On the afternoon of May 31, 2019, a disgruntled public employee fatally shot twelve people and wounded four others in a mass shooting at a municipal building in Virginia Beach, Virginia. Eleven were city employees, and one was a contractor in the building there to obtain a permit. The building housed the city’s public works, utilities, and planning departments in an open-government facility with no additional security to enter but security passes required for accessing employee areas and conference rooms.

Violence in the workplace is not a new phenomenon. The most recent data gathered by the U.S. Bureau of Justice on workplace violence specific to public employees found that from 2002 to 2011, about 96 percent of workplace violence against government workers was against state, county, and local employees. Public employers and employees in particular are uniquely exposed to workplace violence.

What is Workplace Violence?

The Occupational Safety and Health Administration (OSHA) defines workplace violence as any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the worksite. It ranges from threats and verbal abuse to physical assaults and even homicide. Workplace violence may affect and involve employees, clients, consumers, and visitors.

California’s Workplace Violence Prevention Standards

Cal/OSHA is the state program responsible for protecting the health and safety of workers. Cal/OSHA requires employers to have an Injury Illness Prevention Program that includes procedures for identifying, evaluating, and correcting workplace hazards. Additionally, other laws reflect an employee’s right to a safe workplace, including Labor Code section 6400 which requires that “[e]very employer shall furnish employment and a place of employment that is safe and healthful for the employees therein.” Additionally, Labor Code section 6401 requires employers in general terms to do what is “reasonably necessary to protect the life, safety, and health of employees.”

What Can Employers Do To Help Prevent Workplace Violence?

Employers can take the following steps to help prevent workplace violence and to improve the workplace violence prevention plan they have in place:

  • Applicant screening: Most public agencies utilize some type of applicant screening process. During the pre-employment stages, applications and interviews are some of the early and effective methods for learning about an applicant, as some responses may raise red flags. At the interview stage, employers should look for gaps in work history that could indicate dishonesty or prior employment problems. To the extent possible, employers should ask applicants fully to explain any prior misconduct and/or imposed disciplined. In doing so, the employer must be careful to avoid making improper pre-employment inquiries that violate an employee’s right to privacy or other laws. Employers may conduct a criminal history check after offering a job. However, with the exception of certain positions, the law requires an individualized assessment about the applicant’s conviction history (such as considering the nature and gravity of the offense, the time that has passed since the conviction, and the nature of the job the applicant is seeking) prior to revoking an offer due to the applicant’s criminal history.
  • Written Policies: Employers should create, maintain, and evaluate workplace violence policies and procedures, and determine what, if any, additional policies and procedures need to be updated or addressed. Employers should also collect and review reports of any prior workplace violence events or threats of violence.
  • Training and Performance Evaluations: Employers should train supervisors, managers, and employees on risk factors for workplace violence and ways to prevent such incidents. Employers should also conduct regular performance evaluations in order to identify and address employee performance and dissatisfaction early on and provide guidance on improvement, since warning signs of a potentially violent situations may be found in job performance evaluations.
  • Stay Informed: The California Legislature recently passed legislation aimed at preventing workplace violence. For example, AB 61, signed by Governor Newsom on October 11, 2019 and effective September 1, 2020, expands existing law to allow public employers to file a gun violence restraining order against employees who show signs of a significant danger of harm by firearm.

LCW provides trainings in workplace violence prevention. For more information about trainings and policy reviews, please click here or contact Cynthia Weldon, the Director of Marketing and Training Department at 310.981.2000.

Let’s set the scene.  It’s February of 2020, and an employee comes to you, a supervisor, to “vent” about being the target of off-color comments and jokes due to the employee’s national origin.  The employee does not use the term “harassment.”  Moreover, the employee tells you that they are just talking it out, and they don’t want to see anyone get into trouble.  They do not request that the matter be investigated.

Should you investigate even if the employee does not use the term “harassment”?  If you want to protect your employer, then the answer is “yes!”  Should you investigate even if the employee doesn’t request that the matter be investigated?  The answer is also “yes!”

You should investigate because the employer is now on notice of possible harassment due to a protected class and, under state and federal law, obligated to take action to prevent and/or correct it.  A prompt and thorough investigation can go a long way toward ensuring that the employer has complied with its legal obligations.  In fact, it could even convince the employee not to initiate litigation or, if a lawsuit is filed, it will be the cornerstone of the employer’s defense.

To illustrate this, let’s return to our scene, but fast-forward to December of 2022.  The employee is not selected for a promotion.  The following month, in January of 2023, the employee files a harassment complaint with the DFEH.  The employee alleges that they complained to you about harassment in February of 2020, but that the employer failed to investigate and take remedial action.  A year later, in January of 2024, the employee receives a right-to-sue notice.  The employee then files suit for harassment and failure to take action to correct and/or prevent harassment.

The employee’s lawsuit is filed four years after the employee came to you to “vent” about harassment.  Is the employee’s lawsuit too late?  The answer is no.

On October 10, 2019, Governor Gavin Newsom signed Assembly Bill 9 (“AB 9”).  Effective as of January 1, 2020, AB 9 amended sections 12960 and 12965 of the Government Code, increasing the statute of limitations to file a discrimination, harassment and/or retaliation complaint with the Department of Fair Employment and Housing (“DFEH”) from one to three years.  If no right-to-sue notice is requested, the DFEH can issue such notice up to one year after the filing of the complaint.  In practical effect, a lawsuit may be filed against an employer four years from the date of the alleged unlawful practice.

This employee’s lawsuit in the scenario above could have been avoided by prompt and thorough investigation.  Such an investigation would establish that the employer takes allegations of harassment seriously, and that prompt corrective action will be taken.  Moreover, such an investigation serves to preserve a record of what was said and done at the time of the events.  That record can be used in litigation long after memories have faded and witnesses have moved on and, in many cases, away.

The employer should never be lulled into inaction by an employee’s assertion that they are just “venting” (or even by the employee’s failure to use the term “harassment” while “venting”).  Once the employer is on notice of possible harassment based on an individual’s protected class, the employer must take action to prevent and/or correct it.  A prompt and thorough investigation not only ensures that the employer is complying with state and federal law, but may also help avoid a lawsuit.

With Valentine’s Day upon us, cupid may have left a few arrows in the workplace.  People spend a lot of time with coworkers, including time at work and at social events, so it is not unheard of for workplace relationships to evolve into romantic relationships.  A U.S. workforce study found that 36 percent of workers have dated a coworker at some point in their career.  When romantic relationships enter the workplace, the relationship is no longer just between two people, but can affect coworkers, supervisors, and the public.  While the idea of having an office sweetheart may boost some employees’ morale, romantic relationships in the workplace can create employee dissension and legal liability for employers. To read more about dating in the workplace see the original blog post here.

With the legalization and decriminalization of hemp in 2018 by the 2018 Farm Bill, we are seeing an explosion of CBD products in markets all across the U.S. You can buy CBD lotions, oils, tinctures, vapes, and even CBD-laced foods. (Although there is a bill in place to ban CBD-laced food and beverages.) CBD (short for cannabidiol) is one of many cannabinoids, or molecules produced by the cannabis plant. Unlike its infamous sibling THC (or tetrahydrocannabinol), CBD does not have psychoactive effects that cause the “high” associated with cannabis. Advertised as wellness products, CBD products claim to naturally cure anxiety, pain, depression, high blood pressure, spasms, acne, and schizophrenia, and even stave off diabetes. (https://www.healthline.com/nutrition/cbd-oil-benefits#section6.) (This article makes no comment on the validity of these health claims.) Given that these products are sold everywhere from CVS to your local supermarket, they are presumably legal, but are all CBD products legal? And can they affect the results of a drug test? It turns out the answer isn’t a simple “yes” or “no.”

Are All CBD Products Legal?

CBD products are legal to the extent they are made from hemp and contain less than 0.3% THC. Hemp and marijuana are the same cannabis plant except that hemp has a THC concentration of less than 0.3%. (21 U.S.C. § 802(16).)  Unlike marijuana, which is Schedule I controlled substance regulated by the Drug Enforcement Agency, hemp is not a controlled substance at all. (21 U.S.C. § 812 under Schedule I (c)(17).) Hemp is an agricultural product regulated by federal and state departments of agriculture. Thus hemp-derived products (such as CBD products) are similarly “legal” (that is, they are not illicit drugs). However, both CBD and THC occur naturally in all cannabis plants, and it is impossible to predict the THC levels in a given plant.

This brings us to the main issue with trusting CBD products: lack of enforcement. Researchers tested the accuracy of CBD product labels and found that a significant percentage of tested products contained over the legal amount of THC and most of the labels under- or over-represent the amount of CBD.  (One study published in the Journal of American Medical Association found THC in 18 of 84 products with an average concentration of 0.45%. In a different study, researchers at the University of Arkansas found that in 3 of 25 products contained over 0.3% THC and 4 others contained synthetic cannabinoids.) While the U.S. Food and Drug Administration (“FDA”) does some enforcement (see: list of warning letters issued by FDA), its ability to crack down on this burgeoning market is limited. In California, the responsibility of enforcing this 0.3% THC limit in CBD products falls on local authorities.

Trusting what’s on a label always involves risk, but some companies are more transparent than others. For example, some manufacturers provide batch numbers for each of their products that allow you to look up CBD and THC testing results for your specific product.

Will CBD show up on a drug test?

Drug tests, such as those used by employers for screening safety-sensitive employees, look for the presence of THC to determine whether a subject has used marijuana. CBD products can result in a positive drug test if the product is tainted or contains more than the advertised amount of THC. It can also happen even if an employee has only used CBD products with less than 0.3% (or even 0.01%) THC. THC accumulates in the body and is detectable for up to 30 days, so with repeated use, consuming even trace amounts over time may result in a positive drug test. In a study by a team at John Hopkins Medicine, 2 of 6 participants who used CBD products with 0.39% THC tested positive. (https://www.sciencedaily.com/releases/2019/11/191104141650.htm)

Even more troubling, in 2012 researchers found that a common testing method used in urine tests could not differentiate between CBD and THC. This can result in a false positive for marijuana even though an employee has consumed only pure, legal CBD products. (See article by the New York Times: https://www.nytimes.com/2019/10/15/science/cbd-thc-cannabis-cannabidiol.html.) Once a drug test comes back positive, employees (and employers) may have little recourse for challenging this result outside of the courts. Basically, no matter how careful you are, using CBD products comes with a risk for drug-tested employees.

As an employer, what can you do?

-Educate your employees as to the risks of using CBD products.

-Talk to the vendor or laboratory that conducts drug tests and ask whether the specific testing method they use can differentiate between CBD and THC and whether they have procedures in place for identifying false positives caused by CBD.

For more information about what the FDA is doing to regulate CBD products, visit: https://www.fda.gov/news-events/public-health-focus/fda-regulation-cannabis-and-cannabis-derived-products-including-cannabidiol-cbd

 

In this Special Bulletin, we address how to respond to potential employment issues arising from the 2019 Novel Coronavirus (“Coronavirus”) and we recommend steps to limit the impact of the Coronavirus in the workplace.

The Public Health Response and Current Situation

As of January 27, 2020, the Centers for Disease Control and Prevention (“CDC”) has issued a Level 3 health travel notice (the highest threat level) recommending that people avoid all nonessential travel to China.

On January 30, 2020, the World Health Organization (“WHO”) declared the Coronavirus outbreak a “public health emergency of international concern.” After WHO’s global health emergency declaration, the U.S Department of State raised its China travel advisory to Level 4: “Do Not Travel.”

On January 31, 2020, the U.S. Department of Health and Human Services declared a public health emergency in the United States and implemented the following:

  • Any U.S. citizen returning to the U.S. who has been in the Hubei province of mainland China in the previous 14 days will be subject to up to 14 days of mandatory quarantine.
  • Any U.S. citizen returning to the U.S. who has been in any other part of mainland China within the previous 14 days will undergo proactive entry health screening at a select number of ports of entry and up to 14 days of monitored self-quarantine to ensure they have not contracted the virus and do not pose a public health risk.

Also on January 31, the U.S. President signed a presidential proclamation, suspending the entry into the United States of foreign nationals, other than immediate family of U.S. citizens and permanent residents, who have traveled in China within the last 14 days.

What is the Coronavirus?

The Coronavirus is a respiratory virus first identified in Wuhan, Hubei province of China. This virus most likely originally emerged from an animal source but now seems to be spreading person-to-person.  For confirmed Coronavirus infections, reported illnesses have ranged from people with little to no symptoms to people being severely ill and dying. Symptoms can include fever, cough, and shortness of breath. The CDC believes at this time that symptoms of the Coronavirus may appear in as few as two or as long as fourteen days after exposure.

How does the Coronavirus spread?

According to the CDC, little is known about how the Coronavirus spreads. Most often, spread from person-to-person happens from close contacts (about six feet). Person-to-person spread occurs mainly via respiratory droplets produced when an infected person coughs or sneezes, similar to how influenza and other respiratory pathogens spread. These droplets can land in the mouths or noses of people who are nearby or can be inhaled into the lungs. It is currently unclear if a person can contract Coronavirus by touching a surface or object that has the virus on it and then touching their own mouth, nose, or possibly their eyes.

Typically, as with most respiratory viruses, people are thought to be most contagious when they are most symptomatic (the sickest). With the 2019 Novel Coronavirus, however, there have been reports of spread from an infected patient who had no symptoms to a close contact. There is much more to learn about the transmissibility, severity, and other features associated with the Coronavirus and investigations are ongoing.

What Actions can Employers take to Prevent the Transmission of the Coronavirus?

  • As discussed above, the United States is imposing a 14-day mandatory quarantine on individuals who have traveled to Hubei province, and 14 days of monitored self-quarantine for individuals returning from other parts of mainland China. The director of the CDC stated that people in mandatory self-quarantine “will be monitored by the local health departments in a self-monitoring situation in their home.”
  • Currently, there is no Coronavirus vaccine available, so the CDC is recommending standard precautions, such as: washing hands with soap and water for at least 20 seconds; avoiding close contact with sick people; staying at home when you are sick; and disinfecting frequently touched objects and surfaces.
  • Employers should prepare for the possibility that some employees may have to stay home in the event of school closures or childcare concerns.
  • Employers should ensure that common areas in the workplace, including computer keyboards used by more than one person, are kept clean and disinfected.
  • Employers should inform employees that information regarding medical conditions is kept strictly confidential and they will not suffer retaliation for reporting that they are ill or if they need to take a family or medical leave.

Issues that Employers Should Consider Regarding the Coronavirus

  • Employers and employees should not prejudice employees of Asian descent because of fear of this new virus. Do not assume that someone of Asian descent is more likely to have the Coronavirus.
  • Follow federal, state and local laws, as well as any agency policies and/or collective bargaining agreements provisions, covering family and medical leave entitlements, and confidentiality require­ments.
  • Review all applicable guidance from the Occupational Safety and Health Administration (“OSHA”), CDC and WHO. Although OSHA has not announced specific standards covering the Coronavirus, it has issued a notice indicating that employers should be aware of general standards to which they may be subject under OSHA. The Notice is available at: https://www.osha.gov/SLTC/novel_coronavirus/standards.html.
  • Avoid asking employees questions about any known or suspected medical condition or med­ical history. In 2009, the Equal Employment Opportunity Commission (“EEOC”) released a notice titled “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” which provides guidance. The Notice is available at: https://www.eeoc.gov/facts/pandemic_flu.html
  • If applicable, refer to your agency’s pandemic or health protection policy for further guidance.

Information about the Coronavirus is constantly developing. Liebert Cassidy Whitmore will continue to monitor employment issues related to the Coronavirus and will issue ongoing bulletins. Employers should also continue to refer to the CDC, WHO, and OSHA websites for the latest information.

The California Supreme Court will soon schedule oral argument in controversial cases involving legislative pension reform impacting the pension benefits of state and local government employees. By the close of 2020, the Supreme Court will issue a decision that may very well strike at the heart of the so-called “California Rule.”

For nearly 60 years, since the California Supreme Court issued its decision in Allen v. City of Long Beach in 1955, the “California Rule” remained a mainstay of California common law. The California Rule is the general notion that a public employee is vested in the pension benefit promised at the start of employment such that those benefits cannot be reduced even for prospective service except under exceptionally limited circumstances. To be legally permissible under the California Rule, the modification of a pension benefit “must bear some material relation to the theory of a pension system and its successful operation” and any modification that results in disadvantages to employees must be accompanied by comparable new advantages.

Among the provisions enacted with the Public Employee Pension Reform Act of 2013 (PEPRA) were changes to the definitions of “compensation earnable” or “pensionable compensation.” These two terms refer to the items of employee compensation that may be included in the calculation of the employee’s ultimate pension benefit. For example, compensation for special assignments, education, or performance of extra duties. The PEPRA revised a statute under the County Employees Retirement Law of 1937 (CERL) such that particular items of compensation that were formerly included in “compensation earnable,” are now expressly excluded for employees hired prior to PEPRA’s effective date (“Legacy Members”). Soon after, Legacy Members challenged what they believed to be PEPRA’s violation of the California Rule.

The first of these cases decided by a California Court of Appeal was Marin Assn. of Public Employees v. Marin County Employees’ Retirement Assn. in 2016. In Marin, the court held that public pension system members are not entitled to an immutable, unchanging pension benefit for the entirety of employment, but are entitled only to a “reasonable” pension. The Marin court further held that detrimental pension modifications should, rather than must, be accompanied by comparable new advantages. The Marin court focused heavily on the “dire financial predictions necessitating urgent and fundamental changes to improve the solvency of various pension systems” in concluding that PEPRA’s modifications to the definition of compensation earnable for Legacy Members was “reasonable” and therefore, did not impair constitutionally protected vested rights. The Marin Association of Public Employees appealed the decision. The California Supreme Court granted review on November 22, 2016, but deferred action in the matter pending the decision in the next case, Alameda County Deputy Sheriff’s Assn. v. Alameda County Employees’ Retirement Assn.

Decided in 2018, the Alameda court declined to follow the decision in Marin, issuing a decision closer in line with the California Rule. The court held that the law requires an individualized balancing test to determine if modifications to pension benefits are reasonable and lawful. The Alameda court explained that when detrimental modifications are made to a public employee’s pension benefits, and no corresponding new advantages are provided, the application of the detrimental changes can only be justified by compelling evidence establishing that the required changes bear some material relation to the theory of a pension system and its successful operation. The Alameda court instructed that the individualized analysis requires focusing on factors such as the impacts of the detrimental changes on the Legacy Members and whether exempting the Legacy Members from the detrimental changes would make it difficult for the particular pension system to meet its pension obligations. The Alameda decision was appealed and the California Supreme Court granted review on March 28, 2018.

Marin and Alameda leave us with somewhat conflicting legal frameworks for analyzing if, when, and under what circumstances a public employer or the legislature may modify the pension benefits of public employees after they have begun employment. On January 10, 2020, the Supreme Court issued notice for the scheduling of oral argument. This means a final decision of the Supreme Court may come before the end of the year that may provide an answer as to the existence and fate of the California Rule.

 

Marin Assn. of Public Employees v. Marin County Employees’ Retirement Assn. (2016) 2 Cal.App.5th 674 review granted, Marin Association of Public Employees v. Marin County Employees’ Retirement Association (State of California) (Cal. 2016) 210 Cal.Rptr.3d 15.

Alameda County Deputy Sheriff’s Assn. v. Alameda County Employees’ Retirement Assn. (2018) 19 Cal.App.5th 61, as modified (Feb. 5, 2018), review granted Alameda County Deputy Sheriff’s Association v. Alameda County Employees’ Retirement Assn. (Cal. 2018) 230 Cal.Rptr.3d 681.

On January 7, 2020, Assemblyman Jordan Cunningham (R-San Luis Obispo) reintroduced Assembly Bill 1599, which proposes to expand upon Senate Bill 1421 by making more records relating to officer-involved sexual assault available to the public.  SB 1421 changed the status quo by amending Government Code section 832.7 to generally allow disclosure of records related to certain categories of officer misconduct:  (1) officer-involved shootings; (2) certain uses of force; (3) sustained findings of sexual assault involving a member of the public; and (4) sustained findings of certain types of dishonesty.  We described this legislation in detail in a previous Special Bulletin.

Despite SB 1421’s attempt to streamline disclosure of such records, language contained within Penal Code section 832.8(b) has created some complexities with regard to how public agencies handle California Public Records Act (PRA”) requests.  Specifically, Penal Code section 832.8(b) defines “sustained” as “a final determination by an investigating agency, commission, board, hearing officer, or arbitrator, as applicable, following an investigation and opportunity for an administrative appeal pursuant to Sections 3304 and 3304.5 of the Government Code that the actions of the peace officer or custodial officer were found to violate law or department policy.”

Compliance with a PRA request for records relating to sustained findings of sexual assault seems straightforward where imposed discipline has been upheld after an administrative hearing.  It is also clear that if the investigation is ongoing, or an administrative appeal of imposed discipline is pending, then the allegations have not yet been “sustained” and disclosure is not yet warranted.  However, what if a peace officer decides to resign prior to the completion of an investigation or prior to discipline, in an effort to dodge a negative mark on their record?  *Cue AB 1599.*  AB 1599 seeks to “increase police transparency” and expand upon SB 1421 by modifying the language of Penal Code section 832.8(b).  It would make available for public inspection “personnel records pertaining to a peace officer or custodial officer accused of sexual assault involving a member of the public when the peace officer or custodial officer resigns before the employing agency has concluded its investigation into the sexual assault…”  Thus, records previously which at least arguably may not have been subject to disclosure would now clearly be subject to disclosure to the public pursuant to a PRA request.

AB 1599 and its proposed changes to the existing law are still in its preliminary stages. Until further legislative guidance on SB 1421 has been provided and AB 1599 becomes law (or not), we recommend public agencies seek case-specific legal advice to decide whether they will disclose records regardless of whether a “sustained finding” has been made regarding officer-involved sexual assault, or whether a peace officer has resigned prior to the completion of an investigation.

We authored prior blog posts on SB 1421 which can be found here:

In the meantime, stay tuned for upcoming updates on AB 1599.

It might surprise many California public employers that there is no law that requires them to provide meal and rest breaks to most of their employees.  Similarly, there is no law that requires California public employers to pay overtime to most of their employees for working over eight hours in a day or pay “double time” for working over 12 hours in a day.

What about the FLSA?  Nope.  With respect to overtime, the FLSA requires that an employee work over 40 hours in a seven-day work week before being paid overtime.  The federal law is silent on daily overtime.  Similarly, the FLSA does not mandate meal periods or daily overtime.

What about California law?  Well, this is where it gets a bit interesting.  For example, a California public employer or employee may have looked up Labor Code section 510, which states:

Eight hours of labor constitutes a day’s work.  Any work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek and the first eight hours worked on the seventh day of work in any one workweek shall be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee.  Any work in excess of 12 hours in one day shall be compensated at the rate of no less than twice the regular rate of pay for an employee.  In addition, any work in excess of eight hours on any seventh day of a workweek shall be compensated at the rate of no less than twice the regular rate of pay of an employee.

Upon reading this, one might be convinced that California public employers are required to pay daily overtime and/or double overtime.

In 2009, however, the California Court of Appeal held in Johnson v. Arvin-Edison Water Storage District, that “unless the Labor Code provisions are specifically made applicable to public employers, they only apply to employers in the private sector.”   Section 510 does not specifically reference public employers, and under the plain language of Johnson’s holding, it should not apply to them.

Still not convinced?  Well, let’s look at the California Industrial Welfare Commission Wage Orders.  For example, IWC Wage Order 4, which applies to employees in professional, technical, clerical, mechanical, and similar occupations, states, in Section 1, paragraph (B):

Except as provided in Sections 1, 2, 4, 10, and 20, the provisions of this order shall not apply to any employees directly employed by the State or any political subdivision thereof, including any city, county, or special district.

Notably missing from this are Sections 3, 11, and 12.  Section 3 requires daily overtime.  Section 11 requires meal periods.  Section 12 requires rest periods.  This Wage Order, and others like it, expressly exempt California public employers from state overtime provisions and meal and rest break requirements.

But before we finish, we have to note the exceptions.

Some agricultural and irrigation public employees may be covered by state IWC Wage Order 14, which regulates agricultural and irrigation employees.  Commercial drivers for public entities are covered by portions of state IWC Wage Order 9, which regulates the transportation industry.  In addition, Wage Order 15 generally applies to public entities that employ in-home services support workers.

Why do California public employers still provide meal breaks and daily overtime?

More likely than not, this is because public agencies do provide for meal periods and rest breaks in some agency rule or policy or in a collective bargaining agreement.  This is where you will also likely find daily overtime provisions.  This is important to know so that California public employers can properly enforce these requirements, either under the law or by contract.

Plaintiff Cari McCormick worked as an appraiser for Lake County.  In 2010, she started to experience physical pain throughout her body and felt constantly fatigued.  McCormick’s symptoms worsened when she was in her office environment but felt much better if she was at home or outside.  McCormick was eventually told by her supervisors that she “was a liability” and “should stay home.”  McCormick took leave under the Family Medical Leave Act and continued to ask for accommodations such as permission to telecommute.  However, her supervisors declined to let her work anywhere other than in the courthouse.  In May 2013, Lake County terminated McCormick’s employment because she had exhausted her medical leave.

McCormick applied for disability retirement to CalPERS.  In the application, she stated that her disability was “[respiratory] and systemic health problems as a result of exposures in indoor environment” at the courthouse.  She also explained that she could work in another building but that her employer would not allow her to work outside of the courthouse.  CalPERS denied the application in December 2014.  McCormick appealed the decision.  At the administrative hearing on the appeal, McCormick’s doctor indicated that he had initially opined that McCormick was “temporarily partially disabled.”  He explained at the hearing that he had assumed in forming his initial assessment that she would be able to find a different location in which to work.  While his diagnosis remained unchanged, McCormick’s doctor testified that McCormick was permanently disabled to the extent that she was unable to work at that courthouse due to her symptoms.  CalPERS presented testimony from another one of McCormick’s doctors who opined that “if the environment can be amended or… accommodations [could be provided] to help her, then she would not be disabled.”

Accordingly, based on the medical testimony, the administrative law judge (ALJ) issued a proposed decision denying McCormick’s appeal and finding that she was not permanently disabled or substantially incapacitated from performing her usual job duties at the time she submitted her disability retirement application.  The ALJ rejected McCormick’s argument that because the County would not accommodate her to work at a location outside the courthouse, she was substantially incapacitated from performing her usual job duties.  The Board of Supervisors adopted the ALJ’s proposed decision and McCormick filed a petition for writ of administrative mandate.

The Court of Appeal did not dispute that McCormick was physically capable of performing her usual job duties if she worked in an environment that did not trigger her systems.  However, the Court acknowledged that “Section 21156 is concerned with members’ ability to perform their duties for their actual employers, not their ability to perform their duties in the abstract.  Thus, the relevant question is whether McCormick was incapacitated from performing the duties of an Appraiser III for Lake County, not whether she was incapacitated from performing them elsewhere.”  Thus, whether McCormick was able to perform the duties of an appraiser somewhere other than the Lakeport courthouse did not foreclose a finding that under Section 21156 that she was unable to perform her usual job duties.  Moreover, Lake County denied McCormick’s request for accommodation, which included a request to work in a different location or environment. Therefore, the Court found that CalPERS may not deny disability retirement under Section 21156 when, due to a medical condition, applicants can no longer perform their duties at the only location where their employer will allow them to work.

Based on the holding of this case, employers should explore, during an interactive process meeting, whether the employee can perform their essential job duties at a different work location as a reasonable accommodation.  If the employer denies such an accommodation, then the employee may be found to be substantially incapacitated from performance of their usual job duties and entitled to a disability retirement.

On October 8, 2019, the U.S. Supreme Court heard oral arguments in three cases: Altitude Express, Enc. v. Zarda (out of New York), Bostock v. Clayton County, Georgia (out of Georgia), and R.G. and G. R. Harris Funeral Homes v. EEOC (out of Michigan).  All three cases involve plaintiffs arguing that Title VII of the Civil Rights Act, which prohibits employment discrimination “because of . . . . sex,” includes protection against discrimination because of sexual orientation or gender identity.  Zarda and Bostock both involve men who were fired from their jobs after coming out as gay.  Harris involves a transgender woman who was fired after she informed her employer of her identification as female, when she was previously living as a man.

Zarda and Bostock, the two cases involving male employees that were fired after coming out as gay, were heard before the Supreme Court together.  The U.S. Court of Appeals for the Second Circuit in Zarda ruled that discrimination based on sexual orientation is protected by Title VII.  The U.S. Court of Appeals for the Eleventh Circuit in Bostock, on the other hand, had ruled that Title VII does not cover discrimination based on sexual orientation.

The transgender woman in Harris was allegedly fired after she announced in 2013 her intention to live as a woman and have sex-reassignment surgery to reflect her female identity.  Her employer testified that he fired her because she was “no longer going to represent himself as a man” which he believed would go against “God’s commands.”  The U.S. Court of Appeals for the Sixth Circuit reversed the district court’s ruling that Title VII does not apply to transgender employees.  The employer thereafter appealed to the U.S. Supreme Court.

At oral argument, in Zarda and Bostock, the plaintiffs argued that sexual orientation discrimination is on the basis of “sex” for purposes of Title VII protection because when an “employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII.”  The employer argued that “sex” and “sexual orientation” are separate and different characteristics, and that “sexual orientation by itself does not constitute discrimination because of sex under Title VII.”  The Trump Administration presented its views at oral argument as amicus curiae (third party or friend of the court) on behalf of the employer.  The Justices’ questioning in Zarda and Bostock focused on the role of Congress and what it understood “sex” to mean when enacting Title VII, as well as the effect on bathroom usage and sex-specific dress codes.

The Plaintiff in Harris argued that a transgender female employee was fired for contravening sex-specific expectations and stereotypes about how men and women should behave, and that the term “sex” as used in Title VII should be narrowly read to mean “sex assigned at birth.”  Taking a similar position to that of the employers in Zarda and Bostock, the employer argued that sex and transgender status are independent concepts,  and also advanced the notion that “sex-based differentiation is not the same as sex discrimination.”  In the Harris oral argument, the Trump Administration also argued as amicus curiae on behalf of the employer and pointed out that Justice Gorsuch commented that Harris was a “close textual case.”  The questioning from the Justices again revolved a lot around the implications of sex-specific bathroom usage and sex-specific dress codes.

The rulings in all three cases will likely be handed down in Summer 2020 at the latest.

In comparison to federal law, California law already provides significant protections for both the sexual orientation and gender identity or expression of LGBTQ+ employees.  The Fair Employment and Housing Act (FEHA) prohibits discrimination and harassment on the basis of sexual orientation, gender, gender identity, and gender expression.  Gender expression under FEHA is defined as a “person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.”  FEHA accordingly protects both transgender and non-binary employees, as well as persons undergoing gender transition, from discrimination and retaliation.

The Supreme Court’s decisions in these three cases will likely not have a significant impact on California’s standing protections of LGBTQ+ employees.  Since 2012, California’s anti-discrimination laws expressly include a person’s sexual orientation, gender identity, and gender expression.   If the Supreme Court decides in these cases that Title VII’s prohibition on discrimination on the basis of “sex” does not include sexual orientation and/or gender identity, it will not affect protections provided by California’s FEHA or the interpretations of such protections.  Should the Court affirmatively decide that “sex” includes sexual orientation and/or gender identity, this will expand employees’ rights to sue in federal court.

As a refresher on FEHA’s protections for gender discrimination, remember that in California, it is an unlawful employment practice to do any of the following because of an employee’s sex, sexual orientation, gender identity, or gender expression:

  • Fail or refuse to hire
  • Discharge from employment
  • Discriminate in compensation, terms, conditions, or privileges of employment

Employers in California must allow employees to dress consistently with the employee’s gender identity and protect them from harassment and discrimination on that basis.  The Department of Fair Employment and Housing (DFEH) also advises employers that all employees have a right to a safe and appropriate restroom and locker room facility that corresponds to their gender identity, regardless of their assigned sex at birth.  For more information on DFEH guidance on transgender rights in the workplace, visit here.