California’s Computer Data Access and Fraud Act (CDAFA) (also referred to as the “Anti-Hacking Statute”) prohibits access to computers, computer systems, and networks without permission in order to do harm or engage in unauthorized use. (See California Penal Code § 502). Violation of the CDAFA may range from a misdemeanor to a felony offense, and the Act also provides for a civil remedy in the form of compensatory damages, injunctive relief, and other equitable relief. The intent of the CDAFA is to protect individuals, businesses, and governmental agencies from tampering, interference, damage, and unauthorized access to lawfully created computer data and computer systems.

The Act specifically prohibits the disruption of government computer services and public safety computer systems without permission.

Prosecution for violation of Penal Code section 502 is not limited to outsiders of an organization. Employees who misuse their access to employer computer systems may be held criminally liable for taking, copying, or making use of any data from a computer, computer system, or computer network. According to the U.S. Court of Appeals for the Ninth Circuit, the term “access” as defined in the state statute includes logging into a database with a valid password and subsequently taking, copying, or using the information in the database improperly.

Many employers are ill prepared to defend against insider hacking jobs. Information Technology (“IT”) employees and others with unfettered access to computer systems, data, and employee email accounts may be tempted to eavesdrop and appropriate data beyond what is required in their scope of employment.

Public agencies must protect their electronic information just as private companies must.  Indeed, while numerous local government records are public documents, improper access and/or misuse of public data, such as employee emails, without a business purpose, can create significant disruption within an agency. Also, many local government documents are exempt from public disclosure, including documents pertaining to pending litigation, private personal information, and library circulation records, to name a few. Local government agencies have an obligation to protect such exempt documents from disclosure.

While improper access can be difficult to detect and control, employers can take several important steps to deter unmitigated employee access.

  1. Adopt personnel policies prohibiting employees from gaining access without permission in order to alter, damage, delete, destroy, or otherwise improperly use any data, computer, computer system, or computer network. Such policies should also prohibit making copies of data without permission, and gaining access in order to disrupt services.Community colleges should also note that they are required by Penal Code Section 502(e)(3) to include computer-related crimes as a specific violation of college or university student conduct policies.
  2. Establish in job descriptions and terms of service that access to employer computers, systems, networks, and data are only permitted for legitimate business purposes that fall within the employee’s scope of employment, and that the employer does not consent to access for non-business purposes or for purposes that fall outside of an employee’s scope of employment.
  3. Require employees to acknowledge and agree in writing that access is restricted to designated business purposes, and that they are not permitted to access or misuse employer computers, systems, networks, and data for any other reason. Employees should also be required to acknowledge that unauthorized access or access/use for a non-business purpose may result in discipline up to and including termination, and may result in prosecution under the law. Such acknowledgements should be renewed on a regular basis. User agreements are particularly important for IT employees.
  4. For IT employees, establish a “service” or “trouble” ticket system to define when access to certain systems is appropriate, and when such access is no longer necessary once each ticket is resolved.
  5. In order to discourage misappropriation of agency data, prohibit employees from bringing their own computer equipment, including computers, laptops, hard drives, USB drives and other personal devices, into the workplace.
  6. Finally, in the event that employers need to investigate an employee’s alleged improper access or misuse, advise and regularly remind employees in writing that they have no expectation of privacy regarding their activity on employer-owned devices and systems.

Data theft and computer system disruption can have serious effects on an organization. These steps can help ensure that employees are aware of the rules and expectations related to computer and data access, and will help protect employer data from misuse.

This article was reviewed March 2021 and is up-to-date.

Many times, parties to a lawsuit receive trial court rulings in the midst of the litigation that are unfavorable, oppressive, and seem to them to be demonstrably wrong.  The parties want to appeal immediately, but their counsel will say that cannot happen, citing the “Final Judgment Rule.”  The rule certainly sounds dark and fateful.  Perhaps courts intend it to be, because the rule serves to deter disgruntled litigants from appealing while the trial court case is ongoing, and typically requires those litigants to wait months, or even years, to appeal.  So what is this rule?  And perhaps more importantly, what are ways to gain access to an appellate court early without offending it?

The Final Judgment Rule (sometimes called the “One Final Judgment Rule”) is the legal principle that appellate courts will only hear appeals from the “final” judgment in a case.  A plaintiff or defendant cannot appeal rulings of the trial court while the case is still ongoing.  For example, a party that loses its motion to compel discovery, motion for summary judgment, or demurrer cannot appeal these decisions, at least not until a final judgment has been entered in the case, concluding the lawsuit in the trial court.  The Final Judgment Rule has existed for hundreds of years, and serves the purpose of promoting judicial efficiency – cases would practically never end if the party who lost a motion while the case was pending could appeal it, wait for a decision from the court of appeal, and then continue with the trial court case.

Moreover, the Final Judgment Rule greatly reduces appellate court workloads by tending to make it so that only very important issues are ultimately presented to those courts.  If a party loses a motion early in the trial court case, they may certainly feel wronged.  But in the weeks or months afterward, the case may settle, the issue may fade in importance, or the trial court might actually decide to change the ruling, making appellate review unnecessary.  Postponing review conserves appellate court resources, and those of the parties as well.  In addition, postponing appellate review allows the appellate court to rule on all the challenges to the trial court’s decisions at the same time, thereby further promoting efficiency.  The appellate court will not have to consider “piecemeal” appeals.

The Final Judgment Rule may make sound policy sense.  But it is not much comfort to a litigant who has lost an important motion in court many months before the actual trial will start and cannot immediately appeal the bad ruling.

There are, however, some ways around the Final Judgment Rule.  Here are examples of four significant ways, and the circumstance under which each is available.

  1. Petition for Writ of Mandamus:

This is the classic method for obtaining relief while a litigation matter is still ongoing.  This type of petition to an appellate court seeks a “writ of mandamus” (sometimes also called a “writ of mandate”), essentially an order from the appellate court to the trial court directing it the trial court to change its decision or take some other action.  This type of writ is available in both federal and state courts.

The advantage of a petition for writ of mandamus is that it is available to overturn essentially any ruling or order made by a trial court, even though the lawsuit is still ongoing.  The disadvantage of this type of petition, however, is that it is entirely discretionary in the court of appeal.  The court of appeal is free to turn down any writ petition, even one that clearly has merit, and the court of appeal denies the overwhelming majority of petitions for writ of mandamus seeking review of trial court orders.  The state court percentage of accepted petitions is low and the number is even lower in federal court.  The reason these writs are so often denied on this summary basis (i.e., without even considering whether they raise a valid legal point) is that courts of appeal rarely see any reason to depart from the underlying principles of the Final Judgment Rule.

There are particular types of scenarios in which appellate courts are more likely to decide a writ on the merits.  One is when issues of privilege or confidentiality are concerned.  For example, when a trial court orders a litigant to disclose sensitive personnel records of individuals or information in which the litigant claims attorney-client privilege, the need for appellate review is immediate.  If the litigant obeys the trial court’s order, then the disclosure will be made, and the alleged harm done, before any appellate court can determine whether the trial court’s ruling in fact was correct.  It is widely understood that in these scenarios, appellate courts will more likely choose to intervene in the midst of litigation.

Another example is when the issue raised by the writ petition is one of great public importance, and when the party who files the petition can persuade the court that the public would be well served by the appellate court immediately reviewing and providing guidance on that particular issue without waiting for the case to conclude.

  1. A Preliminary Injunction Ruling:

The parties can also immediately appeal a trial court’s ruling granting or denying injunctive relief.  Trial courts have the power to issue preliminary injunctions at the beginning of a case that can operate to preserve the status quo.  For example, a trial court can order that a public college must stop enforcing a rule that supposedly stifles student First Amendment free speech rights.  Trial courts can make these orders based on an initial showing by the plaintiff, at the beginning of the case, that they are likely to succeed on the merits of their claim, that they are likely to suffer irreparable harm if the preliminary injunction is not granted, and that general equities and the public interest support issuance of the injunction.

Not only are these types of orders for injunctive relief by trial courts (either granting or denying) immediately appealable, but in the federal appellate courts, appeals of injunctions are given priority over other types of cases.

  1. Rulings on Anti-SLAPP Motions:

An immediate appeal is also available from a state trial court’s ruling on what is known as an “anti-SLAPP motion.”  This type of motion can be used by a defendant, including a public entity, in response to a lawsuit that challenges conduct by the defendant in furtherance of the defendant’s right of petition or free speech as defined by the anti-SLAPP statute.  (SLAPP stands for “Strategic Lawsuit Against Public Participation,” and is meant to refer essentially to meritless lawsuits brought against persons or organizations to punish them for and/or deter them from speaking out on important issues or petitioning the government for redress.)  The statute defines protected activities very broadly.  Indeed, courts have interpreted the definition to include government statements in various types of proceedings, including internal investigations conducted by public entities as to their employees.  (Hansen v. California Dept. of Corrections and Rehabilitation.)

If the anti-SLAPP statute applies in a given context, then the defendant can make a motion at the outset of the case to have a trial court determine if there is any “probability” of success on the claim.  If the plaintiff cannot present evidence making this showing of a “probability,” then the trial court rules in favor of the defendant.  If the defendant wins the motion, the trial court will require the plaintiff to pay the defendant’s attorneys’ fees and costs.  Thus, another very important way to have an appeal heard early in state court is to bring an anti-SLAPP motion.

  1. Qualified Immunity Decisions:

Another judicial determination that is often immediately appealable, in the midst of litigation, is a federal trial court’s decision on the defense of qualified immunity.  This is a defense available to individuals who are officials or employees of government agencies and are named personally in federal civil rights lawsuits.  In general, the defense of qualified immunity applies when the individual defendant is challenged for actions he or she took relating to an area of law that is unclear or unsettled.  If it is sufficiently difficult for the individual to tell what is constitutionally prohibited in the situation in question, then this defense will apply.  Qualified immunity will not provide a defense to claims for declaratory or injunctive relief against the individual, but it will serve as a defense to a monetary damages claim.

If the trial court either grants or denies a motion based on qualified immunity in the middle of the case, then either side respectively can appeal the determination, if the appeal involves essentially legal questions such as whether the plaintiff’s alleged rights at issue were sufficiently unclear to merit applying the defense.  The defense applies in a wide variety of cases brought against government officials and employees.  Significantly, individual defendants can claim the qualified immunity defense in wrongful termination cases in which the former employee claims violation of his or her constitutional free speech or due process rights.

Each of these four ways to obtain appellate review on an interlocutory basis — i.e., in the middle of the case — are available to public entity defendants.  This gives public entities a unique ability in many cases to structure the defense to obtain immediate access to an appellate court, and thus have important matters resolved before the case concludes.

For other litigation posts on related issues, see prior LCW posts: “Anti-Slapp Motions As A Litigation Resource For Public Employers,” “Extending Qualified Immunity To Private Individuals,” and “Appellate Law — What Are Amicus Curiae Briefs?”

The COVID-19 pandemic has changed the work environment in many ways, including a significant impact on employer-sponsored health benefits.  The past year has resulted in changes to how frequently individuals visit the doctor (or do not visit the doctor), purchase eligible medical expenses, and need dependent care.  In response to the pandemic, the IRS, Congress, the Department of Labor (“DOL”), and the Department of Treasury have provided options for employers to adopt flexible changes and extensions for employer-sponsored health coverage, health flexible spending accounts (“health FSAs”), dependent care assistance programs (“DCAPs”), and COBRA coverage.  (See IRS Notice 2020-29; IRS Notice 2021-15; H.R. 1319 – American Rescue Plan Act of 2021; Employee Benefits Security Administration Disaster Relief Notice 2021-01.)

In order to help your agency track the available options and changes, here is a list of the top 9 ways COVID-19 can affect your public agency’s health benefits.

#1 Mid-Year Election Changes to Employer-Sponsored Health Coverage

An employer may amend a Section 125 cafeteria plan to allow employees to make mid-year election changes to their contributions to employer-sponsored health coverage for plan years 2020 and 2021.  This is a big departure from the IRS’ typical rule of irrevocability, which does not allow mid-year changes unless the employee experiences a change in status or unless there is a significant change in the cost of coverage.  A public agency may permit employees to make the following types of mid-year election changes:

  1. Employees may make a new election on a prospective basis, if the employee initially declined to elect health coverage;
  2. Employees may revoke an existing election and make a new election to enroll in different employer-sponsored health coverage on a prospective basis; and/or
  3. Employees may revoke an existing election on a prospective basis if the employee attests in writing that the employee is enrolled (or will immediately enroll) in other health coverage not sponsored by the employer.

#2 Mid-Year Election Changes to Health FSAs and DCAPs

Employers may also permit employees to make mid-year election changes to health FSAs and DCAPs for plan years ending in 2020 or 2021, including revoking elections, increasing or decreasing salary reduction contributions, and making new elections.  This deviates from the pre-pandemic rule of irrevocability for health FSAs and DCAPs.  Although salary reduction changes only apply prospectively, a plan amendment may allow employees to use amounts contributed after the mid-year election for eligible expense incurred from the beginning of the plan year.

#3 Flexibility for Health FSA and DCAP Carryovers and Increase to Carryover Amounts

There are new options that allow employees who have unused health FSA or DCAP contributions at the end of a 2020 or 2021 plan year to carryover and use those amounts in a subsequent plan year instead of losing or wasting them.  Section 214 of the Taxpayer Certainty and Disaster Tax Relief Act of 2020 (the “Act”) temporarily allows employees to carryover unused health FSA or DCAP contributions to pay for eligible expenses.  This change permits employees to carryover their unused amounts from a plan year ending in 2020 to a plan year ending in 2021.  It also permits employees to carryover unused contributions from a plan year ending in 2021 to a plan year ending in 2022.

This flexibility includes a big change from standard DCAP requirements which generally do not allow DCAPS to have carryovers.  The IRS temporarily allows employers to establish a carryover for DCAPs for plan years ending in 2020 or 2021.

This change also allows for carryovers beyond the maximum amount previously allowed.  Typically, a health FSA with a carryover only allowed an employee to carry over 20% of the annual maximum contribution amount.  The maximum carryover from a 2020 plan year to a 2021 plan year is $550 (20% of the maximum contribution of $2,750).  However, employers may temporarily allow employees to carryover all or a part of the unused amounts remaining in a health FSA or DCAP, even if that amount exceeds $550.

#4 Extended Grace Periods

A “grace period” is an extended period of time when an employee can apply unused and remaining health FSA or DCAP contributions to pay for or reimburse eligible expenses after the end of the current plan year.  Under non-pandemic circumstances, a grace period can be no longer than two (2) months and 15 days following the end of the plan year.

In light of the pandemic, the Act allows employers to adopt an extended grace period of up to 12 months for plan years ending in 2020 or 2021.  This will give employees more time to pay for or obtain reimbursement for eligible expenses.  For example, an employer can permit employees to use their entire unused health FSA benefits remaining as of December 31, 2020, to pay for eligible medical expenses incurred through December 31, 2021.

Please note that an employer may not permit both a carryover and an extended grace period for a particular health FSA or DCAP in a single plan year under these new flexible rules.

#5 Employees Who Cease Participation in a Health FSA May Continue to Spend Down Funds

Section 214(c)(2) of the Act allows employees who stop participation in a health FSA during calendar year 2020 or 2021 to continue to receive reimbursements from unused contributions through the end of the plan year (including any extended grace period).  This flexibility is available to an employee who ceases to be a participant as the result of termination of employment, change in employment status, or a new election during calendar year 2020 or 2021.

#6 Increase to Dependent’s Maximum Age

The Act also increases the maximum age of dependents from age 13 to age 14, which provides an extra year of DCAP fund coverage for children who “aged out” during the pandemic.  This allows employees to continue to use DCAP balances for qualified expenses for dependent children who turned age 13 during the 2020 plan year.  Further, participants may also use remaining DCAP balances at the end of the 2020 plan year for the dependent’s expenses in 2021, until the dependent reaches age 14.

#7 Increase to Maximum DCAP Contribution

On March 11, 2021, the President signed the H.R. 1319, the American Rescue Plan Act of 2021 (“ARPA”) into law.  The ARPA temporarily increases the maximum amount of DCAP benefits from $5,000 to $10,500 (and from $2,500 to $5,250 for taxpayers who are married filing separately).  If an employer amends its DCAP to allow for this increase, employees will have the option to make tax-exempt salary reduction contributions of up to $10,500 for 2021.

Important Point: The Flexible Changes Are Not Automatic

The changes in #1-7 above are not automatic and employer-action is required to take advantage of any of the flexible options.  Employers who are interested in establishing the flexible changes must affirmatively amend their plan documents.  Employers are allowed to pick and choose which changes they want to allow for their employer-sponsored health coverage, health FSAs, and DCAPs.

Employers who offer these changes may adopt a plan amendment retroactively but it must be adopted no later than the last day of the first calendar year that follows the end of the plan year in which the amendment is effective and the employer must operate such plan in accordance with the amendment’s effective date.  This means that any amendment should be adopted by December 31, 2021 in order it to apply retroactively to 2020 and by December 31, 2022 in order for it to apply retroactively to 2021.

Employers are not required to permit any or all of the changes.  If an employer does not adopt any of the changes, then the usual pre-pandemic rules will remain in place.

Public agencies that are considering adopting any of these flexible options should review the IRS guidance carefully and consult with legal counsel on how to properly adopt plan amendments.

#8 Subsidized COBRA Coverage

The ARPA also makes big changes to who pays for COBRA coverage.  Prior to the ARPA, individuals were required to pay their own premiums and up to a 2% administrative fee for COBRA coverage.  From April 1 to September 30, 2021, the ARPA requires employers to provide COBRA coverage to eligible individuals at no cost to the individual.  Employers will then be eligible for a federal tax credit equal to the cost of coverage.  The COBRA subsidy will be available to employees and dependents who have lost employer-sponsored health coverage due to an involuntary separation of employment or involuntary reduction in hours worked.

Employers must notify eligible individuals of their right to receive the COBRA subsidy by May 31, 2021.  Employers will also have to update their COBRA notices and send out notices informing eligible individuals when their subsidies are about to expire.  The Department of Labor will issue model notices for employer use.

#9 Extended Deadline to Apply for COBRA

Pre-pandemic, a covered employer had 44 days from the loss of group health plan coverage to provide a COBRA election notice to employees.  Employees then had 60 days to elect continued coverage. 

In 2020, the DOL and the IRS issued a notice that extended the COBRA deadlines during the COVID-19 “outbreak period”, from March 1, 2020 until 60 days after the announced end of the “Coronavirus National Emergency”.  However, since the pandemic has lasted more than one year, the DOL, Department of Treasury, and IRS have issued updated guidance on the timeline extension.  (Employee Benefits Security Administration Disaster Relief Notice 2021- 01.)  The recent guidance clarifies that the extended COBRA deadline will now last until the earlier of:

(1) one year from the date the action would otherwise have been required or permitted; or

(2) 60 days after the announced end of the Coronavirus National Emergency (the end of the “outbreak period”).

For example, if an employee lost health coverage and would have been required to make a COBRA election by March 1, 2020, the employee’s extended deadline to elect COBRA was February 28, 2021, which is the earlier of one year from March 1, 2020 or the end of the outbreak period (which remains ongoing).  If an employee loses health coverage and would have been required to make a COBRA election by March 1, 2021, the employee’s extended deadline to elect COBRA ends on the earlier of February 28, 2022 or the end of the outbreak period.  It is yet to be seen which date will come sooner.

CalPERS previously indicated that it would apply the DOL and IRS’s COVID-19 Relief Rule and extend COBRA elections for PEMHCA.  (CalPERS Circular Letter 600-039-20.)

One year after the public health emergency caused by COVID-19 began, hope is on the horizon as vaccine production and distribution increases and eligibility criteria for vaccinations expands.  With many employees teleworking during the pandemic, employers are starting to consider post-pandemic working arrangements, including the return of employees to the workplace.  As employers think about this critical issue, there are a number of questions employers must consider: How do employers respond to employees that are eligible for vaccination, but decline to be vaccinated?  Can unvaccinated employees return to the workplace, and, if so, under what conditions?  Should teleworking employees who refuse vaccination be permitted to continue teleworking?  While there are no simple answers to these questions, this blog explores the issues implicated by these questions and provides guidance for employers considering these subjects.

Eligible Employees Who Decline Vaccinations 

There are three statutory bases under which an individual may be legally entitled to refuse vaccination: (1) a disability/medical condition; (2) sincere religious belief; and (3) on the basis that the vaccine is being distributed under the Emergency Use Authorization.  The first two bases arise from the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), and the California Fair Employment and Housing Act (FEHA).  The third basis arises from the Food, Drug & Cosmetic Act (FD&C Act), and the protections afforded thereunder.

Under the ADA, Title VII, and FEHA, employers may require all employees to be vaccinated, but with important limitations.  For example, employers must provide reasonable accommodations to employees who because of a disability/medical reason cannot be safely vaccinated, or if vaccination conflicts with a sincerely held religious belief.  When an employee presents documentation establishing a disability or describes a sincerely held religious belief, the employer should engage in the interactive process to determine how the employee can be reasonably accommodated to minimize the employee’s risk of exposure –and spread – of COVID-19 in the workplace.  Accommodations to consider are remote work, additional personal protective equipment, moving the employee’s workspace to be more isolated, and unpaid leave.

The third basis upon which an individual may refuse vaccination is based on the vaccines being distributed under an Emergency Use Authorization (EUA) under to the FD&C Act.  Under the EUA, individuals must be informed they have the right to refuse vaccination and the consequences of refusal, which is typically presented in an accompanying fact sheet.  It is unclear what is meant by “consequences,” but it is likely referring to health consequences, not termination from employment.  While there is no law indicating an employer is legally required to accommodate employees who refuse vaccination based on EUA, it would be risky for the employer to terminate or take adverse action against employees who exercise their rights under the FC&C Act to decline vaccination.  At least one lawsuit has been filed by a public first responder employee in New Mexico seeking an injunction to prevent his termination on the basis that the county’s mandatory COVID-19 vaccination policy violates his rights under the FD&C Act.  (Legaretta v. Macias, No. 21-CV-179 MV/GBW, 2021 WL 833390, at *1 (D.N.M. Mar. 4, 2021).)  Guidance from the EEOC explains employers’ obligations to reasonably accommodate employees who cannot be vaccinated because of a disability or religious belief, but is silent on refusals based on the EUA.  But is it safe for those employees to return to the workplace?  Does the employer need to accommodate them, including allowing telework?  These are difficult questions, with many considerations and no easy answers. 

The Return to Work of Unvaccinated Employees

The ADA permits employers to exclude from the workplace employees who pose a direct threat to the health and safety of other employees or members of the public.  This standard presents two threshold questions:  (1) does a non-vaccinated employee pose a direct threat to the health and safety of the workplace sufficient to exclude them from returning to work; and (2) if so, what, if any measures could an employer adopt in order to reduce the threat to allow the employee to return to work?

On one hand, the employer may be able to claim that employees who have not been vaccinated present a health and safety risk to other employees and/or members of the public, if the unvaccinated employees will come into contact them.  The employer can use this as a basis to require the unvaccinated employees to telework or take leave.  On the other hand, if that employer had unvaccinated employees in the workplace during the pandemic (such as before the vaccines were available) while following COVID-19 safety protocols, it may be hard to explain why now it was suddenly unsafe for unvaccinated employees to be in the workplace.

In addition, as more individuals become vaccinated, the risks from having unvaccinated employees in the workplace should diminish.  For example, if only one employee is unvaccinated, and everyone else is vaccinated, the risk from one unvaccinated employee to the vaccinated employees should be relatively low.  Employers, however, need also to consider morale.  Even if employees have been vaccinated, they may feel nervous working in the same workspace as a non-vaccinated employee, especially if they have children or others in their household who have not been vaccinated, or have been vaccinated but are high risk for developing serious illness from COVID-19.  It is unclear if unvaccinated employees would pose a direct threat to justify separating them from employment, and doing so could risk discrimination and retaliation claims.  In addition, the direct threat assessment should be individualized to each unvaccinated employee; for example, a first responder that comes into contact with numerous members of the public and other first responders would likely pose a higher threat than an employee who works at a desk all day in their own office.

In order to minimize the risks to unvaccinated employees – and to others from having unvaccinated employees in the workplace — the employer should consider providing the same COVID-19 safety measures and reasonable workplace accommodations it has had in place, to reduce the threat level.  The employer should discuss concerns related to COVID-19, and see if there are ways to allow the employee to work while minimizing risk to the employee and other employees/members of the public from the spread of COVID-19.  These include providing additional personal protective equipment, moving the employee’s workspace to be more isolated, partitions between work areas, and even schedule changes to reduce the amount of employees in the work area at once or entering and exiting together.  The employer is not required to adopt accommodations imposing an undue burden; the focus is accommodations allowing the employee to perform job duties safely for them and others.

Allowing Unvaccinated Employees Who Refuse Vaccinations to Continue Teleworking

Employees who decline to be vaccinated because of the Emergency Use Authorization or personal views about the vaccination who had been teleworking during the pandemic may request to continue teleworking.  On one hand, employees do not have a right to their most desired accommodation, and there may be other accommodations that allow the employee to return to the workplace while ensuring everyone’s safety.  If the employee is at high-risk for serious illness from COVID-19, there may not be any accommodations that allow that employee to return to the workplace.  Employers will also need to consider how successful teleworking was during the pandemic; for example, if the employee was successfully performing their job duties and meeting their job expectations, it may be hard to justify refusing continued telework.

While things are now looking more hopeful, the reality is that COVID-19 will still be here for a while, and the COVID legal landscape concerning vaccinations, accommodations, and best practices is evolving.  While there may not be clear answers to all questions relating to vaccinations and the workplace, the considerations described above should help employers assess risk and develop policies and practices best suited for their workplace.

In 2017, a police officer with the City of Huntington Beach (“Officer Esparza”) saw a man standing on a sidewalk who caught his attention (“Mr. Tabares”).  Officer Esparza noticed Mr. Tabares wore a sweater on a warm day, walked abnormally, made flinching movements with his hands, and looked in his direction several times.  A former police officer who also saw Mr. Tabares thought he had mental health issues but was not dangerous.  Officer Esparza asked Mr. Tabares to stop walking so they could talk, but Mr. Tabares responded “no,” told Officer Esparza to leave him alone, and walked away.

Officer Esparza instructed Mr. Tabares to stop walking away multiple times.  Mr. Tabares turned and walked towards Officer Esparza in a confrontational manner with clenched fists.  Officer Esparza backed up, instructed Mr. Tabares to stop, and then used a taser.  Mr. Tabares approached Officer Esparza and punched him in the face.

Officer Esparza and Mr. Tabares fought and ended up on the ground, with Officer Esparza on top.  Officer Esparza struck Mr. Tabares several times and Mr. Tabares grabbed at Officer Esparza’s belt.  Officer Esparza said “let go of the gun,” but Mr. Tabares had instead taken Officer Esparza’s flashlight.  Officer Esparza stood up, drew his gun, and stepped back about 15 feet.  Officer Esparza then shot Mr. Tabares six times, shouted “get down” twice, and then shot Mr. Tabares a seventh time.  Mr. Tabares died.

Mr. Tabares’ mother filed a civil lawsuit in federal court and the district court granted summary judgment on all claims in favor of Officer Esparza and the City of Huntington Beach.  Ms. Tabares appealed the district court’s ruling on only one claim – her negligence claim under California law.

On February 17, 2021, the U.S. Court of Appeals for the Ninth Circuit reversed and remanded, holding that Ms. Tabares’ negligence claim survived summary judgment.  See Tabares v. City of Huntington Beach (9th Cir., Feb. 17, 2021, No. 19-56035) 2021 WL 609854 (“Tabares”).

The court in Tabares explained that California negligence law is broader than federal Fourth Amendment law in excessive force cases.  It explained that under California law, an officer’s pre-shooting decisions can render his behavior unreasonable under the totality of the circumstances, even if his use of deadly force at the moment of shooting might be reasonable in isolation.  Under federal law, courts generally focus on the tactical conduct at the time of the shooting.  The difference was particularly relevant in Tabares, where the court stated a juror could find Officer Esparza unreasonably failed to follow police protocol dealing with potentially mentally ill persons before using force.  It noted there was ample evidence that Officer Esparza potentially failed to de-escalate the situation as taught by California’s Peace Officer Standards and Training (“P.O.S.T.”) when dealing with a potentially mentally ill individual.

In addition to civil liability, the holding in Tabares provides additional support for imposing discipline where inappropriate tactical actions lead to the use of deadly force.  The Ninth Circuit Court of Appeals noted the district court did not consider that a jury could have found Officer Esparza’s pre-shooting conduct unreasonable given Mr. Tabares’ potential mental illness.  In California, police departments must look at the totality of the circumstances (including all actions leading up to the use of force) when deciding whether to impose discipline and, if so, the level.

All California peace officers must meet initial standards set by the Commission on Police Officer Standards and Training (POST).  Those standards have recently been expanded, and more change may be coming.

AB 846, effective January 1, 2021, modified Government Code section 1031 to require that a peace officer be free of bias against race or ethnicity, gender, nationality, religion, disability, or sexual orientation, in addition to the preexisting requirement that he or she be free of any physical, emotional, or mental condition that might adversely affect the exercise of the powers of a peace officer.

Government Code section 1029 currently disqualifies any person who has been convicted of a felony, or any offense in another state that would have been a felony if committed in California, from becoming a peace officer.  Two pieces of proposed legislation, introduced by Assemblymember Jim Cooper and AB 60, introduced by Assemblymember Rudy Salas on December 7, 2020, would also disqualify individuals discharged by military tribunals for offenses that would constitute felonies in California.

AB 89, introduced on December 7, 2020, would increase the minimum qualifying age for a peace officer from 18 to 25 for individuals without a college degree.  Individuals between 18 and 24 years of age would only be eligible to serve as peace officers with a bachelor’s degree or advanced degree from an accredited college or university.

Federal legislation introduced on January 4, 2021 by Rep. Bobby Rush (D-Ill.), titled the Providing Officer Licensing to Increase Confidence for Everyone (POLICE) Act, would require the U.S. Attorney General to develop and issue standards for federal law enforcement officers, including licensing and continuing education.  This legislation would also provide incentives for states to implement a comparable system.

Meanwhile, California is currently one of only four states without a process for decertifying officers who do not meet standards during their careers, along with Hawaii, New Jersey, and Rhode Island.  That may soon change.

Last year, SB 731 died on the floor of the Assembly on November 30, 2020, the last day of the legislative session, without a vote.  That legislation would have established a statewide process to decertify officers who were terminated for specified acts of misconduct, including excessive force and dishonesty.  Further, in addition to other changes in law, SB 731 would have given authority to other government agencies to investigate allegations of misconduct where the accused officer resigned during his or her agency’s investigations.

However, this was not the end of the line for the movement toward a statewide decertification process.  On December 7, 2020, Senators Toni Atkins and Steven Bradford introduced Senate Bill 2, which would confirm the Legislature’s intent to “provide a decertification for peace officers.”  In addition, two separate bills, were introduced in the Assembly the same day that would create peace officer decertification procedures.  AB 17 and AB 60 both propose to disqualify any person who has had his or her POST certification revoked from future employment as a peace officer.

AB 17 and 60 would require that a peace officer have his or her certification suspended or revoked upon a determination that he or she has become ineligible pursuant to Government Code section 1029 or has been subject to a sustained termination for serious misconduct on or after January 1, 2022.

Both of these bills would require POST to create a Peace Officer Standards and Training Accountability Advisory Board to review reports of serious misconduct by peace officers and to make a recommendation to the Commission regarding what action, if any, should be taken against the subject peace officer’s certification.  Both statues would require the Commission to create a regulation defining “serious misconduct,” to include at least dishonesty, abuse of power, physical abuse or excessive force, sexual assault, and bias in the performance of an officer’s duties.  AB 60 would also require that participation in organized criminal operations be included in the definition of serious misconduct.

Under both statutes, if the recommendation of the Board was supported by clear and convincing evidence, action would be taken against the officer’s certification in formal proceedings consistent with the Administrative Procedures Act.

Individual agencies would be responsible for investigating the allegations of serious misconduct, but the Commission would have access to review the investigative file and administrative appeal record of the agency, for the purposes of disqualification.   The Commission would also conduct an investigation into any officer who was the subject of three allegations of serious misconduct in five years.

High-profile cases have thrust peace officer standards into the national spotlight.  It is unknown at this time whether these bills, either in their current form or containing modifications, will become law.  What appears certain is that the public, and therefore the Legislature, will remain interested in regulating peace officer standards.  Agencies should consult with legal counsel to stay on top of the changing landscape.

As the COVID pandemic rages on, employees required to work remotely since March 2020 will continue to do so for at least a foreseeable portion of 2021. While a burden for some, the pandemic has opened endless relocation possibilities for others, allowing some remote workers to visit and stay with family, work from a vacation destination, or work from less expensive areas to save on the cost of living. As we enter a new tax year under COVID, many employers are asking whether they have special obligations to out-of-state teleworkers. In addition, employees who have enjoyed the advantages of their new location may be asking to make the arrangement permanent.

Before acquiescing to the permanent relocation of your employees, employers should be aware of complications related to the employment of out-of-state workers.

How Do Payroll Taxes Change When My Employee Works Remotely Outside of California?

California employers must understand and comply with their payroll tax obligations for out-of-state workers, including the following:

State Personal Income Tax

Each state has its own laws regarding taxation of remote work when an employee works in a state other than where their worksite is located, or a state other than their primary residence. Employees of California employers who work outside of California may have new state and local tax obligations, and California employers may be required to withhold state income taxes for the state from which remote workers live and perform their job duties.

An employer is required to withhold state income tax from wages for an employee’s state of residence if the employer has a business nexus in the state. An employee working remotely from their state of residence on a temporary basis may be sufficient to create a business nexus.

California employers are required to withhold income tax when a California resident performs services that are subject to state income tax withholding laws of both California and another state. However, states are prohibited from double taxation of the same income. To comply with multistate tax obligations in such cases, the employer must make the withholding required by the other jurisdiction, and for California, in the amount by which the California withholding amount exceeds the withholding amount for the other jurisdiction. If the withholding amount for the other jurisdiction is equal to, or greater than, the withholding amount for California, no additional withholding for California is required.

For non-residents, a California employer must withhold California personal income tax and report wages paid to nonresident employees for services performed within California. However, only the wages earned in California are subject to California state income tax.

During the COVID-19 pandemic, some state tax agencies, including the California State Franchise Tax Board, have waived the business nexus during the emergency if established only by the presence of resident employees working temporarily from home due to the pandemic. Employers should verify whether any similar waiver is in place for the “home” state of its employees when determining state income tax withholding.

Unless two states have a reciprocity agreement (which allow residents to pay tax only based on where they live, and not where they work), an employee may be required to file multiple returns to ensure proper taxation. California does not have reciprocal tax agreements with other states.

Proposed legislation, such as the Remote and Mobile Worker Relief Act and the Multi-State Worker Tax Fairness Act of 2020, have been previously introduced to Congress in order to create a uniform approach to taxation for multi-state workers. However, these bills have failed to gain any momentum. Until clarifying legislation is adopted, remote workers who work out-of-state from their employer may continue to face multiple reporting and filing obligations in different states, and create additional administrative obligations for the employer.

Other Payroll Taxes

In regard to other employment taxes, when an employee works in California as well as one or more other states, the state that has jurisdiction for coverage of that employee’s services is determined by the application of four tests. The tests are used by all states to determine where a multistate employee’s wages should be reported and subject to state employment taxes. Jurisdiction is determined (1) by the location of the employee’s service, (2) the employee’s “base of operations” from which the employee starts work and receives employer instructions, (3) the place from which the employer exercises basic and general direction and control, and/or (4) the residence of the employee. An employee must perform some service in California before the tests can be applied to determine whether all the employee’s services can be allocated to California. If California is determined to have jurisdiction over the employee’s services, California must be paid Unemployment Insurance (UI), Employment Training Tax (ETT), and State Disability Insurance (SDI).

The stakes of accurate determination of state jurisdiction can be high. Nine states throughout the country now have paid family and medical leave (PFML) insurance programs similar to California’s SDI/Paid Family Leave (PFL), funded by mandatory payroll taxes. Failure to accurately apply jurisdictional tests can result in added payroll taxes for employees, or ineligibility of employees for PFML. Failure to comply can also result in penalties for employers.

Workers Compensation Insurance

Every employer in California is required to either obtain workers’ compensation insurance, or to secure a certificate of consent to self-insure from the Director of Industrial Relations. For out-of-state workers, the state laws of their state of residence may also apply. If an employee files a workers compensation claim in another state for a California employer, the insurance coverage of the California employer may or may not cover the claim. In addition, other factors such as the length of temporary and permanent disability benefits will likely differ state to state. Employers will need to obtain workers compensation insurance coverage, or a comparable certificate of self-insurance, in the state where the remote worker is located and is performing service. Failure to provide adequate workers’ compensation coverage may result in penalties for the employer.

What Other State Laws Apply To My Employee Who Works Remotely Outside of California?

Wage and Hour and Leave Laws

Most employers are required to comply with the federal Fair Labor Standards Act (FLSA), as well as applicable state wage and hour laws. California public agencies are exempt from a number of Labor Code provisions and significant portions of Industrial Welfare Commission Wage Orders. California wage and hour laws apply to workers who perform all or most of their work in the state, or if a worker does not perform the majority of their work in any one state, California wage and hour laws apply if California serves as the base for work operations.

While California employers are already subject to a vast array of leave laws such as mandatory paid sick leave, other states may be more generous with certain leave laws. California employers with remote out-of-state workers must learn and comply with the overtime, meal and rest breaks, leaves of absence, and other labor laws of the state where the employee performs most of their work.

Posting Obligations

An employer is required to post mandated state and federal employment law notices in an area frequented by all employees. Failure to display the correct state and federal employment law notices can result in penalties. An employer with out-of-state remote workers must ensure that such workers are on notice of the applicable state laws for the state in which they are working. For such employees, employers can mail or email postings or post them on an employer intranet page.

Are Independent Contractors the Solution?

Recent California legislation has significantly limited the ability to classify employees as contractors, albeit with numerous occupations exempted. To be considered a contractor under California law for the purpose of the California Labor Code (including Workers Compensation), Unemployment Insurance, and California Wage Order compliance, the individual must satisfy the “ABC” test, or belong to one of the state’s exempted professions and meet different requirements.  Under the ABC test, in order to qualify as an independent contractor, an individual must (A) be free from the control and direction of the hiring entity in connection with the performance of the work; (B) perform work that is outside the usual course of the hiring entity’s business; and (C) be customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity. The law applies to workers in California, but does not necessarily change how out-of-state workers are classified.

While out-of-state contractors who can qualify as independent contractors under applicable law may provide some solutions, general law cities and counties with civil service systems are subject to other restrictions on contracting out services. California employers should seek legal advice before converting employees to out-of-state contractors.

Other Considerations for Out-of-State Remote Workers

Performance Management

Performance management of remote workers can sometimes be challenging, especially when it is unclear how much time the employee is actually working. When remote workers reside locally (and pandemic rules do not apply), an employer can rescind the telework arrangement and require the employee to work in the office to ensure productivity standards. However, if the employee has relocated out-of-state, the arrangement cannot be so easily undone. Employers should ensure that they have the means to manage the performance of out-of-state employees before agreeing to such an arrangement.

Disaster Service Response

For local government agencies, public employees take an oath and are required to act as Disaster Service Workers (DSWs) in the event of a disaster or emergency. An out-of-state worker will either be required to return to the state to perform DSW duties or be able to perform such duties remotely. Local government employers should consider this when deciding to allow permanent out-of-state telecommuting.

Information Technology Requirements

Employers should explicitly detail the information technology obligations of the remote employee, such as providing a sufficient Wi-Fi connection and virus protection for employee-owned devices.

Employers are encouraged to adopt a formal telecommuting policy that outlines the employer’s expectations for employees who work from home. Rather than a “don’t ask don’t tell” approach, employer policies should clearly outline the employer’s stance on out-of-state telecommuting. A telecommuting agreement with each individual employee can also help to clearly lay out expectations, such as whether the employee is required to periodically appear to work in person and how frequently. Employers should remember to negotiate with its labor unions the impacts of such a policy on terms and conditions of employment. For more information about post-pandemic teleworking, see “Working from Home in a Post-Pandemic World” by Danny Yoo.

 

On April 30, 2018, the California Supreme Court issued a landmark decision in the matter of Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018) 4 Cal.5th 903. The California Supreme Court reinterpreted and significantly altered the test for determining whether workers in California were properly classified as independent contractors for the purposes of the wage orders adopted by California’s Industrial Welfare Commission (IWC). The Court established a new test, often referred to as the “ABC” test, which was codified in AB 5 (effective January 1, 2020).

The Court in Dynamex rejected the longstanding and more flexible multifactor standard established in S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341. Under the Borello test, the primary consideration for determining whether an individual is an independent contractor or employee is whether the hiring entity had the right to control the manner and means of the work. Under the “ABC” test in Dynamex, however, the presumption is that the individual is an employee unless the hiring entity demonstrates that all three of the following conditions have been satisfied in order for the individual to qualify as an independent contractor:

A)  The individual is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract terms and in fact;

B)   The individual performs work that is outside the usual course of the hiring entity’s business; and

C)   The individual is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.

On September 18, 2019, Governor Gavin Newsom signed AB 5 into law. AB 5 created Labor Code section 2750.3, which codified the ABC test adopted in Dynamex as listed above, and expanded its application beyond Industrial Welfare Commission (IWC) wage orders to the Labor Code and Unemployment Insurance Code. Additionally, AB 5 applied this new Labor Code section 2750.3 to Labor Code section 3351, which relates to employment status for workers’ compensation coverage. Labor Code section 2750.3 also carved out a number of exemptions for occupations that remain subject to the old, multifactor Borello test[1].

Finally, AB 5 amended Unemployment Insurance Code section 621 to incorporate Dynamex’s ABC test. This amendment does not reference the exemptions for occupations in Labor Code section 2750.3 that remain subject to the old, multifactor Borello test. Thus, those independent contractors who fall into one of the exemptions in Labor Code section 2750.3 may not be exempt from the provisions of the Unemployment Insurance Code unless the conditions of the ABC test are satisfied.

LCW published detailed Special Bulletins on the California Supreme Court’s adoption of the “ABC” test, the expansion of Dynamex, and the potential impacts on employers. (The link to one of these articles can be found here.)

An important question left unanswered by the Court and not addressed in AB 5 was whether Dynamex would apply retroactively. The California Supreme Court recently answered this question with a resounding yes delivering another blow to employers and increasing the number of employers who may be liable for the misclassification of workers.

On January 14, 2021, in Vasquez v. Jan-Pro Franchising International, Inc., the California Supreme Court determined that Dynamex applies retroactively. In concluding that the standard set forth in Dynamex applies retroactively — that is, the “ABC” test applies (unless otherwise exempted under Labor Code 2750.3) to all pending independent contractor misclassification cases, which were filed prior to the date the decision in Dynamex became final — the Court relied primarily on the fact that Dynamex addressed an issue of first impression. The Court further noted that it did not change a settled rule on which the parties had relied. Indeed, no decision of the Court prior to Dynamex had determined how the “suffer or permit to work” definition in California’s wage orders should be applied in distinguishing employees from independent contractors. Accordingly, because the Court had not previously issued a definitive ruling on the issue addressed in Dynamex, they saw no reason to depart from the general rule that judicial decisions are given retroactive effect.

The Vasquez decision signifies that Dynamex will be applied in all non-final independent contractor misclassification cases that predate the April 2018 Dynamex decision. In addition, Courts will apply Dynamex to pre-Dynamex conduct in new lawsuits that still may be filed under the applicable statute of limitations.

While the Dynamex ruling is limited to an analysis of the California Wage Orders (Cal. Code Regs. § 11010 et seq.), AB 5 and Labor Code section 2750.3 extend the ABC test in Dynamex to the general Labor Code and Unemployment Insurance Code. Accordingly, employers should carefully consider the clear guidance provided in Dynamex in classifying independent contractors to avoid litigation or defend against it. Public agencies and nonprofits are well advised to review all current independent contractor arrangements under the “ABC” test and reclassify such arrangements if necessary. LCW is available to assist in conducting such a review.

 


[1] These exemptions include, insurance agents; medical professionals such as physicians, dentists, podiatrists, psychologists, and veterinarians; licensed professionals such as attorneys, architects, engineers, private investigators, and accountants; financial advisers; direct sales salespersons; commercial fisherman; some contracts for professional services for marketing, human resources administrators, travel agents, graphic designers, grant writers, fine artists, freelance writers, photographers and photojournalists, and cosmetologists; licensed real estate agents; “business service providers”; construction contractors; construction trucking services; referral service providers; and motor club third party agents. Eight months after AB5 went into effect, Governor Newsom signed AB2257, which immediately exempted the following industries and occupations, among others, from the ambit of AB5: fine artists; freelance writers; still photographers; photojournalists; freelance editors; newspaper cartoonists; translators; copy editors; producers; insurance inspectors; real estate appraisers; manufactured housing salespersons; youth sports coaches; landscape architects; and professional foresters.

On November 3, 2020, 58% of Californians determined the future of ride-share drivers and delivery apps, by voting that drivers should be classified as independent contractors, rather than employees.  The state ballot measure, Proposition 22, made drivers independent contractors according to California law. Prop. 22 supersedes AB5, intended to grant drivers full employment, including minimum wage protections, health care and such benefits as unemployment and sick leave.