The Ninth Circuit Court of Appeals recently ruled in Garnier v. O’Connor-Ratcliffe that public officials violated their constituents’ First Amendment rights by blocking them from the public officials’ social media accounts that were used for official duties.

School District Trustees Block Two Parents on Social Media

In Garnier, Michelle O’Connor-Ratcliff and T.J. Zane, two members of the Poway Unified School District (PUSD) Board of Trustees (Board) used their social media pages to post content related to PUSD and Board activities.  O’Connor-Ratcliffe described herself on Facebook as a “Government Official” and “President of the PUSD Board of Education” and included her official PUSD email address.  Zane described himself as a “Government Official” and represented his Facebook account as “the official page for T.J. Zane, Poway Unified School District Board Member, to promote public and political information.”  Both used their social media pages to promote PUSD-related information and to solicit public feedback through their posts.  Among the users who commented on the Trustees’ social media pages, were PUSD parents Christopher and Kimberly Garnier.

The Garniers frequently expressed their PUSD concerns in comments they posted to the Trustees’ social media accounts.  At one point, Christopher Garnier posted 226 identical replies, one to each Tweet O’Connor-Ratcliff had posted.  Frustrated by the Garniers’ repetitive commenting, both Trustees decided to block the Garniers from their respective Twitter and Facebook pages.  In effect, the blocking prevented the Garniers from commenting on and reacting to the Trustees’ posts.  In response, the Garniers filed suit under 42 U.S.C. § 1983 (the Civil Rights Act of 1871).  The purpose of § 1983 is to deter government actors from using their badge of authority to deprive individuals their federally-guaranteed rights. [1]  The Garniers alleged that the Trustees’ social media pages constituted a public forum and that by blocking their speech, the Trustees violated the First Amendment.  The Trustees countered that blocking the Garniers’ speech from that forum was permissible as it was done pursuant to a sufficiently narrowly tailored restriction.  The District court disagreed and found it was not narrowly tailored.  The Trustees appealed and the case went to the Ninth Circuit Court of Appeals.

Acting Under the Color of State Law

To state a claim under §1983, a plaintiff must allege the violation of a federal right committed by someone acting under the color of state law.[2]  One test to determine whether someone acted under the color of state law, is the “nexus test.”  The Ninth Circuit followed the nexus test analysis used by the Second, Fourth, and Eighth Circuit appellate courts.  This analysis is fact-sensitive and applies when there is “such a close nexus between the State and the challenged action, that the seemingly private behavior may be fairly treated as that of the State itself.”[3]  As applied here, an off-duty public official uses their social media as an “organ of official business” when:

  1. The employee purports to or pretends to act under the color of law;
  2. The employee’s pretense of acting in the performance of their duties had the purpose and effect of influencing the behavior of others; and
  3. The harm inflicted on plaintiff related in some meaningful way either to the official’s governmental status or to the performance of their duties.[4]

Using this test, the Ninth Circuit found that the Trustees acted under the color of law when they identified themselves on their social media accounts as “government officials,” and displayed their official titles, presented their PUSD email addresses, and described their accounts as official PUSD board member pages.  In addition, the content on the Trustees’ pages were focused on providing official PUSD information and soliciting public input.  The Trustees’ claimed they did not act under the color of law because their pages were not authorized by PUSD.  The Court disagreed, finding that the Trustees’ pages lacked a disclaimer that their expressed opinions were personal, and not official, and that the pages displayed a “badge” to the public, signifying the page as an official PUSD Trustee account.  In appearance and content, the Court found the Trustees held their pages out as official channels of PUSD communication.

As for the second prong, the Court found that by the Trustees presenting their social media pages as official outlets to facilitate their PUSD duties, this had the purpose and effect of influencing the behavior of others.  Supporting this conclusion was the fact that both Trustees actively solicited constituent input and feedback about PUSD matters, and encouraged constituents to fill out Board surveys and apply for volunteer Board committees.  According to the Court, the Trustees were able to receive this public engagement on their pages because they invoked their governmental status.

Lastly, the Court found that the harm inflicted upon the Garniers – being blocked – was linked to the Trustees’ performance of their duties.  This is because the Trustees used their social media pages to communicate about PUSD and they did not want the Garniers’ comments to detract from their messages.  Therefore, the Ninth Circuit concluded that the Trustees acted under the color of state law, which in turn meant their decision to block the Garniers constituted state action under § 1983.

The Blocking Feature’s Impact on Free Speech

The Ninth Circuit then turned to the First Amendment issues and analyzed whether the Trustees’ social media pages constituted a designated public forum.  A designated public forum exists where the government intentionally opens up a nontraditional forum for public discourse.[5]  In a designated forum, the government may impose reasonable restrictions on the time, place, and manner of protected speech so long as the restrictions are narrowly tailored to serve a significant government interest and leave open ample room for alternative channels of communication.[6]

First, the Court found the Trustees’ social media pages at the time of the blocking did constitute designated public forums.  This is because their pages were open to the public without any restriction on the form or content of comments, and the Trustees both solicited and replied to comments on their pages.  This is in contrast to being designated a limited public forum (a type of nonpublic forum that the government has intentionally opened to certain groups or topics), which the Trustees’ pages later transformed into when they utilized word filters to screen out certain comments.

Next, the Court analyzed whether the blocking restriction was narrowly tailored, such that it did not burden substantially more speech than necessary to further their interest.[7]  The Court found the decision to block the Garniers was not narrowly tailored for two reasons: (1) it did not advance a significant government interest because, due to social media technology features, the Garniers’ repetitive comments did not actually disturb or impede the Trustees’ posts or prevent public engagement; and (2) blocking burdened substantially more speech than necessary because instead of restricting the length or repetitiveness of the Garniers’ comments, it entirely prevented the Garniers’ ability to comment on Facebook and view content on Twitter.  According to the Court, alternative restrictions such as deleting or hiding unduly repetitive comments, or establishing rules of etiquette, would have had less of an impact on speech than blocking.  Therefore, the Court ruled that the Trustees violated the Garniers’ First Amendment rights by blocking them from the Trustees’ social media accounts.

What This Means for Public Agencies

While the First Amendment does not apply to private organizations, it does apply to public agencies.  Public agencies should examine their social media accounts, including the accounts of their public officials, because in addition to blocking, other social media practices and restrictions may also result in First Amendment free speech violations.  If you have any questions regarding the First Amendment and best practices for social media, please reach out to trusted legal counsel.

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[1] McDade v. West (9th Cir. 2001) 223 F.3d 1135, 1139.

[2] West v. Atkins (1988) 487 U.S. 42, 48.

[3] Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n (2001) 531 U.S. 288, 295.

[4] Naffe v. Frey (9th Cir. 2015) 789 F.3d 1030, 1037.

[5] DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ. (9th Cir. 1999) 196 F.3d 958, 964.)

[6] Ward v. Rock Against Racism (1989) 491 U.S. 781, 791.)

[7] Id. at 799.

This post appeared in November 2017.  It was reviewed in August 2022 to provide the most up-to-date legal information.

This principle used to be clear – paid administrative leave was outside the scope of adverse employment action.  This was based on court holdings that an employee suffers no substantial or material change in terms and conditions of employment while on paid administrative leave.  For years, courts held that an employee who is put on paid administrative leave cannot prove he or she suffered an adverse employment action to give rise to a viable discrimination or retaliation claim.  However, what once was clear, is no more.

First, in 2013, the Ninth Circuit put into question the principle that paid administrative leave does not constitute a type of adverse employment action.  In Dahlia v. Rodriguez (9th Cir. 2013) 735 F.3d 1060, the Ninth Circuit held paid administrative leave could constitute an adverse employment action when considering the totality of the circumstances.  Second, on November 15, 2017, the Fourth District Court of Appeal issued a decision in Whitehall v. County of San Bernardino (2017) 17 Cal.App.5th 352 holding that the imposition of an administrative leave may constitute an adverse employment action.   Since 2017, there has been at least one California case that has found that placement on paid administrative leave may constitute an adverse employment action depending on the specific facts presented.  [1]

The decisions in Whitehall and Dahlia have forced California employers to rethink when paid administrative leave may qualify as an adverse employment action and to consider the risk involved with placing an employee on paid administrative leave.

The Purpose of Paid Administrative Leave

The purpose of paid administrative leave is to temporarily remove an employee from the workplace to address a particular situation.  For example, if an employee engages in or threatens violence in the workplace, an employer can and should remove the employee from the workplace pending an investigation into the alleged misconduct.  Paid administrative leave has also been used by employers when, on balance, they feel it is better that the subject of an investigation is not in the workplace while the investigation is pending.  Use of paid administrative leave has not been limited to investigations of discrimination, harassment or retaliation.  It has had widespread use for many different types of alleged misconduct.

During paid administrative leave, the employee is typically relieved of all duties and responsibilities of his/her position.  The employee remains employed by the agency and continues to receive full pay and benefits.  During the leave, an agency may prohibit the employee from entering agency-owned property or facilities and can order the employee to surrender all agency-provided property (office keys, IDs, credit cards, computers, etc.).  The agency can also require the employee to remain available during regular business hours to answer any and all work-related inquiries.

The Definition of an Adverse Employment Action

The California Supreme Court has coined “adverse employment action” as a “term of art.”  It is generally used as a shorthand description of the kind of adverse treatment imposed upon an employee to support a cause of action under a discrimination or retaliation statute.

Employees in California may bring claims of discrimination and retaliation pursuant to the Fair Employment and Housing Act (“FEHA”).  Under the FEHA, an adverse employment action must be reasonably likely to impair an employee’s job performance or prospects for advances.[2]  It does not include minor or trivial actions that do no more than anger or upset an employee.  While an adverse employment action may include more than just “ultimate” employment acts, such as failure to hire, termination, demotion, or failure to promote, it nevertheless requires “a substantial adverse change in the terms and conditions” of employment.[3]  The reason why an employee must provide a substantial adverse job effect is to guard the employer from judicial micromanagement of business practices and frivolous lawsuits over insignificant slights.  This brings up the question, is paid administrative leave a substantial and adverse change in employment?

The Split in Federal Circuit Court Authority

There is a split in federal circuit authority about whether paid administrative leave constitutes adverse or punitive action.  Some circuits have a split in authority even amongst district courts within the circuit.  This is because the determination of whether paid administrative constitutes an adverse employment action involves the courts to closely scrutinize the exact facts in the case.  There is no one-size-fits all answer and courts sometimes have to draw lines that are not always clear in deciding whether there has been a substantial or material change in the terms and conditions of employment.  The Ninth Circuit, which is the circuit whose decisions govern employers in California, has found paid administrative leave can be an adverse employment action in the Dahlia case.  There are cases from the Second, Third, Fifth, Sixth, Seventh, Eighth, and Tenth Circuits that have held that placing an employee on paid administrative leave, without more, is not an adverse employment action.[4]  There have also been other cases from the Fifth and Sixth Circuits that have found that paid administrative leave cannot be flatly ruled out as an adverse employment action.  [5]

Deviation in the Ninth Circuit

Dahlia v. Rodriguez was the first Ninth Circuit case to decide whether placement on administrative leave constitutes an adverse employment action.  In Dahlia, Burbank Police Detective John Dahlia was assigned to assist a robbery investigation.  A day after the robbery, Dahlia allegedly observed Lieutenant Omar Rodriguez grab a suspect and threaten him with a gun.  Later that evening, Dahlia claimed he heard yelling and the sound of someone being slapped in a room where a Sergeant was interviewing another suspect. Dahlia met with a Lieutenant to disclose the abuse he witnessed and was allegedly told to “stop his sniveling.”  The Burbank Police Department’s Internal Affairs Unit initiated an investigation into the physical abuse related to the robbery.  Following Dahlia’s interview with internal affairs, the City placed Dahlia on paid administrative leave pending the determination of discipline.  Dahlia filed a lawsuit against the City alleging that he was placed on paid administrative leave in retaliation for exercising his free speech rights in disclosing alleged abusive interrogation tactics by other officers.

To succeed on a claim of retaliation, one element the plaintiff must prove is he or she suffered an adverse employment action.  The lower court found that placement on paid administrative leave did not constitute an adverse employment action for purposes of First Amendment retaliation.  The Ninth Circuit disagreed.  The Ninth Circuit concluded that, under some circumstances, placement on administrative leave can constitute an adverse employment action.  The Ninth Circuit reasoned that to constitute an adverse employment action, the retaliation need not be severe or of a certain kind.  For First Amendment retaliation cases, the key inquiry was whether the action was “reasonably likely to deter employees from engaging in the protected activity.”

The Ninth Circuit was persuaded by Dahlia’s assertion that paid administrative leave, when considered in the context of his employment, prevented him from taking the sergeant’s exam, required him to forfeit on-call and holiday pay, and prevented him from furthering his investigative experience.  The Ninth Circuit held that if Dahlia could prove these effects, he could prove he suffered an adverse employment action because these effects and the general stigma from being put on administrative leave likely deter employees from engaging in protected activity.  Ultimately, Dahlia does not hold that paid administrative leave must always constitute an adverse employment action, rather it provides a short and under-developed conclusion that paid administrative leave, by itself, may constitute an adverse employment action in some situations.

Dahlia’s analysis focused on paid administrative leave in retaliation cases.  The California Court of Appeal, in Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, has also determined that a paid administrative leave may constitute an adverse employment action in a discrimination case.  In Horsford, a police officer was placed on paid administrative leave because of a claim that he was mentally unstable.  After he was cleared to return to work by two psychologists, he was still not allowed to return to his position as an officer.  In assessing whether the officer suffered an adverse employment action to prove a discrimination charge, the Court of Appeal noted the jury was entitled to collectively consider the alleged discriminatory acts.  In other words, the employer’s acts could be viewed under the totality of the circumstances.  The Court of Appeal found that an officer who is removed from a highly desirable position and placed on paid administrative leave for months suffered an adverse employment action because a jury could find that the leave was unjustified and may have resulted from racial animus.

California’s Fourth District Court’s Interpretation in Whitehall

In Whitehall v. County of San Bernardino, the Fourth District Court of Appeal addressed whether paid administrative leave could constitute an adverse employment action.  The Court described the facts as follows:  Mary Anna Whitehall was a social worker for San Bernardino County Children and Family Services (“CFS”).  After CFS assigned another social worker, Eric B., to investigate the death of a nine-month-old baby who died under suspicious circumstances, the baby’s four older siblings were placed in protective custody.  CFS assigned Whitehall to investigate for the jurisdiction/disposition hearing, an assignment referred to as a “J/D writer.”  In her investigation, Whitehall collected evidence that validated Eric’s concerns for the safety of the four older children.  Whitehall collected the police report, photographs of the family home from the time of the baby’s death showing filthy, unsanitary conditions, and reports from the medical examinations of the four older siblings showing ligature marks on their wrists and ankles and burn marks.

The deputy director of CFS allegedly instructed Whitehall to withhold certain photographs and to provide altered ones.  Whitehall learned CFS never provided a complete police report to the court, so she gave the assigned deputy county counsel a computer disk containing all photographs obtained from police.  Subsequently, CFS removed Whitehall from the case and instructed her not to discuss the case with the new J/D writer, contrary to normal practice.  In addition, CFS fired Eric for allegedly exaggerating the condition of the house and reporting the smell of methamphetamine despite the fact that the social worker who assisted him during the initial response corroborated his version of events.

Concerned about her potential liability for withholding evidence and providing altered photographs to the court and counsel, Whitehall met with an attorney to discuss her situation.  The attorney drafted a declaration for Whitehall and Whitehall, Eric, and the social worker who had assisted Eric during the initial response filed a motion informing the juvenile court that CFS had perpetrated a fraud upon the court.

Six days after filing the motion, CFS placed Whitehall on administrative leave while it conducted an internal investigation into Whitehall’s potential violation of County rules and policies barring disclosure of confidential information to unauthorized persons.  After Whitehall was on administrative leave for approximately two months, which included two hearings, the County decided to terminate Whitehall for violating the confidentiality policy.  However, after learning of the County’s intentions to terminate her, Whitehall resigned.  Whitehall filed a complaint against the County and CFS based on whistleblower liability and retaliation.

Essentially, Whitehall turns on the whistleblower statute, Labor Code section 1102.5, which prohibits an employer from retaliating against an employee for disclosing information that may evidence improper government activity, if the purpose of the disclosure was to remedy the improper situation.  The Court found that the County’s placement of Whitehall on administrative leave with the intention of firing her was in retaliation for Whitehall’s disclosure to the juvenile court the County’s attempt to manipulate evidence.  Thus, the Court found that Whitehall’s paid administrative leave constituted an adverse employment action.

As in Dahlia, the court’s decision in Whitehall does not assert that paid administrative leave always constitutes an adverse employment action.  Rather, the Whitehall decision merely establishes that paid administrative leave may constitute an adverse employment action in certain circumstances.  Furthermore, the court in Whitehall reiterated that adverse employment claims remain inherently fact-specific.  Quoting Yanowitz v. L’Oreal USA (2005), the court reaffirmed that:

“The impact of an employer’s action in a particular case must be evaluated in context. Accordingly, although an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into the account the unique circumstances of the affected employee as well as the workplace context of the claims.” (26 Cal.4th 1028, 1051)

The Effect of Dahlia & Whitehall

In the past, if an employee was placed on paid administrative leave but suffered no additional punitive action, he or she could not bring a successful claim of discrimination or retaliation because none of the employer’s actions materially or substantially affected the terms or conditions of employment.

This assumption changed post-Dahlia.  Even though an employee receives full pay and benefits during paid administrative leave, when looking at the totality of the circumstances, a court may find the secondary effects that come as a natural result of being away from the workplace deter an employee from engaging in protected activity and constitute adverse employment action.  Furthermore, after Whitehall, a court may find that an employee placed on paid administrative leave shortly after “whistle-blowing” or engaging in other protected activity experienced an adverse employment action.

Based on WhitehallDahlia and Horsford, the court may consider the loss of promotional opportunities, the loss of specialty pay, the loss of opportunities to gain work experience, whether the employer had a legitimate managerial reason to place the employee on paid administrative leave, the stigma of being placed on administrative leave, and the employee’s participation in protected activity.

However, these cases continue to leave open questions.  When does paid administrative leave cross over to an adverse employment action?  What if the employer places the employee on paid administrative leave but allows the employee to take a promotional examination when the opportunity arises?  What if the employer agrees to set a practice where employees on paid administrative leave will receive holiday pay while on leave?

If paid administrative leave can be an adverse employment action, then employees placed on paid administrative leave who file a discrimination or retaliation lawsuit against an employer have added leverage in proving their case or negotiating a settlement.  This creates tricky situations for employers who must now assess the risk in placing an employee on paid administrative leave.

Example 1: A Police Department suspects that a police officer violated a direct order from a sergeant to stay out of the downtown area during his shift and not get involved with a particular group of suspected gang members.  The Department wants to conduct an internal affairs investigation and place him on paid administrative leave during the investigation.  Should the Department place the police officer on paid administrative leave?

Most likely yes.  It is fairly standard for an employee to be placed on paid administrative leave during an investigation.  If the Department regularly places officers on paid administrative leave during pending investigations, particularly investigations into insubordination, then the Department can do so in this case.  In this example, there appears to be no evidence that the officer engaged in protected activity.  However, if the officer has engaged in protected activity, then the Department must consider whether placing the officer on paid administrative leave would likely deter employees from engaging in that protected activity.

Example 2: An IT Analyst submits a letter of resignation to the County on Monday stating that he is resigning effective Friday.  On that same Monday, the IT Analyst provides a statement to an investigator regarding an investigation involving another employee.  The County suspects that the IT Analyst is sharing information with the other employee in a manner that harms the integrity of the investigation.  The County does not want the IT Analyst in the workplace for the remainder of the week as the investigation is taking place.  Should the County place the IT Analyst on paid administrative leave until the effective date of his resignation?

Probably not.  The biggest risk the County has to consider is that the employee likely engaged in protected activity by making statements to the investigator.  If the County places the IT Analyst on paid administrative leave, it might be construed as an adverse employment action in retaliation following his protected activity.  The risk increases if the County has no history of ever placing an employee who has resigned on paid administrative leave.  An alternative to paid administrative leave is for the County to offer the IT Analyst the option of taking time off with pay leading up to his last day on Friday.  If the IT Analyst chooses to voluntarily take this offer, the IT Analyst will remain away from the workplace and cannot allege that the County took adverse employment action against him.

Example 3: A water district employee has expressed genuine concerns to her supervisor about the efficacy of the district’s current lead testing protocols on a few occasions.  Each time, the supervisor told the employee that she was handling the issue.  In fact, the district was adequately and properly addressing the issue and working on updating the lead testing protocols.  Concerned that her supervisor was not adequately addressing the issue, the employee brings her concern and documentation of a recent lead test report to the Department of Drinking Water. Individuals at the district learn of the employee’s revelation of district information to the Department and conduct an investigation.  Should the district place this employee on paid administrative leave while conducting the investigation?

Most likely no.  Should the employee file a complaint under the whistleblower statute, the court may conclude that paid administrative leave constitutes retaliation, and thus an adverse employment action.  Instead, the agency should first conduct an investigation into the allegation and impose discipline based on the results of the investigation.

Due Process Disciplinary Rights

Another question that remains: if paid administrative leave can be an adverse employment action, then must employers provide pre-disciplinary and post-disciplinary due process rights to an employee prior to placing them on paid administrative leave?  In Skelly v. State Personnel Board (1975) 15 Cal.3d 194, the California Supreme Court held that a permanent public employee’s property rights (i.e., their vested right to continued employment) cannot be taken away by an employer without first being affording certain procedural safeguards. Where “significant punitive action” is imposed, an employee is entitled to notice of the proposed disciplinary action, a statement of the reasons for the proposed disciplinary action, a copy of the charges and materials on which the proposed discipline is based, and the right to respond, either orally or in writing, to the authority initially proposing the action.  Generally, discharges, suspensions, demotions, and disciplinary reductions in pay are considered “significant” punitive action.  Warnings and reprimands are not considered “significant” punitive actions.  If paid administrative leave may constitute an adverse employment action, then it is not clear whether paid administrative leave could also constitute a significant punitive action depending on the circumstances.

For police officers, the lingering question is whether paid administrative leave can be considered punitive action?  The Public Safety Officers Procedural Bill of Rights Act (“POBR”) provides police officers with the right to administratively appeal punitive actions.  The POBR defines “punitive action” as any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.  There is currently no case law holding that paid administrative leave constitutes punitive action for purposes of entitling an officer to the right to appeal a paid administrative leave decision.

Factors to Consider When Making a Paid Administrative Leave Decision

In light of Whitehall, Dahlia and Horsford, agencies in California should remain aware that the relationship between paid administrative leave and an adverse employment action is not so clear anymore.  Below is a checklist of the factors agencies should consider when making a decision to place an employee on paid administrative and conducting a risk assessment into such decision.  Courts will determine whether paid administrative leave constitutes an adverse employment action by looking at the totality of the circumstances.  These factors balance the various factors a court may consider.

  • Will the employee continue to receive full pay and benefits?

To help keep paid administrative leave out of the realm of an adverse employment action, the employee must continue to receive full pay and benefits.  This means the employee must continue to receive any and all health, dental, vision, and life insurance.  The employee must continue to accrue vacation, sick leave, and personal time off just as he/she would be entitled to accrue if he/she was not on leave.  Under Dahlia, receipt of full pay may mean that in addition to the employee’s regular wages, the employee should continue to receive some types of specialty pay.  The employer should provide employees on paid administrative leave with the same specialty pay it provides employees on other types of paid leave, such as vacation and paid sick leave.  This could include educational pay, shooting pay, longevity pay, special assignment pay, and/or acting pay.  Other types of specialty pay may require the employee to actually perform the work necessary to receive the pay, such as on-call pay and standby pay.

  • Has the employee engaged in protected activity?

If the employee has engaged in protected activity, then placing an employee on paid administrative leave immediately following such protected activity may appear retaliatory.  Protected activity includes but is not limited to free speech, whistleblowing, opposition to harassment, discrimination, and retaliation, concerted activity, participation in a discrimination proceeding, and requesting a reasonable accommodation based on religion or disability.  If the decision has no connection to the employee’s protected activity, the employer must nevertheless be prepared to defend its decision to place an employee on paid administrative leave so close in temporal proximity to the protected activity.  The employer can offer evidence that the action was taken for a legitimate, nondiscriminatory reason, but the better option may be to consider alternatives before placing the employee on paid administrative leave in the first place.

  • Is the leave likely to deter employees from engaging in protected activity?

The Ninth Circuit in Dahlia held that the proper inquiry in determining whether paid administrative leave constitutes an adverse employment action is: whether the action is reasonably likely to deter employees from engaging in protected activity?  If employee activity is reasonably likely to be chilled due to the fear of being placed on paid administrative leave, then it may constitute an adverse employment action.

  • Are any of the secondary effects of the leave likely to deter employees from engaging in protected activity?

In addition to the paid administrative leave itself, if any secondary effects that come as a natural result of the employee being away from the workplace are likely to deter employees from engaging in protected activity, then the leave may constitute an adverse employment action.  Examples of secondary effects include loss of specialty pay, loss of opportunities for promotion, and loss of opportunities to gain experience.

  • What has the employer done in similar situations in the past?

Employers should consider past practices.  If the employer regularly places suspect employees on paid administrative leave pending harassment, discrimination, and retaliation investigations, then it has a strong reason to continue that practice.  By establishing that it has placed similarly situated employees on paid administrative leave in the past, the employer can demonstrate that it has not singled out a particular employee.  Such past practice will also help the employer prove it had a legitimate, nondiscriminatory reason to place the employee on paid administrative leave.

  • Will the paid administrative leave hinder an employee’s opportunity for promotion or advancement?

If paid administrative leave will prevent an employee from applying for a promotion or taking a test for advancement, then he/she may claim that the leave constitutes an adverse employment action.  Since employees are frequently told to remain available during working hours during paid administrative leave, employers may want to consider allowing an employee on leave the chance to apply for promotional opportunities to the same extent the employee could have applied if his/she was not on leave.

  • Will the employee encounter stigma in the workplace for being placed on paid administrative leave?

The Ninth Circuit held that if Dahlia could prove the general stigma from being put on administrative leave deterred employees from engaging in protected activity, he could prove the leave constituted an adverse employment action.  Whenever an employee is placed on paid administrative leave, his/her coworkers are bound to notice his/her absence but that alone likely does not create stigma.  However, if an employee can prove that employees refrain from engaging in protected activity because they fear being placed on paid administrative leave will alienate them, cause harm to their relationships with coworkers, or create some other stigmatizing effect, then a court may find the leave to be an adverse employment action.

  • Are there any alternatives to placing this employee on paid administrative leave?

On a case by case basis, the employer should consider whether there are any alternatives to placing an employee on paid administrative leave.  Thinking back to the purpose of paid administrative leave, can the employer address the situation without removing the employee from the workplace?  Can the employer request that the employee take voluntary paid leave?  Can the employer place the employee in a different work location on a temporary basis pending the conclusion of an investigation?  Can the employer require the employee to telework?  These alternatives may achieve the employer’s goal without raising adverse employment action questions.

If you have any questions about this issue, please contact our Los Angeles, San Francisco, Fresno, Sacramento, or San Diego office.

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[1] Taswell v. Regents of University of California (2018) 23 Cal.App.5th 343, 365 (placement on paid leave pending investigation and, that same day, informed contract would not be renewed constitute adverse employment actions).

[2] Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054-1055.

[3] Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1455.

[4] See Joseph v. Leavitt (2d Cir. 2006) 465 F.3d 87; Jones v. Southeastern Pennsylvania Transportation Authority (3rd Cir. 2015) 796 F.3d 323; Breaux v. City of Garland (5th Cir. 2000) 205 F.3d 150; Stewart v. Miss. Transp. Comm’n (5th Cir. 2009) 586 F.3d 321, 332; Peltier v. United States (6th Cir. 2004) 388 F.3d 984; Nicols v. Southern Illinois University-Edwardsville (7th Cir. 2007) 510 F.3d 772; Singletary v. Missouri Dep’t of Corr. (8th Cir. 2005) 423 F.3d 886; Benavides v. City of Oklahoma City (10th Cir. 2013) 508 Fed.Appx. 720; Lincoln v. Maketa (10th Cir. 2018) 880 F.3d 533, 542.

[5] McCoy v. City of Shreveport (5th Cir. 2007) 492 F.3d 551, 561 (it is a close question whether paid administrative leave constituted an adverse employment action); Michael v. Caterpillar Fin. Servs. (6th Cir. 2007) 496 F.3d 584, 596 (placement on paid administrative leave for four days, coupled with placement on a 90–day performance plan, was an adverse employment action).

A recent case has made clear that a government agency’s ceasing doing business with a company based on the viewpoints of the company’s owners can lead to First Amendment liability for the agency.  Earlier this year, in Riley’s American Heritage Farms v. Elsasser, the United States Court of Appeals for the Ninth Circuit (the federal appellate court covering California), held that a California school district potentially violated a field trip vendor’s First Amendment rights.  The Ninth Circuit ruled that when the school district ceased its longstanding business relationship with the vendor upon receiving complaints from parents about controversial social media posts by the company’s owner, it raised First Amendment issues.

The two important take-aways from the case are: (1) when ceasing a business relationship because of viewpoints associated with a private company, the same First Amendment test applies as for speech by public employees (i.e., the “Pickering” test), and (2) whether the speech at issue causes or threatens to cause sufficient disruption at the agency constitutes an important factor Courts will consider in determining whether a decision to cease doing business in this context is constitutional.

Factual Background

Riley’s American Heritage Farms (“Riley’s Farm”) provides historical reenactments from the American Revolution, the Civil War, and historical farm life for students on school field trips.  It also hosts events such as apple picking.  For many years, the Claremont Unified School District arranged for student field trips to Riley’s Farm. The principal shareholder of the company used his personal Twitter account (separate from any social media account for business) to comment on a range of controversial topics, including, as the Ninth Circuit opinion described: “President Donald Trump’s alleged relationship with Stormy Daniels, President Barack Obama’s production deal with Netflix, Senator Elizabeth Warren’s heritage, and Riley’s opinions on gender identity.”  Parents of students in the District learned of the posts, and reported them to the District as alarming and biased.  In August 2018, a parent of a kindergarten student emailed to her child’s teacher: “I do NOT feel comfortable with my son patronizing an establishment whose owner (and/or family/employees) might be inclined to direct bigoted opinions towards my child or other vulnerable children in the group.”  Other parents began to make similar communications to teachers and administrators at the District, local news media reported on the controversy, and ultimately field trips to Riley’s Farm from District schools stopped.  (The District disputed whether there was any actual policy prohibiting field trips.)  Riley’s Farm and its owner sued District officials in federal court, contending that the discontinuation of business constituted retaliation prohibited by the First Amendment.  They contended it essentially constituted punishment of the owner for his speech on social media.

The Trial Court found in favor of the District officials, on the basis that their damages claim was barred by qualified immunity, a defense available to public officials based on lack of clarity in the law, as described below.  The Trial Court also ruled that Riley’s Farm’s separate injunctive relief claim failed because there was no evidence the school district continued to have a policy against doing business with the company.

The Court’s Ruling in Riley’s

The Court of Appeals reversed in part.  Although it ultimately agreed that qualified immunity barred Plaintiffs’ damages claims, it determined that the injunctive relief claim survived because evidence in the record showed the school district did appear to have a policy of not patronizing Riley’s Farm.

As to the issue of First Amendment liability, the Court held it was possible on the record that liability existed, so that summary judgment for either side was not possible.  Further proceedings were necessary, including possibly a trial.

          a. First Amendment Rights of Businesses

In reaching its decision, the Court of Appeals mapped out how First Amendment law applied to an agency’s decisions as to its business relationships.  The Court began by reciting the general rule that the government may not punish individuals for protected speech without violating the First Amendment.  The question, the Court continued, was whether First Amendment law allowed the government some leeway when it came to choosing which business relationships to continue or discontinue.  The Court explained that it did, and that the appropriate analogy to the agency-vendor relationship is the agency-employee relationship.  The agency-employee relationship is governed by the “Pickering” test (from the seminal 1968 U.S. Supreme Court case on public employee speech rights Pickering v. Board of Education).  This test acknowledges that government employees have First Amendment free speech rights as against their own employer, but that those rights are diminished when compared to rights of members of the public generally.  The Court observed that appellate decisions had already applied this test to a number of different types of contracting relationships, and ultimately determined that the test should apply in the Riley’s case as well, even though the business relationship was less formalized and not pursuant to a specific contract.

          b. How the First Amendment Rights Applied

The Court proceeded to apply the Pickering test as follows.  It explained that the test requires among other things, that the speech be on a matter of “public concern,” that the plaintiff suffer an adverse action from the government agency because of the speech, and that the agency demonstrate that it caused the adverse action because the agency “had ‘legitimate countervailing government interests [that were] sufficiently strong’ . . . to ‘outweigh the free speech interests at stake.’”  (Quoting authority.)  Under applicable precedent, an agency can make this demonstration by showing that the speech at issue caused sufficient actual or threatened disruption of the agency’s operations.

The Court determined that Riley’s speech on Twitter satisfied the “public concern” requirement, because of “public concern” includes speech on such topics as “politics, religion, and issues of social relations.”  The Court next found that Riley’s Farm suffered an adverse action as a result of discontinued business from District field trips.  Finally, the Court determined that the District did not meet its burden under the balancing of interests, in particular because the District’s evidence did not show significant actual or threatened disruption from Riley’s speech on Twitter.

In concluding the District has presented insufficient evidence to prevail in the balancing of interests, the Court emphasized, first, that there was only an “attenuated relationship between Riley’s controversial speech and the field trips themselves.”  In particular, “Riley’s controversial tweets were made on his personal Twitter account, and did not mention or reference the School District or field trips to Riley’s Farm in general,” there were no allegations “that Riley made (or planned to make) any controversial statements during a school field trip,” and there were “no allegations that he interacted at all with the students during the field trips.”

Second, no sufficient evidence of disruption existed.  The District presented the Trial Court with only “two complaints from parents, only one of which involved a student currently enrolled in the School District,” and a reference to other parents excusing themselves from trips, without the District describing “the number of parents or the nature of those complaints.”  (By contrast, other cases had found complaints from 60 or “hundreds” of parents sufficient evidence of disruption under the circumstances of those cases for the school district to prevail on balancing.)  There was also insufficient evidence of future disruption, in that only a handful of parents appears to have asked that their students be excused from a single field trip.  The Court also observed, in evaluating disruption, that there had been only relatively sparse media attention directed to Riley’s tweets, compared to other cases in which a significantly greater public controversy arose.

The Court of Appeals did, however, confirm that the doctrine of qualified immunity blocked any damages claims against officials of the District.  Under the doctrine of qualified immunity, a public official who violates an individual’s constitutional rights is nevertheless not liable in damages if those rights were not clearly established at the time of the misconduct.

Qualified immunity, however, did not apply to Plaintiffs’ request for injunctive relief.  That meant Plaintiffs’ case for injunctive relief could proceed.

Import of the Riley’s Case Ruling

The case illustrates hazards in an agency’s terminating a business relationship with an individual or company based on the political, social, or other views they express, particularly when that expression of views has no connection to the services the individual or company has offered.  Under the test described by Riley’s, however, it is possible for an agency to do so without violating the First Amendment.  To do so, the agency must be able to present sufficient evidence it would prevail in a balancing of interests, including sufficiently persuasive and substantial evidence of the disruption caused by the speech at issue or that could be caused.

Given the often complex nature of this area of law, it is helpful to consult trusted legal counsel when these types of First Amendment issues arise.  Federal case law will likely soon provide further answers in these areas.

 

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.

 

Updating personnel rules is an endless task. Laws are constantly changing, and agencies are experiencing significant operational changes now more than ever. The responsibility of ensuring that all personnel rules are up to date and reflect both the legal requirements and the operational requirements is time-consuming and daunting. However, auditing personnel rules is one of the most valuable ways for agencies to avoid liability. You may be asking yourself: “where do I even start?” There is no simple answer – most policies are important and valuable – but a good starting point is to make sure your agency’s personnel rules and policies at least include those required by law.

Your focus should be on adopting and clearly establishing legally-mandated policies and standards. It is critical to make sure these policies remain up to date on a yearly basis in order to remain compliant with new laws and regulations from California legislators, California and federal courts, and rule-making administrative bodies. Below is a list of the most important policies that must be included in your agency’s personnel rules to ensure legal compliance.

  1. Equal Employment Opportunity

Every agency should have an equal opportunity policy that makes a strong and clear statement against all forms of illegal discrimination. This policy should cover both applicants and existing employees and list the protected classifications established by California law. Protected classifications include race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age (40 and over), sexual orientation, or military and veteran status or any other basis protected by law.[1]

  1. Anti-Discrimination, Harassment, and Retaliation

In addition to the general equal employment opportunity policy, agencies should have a policy that clearly defines protected classes, what constitutes harassment, discrimination, and retaliation and how the agency addresses claims of harassment, discrimination, and retaliation. Specifically, state law requires that harassment prevention policies set forth: (1) the illegality of sexual harassment; (2) the definition of sexual harassment; (3) a description of sexual harassment; (4) the internal complaint procedure; (5) legal remedies available through the Department of Fair Housing and Employment (“DFEH”) and how to contact DFEH; and (6) the legal protections from retaliation provided under California law.[2] Each of the enumerated items above must be clearly outlined in the agency’s personnel rules.

  1. Reasonable Accommodations

Public agencies have an affirmative duty to provide applicants and employees who are disabled with reasonable accommodations. Employers must engage in a timely, good faith, interactive process in order to determine what accommodation(s) must be made for the employee to perform his or her essential job functions. Further, an employer must determine if an accommodation can be made without causing an undue burden to the employer or presenting a direct threat to the health and safety of others.

Your agency’s reasonable accommodation policy should outline the procedure for requesting and receiving an accommodation. Specifically, it should cover: (1) how to make a request; (2) what documentation may be requested; (3) fitness for duty exams; (4) the interactive process; and (5) that determinations will be made on a case-by-case basis. This section should also include a process of resolving requests for religious accommodations.

  1. Leaves

Numerous leave policies should be included in agencies’ personnel rules. Leaves include both legally required and operationally required leaves. The leaves section should include: (1) vacation time accrual if provided, and the procedures for taking the time off; (2) the agency’s designated holidays; and (3) any other leave time the agency grants employees. The below are leave policies required by law.

a. Federal Family Medical Leave Act (“FMLA”) and California Family Rights Act (“CFRA”)

The FMLA and CFRA both provide rights to employees to take leave to care for family members. Your policy must include the definitions as provided in each Act and note the differences where they exist. Employers are required to inform employees of when they are qualified to take this type of leave and how much leave may be taken. This policy will need to be highly detailed to inform employees of their rights under both FMLA and CFRA.

b. Pregnancy Disability Leave (“PDL”)

Employers are obligated to provide leave for pregnant employees. PDL is separate and distinct from the need to take a leave of absence as part of a reasonable accommodation and has different qualifications than leave under FMLA and CFRA. At a minimum, employers are required to provide four (4) months of leave for pregnant employees. This policy should cover the amount of leave permitted, whether employees will be paid during the leaves, notification requirements, and the process for reinstatement after the conclusion of the leave.

c. Sick Leave

Sick leave is required under two California laws: the Healthy Workplace Healthy Family Act of 2014 and the Kin Care Law. While these laws are separate and distinct, they overlap in important ways. Your agency’s sick leave policy should cover both of these required sick leave laws.

California’s Healthy Workplace Healthy Family Act of 2014 requires employers to provide paid sick leave. It entitles an employee who has worked at least thirty (30) days in twelve (12) months with an employer in California to accrue sick leave. Employees are permitted to use sick leave to attend to their own illness and the illness of other family members.

California’s 2001 Kin Care law requires those employers who already provide paid sick leave to expand the permissible use of that sick leave, so that employees can use up to half of accrued and available annual sick leave entitlement to attend to the illness of the following family members: child, parent, spouse, or registered domestic partner. Kin Care leave can also be used to attend to issues related to domestic violence. Sick leave policies must accurately cover requirements under both laws and reflect any additional sick leave benefits employers may provide.

  1. Overtime and Compensatory Time

It is critical to provide a policy that (i) defines overtime in a manner consistent with the Fair Labor Standards Act (“FLSA”) and (ii) requires non-exempt employees to obtain pre-approval from their supervisor prior to working overtime. This policy will lay out the obligations of employees when it comes to overtime work. Agencies should also clearly define what work is compensable for overtime calculations. The FLSA only requires that actual hours worked be counted, but some employers will count additional hours. Employees should be able readily to determine what their obligations are when working overtime and what will be counted towards compensable time.

Conclusion

The above is not an exhaustive list of legally required policies and only provides a brief overview of the critical components of each policy. Nevertheless, it should serve as a starting point and guidepost in considering whether your agency’s personnel rules are missing any critical policies. Most agencies will have these policies, but many policies are outdated or incomplete. Because the aforementioned policies are required by law, it is critical to ensure they are kept up to date on an annual basis. While regular audits of personnel rules may be time-consuming and cumbersome, it is an effective way that an agency can reduce its exposure with respect to employee claims.

Check here to see if your policies reflect the most recent legal updates.

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[1] Gov. Code §12940, subd. (a).

[2] Cal Code Regs., tit. 2, § 11023.

Senate Bill 1421 (“SB 1421”) went into effect on January 1, 2019.  As a result, under Government Code section 832.7 as amended, certain types of peace officer personnel records became subject to disclosure pursuant to a California Public Records Act (“CPRA”) request. Shortly after the effective date of SB 1421, Kern High School District received CPRA requests for such records from several sources, including news agencies.  Upon receipt of these CPRA requests, the District notified Jerald Wyatt, a police officer it previously employed, that it identified responsive documents in his personnel file.

During Mr. Wyatt’s employment, an internal affairs investigation was opened into allegations against him.  However, by the time the investigation was completed, the District no longer considered Mr. Wyatt an active employee.  When Mr. Wyatt requested access to his personnel file, he discovered among other things, a document listing two sustained findings for “Misuse of [the California Law Enforcement Telecommunications System]” and “Dishonesty.”  Mr. Wyatt claimed that he was not notified of these findings.  Under SB 1421, records relating to sustained findings of certain dishonesty-related misconduct by a peace officer are discloseable pursuant to a CPRA request.

Upon receipt of the notification, Mr. Wyatt filed a petition for a writ of mandate, temporary restraining order, and preliminary injunction, to enjoin the District from producing documents in his personnel file in response to the CPRA requests.  He argued that the records at issue did not relate to “sustained” findings (as the term is defined in Penal Code section 832.8, subdivision (b)) because he was never notified of such findings, and did not receive an opportunity to administratively appeal.  The case ultimately made its way to the Fifth District Court of Appeal.

Endeavoring to determine the parameters of the District’s obligations in connection with the CPRA requests at issue, the Fifth District Court of Appeal in Wyatt v. Kern High School (2022) — Cal.Rptr.3d – first considered SB 1421.

Looking to the legislative history of SB 1421, the appellate court found no indication that the Legislature considered a situation such as Mr. Wyatt’s – that is, a situation where sustained findings were made after a peace officer’s separation from employment.  Under these circumstances, California courts would have to guess between two equally plausible outcomes – that the Legislature would have determined that the records are disclosable or, just as likely, that it would have concluded that a peace officer’s privacy interests prevail in the absence of notice and an opportunity to administratively appeal.  Refusing to engage in guesswork, the appellate court found that the records at issue were not disclosable under SB 1421.

The appellate court’s analysis did not end there, however.  The Fifth District acknowledged that, pursuant to Senate Bill 16, which expanded upon SB 1421 and went into effect on January 1, 2022, “Records that shall be released pursuant to this subdivision also include records relating to an incident specified in paragraph (1) in which the peace officer or custodial officer resigned before the law enforcement agency or oversight agency concluded its investigation into the alleged incident.”  (Penal Code § 832.7, subd. (b)(3).) The appellate court expressed no opinion as to what the outcome of CPRA requests for the records at issue received on or after January 1, 2022 might be.

In light of the Fifth District Court of Appeal’s decision in Wyatt v. Kern High School, a public agency’s obligations when faced with a CPRA request may depend, in great part, on whether a finding was “sustained,” within the meaning of applicable law, and the timing of the request.  If a CPRA request seeks records of sustained findings as to which a peace officer did not receive notification or an opportunity to administratively appeal, such records are not disclosable under SB 1421 if the request was received on or before December 31, 2021.

Whether such records are disclosable under SB 16 if the request was made on or after January 1, 2022 is an open question.  Agencies are strongly encouraged to consult with an attorney prior to responding to CPRA requests pursuant to SB 1421 and SB 16.

When does a City create a public forum for speech under the First Amendment?  When can a City restrict which flags fly on a City flagpoles?  When can a City limit religious speech under the First Amendment?  The United States Supreme Court addressed these questions in its unanimous decision in Shurtleff v. City of Boston, Case No. 20–1800 on May 2, 2022.

Boston’s Practice of Allowing Groups to Raise Flags Outside City Hall

This case revolved around a flagpole outside Boston City Hall.  There are three flagpoles on the plaza outside Boston’s City Hall.  The first flies the American flag, the second flies the Commonwealth of Massachusetts flag, and the third usually – but not always – flies Boston’s flag.  Boston allows the public to use City Hall Plaza for events and acknowledges it is a “public forum.”  A public forum is a place the public can use for the free exchange ideas and for purposes of assembly.  When a public forum exists on government property, the government may only regulate the content of expressive activity if it serves a compelling state interest and narrowly drawn to achieve that interest.

Since at least 2005, Boston also allowed groups to have flag-raising ceremonies on the plaza where they were allowed to raise a flag of their choice on the third flagpole. Examples included flags of other nations, Pride Week, emergency medical workers, and a community bank.  About 50 different flags were raised between 2005 and 2017 and Boston never denied a request.

Boston Denies Request to Raise Christian Flag on Flagpole

Harold Shurtleff is the director and co-founder of an organization called Camp Constitution.  In 2017, Shurtleff applied for a flag-raising event on the Plaza to “’commemorate the civic and social contributions of the Christian community’” where he sought to raise what was described as the “Christian flag.”  The picture of the flag showed “a red cross on a blue field against a white background.”  Boston denied the request because it was the “Christian flag” and believed raising the flag would violate the Establishment Clause of the First Amendment.  The Establishment Clause prohibits public employers from engaging in conduct that endorses religion (i.e., it requires “separation of church and state”).  The City told Shurtleff the event could proceed if they raised a different flag.

Shurtleff and Camp Constitution sued claiming the City’s refusal to let them raise the Christian flag violated their right to free speech. The parties agreed on all the relevant facts.  The District Court ruled in favor of Boston and the United States Court of Appeals for the First Circuit affirmed.  The Supreme Court unanimously reversed and ruled in favor of Shurtleff.

The Supreme Court’s Decision

The Supreme Court focused on two questions:  (1) is the flag raising program government speech, and (2) can Boston deny the request under the First Amendment?

Was Raising the Flag Government Speech?

The Court first recognized that the First Amendment does not limit a government’s ability to express opinions or “speak for the community.”  This line “can blur” when there is public participation in a government program.  The Court explained it makes a “holistic inquiry” to evaluate “whether the government intends to speak for itself or to regulate private expression.”  The Court considered the following factors, such as “the history of the expression at issue; the public’s likely perception as to who … is speaking; and the extent to which the government has actively shaped or controlled the expression.”

While acknowledging flags convey government messages, the court noted the flag raising program allows other flags which the public may not associate with Boston.  More importantly, Boston did not control the flags raised by groups in the flag raising program.  While Boston controlled the scheduling of the event, maintained the physical premises, and provided a crank to raise the flag, Boston exercised no control over the content or messages conveyed by the flags.  Boston has no policies or guidance on what flags groups could fly, expressed it wished to accommodate all applicants, and until this event, never even saw the flags before the events.  Because the City had little to no involvement in the selection of the flags raised by the public or their message, or the events at which they were raised, the Court concluded the flag raisings are private expression and not government speech.

Could Boston Refuse to Raise the Christian Flag?

Because the public flag raisings constitute private expression – not government speech – Boston cannot discriminate based on viewpoint.  The Christian flag is Camp Constitution’s speech – not Boston’s.   Because Boston denied the Christian flag on the basis it promoted Christianity, that is impermissible viewpoint discrimination in violation of the First Amendment.

Three Takeaways For Your Agency

  1. Before regulating speech or expression, especially in connection with public events or programs, take a “holistic approach” to consider who is speaking – is your agency speaking or a private citizen?
  2. Implement and follow written policies to control government speech. The main reason the Supreme Court concluded the flag raising program was private – and not government – speech was because the City had no policies over the selection of the flags.  In contrast, the Court noted the City of San Jose California has a written policy stating its flagpoles are not a public forum for free expression.
  3. When your agency creates a public forum for free expression, be on the lookout for any regulations of the content of expressive activity in the forum. Limit restrictions in public forums to limits on the time, place, and manner of expressive activity.  These time, place and manner restrictions must be content-neutral, serve a significant government interest, and leave open ample alternative channels of communication.

Public agencies have to be mindful of the protections the First Amendment provides to the public when seeking to limit expressive activity on government property.  LCW regularly advises public agency and education clients concerning First Amendment issues and can assist you with these issues.

Nearly all California employers are impacted by, and should be familiar with, the provisions of the California Family Rights Act (“CFRA”) and the Fair Employment and Housing Act (“FEHA”).  There are currently bills working their way through the Legislature that would modify these key statutes.

AB 1949: Modifying CFRA to Include Bereavement Leave

The CFRA provides eligible employees with up to 12 weeks of unpaid protected leave during any 12-month period to care for their own serious health condition, to care for a family member with a serious health condition, or to bond with a new child.

This bill would amend CFRA to prohibit employers from denying a request from an eligible employee (defined as a person employed by the employer for at least 30 days prior to the commencement of the leave) to take up to 5 days of bereavement leave upon the death of a family member, which includes the employee’s spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law.  The employee would be required to take the 5 days of leave within 3 months of the date of the family member’s death.

Leave under this bill would be unpaid, but, where an employer already has a bereavement leave policy in place, the CFRA bereavement leave would be taken pursuant to that policy.  Where an employer does not have an existing bereavement leave policy (or the existing policy provides for less than 5 days of paid bereavement leave), the bill would require that employees be allowed to use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available to the employee.

Under this bill, employers could require employees requesting bereavement leave to provide documentation of the death of a qualifying family member, such as a death certificate, a published obituary, or written verification of death, burial, or memorial services from various sources.

A note for employers with represented employees – the new CFRA bereavement leave provision would not apply to employees who are covered by a valid collective bargaining agreement that already provides for bereavement leave.

AB 2188: Modifying FEHA to Include Off the Clock Cannabis Use as a Protected Characteristic

The FEHA prohibits discrimination, harassment, and retaliation in the workplace on the basis of various specified protected characteristics, including race, religion, disability, sex/gender, age, and sexual orientation.

Beginning on January 1, 2024, this bill would amend the FEHA to also make it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, for (1) the person’s use of cannabis off the job and away from the workplace; and/or (2) the results of an employer-required drug screening test that found the person to have nonpsychoactive cannabis metabolites in their urine, hair, blood, or bodily fluids.

This prohibition is based on the Legislature’s findings that, when most drug tests for cannabis are conducted, the results show only the presence of nonpsychoactive cannabis metabolites.  These nonpsychoactive metabolites do not indicate impairment, only that an individual has consumed cannabis in the last few weeks.  As science has improved, employers now have access to tests that do not rely upon the presence of nonpsychoactive metabolites and instead, for instance, measure an individual employee against their own baseline performance and/or identify the presence of THC (the chemical compound in cannabis that can indicate impairment and cause psychoactive effects) in an individual’s bodily fluids.

This bill would not prohibit employers from taking action against a person based on “scientifically valid pre-employment screening conducted using methods that do not screen for nonpsychoactive cannabis metabolites.”  The bill does not provide any insight into specific testing that would be permissible under this standard, but this provision seems aimed towards ensuring that employers rely upon the more sophisticated testing available even in pre-employment testing.

The bill would also exempt certain applicants and employees from the bill’s provisions, including employees in the building and construction trades and employees in positions that require a federal background investigation or clearance. Similarly, the bill would not preempt state and/or federal laws requiring applicants or employees to be tested for controlled substance.

 

LCW will continue to monitor and report on any developments with these and other employment-related bills.