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.
This blog was authored by Lisa S. Charbonneau.
Flu season is upon us again. This year hospitals across California have reported unusually high numbers of patients with flu-like symptoms and news outlets say this flu season is on track to being the worst in 10 years. What, if anything, can employers do to manage and minimize the effects of flu season on employees?
Employees Should Take Advantage of Their Available Sick Leave
Many employees come to work sick or fall ill at work but do not leave. Employees who are sick in the work place may cause the sickness to spread to other employees, leading to productivity loss. To best promote the use of sick leave when employees are sick, employers should clearly inform employees that they are expected to use their sick leave when necessary and if they experience symptoms at work, they should go home – and stay home until they have recovered. Importantly, managers who come to work sick set a poor example for their supervisees. Therefore, managers should be similarly advised not to come to work while sick or displaying flu-like symptoms.
Send Home Employees Who Show Visible Signs of a Contagious Illness at Work
An employer can require an employee to go home if he or she is showing signs of a contagious illness – even if the employee does not want to leave work. The best practice is to take this action when an employee shows extreme signs of illness, e.g. loud and repeated coughing, hacking, or sneezing. When sending an employee home due to visible illness, employers must ensure they are acting in a non-discriminatory, non-retaliatory, and neutral manner. Employers should consider establishing policies or procedures with language confirming the right to remove sick employees from the workplace.
Employees May Use Sick Leave to Care for Family Members with the Flu
California’s Paid Sick Leave Law provides that employees may use up to one half of their annual accrued sick leave to care for their family members. The definition of family members is quite broad; the term includes children, parents, spouses, domestic partners, grandparents, grandchildren, siblings, and parent-in-laws. Employers cannot deny an employee the right to use protected paid sick leave and are prohibited from retaliating against employees for using such leave.
The Flu Could Trigger FMLA/CFRA Entitlements
If the flu constitutes a “serious health condition” under the FMLA/CFRA, an affected employee would be entitled to avail themselves of their FMLA/CFRA rights, including by taking protected leave for their own flu or to care for a family member with the flu (assuming all other legal requirements are met). The flu may be a “serious health condition” if the employee is unable to work or perform other regular daily activities for three consecutive calendar days and the employee requires treatment from a healthcare provider twice within thirty days and/or requires continuing treatment under the supervision of a health care provider.
Although employers cannot escape influenza season, employers do have tools to address the effects of contagious illnesses in the workplace. For more information on leave entitlements for California employees, including California’s new Protected Paid Sick Leave Law, please visit the LCW Liebert Library here: https://liebertlibrary.com/liebert-store/leaves-2/leave-rights-for-california-employees/.
And don’t forget to wash your hands!
This post was authored by David Urban.
The stock market is at all-time highs, and unemployment and inflation are low. For many California public sector employers, the strengthened economy means more hiring. Although this is good news, the hiring process does carry legal risks, just as did downsizing and other similar matters in bad economic times.
Here are six areas of the hiring process in the public sector that deserve particular attention from a legal perspective. This is not an exhaustive list of such areas, or a complete list of considerations, but it provides a general framework for what to trouble-shoot before hiring begins in earnest.
- Utilize Accurate Job Descriptions: At the very outset of the hiring process, it is critical to develop accurate and sufficiently detailed job descriptions. These will prove important not only for hiring, but also for legal issues that may arise later during the course of the employment relationship. An accurate job description will help the agency demonstrate that questions on job applications and during interviews are legitimate and non-discriminatory, and help those in the hiring process focus on eliciting those facts that are job-related. Also, in the context of disability discrimination laws, in both the hiring process and during employment, an agency’s identification of the “essential functions of the job” will be critical. Under both federal and state law, a court will treat the job description prepared by the employer prior to advertising or interviewing for the job as evidence of what constitute essential functions.
Detail in the job description can also be very important, because vague or overly general job descriptions may not provide proper guidance either to applicants deciding whether to seek the job, or to agency personnel making the hiring decisions. Misunderstandings about the nature of the job can produce charges of discrimination or of failure to accommodate. At a minimum, a job description should contain: (a) justifiable job-related educational requirements, (b) necessary vocational skills, (c) required work experience, (d) examples of duties, (e) unusual physical requirements, (f) work hours, and (g) compensation. Where possible, job requirements should be validated by experts using professionally accepted validation methods.
- Establish a Uniform Screening Process for Applications: The next phase to consider is the initial “screening” of applications for those who are not qualified or not competitive in light of the quality and experience of other applicants. As a general matter, an employer’s initial “screening” must be conducted in a neutral manner that does not result in an unjustifiable disproportionate impact with regard to a protected characteristic, such as race, gender, religion, and age over 40. Accordingly, the agency should establish a set of job-related screening criteria which do not result in exclusion of individuals who are qualified and competitive for the job. The agency should also have a process in place to make a separate review of the fairness and appropriateness of screening criteria, to make sure the screening guidelines are followed uniformly, and to confirm that decisions were not influenced by improper considerations.
- Focus Interviews on Job-Related Questions, and Avoid Improper Questions: Like other aspects of the hiring process, interviews must be conducted in a non-discriminatory manner. Questions should focus on qualifications for the job in question, and not pertain to protected characteristics. Some unlawful questions are straightforward, such as asking about an applicant’s race, age, religion, or other protected characteristics. But according to the Department of Fair Employment and Housing (“DFEH”), the list also encompasses some questions that bear indirectly on these matters, such as questions about the date of completion of school, religious days the applicant observes, or the applicant’s birthplace. There are, however, ways questions can be phrased to request information the employer legitimately needs without creating an impression of bias. (For example, it would be appropriate to ask which languages an applicant speaks, but only if relevant to the job at issue.)
It is vital that agencies ensure that those employees conducting interviews have received training in what constitute protected classifications, and what questions are prohibited. Also, interviewers should be thoroughly familiar with the job description and the nature of the job in question.
- Background Investigations, Including Reference Checks: Background investigations pose unique legal challenges. To fill some positions such as police officer, a public agency is actually required by law to conduct such an investigation. However, applicants have state and federal constitutional privacy rights that bear on what information an agency can seek and in what manner the information may be sought. Also, an agency must be careful to abide by the same anti-discrimination standards in conducting the background investigation that are required in all other aspects of the hiring process. Further, there are federal and state statutes that may govern how the investigation is conducted.
An important step in the background investigation process is obtaining a signed waiver and authorization from each selected applicant. The waiver/authorization should inform the applicant of the types of information the agency will request from the applicant’s current or former employers. It should also require the applicant to release the agency and current or former employers from liability arising from the background investigation. The document can also require the applicant to authorize access to, and/or to require the applicant to obtain a copy of, the applicant’s personnel file from prior employers. It may be appropriate for the investigator actually to meet with the applicant to explain the process and make sure the applicant fully understands what types of information the agency will seek.
- Keep Pre-Offer and Post-Offer Separate: Generally, under both federal and state law, employers cannot ask questions about disabilities or require medical examinations prior to making a conditional offer of employment. The EEOC has described that a “conditional offer of employment” is a real job offer that is made after the employer has evaluated all relevant and lawful non-medical information which could reasonably have been obtained and analyzed prior to making the offer. The offer is conditioned upon acceptable medical information, such as passing a job-related medical examination that is directly related to job performance and business necessity. Typically, for a conditional job offer to be “real,” an employer cannot conduct medical examinations or otherwise elicit medical information until after the employer has evaluated all relevant non-medical information, and offered employment subject only to the medical exam.
Agencies should audit their practices to ensure they comply with these requirements. In the case of peace officers, agencies can sometimes make conditional offers before some types of non-medical evidence (i.e., background checks) has been received, if the evidence cannot reasonably have been collected earlier. This, however, is an exception to the general rule. In addition, the agency should be able to prove that the medical inquiries it makes post-offer, including psychological evaluations, which are often conducted for public safety positions, are in fact necessary for determining whether the applicant can perform the job. (There are also considerations regarding drug tests and the limits applicable law places on them.)
- Rejection of Applicants Based on Results of Medical Examination: If an agency rejects an applicant based on the results of a medical examination, it must be prepared to present evidence that the decision comports with state and federal laws prohibiting discrimination on the basis of disability. Considerations include whether a reasonable accommodation was available that would not impose an undue hardship, the extent to which the applicant’s holding the position would pose a direct threat to health or safety of the applicant or others that could not be eliminated by reasonable accommodation, and others. How an agency plans to respond to charges of disability discrimination can be addressed largely in advance, by thoroughly vetting the criteria and decision making process to be used.
* * * *
Although the areas of federal and state law involved can be complex, auditing and trouble-shooting the process at the outset, and making sure that the best possible procedures are in place before they begin to operate, can help avoid legal problems later.
This post was authored by Victoria E. McDermott.
California’s new Ban-the-Box Law is now in effect, and employers across the state are questioning its impact on their hiring practices. Assembly Bill 1008, codified as section 12952 to the Fair Employment and Housing Act (FEHA), contains new state-wide restrictions on how an employer uses an applicant’s criminal history in pre-hiring and personnel decisions. While the law may seem like old hat for California’s public agencies — Labor Code section 432.9 already prohibited a public agency’s initial use of criminal convictions in the hiring process — this new law contains significant changes for public and private employers alike.
Since we already provided an overview of Ban-the-Box in our annual Legislative Roundup [https://www.lcwlegal.com/news/ab-1008-extends-ban-the-box-to-all-employers-and-delays-review-of-applicants-criminal-history-until-after-conditional-offer] (full text of the statute is available here), our focus here will be on the practical aspects of incorporating this new law into your existing hiring practices.
Applying Government Code Section 12952
Q: Since the new law makes it an unlawful employment practice for an employer to inquire about or consider an applicant’s criminal history before extending a conditional offer of employment, should the employer make the conditional offer of employment in writing?
A: Yes. Although not required, we recommend that the conditional offer of employment be in writing to prevent any misunderstanding between the applicant and employer.
Q: Can the conditional offer be conditioned on the applicant passing both a criminal conviction background check and a medical exam.
A: Yes. The written conditional offer should clearly state that it is contingent on the employee passing both the criminal background check and the medical exam.
Q: Which goes first, the medical exam or the criminal background check?
A: We recommend that you proceed with the criminal background check before conducting the medical exam.
The Americans with Disabilities Act (ADA) and FEHA contain regulations on when an employer may request medical information in the application process. Under both, the employer cannot request such information until after it extends a conditional offer of employment. In order for an employer to issue what is considered a real offer of employment under the ADA and FEHA, an employer must have either completed all non-medical components of its application process or be able to demonstrate that it could not reasonably have done so before issuing the offer. With the new Ban-the- Box law, California employers cannot reasonably conduct a criminal background check before extending a conditional offer. Additionally, several courts have held that a medical examination must be the last step in the process after a conditional offer of employment. (See e.g. Leonel v. American Airlines, Inc. (9th Cir. 2005) 400 F.3d 702.) Therefore, while an employer must now issue a conditional offer of employment before inquiring into an applicant’s criminal history, any required pre-employment medical examination should occur only after completing both the criminal history inquiry and any other background check contingencies that comprise the hiring process.
Q: Should an employer wait until after a conditional offer is made to conduct a motor vehicle history report with the DMV since it may reveal DUI convictions?
A: The best practice is to wait to conduct the motor vehicle check until after the conditional offer is made because it may reveal conviction history information. It is permissible to ask if an applicant has a valid driver’s license or information about the applicant’s collision history as these questions alone do not solicit criminal conviction information.
Because Section 12952 is part of FEHA, an aggrieved applicant may sue for the full range of FEHA damages available, including compensatory damages, attorney’s fees, and costs. Thus, to limit your potential exposure, we recommend that you also take the following steps:
- Make sure hiring staff are fully informed on when criminal background information is to be considered in the hiring process.
- Review and update your employment applications.
- Review and update background check procedures.
A California Court of Appeal recently issued a decision with implications that can affect all public employers in California and in contrast to a decision by another Court of Appeal just over a year ago. The decision issued in Alameda County Deputy Sheriff’s Assn. v. Alameda County Employees’ Retirement Assn. on January 8, 2018 addressed the issue of whether pension systems governed by the County Employees Retirement Law of 1937 (CERL) can apply changes to compensation earnable under the Public Employee Pension Reform Act of 2013 (PEPRA) for employees hired before PEPRA’s January 1, 2013 effective date. In addition, the Court addressed the Constitutional protections afforded, and the limits of, “vested rights” to immutable pension benefits. CERL and CalPERS employers take notice.
Public Employee Pension Reform Act of 2013
Governor Jerry Brown signed PEPRA (AB 197) into law to address the significant, statewide underfunding of public pension systems. PEPRA, among other things, amended the pension systems governed by CERL. Most significantly, PEPRA added express exclusions to CERL’s long-standing definition of compensation earnable, codified at Government Code section 31461, for those hired prior to PEPRA’s effective date (“Legacy Members”).
In response, Alameda County Employees’ Retirement Association (ACERA), Contra Costa Employees’ Retirement Association (CCCERA), and Merced County Employees’ Retirement Association (MCERA) (collectively, “Boards”) excluded certain previously included pay items from compensation earnable for Legacy Members in compliance with PEPRA.
Trial Court Decision in Alameda
Subsequently, labor organizations representing employees of CERL systems in Alameda, Contra Costa, and Merced Counties each filed writs of mandate challenging the constitutionality of the Boards’ exclusion of previously included pay items from compensation earnable. The petitioners alleged that the Legacy Members had a “vested right” to pension benefits under pre-PEPRA law and the Board violated the state and federal contract clauses in the respective Constitutions by altering their vested rights. The three lawsuits were consolidated into one action. In separate judgments for each of the three Boards, the trial court denied the petitioners’ request to declare the new section 31461 an unconstitutional impairment of the Legacy Members’ vested rights except to the extent the revised statute excluded the value of certain on-call payments from the Legacy Members’ compensation earnable. In addition, the trial court made findings on the inclusion of certain compensation items in the compensation earnable of Legacy Members. Numerous parties on both sides filed Notices of Appeal.
First District Court of Appeal Review
The First District Court of Appeal granted review in one consolidated action. The Court addressed (1) whether retirement boards have discretion to include pay items in compensation earnable not listed in CERL’s statutory categories; (2) whether the PEPRA amendment to Government Code section 31461 modified CERL or merely clarified existing law; (3) whether the Boards are bound by a Settlement Agreement to include terminal pay in compensation earnable for Legacy Members; and (4) whether PEPRA unconstitutionally impaired Legacy Members vested pension rights.
A CERL Retirement Board’s Discretion on Compensation Earnable
First, the Court held that retirement boards do not possess discretion to include additional pay items in compensation earnable beyond those includable under the CERL. An item of compensation is not includable in a member’s pensionable compensation if it fails to fall within one of CERL’s statutory compensation categories.
Interpretation of PERPA’s Statutory Changes
Second, the Court made several determinations regarding the interpretation of the express exclusions in PEPRA’s amendment to section 31461 and addressed whether those exclusions modified CERL or merely clarified existing law. The Court found that PEPRA did not change existing law regarding in-service leave cash-outs and that all leave cashed out during the final compensation period must be included in compensation earnable, regardless of when the underlying leave accrued. In addition, the Court held that PEPRA’s express exclusion of terminal pay from compensation earnable was not a change in existing CERL law because CERL has always required that final compensation be payable during the final compensation period to be included in compensation earnable. Furthermore, the Court found that PEPRA’s express exclusion of on-call and standby pay from compensation earnable was a change in existing law because both were includable in pensionable compensation before PEPRA. Finally, the Court held that PEPRA’s express exclusion from compensation earnable of “any compensation determined by the board to have been paid to enhance a member’s retirement benefit” is a change to prior CERL law because the provision potentially excludes numerous types of pay. Ultimately, the Court determined that PEPRA made some substantive changes to CERL with respect to on-call and standby pay and pension enhancements.
Revisiting the Impact of the Ventura Settlements
Third, the Court of Appeals addressed whether to require the Boards to continue including terminal pay in compensation earnable for Legacy Members pursuant to a Settlement Agreement executed after the 1997 decision in Ventura County Deputy Sheriffs’ Assn. v. Board of Retirement. The Court of Appeals found that the Boards made precise and explicit promises to these Legacy Members regarding what their CERL pension included and the Legacy Members organized their work lives in reliance on those promises. Accordingly, the Court of Appeals held that the Boards are bound by the Post-Ventura Settlement Agreements and all Legacy Members are entitled to include terminal pay in compensation earnable to the limited extent such pay was designated as pensionable by their relevant Post-Ventura Settlement Agreement.
Vested Right to Immutable Pension Benefits
Finally, having determined that PEPRA modified CERL with respect to on-call and standby pay and pension enhancements, the Court addressed whether these modifications unconstitutionally impaired the vested pension rights of Legacy Members. In doing so, the Court analyzed the First District Court of Appeals decision in Marin Assn. of Public Employees v. Marin County Employees’ Retirement Assn. issued in 2016 and which is now pending before the state Supreme Court. Specifically, the Marin decision held that public pension system members are not entitled to an immutable, unchanging pension benefit for the entirety of employment, but are entitled only to a “reasonable” pension. The Marin court further held that detrimental pension modifications need not always be accompanied by comparable new advantages. The Marin court focused heavily on the “dire financial predictions necessitating urgent and fundamental changes to improve the solvency of various pension systems” in concluding that PEPRA’s modifications to the CERL definition of compensation earnable for Legacy Members was “reasonable” and therefore, did not impair Constitutionally protected vested rights.
In analyzing various state Supreme Court decisions, the Alameda Court declined to follow Marin, concluding that the Court could not engage in the individualized balancing test mandated by the Supreme Court’s vested rights jurisprudence using the Marin decision. Ultimately, the Alameda Court found that applying detrimental changes to the pension benefits of Legacy Members is only justified by compelling evidence that the required changes manifest a material relation to the successful operation of the pension system. The Court determined that this analysis must be done on an individualized basis. Therefore, the Court remanded the lawsuits back to the trial court to undertake that individualized analysis for each of the three retirement systems.
The Future of Alameda, Marin & Vested Rights Jurisprudence
The state Supreme Court granted review of the Marin case on November 22, 2016, but put the case in abeyance until the First District Court of Appeals reached a decision in the Alameda County case, presumably in order to consolidate both cases should the Supreme Court grant review of the Alameda decision. However, given the remand to the trial court, it is unclear if, procedurally, the state Supreme Court could potentially review the Alameda decision, in conjunction with its review of the Marin decision, in the near future. Suffice it to say, we now have two divergent decisions on the fundamental notion of a vested right to immutable pension benefits in the aftermath of PEPRA.
In the meantime, all eyes are currently turned toward the pending state Supreme Court case in Cal Fire Local 2881 v. California Public Employees’ Retirement System where the Court will again consider the so-called “California Rule” which is, generally, the notion that a public employee is vested in the pension benefit promised at the start of employment such that those benefits cannot be modified even for prospective service. That case concerns PEPRA’s termination of the ability of CalPERS members to purchase unqualified service credit (i.e., “airtime”), but the decision may very well have implications for all pension benefits in general, including those at stake in Marin and Alameda
Accordingly, all public employers should be aware of the ever-changing analysis on this issue.
1. Written Statement to Covered Individuals Now Due March 2, 2018 for the 2017 Calendar Year Reporting Period
The Internal Revenue Service (IRS) has issued an automatic, 30-day extension for applicable large employers to furnish IRS Forms 1095-B and 1095-C to covered individuals. For the 2017 reporting period, these forms are now due to individuals on March 2, 2018, rather than January 31, 2018.
Internal Revenue Service (IRS) regulations require applicable large employers (those with 50 or more full-time equivalent employees ) to file information returns and a transmittal to the IRS (Forms 1094-C and 1095-C) reporting the health coverage the applicable large employer offered to its ACA full-time employees each calendar year. IRS regulations also require employers who offer self-insured health plans (plans where the employer pays claims, not just premiums) to file information returns and a transmittal to the IRS (Forms 1094-B and 1095-B) reporting the covered participants. The required forms (1094-B or 1094-C, and 1095-B or 1095-C) are due to the IRS on or before February 28th (or March 31st if filing electronically) each year. The IRS has not yet extended this deadline.
In connection with these filings, the IRS requires the employer filing the returns to furnish the responsible individual identified on the return with a written statement regarding coverage each calendar year (Form 1095-B or 1095-C). This can be a copy of the Forms the employer intends to file with the IRS. These written statements (or copies of the Forms to be filed) must be furnished to covered individuals on or before January 31st of each year following the calendar year to which the statement relates.
However, as in prior years, the IRS has extended the due date for furnishing these written statements (or copies of IRS Forms 1095-B and C) to covered individuals by 30 days. Thus, for the calendar year ending December 31, 2017, employers that are required to furnish individuals with a Form 1095 will have until March 2, 2018 to do so.
Notably, this extension eliminates an employer’s ability to request a 30-day extension for furnishing information to individuals. Thus, the new deadline is inflexible. In addition, the extension does NOT apply to those forms an employer is required to file with the IRS. This means that Form 1094 (B or C) and Form 1095 (B or C) will still be due to the IRS on or before February 28th (or March 31st if filing electronically), unless the employer applies for an extension of time under normal extension rules.
2. Good Faith Penalty Relief Extended for Incorrect or Incomplete Information Returns and Statements to Covered Individual
As in prior years, the IRS has also granted short-term penalty relief for those reporting entities that can demonstrate they made good-faith efforts to comply with information-reporting requirements, both to individuals and for filing with the IRS, reported on a return or statement. Importantly, this relief applies only to those entities that file or provide individuals with incorrect or incomplete information reports. It does not apply to those entities that do not make a good-faith effort to comply with IRS reporting regulations, or to those that fail to timely file or furnish a statement or return altogether. To determine “good faith,” the IRS will consider what steps the employer took to reasonably prepare for reporting and furnishing information, and what steps the employer is taking to ensure compliance with reporting requirements for 2018.
For further detail regarding the extension of relief provided by the IRS, see IRS Notice 2018-06.
In the corporate world, the practice of giving annual performance reviews to employees has come under attack in recent years. Leading business magazines and newspapers have printed articles advocating for the elimination of performance evaluations. There are even books in the marketplace that teach companies how to get rid of performance reviews. Among the reasons for eliminating annual evaluations is that the process is a waste of time, bad for morale, and unnecessarily creates conflicts between employees and supervisors. So, if private employers are moving towards eliminating annual evaluations, should public employers also do away with them?
The short answer is “no.” The primary reason for this is the difference between private and public employment. Generally, private sector employees are “at-will” meaning they can be terminated at any time without notice and for any non-discriminatory reason or no reason at all. By contrast, public employees usually have a vested right to continued employment and this property right cannot be taken away without first being afforded certain procedural safeguards pre- and post-discipline. These due process protections place the burden on public employers to show there are factual grounds for the discipline and that the level of discipline is appropriate. One way public employers can satisfy this burden is by using performance evaluations. Therefore, it is critical that public employers continue the practice of giving annual performance reviews.
Now, in fairness to proponents of getting rid of annual evaluations, those proponents do not support giving no feedback at all on employee performance. They also recognize the employer’s need to motivate, direct and improve employee performance. Rather, they are encouraging employers to replace the annual review with “check-in” meetings that occur throughout the year where supervisors can regularly discuss the employees’ performance and what is needed from them. We agree with this approach and train employers that regular “check-ins” should be part of an on-going process of assessing employee performance throughout the entire year that culminates in the employee’s annual performance evaluation. In other words, the annual evaluation is the final chapter in a year-long review process.
Another fair criticism of annual evaluations from critics is that they are ineffective because they are usually poorly written. Some supervisors view annual performance evaluations with dread because they are time consuming or because the supervisors are uncomfortable with having to honestly assess employees. Consequently, it is no surprise that written evaluations can fall short. The following are a few tips for giving effective annual evaluations:
Observe Employees’ Performance During the Entire Evaluation Period
The evaluation should reflect performance over the entire evaluation period, not just the few weeks or months before the evaluation is given to the employee. This makes it important for supervisors to observe and assess the employee’s performance throughout the year and keep a record of it. As these observations are being made, supervisors should also make it a point to address performance issues with the employee as they arise. Not only is it important to raise performance deficiencies with the employee as they come up, but supervisors should also make a point of praising employees when they do a good job.
Use S-P-I-R-I-T When Writing the Evaluation
The comments in the evaluation should be written with S-P-I-R-I-T. This means that the comments should be Specific, have Purpose, and identify specific performance Incidents that the employee did well and where improvement is needed. Where misconduct has occurred, the comments should also reflect workplace Rules that were violated and the Impact the performance problems have caused to the employer, other employees and/or members of the public. Finally, the Timelines for giving evaluations in your agency’s rules should be followed.
Make Time to Meet with the Employee to Go Over the Evaluation
After the evaluation is written, supervisors should meet with each employee to discuss the evaluation. Too often, employees complain that their supervisors just give them their evaluations to review on their own. This is a poor practice. Successful personnel management requires effective communication. Therefore, supervisors should make time to meet with employees, provide honest and constructive feedback, recognize accomplishments, and develop a plan for improvement, if necessary.
For more tips on writing performance evaluations see our workbook on Evaluation and Discipline.
Last year, California voters passed Proposition 64 (“Prop 64”), making the recreational use and sale of marijuana generally permissible under California law. Specifically, Prop 64 legalizes the use of marijuana for non-medical reasons by adults age 21 and over. While Prop 64 made the use of recreational marijuana legal under state law as of November 9, 2016, it only directs the State of California to begin issuing business licenses for the sale of recreational marijuana beginning January 1, 2018. Federal law still prohibits possession of marijuana, whether for recreational or medicinal purposes.
On January 1, 2018, the first State-issued licenses will take effect for sales to recreational users. However, the new law provides cities and counties the authority to regulate recreational marijuana businesses, including by banning such businesses in their jurisdictions altogether. Thus, the effectiveness of state licenses may vary from region to region within the state. Several major California cities, including Los Angeles, San Francisco, San Diego, Oakland, and San Jose have already approved regulations permitting sales within their jurisdictions. Other cities, including Riverside, Fresno, Bakersfield, Pasadena, and Anaheim have elected to prohibit recreational sales, either permanently or temporarily.
While cities and counties may regulate the sale of recreational marijuana, regulating its usage is within the State’s purview. This appears to means that a resident of a city that bans the sale of recreational marijuana may not be able to buy (or even grow) the product within his or her home city, but he or she will be able to buy the product elsewhere and consume it in a private home within that city’s boundaries (See Health & Safety Code sections 11362.1 and 11362.2(b)).
Given the ability of a private citizen, age 21 and older, to now legally use recreational marijuana throughout the State, Prop 64 raises many issues for employers that currently implement drug free work place policies and drug testing programs.
Does Prop 64 Change an Employer’s Ability to Regulate Marijuana Usage in the Workplace?
Proposition 64 does not change the status quo regarding the enforcement of drug free workplace policies and testing programs. In fact, the language in Prop 64 specifically provides that Prop 64’s amendments shall not
[B]e construed or interpreted to amend, repeal, affect, restrict, or preempt: . . . The rights and obligations of public and private employers to maintain a drug and alcohol free workplace or require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the workplace, or affect the ability of employers to have policies prohibiting the use of marijuana by employees and prospective employees, or prevent employers from complying with state or federal law.
This critical language was included in Prop 64 in order to ensure that employers are able to maintain or create their own policies regarding their employees’ marijuana use.
Therefore, even after Prop 64’s passage, all employers may still prohibit employees from possessing, using, or being under the influence of drugs, including marijuana, in the workplace, while on the employer’s premises; while operating employer-owned equipment; while driving employer-owned vehicles; when attending functions or events as a representative of the employer; or while in uniform.
Furthermore, “safety sensitive” employees can still be subject to random drug testing, and those testing requirements and potential consequences of positive testing remain unchanged. All other classes of employees continue to be subject to testing based on the “reasonable suspicion” standard, post-accident, or return to duty situations as addressed in many employer policies. The reasonable suspicion standard likewise applies to searches of an employee’s work area. What constitutes reasonable suspicion will depend in part on how that phrase is defined by an employer’s drug testing policy.
Employers should consider reviewing current personnel policies and MOUs to determine whether they need to be updated in order to explicitly state the employer’s expectations regarding the possession and use of marijuana in the workplace. Employers may also want to indicate in such policies that California law does not legalize recreational marijuana for individuals under the age of 21, public consumption of marijuana or driving while under the influence of marijuana.
Do Employers Now Have to Accommodate the Use of Marijuana for Medical Reasons?
Despite changes to state law, federal law remains unchanged. Marijuana is still considered a “Schedule I” drug under the federal Controlled Substances Act. This means that under federal law, including the Americans with Disabilities Act (“ADA”), employers are not required to accommodate “illegal” drug use, including marijuana usage.
While the status of an employer’s obligation to accommodate marijuana usage for medical reasons under state law also appears to remain unchanged following Prop 64’s passage, the controlling California case on this issue, Ross v. RagingWire Telecommunications, Inc., may be vulnerable now that California has legalized recreational marijuana.
In the Ross case, the California Supreme Court held that employers are not required to accommodate an employee’s use of marijuana, even if the marijuana was recommended by a health care professional. The Court noted that, although the Compassionate Use Act of 1996 prohibits people who use marijuana under the care of a physician from being charged criminally, the Act does not grant marijuana the same status as a legal prescription drug. (Health & Safety Code section 11362.5.) Similarly, the Court reasoned that, since the California Fair Employment and Housing Act (“FEHA”) does not require employers to accommodate illegal drug use, the employer could lawfully terminate the employee for using medical marijuana. (Government Code section 12940 et seq.) The Court further stated that marijuana cannot be “completely legalize[d] for medical purposes” because it is illegal under federal law.
Though Ross is still good law even though Prop 64 passed, based on the Court’s reasoning, it is possible that a court examining identical facts could come to a different conclusion based on California’s legalization of marijuana. On the other hand, because marijuana is still designated a Schedule I drug under the federal Controlled Substances Act, a court could point to the federal law and maintain that the applicability of the California Compassionate Use Act and the FEHA are limited
Employers will ultimately have to do a cost benefit analysis if the issue of accommodating an employee’s use of marijuana arises. Absent further guidance from the State or the courts, employers should not have to make such accommodations.
What About Conduct Outside of the Workplace?
The legalization of recreational marijuana under California law may pose potential enforcement challenges when implementing workplace drug policies and conducting drug tests on employees. For example, an employee may test positive for marijuana (i.e., the presence of “THC” in their system) based on off-duty consumption. That employee may argue that despite the test, he or she has compiled with the letter of the employer’s policy because the policy only bans use, possession or being under the influence of marijuana while on the employer’s property or while on duty. In fact, many factors impact whether someone tests positive for marijuana, including the person’s individual metabolism, frequency of use, amount of use, and type of test (urine, blood, hair) used. Many tests are unable to determine when a person consumed marijuana.
Employees generally have a constitutional right to privacy with respect to their off-duty conduct unless such conduct has a nexus to their employment. Whether a court will find a nexus to employment may depend on the particular position at issue. For example, peace officers are held to a higher off-duty standard of behavior than other types of classifications. Employees who come into regular contact with children are often also held to a higher standard.
Employers should review their drug free workplace policies to ensure that they clearly state that an employee may be disciplined for off-duty use under certain circumstances. Such a policy should indicate that off-duty drug use may be subject to discipline if such conduct can be reasonably said to affect an employee’s job duties. When disciplining an employee for such off-duty conduct, however, we recommend that employers discuss such discipline with legal counsel.
Where Do We Go From Here?
LCW will be tracking further guidance arising from Prop 64 and its implementing regulations over the coming year and will provide updates as needed.
If you have any questions about this issue, please contact our Los Angeles, San Francisco, Fresno, Sacramento, or San Diego office.
The CalPERS Board of Administration recently adopted the final regulations concerning the administration of pensionable compensation for “New Members” as defined under the Public Employees’ Pension Reform Act of 2013 (PEPRA).
Initially, employers should be familiar with the nomenclature that is used in reference to compensation that is reported to CalPERS. Compensation that may be reported to CalPERS is referred to as “compensation earnable” for Classic Members (i.e., members who are not New Members under PEPRA) and “pensionable compensation” for New Members. What is important to note is that there is no item of pensionable compensation for New Members that is not also compensation earnable for Classic Members. Rather, it is the converse. There are items of compensation earnable for Classic Members that are not considered Pensionable Compensation for New Members. We highlight those notable differences as they appear in the new CalPERS regulations.
First, uniform pay for Classic Members is compensation earnable. The amount reported must be the amount paid as a uniform allowance to employees or the cost paid by the employer for the uniform and any maintenance which should be stated in the applicable memorandum of understanding. CalPERS requires that uniform pay be reported each pay period as a fraction of the total annual cost per member, even where uniform allowance may only be paid to a member one-time a year. Uniform pay for New Members, however, is not pensionable compensation in any amount.
Second, and of no surprise, is that Employer-Paid Member Contributions (EPMC) is not pensionable compensation for New Members which makes sense given employers are prohibited from picking-up any amount of a New Member’s normal member contribution rate. EPMC is compensation earnable for Classic Members if the employer, by contract amendment with CalPERS, agrees EPMC will be special compensation.
Third, bonuses are not pensionable for New Members. Bonuses remain compensation earnable for Classic Members if it is for superior performance such as “annual performance bonus” and “merit pay” provided it is not paid in the final compensation period. A program must be in place to identify the performance goals and objectives. Similarly, “management incentive pay,” is compensation earnable for Classic Members, if it is in the form of additional time off or extra pay due to the unique nature of their job, but not for overtime duties. Classic members cannot have the option to take time off or receive extra pay for this item of special compensation. Management incentive pay is not pensionable compensation for New Members.
Fourth, “temporary upgrade pay” is not pensionable compensation for New Members while it remains compensation earnable for Classic Members if it is paid to employees who are required by their employer or governing board or body to work in an upgraded position/classification of limited duration. Interestingly, recent legislation attempts to prevent employers from temporarily placing employees in upgraded positions for more than 960 hours in a fiscal year, otherwise the employer faces triple monetary penalties to CalPERS. It comes as no surprise that this legislation was sponsored by labor unions and only for the purpose of preventing employers from leaving employees in out-of-class assignments rather than promoting the employee to the classification, even where there is no impact to the pension system. Employers can refer to our recent blog regarding new Government Code section 20480.
Finally, CalPERS indicates that overtime hours that are built into the normal work schedule of the employee will only be pensionable for New Members who are in the local fire or local police membership classifications if it is pursuant to an FLSA 7(k) work schedule. The FLSA 7(k) work schedule provides a higher threshold for overtime for fire or police personnel depending on the work period established by the employer. For Classic Members, the premium paid for FLSA overtime that is built into the normal regular schedule of the employee is considered compensation earnable, and is not limited to local fire or local police membership classifications. Not the case for non-safety New Members.
This may cause some consternation for non-safety employees who work 24/7 operations under which FLSA overtime is built into the normal working schedule for that class of employees, for example, dispatchers or nurses. The result is that in cases of employees in the same non-safety classification with FLSA built-in overtime as part of the normal full-time working hours, there will be an inequity between Classic Members and New Members.
CalPERS’ interpretation, however, is not far-fetched as the PEPRA provides that pensionable compensation does not include “compensation for overtime work, other than as defined in Section 207(k) of Title 29 of the United States Code” (i.e., the FLSA 7(k) schedule). Nonetheless, the PEPRA also states that pensionable compensation is defined, in part, as “the normal monthly rate of pay or base pay of the member paid in cash to similarly situated members of the same group or class of employment for services rendered on a full-time basis during normal working hours, pursuant to publicly available pay schedules.” Thus, for non-safety employees who receive built-in FLSA overtime premium pay as part of their normal full-time working, which is correspondingly reflected on a publicly available pay schedule, it would seem the overtime premium pay is pensionable compensation but for the exclusion listed above.
Employers should review their MOUs and personnel policies to ensure that provisions therein do not contradict the PERPA and CalPERS’ new regulations.
In the wake of recent attention to sexual harassment in the workplace, employers and members of the public are asking: what about all of those sexual harassment trainings we required? Are they helping? How do we know? And, if they’re not achieving our goals (public policy and agency-specific), what can we do better?
Just What Training is Legally Mandated?
As California public sector employers are well-aware, Assembly Bill 1825, adopted in 2004, began requiring California employers with 50 or more employees, as well as all state employers, employers that are political or civil subdivisions of the state, and city employers, to provide sexual harassment prevention training and education to all supervisory employees. In accordance with AB 1825’s basic requirements, employers are required to provide two hours of training to supervisory employees every two years (and within six months of becoming employed as a supervisor). The training must be “classroom” or other “effective interactive training and education,” and it must address information and practical guidance regarding federal and state law concerning the prohibition against and the prevention and correction of sexual harassment; the remedies available to victims of sexual harassment in employment; and practical examples to instruct supervisors in the prevention of harassment, discrimination, and retaliation.
In recent years, harassment prevention training requirements in the state of California have been expanded. In 2014, the AB 1825 training requirement was updated by AB 2053 to require education on the prevention of “abusive conduct” in the workplace – conduct that a reasonable person would find hostile or offensive, but not related to a person’s protected status (i.e. not necessarily related to a person’s sex or gender). Effective January 1, 2017, following the sexual harassment scandal involving the Mayor of San Diego, and other high-profile cases involving elected officials, the legislature adopted a new law (AB 1661), requiring sexual harassment prevention training and education for members of local legislative bodies and elected officials for local agencies – the training and education is required if any compensation, salary, or stipend is provided to any member of the legislative body or the elected official. Most recently, in October this year, Senate Bill 396 was passed, requiring the AB 1825 training to include a training component inclusive of harassment based on gender identity, gender expression, and sexual orientation. Notably, from its outset, AB 1825 set forth a “minimum threshold” for training requirements. Employers could, and still may, set a longer, more frequent, or more elaborate training and education program regarding workplace harassment or other forms of unlawful discrimination.
But Does it Work?
In June 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) published a report, the Study of Harassment in the Workplace, which addressed whether training is effective in preventing harassment. To assess whether training is effective, the EEOC analyzed numerous studies conducted by research institutions, social scientists, and employers. In a study of federal government employees, the EEOC learned that “participation in training was associated with an increased probability, particularly for men, of considering unwanted sexual gestures, remarks, touching, and pressure for dates to be a form of sexual harassment.” However, the EEOC also learned that while training’s have a positive impact on knowledge acquisition, they are less likely, on their own, to have a significant impact on changing attitudes, and can have the opposite effect. A common theme that developed in the EEOC’s research was that “effective training does not occur within a vacuum.”
As a result of its Study, the EEOC came to two conclusions: (1) empirical data to date does not permit the EEOC to make a declarative statement about whether training, standing alone, is or is not an effective tool in preventing harassment, but (2) empirical deficiencies aside, practical and anecdotal evidence from employers and trainers led the EEOC to conclude that training is an essential component of an anti-harassment effort. However, the EEOC notes, “to be effective in stopping harassment, such training cannot stand alone but rather must be part of a holistic effort undertaken by the employer to prevent harassment that includes elements of leadership and accountability.” (Emphasis added.)
Where Do We Go From Here?
Recent widely read news reports, targets of harassment speaking out, and perpetrators admitting to misconduct have demonstrated that sexual harassment cannot go unattended. There is something we can do about it!
Overwhelmingly, the EEOC recommends that workplace trainings address not only what the law requires, but also organizational culture. It suggests trainings that speak to workplace civility generally, and potentially, bystander intervention. Workplace civility training is aimed not only at eliminating unwelcome behavior based on characteristics protected under employment non-discrimination laws, but on promoting respect and civility in the workplace broadly. Civility training is focused on what employees and managers should do, rather than should not do, in the workplace. Bystander training is designed to create awareness, a sense of “collective responsibility,” and a sense of empowerment, and to provide intervention resources for those who are not comfortable (or safe) taking action in the moment. It has largely been used in addressing violence and in the education context by Department of Education guidance prompting students to intervene in preventing sexual assault. The EEOC opines that such training could also be effective in the workplace.
In addition to insuring effective training content and training modules, the EEOC notes that successful training requires:
- Support at the highest levels, demonstrating that leadership is serious about preventing harassment in the workplace;
- Repetition and reinforcement on a regular basis to demonstrate an employer’s commitment to training efforts; not just once a year, or once every other year, but at regularly scheduled events in which key information is reinforced;
- Qualified, live, and interactive trainers who are dynamic, engaging, and have full command of the subject matter; and
- Routine training evaluation to determine whether training changed employee behaviors or behaviors employees observe in the workplace.
Notably, the EEOC’s research was not limited to California, and many EEOC recommendations for a holistic training approach are incorporated into California’s legal training mandates, and Department of Fair Employment and Housing (“DFEH”) regulations and publications. For example, the DFEH Workplace Harassment Guide for Employers provides that an effective anti-harassment program (i.e. something more than just training) includes:
- Clear and easy to understand written policy, distributed to employees and discussed at meetings on a regular basis – e.g. every six months;
- Buy-in from the top! This means that management should be the role model for appropriate workplace behavior, understand policies, and walk the walk and talk the talk;
- Supervisor and management training required by law (AB 1825 training);
- Specialized training for complaint handlers;
- Policies and procedures for responding to and investigating complaints;
- Prompt, thorough, and fair investigations of complaints; and
- Prompt and fair remedial action.
With respect to training content, DFEH Regulations set forth three learning objectives: (1) assisting California employers in changing or modifying workplace behaviors that create or contribute to “sexual harassment”; (2) providing trainees with information related to the negative effects of abusive conduct in the workplace; and (3) developing, fostering, and encouraging a set of values in supervisory employees who complete mandated training that will assist them in preventing and effectively responding to incidents of sexual harassment, and implementing mechanisms to promptly address and correct wrongful behavior.
The DFEH also requires that trainers who provide legally mandated training be attorneys admitted for two or more years to the bar; human resources professionals or harassment prevention consultants with a minimum of two or more years of practical experience; or professors or instructors in law schools, colleges, or universities who have a post-graduate degree or California teaching credential with either twenty instruction hours, or two or more years of law school, college, or university teaching experience regarding employment law under the FEHA and/or Title VII of the Civil Rights Act. It is important for trainers to have a clear understanding of legal requirements, and DFEH training regulations, so that training content also complies with the specified, required elements set forth in California.
While an employer can rely on the law to instruct its actions; at the end of the day, it is not just what your agency “says,” but what it “does” that will set the appropriate tone and emphasis on preventing workplace harassment, and promoting workplace civility.
As many of our readers are already aware, LCW frequently provides trainings with highly experienced trainers in the area of preventing workplace harassment, discrimination, retaliation, and abusive conduct. We look forward to bringing you updated training materials and presentations in 2018.