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.
Court of Appeal finds that the Statute of Limitations is 1 year from the discovery of each act of misconduct from an Employee
The Public Safety Officers Procedural Bill of Rights Act contains a statute of limitations that commences with the discovery of misconduct by public safety officers in the employment setting. According to Government Code Section 3304(d)(1), an agency cannot discipline any officer “for any act, omission, or other allegation or misconduct” unless the agency completes its investigation and notifies the officer of the proposed discipline “within one year of the public agency’s discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct.” The Court of Appeal in the Third Appellate District for the State of California recently heard argument regarding how the statute of limitations ought to run for multiple instances of employee misconduct.
Summary of the Facts of the Case of Luis Garcia v. State Department of Developmental Services
Luis Garcia was a police officer for the State Department of Developmental Services starting in 2003. However, in 2018, the Department discovered Garcia had been manipulating his colleagues’ schedules in order to subvert the Department’s policy limitation on overtime accrual. As a result, Garcia received unnecessary overtime and the Office of Law Enforcement Support (OLES) investigated once the Department learned of his conduct. During the course of the investigation, which took place between June 2018 and February 2019, OLES discovered various other acts of misconduct unrelated to the original investigation. These other acts of misconduct occurred in February 2018, May 7, 2018, May 20, 2018, and between June 2017 and June 2018. On April 26, 2019, the Department issued a notice of adverse action, stating Garcia would be terminated effective May 3, 2019. The notice specified that the adverse action was due to Garcia improperly scheduling himself to work overtime, acting unprofessionally, threatening to retaliate against a sergeant, improperly ordering a subordinate to work overtime, and taking photographs of a workplace item for no legitimate reason. Garcia was released from employment on May 3, but the Department subsequently withdrew its adverse action as a result of Garcia’s appeal of the termination.
On September 26, 2019, the Department issued a second notice of adverse action to Garcia announcing an impending demotion effective on October 4, 2019. The notice stated that the adverse action was based on Garcia’s improper scheduling himself to work overtime, acting unprofessionally, improperly ordering a subordinate to work overtime, retaliation, unprofessional behavior, using an offensive slur, using his work computer for non-work purposes, and a plethora of other acts of misconduct. Garcia appealed the decision to the State Personnel Board (SPB) and filed a motion to dismiss the case, arguing the section 3304(d)(1)’s one year limitations period barred the action. He argued that since the Department asked OLES to investigate his overtime misconduct on or around May 24, 2018, the Department must have served its notice of adverse action within one year of that date.
The SPB rejected the argument that in matters of multiple acts of misconduct, the initiation of the investigation into one act triggers the one year limitations period for all acts of misconduct. Following this decision, Garcia filed a writ of mandate to the superior court and the court rejected Garcia’s challenge and entered judgment in the Department’s favor. Garcia appealed to the California Court of Appeal.
The Court of Appeal’s Reasoning
The Court reasoned that that language of Section 3304(d)(1) “makes plain that the date of discovery for each act, not the date an investigation is initiated for any one act, is the relevant consideration.” The Court of Appeal also cited case precedent that largely disagrees with Garcia’s argument, stating that the statute of limitations begins to run at the time of the discovery of each act of misconduct.
The Court rejected Garcia’s four separate arguments. First, he argued the statute did not carve out an exception for extending the 12-month statute when investigators discover new material in their investigation. The Court rejected this argument stating its focus is not on the exceptions but the text itself, which is plain and states that the one-year statute of limitations begins to run from the time the misconduct is discovered. Second, Garcia argued the Department was at fault for not initiating a new investigation each time it discovered a new act of misconduct. He put forth an argument that the text of the statute states that all acts of misconduct during a single investigation are subject to the same limitations period, however, the Court stated that no such requirement appears in the text.
Third, the Court stated that Garcia seemed to assume that because it is difficult for an employee to obtain facts to show an agency acted in an untimely way, that should be enough to state that the agency acted in an untimely manner. The Court disagreed and stated that the employee must prove all facts of the defense to satisfy each of its elements and it is not enough to simply allege the defense. Finally, Garcia relied on a 2018 case Ochoa v. County of Kern arguing that the case shows that the section 3304(d)(1) limitations period for each discovered act of misconduct begins to run once the agency initiates the investigation into any one of the officer’s improper acts. The Court of Appeal disagreed, stating that Ochoa held that “the investigation of the misconduct and requisite notification to the officer must be accomplished within one year of the public agency’s discovery by a person authorized to initiate an investigation.”
The Court did not address any of the Department’s arguments in favor of the Court’s ruling, due to Garcia’s four arguments having failed. As a result, the Court held unequivocally that section 3304(d)(1)’s one year limitations period runs on an act of misconduct from the time it is discovered, regardless of whether the act is discovered as part of an investigation of another act of misconduct.
How does this ruling affect employers?
The employee all but threw the kitchen sink at the Court of Appeal in an attempt to convince the Court to hold that the statute of limitations begins upon the discovery of the first act of misconduct. However, despite these creative attempts, the Court did not budge. This is good news for public agency employers as it does not require employers to adhere to a one year statute of limitations upon the initiation of investigation, regardless of when the misconduct is discovered. As a result, employers can rest easy in the sense that they will not need to expedite procedural due process with respect to misconduct discovered late in the investigation. However, they are also not out of the woods. As mentioned in the case, workplace investigations are complex and it is common that an investigation will uncover unanticipated acts of misconduct.
This will require diligence from both the employer and from the investigator, whether internal or external—as exact dates of discovery will be critical in order to track the statute of limitations in an investigation that discovers multiple acts of misconduct. It would behoove employers to have a discussion with investigators to track discovery of misconduct that is not within the scope of the investigation and to record the date of that discovery. This will allow employers specifically to track each discovery of each act of misconduct, and thus have high accuracy in tracking the statute of limitations.
2023 Legislative Session: Employment Bills to Watch
The 2023 legislative session is well underway, and a number of bills have been introduced that could significantly impact California employers if they become law.
However, we anticipate that at least some of these bills will undergo substantial amendment as they work their way through the Legislature, meaning that, if these bills pass, the new laws may have very different provisions than those discussed below.
Assembly Bill 524 – FEHA Protection for Family Caregivers
Assembly Bill (“AB”) would add “family caregiver status” to the list of protected classifications enumerated in the Fair Employment and Housing Act (“FEHA”), which also includes race, sex, sexual orientation, and others.
Specifically, AB 524 would amend the FEHA to prohibit discrimination and harassment against an employee on the basis of their “family caregiver status” meaning their status as “a person who is a contributor to the care of one more family members.”
The bill defines the term “family member” broadly to include an employee’s spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or “any other individual related by blood or whose association with the employee is the equivalent of a family relationship.”
You can read the full text of AB 524 here.
Assembly Bill 518 – Expansion of Paid Family Leave
Currently, employees who pay into the Unemployment Compensation Disability Fund may receive up to 8 weeks of wage replacement benefits in order to take time off work to care for a seriously ill family member, meaning the employee’s child, spouse, parent, grandparent, grandchild, sibling, or domestic partner.
AB 518 would amend the Unemployment Insurance Code to expand the definition of “family member” to include any “individual related by blood or whose association with the employee is the equivalent of a family relationship.”
You can read the full text of AB 518 here.
This bill follows recent legislation, which took effect on January 1, 2023, that expanded the California Family Rights Act to allow eligible employees to take leave to care for a “designated person” meaning “any individual related by blood or whose association with the employee is the equivalent of a family relationship.” The same legislation also allows employees to take paid sick leave pursuant to the California Paid Sick Leave Law to care for a “designated person,” which means a person identified by the employee at the time the employee requests paid sick days. Click here to read more about this legislation.
Assembly Bill 1100 – Four-Day Workweek
AB 1100 states only, “It is the intent of the Legislature to subsequently amend this measure to include provisions that would establish a four-day workweek.” It is unclear how the four-day workweek will be defined once the bill is amended. However, a previous iteration of the bill provided that employees would be entitled to be compensated at an overtime rate (1.5 times the employee’s regular pay rate) for all hours worked beyond 32 in a given workweek.
You can read the full text of AB 1100 here.
Senate Bill 616 – Paid Sick Leave Increase
Senate Bill (“SB”) 616 would amend the Labor Code to increase the amount of paid sick leave employees are entitled to accrue, use, and carry over for use in subsequent years.
Currently, employers must provide employees with, and allow them to use, no fewer than 24 hours (or 3 days) of paid sick leave per year (subject to the accrual cap discussed below). SB 616 would increase that amount to not fewer than 56 hours (or 7 days) and would also allow eligible employees to carry over 56 hours (or 7 days) of paid sick leave into the next year of employment (whereas employees may currently carry over 24 hours or (3 days).
Finally, existing law allows employers to cap employees’ accrual of paid sick leave at 48 hours (or 6 days), meaning that, if an employee has accrued 48 hours (or 6 days) of paid sick leave, the employee will not accrue more paid sick leave until they use some that has already accrued. SB 616 would raise this accrual cap to 112 hours (or 14 days).
You can read the full text of SB 616 here.
Senate Bill 731 – Remote Work as a Reasonable Accommodation
SB 731 would amend the FEHA to authorize an employee with a qualifying disability to initiate a renewed reasonable accommodation request to perform their work remotely if certain requirements are met.
Under SB 731, a “qualifying disability” means “an employee’s medical provider has determined that the employee has a disability that significantly impacts the employee’s ability to work outside their home.” If an employee who has such a qualifying disability renews a previous request to work remotely, the employer would be required to grant that request if all of the following requirements are satisfied: (1) the employee requested and was denied remote work as a reasonable accommodation before March 1, 2020; (2) the employee performed the essential functions of their job remotely for at least 6 of the 24 months preceding the renewed request; and (3) the employee’s essential job functions have not changed since the employee performed their work remotely. However, the employer is not required to provide remote work as a reasonable accommodation if the employee can no longer perform all of their essential job functions remotely.
SB 731, if enacted, would be a significant departure from the standard interactive process in which employers engage with employees seeking a reasonable accommodation. Employers are currently not obligated to choose any particular accommodation or the accommodation preferred by the employee.
You can read the full text of SB 731 here.
We will continue to monitor these bills as they make their way through the Legislature and potentially to the Governor’s desk. Please check LCW’s blog for updates, which we will provide as soon as they become available.
Public Education Agencies, Take Heed! If You’re Not Paying Attention to SB 278 and AB 1667, You Could Be On the Hook for Repaying CalPERS or CalSTRS A Lot of Money
The Public Employees’ Retirement Law (PERL) and State Teachers’ Retirement Law (STRL) provide defined benefit retirement plans administered by CalPERS or CalSTRS, respectively, for eligible employees of participating public agencies (“employers”). To fund these plans, public education agency employers report member compensation to either CalPERS or CalSTRS directly, or through their county offices of education. Within these retirement systems, a complex scheme of governing statutes, regulations, and administrative guidance sometimes leads to unintended compensation reporting errors. In addition, because the specific items of compensation at a given public agency are often the product of collective bargaining or other negotiations, the negotiating parties sometimes inadvertently agree to terms that result in certain items of compensation becoming non-reportable to the applicable retirement system on technical grounds.
Over the last two years, the state of California has signed two bills into law, Senate Bill (SB) 278 (CalPERS) and Assembly Bill (AB) 1667 (CalSTRS), which impact how CalPERS and CalSTRS will collect on overpayments made to retirees as a result of compensation reporting errors. While both Bills address overpayments of pension benefits, AB 1667 goes further, and includes additional transparency measures in an effort to promote collaboration between CalSTRS and public education agencies and ensure proper reporting before issues (and large invoices!) arise.
CalPERS Employers: SB 278 shifted financial liability from retirees to their employing agencies for misreporting employee compensation
If your agency is a CalPERS agency, your HR and payroll teams should already be aware of SB 278, which became effective January 1, 2022. Prior to SB 278’s effective date, if CalPERS determined that it calculated a retiree’s final compensation to include a nonpensionable item, the retiree would have to repay CalPERS for the amount that CalPERS overpaid them as a result of any over-calculation, and prospectively reduce their monthly pension benefit based on the corrected reporting.
SB 278 shifts this financial exposure for overpayments from retirees to the employer if certain conditions are met, including that the nonpensionable compensation reported to CalPERS was an item to which the employer agreed in an MOU or CBA. Specifically, under SB 278, local agencies subject to the PERL must pay CalPERS the full cost of any overpayment received and retained by the retiree, in addition to a twenty percent (20%) penalty equal to the present value of the projected lifetime and survivor benefits. Under recent cleanup legislation to SB 278, AB 1824, retirees receive 100 percent of the penalty. Liebert Cassidy Whitmore previously discussed SB 278 here and here.
AB 1667 takes a page from SB 278’s playbook by adopting similar cost-shift provisions, but adds additional transparency and due process protections for employers, exclusive representatives, and retirees
AB 1667, which largely became effective on January 1, 2023, is the most significant update to the STRL since 2015. AB 1667 contains four primary components:
- Implementation of Updated Audit Procedures and Member Due Process Protections (Effective: January 1, 2023)
Effective January 1, 2023, AB 1667 modified CalSTRS’s audit process. These modifications include,
- CalSTRS must now send an engagement letter to a public education agency employer alerting them of an impending audit. The engagement letter must include information regarding the audit’s purpose and scope. The engagement letter will also request that the employer provide the names and email addresses of all exclusive representatives that represent the employer’s CalSTRS members whom the audit could affect. Once CalSTRS is in receipt of this information, it will provide the exclusive representatives with a copy of the engagement letter.
- Like CalSTRS’s pre-AB 1667 audit process, CalSTRS will continue to issue preliminary audit findings to the audited agency. Now, however, CalSTRS will also issue the preliminary findings to the exclusive representatives. The preliminary findings will include a list of the members that CalSTRS knows will be affected by the findings (which is usually the members who were part of the audit sample). Both the employer and exclusive representatives will have 60 days to review the draft audit findings and provide CalSTRS with written responses to the draft findings. CalSTRS will consider the responses prior to finalizing its audit report.
- Under AB 1667, CalSTRS will issue the final audit report to the audited agency employer and the exclusive representatives. Notification to the audited agency employer of the final audit report will trigger:
- A 60-day window from the date of the final audit report for the employer to submit a complete list of members affected by the audit (“affected members”); and
- A 90-day window from the date of the final audit report for the employer to appeal the audit findings and request an administrative determination. Exclusive representatives do not have appeal rights; only members have such rights, as discussed below.
Once CalSTRS receives the list of impacted members, CalSTRS will notify them of the final audit findings, and provide all affected members with appeal rights, whether or not the affected members were part of the audit sample. This additional due process protection for all affected members is a new right conferred by AB 1667. Prior to AB 1667, CalSTRS only provided this due process protection to members who were part of the audit sample. Affected members will have 90 days to appeal the audit findings from the date they receive a copy of the final audit report.
- Implementation of Benefit Overpayment Clawback (Effective: January 1, 2023, but certain payments won’t be recouped from employers until July 1, 2024)
Similar to CalPERS’s pre-SB 278 process of recouping overpayments, prior to AB 1667’s effective date, STRS would generally deduct any pension overpayments made to retirees by (a) seeking reimbursement of certain overpayments from the retirees themselves and (b) reducing future monthly pension benefits after adjusting the retiree’s final compensation to account for the mistaken overpayments. In other words, retirees, and not the employers, would bear the financial burden of overpayments, whether or not the retiree’s own conduct caused the mistake.
As a result of AB 1667, effective January 1, 2023, the party responsible for the reporting error will be the primary person or entity responsible for repaying pension overpayments made due to such error. As AB 1667 is intended to apply prospectively, this means that this new provision will apply only where CalSTRS notifies the retiree of the overpayment after January 1, 2023.
It is likely that under these amendments to the STRL, employers will be responsible for reimbursing CalSTRS for overpayments in most cases. This is because, in practice, CalSTRS has identified employer-made errors as the most common source of misreported income. However, unlike SB 278, AB 1667 does not impose a 20 percent penalty on top of reimbursement of the overpaid benefits.
CalSTRS will continue to hold retirees responsible for overpayments only if the retiree reported inaccurate or untimely information or failed to submit information, thus causing the error, or in instances of fraud or intentional misrepresentation. Additionally, the new law makes clear that where CalSTRS is at fault for the error that resulted in the overpayment, the State will pay 85 percent of the cost of overpayments, with the employer responsible for the remaining fifteen percent (15%).
CalSTRS intends to begin billing employers for employer-caused overpayments no earlier than May 1, 2023, and will issue such invoices on a quarterly basis. CalSTRS will not begin billing employers for CalSTRS-caused overpayments until July 1, 2024. The law requires employers to pay invoices within 30 days of receipt; failure to do so could result in the State withholding certain funds intended for appropriation to the education agency responsible for the payment.
- Employers and Exclusive Representatives May Request Advisory Letters from CalSTRS (Effective: July 1, 2023)
Effective July 1, 2023, public education agency employers and exclusive representatives may request from CalSTRS formal written guidance regarding their questions about compensation that either is or may be included in a written contractual agreement (e.g., CBA, MOU, employment agreement). In response, CalSTRS will issue an advisory letter that addresses the proper reporting (or non-reporting) of that item of compensation.
Once issued, the advisory letter will provide guidance upon which the requesting employer or exclusive representative (on behalf of a member) may rely to determine reportable compensation. If the guidance in the advisory letter is later determined to be incorrect, CalSTRS will attribute any resulting overpayments to CalSTRS under the 85%/15% split described above. An employer may not rely on advisory letters issued to other agencies. In other words, if an officer of an agency is in receipt of an advisory letter directed to a colleague at another agency, the officer cannot rely on that letter in disputing a determination made by CalSTRS regarding the officer’s own agency.
CalSTRS will develop a specific form on which to submit the request for an advisory letter. Employers and exclusive representatives should generally expect CalSTRS to issue an advisory letter within 30 days of the date CalSTRS has all supporting documents it needs to complete its review, although it can extend that timeline for good cause.
- CalSTRS Must Provide Interpretative Resources (Available: By July 1, 2023)
In addition to specific advisory letters, AB 1667 mandates that CalSTRS must develop and update interpretative resources on an annual basis that clarify the applicability of creditable compensation and creditable service laws, as well as regulations promulgated under those laws. Like the advisory letters, if the guidance provided in these interpretive resources is later determined to be mistaken, recovery will follow the 85%/15% State/employer split described above. However, unlike the advisory letters – on which only the requesting employer may rely – all employers that report to CalSTRS may rely on the guidance in the interpretive resources.
Additionally, CalSTRS must issue notice when adopting new or different interpretations before those interpretations can take effect. New or different interpretations in these resources, regulations, employer information circulars, or similar items will not apply retroactively to compensation reported prior to the notice, unless state or federal law or an executive order of the Governor expressly requires retroactive application. However, this lack of retroactivity does not appear to apply to situations where CalSTRS takes the position that its guidance only clarified existing law. It also does not appear to apply to unofficial guidance from CalSTRS, e.g. guidance issued over the phone or in emails from CalSTRS staff members.
Responding to AB 1667 and SB 278
To avoid these unanticipated costs of employer-generated reporting errors arising from SB 278 and AB 1667, employers should examine their current reporting practices and determine if their reporting is compliant with the STRL or PERL, their implementing regulations, and retirement system guidance. On the CalSTRS side, agencies should certainly take advantage of the new advisory letter system and timely review CalSTRS’s anticipated official interpretive guidance resources.
Agencies should also be sure not to overpromise during negotiations. This includes not agreeing to a CBA, MOU, or employment contract provision that guarantees that certain items of compensation are pensionable, particularly if the employer has not received express guidance from the retirement system.
LCW is continuing to monitor implementation of these bills and will host a free webinar on SB 278 and AB 1667, on March 9, 2023, to discuss the scope of these laws, what risks they present, and how agencies can take proactive steps to mitigate against their impacts. You can sign up for the webinar here.
Public Safety Video Briefing: Thinking About Body Worn Cameras- February 2023
Our short Public Safety Video Briefings will tackle cutting-edge issues and core principles relevant to public safety employers. We hope you find these videos useful and thought-provoking.
California Supreme Court to decide whether whistleblower protections apply when the employer already knows about the violation
The California Supreme Court has agreed to address whether the whistleblower statute, Labor Code section 1102.5, subdivision (b), applies to and protects from retaliation, an employee who discloses violations of law when that information is already known to the governing agency or person of authority at the employer. This question stems from the case People ex rel. Garcia-Brower v. Kolla’s Inc.
People ex rel. Garcia-Brower v. Kolla’s Inc.
In this case, the employee worked as a bartender at a night club. The employee told the owner of the night club that she had not been paid wages for her previous three shifts. The employee claimed the owner got upset after hearing her complaint, and he threatened to report her to immigration authorities, terminated her employment that same day, and warned her to never return to the establishment.
After being terminated, the former employee filed a retaliation complaint with the Division of Labor Standards Enforcement (DLSE). The DLSE conducted an investigation and the night club owner acknowledged that the former employee had complained to him about unpaid wages. The DLSE determined that the employer violated the law and ordered the employer to pay the former employee lost wages among other things. The Labor Commissioner then filed an enforcement action against the owners of the business, including a claim under Labor Code section 1102.5.
The trial court determined, however, that the Labor Commissioner had not stated a claim under section 1102.5. The trial court found that there could be no violation of the statute where the complainant had not approached a government agency, here the DLSE, about the employer’s conduct until after the termination. The Labor Commissioner appealed. The case went up on appeal following an entry of default judgment.
California Fourth District Court of Appeal
The Labor Commissioner urged the California Fourth District Court of Appeal to reverse the trial court’s conclusion regarding the section 1102.5 claim.
The appeals court found that the trial court applied an outdated version of section 1102.5. Under the amended statute in effect at the time of the employee’s complaint, an employee was no longer limited to reporting to an agency – they could now also disclose violations to a person with authority over them. Specifically, section 1102.5, subdivision (b) was amended to read:
An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information. . . to a government or law enforcement agency [or] to a person with authority over the employee. . . if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.
The appeals court agreed that reporting the violation to the night club owner would be sufficient, since the owner had authority over the employee. However, the appeals court noted that their analysis did not end there, because they must also consider whether the Labor Commissioner adequately alleged protected activity in its showing in support of default judgment.
For this analysis, the appeals court noted that there must be sufficient factual allegations to support each element of the cause of action. Here, based on their analysis of the meaning of the word “disclosing,” the appeals court concluded that an essential element of the Labor Commissioner’s claim was missing. It determined that the word “disclose” meant “to make known,” or “to reveal in words something that is secret or not generally known.” It found that the state Legislature’s choice of the word “disclose” as opposed to “report” or “tell” was significant. According to the appeals court, an employer’s “state of awareness” regarding a wrongdoing was “absolutely necessary to establishing a violation of the statute.”
Thus, in analyzing the Labor Commissioner complaint on behalf of the former employee, the appeals court concluded that nowhere in the complaint did the Labor Commissioner allege that the former employee “disclosed” to her employer that she had unpaid wages. Rather, the appeals court determined that the facts of the complaint, which describe the employer’s angry reaction to the employee’s claim of unpaid wages, suggests that the employer was already aware of the non-payment of wages, if not responsible for it. As a result, the appeals court held that there was no actual “disclosure,” because the employer already knew about his wrongdoing. However, not all the judges agreed with the majority opinion.
Dissenting Opinion
In the dissenting opinion, the dissent took issue with the majority’s definition of a “disclosure.” According to the dissent, the majority opinion’s interpretation of section 1102.5, subdivision (b) was contrary to the intent of the Legislature and would unduly burden an aggrieved whistleblower employee’s right to relief under the statute, among other things. The dissent argued that section 1102.5 was intended to reflect the broad public policy interest in encouraging workplace whistleblowers to report unlawful acts without fearing retaliation and that the majority opinion’s narrow definition of “disclose” would impede this goal. Therefore, the dissent asked the California Supreme Court to grant review.
California Supreme Court
The California Supreme Court agreed to review this issue and will decide the question: Does Labor Code section 1102.5, subdivision (b), which protects an employee from retaliation for disclosing unlawful activity, apply when the information is already known to that person or agency?
What this means for employers
The California Supreme Court’s interpretation of “disclose” could affect the employer’s burden in defending against whistleblower claims – particularly those claims involving allegations of violations about which the employer already knew. For instance, if the Court were to uphold the majority opinion’s definition of “disclose,” this could lead to a plaintiff having to persuade the jury of what was in the mind of the employer or person of authority who received the complaint, in order to determine if a “disclosure” was actually made.
To date, this issue remains pending before the Court. LCW will continue to monitor this case.
[JP1]Footnote:
Complying with Your Agency’s Title VI Obligations
California public agencies often accept funds, grants, and other federal financial assistance either directly from a federal department or agency, or indirectly through a California department or agency. Typically, when a public agency accepts federal financial assistance – either directly or indirectly – it must comply with specific obligations as a condition of receipt. Often, one such obligation is compliance with Title VI of the Civil Rights Act of 1964 (“Act”).
What is Title VI of the Civil Rights Act of 1964?
The Act is a landmark piece of legislation that was passed in 1964 to address discrimination in a variety of circumstances. The Act contains eleven titles, with each title focusing on combatting discrimination in a different way, such as in voting (Title I), commercial businesses (Title II), certain public facilities (Title III), public education (Title IV), federally funded programs (Title VI), and employment (Title VII).
As noted, Title VI prohibits discrimination in federally funded programs. Specifically, Title VI prohibits any person in the United States from being excluded, being denied the benefits of, or being subjected to discrimination on the ground of race, color, or national origin under any program or activity receiving federal financial assistance.
At the time it was enacted, the purpose of Title VI was to address the then common practice of denying individuals access to services, programs, and activities funded by federal financial assistance based on the individual’s race, color, or national origin. In speaking about the need for Title VI in 1963, then President John F. Kennedy said:
Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination. Direct discrimination by Federal, State, or local governments is prohibited by the Constitution. But indirect discrimination, through the use of Federal funds, is just as invidious; and it should not be necessary to resort to the courts to prevent each individual violation.
Title VI was an affirmative step by the federal government to prevent federal funds from being used to subsidize racial discrimination.
What are a Public Agency’s Obligations under Title VI?
Each public agency that accepts certain federal financial assistance must comply with Title VI. Title VI generally authorizes each federal department or agency that extends federal financial assistance to establish its own rules and regulations to effect the purposes of Title VI. Accordingly, receipt of some types of federal financial assistance just requires a public agency to sign and submit a written assurance that the program funded by the federal financial assistance will be conducted in compliance with Title VI and its implementing regulations and then – of course – take care to do so. But receipt of other types of federal financial assistance requires a public agency to also have and maintain a written comprehensive Title VI Plan that contains certain required elements and demonstrates how the public agency complies with Title VI with regard to the programs and services it provides to the public. Some of these required elements include:
- Designating and identifying an employee who serves as the agency’s Title VI Coordinator;
- Maintaining and posting a non-discrimination notice to the public;
- Maintaining a non-discrimination policy statement;
- Maintaining a complaint and investigation procedure for complaints of discrimination from members of the public;
- Maintaining and implementing a Limited English Proficiency (LEP) plan to assure meaningful access to services for persons with limited English proficiency; and
- Providing a summary of public outreach and involvement activities undertaken to assure that minority persons have meaningful access to the services provided.
Sources of federal financial assistance that commonly require a written comprehensive Title VI Plan include the U.S. Department of Health and Human Services, the Federal Highway Administration, the Department of Transportation, and the Federal Aviation Administration.
In order to understand a public agency’s obligations under Title VI, the agency must undertake a careful review of the federal financial assistance it has received (both directly from various federal departments and agencies and indirectly through California departments and agencies), the source of the funding, and any documentation it signed as a condition of receipt. Only by understanding their obligations, can a public agency take affirmative steps to comply with its Title VI responsibilities.
Public Safety Video Briefing: Peace Officer Speech in California: Will Kirkland v. City of Maryville Have an Impact Here? – January 2023
Our short Public Safety Video Briefings will tackle cutting-edge issues and core principles relevant to public safety employers. We hope you find these videos useful and thought-provoking.
Tips from the Table: Preparing a New Elected Official for Labor Negotiations
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.
How Does California’s New Pay Transparency Law Impact Your Organization?
While those of you in the public sector are accustomed to seeing salary information in job postings, now private employers who post jobs in California are required to post salary ranges in their job advertisements. Effective January 1, 2023, California expanded its pay transparency laws. The new law has two major components: 1) pay scale disclosure; and 2) pay data record keeping and reporting. Read on to find out how these laws impact your organization.
Pay Scale Disclosure
Under the new law, all private employers with 15 or more employees who post jobs in California will need to include pay scale data in published job advertisements. Moreover, if an employer uses a third party to advertise a job, the employer must provide the third party with a pay scale to include in the job posting. The law describes the pay scale is “the salary or hourly wage range that the employer reasonably expects to pay for the position.” However, there is no further guidance in the statute about how broad the pay scale range can be.
While the salary disclosure requirements may be old hat for public entities, there are components of the new law that apply to both the private sector and the public sector. For example, upon request, all employers of any size are required to disclose the pay scale for a position to both job applicants and current employees.
Similarly, the portions of the law regarding salary determinations apply to both public and private sector employers. Under Labor Code section 432.3, employers cannot rely on an applicant’s salary history as a factor in determining whether to offer employment or in determining what salary to offer an applicant. In fact, employers are prohibited from seeking an applicant’s salary information. However, nothing in the law prohibits an applicant from voluntarily disclosing salary history information to a prospective employer. If an applicant voluntarily discloses salary history information without prompting, then the employer can consider such information in setting the salary for the applicant. So, what can you ask an applicant when it comes to pay? You can ask about the applicant’s salary expectation for the position for which they have applied.
Pay Data Reporting
California’s new pay transparency law also impacts employer data reporting for both public and private sector employers. The law also requires employers to maintain records of job title and wage history for each employee for the duration of employment plus three years. The Labor Commissioner can inspect those records to determine if there is a pattern of wage discrepancy. If employers violate these rules the Labor Commissioner may issue penalties up to $10,000. Moreover, if an employer fails to keep records in violation of Labor Code section 432.3, there is a rebuttable presumption of pay disparity in favor of the employee if the employee makes a legal challenge. This is especially important to note because the new law created a private right of action for violations of the pay transparency law, giving aggrieved parties the right to seek injunctive and “any other appropriate relief.”
What can you do to be ready for the new law?
- Make sure your job advertisements include salary information.
- Be sure your hiring personnel are aware of what they can and cannot ask applicants regarding their salary history. LCW offers training on hiring and a variety of other topics. Contact Anna M. Sanzone-Ortiz (asanzone-ortiz@lcwlegal.com) for more information on LCW’s training programs!
- Maintain job title and wage history information for three years after employee separation.
- Consider a pay equity audit of current employee wages to ensure there are not any significant discrepancies or inequities.
- Consider developing a formalized pay equity policy.
Conclusion
The law is seen as a positive step towards achieving pay equity in California, and is a model for other states to follow. However, it remains to be seen how effective the law will be in achieving its goals, and how it will be enforced.
If you have any questions or need further guidance on how to comply with California’s wage transparency law, contact your trusted legal counsel.