On January 1, 2024, California Government Code section 7299.7 went into effect, requiring “local agencies” to provide “emergency related information” in languages other than English.  To date, there is little guidance as to what the law legally requires, most likely because the actual implementation date is January 1, 2025.  Given that we are now over halfway to January 2025, it is probably the right time to start considering the new law’s impact.  So, let’s take a look to see how to prepare.

Where to Find Government Code section 7299.7

Government Code section 7299.7 is located in the Chapter of the Government Code known as the Dymally-Alatorre Bilingual Services Act.  (Gov. Code § 7290.)  As the name implies, this chapter focuses on language, specifically aiming to increase the accessibility of services, benefits, and rights for citizens and residents who speak languages other than English.  (Gov. Code § 7291.)  The chapter requires state agencies (as defined under Government Code section 11000) and local public agencies (as defined under Government Code section 54951) to employ a sufficient number of qualified bilingual persons in public contact positions to ensure information and services to the public in non-English languages.  (Gov. Code §§ 7292-7293.)  The chapter also requires the translation and distribution of materials explaining available services.  (Gov. Code §§ 7295-7295.4.) 

Notably, the Dymally-Alatorre Bilingual Services Act must be implemented to the extent that local, state, or federal funds are available, and to the extent permissible under federal law and the provisions of civil service law governing state and local agencies.  (Gov. Code § 7299.)  However, there are several exceptions.  The Chapter does not apply to school districts, county boards of education, or the office of a county superintendent of schools.  (Gov. Code § 7298.)   And the Department of Human Resources may exempt state agencies from certain requirements where the state agency’s primary mission does not include responsibility for furnishing information or rendering services to the public, or if the state agency has not been required to employ bilingual staff to meet its obligations and employs fewer than 25 full-time employees in public contact positions.  (Gov. Code § 7299.5.) 

What Government Code section 7299.7 Requires

Within the context of the rest of the Dymally-Alatorre Bilingual Services Act, Government Code section 7299.7 represents an expansion of law that specifically targets certain local agencies providing emergency response services to non-English speakers within their jurisdiction.  Rather than starting discussion on the first few subsections of the statute, I think it is always better to start with definitions, so I will begin by looking at subsection (e) which lists three definitions specific to this section. 

The following are defined. “Emergency” means a situation that calls for immediate action to respond to the threat of serious harm or mass casualties, including conditions of natural disaster or conditions posing extreme peril to the safety of persons and property in the territorial limits of the local agency.”  “Emergency response services” means police, fire, or emergency medical services.  And “local agency” means a city, county, city and county, or a department of a city or county.  (Gov. Code § 7299.7(e).)

The easiest definition to approach is “local agency,” which is expressly a city, county, city and county, or a department of a city or county.  This is a markedly narrower definition than the rest of the Dymally-Alatorre Bilingual Services Act uses, which is Government Code section 54951’s more expansive “county, city, whether general law or chartered, city and county, town, school district, municipal corporation, district, political subdivision, or any board, commission or agency thereof, or other local public agency” language.  Because the definition of “local agency” is expressly defined in this section, it is hard to imagine that the legislature intended anything other than what is written.  The law’s scope is further narrowed because it applies only to those local agencies that provide “emergency response services,” meaning police, fire, or emergency medical services.  (Gov. Code § 7299.7(a).)  While not a perfectly drawn line, this at least helps us understand the ballpark of which agencies and departments of agencies are affected. 

In contrast to that specificity, the definition of “emergency” is a little vague.  It clearly entails serious conditions, but what qualifies as a situation that calls for immediate action or a threat of serious harm or mass casualties?  Probably not something as gradual as climate change, maybe not something so rare or hard to predict as a lightning strike.  Maybe a beach with a history of shark attacks?  And what about extreme peril to the safety of persons and property?  Probably something like a wildfire, earthquake or tornado qualifies, but what about a string of home robberies or attempted murders?  There are no metrics on the outer bounds of what qualifies, so it is hard to say precisely, but agencies should still be able to craft policies tailored to comply with the law, especially with the assistance of legal counsel.  Agencies should be aware of these uncertainties while they proactively plan to comply with Government Code section 7299.7.

With these definitions in hand, let’s look at what the law requires if it applies to your agency.  Beginning January 1, 2025, cities and counties (or their departments) that provide police, fire, or emergency medical services need to provide information related to an emergency in English and all languages spoken jointly by 5 percent or more of the population that speaks English less than “very well.”  (Gov. Code § 7299.7(a).)  To determine which languages are required, these local agencies need to use data from the American Community Survey or “an equally reliable source,” and need to reassess the data every five years to update which languages are provided. 

The law specifically names the American Community Survey, and agencies should recognize that it “is an ongoing survey that provides vital information on a yearly basis” (which separates it from the Decennial Census that occurs every ten years) and is implemented through the United States’ Census Bureau.  Currently, the Los Angeles Regional Office handles all data collection, data dissemination, and operations for the whole of California (and six other states). A link to the American Community Survey’s homepage follows, and if you dig around, you will notice that there are a few links that may be useful, such as a link to the Census Bureau’s publicly available data (which can be filtered down to individual cities and counties), as well as pre-prepared data tables, data tools, and guidance on how to navigate data more efficiently.

If you determine that your agency should be providing information in additional languages, the next question is necessarily “what information?”  Under Government Code section 7299.7, subsection (c)(1), we are told that the agency must ensure that the quality of information translated and provided is just as “comprehensive, actionable, and timely” as the information provided to English-speaking persons.  At its base, it seems that if your agency were to provide an emergency alert of some kind in English, you also need to do so in other required languages, but we cannot say for certain what the scope of information actually is.  We also know from subsection (c)(2) that the agency must endeavor to use community members with cultural competencies and language skills that can effectively communicate with non-English speakers receiving information and “whenever feasible, native speakers of the relevant languages who also speak English fluently.”  

There are two other provisions of the new law that need mentioning.  First, beginning January 1, 2027, the Office of Planning and Research will begin surveying a sample of local agencies (to occur every three years) to determine how agencies are complying with these requirements.  (Gov. Code § 7299.7(d).)  Because that starts two years after the new requirements go into effect (and three years after the law itself went into effect), it seems that the legislature wanted to provide a bit of a grace period for agencies to learn how to comply.  Second, this new law does not affect any responsibilities required under the California Emergency Services Act, found at Government Code section 8550 et seq.  (Gov. Code § 7299.7(f).) 

Closing Thoughts on Government Code section 7299.7

Clearly, Government Code section 7299.7 is an ambitious attempt to provide emergency services information in languages other than English to those who need it.  But like with any new law, there are some questions that will probably need to be answered via legal counsel.  It could be that additional government guidance will be forthcoming to help answer questions as the commencement date gets closer.  For now, if your agency is concerned about compliance, we recommend reaching out to legal counsel for advice on how to proceed through this uncharted territory.

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

This blog article was authored by Partner Liz Arce in 2013 and continues to be one of our most popular articles.  This post was reviewed in May 2024 and is up-to-date. 

Many public employers utilize 9/80 work schedules for non-exempt employees.  A 9/80 work schedule is essentially a two-workweek schedule of eight 9-hour days, one 8-hour day, and one day off.  However, once the 9/80 work schedule is implemented, there are a number of mistakes unsuspecting employers often make which can inadvertently trigger overtime liability. These pitfalls, which can also apply to a 3/12 work schedule, and how to avoid them are described below.

Pitfall #1 – Not Designating the Workweek Properly.  Although employers are required to designate a workweek for each non-exempt employee, they often fail to do so.  The problem this creates with respect to a 9/80 schedule is that the employee will end up working 36 hours in the first workweek and 44 hours in the second workweek because the employer uses an FLSA workweek which ends on a Saturday or Sunday night at midnight.  Thus, the employer will likely incur 4 hours of overtime liability in the second workweek.  This problem can be avoided by designating an employee’s workweek to begin four hours after the start time of the employee’s eight hour day, and designating the employee’s day off on the same day of the week in the following week.  The Department of Labor regulations implementing the FLSA specifically permit an employer to designate FLSA workweeks for individual employees.  29 CFR section 778.105.  Thus, if you have employees with different start times on their alternating work day, their FLSA workweek can be different – four hours after the start time of their shift.

Pitfall #2 – Allowing Employees to Change or Switch Their Regular Day Off.  Employers should be cautious of employee requests to change their regular day off because moving it will likely cause the employer to incur four hours of overtime liability.  For example, if an employee who is off-duty every other Friday is scheduled to work this Friday, he/she might ask to take this Friday off and work the following Friday (the day he is ordinarily scheduled to be off duty).  Because each 40 hour workweek is examined on its own, this scenario will result in more hours being worked in one of the two workweeks in the two week pay period.  The best way to avoid this problem is to prohibit employees from changing or switching their regular day off.

Pitfall #3 – Allowing Employees to Come In and Leave Early.  In addition to coming in and leaving early, employees who are permitted to come in and leave late on the alternating work day could also trigger overtime.  Because the workweek in a 9/80 schedule begins four hours into their eight hour shift on the day of the week which constitutes their alternating work day, permitting an employee to work more or less hours before the four hour cutoff will cause overtime to accrue.  For example, if an employee whose workweek starts at noon (because his regular Friday hours are from 8:00 a.m. to 5:00 p.m.) came to work at 6:30 a.m. on Friday and worked until 3:30 p.m., the employee would be owed 1.5 hours of overtime because the hours worked between 6:30 a.m. and noon would be in the first workweek of the two week pay period.  Like the solution to Pitfall #2, employers can avoid overtime liability under this scenario by not allowing employees to adjust the start and end times of their shifts.

Pitfall #4 – Failing to Monitor When Lunch Is Taken.  Failure to monitor lunches on the alternating day worked (e.g., Friday) could also inadvertently trigger an overtime obligation.  For example, if an employee is scheduled to work between 8:00 a.m. and 5:00 p.m. on the alternating Friday and has an unpaid one hour lunch, the employee should work the first four hours (until noon), then take lunch, and return to work the last four hours (until 5:00 p.m.).  However, if the employee decided to take lunch at 11:00 a.m., this would result in the employee working the last five hours after 12:00 p.m. thereby triggering one hour of overtime liability in the second workweek of the two week pay period.  Thus, employers should emphasize to employees the importance of taking lunch after the first four hours of the alternating work day and periodically audit employee lunch breaks to make sure they are being taken at the appropriate time.

Public employers are encouraged to scrutinize their use of the 9/80 work schedule to see if any of the common mistakes are being made.  This may require employers to separately examine each department, division or unit as there may be variations in each group’s practices.

The days are getting longer and the vacation requests are piling up. If your agency uses compensatory time off, or “CTO,” granting vacation requests can be tricky when everyone wants to take time off at the same time.

What is CTO?

The Federal Labor Standards Act (“FLSA”) requires employers to pay employees at least 1.5x the employee’s regular rate of pay for overtime hours worked. Alternatively, the FLSA allows public employers and employees to agree on a different method of compensation: CTO. Instead of paying 1.5x the regular rate of pay for overtime hours worked, public employers can instead provide employees with time off work at 1.5x their overtime hours worked.

Using CTO is quite different from using regular vacation leave. For vacation leave, employers may typically approve or deny an employee’s request subject only to conditions in the employer’s personnel rules or applicable memoranda of understanding.

For CTO, agencies must be familiar with two standards: (1) “reasonable period” and (2) “undue disruption.”

A “reasonable period” considers the “customary work practices within the agency based on the facts and circumstances in each case.” The FLSA regulations provide four non-exhaustive factors that could contribute to the analysis: (1) the normal schedule of work; (2) the anticipated peak workloads based on past experience; (3) emergency requirements for staff and services; and (4) availability of qualified substitute staff. For represented employees, the agency should strongly defer to the MOU’s provisions on CTO to determine what is reasonable, if applicable.

If the agency cannot provide a reasonable period of time in which the employee can use CTO, the agency must be able to justify its decision by showing undue disruption. “Undue disruption” is an unreasonable burden on the agency’s ability to provide services of acceptable quality and quantity.

Typically, showing undue disruption is a difficult task. Undue disruption is more than a mere inconvenience, and there is some authority that even having to hire replacements—by itself—does not establish undue disruption.

Save the Date

The Department of Labor (“DOL”) maintains its “longstanding position that employees are entitled to use compensatory time on the date requested absent undue disruption to the agency.”

In contrast, the Ninth Circuit held in 2004 in Mortensen v. County of Sacramento that the FLSA does not require employers to approve an employee’s specifically requested CTO date. Instead, once an employee requests CTO, the agency has a reasonable period of time to grant the request.

The Ninth Circuit declined to defer to the DOL’s interpretation  because it concluded that the text of the FLSA “unambiguously states that once an employee requests the use of CTO, the employer has a reasonable period of time to allow the employee to use accrued time.” Thus, employers may provide a reasonable period of time in which the employee can use CTO, without showing that the employee’s specifically requested date would cause undue disruption.

The Ninth Circuit’s decision in Mortensen remains unchallenged in this jurisdiction, and the Supreme Court has not reviewed the issue. Accordingly, California agencies are likely able to follow Mortensen’s decision and provide employees with a reasonable period of time in which they can use CTO instead of approving the employee’s specifically requested date.

A reasonable period of time, as mentioned previously, may depend on several factors, such as the agency’s practice of approving time off requests. In Mortensen, for example, the County of Sacramento had the following “leave book” policy: If the CTO request falls on a date for which all the leave openings are full, the County denies the CTO request. The employee may select any other day with a leave opening, up to one year. If the employee has not used their CTO within a year, the County cashes out the CTO.

The Ninth Circuit held that this policy complies with the FLSA, even though the “reasonable period” may theoretically last for up to one year. The Court observed that the County used this same policy for all leaves and the employee’s bargaining unit assented to the policy under the MOU.

In sum, when an employee requests to use their accrued CTO, the agency must grant the request to use CTO within a reasonable period unless the request will unduly disrupt the agency’s operations. That is, the agency is not required to grant a request to use CTO on a specific date. However, the employee must be able to use the CTO within a reasonable period, which depends on several factors mentioned above. Otherwise, the agency must be able to show that allowing CTO use within a reasonable period would unduly disrupt the agency’s operations.

At Columbia, Yale, University of Southern California, University of Texas, University of California Los Angeles, and elsewhere one has seen tent city campus landscapes, and students gathered for delivery of impassioned chants before cameras, sitting quietly with protest signs against walkways, or alternating turns to speak publicly to gathered crowds.  Many times, however, news cameras capture scenes of harsh face-to-face conflict, clashes with police, and organized lawless acts by students, who trespass or interfere with campus operations — to underscore their demands and their commitment to a cause. 

The pro-Palestinian protests at U.S. institutions of higher education present unprecedented legal challenges for administrators.  At public institutions, administrators have to contend with the First Amendment rights of not just students and faculty who participate in protests, but also outsiders to campus who choose to join the protests and perhaps propel them further.  At the same time, protest rhetoric has taken what many perceive as an overtly menacing tone, and administrators must carefully safeguard their community members’ rights to be free of harassment, and perceived threats to their safety.

This post presents six legal areas for issue-spotting by administrators.

1.  It goes without saying that public colleges have to allow peaceful protests in areas designated for free expression.  At community colleges, board policies and administrative procedures often specify that all outside areas generally available to students and the community may be used for expressive activities (some have more limited areas).  Campus requirements for students, employees, or outsiders to obtain advance permission to use the speech areas carry a strong risk that a Court will strike the regulations down as unconstitutional prior restraints on speech, and many college procedures instead involve only an optional check-in prior to use of the areas.  A public college can place legitimate time, place, and manner restrictions on use of the areas, and these restrictions by definition will have nothing to do with the content of the expression.  They can include, for example reasonable limitations on use of amplification, provisions that the campus areas are closed overnight and cannot be used for camping, and also requirements that expressive activities cannot improperly disrupt or interfere with the college’s operations. 

2.  It is lawful for a public college to take action when legitimate rules are violated, even when protestors commit the violations in the name of their cause and the right to free expression.  When students occupy administrative offices, block campus traffic, or trespass, they can legitimately suffer consequences without having their First Amendment rights infringed.  The consequences can include not just suspension or other student discipline, but arrest and even criminal prosecution.  Our nation has a long and honored tradition of civil disobedience as a means of effectuating change, and in the view of many, the willingness to suffer the legal consequences in support of a cause serves as part of what provides these acts of disobedience their moral significance.

3.  Colleges and universities accepting federal funding have an obligation under Title VI of the federal Civil Rights Act to protect students from unlawful harassment on campus on the basis of these students’ protected classifications, including race, color, and national origin.  This obligation extends to harassment based on religion, under the “shared ancestry” rule developed by the federal Office for Civil Rights (“OCR”).  (Executive Order 13899, issued in 2019 on Combating Anti-Semitism, reaffirms the principle that anti-Semitism and discrimination against Jews are prohibited under Title VI based on a “shared ancestry.”)  If the speech is sufficiently severe or pervasive to create a hostile environment under the applicable anti-discrimination law, the institution must act to eliminate the hostile environment and prevent the harassment from reoccurring.  Also, as the Department of Education clarified in a recent “Dear Colleague” letter, speech need not target an individual to constitute harassment under federal anti-discrimination laws.  Speech issued to the public can rise to the level of harassment if, based on the totality of circumstances, the speech is “subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the recipient’s education program or activity.”

How can an institution both allow protests that could involve harsh rhetoric based on what appear to be protected classifications, and at the same time protect students?  The OCR has provided some guidance, and this includes making sure that students are able to navigate their way to class and to other commitments without encountering protests.  An institution can take the more extreme step of putting into place remote learning, as Columbia University has done.

4.  A public college does not have to tolerate as part of a protest, expression that qualifies as a “true threat,” which is a serious expression of an intent to commit unlawful violence to a particular individual or group of individuals.  Such a speech lacks First Amendment protection.  Also, hate speech that does not qualify as a true threat could subject a student speaker to discipline under the student code of conduct, or a faculty member or other employee to discipline.  Hate speech by outsiders can be dealt with under California Penal Code sections 626.4 and 626.6 when the standards of those statutes as to threat and level of disruption are met.  Those statutes authorize individuals to be directed off campus and barred from returning for a certain time.  Also, a college or university can request that law enforcement prosecute criminal conduct that outsiders commit on campus.

5.  If the public college opens a forum for exchange of views (on social media, in a listserv, at a town hall), then administrators cannot discriminate against viewpoints.  Protesters’ views need to be included when relevant to the topic.  But the First Amendment does not authorize protesters to interfere with, disrupt, or interject presentations into an event or function dedicated to an unrelated purpose.  For example, top constitutional law scholar Erwin Chemerinsky of U.C. Berkeley recently hosted a dinner event for students at his and his wife’s private residence.  Protesters attended the event and one stood with a microphone they had brought to deliver remarks on Palestine; even though the host had created no “forum” for expression of views in this manner.  Free speech commentators agreed afterwards that hosts in such a situation could stop the expressive activity (in this case for the additional reason that the event took place on the hosts’ private property).

6.  What are the risks in just letting protests continue, even if administrators could halt them without offending the First Amendment or other laws?  As a general rule, if the protesters break rules, the protest should not continue, but if the protesters do not break rules the protest may continue.  There should not be administrator discretion in which expressive activities go forward and which do not.  Picking and choosing presents the risk that other sets of protestors, for a different cause, at some future time, who do experience consequences for violating campus policy, can argue that administrators have violated the First Amendment by engaging in viewpoint discrimination – in particular, allowing other protests but not theirs. 

That said, the current climate of social unrest on campus has such magnitude that higher education institutions may decide it is worth the risk to refrain from taking action in some circumstances, and to hold off on enforcing even valid restrictions in the interest of avoiding further disruption and potential physical harm and in the hopes of resolving disagreements with students.  If challenged months or years later with claims of “selective enforcement,” the institution can point to the unique conditions that exist today but still would face some risk in the face of claims of inconsistent responses. 

It is critical to contact trusted legal counsel to navigate these challenging issues on campus.

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

On April 17, 2024, the Supreme Court of the United States clarified the standard of harm an employee must demonstrate to support a discriminatory job transfer claim under Title VII of the Civil Rights Act.

 In a unanimous decision, the Court held in Muldrow v. City of St. Louis that an employee challenging a job transfer under Title VII need not show that the allegedly discriminatory transfer produced a significant employment disadvantage.  Rather, an employee need only show that the transfer brought some harm with respect to an identifiable term or condition of employment.

The Court’s decision overturned precedent in the Eighth Circuit, and other Circuits, mandating that employees challenging a transfer under Title VII must meet a heightened threshold of harm requirement, described as “significant,” “serious,” “materially adverse,” or by similar terms establishing a heightened bar.  As the Court explained, to demand “significance” where the law does not require it inappropriately adds words to what Congress enacted.  The language of the law only requires that employees show an allegedly discriminatory transfer brought about some “disadvantageous” change in employment terms or conditions.

The practical effect of Muldrow is that employees challenging a job transfer under Title VII will have an easier time establishing that the transfer produced some harm sufficient to support their claim.  In his concurring opinion, Justice Alito speculated the ruling would not effectively alter how the statute is interpreted, explaining that lower courts may reach similar conclusions as before, just with careful wording of their decisions to comply with the terminology of the new Muldrow opinion. 

Still, the ruling should allow a larger percentage discriminatory transfer claims to survive to trial or settlement, and will likely result in more such claims being filed.  Employers should certainly take care to ensure that job transfers and other employment decisions are made without discriminatory motive or impact.

Notably, the transfer in question in Muldrow involved a fairly significant change in assignment for a long-time, respected police sergeant.

Sergeant Jatonya Clayborn Muldrow worked as a plainclothes officer in the St. Louis Police Department’s specialized Intelligence Division for nearly ten years.  In that role, she investigated public corruption and human trafficking cases, and oversaw the Gang Unit and Gun Crimes Unit.  By virtue of her position, Sgt. Muldrow was also deputized as a Task Force Officer with the FBI, granting her FBI credentials, an unmarked take-home vehicle, and the authority to pursue investigations outside of St. Louis. 

Sgt. Muldrow’s job performance was exceptional.  In 2017, the outgoing commander of the Intelligence Division referred to her as a “workhorse” and considered her his most reliable sergeant.  But the new Intelligence Division commander told the Department that he wanted to replace Sgt. Muldrow with a male officer.  The new commander – who often referred to Sgt. Muldrow as “Mrs.” rather than “Sergeant” – testified that a male officer seemed like a better fit for the Division’s dangerous work.

The Department approved the transfer and Sgt. Muldrow was transferred to a uniformed position.  While her rank and pay remained the same, her responsibilities, perks, and schedule changed.  Sgt. Muldrow no longer worked with high-ranking officials on priority matters in the Intelligence Division.  Rather, her new duties involved supervising day-to-day activities of neighborhood patrol officers and handling various administrative matters.  Sgt. Muldrow lost her FBI status and vehicle, and her workweek went from a traditional Monday-through-Friday week to a rotating schedule that included weekend shifts.

The Court found that Sgt. Muldrow’s allegations, if proven true, “left her worse off several times over,” and noted that it did not matter that her rank and pay remained the same or that she could still advance to other jobs.  Title VII prohibits making a transfer based on sex with the consequences Sgt. Muldrow described.

Senate Bill 2 (SB 2), enacted in 2021, transformed and expanded the role of the Commission on Peace Officer Standards and Training (POST). Most of the mandates in SB 2 took effect on January 1, 2023. As many readers are likely aware, one of the most significant changes brought on by SB 2 is the obligation that law enforcement agencies report all allegations of “serious misconduct” by peace officers to POST. SB 2 established the Peace Officer Standards Accountability Division, which reviews investigations conducted by law enforcement agencies and can conduct its own investigations into misconduct that could provide grounds for suspension or revocation of a peace officer’s certification. 

This post serves as a reminder to law enforcement agencies that when conducting internal investigations regarding alleged wrongdoing by any of their peace officers, the agency must evaluate whether each allegation triggers an additional obligation to report that allegation to POST. 

Public agencies must report all allegations of “serious misconduct” by a peace officer. Penal Code section 13510.8 and Commission Regulation 1205 define “serious misconduct” as follows:

  • dishonesty relating to the reporting, investigation, or prosecution of a crime, or relating to the reporting of, or investigation of, misconduct by a peace officer; 
  • abuse of power, including, but not limited to, intimidating witnesses, knowingly obtaining a false confession, and knowingly making a false arrest;
  • physical abuse, including, but not limited to, the excessive or unreasonable use of force; 
  • sexual assault as described in subdivision (b) of Penal Code section 832.7, the definition of which extends to acts committed amongst members of any law enforcement agency;
  • demonstrating bias on the basis of actual or perceived race, national origin, religion, gender identity or expression, housing status, sexual orientation, mental or physical disability, or other protected status in violation of law or department policy or inconsistent with a peace officer’s obligation to carry out their duties in a fair and unbiased manner (see below for recent developments regarding this category of misconduct); 
  • acts that violate the law and are sufficiently egregious or repeated as to be inconsistent with a peace officer’s obligation to uphold the law or respect the rights of members of the public; 
  • participation in a law enforcement gang;  
  • failure to cooperate with an investigation into potential police misconduct; and 
  • failure to intercede when present and observing another officer using force that is clearly beyond that which is necessary, as determined by an objectively reasonable officer under the circumstances. 

Given that most provisions of SB 2 went into effect only on January 1, 2023, there is not an abundance of practical guidance regarding the implementation of SB 2. However, below we highlight some information relating to common questions about SB 2’s reporting requirement.

Timing of reporting.  Penal Code section 13510.9 requires agencies to report to POST within 10 days of receiving the allegation. In addition, agencies must report the final disposition of any investigation that determines a peace officer engaged in conduct that could render a peace officer subject to suspension or revocation within 10 days.

While there is no penalty listed in SB 2 for failing to report an allegation of misconduct to POST within 10 days, POST’s Frequently Asked Questions (FAQ) page regarding SB 2 states “it would be a clear violation of statute.”

Timing of POST investigation in relation to agency’s investigation. POST has indicated that it will wait for the agency to conclude its internal investigation before conducting its own investigation (if any). POST’s FAQ page offers the below guidance:

How will POST investigations be conducted so as not to interfere with each agency’s individual investigation?

POST will rely on the employing agency to conduct the investigation first. Allegations of serious misconduct received directly to POST will be referred to the employing agency for investigation. The findings of the agency’s investigation will be forwarded to POST for review. Any subsequent investigation needed would occur after the conclusion of the agency investigation.

In addition, POST will wait for an agency to complete its investigation before POST begins its decertification review, “unless unique circumstances dictate otherwise.”

Allegations without merit. POST has advised that all allegations of “serious misconduct” must be reported, including allegations the agency believes do not have any merit. POST’s FAQ page states “[t]here are no statutory exceptions for frivolous, unfounded, or exonerated allegations.”

Possible development regarding SB 2 interpretation. One allegation of “serious misconduct” that law enforcement agencies commonly receive is an allegation that a peace officer demonstrated bias. On December 29, 2023, POST published a Notice of Proposed Regulatory Action proposing to “expand the definition of ‘demonstrating bias’ [in Commission Regulation 1205] to clarify what the Commission considers a demonstration of bias.” In POST’s Initial Statement of Reasons, POST explained that “[a]fter thorough review of PC § 13510.8 and Commission Regulation 1205, it was determined that there needs to be additional regulatory language to define what it means for a peace officer to be ‘demonstrating bias.’”

The text of the proposed supplement to Commission Regulation 1205 is as follows:

An officer is “demonstrating” bias for purposes of this Regulation when the officer either shows or displays, by words, actions or other conduct, prejudice, intolerance, contempt, or hatred towards one or more persons due to that person’s membership within a class of persons identified in Penal Code section 13510.8(b)(5), when such words, actions or other conduct would lead a reasonable person to conclude that the officer has not fairly and impartially performed, or will not fairly and impartially perform, his or her law enforcement duties.

The public comment period for the above proposed amendment ended on February 12, 2024, and the amended regulation is under review by the Office of Administrative Law.

LCW will continue to monitor developments in this evolving area.

For practicing Muslims, Ramadan began on March 10, 2024, and concludes on Tuesday, April 9, 2024.  Ramadan is a month in the Islamic calendar devoted to fasting and prayer.  Although not all Muslim students participate in fasting during this month, many schools throughout California do serve students who are abstaining from food and drink from sunrise to sunset.  During Ramadan, the traditional expectations of the school day or classes may be difficult for students who are fasting. 

Students’ Rights During Ramadan and Other Religious Fasting Holidays

Among other things, the First Amendment prohibits public schools from establishing policies that discriminate against a particular religion or belief.  Where school officials excuse students from class or provide accommodations based on nonreligious needs, school officials must treat religiously motivated requests similarly.  Additionally, Section 220 of the California Education Code prohibits any educational institution that receives or benefits from state financial assistance or enrolls students who receive state financial aid from discriminating based on religion.  Finally, schools may want to provide accommodations for students who are participating in religious fasting in order to achieve their mission and purpose, act with respect, and to demonstrate value of students’ religious beliefs.

Section 46014 of the California Education Code allows public school students to be excused from school to participate in religious exercises or to receive moral and religious instruction, with the written consent of their parents or guardians.  Thus, schools may excuse students on Eid al-Fitr, on Wednesday, April 10, 2024.  

Finally, most schools have policies and procedures that encourage instructors and teachers to create and foster a learning environment that is free from discriminatory attitudes, practices, events, or activities, and to prevent acts of hate or violence.  Accommodating and supporting fasting students is likely both consistent with legal requirements and in furtherance of school organizational missions.

Ideas to Support Fasting Students

Schools may adopt several easy and inclusive strategies to accommodate and support students.  Below are some common accommodations or ideas to consider for the learning environment for fasting students:

  1. Permit students to use an empty/quiet area of the classroom for prayer/religious observances.
  2. Excuse absences during religious holidays, and ensure students who miss class can make-up missed assignments.
  3. Allow alternative activities or make-up times for course work that requires strenuous physical activity, especially physical education.
  4. Allow fasting student to adjust their schedules for exams, or other demanding tasks, to accommodate their energy levels.
  5. Avoid penalties for students who may feel lethargic during the day.
  6. Provide students an alternative space during lunch or other times that students are eating.
  7. Provide positive behavior incentive systems that do not rely on food, so as not to exclude students who are fasting.
  8. Allow fasting students to choose seating arrangements that are comfortable for them, especially during activities or events that include food. 
  9. Collaborate with students’ families to understand specific needs or concerns, and work together to provide appropriate support.

On the Horizon

The California Legislature introduced Assembly Bill 2377 in February 2024.  If passed, this bill would excuse students in public schools K-12 who are participating in religious fasting from engaging in any physical activity components of a physical education course.  LCW is monitoring this legislation closely, and will provide updates and guidance if necessary.  In the meantime, schools should follow accommodation processes when requested to support the needs of students who are fasting during Ramadan, or any other religious holiday where fasting is practiced.

On March 15, 2024, the U.S. Supreme Court issued a long-awaited decision in Lindke v. Freed an important case concerning state action, the First Amendment, government officials, and social media.  The decision provides clarity on how First Amendment free speech standards apply to government officials in curating public comments on their social media pages.

In Lindke v. Freed, Port Huron City Manager James Freed maintained a public Facebook page that anyone could see and comment on.  Freed posted primarily about his personal life, but also posted content related to his job as City Manager and solicited feedback from the public on issues of concern.  Freed responded to comments from city residents about community matters, and occasionally deleted comments that he considered “derogatory” or “stupid.”  During the COVID-19 pandemic, Freed posted about the pandemic.  Kevin Lindke commented on some of Freed’s posts and expressed discontent with the city’s response to the pandemic.  At first, Freed deleted Lindke’s comments.  Then, Freed blocked Lindke from commenting on Freed’s posts altogether.  Lindke sued Freed for violation of his First Amendment rights, alleging that Freed engaged in state action when he deleted Lindke’s comments and then blocked him.  Freed prevailed at the District Court and the Sixth Circuit affirmed.  Lindke appealed and the U.S. Supreme Court granted review.

In its decision, the U.S. Supreme Court articulates a test for determining, under federal law, when a government official who prevents someone from commenting on the official’s social media page engages in state action.  For such conduct to be state action, the official must have both:

  1. Possessed actual authority to speak on the state’s behalf on a particular matter; and
  2. Purported to exercise that authority when speaking in the relevant social-media posts.

The first part of the test is based on the fundamental prerequisite that conduct that allegedly causes the deprivation of a federal right must be fairly attributable to the state.  For example, Freed must have possessed actual state authority to post city updates, register citizen concerns, and otherwise communicate with residents on behalf of the city.  Such actual authority must be “rooted in written law or longstanding custom to speak for the State,” and must extend to speech of the sort that caused the alleged rights deprivation.

Under the second part of the test, the official must speak in furtherance of their official responsibilities.  The Court noted that if Freed’s Facebook page had carried a label or disclaimer stating that his page was personal or the views expressed his own, “he would be entitled to a heavy (though not irrebuttable) presumption that all of the posts on his page were personal.”  The Court acknowledged that government officials have private lives and their own constitutional First Amendment rights to speak about their job and maintain some control over speech on their personal social media pages.  However, since Freed’s Facebook page was not identified as personal, it allows for the possibility that his page contained a mix of personal posts and posts in his capacity as a government official.  The Court found that this ambiguity requires a fact-specific inquiry into the content and function of each of Freed’s posts from which Lindke’s comments were deleted or from which Lindke was blocked from commenting.

The Sixth Circuit will now review the case in consideration of the U.S. Supreme Court’s decision and the above test.

In consideration of the decision in Lindke v. Freed, public officials may want to consider clearly differentiating between their personal and official social media pages, including placing disclaimers on their personal social media pages (e.g., the page is personal and the views expressed are their own), and keeping their personal social media pages private.

On March 15, 2024, the U.S. Supreme Court also vacated the decision in O’Connor-Ratcliff v. Garnier (Lindke v. Freed’s companion case), and remanded the case back to the Ninth Circuit to review it in a manner consistent with the Lindke v. Freed decision.  The U.S. Supreme Court had granted review of both cases to resolve a split between the Sixth District and the Ninth District on this important issue.  We will keep you advised of developments with Lindke v. Freed and O’Connor-Ratcliff v. Garnier.