California Public Agency Labor & Employment Blog

California Public Agency Labor & Employment Blog

Useful information for navigating legal challenges

Tattoos. Piercings. The Workplace. Like it or Not, the Millennials are the Future Workforce.

By Stefanie K. Vaudreuil on Posted in Employment, Workplace Policies

This post was authored by Stefanie K. Vaudreuil.

Keeping track of monikers for the generations since World War II can be puzzling.  You have Baby Boomers, Generation X, and Millennials, but the Millennials are also known as Generation Y.  Just who are these Millennials?  They were born in the 80s—enough said.  The Millennials have been creating some interesting challenges for the Baby Boomers and Gen Xers in the workplace, namely due to the Millennials’ penchant for tattoos and piercings.  According to the Pew Research Center, forty percent of Millennials have at least one tattoo and usually more than one.  Tattoos are no longer taboo.  In fact, the number of tattoo artists increased in the United States from 500 in 1960 to more than 10,000 in 1995.

With forty percent of the current and upcoming workforce having one or more tattoos, it is becoming increasingly difficult for employers to take a wholesale anti-tattoo position.  Since the Baby Boomers and Gen Xers are still greatly responsible for hiring and promoting employees, they have no choice but to adapt and change their perceptions of tattoos in the workplace.  In a Careerbuilder.com survey, thirty-one percent of the employers responded that they would be less likely to promote an employee with a visible tattoo and thirty-seven percent said they were less likely to promote an employee with piercings.  In that particular study, these two categories represent the highest percentage reasons not to promote an employee.  How long, though, can these attitudes persist when the workforce is increasingly filled with Millennials?  (And as the cases discussed below indicate, the issue is important for Human Resources because in many circumstances, treating employees differently because of their tattoos can be illegal.)

Some, but not all, employers have tattoo policies, which usually do not completely forbid tattoos but require that visible tattoos are covered at work.  Is this a practical approach for Millennial employees?  Probably not.  Millennials are far more likely not only to have visible tattoos but also a greater number of tattoos than previous generations.  Unfortunately for the Millennials, the legal and practical realities have not yet met to form a solid agreement.  Legally, in California tattoos are generally considered protected speech subject to the First Amendment; yet, it is still for the most part lawful for employers, including public employers, to have reasonable policies regulating tattoos in the workplace.  What those policies look like and whether they are Millennial-friendly is an unpredictable variable.

Some employers attempt to create a balance between allowing visible tattoos while also restricting them.  Whether this is a reasonable solution remains to be seen.  In 2012, a candidate for Liquor Enforcement Officer with the Pennsylvania State Police (PSP) was rejected for the position due to a visible tattoo.  The PSP’s policy was that visible tattoos were reviewed by a committee, which determined whether a candidate’s tattoo had to be removed or covered.  In this case, Scavone v. Pennsylvania State Police, the PSP informed the candidate one of his tattoos had to be removed to qualify for the position.  The candidate refused and was not hired.  He then filed a lawsuit in federal court, alleging claims for violation of due process and equal protection.  The Third Circuit Court of Appeals, in an unpublished decision, rejected his claims, noting that it is not a fundamental constitutional right to have a tattoo.  The Court further held that his “class of one” theory (he was treated differently than other similarly situated individuals without a rational basis) failed because it is not applicable in the public employment context.

What about the employee who asserts his tattoos are associated with his religion?  “Don’t tread on me” says the employee who displays visible tattoos depicting readily identifiable Ku Klux Klan symbols.  The court in Swartzentruber v. Gunite Corp.  dealt with this very issue.  When Swartzentruber’s co-workers complained about his tattoo of a hooded figure standing in front of a burning cross, his employer required him to cover it but he neglected to follow those instructions, which led to further complaints.  Eventually, he was monitored by supervisors to keep the tattoo covered at work, and this conduct by his employer led him to file a religious discrimination lawsuit.

Without making a specific finding the tattoo was an actual religious symbol entitled to protection, the court determined “Gunite accommodated his tattoo depiction of his religious belief that many would view as a racist and violent symbol by allowing him to work with the tattoo covered” and the law requires nothing more.

Regulating tattoos is now and will continue to be a particular challenge for employers.  Some things to keep in mind when creating and enforcing policies are that employers still have a right to generally regulate employee appearance at work and make employment decisions based upon certain aspects of appearance.  For example, in Riggs v. City of Fort Worth, the court agreed with the police chief’s decision that an officer’s tattoos created an unprofessional appearance and that this adequately supported his being removed from a bike patrol assignment.

As always, common sense should prevail when making decisions about employment policies and actions concerning tattoos and piercings.  Millennials and their tattoos are here to stay—at least until the next generation takes over.

Challenges Involved in Paying Non-Exempt Employees for Training and Travel Time: An Example

By Lisa S. Charbonneau on Posted in FLSA, Wage and Hour

This post was authored by Lisa S. Charbonneau.

Many employers struggle with properly paying non-exempt employees who attend courses, conferences, seminars, meetings, and other trainings. In the absence of labor agreement provisions or other agency rules or policies governing this issue, public agency employers must follow the rules of the Fair Labor Standards Act (FLSA) when evaluating whether an employee is entitled to compensation for training time.

Under the FLSA, training time is not compensable work time if: (1) the training takes place outside of the employee’s regular working hours, (2) attendance is voluntary, (3) the training program is not directly related to the employee’s job, and (4) the employee performs no productive work during the training.  Click here to view the Department of Labor (DOL) regulation setting forth these rules.

What does this look like in real life? Let’s say a Detective who works Monday through Friday, 9 am – 5 pm, was permitted to attend a weekend intensive seminar on investigation skills.  She performed no productive work for her Department at the training.  Is she entitled to compensation for the time she spent in the training intensive?  Probably yes.  Even though the training was outside her regular work hours, she performed no productive work, and her attendance was voluntary, the training program was directly related to the Detective’s job and is therefore compensable hours worked.

In a change of facts, what if the detective’s Department did not approve her attendance at the training due to budget concerns and the Detective decided to attend the training on her own initiative. Would she still be entitled to compensation for the time she spent in the training? Probably not.  Where an employee attends an outside training while off duty on his or her own initiative, the time is not considered compensable hours worked – even if the training is related to his or her job.

Practice Tip: Be wary of approving attendance at trainings that occur outside of an employee’s regular work hours.

What about the time the Detective spent travelling to the training? Assuming the training time was compensable, was her travel time compensable? It depends – on a number of factors.  Importantly, the law governing this issue differs as between charter cities and counties on the one hand (which only need to follow the FLSA) and other public agency employers (which must also follow State law).  If the Detective works for a charter city, the FLSA applies and generally speaking she would be entitled to compensation for travel time that occurred during her regular work hours only. That means the time she spent driving herself to the training between 9:00 am and 5:00 pm – even though it is her day off – will be compensable hours worked.  (There are certain exceptions to this general rule, such as when an employee is a passenger and/or public transportation has been offered.  Click here to view the DOL regulations setting for these rules.)  If the Detective works for a general law city, however, California State law applies and she will likely be entitled to compensation for all time spent travelling.

The rules and legal tests governing the compensability of training time and travel time are complex and applying them to real life scenarios requires fact-specific analysis. Public agencies are well advised to consult legal counsel in making such determinations.

California Strengthens Breastfeeding Protections in the Workplace

By Megan Lewis on Posted in Workplace Policies

This post was authored by Megan Lewis.

California law has long-surpassed federal law in the area of lactation accommodation in the workplace. Senate Bill 937 (“SB 937”), if it is approved by Governor Brown, would go even further to protect the rights of employees who need to express breastmilk at work.  This new legislation would also create new obligations for California employers, including a requirement that employers implement a lactation accommodation policy that meets certain specified criteria.  (San Francisco enacted an ordinance with similar provisions in June 2017, which became effective on January 1, 2018.)

SB 937 has been working its way through the California Legislature since January and passed both houses as of August 29, 2018. (Note that a similar, but less far-reaching bill – Assembly Bill 1976 – has also passed in the Legislature and is awaiting a decision from Governor Brown.)  SB 937 would amend three sections of the California Labor Code that address lactation accommodation (sections 1030, 1031, and 1033), and also add two new sections (sections 1034 and 1035).  The new requirements, which are summarized below, would apply to all California employers, including the state and any political subdivisions.

Amended Labor Code section 1031 would require employers to provide employees who need to express milk with a space in close proximity to the employee’s work area that is shielded from view and free from intrusion while the employee is lactating. The lactation space “shall not be a bathroom” and must:

  • Be safe, clean, and free of toxic and hazardous materials;
  • Contain a surface where the employee can place a breast pump and personal items;
  • Contain a place to sit; and
  • Provide access to electricity or alternative devices needed to operate an electric or battery-powered breast pump.

The employer must also provide access to a sink with running water and a refrigerator (or other cooling device) suitable for storing milk in close proximity to the employee’s workspace.

Employers with fewer than 50 employees would be able obtain an exemption from any requirement of Section 1031 if the employer was able to demonstrate that the requirement would impose an undue hardship when considered in relation to the size, nature, or structure of the employer’s business.

In addition to providing enhanced rights for employees, the new legislation would also create heightened accountability for employers. Amended Labor Code section 1033 would mandate that a denial of reasonable break time or adequate space to express milk will now be treated as a failure to provide a rest period pursuant to Labor Code section 226.7.  Employers would also be explicitly prohibited from discriminating or retaliating against an employee for exercising or attempting to exercise her rights under these provisions.

New Labor Code section 1034 would require employers to develop and implement a policy describing an employee’s right to a lactation accommodation, how to request an accommodation, the employer’s obligation to respond to a request for an accommodation, and the employee’s right to file a complaint with the Labor Commissioner. Employers would also be required to maintain records of requests for lactation accommodation for three years.

Finally, new Labor Code section 1035 would require the Division of Labor Standards Enforcement to create a model lactation accommodation request form and to make it available for download from its website.

This legislation would create new rights for employees and corresponding responsibilities and obligations for employers. If the Governor signs the bill into law, employers are encouraged to consult with legal counsel to determine whether they need to take any steps to ensure compliance.  LCW will continue tracking this bill and, if it is signed by Governor Brown, we will include it in our annual Legislative Roundup of new bills signed into law, which will be available later this Fall.

**Blog updated 9/5/2018 at 4:00 p.m. PST**

Allegations of Sexual Misconduct, Student Discipline on Campus, and Due Process: Keeping Up with Rapidly Evolving Interpretations of State and Federal Laws

By Alysha Stein-Manes on Posted in Education

This blog was authored by Alysha Stein-Manes.

The manner in which institutions of higher education must address sexual assault in the educational context continues to evolve as both the federal government and courts weigh in on what procedures public and private colleges and universities must follow in order to comply with both Title IX of the Educational Amendments of 1972 and due process requirements under state and federal laws. Title IX of the Education Amendments Act of 1972 is a federal civil rights law that requires educational institutions to maintain policies, practices, and programs that do not discriminate against anyone “on the basis of sex.”  Title IX applies to all educational institutions, both public and private, that receive federal funds. Title IX and its implementing regulations set out certain requirements regarding investigations and hearing procedures. State laws governing the due process rights of individuals are likewise applicable to discipline in the public educational context.

Last year, we reported that the Office for Civil Rights (OCR) at the United States Department of Education (DOE), which is charged with the responsibility to enforce Title IX and its implementing regulations, rolled back a series of Title IX enforcement guidelines issued by the Obama Administration. In rescinding prior guidance, OCR, under current Education Secretary Betsy DeVos, criticized prior guidance and also many institutions’ definitions of assault and harassment, and noted that certain policies may also infringe on the individuals’ free speech and due process rights.

Secretary DeVos announced that the DOE would launch a public comment period to inform the development of new federal regulations pertaining to campus sexual assault policies. While we had previously expected the DOE to release its proposed regulations for notice and comment in April 2018, it has yet to do so.

As institutions of higher education wait for additional guidance from the DOE, courts continue to weigh in on obligations conferred on public and private educational institutions in regard to the rights of both the complainant and accused.

This month, a California Court of Appeal published a significant decision, John Doe v. Claremont McKenna College, addressing student discipline arising from an allegation of sexual assault.

John Doe v. Claremont McKenna College

While a freshman at Claremont McKenna College, John Doe met Jane Roe, a freshman at a neighboring school. On the night of a party, John and Jane engaged in sexual activity that Jane later alleged was a sexual assault in violation of the College’s sexual misconduct policy.

Claremont McKenna College (the “College”) initiated an investigation and hired a third-party investigator. The investigator interviewed Jane, John, and multiple other witnesses and reviewed other evidence. In accordance with the College’s policies, the investigator provided the complainant and accused with a preliminary investigative report before finalizing the report.  In response, John submitted a “Written Request for Additional Investigation Steps.” Specifically, he requested the investigator ask additional questions to witnesses already interviewed, including him and Jane, and interview new witnesses, explaining why each new witness was relevant to the investigation. John also sought additional documentary evidence, including relevant medical reports. While Jane submitted a response to the preliminary report, she did not request further investigation steps. The investigator interviewed one new witness and clarified a point raised by one of the original witnesses, but did not grant any of John’s other requests. Importantly, the investigator did not ask Jane any of the questions John submitted to the investigator. The investigator provided the parties with a final investigative report, and the College closed the investigation.

Pursuant to the College’s policies, the College then convened an “Investigations Findings and Review” Committee meeting. The Committee was comprised of the investigator and two members of the College’s faculty and staff. The Committee’s task was to evaluate the evidence and decide by majority vote, using the “preponderance-of-evidence” standard, whether John had violated the College’s sexual misconduct policy.

College policy allowed, but did not require, the parties to appear at the Committee meeting and make an oral statement to the Committee. Prior to the Committee meeting, both John and Jane submitted written statements. The procedures did not provide for any questioning of witnesses by the Committee or the parties. Jane did not appear at the meeting. Following the meeting, the Committee issued a written decision finding that John violated the College’s sexual misconduct policy.

John appealed the decision under the College’s procedures, but the College denied his appeal. The College suspended John for one year and implemented additional sanctions against him. Following the College’s denial of John’s appeal, John filed a petition for writ of administrative mandate (“writ”) asking a trial court to set aside the College’s sanctions against him. John filed his writ petition under California Code of Civil Procedure Section 1094.5(b), arguing that the trial court should set aside the sanctions because it did not provide him with a “fair trial.” The trial court denied his request, finding that John received a fair hearing. Additionally, the trial court held that John had no right to cross-examine Jane, he had an opportunity to review and respond to the evidence the Committee considered, and he failed to show prejudice from the investigator’s decision not to grant his requests for additional investigative steps. John appealed to a California Court of Appeal.

On appeal, John argued, among other things, he was denied a fair hearing because neither he nor the Committee was able to ask any questions of Jane who did not appear at the Committee meeting, and therefore, the Committee had no basis for evaluating her credibility.

The Court of Appeal agreed that Jane’s failure to appear at the hearing, either in person or via videoconference or other means, deprived John of a fair hearing where John faced potentially serious consequences and the case against him turned on the Committee finding Jane credible.

In its analysis, the Court examined recent court decisions addressing an educational institution’s obligations to provide students due process in disciplinary matters, including two California Cases, Doe v. Regents of University of California and Doe v. University of Southern California. These two cases also addressed fair hearings under Section 1094.5. The Court also analyzed a recent decision by the Sixth Circuit Court of Appeal analyzing whether an accused’s due process rights were violated in a sexual misconduct case. In that case, the Sixth Circuit found that under due process principles, accused students must have the right to cross-examine adverse witnesses in the most serious of cases.

After analyzing these cases, the Court synthesized a “set of core principles” applicable to cases in which the accused student faces a “severe penalty” and the school’s determination turns on the complaining witness’s credibility. First, the accused student is entitled to “a process by which the respondent may question, if even indirectly, the complainant.” Second, the complaining witness must be before the finder of fact either physically or through videoconference or similar technology so the finder of fact can assess the complaining witness’s credibility in responding to its own questions or those proposed by the accused student.

Applying these principles to the facts of the present case, the Court found that Jane’s allegations against John were still crucial to the Committee’s determination of misconduct even if the Committee relied on other evidence to “corroborate” those allegations. Although the investigator, who was on the Committee, had the opportunity to evaluate the credibility of both parties, the other Committee members did not. The Court noted that it was important for each member of the committee to assess Jane’s demeanor in responding to questions generated by the Committee or, indirectly, by John.

Ultimately, the Court held that a school’s obligation in a case turning on the complaining witness’s credibility is to “provide a means for the [fact finder] to evaluate an alleged victim’s credibility, not for the accused to physically confront his accuser.” The Court noted that schools can use many methods to meet this obligation, including granting the fact finder discretion to exclude or rephrase questions from the responding witness as appropriate, asking its own questions, physically separating the witnesses, or having a witness appear remotely via appropriate technology. The Court of Appeal reversed the trial court’s decision and instructed the trial court to review John’s request to review the College’s decision.

Schools’ Obligations after Doe v. Claremont McKenna

Currently, many California colleges and universities use an “investigator model” for disciplinary proceedings, in which there is no formal hearing prior to imposition of discipline. The Court of Appeal’s decision in Doe v. Claremont McKenna may therefore require some revisions to school conduct policies that use the investigator model for hearings but do not generally allow for cross-examination of the complainant.

Schools should work with legal counsel to review and potentially update their policies and procedures in accordance with this new decision. In doing so, schools may want to consider not only updating their policies and procedures to include a “hearing” component, but also seeking to define what constitutes a “severe penalty” and provide guidance to fact finders for assessing the credibility of witnesses. When updating such policies and procedures, schools must consider their obligations under Title IX, as well as other federal and state laws governing fair hearings.

California Legislature Aims to Clarify Salary History and Equal Pay Statutes

By Paul D. Knothe on Posted in Wage and Hour

This post was authored by Paul Knothe.

Assembly Bill 2282, signed into law by Governor Brown on July 18, 2018, attempts to clarify elements of California’s salary history and equal pay statutes, Labor Code sections 432.3 and 1197.5.  This legislation, which appears to help answer several common questions about these statutes, takes effect January 1, 2019.

Update to Salary History Statute

The salary history statute, Labor Code section 432.3, went into effect January 1, 2018.  In short, Labor Code section 432.3 prohibits employers from seeking an applicant’s salary history in previous private sector employment, requires an employer to provide an applicant with the pay scale for the position upon reasonable request, and restricts how employers can use properly obtained salary history information. For more detail, please refer to our previous blog post here.

AB 2822 answers four questions employers had about section 432.3:

  1. Does asking about an applicant’s salary expectations constitute “seeking” his or her salary history?

No. This was a commonly asked question by employers, concerned that asking an applicant for his or her salary expectations would be seen as a back-door way of “seeking” salary history.  The amended section 432.3, at subdivision (i), now reads “Nothing in this section shall prohibit an employer from asking an applicant about his or her salary expectation for the position being applied for.”

2. Is a current employee who applies for a different position with the employer an “applicant”?

No. New subdivision (k) defines “applicant” as an “individual who is seeking employment with the employer and is not currently employed with that employer in any capacity or position.”  This language avoids placing the employer in the untenable position of being required to avoid consideration of salary history information that is already in their possession.

3. What is a “pay scale”?

For purposes of the requirement that an applicant be provided with the pay scale for a position upon reasonable request, a revision to subdivision (c) defines “pay scale” as “a salary or hourly wage range.” Other pay, such as bonus pay, need not be included in the pay scale provided to an applicant.

4. What constitutes a “reasonable request” for a pay scale?

AB 2282 further revises subdivision (c) of Labor Code 432.3 to define a “reasonable request” for a pay scale as “a request made after an applicant has completed an initial interview with the employer.” Therefore, an employer is not required to comply with a request for a pay scale from an applicant who has not completed an interview.

Update to California Equal Pay Act

California’s Equal Pay Act, originally enacted in 1949, has been subject to several recent revisions. First, it was amended effective January 1, 2017, to prohibit employers from relying solely on an applicant’s previous salary in making pay determinations. It was amended again effective January 1, 2018, to specify that public sector employers are subject to the equal pay laws, with the exception of the Section 1199.5, which makes it a misdemeanor to fail to provide equal pay to employees of differing sexes, races, or ethnicities.

AB 2282 revises Section 1197.5 to further restrict consideration of an employee’s prior salary in making a pay determination. The statute currently provides that  “Prior salary shall not, by itself, justify any disparity in compensation”; when the revision goes into effect on January 1, 2019, the phrase “by itself” will be deleted.

However, AB 2822 also specifically permits an employer to make a compensation decision for one of its current employees based on that current employee’s existing salary, so long as any wage differential resulting from that compensation is justified by a seniority system, a merit system, a system that measures earning by quantitate or quality of production, or a bona fide factor other than race or ethnicity, such as education, training, or experience.

Employers who have questions about the effects of AB 2282 should seek advice from trusted employment counsel.

Free Speech Rights at Private Colleges and Universities

By David Urban on Posted in First Amendment

The post was authored by David Urban.

Controversies over free speech, disruptive protests, sharp debates among faculty, withdrawal of invitations to controversial speakers, and interference with rights of expression happen just as much at private as at public colleges and universities. The difference, however, is that the First Amendment to the U.S. Constitution binds only public actors.  At a public college or university, students and employees can assert First Amendment claims against the institution if it tries to discipline or censor them for speech activities.  Students and employees at a private institution, however, do not have that option, because the institution is not bound by the First Amendment.

This post addresses three ways in which, even without any First Amendment protections, those at private colleges and universities do have expression rights that are safeguarded by law. Private educators have to take these rights into consideration when making personnel, disciplinary, and other decisions that involve student and employee expression.

Faculty Academic Freedom Policies

First, faculty members often have academic freedom rights and other speech rights they can enforce against their employer as a matter of contract law. Many private colleges and universities have academic freedom policies that state in broad terms that members of the faculty have the right to engage in scholarship, teaching, and expression that can clash with the views of the institution.  If the institution disciplines a faculty member for such activities, the faculty member can bring a claim for breach of agreement if the policy is found to be contractual in nature and the discipline allegedly violates the policy provision.

The case McAdams v. Marquette University, decided last month by the Wisconsin Supreme Court, involves this type of contractual claim of academic freedom rights.  Professor McAdams, a tenured professor of philosophy, wrote on his personal blog criticizing a philosophy instructor at the university because she had not permitted a discussion in her classroom questioning gay rights.  McAdams’s post described that the instructor had written on the board among other issues “gay rights” and said “everybody agrees on this, and there is no need to discuss it.”  A student approached the instructor after class and said gay rights should be open to discussion.  The post described that the instructor responded, “you don’t have a right in this class to make homophobic comments,” and then invited the student to drop the class.  McAdams contended this was a stifling of free expression, and posted links to the instructor’s personal webpage, leading to harsh emails to the instructor from third parties.

The university placed McAdams on leave and then suspended him. McAdams asserted a breach of contract claim against the university, arguing that it had violated its own academic freedom policies.  The Wisconsin Supreme Court held that Professor McAdams should prevail on his claim and required that he be reinstated with back pay.

Student Statutory Speech Rights

In California, a 1992 statute known as the Leonard Law gives students at private colleges and universities free speech rights they can assert against their own institution. The statute was intended to transplant constitutional free speech rights students have off campus so that they apply in some way on campus.  It provides:

No private postsecondary educational institution shall make or enforce a rule subjecting a student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside the campus or facility of a private postsecondary institution, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution. (Cal. Educ. Code § 94367(a).)

There is some uncertainty how exactly the statute operates. The consensus is that students obtain some speech rights at a private college and university akin to those that students have at public colleges and universities, although by its terms, the Leonard Law protections are weaker than those provided by the First Amendment. For example, students cannot obtain damages for an institution’s violation of the Leonard Law.  Instead, declaratory and injunctive relief and attorney’s fees are available.  Also, to violate the law, an institution must “make or enforce a rule subjecting a student to disciplinary sanctions” and the rule must apply “solely” on the basis of protected expression.  (Cal. Educ. Code, § 94367(a).)

There is scant authority interpreting how the Leonard Law should work to confer student speech rights. In one case, Crosby v. South Orange County Community College District, the California Court of Appeal held that the statute (in particular, the component that applies to community colleges) did not turn the campus library into a public forum, and determined that the statute did not transplant every speech right a student might have outside campus in any context, for example in the home, onto the college campus.

Also, the courts have not determined whether the Leonard Law requires private institutions to open up speech areas on campus the same way public colleges and universities are expected to open up areas, although many private colleges and universities have reserved areas for free expression of students. (Also as a matter of contract law, policies at private institutions often confer speech rights on students that they can enforce under contract principles.)

Federal Protection for Employee Concerted Activity

Finally, employees of private institutions have substantial rights under labor relations laws, even if those employees have no union representing them. The federal National Labor Relations Act (“NLRA”) affords employees the right to engage in concerted activity for their mutual aid or protection, and this can include rights to picket and protest regarding wages, hours, and working conditions, rights to post about these matters on social media, and the right to criticize the institution and management.  The National Labor Relations Board, the federal agency responsible for enforcing the NLRA, has recently determined that graduate student assistants qualify as employees for protection under the act.  (The case is being reviewed by the federal courts and a decision will likely issue in the coming year.)

No doubt, vigorous protest and debate will continue in higher education in 2018 and 2019, and likely result in further developments in this area. We will report on important developments as they occur.

Is Your Agency Prepared to Manage Disaster Service Workers During a State of Emergency?

By Lisa S. Charbonneau on Posted in Employment

This post was authored by Lisa S. Charbonneau.

In July 2018 alone, California Governor Brown proclaimed a State of Emergency  for eight counties — Lake, Mendocino, Mariposa, Napa, Riverside, Santa Barbara, San Diego, Shasta, and Siskiyou Counties — due to fires, and proclaimed a State of Emergency in San Bernardino County due to damage caused by a monsoonal rainstorm event.  Under the California Emergency Services Act   (CESA), such proclamations have special significance for public agencies and their employees because a proclaimed State of Emergency may trigger the activation of the Disaster Service.

By law, all public employees in California are mandatory members of the Disaster Service by operation of oath / affirmation typically administered at the time of hire. Originally envisioned as a way to trigger a civilian defense force against military invasion or attack during World War II and the Cold War, today the Disaster Service is generally activated to combat States of Emergency due to natural disasters like wildfires, storms, and earthquakes when the damage and effects of these events are beyond the ability of any single local government to effectively address.

In a State of Emergency (or Local Emergency), local and distant law enforcement, medical personnel, and fire personnel will provide emergency response in the communities experiencing the effects of the disaster. Civilian public employees provide disaster-related duties that are not emergency response but are still critical in managing a disaster.  Typical civilian Disaster Service work duties include answering phones, staffing shelters, serving food, driving, managing volunteers, translating or interpreting, cleaning debris, sorting, packing and loading supplies, and otherwise providing victims with government services.  Once activated as Disaster Service Workers, public employees may be required to perform duties that differ greatly from their normal positions.  They may be assigned to perform Disaster Service work outside of their normal schedules and away from their usual job locations.

Unlike law enforcement/fire/medical personnel, most civilian public employees are not used to the extreme pressures and chaos of emergency response-related work. Thus overseeing civilian Disaster Service Workers poses its own challenges.  The best way to effectively marshal an agency’s resources in a State of Emergency is to pre-plan for the activation of civilian Disaster Service Workers and pre-train on logistics of Disaster Service Work as much as possible.  For example, employees should know where to call, what web site to check, or how otherwise to know where/when to report to work in a State of Emergency in their locality.  All employees should be regularly pre-trained on their responsibilities as Disaster Service Workers, and supervisors should receive additional pre-training on their specific roles, e.g., on assigning disaster-related tasks, special timekeeping requirements, and policies they must enforce.  Moreover, agencies should regularly audit Disaster Service records to ensure current contact information and up-to-date Disaster Service Worker classifications (the category of task a Disaster Worker is supposed to perform as stated on their Disaster Service registration).

Agencies should also develop payroll and personnel policies to govern work performed by employees in a State of Emergency and/or under Mutual Aid Agreements. For example, will MOU overtime provisions apply?  Who is permitted to approve overtime.  How will employees be compensated for time spent travelling to an out-of-area assignment?  Will employees be permitted to drive themselves to special disaster-related assignments?  Should non-exempt employees be allowed to volunteer to perform similar services as they are regularly employed to perform?  How will agencies monitor whether an employee’s Disaster Service assignment complies with any medical restrictions they may have?  What policies apply if an employee has been evacuated from their home or cannot show up to work due to responsibility for taking care of children or the elderly?  Are there special concerns when deploying disabled employees as Disaster Service Workers?  Who will determine what agency positions must be back-filled if the incumbent cannot fulfill his or her duties because he or she is serving as a Disaster Service Worker.

Finally, agencies should evaluate whether they have sufficient resources for employees to stay fed and hydrated, and to take breaks as needed, while working long and stressful hours as a Disaster Service Worker.

Voter – Backed Pension Reform Is Dealt a Blow by California Supreme Court

By Frances Rogers and Guest Author on Posted in Pension

This post was authored by Frances Rogers and Brett A. Overby.

Last week, the City of San Diego’s Proposition B, a 2012 voter-approved ballot measure designed to save the City’s weakening pension system, was dealt a potentially fatal blow by the California Supreme Court in Boling v. Public Employment Relations Board.  Although put to City voters through a citizen’s initiative, the Court nonetheless reasoned the City caused the changes to employee pension benefits and did so without first negotiating with labor unions.  The fate of those pension reforms that may help stabilize the City’s pension obligations now hang in the balance.

Proposition B

In reaching its decision, the Supreme Court relied heavily on the following facts. Under the City of San Diego’s “Strong Mayor” form of government, the mayor acts as the City’s chief executive officer whose responsibilities include recommending measures and ordinances to the City Council, and conducting labor negotiations with the City’s labor unions.  In 2010, San Diego’s former Mayor, Jerry Sanders, was outspoken on the need for pension reform due to mounting unfunded liabilities and the City’s budget strain. Reforming the City’s pension plan required an amendment to the City’s Charter which can only be accomplished through voter approval.  Proposals to amend the City’s Charter can be placed on a ballot before voters either by the City Council’s own motion or a citizens’ initiative whereby the proposed amendment is placed on the ballot by a petition of at least 15 percent of the City’s registered voters.  Mayor Sanders decided to champion a citizen’s initiative to bring his pension reform plan before the voters.

The citizen’s initiative sought to eliminate traditional defined benefit pensions for all newly-hired City employees, except for peace officers, and replace them with 401(k)-style defined contribution plans. Between November 2010 and March 2011, Mayor Sanders gave several press conferences in front of City Hall and issued numerous press releases containing the City seal publicizing his intent to craft language and gather signatures for a citizen’s ballot initiative to reform public pensions.  Mayor Sanders even declared his intent in his January 2011 State of the City address.  In March 2011, Mayor Sanders participated in a series of negotiations with his Chief of Staff, the City’s Chief Operating Officer, City Attorney, and a Councilmember to finalize the terms of the Initiative.

In April 2011, Mayor Sanders, two Councilmembers and the City Attorney held a press conference to announce the filing of a notice of intent to circulate the initiative. Thereafter, Mayor Sanders promoted the initiative and solicited signatures in interviews, in media statements, at speaking appearances, and in a “message from the mayor” circulated to the San Diego Regional Chamber of Commerce.

The Registrar of Voters certified that the initiative had over 15% of the verified voter approval required, entitling the initiate to a spot on the June 2012 election ballot. Mayor Sanders wrote an argument in favor of the initiative that appeared on the ballot.

Meanwhile, beginning in July 2011 the San Diego Municipal Employees Association and other employee organizations sought to negotiate the terms of any pension reform before putting it to voters. The unions argued the Mayor was acting in his official capacity to promote the initiative and, in doing so, made a policy determination related to mandatory subjects of bargaining.  City officials believed that a voter’s initiative that had a rightful place on the ballot upon meeting all legal and procedural requirements could not be subject to mandatory bargaining within the meaning of the Meyers-Milias Brown Act (“MMBA”).

The Ensuing Unfair Practice Charge

Prior to the election, Employee labor organizations filed unfair practice charges with the Public Employment Relations Board (“PERB”) over the City’s failure to meet and confer on the pension changes sought by the initiative. The unions also filed a petition for injunction in superior court which was denied.  In June 2012, Proposition B won approval by the City’s voters.

In December, 2015, after administrative hearing, PERB held the City violated the MMBA by placing the initiate on the ballot before exhausting the meet and confer process. PERB applied common law agency principles to find the Mayor was the City’s statutorily defined agent and had in effect ratified his policy decision.  PERB found the Mayor was not legally privileged as a private citizen to pursue changes in the terms and conditions of employment for the City’s represented employees.

The Court of Appeal’s Reversal of PERB’s Decision

The City challenged PERB’s decision by filing a petition for a writ of extraordinary relief in the Court of Appeal. The Court of Appeal annulled PERB’s decision and found that the City’s decision to place the citizens’ initiative measure on the ballot was purely ministerial because the City was required under its own Charter to do so upon the verified signatures of at least 15% of the City’s voters.  Thus, the City was not the actor and had no obligation to meet and confer.  The California Supreme Court granted review. 

The California Supreme Court Holds That the Obligation to Meet and Confer Should be Broadly Construed

The California Supreme Court initially held that when the facts are undisputed, PERB’s legal determinations are entitled to deferential review by the Court, even if conflicting inferences may be drawn from those undisputed facts.

The Court took guidance from its decision in People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591, which addressed whether the meet-and-confer provisions of Government Code section 3505 applied when a city council exercised its own constitutional power to propose charter amendments to its voters.  In Seal Beach, the Court found that a public agency must comply with section 3505, even when it decides to take a proposal directly to the voters that could alter mandatory subjects of bargaining.  In this case, the Court held that the pension benefits in San Diego citizen’s initiative affected the terms and conditions of employment and fell within the scope of the unions’ representation.

The Court observed that Mayor Sanders was the City’s Chief Executive Officer and designated bargaining agent and was empowered by the City Charter to make policy decisions affecting City employees and negotiate with the City’s unions. The Court held that the Mayor used his authority and position within the City to draft, promote, and advocate for the initiative and used City resources and employees to assist him.  The Court found that it would defeat the intent of the Legislature in enacting section 3505 to allow public officials to “purposefully evade the meet-and-confer requirements of the MMBA by officially sponsoring a citizens’ initiative.”

The Supreme Court reversed the Court of Appeal ‘s decision and has now remanded the case to back to the Court of Appeal to rule upon a judicial remedy for the unlawfully imposed changes to the City’s pension system. PERB has requested the courts invalidate the results of the voter’s initiative election and/or issue a “make-whole” remedy of lost compensation for City employees affected by the changes to the City’s pension system.

Department of Fair Employment and Housing Issues New Regulations on National Origin, Immigration-Related Practices, and Language and Height/Weight Restrictions

By Stefanie K. Vaudreuil on Posted in Discrimination

This post was authored by Stefanie K. Vaudreuil.

It’s time to check your policies. New DFEH regulations (California Code of Regulations, title 2, sections 11027.1 and 11028) went into effect on July 1, 2018 that provide definitions on “national origin” and “undocumented applicant or employee,” in addition to outlining specific employment practices regarding language restrictions and height/weight restrictions.

New “National Origin” Definitions

The new “national origin” definition includes the individual’s or ancestor’s actual or perceived (1) physical, cultural, or linguistic characteristics associated with a national origin group; (2) marriage to or association with persons of a national origin group; (3) tribal affiliation; (4) membership in or association with an organization identified with or seeking to promote the interests of a national origin group; (5) attendance or participation in schools, churches, temples, mosques, or other religious institutions generally used by persons of a national origin group; and (6) name that is associated with a national origin group.

What is a “national origin group”? The new definition provides that it includes, but is not limited to, “ethnic groups, geographic places of origin and countries that are not presently in existence.” The regulations also define an “undocumented applicant or employee” as someone who “lacks legal authorization under federal law to be present and/or work in the United States.”

New Protections for “Undocumented applicants or employees”

The DFEH has established new protections for “undocumented applicants or employees,” making it unlawful to discriminate against them because of their immigration status, “unless the employer has shown by clear and convincing evidence that it is required to do so in order to comply with federal immigration law.” The regulation provides an example of unlawful discrimination by stating that it is unlawful for an employer to discriminate against an applicant or employee because he or she “holds or presents a driver’s license issued under section 12801.9 of the Vehicle Code” (which establishes that undocumented immigrants may be eligible for a California driver’s license)

The new regulations also prohibit employers from inquiring into an applicant’s or employee’s immigration status unless it is necessary to comply with federal law. The DFEH does not identify or explain under what circumstances, however, federal law requires an employer to make such an inquiry.  Like California law, federal law prohibits pre-offer inquiries into an applicant’s immigration status.

New Regulations on Employer Implemented Language Restrictions

The new regulations include an explanation of what “language restrictions” may be implemented by employers. It has been unlawful for an employer to adopt or enforce an “English-only” rule, except in limited circumstances. The new regulation creates further protection. Employers will not meet the threshold of business necessity if the “language restriction merely promotes business convenience or is due to customer or co-worker preference.” Employers also may not discriminate based upon an applicant’s or employee’s accent, “unless the employer proves that the individual’s accent interferes materially with the applicant’s or employee’s ability to perform the job in question.”

It is unlawful for the employer to establish English-only rules for employees applicable to breaks, lunch, or unpaid employer-sponsored events.

New Regulations on Height/Weight Requirements

According to the DFEH, height and weight requirements may create a disparate impact on the basis of national origin. Therefore, if the applicant or employee is able to show a disparate impact, the employer must demonstrate the requirements are job-related and justified by business necessity. Note, however, that height and weight restrictions may still be unlawful if the business requirements “can be achieved effectively through less discriminatory means.”

Compliance is Key

Employers should review their Equal Employment Opportunity policies, as well as recruitment and retention procedures, to avoid potential noncompliance with or violation of the new regulations. Importantly, if the employer uses a third party to conduct recruitment, the employer should ensure that the third party also complies with the new regulations. Individuals responsible for recruitment and hiring should be trained in the application of these new regulations.

Deadline For Reporting Out-of-Class Appointments to CalPERS Is Fast Approaching: Are You Ready?

By Stephanie Lowe on Posted in Retirement

The post was authored by Stephanie Lowe.

CalPERS agencies must report the number of hours worked by employees in “out-of-class appointments” to CalPERS no later than July 30, 2018.  As discussed in our earlier blog, Assembly Bill 1487 went into effect January 1, 2018 adding Government Code section 20480 to the Public Employees’ Retirement Law.  The statute prohibits out-of-class appointments of members for more than 960 hours per fiscal year.  To ensure compliance, CalPERS issued Circular Letter No,: 200-021-18 directing contracting agencies to track and report hours worked in “out-of-class appointments” each fiscal year.  With the July 30 reporting deadline quickly approaching, here is everything CalPERS agencies need to know to meet the reporting requirements.

Definition of “Out-of-Class Appointment”

Section 20480 expressly defines “out-of-class appointment” as “an appointment of an employee to an upgraded position or higher classification by the employer or governing board or body in a vacant position for a limited duration.”  A “vacant position” is defined as “a position that is vacant during recruitment for a permanent appointment.”  The definition of “vacant position” excludes a “position that is temporarily available due to another employee’s leave of absence.”

The compensation for the appointment must also be stated in a collective bargaining agreement or a publicly available pay schedule.

How to Report Out-of-Class Appointments to CalPERS

CalPERS requires agencies to report “out-of-class appointments” for each member using the Out-of-Class Appointment Employer Certification form no later than 30 days following the end of each fiscal year.

What Information to Report

For CalPERS purposes, the previous fiscal year began July 1, 2017 and ended June 30, 2018. Since Section 20480 went into effect on the middle of the fiscal year on January 1, 2018, the Out-of-Class Appointment Employer Certification form only requires agencies to report information for the period between January 1, 2018 to June 30, 2018.

The information requested by CalPERS includes: the member’s name, permanent position title and “out of class” position title; beginning and end date of the out-of-class appointment; pay rates of both the permanent and out-of-class positions; and special compensation and total earnings.

The form further requires the employer to disclose if the out-of-class appointment is in a “vacant” position. Note that the statute, as reiterated in the CalPERS Circular Letter, defines “vacant” as “a position that is vacant during recruitment for a permanent appointment.”   If the appointment is to a filled position, such as when another employee is on extended leave of absence, or the agency is not actively recruiting for the vacancy, such as a temporary position, then it is not an “out of class appointment” subject to the 960-hour limitation.  Although the form is somewhat unclear, because the Circular Letter reiterates the definition of “vacancy,” it is unlikely employers are required to disclose appointments that do not meet the definition of “vacancy.”  Employers may need additional clarification from CalPERS.

Reporting Notices

CalPERS agencies should receive an Annual Notice from CalPERS in June reminding them of the July 30 reporting requirements for out-of-class appointments.  CalPERS will send out a Second Notice in September to inform agencies if CalPERS has not received their Out-of-Class Appointment Employer Certification form.

Failure to Report

Failure to report the information may result in penalties under Section 20480 and notification to CalPERS Office of Audit Services to initiate an audit of the employer’s records.

A CalPERS agency that fails to comply with Section 20480, including any failure to report out-of-class appointments, shall pay penalties to CalPERS in an amount equal to three times the employee and employer contributions that would otherwise be paid to CalPERS for the difference between the compensation paid for the out-of-class appointment and the compensation paid and reported to CalPERS for the member’s permanent position for the entire period the member serves in the out-of-class appointment. The employer must also reimburse CalPERS for administrative expenses incurred by CalPERS in responding to the violation.  Although the statute did not provide the amount of administrative expenses, the Circular Letter states the fee will be $200.  The penalties and fees are not credited to the employer or the employee’s individual account and the employer may not pass the penalties or fees onto the employee.

If your agency needs assistance in reporting this information to CalPERS, please contact one of our offices.