Below are our most viewed articles covering pressing issues and important matters. In case you missed them, read our top five blog posts here!

To Be or Not to Be an Adverse Employment Action – What is Paid Administrative Leave (by Peter Brown, Stephanie Lower, and Brett A. Overby)
This principle used to be clear – paid administrative leave was outside the scope of adverse employment action. This was based on court holdings that an employee suffers no substantial or material change in terms and conditions of employment while on paid administrative leave. For years, courts held that an employee who is put on paid administrative leave cannot prove he or she suffered an adverse employment action to give rise to a viable discrimination or retaliation claim. However, what once was clear, is no more.

Common Pitfalls in Using 9/80 Schedules and How To Avoid Them (by Elizabeth Arce)
Many public employers utilize 9/80 work schedules for non-exempt employees. A 9/80 work schedule is essentially a two-workweek schedule of eight 9-hour days, one 8-hour day, and one day off. However, once the 9/80 work schedule is implemented, there are a number of mistakes unsuspecting employers often make which can inadvertently trigger overtime liability.

DFEH Provides Guidance on Impact of New SB 1343 Harassment Training Requirements: Some Questions Answered, Many Still Remain – Including Possibility that ALL Supervisory and Nonsupervisory Employees Need to Be Trained or Retrained Again in 2019 (by Gage Dungy and Lars T. Reed)
As part of the 2018 Legislative Session, Governor Jerry Brown signed into law Senate Bill 1343, which expands existing harassment training requirements to lower the private sector employer threshold down to 5 or more employees and to mandate one hour of harassment training for nonsupervisory employees of qualified employers, which includes all public agencies.

Governor Signs SB 1421 and AB 748, Dramatically Increasing Public Access to Peace Officer Personnel Records (by Paul D. Knothe)
On September 30, 2018, Governor Edmund G. Brown, Jr. signed two significant pieces of legislation, Senate Bill 1421 and Assembly Bill 748, that will require major changes in how law enforcement agencies respond to requests for peace officer personnel records.

Tattoos. Piercings. The Workplace. Like it or Not, the Millennials are the Future Workforce (by Stefanie Vaudreuil)
According to the Pew Research Center, forty percent of Millennials have at least one tattoo and usually more than one. Tattoos are no longer taboo. With forty percent of the current and upcoming workforce having one or more tattoos, it is becoming increasingly difficult for employers to take a wholesale anti-tattoo position. Since the Baby Boomers and Gen Xers are still greatly responsible for hiring and promoting employees, they have no choice but to adapt and change their perceptions of tattoos in the workplace.

It’s no secret that it can be a challenge for employees to balance work and family obligations.  One measure taken by the California legislature to increase work/life balance is the establishment of school activity leave under section 230.8 of the California Labor Code.  Below are answers to employers’ most frequently asked questions regarding this lesser-known type of leave.

Are all employers required to provide employees with school activity leave?

No, only employers that employ 25 or more employees at the same location.

Which employees are entitled to school activity leave?

Any employee who is a parent, guardian, step-parent, foster parent, grandparent, or person who stands in loco parentis to one or more children who are enrolled in: (1) kindergarten through grade 12; or (2) a licensed child care facility.

How much leave are employees entitled to take?

Up to 40 hours per school year, but not more than 8 hours in any calendar month.

What school activities are covered?

Eligible employees may take leave to:

  • Participate in activities of their child’s school or licensed child care facility;
  • Find, enroll, or re-enroll a child in a school or with a licensed child care provider; or
  • Pick up a child due to a child care provider or school emergency.

What constitutes an emergency for purposes of taking this type of leave?

A request from the school or the child care provider that the child be picked up, including due to behavior or discipline problems, unexpected closure, or a natural disaster.

Are employers required to pay employees who take school activity leave?

No, the leave is unpaid unless the employee uses vacation, personal leave, compensatory time off, or other applicable leave.

Does an employee have to provide notice or other documentation?

Yes, employees must provide reasonable advance notice of any planned absence.  Employers may also require employees to provide documentation from the school or licensed child care facility as verification that the employee participated in school or child care facility activities on a specific date or time.

What if both parents work for the agency?

If both parents work for the same employer, only one parent is allowed to take this leave at any given time. The parent who requests the leave first is given priority.  Employers may allow both parents to take leave, but they are not required to do so.

If your agency’s personnel policies do not address school activity leave for employees, back to school season is a perfect time to revisit whether the agency should adopt such a policy.

Following up on our December 6, 2018 Special Bulletin “DFEH Provides Guidance on Impact of New SB 1343 Harassment Training Requirements: Some Questions Answered, Many Still Remain – Including Possibility that ALL Supervisory and Nonsupervisory Employees Need to Be Trained or Retrained Again in 2019” regarding the impact of SB 1343’s new legal requirements expanding harassment prevention training to include nonsupervisory employees and also require all employees to be trained in calendar year 2019, there were a number of issues and concerns related to the implementation of this new law.  Governor Newsom has now signed into law clean-up legislation SB 778 on August 30, 2019 to address these issues.  SB 778 will now delay the implementation of the new harassment training requirements and any refresher training until calendar year 2020.  As urgency legislation, SB 778 went into effect immediately upon Governor Newsom’s approval of the law on August 30, 2019.

The changes made by SB 778 to Government Code section 12950.1 are available here:

http://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=201920200SB778

SB 778 makes the following modifications to harassment training requirements that were added on January 1, 2019 as a result of last year’s SB 1343:

Implementation of Harassment Prevention Training Not Required Now Until Calendar Year 2020

The requirement to provide harassment prevention training to both supervisory and nonsupervisory employees is now not required until calendar year 2020, as opposed to the previous SB 1343 requirement that all applicable harassment training be conducted this year.  This new change in the law will allow employers more time to provide any required training to those employees not already trained – especially nonsupervisory employees who are now required to receive at least one hour of harassment training every two years.

This change will also provide the Department of Fair Employment and Housing (DFEH) more time to prepare and make available online harassment training for employers to use to comply with these requirements as mandated by SB 1343.  As noted in our earlier Special Bulletin, the DFEH announced in November 2018 in a “Sexual Harassment and Abusive Conduct Prevention Training Information for Employers” that it would not have such online training available until “late 2019”, which would have made it difficult for employers to use to satisfy the training requirements in time of the original deadline of the end of this year.

This new law should also give the DFEH more time to update their regulations on harassment prevention training to better define what is required for the new one-hour nonsupervisory harassment training.  Currently, such DFEH regulations only reference the previous AB 1825 two-hour supervisory employee harassment training requirements that are not entirely applicable to nonsupervisory employees.

Any Compliant Harassment Prevention Training Conducted in 2019 Would Not Require Refresher Training Again Until Calendar Year 2021.

By extending out the timeline to provide harassment training to calendar year 2020, SB 778 addressed concerns raised by employers who already provided compliant harassment training for both supervisory and nonsupervisory employees in calendar year 2018 and would have had to re-train such employees a year earlier this year under SB 1343.  With the new timeline for implementing this training now calendar year 2020, any previous 2018 harassment training would be on track for the standard two-year follow-up training in calendar year 2020.

Even for those employers who already provided SB 1343-compliant training to supervisory and nonsupervisory employees this year in 2019, the new law addresses this scenario by indicating that refresher training is not required again for another two years – which would be in calendar year 2021.

Conclusion – Now that SB 778 is Law, Here’s What Employers Should Do Now:

The Obligation to Implement the New One Hour of Harassment Prevention Training for Nonsupervisory Employees Can Be Delayed Until Next Year (2020)

The main impact of SB 778 is that employers now have more flexibility in implementing the new requirement to provide at least one hour of harassment prevention training to nonsupervisory employees that was established by last year’s SB 1343.  Instead of providing this new training this year, employers now have until the end of calendar year 2020 to provide this training to nonsupervisory employees.

Employers Who Provided Harassment Prevention Training in Calendar Year 2018 Can Now Wait Until Next Year (2020) to Schedule Refresher Training

SB 778 will hopefully be welcome news to employers who were confronted with the awkward result from SB 1343 requiring follow-up refresher training this year when already provided last year in 2018.  Now that SB 778 is effective immediately as urgency legislation, employers who provided compliant harassment training to supervisory or nonsupervisory employees in 2018 do not have to schedule refresher trainings earlier that the standard two-year track for refresher trainings – which would result in such trainings being scheduled next year (2020).

Employers Who Are Already on a Two-Year Track to Provide Supervisory Employee Harassment Refresher Training in Calendar Year 2019 Should Still Proceed With Such Training This Year.

For employers whose two-year track for providing refresher training instead applied to this year (calendar year 2019), LCW continues to recommend that you follow the guidelines set forth originally by AB 1825 and provide such training this year.  To the extent such employers want to also now include nonsupervisory employees as part of this compliant training, they are free to do so this year and would not have to do refresher training until two years later in calendar year 2021.

Continue Providing Initial Harassment Prevention Training to New Supervisory Employees Within Six Months of Hire.

Finally, it is important to continue following the existing requirement that supervisory employees receive this training within 6 months of hire under the original AB 1825 training requirements.  Therefore, regardless of whether an employer provided harassment prevention training to employees in 2018, any new supervisory employees would still need to receive this training within 6 months of their hire date if that timeline falls in calendar year 2019.

LCW offers both supervisory and nonsupervisory harassment trainings that are complaint with SB 1343 and SB 778.  Leaders in client training, LCW has training options available to meet these requirements including Train The Trainer sessions, live in-person sessions and online interactive sessions.  For more information on our training programs, contact our Training Department at 310-981-2000 or AskLCW@lcwlegal.com.

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

 

 

 

Photo credit: Andrew Mather Photography

As summer slowly winds to a close, students across the nation will head back into classrooms for the upcoming academic year, and I find myself reflecting on the last few months. Nearly every June for the last 20 years, I traveled to the University of Central Missouri to serve as a volunteer staff member at Missouri Boys State, an eight-day, hands-on experience in the operation and fundamentals of government for rising high school senior boys. In other words, I spend eight days with nearly 1,000 17-year-old boys showing them the power of democracy and helping them build confidence in their leadership.

During the week, participants, or “citizens” as we call them, construct their own city, county, and state governments. They campaign for office, vote in elections, and create laws to govern themselves. Through specialized instruction in topics such as journalism, law, law enforcement, and commerce, citizens can earn college credit after successfully participating in the program and passing a rigorous examination during the week. We also have the privilege of hosting guest speakers who share knowledge as government officeholders, journalists, political consultants, business owners, and military leaders. In recent years, citizens have interacted with Karl Rove, David Axelrod, Bob Woodward, James Carville, Robert Gates, and Mike Huckabee.

Despite being a lawyer in the real world, my role at Missouri Boys State is in the Journalism School where I work closely with more than 100 citizens. I draw on my experience as a former teacher when providing instruction on the purpose of media in a democracy, the legal and ethical boundaries of journalism, and analyzing media in order to be an informed consumer. These citizens become journalists who chase down stories, hold their Boys State candidates and government accountable, and create real media in the form of daily newspapers, television broadcasts, and podcasts.

Overall, the program’s hands-on approach immerses citizens in a practical laboratory focused on democracy. The days are long, but the week is short. Although I return home to Los Angeles exhausted, the program energizes me. It is impressive to watch 1,000 young strangers transform into a unified body armed with the power of knowledge, newly-discovered leadership skills, and a thirst for continuing their civic engagement developed at the program. This week is life-changing—if you don’t believe me, you can ask President Bill Clinton, U.S. Supreme Court Justice Samuel Alito, or even singer Bruce Springsteen who all attended a Boys State program. (There is a Boys State or Girls State program in every state, including California. The programs vary in content and method of procedure, but each adheres to the same basic concept: teaching rising seniors about government from the city to the state level.)

I never attended Missouri Boys State myself (I was a citizen of Texas Girls State and served on that staff for ten years), but the program is a part of who I am thanks to my dad who attended Missouri Boys State in 1975 and continues to serve on staff. A Boys State mentor even served as the officiant of my wedding. In many ways, my work at LCW seems like an extension of Boys State because I am able to support real public agencies and educational entities just like the citizens create during Boys State. Although there are many months before I travel back to Missouri, I am counting down the days and planning improvements for the session.

In the meantime, I sing the praise of teachers and school employees who provide high-quality instruction and student experiences for the infinitely longer academic year. I hope your summer was as energizing as mine, and if you happen to teach, know, or parent an outstanding student in the Class of 2021, I hope you consider nominating him or her for the next session of Boys State or Girls State.

Over the last several years, the California Courts of Appeal have addressed questions regarding the California State Teachers’ Retirement System’s (CalSTRS) ability to collect overpayments of monthly retirement benefits paid to retirees because of, among other things, miscalculations of the retirees’ compensation earnable.  A Court of Appeal handed down the most recent case,   Blaser v. State Teachers’ Retirement System (2019) 37 Cal.App.5th 349 (“Blaser”) last month.

Blaser, and other recent decisions, specifically addressed application of California Education Code section 22008’s statute of limitations on CalSTRS’ ability to collect overpayments previously made to retirees.  Section 22008, a provision of the State Teachers’ Retirement Law (the “STRL”), provides in relevant part that “no action may be commenced by or against the board, the system, or the plan more than three years after all obligations to or on behalf of the member, former member, beneficiary, or annuity beneficiary have been discharged.”

The Blaser decision is a successor to a decision of a California Court of Appeal in Baxter v. State Teachers’ Retirement System (2017) 18 Cal.App.5th 340 (“Baxter”), the facts of which are pertinent to understanding the issues adjudicated in Blaser.  Baxter concerned a challenge by 11 retired teachers at the District (the “Baxter petitioners”) to a CalSTRS audit.  A CalSTRS audit had determined that the Baxter petitioners were overpaid in their retirement benefits as the result of the “improper inclusion of certain earnings in the calculation” of their retirement benefits.  Specifically, the District’s Collective Bargaining Agreement (“CBA”) with the Salinas Valley Federation of Teachers treated teachers who taught an extra period as a separate class of employees; the CBA considered both classes of teachers – those who taught the extra period and those who did not – as having worked full-time.  However, the audit determined that the teachers who taught the extra period actually worked more than full-time (i.e., in excess of 1,000 hours) and therefore, any additional hours worked due to the extra period should not have been counted as creditable compensation to the teachers’ defined benefit plan.  The Baxter petitioners appealed the audit findings according to the administrative appeals process under the STRL.  The administrative appeal proceeding commenced when CalSTRS filed a “Statement of Issues,” similar in nature to the commencement of lawsuit when the plaintiff files the complaint.  The Court of Appeal held that it was the date on which CalSTRS filed the administrative Statement of Issues that stopped the three-year statute of limitations under section 22008.  Thus, the Blaser court held that CalSTRS was precluded from recouping overpayments occurring more than three years prior to the date on which CalSTRS filed the Statement of Issues initiating the administrative appeal.

However, because the 31 teachers at issue in Blaser were not identified in the original CalSTRS audit as among the sample of employees whose compensation earnable was misreported, they were not afforded the opportunity to file an administrative appeal before CalSTRS proceeded to reduce their future retirement allowances and recoup past overpayments.  Therefore, the 31 teachers in Blaser filed petitions for writs of mandate in superior court seeking to prevent CalSTRS from recouping past overpayments and reducing further retirement allowances.

The Blaser Court made the following pertinent findings:

  1. Applying standards outlined in Baxter, the “continuous accrual theory” allowed CalSTRS to collect from the Blaser Teachers only those monthly overpayments made to the retirees within the three years prior to commencement of the action; any overpayments made to the Blaser Teachers more than three years prior to commencement of the action were time barred by Section 22008’s limitation’s period.
  2. The action in this case was “commenced” when the Blaser Teachers filed petitions for writs of mandate in superior court. Thus, because the plaintiffs did not have an opportunity for an administrative appeal, the statute of limitations was not tolled until the plaintiffs sought relief in another forum.
  3. Application of the continuous accrual theory applies whether or not the Blaser Teachers intended to act “wrongfully” in collecting the overpayments. For purposes of the application of the statute of limitations, even if the Blaser Teachers reasonably believed their extra-period earnings was appropriately included as creditable compensation, the “wrongful act” was that the Blaser Teachers received payments to which they were not legally entitled.
  4. While the Blaser Teachers held a vested right to properly calculated retirement benefits, they held no vested right in excess payments based upon incorrect calculations.

As seen by Baxter and now Blaser, application of the statute of limitations provisions in the STRL remains a complicated and evolving area of the law.

In a unanimous decision published today, the California Supreme Court held that the Los Angeles County Sheriff’s Department (LASD) could share with prosecutors the names of deputies on its “Brady list” in particular cases without seeking a court order after a Pitchess motion.  The Court held that the LASD would not violate Pitchess “by sharing with prosecutors the fact that an officer, who is a potential witness in a pending criminal prosecution, may have relevant exonerating or impeaching material in that officer’s confidential personnel file.”  In so holding, the Court decided a novel question of constitutional and statutory law.  (LCW Partner Geoff Sheldon argued the case in the California Supreme Court on behalf of the prevailing party County of Los Angeles.)

The theoretical background of the case is as follows.  Under the U.S. Supreme Court’s holding in Brady v. Maryland, the prosecution in a criminal case must disclose to the defense all exculpatory evidence in the prosecution’s possession.  This includes impeachment evidence of a police witness, which is sometimes found in the officer’s personnel file.  Indeed, prosecutors have a duty under Brady and its progeny to inquire whether the relevant law enforcement department is in possession of exculpatory evidence.

At the same time, California Penal Code sections 832.7 and 832.8 afford confidential status to officer personnel records and impose an obligation on law enforcement agencies to maintain the confidentiality of such records – and information contained therein.  These statutes, along with others in the Evidence Code, provide procedures for a criminal defendant to access information relevant to his or her defense from an officer’s personnel file.  To do so, the criminal defendant must file a written motion, supported by declarations or affidavits, demonstrating good cause for the disclosure.  If the motion is granted, the trial court privately reviews the officer’s personnel records and provides the defendant any relevant information.  The same requirements apply to a prosecutor seeking evidence from an officer’s personnel file.  The relevant statutory sections are commonly referred to as the “Pitchess statutes,” after Pitchess v. Superior Court, the California Supreme Court case on which they are based.  Likewise, motions filed pursuant to these statutes are known as “Pitchess motions.”

Against this backdrop, the LASD here compiled a so-called “Brady list,” consisting of names and serial numbers of deputies whose personnel files contained sustained allegations of misconduct that could subject the deputies to impeachment in a prosecution.  Many police agencies across the state maintain such lists, which typically include officers found to have engaged in dishonesty or other acts of moral turpitude.

In an effort to comply with Brady, the LASD proposed an internal policy under which it would disclose its Brady list to the district attorney’s office and other prosecutorial agencies.  In turn, if an LASD deputy was a witness in a criminal case, the prosecution would know to file a Pitchess motion to obtain relevant information from the deputy’s personnel file, or alternatively to alert the defense so it could file its own Pitchess motion.  Under the policy, details of investigations or portions of the deputies’ personnel files would only be disclosed in response to a formal Pitchess motion and accompanying court order.

The LASD transmitted a letter to deputies, notifying them of the proposed policy.  The Association for Los Angeles County Deputy Sheriffs (ALADS), a union representing non-supervisory deputies, opposed the proposed policy.  It filed a lawsuit seeking to prohibit the LASD from disclosing the names of deputies on the list to anyone outside the LASD, absent full compliance with the Pitchess statutes.

The trial court ultimately issued a preliminary injunction barring general disclosure of the Brady list to the district attorney or other prosecutors, except pursuant to the Pitchess statutes.  The trial court’s injunction, however, provided an exception for deputies who were potential witnesses in a pending criminal prosecution. i.e., it allowed for a type of Brady “alerts.”  Under the injunction, the names of these deputies could be disclosed on an individual basis outside the Pitchess process.  On appeal, however, the Court of Appeal approved the injunction and went a step further to hold that even Brady alerts were improper.  Absent compliance with the Pitchess processes, the LASD could not disclose to prosecutors the names of any deputies on the Brady list, even those deputies who were potential witnesses in a pending criminal prosecution.

On October 11, 2017, the California Supreme Court granted review of the case.  After the parties submitted briefing thereafter, including supplemental briefing at the Court’s request, and after the Court heard oral argument on June 5, 2019, it issued its decision today.

In an opinion by Chief Justice Cantil-Sakauye, the Supreme Court reversed the decision of the Court of Appeal and held that the “confidentiality” language of the Pitchess statutes authorized a sheriff’s department to share Brady alerts with prosecutors for particular cases.

The Court first evaluated the extent to which the new law SB 1421, effective January 1, 2019, affected its analysis.  That law, which was passed and went into effect while this case was pending, made non-confidential, and in fact open for public inspection, many types of police officer personnel records that could cause an officer to be included on a Brady list.  This includes, among other specific types of records, those relating to incidents in which a sustained finding was made of dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation, or prosecution of a crime and also any sustained finding of perjury, false statements, filing false reports, destruction, falsifying, or concealing of evidence.”  The Court found basically that although some of this SB 1421 information might constitute what places an officer on a Brady list, it was not exhaustive of the types of misconduct and information that might do so.  Thus, the passage of SB 1421 did not make it so Brady lists and alerts contain only non-confidential information, and the Court still had to resolve the issue presented by this case.  (The Court also observed in a footnote that it was not deciding at this point whether SB 1421 affects the confidentiality of records that existed before the statute’s January 1, 2019 effective date.)

In reaching the merits, the Court held that the “confidentiality” requirement of the Pitchess statutes should be interpreted to allow law enforcement agencies to comply with their constitutional obligations under Brady by providing limited alerts to prosecutors.  The Court reasoned as follows:

“In common usage, confidentiality is not limited to complete anonymity or secrecy.  A statement can be made ‘in confidence’ even if the speaker knows the communication will be shared with limited others, as long as the speaker expects that the information will not be published indiscriminately.” . . .  So, for example, it is hard to imagine that the term “confidential” would categorically forbid one employee of a custodian of records, tasked with maintaining personnel files, from sharing those records with another employee assigned to the same task.  Put differently, deeming information “confidential” creates insiders (with whom information may be shared) and outsiders (with whom sharing information might be an impermissible disclosure).  The text of the Pitchess statutes does not clearly indicate that prosecutors are outsiders, forbidden from receiving confidential Brady alerts.

(Quoting authority.)  The Court concluded: “Viewing the Pitchess statutes ‘against the larger background of the prosecution’s [Brady] obligation,’ we instead conclude that the Department may provide prosecutors with the Brady alerts at issue here without violating confidentiality.”  (Quoting authority.)

The Court did not hold that a sheriff’s department could forward an entire Brady list to prosecutors, but addressed Brady alerts, in particular the process by which a sheriff’s department advises prosecutors that a witness in a particular case is on the list.  The Court’s holding will greatly facilitate the ability of law enforcement and prosecutorial agencies to work together to comply with obligations under Brady, without, as the Court explained, significant compromise of officer state law rights secured by the Pitchess statutes.

Association for Los Angeles Deputy Sheriffs v. Superior Court (Los Angeles County Sheriffs Department), No. S243855 (August 26, 2019)

On Monday morning, August 19, 2019, Governor Newsom signed California Assembly Bill 392, a police use-of-force bill that redefines the circumstances under which the use of lethal force by a peace officer is considered justifiable. The law is intended to encourage law enforcement to increasingly rely on alternative methods such as less-lethal force or de-escalation techniques.

Under the new law, lethal force by a peace officer is only justifiable “when necessary in defense of human life.” Specifically, AB 392 provides that a peace officer is justified in using deadly force only when the officer reasonably believes, based on the totality of the circumstances, that deadly force is necessary for one of two reasons:

  • to defend against an imminent threat of death or serious bodily injury to the officer or another person, or
  • to apprehend a fleeing felon if the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended.

The Legislature did not designate AB 392 as emergency legislation, so the change in the law will take effect on January 1, 2020.  Before that date, law enforcement agencies should review their existing use-of-force policies to verify whether department policy is consistent with the law, and to identify areas that may need revision.

The Court of Appeal recently reaffirmed, in San Francisco Police Officers’ Association v. San Francisco Police Commission (2018) 27 Cal.App.5th 676, that use-of-force policies are primarily a matter of public safety and fall outside the scope of representation defined under the Meyers-Milias-Brown Act. Therefore, in the event that an agency’s current policies need to be updated to be consistent with changes in the law, the agency is not required to “meet and confer” with the peace officers’ recognized employee organization before making the necessary policy revisions.  Even so, agencies considering a change in policy should give advance notice to the employee organization and be prepared to meet and confer over any negotiable impacts or effects of the policy change identified by the union.

Going forward, agencies should also ensure that future criminal and administrative investigations of use-of-force incidents follow the revised standards set out by the new law and any change in Department policy.  Agencies should consult with their trusted legal counsel regarding how to bring their policies and practices into line with the new laws, as well as to assist with navigating the requirements of California labor law.

 Applying the different California Public Employees’ Retirement System (“CalPERS”) rules related to Temporary Upgrade Pay, out-of-class appointments, and non-reportable extra-duty pays can be unnerving.  For classic employees, compensation for appointments meeting the definition of Temporary Upgrade Pay are reportable to CalPERS and is included in pension benefits.  For out-of-class appointments, the Government Code establishes a 960-hour per fiscal year limit, regardless of whether the employee is a classic or new member.  Some compensation is reportable as Temporary Upgrade Pay and the hours are reportable as an out-of-class appointment.  Other appointments might meet the definition of Temporary Upgrade Pay but do not meet the definition of an out-of-class appointment. And, whether the employee is a new member subject to the California Public Employees’ Pension Reform Act (“PEPRA”) or a classic member might change the answer.

As discussed in more detail below, for classic members, where an appointment meets the definition of Temporary Upgrade Pay, but not out-of-class appointments, the compensation is reportable to CalPERS and included in the employee’s pension benefits.  However, the hours are not reportable for the purposes of the 960-hour limit on out-of-class appointments.  For a classic member, where an appointment meets the definition for Temporary Upgrade Pay and out-of-class appointments, the compensation is reported to CalPERS and included in pension benefits, and the hours are reported to CalPERS for the purposes of tracking the 960-hour limit for out-of-class appointments.  For new members, compensation for Temporary Upgrade Pay is not reportable to CalPERS for the purpose of inclusion in pension benefits, but the hours may be reported to CalPERS for the purpose of tracking the 960-hour limit if the appointment meets the definition of an out-of-class appointment.

Few items of special compensation reportable to CalPERS have caused as much confusion as Temporary Upgrade Pay.  CalPERS even had difficulty determining whether Temporary Upgrade Pay would be reportable for CalPERS new members after PEPRA was enacted.  Initially, CalPERS indicated in a circular letter that Temporary Upgrade Pay would not be reportable for new members who were subject to PEPRA.  CalPERS later reversed course and indicated that Temporary Upgrade Pay would be reportable for new members.  Finally, after a brief standoff with then-Governor Brown, CalPERS excluded Temporary Upgrade Pay from reportable compensation for new members under its final regulation.

Temporary Upgrade Pay is an item of “special compensation” that is reported to CalPERS for the purpose of inclusion in CalPERS pension benefits for classic members.  Under the applicable regulation, Temporary Upgrade Pay is defined as follows:

Compensation to employees who are required by their employer or governing board or body to work in an upgraded position/classification of limited duration.

In a 2014 Circular Letter, CalPERS noted that many agencies were incorrectly reporting certain assignments as Temporary Upgrade Pay.  Specifically, CalPERS takes the position that when an individual maintains the duties of their current position and takes on some or all of the duties of an upgraded position, the compensation for taking on the additional duties is non-reportable overtime.

For example, many agencies have “out-of-class” or “acting” pay in their MOUs that provide an employee with additional compensation for taking on a portion of the duties of an upgraded classification.  In some cases, multiple employees will split the duties of a higher position and receive additional compensation.  Under CalPERS’ interpretation, since the individual retains the duties of their current position, the compensation is not reportable to CalPERS for new or classic members.

To complicate matters further, on January 1, 2018, Government Code section 20480 went into effect. This new law places limits on certain out-of-class appointments, and provides for penalties on out-of-class appointments that exceed 960 hours in a fiscal year.  As with Temporary Upgrade Pay, an out-of-class appointment under the Government Code has a specific definition.  An “out-of-class appointment” is “an appointment of an employee to an upgraded position or higher classification by the employer or governing board or body in a vacant position for a limited duration.”  A “vacant position” is defined as “a position that is vacant during recruitment for a permanent appointment.”  The definition of “vacant position” excludes a “position that is temporarily available due to another employee’s leave of absence.”  If the appointment meets the definition of an out-of-class appointment, the hours must be reported to CalPERS in the my|CalPERS system, but the compensation is only reportable if the appointment meets the definition of Temporary Upgrade Pay and only if the employee is a classic member.

It would have been convenient for the definition of Temporary Upgrade Pay under the regulations and out-of-class appointments under the Government Code to have the same definition, but that would be too easy.  As the definitions above illustrate, an appointment might meet the definition of Temporary Upgrade Pay without meeting the definition of an out-of-class appointment.  For example, if a CalPERS classic employee is placed in an upgraded position while the permanent employee is on an extended leave of absence, assuming the technical requirements in the regulation are met as they relate to all items of special compensation, the compensation would be reportable as Temporary Upgrade Pay.  However, the appointment would be expressly excluded from the definition of an out-of-class appointment and the hours would not have to be reported in my|CalPERS for the purposes of tracking the 960-hour limit.  Similarly, if an individual serves in an upgraded position, but the agency is not recruiting to fill the position, the additional compensation may be reported as Temporary Upgrade Pay, but does not meet the definition of an out-of-class appointment.

With the mix of overlapping and divergent definitions for Temporary Upgrade Pay, out-of-class assignments, and non-reportable extra-duty pays, it is important to apply each definition separately to the appointment and compensation when reporting compensation as Temporary Upgrade Pay or reporting the hours for out-of-class appointments.  Agencies should also audit any out-of-class, upgrade pays, interim pays, acting pays and extra-duty pays to determine whether these pays are reportable as special compensation, and when they may meet the definition of out-of-class appointment for the purposes of tracking the 960-hour limit.

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This post was authored by Alysha Stein-Manes and Daniel Seitz

Remote surveillance is an area of expanding interest for law enforcement agencies.  Police departments continue to equip their sworn officers with body-mounted video cameras (“body cams”), and, in California, the Legislature has begun to regulate discoverability of body cam footage.  Agencies in California and across the country have also begun to deploy unmanned aerial systems (“UASs”), drones, and robots to assist in policing and surveillance efforts.  For example, one California agency recently began deploying a robot to survey public spaces when peace officers are not present.

Many UASs, drones, and robots can record audio and video and then wirelessly transmit the data to storage facilities.  Some agencies maintain their own data storage, while others contract with third parties.  In either case, these emerging surveillance methods and new sources of data represent a potential impact on agency relations—both with its employees and with the public.

Possible Effects on Bargaining

The purchase and use of remote surveillance equipment may represent a significant agency investment and may pose issues that affect the terms and conditions of employment for represented employees.  For example, equipment may require a onetime purchase or recurring subscription payments; portions of an agency’s budget that could have gone to hiring new officers may instead finance the remote surveillance equipment.  The equipment will need maintenance and repair.  Additionally, such equipment may require a trained operator or team of operators.  The agency will likely need to assign personnel to review any captured audio and video data.  If an agency uses such technology to patrol public spaces, it may raise questions of whether the equipment has replaced a bargained-for position or has impacted the availability of officer overtime hours.

If employers use remote surveillance equipment, they should address whether such usage is a mandatory subject of bargaining or whether decisions relating to their usage constitute a management decision.  California Government Code section 3505 requires employers to “meet and confer in good faith regarding wages, hours, and other terms and conditions of employment” with recognized employee organizations.  If remote surveillance equipment usage leads to a change in working hours, availability of overtime, changes in job duties, additional certification requirements, or other terms and conditions of employment, agencies should speak with their legal counsel about potential impacts on bargaining.  Agencies considering such equipment might also benefit from a more informal meet-and-consult or meet-and-discuss with their employee associations.  This would give the associations a chance to identify potential impacts and raise them before the employer-employee relationship suffers.

Susceptibility to Records Requests

Agencies should also recognize that audio and video data recorded by remote surveillance equipment, such as drones and robots, may be subject to disclosure under the California Public Records Act (CPRA).

With some exceptions, the CPRA requires public agencies to allow inspection of data (including audio and video recordings) that relates to government process or government business.  Currently, California law does not directly address agency drone or “robot” footage or audio recordings.  However, the California legislature has recently passed several bills governing oversight of law enforcement agencies that suggest data generated from such equipment will be subject to similar means of disclosure.

Specifically, as of January 2019, SB 1421 requires that agencies produce in response to a CPRA request a wide variety of records relating to officer-involved shootings, officer uses of force resulting in serious injury or death, certain instances of officer dishonesty, and instances of officer sexual assault against civilians.  Additionally, beginning on January 1, 2020, SB 978 will require law enforcement agencies to post “all current standards, policies, practices, operating procedures, and education and training materials” on their websites, if the information would otherwise be subject to a CPRA request.  A public agency considering whether to use drones, robots, or other remote surveillance equipment should work with legal counsel to identify what information may become discoverable through records requests under California law.

Privacy Considerations and Public Concerns

Remote surveillance equipment may present significant privacy concerns.  The U.S. Constitution and California law protect communications where there is a reasonable expectation of privacy.  This reasonable expectation is generally measured in terms of human ability (and limitations)—not machine specifications.  In Florida v. Riley (1989) 488 U.S. 445, 449-450, the Supreme Court of the United States held that “the Fourth Amendment simply does not require the police traveling in the public airways at an altitude of 400 feet to obtain a warrant in order to observe what is visible to the naked eye.” In Kyllo v. US (2001) 533 U.S. 27, 40 the Supreme Court held that police use of a thermal imaging device that was not in “general public use” without a warrant constituted a search under the Fourth Amendment and is presumptively unreasonable, even if it does not physically invade a private space.  While there is no current U.S. Supreme Court precedent addressing drone usage in similar contexts, these cases and others leave open the possibility that the U.S. Supreme Court could limit the usage of such remote surveillance equipment on Fourth Amendment grounds.

While the regulation of drones and similar devices remains an open question at the federal level, in California, Section 1708.8 of the Civil Code provides that a person is liable for “constructive invasion of privacy” when the person “attempts to capture” a visual image, sound recording or other “physical impression” while the person engages in a private, personal or familiar activity,” when using a device such as a drone.  The law further provides that any person who directs, solicits, actually induces, or causes another person to violate this law “regardless of whether there is an employer-employee relationship” is liable for invasion of privacy.  Section 632 of the California Penal Code requires all parties to consent to the recording of an otherwise confidential communication and defines “confidential communication” to include “any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering.”  Exceptions would apply where agencies obtain valid warrants.

As agencies continue to consider whether they will employ the use of remote surveillance equipment to assist in their duties, it will be important for agencies to understand the capabilities of their remote surveillance equipment, understand the law regarding public employee bargaining rights, transparency, and privacy, and define the roles of such devices carefully.

On July 15, 2019, the Public Employment Relations Board (PERB) issued a decision in the case,  Association of Orange County Deputy Sheriffs v. County of Orange, PERB Decision No. 2675-M.  At issue in the case was whether PERB has jurisdiction to hear claims brought by employee organizations that represent peace officers as that term is defined in Penal Code 830.1, and whether the County was obligated to bargain changes to an ordinance creating an Office of Independent Review (OIR) that advised the Sheriff-Coroner on certain in-custody incidents and complaints against law enforcement personnel.  The Board held for the Association on the jurisdictional issue and for the County on the merits.  This decision is very significant as it provides a very clear holding from PERB that it believes that employee organizations (labor associations and unions) that represent only sworn peace officers (officers and sheriffs) can directly file unfair practice charges with PERB and that PERB has jurisdiction to adjudicate those charges.

The Jurisdictional Issue

During the relevant time period, the Association of Orange County Deputy Sheriffs (Association) was a bargaining unit composed of 1693 peace officers, as that term is defined in Penal Code 830.1, and 115 non-peace officers.  (Penal Code 830.1 defines persons who are peace officers to include deputy sheriffs and police officers.)

In 2008, the County passed an ordinance creating an OIR to advise the Sheriff-Coroner regarding in-custody incidents involving death or serious injury and complaints against law enforcement personnel.  In 2015, the County notified the Association of its intent to change its OIR ordinance to extend OIR authority to cover the District Attorney’s Office, among other changes.  The Association argued that the decision to change the OIR ordinance and the effects of the decision were matters within the scope of representation.  In December 2015, the County implemented changes to the OIR without meeting and conferring with the Association.  The Association then filed an Unfair Practice Charge (UPC) in June 2016.

As part of its response to the UPC, the County moved to dismiss, arguing PERB lacked jurisdiction to hear claims brought by 830.1 peace officers.  According to the County, section 3511 of the Meyers Milias Brown Act (MMBA) bars claims by persons who are peace officers as defined in section 830.1 of the Penal Code, as well as claims that impact Penal Code 830.1 peace officers.  The ALJ disagreed, relying on a 2015 PERB Decision that found the Board had jurisdiction over charges brought by employee organizations representing bargaining units that include, in whole or in part, persons who are peace officers.  Click here to read about that case.  The County then excepted to the ALJ’s ruling on jurisdiction and the matter was heard before the PERB Board.

After a lengthy discussion of statutory history and statutory framework, the Board affirmed the ALJ’s decision and rejected the County’s arguments, holding that PERB has jurisdiction over claims brought by employee organizations that represent or seek to represent bargaining units composed partially or entirely of Penal Code 830.1 peace officers.  In other words, while section 3511 of the MMBA prohibits natural persons who are peace officers pursuant to Penal Code 830.1 from filing claims with PERB, their Associations may do so.

The Obligation to Bargain Issue

The Board found for the County on whether the County had an obligation to bargain changes to its OIR ordinance that expanded the jurisdiction of the OIR, authorized the OIR to work with departments beyond the Sheriff-Coroner, and authorized the OIR to provide legal advice on non-law enforcement employee misconduct.  According to the Association, the changes to the OIR were within the scope of representation because legal advice provided by the OIR attorneys could influence disciplinary decisions, which, according to the Association, would affect the discipline process and disciplinary procedure.  Disciplinary procedure is a mandatory subject of bargaining under the MMBA.  The Board disagreed, finding the changes to the OIR ordinance only concerned management’s direction to its legal counsel for the performance of legal services, which is outside the scope of representation and the MMBA’s meet-and-confer requirement.  PERB drew a distinction between citizen review board procedures and advice of legal counsel, finding that the directions an employer gives its legal counsel about how to provide it with legal advice is so attenuated from the employment relationship that it is outside the scope of representation.  The Board concluded, “[u]ltimately, the OIR ordinance functions much like a contract for legal services and concerns only how OIR attorneys and staff will provide the County with legal advice; it does not change or have effects on the disciplinary procedure.”

What is Next

This decision is the first time that PERB has affirmatively held that it has jurisdiction to hear MMBA unfair practice charges brought by employee organizations that solely represent sworn peace officers as that term is defined at Penal Code section 830.1.  Whereas prior to County of Orange, employee organizations that solely represented peace officers as that term is defined in Penal Code section 830.1 were arguably limited to filing claims for alleged MMBA unfair practice charges in superior court, the County of Orange decision makes clear that those organizations may file such claims directly with PERB.  Unless County of Orange is successfully challenged in appellate court, agencies with police or sheriff departments will likely see an increase in PERB claims brought by police officer or sheriff employee organizations.

The Association of Orange County Deputy Sheriffs v. County of Orange (2019) PERB Decision No. 2675-M, may be found here.