California Public Agency Labor & Employment Blog

California Public Agency Labor & Employment Blog

Useful information for navigating legal challenges

Tips from the Table: Constructive Receipt

Posted in Labor Relations, Tips from the Table

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

 

Will the Supreme Court Prohibit Employers From Considering Salary History in Setting Pay?

Posted in Wage and Hour

This post was authored by Megan Lewis.

The United States Supreme Court may be gearing up to decide whether, under the Equal Pay Act, employers can consider an employee’s previous salary history when setting the employee’s rate of pay.  In doing so, the Court could clarify an area of the Equal Pay Act that has been interpreted differently by the various Circuit Courts of Appeal.

Under the federal Equal Pay Act, if an employer is paying an employee less than an employee of the opposite sex for work requiring the same skill, effort, and responsibility, which is performed under similar working conditions, the employer must be able to demonstrate that the disparity is based on one of the following:

  • seniority system;
  • a merit system;
  • a system which measures earnings by quantity or quality of production; or
  • a differential based on any other factor other than sex.

The first three exceptions are fairly straightforward, but the fourth (which is also known as the “catchall” exception) has often been the subject of litigation.

In April 2018, the Ninth Circuit ruled in Rizo v. Yovino that salary history is not a “factor other than sex” for purposes of the Equal Pay Act, meaning that employers cannot rely on an applicant’s prior salary history to justify paying one employee differently than another employee of the opposite sex for similar work.  The Ninth Circuit held that the only “factor[s] other than sex” that employers can use to justify a wage disparity are “legitimate, job-related factors such as a prospective employee’s experience, educational background, ability, or prior job performance.”

Jim Yovino, the Fresno County Superintendent of Schools, filed a petition for writ of certiorari asking the U.S. Supreme Court to review the Ninth Circuit’s decision because the Circuit Courts of Appeal do not agree on whether prior salary is a “factor other than sex.”  The Eleventh Circuit, like the Ninth Circuit, has held that the “factor other than sex” exception to the Equal Pay Act is limited to “job-related factors.”  The Seventh Circuit, on the other hand, has reached the exact opposite conclusion and held that employers can consider prior salary in setting pay.  The Second Circuit lands somewhere in the middle, holding that the “factor other than sex” exception applies to “business-related reasons,” which is likely less restrictive than the approach taken by the Ninth and Eleventh Circuits.

The Court is likely to decide the fate of Yovino’s petition in the coming weeks, possibly as soon as later this month.

If the Supreme Court ultimately affirms the Ninth Circuit’s decision in Rizo, the Ninth’s Circuit’s standard (under which only “job-related factors” can be a “factor other than sex”) could become the nationwide standard.  However, even if the Court were to overturn Rizo, state and local legislation regarding the right of employers to consider salary history in setting pay would remain in effect.  For instance, California employers would still be required to comply with the provisions of AB 168, which restricts the ability of employers to gather applicants’ salary history information or consider such information when determining whether to offer employment to an applicant and/or what salary to offer.  The same is true for employers in other states (Massachusetts, Delaware, and Oregon) and cities (New York, San Francisco, Boston, and Philadelphia) that have passed similar legislation.

We are watching this case closely, and we will provide updates as soon as they become available.

Service Animal Vs. Emotional Support Animal At Work – Is There A Difference Any More?

Posted in Disability

This post was authored by Jennifer Rosner.

In the employment context, the statutory schemes that require reasonable accommodation for disabilities are the California Fair Employment and Housing Act (FEHA) and the Americans With Disabilities Act (ADA).  The ADA defines a “service animal” as any dog (or in some cases, miniature horses) that are trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric or other mental disability.  Animals that satisfy this definition are considered service animals under the ADA regardless of whether they have been licensed or certified by a governmental entity.

The FEHA regulations provide that an “assistive animal” is one that is “necessary as a reasonable accommodation for an individual with a disability.”  Included in the definition of “assistive animal” is a “service dog or other animal” that is “individually trained to the requirements of a person with a disability.”  In 2016, the FEHA regulations were amended to add “support animal” to the definition of “assistive animal.”  A “support animal” is defined as one “that provides emotional, cognitive, or other similar support to a person with a disability, including, but not limited to, traumatic brain injuries or mental disabilities, such as major depression.”  Accordingly, the distinction between “service animal” and “support animal” in California has become immaterial.  Also, California law does not only apply to dogs or miniature horses but can include any animal that meets the above definitions.  In Pennsylvania, a disabled man registered an emotional support alligator, which he said helps him to deal with his depression.  (Like California, Pennsylvania does not limit support animals to a specific animal.)

In addition, the FEHA regulations do not require that an assistive animal is trained by a professional trainer.  The regulations do allow an employer to request (1) a letter from the employee’s healthcare provider stating that the employee has a disability and explaining why the employee requires the presence of the animal in the workplace (e.g., why the animal is necessary as an accommodation to allow the employee to perform the essential functions of the job); and (2) confirmation that the animal is free from offensive odors, does not engage in behavior that endangers the health or safety of the individual with a disability, and is trained to provide assistance for the employee’s disability.  The second component can be provided by the disabled employee.

The employer may challenge whether the assistive animal meets the above standards during the first two weeks that the animal is in the workplace based on objective evidence of offensive or disruptive behavior.  An employer may also require annual recertification from the employee of the continued need for the animal.

An employer may deny an employee’s request to bring an assistive animal to the workplace if the accommodation would not be reasonable.  Accordingly, employers should engage in the interactive process with the disabled employee to discuss whether the request for an assistive animal is reasonable.  The accommodations analysis should address three issues:

  1. Reasonableness: Is the requested accommodation reasonable?
  2. Effectiveness: Is the request effective? Will this requested accommodation effectively allow the employee to perform the essential functions of his or her job?
  3. Undue Hardship: Does the request pose an undue hardship? With regards to assistive animals, this analysis requires that employers weigh issues such as whether the animal will be disruptive to the workplace.

Employers should document efforts to engage in the interactive process with the employee regarding a request for an assistive animal in the workplace.  Moreover, to minimize risk and liability, employers should be vigilant in monitoring an assistive animal’s behavior and interaction with other employees and individuals who may be at the workplace.

Now is The Time to Consider an FLSA Audit!

Posted in Wage and Hour

This blog post was authored by Jennifer Palagi.

A number of developments – the 2016 decision in Flores v. City of San Gabriel on the intersection of wage and hour law and employer health plans and the U.S. Department of Labor’s (“DOL”) increased scrutiny of employers’ FLSA practices as of several years ago – continue together to provide a resounding “wake-up call” to employers.  It is important to assure FLSA compliance this year.

An FLSA audit is an opportunity to examine an agency’s policies and practices to identify any possible FLSA violations.  FLSA audits may examine every applicable wage and hour issue, or may look at one or two pressing concerns.  Audits typically involve reviewing various documents, such as payroll records, memoranda of understanding, and agency rules, as well as interviewing agency employees who are familiar with relevant practices.

Payroll Audits

Under the FLSA, all compensation that is “remuneration for employment” must be included in the regular rate unless it falls within one of several narrowly construed statutory exceptions.  The regular rate is not to be confused with the base hourly rate or salary and must include all requisite special pays in the overtime calculation.   In Flores v. City of San Gabriel, the Ninth Circuit held that cash payments to police officers made in lieu of health benefits must be included in the regular rate for overtime purposes under the FLSA (and that under some circumstances, health plan payments made on behalf of employees must also be included).

A payroll audit can assess whether an agency includes all special pays required by the FLSA in determining a non-exempt employee’s regular rate of pay and whether the agency is calculating the FLSA regular rate of pay correctly.

Employee Classification Audits

Misclassifying employees as exempt or non-exempt is a common FLSA error.  Unless exempt, employees must generally be paid at the rate of 1.5 times their “regular rate” of pay for all hours worked more than 40 in a week.  The most common exemptions, or “white collar” exemptions, apply to executive, administrative, professional, outside sales, and certain computer-related employees.  The burden is on the employer to show that an employee is properly classified as exempt.

The audit may be based only the determining whether salary levels are met for exemptions (i.e., just to confirm that relevant employees make enough for FLSA exemptions to apply to them).  Alternatively, it could involve a comprehensive review of the duties employees are actually performing and the percentage of time spent performing those duties to determine if employees qualify under FLSA exemptions.

Hours Worked Audits

The DOL continues to increase its rate of audits and general scrutiny of employers’ FLSA compliance.  One area of focus is whether non-exempt employees are getting compensated for all “hours worked.”  Under the FLSA, overtime compensation must be paid for all hours worked over a maximum amount in a work period (usually 40 hours in a seven day FLSA work week).  Hours worked under the FLSA is broadly defined to include all hours employees are “suffered or permitted to work” for their employer, including time they are necessarily required to be on duty on the employer’s premises or time worked even if the employer did not request the employee to perform that work.  Thus, the issue is often ripe for challenge by employees.

An “hours worked” audit can identify whether an agency’s calculation of hours worked is correct when an employee, for example, travels for work or attends a training.  The audit can also examine whether employees work off-the-clock hours and can identify whether these hours are compensable under the FLSA.

Finally, the FLSA provides employers a defense to liquidated damages (double damages) if the employer can show that in good faith it tried to follow the FLSA and was reasonable in believing that it was in fact in compliance.  Thus, agencies should regularly audit FLSA compliance to help support a good faith defense.

Now is the time for agencies to take a close look at their policies and practices and ensure they are in strict compliance with the FLSA.   An essential preventive tool for agencies is an FLSA audit.  It is only through a comprehensive analysis into an agencies’ compensation, classification and time-keeping practices, and an examination of whether those particular practices comply with FLSA requirements that an agency can properly navigate the FLSA and its regulations and reduce the risk of FLSA lawsuits.

It’s Not FMLA Unless I Say So!

Posted in FMLA, Wage and Hour

This blog post was authored by Jennifer Rosner.

In a 2014 decision of the U.S. Court of Appeals, the Ninth Circuit Court in California held that an employee can affirmatively decline to use leave under the Family Medical Leave Act (“FMLA”).  However, buyer beware!  If an employee affirmatively declines to use FMLA to which he/she would otherwise be entitled, the employer may be shielded from a lawsuit if it takes an adverse employment action against the employee based on that leave.

The FMLA provides job protection to an eligible employee who takes leave (up to 12 workweeks per year) to care for the employee’s spouse, child or parent with a serious health condition.  However, in Escriba v. Foster Poultry Farms, an employee declined to use FMLA when she took an extended leave of absence to care for her ill father.  When the employee was terminated for failing to comply with the company’s absence policy, she filed a lawsuit claiming that her termination was an unlawful interference with her FMLA rights.  The Court held that the termination was lawful because the employee had expressly declined to have her time off count as FMLA leave and therefore, was not entitled to job protection.

Maria Escriba worked at a Foster Farms processing plant for 18 years.  On November 19, 2007, she met with her immediate supervisor to request two weeks vacation leave to care for her ailing father in Guatemala.  Her supervisor asked if she needed more time in Guatemala to care for her father, and Escriba responded that she did not.  The supervisor told her that if she later decided to request more than two weeks leave, she would need to visit Human Resources.  Escriba then went to the Foster Farms facility superintendent and told him she was going to Guatemala because her dad was very ill.  She told him she was using two weeks of vacation time and asked her for an additional two weeks as a “favor.”  The superintendent told Escriba to send a note or documentation to Human Resources for the extra time.  He did not instruct Escriba regarding her rights and obligations under FMLA and did not take any steps to designate her time off as FMLA.  Escriba never requested any additional time from Human Resources.

Escriba then traveled to Guatemala to care for her father.  While there, she decided that returning to work after two weeks would not be practical but she failed to make contact with her employer to extend her leave.  Sixteen days after she was supposed to return to work, Escriba called her union representative who informed her that she was going to be terminated under Foster Farm’s “three day no-show, no-call rule.”  Under this policy, an employee is automatically terminated if absent for three work days without notifying the company or without seeking a leave of absence.  Escriba then sued Foster Farms, claiming that the company interfered with her right to take FMLA leave.

To establish a case of FMLA interference, an employee must establish that 1) he/she was eligible for FMLA protection; 2) the employer was covered by the FMLA; 3) the employee was entitled to leave under the FMLA; 4) the employee provided sufficient notice of intent to take leave; and 5) the employer denied the employee FMLA benefits to which he/she was entitled.  Here, the Court found that Escriba elected not to take FMLA leave after telling her supervisor that she only wanted vacation time and that she did not need additional time off.  She also knew that her supervisor only handled requests for vacation whereas Human Resources had handled her past fifteen requests for FMLA leave.  Moreover, Escriba had intended to take vacation time and not family leave.  Accordingly, Escriba did not express intent to take leave under the FMLA.

Thus, this case demonstrates that an employee cannot have it both ways – the employee cannot decline to use FMLA (even if the leave qualifies for FMLA) and then try to hide behind FMLA protections after the fact.  Accordingly, once an employee declines to use FMLA, the employee assumes the risk of the decision.  Thus, as in this case, if an employee declines FMLA leave, and goes on an unauthorized leave of absence, the employee can be lawfully terminated (consistent with agency policies).  Because the FMLA does not require that an employee expressly ask for “FMLA leave” to fall under its protections, we recommend that the employer should inquire of the employee if it is necessary to determine whether FMLA is being sought by the employee and obtain the necessary details of the leave to be taken.

New Guidance on Employer Control Over Employee Social Media

Posted in Social Media

This post was authored by Jeffrey C. Freedman.

Picture this: you are your agency’s Human Resources Director. One morning a fellow Director from another Department comes to visit you. She tells you she was sitting before her home computer the prior evening and found a Facebook post from one of her employees complaining about his pay and benefits, making defamatory comments about her, and stating his plan to take his issues to his union. A number of “likes” and comments agreeing with him had been posted by at least six of his co-workers, all of whom work in her Department. She tells you she became worried that mutiny is afoot. Next, she says she has reviewed the agency’s personnel rules and employee policies and found a provision that prohibits employees from disparaging other employees. She now asks whether she has any recourse. More specifically, she asks whether the employee who posted this can be fired. What answer do you give her?

The answer depends on analysis of two separate areas of law: First Amendment rights to freedom of speech and public employee rights to participate with fellow employees in advancing and protecting the terms and conditions of their employment. This article will deal with the second area; issues under the First Amendment involve, among other concerns, whether the speech relates to matters of public concern as opposed to only private, personal matters. We have addressed this topic elsewhere. Issues relating to employee rights to discuss working conditions arise under laws including the Meyers-Milias-Brown Act (MMBA) for employees of cities, counties, and special districts, the Education Employment Relations Act (EERA), and others. This topic became a matter of concern recently after the National Labor Relations Board (“NLRB”) overturned an earlier precedent on the legality of employer policies, which was then followed by a document entitled “Guidance on Employer Rules” issued by the NLRB’s General Counsel. The NLRB enforces and interprets federal labor relations law, which applies only to private employers.  But since the California Public Employment Relations Board (PERB) routinely looks to the NLRB for guidance, an examination of this recent development is worthwhile for public employers.

The NLRB’s 2017 decision in a case involving Boeing reversed a 2004 decision on the Board’s criteria in determining whether employer work rules unlawfully infringed on private sector employee rights “to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The new criteria give more leeway to employers to adopt facially neutral rules as long as the application of such rules does not interfere with employee rights. Under the 2004 criteria, many rules were presumed to be unlawful even if their wording was facially neutral – as long as  their wording could be interpreted as infringing on employee rights. The General Counsel’s memorandum, GC 18-04 (issued this past June 6), read the 2017 criteria as focusing on a balance between an employee’s right to engage in protected concerted activities and an employer’s ability to maintain discipline and productivity in the workplace. The General Counsel broke the various types of work rules into these categories:

1-Rules that are generally lawful to maintain because, when reasonably interpreted, they do not prohibit or interfere with employee exercise of protected rights or because the potential adverse impact on protected rights is outweighed by the rule’s business justifications. These include rules protecting confidential and proprietary information or documents, which are presumptively lawful since generally these do not relate to negotiations issues or to employee wages, hours, or other terms and conditions of employment. Also presumptively lawful are rules on civility, insubordination, conduct on the job that adversely affects operations, disruptive behavior, and defamation, for example.

2-Rules requiring scrutiny because they may well interfere with employee rights, such as prohibitions on disparaging the agency, as opposed to individual employees, speaking to the media, making false statements that do not rise to the level of defamation, confidentiality rules that are overbroad, and rules banning off-duty conduct that are overbroad.

3-Rules that are per se unlawful such as rules prohibiting discussion of wages, benefits, or working conditions, or rules that would limit employee rights to join outside organizations.

So what about the Department Director’s question? Can that Facebook-posting employee be disciplined, up to termination? First of all, clearly every employee has the unlimited right to complain about pay and benefits. So imposing discipline for this complaint would clearly be unlawful, as would taking action because of the employee’s statement of intent to complain to the union. However, defaming a specifically named employee, in this case the Department head, depending on the specific content and context, is not protected activity and could warrant some level of discipline. Whether termination would be warranted, especially in the context of this employee’s other statements, which are legally protected, is something else, and should be reviewed by HR along with the agency’s legal counsel. In any case, HR should consider revising and supplementing the agency’s personnel rules and employee policies in light of the NLRB General Counsel’s Guidance.

Tips for Responding to SB 1421 Requests

Posted in Public Safety Issues

This post was authored by J. Scott TiedemannLars T. Reed.

On January 1, 2019, California Senate Bill 1421 went into effect. The new law allows members of the public to obtain certain peace officer personnel records that were previously available only through the Pitchess procedure by making a request under the California Public Records Act (“CPRA”).

We described this legislation in detail in a previous Special Bulletin. In short, SB 1421 amends Government Code Section 832.7 to mandate disclosure of records and information related to certain high-profile categories of officer misconduct: officer-involved shootings, certain uses of force, sustained findings of sexual assault, and sustained findings of certain types of dishonesty.

Immediately after the new law went into effect on January 1, public agencies across California began receiving broad CPRA requests for records covered by SB 1421. Below are our answers to some frequently asked questions and general tips for how to respond to SB 1421 requests.

For case-specific questions, agencies should consult legal counsel to ensure compliance with all relevant laws.  To that end, LCW has dedicated a team of lawyers to help clients deal with these time-sensitive and complex requests.

Does SB 1421 apply to records from before January 1, 2019?

SB 1421 does not explicitly state whether it applies to records created before the law’s effective date, January 1, 2019, and this question is the subject of some ongoing litigation.

In at least one case, a superior court judge has issued a temporary stay directing a public agency to refrain from retroactively enforcing SB 1421 pending a more detailed hearing. In addition, two police unions separately petitioned the California Supreme Court for a writ barring retroactive application of SB 1421 to records predating January 1, 2019. On January 2, 2019, the Supreme Court denied both of those writ petitions without commenting on the merits of their legal arguments. None of these cases have any binding effect as precedent, so the question whether SB 1421 applies retroactively remains unanswered for the moment. It seems likely that the courts will eventually provide some clarification as litigation continues, but the clarification likely will not come in time to help agencies with the first round of requests that they have already received.

In the meantime, pending guidance from the courts or clarifying legislation, we recommend that agencies seek case-specific legal advice to decide whether they will disclose records regardless of when the records were created, or only disclose responsive records that are created after January 1, 2019.  Recognizing that there may be some room for debate, we believe that it is more likely than not courts will interpret SB 1421 to require disclosure of at least some records that predate 2019.

Each approach carries with it some risk, so agencies should carefully weigh the risks and potential benefits.  In mitigation of some of the risks associated with releasing personnel records predating 2019, agencies should consider providing advance notification to the affected peace officers and their labor unions to afford them the opportunity to seek judicial relief from the anticipated disclosure.

How soon must an agency respond to a request for records?

Under the CPRA, an agency generally has 10 days from the receipt of a request for public records to determine whether any part of the request seeks copies of disclosable records in the agency’s possession. However, in “unusual circumstances” the agency may extend this deadline by up to 14 days by providing a written notice to the requesting party. For purposes of the CPRA, “unusual circumstances” means any of the following:

  • The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request.
  • The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request.
  • The need for consultation, which shall be conducted with all practicable speed, with another agency having substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein.
  • The need to compile data, to write programming language or a computer program, or to construct a computer report to extract data.

For “blanket” requests that seek a wide range of records or information covered by SB 1421, a public agency may have cause to invoke one or more of these grounds, but the determination should be made on a case-by-case basis.

If and when an agency determines that a CPRA request seeks disclosable records, it should “promptly” make those records available or provide copies of them. The CPRA does not set a specific time frame for the actual disclosure of records; this will vary depending on the circumstances of any given request, including the size and scope of the request and the possible need to redact nondisclosable information.

Is SB 1421 limited to records of administrative investigations?

No. SB 1421 applies to “peace officer or custodial officer personnel records” and all other “records maintained by any state or local agency” relating to a covered incident. This includes, but is not limited to, all of the following:

  • Investigative reports.
  • Photographic, audio, and video evidence; transcripts or recording of interviews.
  • Autopsy reports.
  • Materials compiled and presented for review to the district attorney or to any person or body charged with determining whether to file criminal charges against an officer in connection with an incident, or whether the officer’s action was consistent with law and agency policy for purposes of discipline or administrative action, or what discipline to impose or corrective action to take.
  • Documents setting forth finding or recommended findings.
  • Copies of disciplinary records relating to the incident, including any letters of intent to impose discipline, any documents reflecting modifications of discipline due to the Skelly or grievance process, and letters indicating final imposition of discipline or other documentation reflecting implementation of corrective action.

May an agency delay the disclosure of records relating to ongoing cases?

Possibly, depending on the nature of the case. SB 1421 sets out several circumstances in which agencies may delay the mandated disclosure of records.

Internal investigations into sexual assault or dishonesty

Records pertaining to alleged sexual assault or dishonesty by an officer are only subject to disclosure under SB 1421 if the allegations are sustained by a law enforcement or oversight agency. Under Penal Code section 832.8(b), “sustained” means “a final determination by an investigating agency, commission, board, hearing officer, or arbitrator, as applicable, following an investigation and opportunity for an administrative appeal pursuant to Sections 3304 and 3304.5 of the Government Code, that the actions of the peace officer or custodial officer were found to violate law or department policy.”  Thus, if the investigation is ongoing, or an appeal from discipline is pending, then the allegations have not been sustained and the records are not yet subject to disclosure.

Criminal investigations related to a use of force incident

During an active criminal investigation related to an officer-involved shooting or the use of force resulting in death or great bodily injury, an agency may delay disclosure for up to 60 days from the date the force occurred or until the district attorney determines whether to file criminal charges related to the use of force, whichever is sooner. The agency may extend the delay further if disclosure could reasonably be expected to interfere with a criminal enforcement proceeding. If disclosure is delayed under one of these provisions, then the agency must comply with several requirements for specific written notice to the requesting party.

Criminal prosecutions related to a use of force incident

If criminal charges are filed related to a use of force incident, the agency may delay the disclosure of records or information until a verdict on those charges is returned at trial, or, if a plea of guilty or no contest is entered, the time to withdraw that plea has expired.

Administrative investigations related to a use of force incident

During an administrative investigation of a use of force incident, an agency may delay disclosure of records while the investigating agency determines whether the use of force violated a law or agency policy. The delay is limited to 180 days after the employing agency’s discovery of the use of force, or allegation of use of force, by a person authorized to initiate an investigation, or 30 days after the close of any criminal investigation related to the use of force, whichever is later.

May a public agency provide redacted versions of requested records?

Possibly, if the redactions are for one of a set of specific reasons outlined in SB 1421:

  • To remove personal data or information, such as a home address, telephone number, or identities of family members, other than the names and work-related information of peace and custodial officers.
  • To preserve the anonymity of complainants and witnesses.
  • To protect confidential medical, financial, or other information of which disclosure is specifically prohibited by federal law or would cause an unwarranted invasion of personal privacy that clearly outweighs the strong public interest in records about misconduct and serious use of force by peace officers and custodial officers.
  • Where there is a specific, articulable, and particularized reason to believe that disclosure of the record would pose a significant danger to the physical safety of the peace officer, custodial officer, or another person.
  • Other circumstances not listed above, where, on the facts of the particular case, the public interest served by not disclosing the information clearly outweighs the public interest served by disclosure of the information. This language mirrors the catch-all provision of the CPRA, and courts will likely interpret the law similarly.

In particular, it is likely that many records within the scope of SB 1421 contain privileged documents, such as attorney-client communications. Given the high volume of anticipated records requests and the large amount of potentially disclosable files, responding agencies should take particular care in examining responsive records to avoid inadvertently giving away privileged materials.

SB 1421 dramatically increases public access to peace officer personnel records and other public records. But there are a number of issues left unclear and compliance with the new law will require a careful balancing of the public right to access public records against the privacy interests of officers, crime victims, complainants, witnesses and other third parties. Agencies that receive CPRA requests pursuant to SB 1421 should work closely with trusted legal counsel to navigate successfully between these competing interests when responding to the requests.

Governor Signs SB 1421 and AB 748, Dramatically Increasing Public Access to Peace Officer Personnel Records

Posted in Public Safety Issues

This post was authored by Paul D. Knothe.

On September 30, 2018, Governor Edmund G. Brown, Jr. signed two significant pieces of legislation, Senate Bill 1421 and Assembly Bill 748, that will require major changes in how law enforcement agencies respond to requests for peace officer personnel records. We described this legislation in detail in a previous Special Bulletin.

In short, these two statutes will allow members of the public to obtain certain peace officer personnel records that were previously available only through the Pitchess procedure by making a request under the California Public Records Act (“CPRA”) request.

Effective January 1, 2019, SB 1421 amends Government Code Section 832.7 to generally require disclosure of records and information relating to the following types of incidents in response to a request under the CPRA:

  • Records relating to the report, investigation, or findings of an incident involving the discharge of a firearm at a person by a peace officer or custodial officer.
  • Records relating to the report, investigation or findings of an incident in which the use of force by a peace officer or custodial officer against a person results in death or great bodily injury.
  • Records relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency that a peace officer or custodial officer engaged in sexual assault involving a member of the public. “Sexual assault” is defined for the purposes of section 832.7 as the commission or attempted initiation of a sexual act with a member of the public by means of force, threat, coercion, extortion, offer of leniency or any other official favor, or under the color of authority.   The propositioning for or commission of any sexual act while on duty is considered a sexual assault.
  • Records relating to an incident in which a sustained finding of dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation, or prosecution of a crime, or directly relating to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including but not limited to, any sustained finding of perjury, false statements, filing false reports, destruction of evidence or falsifying or concealing of evidence.

AB 748 requires agencies, effective July 1, 2019, to produce video and audio recordings of “critical incidents,” defined as an incident involving the discharge of a firearm at a person by a peace officer or custodial officer, or an incident in which the use of force by a peace officer or custodial officer against a person resulted in death or great bodily injury, in response to CPRA requests.

These statutes have different timelines for production of records, and different circumstances under which production of records can be delayed or records can be withheld. Further, agencies may wish to evaluate their document retention policies in light of these new disclosure requirements.  Agencies should work closely with trusted legal counsel to ensure compliance with both statutes.

New Year, New Laws, New Obligations

Posted in Legislation

This post was authored by Alysha Stein-Manes.

As we ring in the new year, employers will be tasked with implementing new laws that Governor Brown signed into law this past fall.  Here is a summary of a few major bills that go into effect on New Year’s Day:

1. AB 1976: Lactation Accommodations

AB 1976 amends Labor Code section 1031, regarding lactation accommodations in the workplace.  California law requires employers to provide a reasonable amount of break time to accommodate employees who want to pump or express breast milk for an infant child and to provide these employees with the use of a room or other location, other than a toilet stall, close to the employee’s work area to express breast milk in private.  With AB 1976, beginning on January 1, 2019, employers may no longer designate the lactation location as anywhere in a bathroom.  An employer will comply with the new law if the employer provides a temporary lactation location that meets all of the following requirements:

  • The temporary location must be private and free from intrusion while an employee expresses milk;
  • The temporary location is used only for lactation purposes while an employee expresses breast milk;
  • The temporary location otherwise meets the California law requirements for lactation accommodations, found in Labor Code sections 1030-1033; and
  • The employer is unable to provide a permanent lactation location because of operational, financial, or space limitations.

AB 1976 also creates an exemption for employers who can demonstrate to the Department of Industrial Relations (“DIR”) that providing a room or location, other than a bathroom, would impose an undue hardship when considering the size, nature, and structure of the employer’s business.  An employer must request the exemption from the DIR.  However, even if the DIR grants the employer an exemption, the employer is still required to make reasonable efforts to provide an employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee’s work area to express breast milk in private.

Relatedly, for public colleges and universities, beginning on January 1, 2020, another bill, AB 2785 will amend the Education Code to require California Community Colleges and the California State University, and encourage the University of California, to provide reasonable accommodations on their respective campuses for a lactating student to express breast milk, breastfeed an infant child, or address other needs related to breastfeeding.

Reasonable accommodations for students will include, but will not be limited to, the following:

  • Access to a private and secure room, other than a restroom, to express breast milk or breastfeed an infant child. The room must have a comfortable place to sit, and include a table or shelf to place a breast pump or any other equipment to express breast milk.  A campus of the California Community Colleges and the California State University may use an existing facility to meet these requirements;
  • Permission to bring a breast pump and any other equipment to express breast milk onto a college or university campus; and
  • Access to a power source for a breast pump or any other equipment to express breast milk.

The lactation accommodation must be available to a student whenever a student is required to be present on campus.

As public colleges and universities begin to implement the requirements of AB 1976, they should begin to consider how they plan to also comply with student accommodations beginning in 2020.

2. SB 1085: Paid Leaves of Absence for Union Stewards and Officers

SB 1085 creates paid leave for stewards and officers to participate in employee organization or union activities.  The new law will require public employers to grant reasonable leaves of absence without loss of compensation or other benefits, including retirement benefits, for employees to serve as stewards or officers of the employee organization.  The exclusive employee organization must make the request to the employer on behalf of the employee for whom it seeks leave.  Agencies may grant the leave on a full-time, part-time, periodic, or intermittent basis.

An employee organization is not obligated to use leave and may end an employee’s granted leave at any time. If, however, the employee organization elects to request this leave, it must reimburse the public agency for all compensation paid to the employee on leave, unless otherwise provided in a collective bargaining agreement or memorandum of understanding. An employee organization is required to make such reimbursements to the public agency on or before 30 days after receiving certification from the public agency showing payment to the employee.

At the end of the leave, the employee has a right to reinstatement to the same position and work location he or she held before the leave, or, if not feasible, a substantially similar position without loss of seniority, rank, or classification.

The law will require the public agency and employee organization to reach a mutual agreement on procedures for requesting and granting leave. Public agencies should be prepared to meet and have discussions with employee organizations to come up with an agreement on how this new paid leave of absence will be provided.

3SB 1421: Peace Office Records

As described in detail in a prior Special Bulletin, SB 1421 amends the Penal Code to require the disclosure of certain peace officer personnel records under the California Public Records Act (“CPRA”).  To date, such records could only be released pursuant to a Pitchness motion.

SB 1421 specifically amends Penal Code section 832.7 to generally require the disclosure of records and information relating to the following types of incidents in response to a request under the CPRA, without a Pitchess motion:

  • Records relating to the report, investigation, or findings of an incident involving the discharge of a firearm at a person by a peace officer or custodial officer.
  • Records relating to the report, investigation, or findings of an incident in which the use of force by a peace officer or custodial officer against a person results in death or great bodily injury.
  • Records relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency that a peace officer or custodial officer engaged in a sexual assault involving a member of the public. “Sexual assault” is defined for the purposes of section 832.7 as the commission or attempted initiation of a sexual act with a member of the public by means of force, threat, coercion, extortion, offer of leniency or any other official favor, or under the color of authority. The propositioning for or commission of any sexual act while on duty is considered a sexual assault.
  • Records relating to an incident in which a sustained finding was made of dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation, or prosecution of a crime, or directly relating to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including but not limited to, any sustained finding of perjury, false statements, filing false reports, destruction of evidence or falsifying or concealing of evidence.

Relatedly, AB 748 delays the effect of SB 1421 for certain videos or audio recordings.  Specifically, effective July 1, 2019, law enforcement agencies will be required to produce, in response to CPRA requests, video and audio recordings of “critical incidents,” defined as an incident involving the discharge of a firearm at a person by a peace officer or custodial officer, or an incident in which the use of force by a peace officer or custodial officer against a person resulted in death or great bodily injury.

  1. SB 1343: Anti-harassment Training Requirements

As a reminder, SB 1343 expands existing harassment training requirements for public and private employers, to encompass private sector employers with five or more employees and mandate harassment training for nonsupervisory employees of qualified employers.  We addressed these new requirements in detail in post earlier this month.