We are excited to continue our video series – Tips from the Table. In these 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.

Flight attendant Charlene Carter sued her employer and her union alleging, among other things, that they discriminated against her on the basis of religion, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”).  In July 2022, a jury awarded Ms. Carter $5.1 million.  This sum appears to be consistent with the increase in “nuclear verdicts” (that is, jury awards that far exceed expected reasonable or rational amounts), a phenomenon that has raised serious questions and concerns in recent years.  But that jury award is not at issue here.  After all, in December 2022, the Court reduced it significantly to $810,000.  Rather, at issue here is a Texas federal district court’s order imposing very specific “training” sanctions against three attorneys.

The “training” sanctions saga stems from the Court’s order that Ms. Carter’s employer, Southwest Airlines Co. (“Southwest”), notify flight attendants of Title VII’s prohibition against discrimination on the basis of religion.  Southwest did issue a notification, which read: “the court ordered us to inform you that Southwest does not discriminate against our Employees for their religious practices and beliefs.”  (Internal punctuation and emphasis omitted.)  On August 7, 2023, the Court made its disapproval of the notification abundantly clear, writing:

It’s hard to see how Southwest could have violated the notice requirement more. Take these modified historical and movie anecdotes.  After God told Adam, “[Y]ou must not eat from the tree [in the middle of the garden],” imagine Adam telling God, “I do not eat from the tree in the middle of the garden”—while an apple core rests at his feet.  Or where Gandalf bellows, “You shall not pass,” the Balrog muses, “I do not pass,” while strolling past Gandalf on the Bridge of Khazad-dûm.

The Court held Southwest in civil contempt, and ordered it to pay Ms. Carter’s attorneys’ fees (in connection with her Motion for Contempt and Motion to Compel Proceedings), to issue a revised notice (verbatim from the Court’s Memorandum Opinion and Order Granting Sanctions in 2023 U.S. Dist. LEXIS 136623), and, as relevant here, to send three in-house attorneys to “religious-liberty training.” 

But the Court’s order did not simply stop at “religious-liberty training.”  Rather, it specifically provided that the “training” shall be provided by the Alliance Defending Freedom (an organization that describes itself as “the world’s largest legal organization committed to protecting religious freedom, free speech, the sanctity of life, marriage and family, and parental rights”), and Southwest must provide transportation, accommodation, food, or other travel expenses for the representative providing the “training.”  The training shall also be entirely at the Alliance Defending Freedom’s discretion; the organization may choose both the representative and the time set for it.

Judge Brantley Starr’s highly specific “training” sanctions did not go unnoticed.  Fix the Court, a judicial reform advocacy group, filed a complaint against Judge Starr with the Fifth Circuit Judicial Council.  Several major news outlets reported on the case and on Judge Starr’s order that the “training” be conducted by an ideologically-affiliated organization.  For its part, Southwest is currently appealing the order.  Whether the Fifth Circuit will ultimately permit it to stand remains an open question.

While the Fifth Circuit’s decision is pending, California attorneys and employers may be wondering whether they, too, may face similar “training” sanctions.  The short answer is: “training” sanctions, likely yes in certain circumstances; similar to those imposed in the Texas federal district court, likely not. 

Federal Rule of Civil Procedure 11, subdivision (c)(1) (“Rule 11”) expressly provides for “appropriate sanctions” against attorneys and litigants alike, stating in relevant part: “the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation.”  Further, as noted in Carter, at least one California district court has already imposed training sanctions in the past, citing to Rule 11, 28 U.S.C. section 1927, and the inherent powers of the courts.  (See Moser v. Bret Harte Union High Sch. Dist. (E.D.Cal. 2005) 366 F.Supp.2d 944.)  However, as in Moser, such sanctions will more likely than not entail training provided by State Bar of California-approved programs (among which attorneys and/or litigants may choose) rather than training provided by ideologically-affiliated organizations.

To reduce the risk of incurring “training” or any other types of sanctions, California employers are encouraged to consult with experienced legal counsel in connection with complex legal questions, in particular as they pertain to Title VII’s or the Fair Employment and Housing Act’s prohibitions against discrimination, harassment, and retaliation.

We are excited to continue our video series – Tips from the Table. In these 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.

pexels-alex-green-5699475

On August 21, 2023, the California Supreme Court’s decision in Raines v. U.S. Healthworks Medical Group significantly expanded the scope of potential liability under the Fair Employment and Housing Act (“FEHA”) to an employer’s business-entity agents that have five or more employees. 

Case Background and Analysis

Plaintiffs Kristina Raines and Darrick Figg brought a class action lawsuit.  Raines received an employment offer from Front Porch Communities and Services, and Figg received an employment offer from the San Ramon Valley Fire Protection District.  Both of their offers were conditioned on passing a pre-employment medical screening that would be conducted by defendant U.S. Healthworks Medical Group (USHW).  Plaintiffs alleged the screening included a questionnaire that had many questions about their health information with no relation to their ability to perform their jobs.  Raines alleges that after she refused to answer questions about her last menstrual period, the exam was terminated and her employment offer was revoked.  Figg alleges he answered all the questions and was hired.  Plaintiffs believed the screening tests were overbroad and unrelated to the functions of any job, and sued the testing company USHW alleging the examinations violated FEHA, even though they were not employees of USHW.

Plaintiffs’ lawsuit was filed in state court, but removed to federal court, and among other things, alleged claims under FEHA.  Section 12940(e) of FEHA generally prohibits an “employer” from requiring pre-employment medical or mental examinations of applicants or making “any medical or psychological inquiry” of an applicant; however, such exams and inquires may be made “after an employment offer has been made but prior to the commencement of employment duties, provided that the examination or inquiry is job related and consistent with business necessity and that all entering employees in the same job classification are subject to the same examination or inquiry.”  FEHA section 12926(d) defines “employer” to “include[] any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly . . . .”  

The federal district court dismissed the FEHA claim, finding that FEHA does not impose liability on agents of an employer.  Plaintiffs’ appealed the dismissal to the United States Court of Appeals for the Ninth Circuit. 

The Ninth Circuit heard oral argument and then asked the California Supreme Court to answer this question:  “Does California’s Fair Employment and Housing Act, which defines ‘employer’ to include ‘any person acting as an agent of an employer,’ Cal. Gov’t Code § 12926(d), permit a business entity acting as an agent of an employer to be held directly liable for employment discrimination?”  In the opinion of August 21, 2023, the California Supreme Court answered yes.  The court explained that the plain meaning and legislative history of FEHA, federal antidiscrimination laws, and public policy support the conclusion that an employer’s business-entity agents with at least five employees that “carr[y] out FEHA-regulated activities on behalf of an employer” can fall within FEHA’s definition of “employer” and may be directly liable for FEHA violations.  The Court specifically stated that it was not deciding the significance of any employer control over the agent’s acts that gave rise to the FEHA violation and whether its decision applies to business-entity agents with fewer than five employees.

What’s next on the horizon after Raines?

Public agencies, like other employers, routinely rely on business-entity agents to assist with employment and human resource tasks – such as pre-employment, post-offer medical and psychological examinations, fitness for duty examinations, recruiting, screening candidates, interviewing, the disability interactive process, and administering workers’ compensation or disability insurance claims.  After Raines, when these business-entity agents engage in FEHA violations, they may be directly liable for violations of FEHA.  Thus, they can not only subject the employer to FEHA liability, they can also now be directly liable themselves under Raines if they have at least five employees.  As a result, agencies may now see indemnification and hold-harmless provisions in contracts with these agents for these services.  In addition, many of these business-entity agents providing these services may be large corporations with deep pockets.  In Raines, the court notes that “plaintiffs allege that USHW … are large business enterprises operating on a national scale,” which factored into the Court’s decision.  When private business-entities with ample resources are engaged in FEHA-activities, individuals may have more incentive to bring lawsuits for perceived violations, against both the agent, and public entity employer.  (In Raines, Raines also sued the employer, but reached a settlement, and her lawsuit proceeded against the testing company).

Clear the fog when conducting pre-employment post-offer medical exams

The plaintiffs in Raines alleged questions on their health history questionnaire included asking about venereal disease, penile and vaginal discharge, problems with menstrual periods, diarrhea, constipation, and painful/frequent urination.  Under FEHA, pre-employment post-offer medical inquiries must be job related and consistent with business necessity.  Plaintiff Raines applied to be a food service aide who had routine kitchen staff duties, and Plaintiff Figg to serve as a member of the Fire Protection District’s volunteer communication reserve. In both situations, it is hard to see how these questions could all be job related and consistent with business necessity, yet broadly worded inquiries like this are often made in these types of examinations. 

While public agencies may have legitimate concerns for pre-employment medical examinations to protect their employees and members of the public, narrowly tailoring the inquiry and limiting it to job related questions can be challenging – and can lead to litigation.  The examination scope is especially critical when the examination is focused on evaluating an applicant’s mental or psychological fitness for a job, because it can easily lead to claims of discrimination against mental disabilities.  Since public agencies often contract with third party providers to administer these examinations, it is essential public agencies stay vigilant and fully understand the nature and scope of the protocols the third party providers are using to ensure the examinations are always job-related and consistent with business necessity.

pexels-cottonbro-studio-5081930

In Texas v. Johnson, the Supreme Court summarized the “bedrock principle” of the First Amendment: “that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” But what if the idea is being pushed by an all-knowing algorithm . . . and the idea being pushed is NyQuil chicken?

TikTok has grown in popularity in recent years among a wide range of demographics. Its users often find themselves in niche categories such as BookTok, Cottagecore, and ThriftTok via one of the app’s most notable features: the algorithm.

Through the algorithm, TikTok provides users with a never-ending flow of videos that are curated to the user’s interests. The algorithm’s ability to know almost exactly the content a user may want to consume is both irresistible and uncanny. This early stage machine omniscience prompted scrutiny from local and federal government agencies.

Scrutiny on Data Security

Perhaps the most newsworthy issue is users’ security. ByteDance, TikTok’s parent company, maintains its headquarters in Beijing and is incorporated in the Cayman Islands. Unsurprisingly, this ownership structure has raised some eyebrows. For example, the House Energy and Commerce Committee held a congressional hearing earlier this year and grilled TikTok’s CEO with their safety concerns.

With the increased scrutiny came increased regulation. President Joe Biden signed legislation that banned the app from government devices. Other countries in the “Five Eyes” security alliance (the intelligence alliance composed of Australia, Canada, New Zealand, the United Kingdom and the United States) enacted similar steps. Effective this new year, Montana will ban the app in the entire state including for private individuals.

While many dismiss the actions as unnecessarily alarmist, there are bits of validity in the concerns. Last year, TikTok admitted to using app data to track down journalists’ sources when ByteDance used the app’s records to access journalists’ IP addresses to see if they were in the same location as employees suspected of leaking information. Last month, users of ByteDance’s video editing app CapCut sued the company alleging privacy concerns. According to the complaint, CapCut harvests “unique identifying information, biometric data, geolocation, telephone numbers, and other private or confidential data, in violation of state and federal consumer protection laws.”

One after another, countless government entities—countries, states, universities—began banning TikTok from government devices. Can your agency do the same?

My Device, My Choice

As a general rule, public agencies should have policies regulating employee use of agency-owned e-mail accounts, computers, and other devices. These policies should advise that employees have no expectation of privacy or right of privacy concerning their activities on agency-owned devices. This takes care of potential liability for a claim of invasion of privacy.

Besides the privacy concern, employees may argue that banning a social media platform on agency devices restricts their freedom of expression. In the context of agency-owned devices, the focus for a First Amendment analysis is on whether the agency, by supplying devices with access to other social media, created a designated or limited “public forum.”

The agency can avoid the risk of creating a designated or limited “public forum” by instituting an “Acceptable Use” policy. This policy should restrict use of agency-owned devices to work-related purposes only, with an accommodation for incidental personal use. It can even explicitly state that the devices do not create any types of public fora. This allows the agency to discipline employees for breaking the Acceptable Use policy, and not for any protected speech. So, an employee who decides to use an agency-owned device to engage in speech on TikTok would not be disciplined for engaging in the protected speech. Instead, the employee can be disciplined for violating the Acceptable Use policy.

Don’t Take it Personal

It is much harder to regulate an employee’s use of their personal devices on their own personal time—including whether or not the employee chooses to install TikTok on their devices. The ongoing litigation over Montana’s statewide ban of the app from government and personal devices illustrates these challenges.

Employees likely have a reasonable expectation of privacy in the contents of their personal devices. Under California Labor Code, section 980, employers cannot even require employees or applicants to disclose their social media accounts.

Employers face another uphill battle on the free expression front. Employees may argue that any security concern can be mitigated by prohibiting employees from bringing their personal devices into the workplace. Outside the workplace, they can then argue, any restrictions on TikTok serve only to restrict the employee’s ability to engage in free expression.

Consequently, restricting TikTok on employees’ personal devices is likely inadvisable. Still, there are varying levels of security concerns depending on the various policies an agency may impose on use of personal devices. For example, an agency may allow employees to use their personal devices to access agency-owned email accounts, payroll services, or scheduling apps. An agency may also, instead of supplying a device, reimburse the employee for their existing personal device. These situations open up a multitude of issues to consider. If your agency decides that there is value in restricting TikTok from personal devices, such a decision should be guided by legal counsel.

Should your employees be on TikTok?

The threshold choice of restricting TikTok in the workplace is largely a policy decision. Agencies should consider the potential security concerns and determine if employees’ use of TikTok might put the agency’s data at risk.

Restricting TikTok involves several factors such as whether the agency owns the employees’ devices, the level of data security risk relative to the employee’s position and duties, and even the potential benefit of social media for marketing opportunities. Implementing these policy decisions requires comprehensive analysis of several factors unique to each agency and should be undertaken with guidance from legal counsel familiar with the issues.

pexels-pixabay-265101

Employers know all too well the negative impact that excessive employee absences can have on the workplace.  With just a month left of summer, major concerts touring, and back-to-school on the horizon, employers are likely to see many employees using up more of their paid time off as they squeeze in their final vacations and prep for the fall.  But what happens when an employee is excessively absent, or an employer suspects an employee is abusing their leave?  And how do protected leaves come into play?  This blog will discuss best-practices for recognizing and responding to employee absenteeism while lawfully navigating protected leave laws.

What is absenteeism?

Generally speaking, absenteeism is the failure to report to work as scheduled.  It includes all forms of absences, as well as employee tardiness.  It does not, however, include issues that occur (such as lack of productivity or focus) while an employee is at the workplace.

How can an employer determine if an employee’s absences are excessive?

Several methods can help an agency calculate whether absence is excessive.  The simplest way is to calculate the average amount of leave employees take as a whole, and then determine if any individual employee’s absences are well above that average.  However, if the employer feels there is an excessive absence issue agency-wide, then the overall average may not reflect an acceptable standard.  In that case, looking at the ratio of scheduled days/hours worked versus the actual days/hours worked may be best.  It’s important to remember that absenteeism can be excessive even when an employee is still able to draw upon accrued leave accounts, i.e., sick leave, vacation leave, or compensatory time.  

How are excessive absences different from abuse of leave?

Unlike excessive absences, abuse of leave deals with using leave only for an illegitimate purpose.  This can include misrepresenting what the leave is used for, taking improperly extended breaks or lunches, tardiness, falsified medical notes, or otherwise unauthorized leave.  Sometimes a pattern in an employee’s absences can indicate an abuse of leave.  For example, if an employee regularly and exclusively calls out sick on Fridays or Mondays.

Are there any activities that cannot be considered when examining an employee’s absenteeism?

Yes.  Protected leaves, or leaves that are “protected” by law which employees are entitled to take regardless of Department policy, must be excluded from any definition of excessive/ abuse of leave.  All of the protected leave laws, including the Family and Medical Leave Act (FMLA), California Family Leave Act (CFRA), and California Pregnancy Disability Leave (PDL) law expressly prohibit any form of discipline in response to the exercise of a protected leave right. 

Absences related to reasonable accommodations under the Americans with Disabilities Act (ADA) and leave related to workers’ compensation or an industrial injury are two very common protected leaves that cannot be considered when analyzing an employee’s potentially excessive absence.  Some other common protected leaves include those for:

  • Appearance at a child’s school (Labor Code 230.8 allows an employee to use up to 40 hours of personal leave, vacation, or comp time, but no more than 8 hours a month (unless there is an emergency), to participate in their child’s education and/or school activities.  Labor Code section 230.7 allows a parent-employee to take time off to appear at their child’s school due to the child’s suspension.)
  • Military deployment
  • Attending jury duty
  • Voting

Employers should carefully evaluate whether an employee’s absence falls under a protected leave before instituting discipline related to excessive or abuse of leave.

What are the employer’s options if an employee is excessively absent or abusing their leave?

First, it’s important for employers to keep a written file of key information regarding employees’ absences or tardiness, including the date, time, and location of the incident, the employee’s reason for the absence or tardiness, and the employee’s efforts to obtain authorization.  This information will be crucial when pursuing any subsequent action.

If an employee is excessively absent, and any applicable Memorandum of Understanding (MOU) provision does not otherwise prohibit it, an employer can and should respond.  Not responding can establish a past practice or lead employees to think such absences are acceptable, when they are not.

If there is reason to believe the employee is suffering from a medical condition that prevents him/her from performing the essential functions of the position, a fitness for duty examination may be appropriate.

When apparent abuse of leave occurs, the best practice is for the employer to conduct an investigation.  In addition to misusing the leave, the employee might be violating Department policies related to dishonesty.  By investigating and uncovering all relevant facts, an employer increases the likelihood that any disciplinary action imposed will be sustained if an appeal is brought in the future.  That said, investigations into medical reasons are limited by laws such as the Confidentiality of Medical Information Act.  So employers should consult with legal counsel to ensure they are asking appropriate questions.

If it is ultimately determined that an employee’s absences violate agency attendance policy, then progressive discipline is another option an employer can pursue.

Other best practices:

  • Communicate acceptable standards with employees in advance. 
  • Have a clearly defined attendance/leave policy. 
  • Be consistent! Apply the standards equally across all employees when evaluating excessive or abuse of leave.  If an exception is made to the leave policy for one, it should be made for all employees.

In the end, the best offense is a good defense.  By clearly setting expectations with employees, utilizing a well-defined written policy, closely tracking attendance, and intervening early when potential issues arise, employers can help prevent absenteeism and avoid bad blood with employees in the future. 

pexels-andrea-piacquadio-927022

Starting a new internship can be a mix of excitement and nerves. Because an internship is limited in scope and duration, you want to maximize your experience while making a positive impression on your colleagues. To help you succeed in your internship, we’ve gathered some valuable tips from the outgoing class of summer associates at LCW that can be applied across various industries.

  1. Embrace Uncertainty

As an intern just starting their career, you’ll be working alongside experienced professionals who may not have all the answers themselves. After all, LCW’s public and private sector clients seek legal support to help them comply with an array of labor, employment, education, and nonprofit laws, many of which involve complicated and overlapping standards. In the law, “it depends” is a practice turned adage—and for good reason. Uncertainty is the law’s bread and butter and navigating it effectively is essential for success.

How do you grapple with uncertainty?

“Don’t be afraid to ask questions,” answers Jacqueline Hubbell, a summer associate at the Los Angeles office. “The attorneys at LCW are aware you are at the beginning of your career, and they are more than happy to share their knowledge.” When receiving an assignment, Juliana Pech from Los Angeles suggests asking preliminary questions like “Where would you start?” and “How would you go about this assignment?”

“Everyone has made themselves available for help and guidance,” she says, “it is just about asking for it.”

Remember also that asking for help does not guarantee perfection in your work. Another summer associate, Sam Holmberg of the Los Angeles office, encourages everyone to try their best but to not be afraid of making mistakes, as they are opportunities for growth and learning.

In addition to asking questions, it is also good practice to regularly solicit and embrace feedback from your direct supervisors. Allison Sipe from the San Francisco office meets regularly with her mentor and other attorneys she is assigned to work with. “Doing so keeps you on track with your workload and deepens your understanding of the different kinds of work happening at the firm,” she says.

2. Be Proactive

Take ownership of your internship experience. While your workload coordinator or supervisor plays a role in assigning your work, it is essential that you communicate your interests as well. Cindy Rivas from the Los Angeles office suggests identifying the practice areas that intrigue you while being open to gaining experience in unfamiliar practice groups you may not have originally thought you would be interested in. “It will expand your horizons as an attorney and a person,” Jacqueline says. She advises that you find attorneys who do the work you like and ask them what path they took to get there.

Being proactive requires some degree of putting yourself out there. “Don’t just sit at your desk,” says Monica Chinchilla of the San Francisco office. “Walk around and talk to different associates and partners and ask what they’re working on. You’ll find some cool opportunities and develop your network by being proactive.”

Also, take advantage of your office’s resources and opportunities. Allison encourages summer associates at LCW to shadow as many court proceedings as they can, such as depositions and mediations. “We seldom get to see court proceedings in law school,” she says, “so it’s an excellent opportunity at LCW.” Juliana was able to shadow a consortium call on AB 2188, attend a public safety negotiation, and a wage and hour class action hearing in just a few short weeks! And as Sam suggests, unless you have a good reason, avoid declining any opportunities that come your way.

3. Balance Work and Life

Diligence and professionalism are crucial skills to develop, but it is equally important to maintain your personality and interests outside of work. To that end, Chase Booth from the San Diego office reminds interns to be themselves. “Self-regulate as needed to maintain professionalism in the workplace,” he cautions, “but do not entirely discard your personality.” Part of any work culture is determining fit, which includes determining how your personality meshes with those of your future colleagues.

Developing personal connections with your colleagues is an essential aspect of your internship experience. Abigail Lee from the Sacramento office adds that the attorneys you work with are more than just professional mentors. “Part of having a healthy career is work-life balance,” she says, “and I learned a lot about maintaining that from the attorneys at my office.” A simple “Doing anything fun this weekend?” will go a long way. “How was the Barbie movie?” on the following Monday will go even further in building rapport (so long as Barbie was viewed with enthusiasm—your mileage, and the mileage of any reluctant parent dragged along may vary). Let your personality shine and allow the personality of others to shine, too. “The attorneys at LCW are genuine, kind, and friendly people,” Cindy says.

Despite being scattered across various California offices, LCW’s unique “one-firm” philosophy promotes close collaboration because everyone is just a quick phone call or email away. Sam and Cindy encourage interns to get to know as many people as possible, not just the attorneys or staff at your office. You never know what shared hobbies and interests you may have with coworkers unless you ask. “I personally appreciate that many of the attorneys at LCW are parents,” says Abigail, “and as someone who wants to have a family one day, I feel inspired by seeing how hard they work both as parents and lawyers.”

In conclusion, the success of any internship, including at LCW, is defined by effort and engagement. Embrace uncertainty, ask questions, exhibit enthusiasm, be proactive, and maintain your authentic self while showing genuine interest in your colleagues. By following these tips, you can make the most out of your summer internship and lay a strong foundation for your future career.

On or about June 8, 2023, a law firm filed a complaint of discrimination with the Civil Rights Department (“CRD” [formerly the Department of Fair Employment and Housing]) and requested a right to sue notice on behalf of a former employee of Lake County who received a disability retirement through the California Public Employees’ Retirement System (“CalPERS”).  The narrative of the complaint purports to name CalPERS, the State of California, the County of Lake, and entities that contract with CalPERS to provide retirement benefits under the Public Employees’ Retirement Law (“PERL”) as defendants.  The notice and right to sue letters, along with a narrative of the complaint and a purported tort claim, were served on many, if not most, CalPERS contracting agencies.

The complaint indicates that the potential class of employees plaintiff seeks to represent consists of the following:

[A]ll persons who were employed by Defendants; who were at or over age 40 at the time they became members of the CalPERS system; who applied for and were granted ordinary disability retirement; whose retirement benefits are administrated by CalPERS; and either (1) who have ever received disability retirement benefit payments pursuant to Government Code section 21423, who were over age 41 at membership in CalPERS, and who at retirement were credited with 18.518 or fewer years of actual service; or (2) who have ever received disability retirement benefit payments pursuant to Government Code section 21098, and who at retirement were credited with 24.691 or fewer years of actual service; or (3) who have ever received disability retirement benefit payments pursuant to Government Code section 21424, and who at retirement were credited with 29.629 or fewer years of actual service.

The complaint alleges that provisions of the PERL, which are legislatively enacted and administered by CalPERS, discriminate against individuals based on their age.  The complaint further alleges that this amounts to disparate treatment and intentional discrimination, and failure to prevent discrimination, under the Fair Employment and Housing Act (“FEHA”).  The complaint also alleges breach of contract claims.  Given that the alleged wrongful conduct was the result of a legislatively adopted statute, it is not clear what theory would support a claim that would make contracting agencies liable for the statutory scheme or under a breach of contract theory.

The attachments to the CRD claim also contain a generic purported tort claim.  It is also unclear whether the theories advanced by the plaintiff would be subject to the Tort Claims Act or whether the attachment complies or substantially complies with the requirements of the Tort Claims Act.  Agencies should discuss with their counsel whether to overtly act on the tort claim, by providing a notice of rejection of the tort claim, or not respond, which ultimately results in a rejection  by operation of law. Agencies should also discuss with their counsel whether to notify their employment practices liability insurer.

At this time, it is uncertain whether a lawsuit will be filed, whether a class will be certified, and what theories will be alleged.   We are currently unaware of any agencies being served with a lawsuit.

Liebert Cassidy Whitmore attorneys are closely monitoring developments in relation to this Special Bulletin and are able to advise on the impact this could have on your organization. If you have any questions about this issue, please contact our Los Angeles, San Francisco, Fresno, San Diego, or Sacramento office.