may be sought.  Also, an agency must be careful to abide by the same anti-discrimination standards in conducting the background investigation that are required in all other aspects of the hiring process.  Further, there are federal and state statutes that may govern how the investigation is conducted.

An important step in the background investigation process is obtaining a signed waiver and authorization from each selected applicant.  The waiver/authorization should inform the applicant of the types of information the agency will request from the applicant’s current or former employers.  It should also require the applicant to release the agency and current or former employers from liability arising from the background investigation.  The document can also require the applicant to authorize access to, and/or to require the applicant to obtain a copy of, the applicant’s personnel file from prior employers.  It may be appropriate for the investigator actually to meet with the applicant to explain the process and make sure the applicant fully understands what types of information the agency will seek.

  1. Keep Pre-Offer and Post-Offer Separate: Generally, under both federal and state law, employers cannot ask questions about disabilities or require medical examinations prior to making a conditional offer of employment.  The EEOC has described that a “conditional offer of employment” is a real job offer that is made after the employer has evaluated all relevant and lawful non-medical information which could reasonably have been obtained and analyzed prior to making the offer.  The offer is conditioned upon acceptable medical information, such as passing a job-related medical examination that is directly related to job performance and business necessity.  Typically, for a conditional job offer to be “real,” an employer cannot conduct medical examinations or otherwise elicit medical information until after the employer has evaluated all relevant non-medical information, and offered employment subject only to the medical exam.

Agencies should audit their practices to ensure they comply with these requirements. In the case of peace officers, agencies can sometimes make conditional offers before some types of non-medical evidence (i.e., background checks) has been received, if the evidence cannot reasonably have been collected earlier.  This, however, is an exception to the general rule.  In addition, the agency should be able to prove that the medical inquiries it makes post-offer, including psychological evaluations, which are often conducted for public safety positions, are in fact necessary for determining whether the applicant can perform the job.  (There are also considerations regarding drug tests and the limits applicable law places on them.)

  1. Rejection of Applicants Based on Results of Medical ExaminationIf an agency rejects an applicant based on the results of a medical examination, it must be prepared to present evidence that the decision comports with state and federal laws prohibiting discrimination on the basis of disability.  Considerations include whether a reasonable accommodation was available that would not impose an undue hardship, the extent to which the applicant’s holding the position would pose a direct threat to health or safety of the applicant or others that could not be eliminated by reasonable accommodation, and others.  How an agency plans to respond to charges of disability discrimination can be addressed largely in advance, by thoroughly vetting the criteria and decision making process to be used.

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Although the areas of federal and state law involved can be complex, auditing and trouble-shooting the process at the outset, and making sure that the best possible procedures are in place before they begin to operate, can help avoid legal problems later.

Unwrapping the Box – Putting California’s New Statewide Ban-the-Box Law into Practice to Avoid FEHA Liability

Posted in Employment, Hiring, Legislation

This post was authored by Victoria E. McDermott.

California’s new Ban-the-Box Law is now in effect, and employers across the state are questioning its impact on their hiring practices. Assembly Bill 1008, codified as section 12952 to the Fair Employment and Housing Act (FEHA), contains new state-wide restrictions on how an employer uses an applicant’s criminal history in pre-hiring and personnel decisions.  While the law may seem like old hat for California’s public agencies — Labor Code section 432.9 already prohibited a public agency’s initial use of criminal convictions in the hiring process — this new law contains significant changes for public and private employers alike.

Since we already provided an overview of Ban-the-Box in our annual Legislative Roundup [] (full text of the statute is available here), our focus here will be on the practical aspects of incorporating this new law into your existing hiring practices.

Applying Government Code Section 12952

Q: Since the new law makes it an unlawful employment practice for an employer to inquire about or consider an applicant’s criminal history before extending a conditional offer of employment, should the employer make the conditional offer of employment in writing?
A: Yes. Although not required, we recommend that the conditional offer of employment be in writing to prevent any misunderstanding between the applicant and employer.

Q: Can the conditional offer be conditioned on the applicant passing both a criminal conviction background check and a medical exam.
A: Yes. The written conditional offer should clearly state that it is contingent on the employee passing both the criminal background check and the medical exam.

Q: Which goes first, the medical exam or the criminal background check?
A: We recommend that you proceed with the criminal background check before conducting the medical exam.

The Americans with Disabilities Act (ADA) and FEHA contain regulations on when an employer may request medical information in the application process. Under both, the employer cannot request such information until after it extends a conditional offer of employment.  In order for an employer to issue what is considered a real offer of employment under the ADA and FEHA, an employer must have either completed all non-medical components of its application process or be able to demonstrate that it could not reasonably have done so before issuing the offer.  With the new Ban-the- Box law, California employers cannot reasonably conduct a criminal background check before extending a conditional offer.  Additionally, several courts have held that a medical examination must be the last step in the process after a conditional offer of employment.  (See e.g. Leonel v. American Airlines, Inc. (9th Cir. 2005) 400 F.3d 702.)   Therefore, while an employer must now issue a conditional offer of employment before inquiring into an applicant’s criminal history, any required pre-employment medical examination should occur only after completing both the criminal history inquiry and any other background check contingencies that comprise the hiring process.

Q: Should an employer wait until after a conditional offer is made to conduct a motor vehicle history report with the DMV since it may reveal DUI convictions?

A: The best practice is to wait to conduct the motor vehicle check until after the conditional offer is made because it may reveal conviction history information. It is permissible to ask if an applicant has a valid driver’s license or information about the applicant’s collision history as these questions alone do not solicit criminal conviction information.


Because Section 12952 is part of FEHA, an aggrieved applicant may sue for the full range of FEHA damages available, including compensatory damages, attorney’s fees, and costs. Thus, to limit your potential exposure, we recommend that you also take the following steps:

  • Make sure hiring staff are fully informed on when criminal background information is to be considered in the hiring process.
  • Review and update your employment applications.
  • Review and update background check procedures.