2019 Public Sector Employment Law Conference – Registration Now Open!

By Guest Author on October 19, 2018 Posted in LCW Annual Conference

Registration is now open for the Annual Liebert Cassidy Whitmore Public Sector Employment Law Conference, which takes in Palm Desert on Thursday & Friday, January 24-25, with an optional pre-conference session on Wednesday, January 23. The conference is geared towards Public Agency Management and includes a variety of informative and engaging presentations that offer practical lessons for success in the workplace.

The conference is designed to help participants learn and apply best practices within Retirement, Health & Disability; Labor Relations & Negotiations; Employment Relations; FLSA/Wage & Hour; Litigation & Investigations; and Public Safety. Some of the sessions include:

NOW THERE IS JANUS AND SB866: HOW WILL THESE EVOLVE AND AFFECT LABOR RELATIONS?
- It was a big year in the labor relations world with the US Supreme Court decision in Janus v AFSCME and the almost simultaneous approval of SB 866. In this session we review what we’ve learned since June 27, 2018 and what we see on the horizon. Managing the labor relationship is tricky and that continues to be a challenge – hear our tips for success and strategies 3A for resolving issues in this new labor relations world.

FREE SPEECH IN WORKPLACE – COLD HARD FACTS IN A HOT POLITICAL AND SOCIAL CLIMATE
- In today’s volatile political climate, the issue of free speech is a hot topic for public agencies. Speech pertaining to “hot button” political and social issues can boil over into the workplace, impacting an agency both internally and externally. The ease and availability of social media only adds to the danger facing public agencies. Whether in the office, at work-sanctioned events, or on social media, this presentation will focus on the very latest developments of First Amendment law and will use real-life case studies to explore how to navigate free speech issues during tumultuous times. We will provide the cold hard facts for when workplace speech heats up so as to help you and your agency keep your cool.

THE WILD RIDE OF COMPENSATION FOR TRAINING & TRAVEL TIME
- Are you on a plane or train? Are you a passenger or the driver? Is it during work hours? Are you a general law or charter agency? Is it voluntary? The maze of questions and answers that you need to know in order to compensate employees for training and travel time can be complicated. Let us provide you with a roadmap and the rationale for complying with this area of the FLSA.

#METOO2.0: A GUIDE TO THE 2019 CHANGES TO WORKPLACE HARASSMENT LAWS
- In response to the #Me Too movement, the California Legislature enacted a jaw-dropping number of bills that expand protections for employees claiming workplace harassment under the Fair Employment and Housing Act (FEHA), and make it much easier for employees to file, litigate and win harassment and retaliation claims. The legal standards have changed, from who can be personally liable for unlawful retaliation, to what constitutes severe and pervasive harassment, to the ability of an employer to show it has promptly responded to claims of harassment. The bills also limit employers’ ability to enter into nondisclosure and confidentiality agreements relating to claims of harassment and sex discrimination. Training requirements have also been expanded to include nonsupervisory employees. These new laws will have a substantial impact on existing and future FEHA litigation and what agencies must do to protect against liability. The New Year is upon us: be ready to help steer your agency through this much-changed harassment and retaliation landscape.

PUBLIC SAFETY LABOR NEGOTIATIONS
- Negotiating for Police and Fire labor agreements offers a slightly different experience than with nonsafety bargaining units. This session will explore the unique public safety areas including FLSA, safety special compensation, retirement, POBR/FOBR, disciplinary appeals, and other subjects that arise during public safety sessions. Challenges with governing body interaction/philosophy around public safety and balancing public safety negotiations alongside non-safety negotiations requires strategic planning and careful contract language development. Hear from two of LCW’s experienced negotiators on tips from the trenches.

HOW TO SUCCESSFULLY IMPLEMENT AND DEFEND A LIGHT OR MODIFIED DUTY ASSIGNMENT FOR TEMPORARILY INJURED OR ILL EMPLOYEES.
- This presentation will discuss the legal issues related to modified/light duty policies and provide best practices for implementing and administering them. It will also address what are and are not appropriate modified/light duty assignments, how modified/light duty assignments interact with other statutory rights an injured employee may have such as disability retirement and ADA/FEHA. Finally, we will discuss how and when to discontinue a modified/light duty assignment when it becomes apparent that such an accommodation is no longer effective.

Also, follow us on Twitter and tweet with us using the hashtag #LCW19. For questions regarding the upcoming annual conference, please send us an email or call 310.981.2000.

We hope you can join us and look forward to seeing you!

UPDATED – New Legislation Will Impact Litigation of FEHA Claims, Employer-Employee Agreements, and Necessitate Additional Employer Training

By Guest Author on October 15, 2018 Posted in Employment

This post was authored by Geoffrey S. Sheldon & Andrew Pramschufer

EDITOR’S NOTE: This article has been revised from its original version that was published on October 1, 2018. The original version noted, among other things, that SB1300 amended the Fair Employment Housing Act (FEHA) to extend personal liability to an employee alleged to have engaged in unlawful retaliation in the workplace. While there was bill language in SB1300 to amend FEHA to extend personal liability to retaliation claims, such language was contingent upon another bill being signed into law, which DID NOT occur. As a result, the provision of SB 1300 which would have extended personal liability to FEHA retaliation claims WILL NOT become law and is inoperative. We apologize for the error and welcome any questions you may have on this bill.

In response to the “#Me Too” movement, the California Legislature passed a number of bills intended to protect employees from workplace harassment and discrimination under the Fair Employment and Housing Act (FEHA). On September 30, 2018, Governor Jerry Brown signed these bills into law. The impacts of these new laws, which go into effect on January 1, 2019, are summarized below.

Impact on Harassment Claims under FEHA

Senate Bill 1300 (SB 1300) provides that an employer’s failure to take all reasonable steps to prevent discrimination and harassment from occurring can establish liability for the employer under FEHA even if the underlying discrimination or harassment was not significant enough to be actionable under FEHA. Prior to the passage of SB 1300, failure to take reasonable steps to prevent discrimination and harassment was only actionable if the plaintiff could also prove that he or she was the victim of discrimination or harassment.

Additionally, SB 1300 creates a new section under FEHA (Government Code Section 12923), which mandates the following:

The “severe or pervasive” legal standard is rejected, so that a single incident of harassing conduct is now sufficient to create a triable issue of fact regarding the existence of a hostile work environment;
A plaintiff no longer needs to prove his or her “tangible productivity” declined as a result of harassment in a workplace harassment suit, and may instead show a “reasonable person” subject to the alleged discriminatory conduct would find the harassment altered working conditions so as to make it more difficult to work;
Any discriminatory remark, even if made by a non-decisionmaker or not made directly in the context of an employment decision, may be relevant (i.e., admissible) evidence of discrimination in a FEHA claim; and
The legal standard for sexual harassment will not vary by type of workplace, and courts will therefore only consider the nature of the workplace in a harassment claim when “engaging in or witnessing prurient conduct or commentary” is integral to the performance of an employee’s job duties.

Finally, SB 1300 limits a prevailing employer’s ability to recover attorney and expert witness fees unless a court finds a plaintiff’s action was “frivolous, unreasonable, or totally without foundation.”

In practice, these changes to the FEHA will make it much easier for plaintiffs to file, litigate and win harassment and discrimination claims against California employers. Getting these types of claims dismissed prior to trial will, beginning January 1, 2019, be much more difficult. As Government Code Section 12923 now explicitly states, “[h]arassment cases are rarely appropriate for disposition on summary judgment.”

Accordingly, it is vital that employers take effective corrective action immediately when claims of harassment and/or discrimination arise. Employers should also review their harassment and discrimination policies to ensure they are compliant with these changes to the FEHA.

Impact on Agreements between Employer and Employee

SB 1300 prohibits an employer from requiring that an employee sign a nondisparagement agreement, confidentiality agreement, or any other document denying the employee the right to disclose information about unlawful acts in the workplace, including sexual harassment. SB 1300 also makes it unlawful for an employer to require an employee waive FEHA rights or claims in exchange for a raise or bonus or as a condition of employment unless the release is a voluntary negotiated settlement agreement filed by an employee in court or an alternative dispute resolution forum, before an administrative agency, or through an employer’s internal complaint process.

Senate Bill 820 (SB 820) prohibits confidentiality clauses in settlement agreements if they would limit the disclosure of factual information related to sexual assault, sexual harassment, or workplace harassment or discrimination based on sex.

Assembly Bill 3109 (AB 3109) prohibits a contract or settlement agreement entered into on or after January 1, 2019 from limiting a party’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or alleged sexual harassment on the part of the other party to the contract where the party has been required or requested to attend the proceeding.

Employers should note these restrictions on the use of certain clauses in employment contracts, settlement agreements, and other agreements between employers and employees. An employer’s failure to comply with these restrictions will result in a finding that certain provisions of the written agreement are contrary to public policy and unenforceable, potentially leaving an employer open to liability.

Impact on Employer Trainings

Senate Bill 1343 (SB 1343) requires employers with five or more employees to provide two hours of sexual harassment trainings to supervisory employees, and at least one hour of sexual harassment training to nonsupervisory employees by January 1, 2020. This is a marked change from current law, which does not require such trainings for nonsupervisory employees and only required employers with 50 or more employees to provide sexual harassment training to supervisory employees. Also beginning January 1, 2020, an employer must provide sexual harassment trainings to all seasonal employees, temporary employees, and any employee hired to work for less than six months within 30 calendar days or within 100 hours worked, whichever comes first.

SB 1300 allows, but does not require, an employer to provide “bystander intervention training” to enable bystanders to identify problematic behaviors in the workplace, including sexual harassment, and intervene as appropriate.

SB 1343 mandates that the DFEH create two online trainings courses—one supervisory, and one nonsupervisory—to be made available on its website so employers may comply with new sexual harassment training requirements. Employers may look to these offered trainings courses to ensure compliance with these new laws.

Employers should review all training materials and procedures to ensure they are satisfying not only their existing obligations, but also all new requirements established by these new bills.

Effects on Existing Litigation

We expect these legislative changes will have significant impact on existing litigation once they go into effect on January 1, 2019. Please consult with legal counsel about these new laws and their anticipated effects.

Conducting Effective Workplace Investigations Is Essential To Minimizing The Risk Of Liability On A Failure To Prevent Harassment Claim

By Melanie Chaney on October 9, 2018 Posted in Employment, Workplace Policies

This post was authored by Melanie L. Chaney.

Under Title VII and the Fair Employment and Housing Act (“FEHA”), the employer has an affirmative obligation to take all reasonable steps necessary to prevent harassment, discrimination, or retaliation. In order to comply with this obligation, employers must investigate all complaints of harassment, discrimination, or retaliation. If an employer receives a complaint, failing to investigate at all or failing to conduct an appropriate workplace investigation could lead to liability on a failure to prevent harassment claim. Importantly, the Department of Fair Employment and Housing, the agency which enforces the FEHA, may prosecute an alleged failure to investigate as an independent violation, even where there is no legally actionable claim of harassment. An employer’s ability to defend its position that it has taken all reasonable steps to prevent harassment will depend heavily on the quality of the underlying investigation. For these reasons, it is imperative that employers:

Promptly and thoroughly investigate all claims of harassment, discrimination, or retaliation.
Document the investigation. This includes documenting the methodology the investigator used during the investigation, the investigator’s factual findings, credibility determinations, and any conclusions reached.
Take prompt and effective remedial action if warranted.

The sufficiency, thoroughness, and fairness of an employer’s workplace investigation are very commonly challenged in subsequent litigation. Failure to take any of the three steps above could significantly compromise an employer’s ability to defend itself on a failure to prevent harassment claim.

Prompt and Thorough Investigation

The investigator chosen should be impartial and well-trained in workplace investigations and follow all the employer’s policies and procedures to ensure an appropriate and fair investigation.

While most employers are aware of the obligation to investigate harassment claims, one common pitfall is failing to initiate or complete an investigation in a timely fashion. The investigation should ideally start within a matter of days of the receipt of the complaint (if one is filed) or of when the employer otherwise becomes aware of possible harassment or other alleged misconduct. If an investigation is delayed, then memories may fade, evidence may disappear, and the employer may be accused of failing to take all reasonable steps to prevent harassment.

Sometimes an employer may start the investigation promptly, but not complete the investigation in a reasonable amount of time. This could happen for any number of reasons including for example, witness unavailability, a change in HR staff, or change of an outside investigator that delays the completion of the investigation.

How long an investigation should take is a fact-driven analysis and can vary greatly depending on many things, including the nature and extent of the claims being investigated, and the number of subjects, witnesses, and documents involved. The important thing is that the employer should be mindful of the duty to initiate and complete the investigation promptly, monitor an investigation’s progress, and work towards expeditiously completing the investigation. For example, if a staff member in charge of conducting investigations leaves the employer on short notice, the status of his or her open investigations should be reviewed and reassigned immediately and not allowed to languish unattended. If there are specific reasons for delay out of the employer’s control, such as unavailability of witnesses, those reasons should be well-documented so that they may be explained later if the sufficiency or promptness of the investigation is challenged in subsequent litigation.

Document the Investigation

The investigator should provide a written report on the investigation. The report should include all documents reviewed, all witnesses interviewed, all credibility determinations made, and all factual findings and conclusions reached by the investigator.

If the investigator fails to interview key witnesses or review key documents, or if the report fails to identify the witnesses and documents the investigator considered in reaching his or her conclusions, then the thoroughness and fairness of the investigation may be compromised.

Prompt and Effective Remedial Action

Finally, once the investigation is complete, if the investigation findings reveal that harassment in violation of the employer’s policy occurred, the employer must take corrective action that is reasonably calculated to end the current harassment, and to prevent future harassment of its employees. Appropriate corrective disciplinary action against the offending employee is always required. Keep in mind that when imposing discipline on public employees, the employer must follow appropriate statutory, regulatory, or collectively-bargained procedures. Otherwise, the employer could be liable to the disciplined public employee.

Case law, as well as my experience as an employment attorney, has shown that employers who follow the three steps above are much more likely to successfully defend against a failure to prevent harassment claim.

Paid Time Off for Union Leaders: New Law Extends Requirements for Public Employers to Grant Leaves of Absence for Union Stewards and Officers

By Guest Author on October 8, 2018 Posted in Labor Relations

This post was authored by Heather R. Coffman.

A concept known as “lost time” in some negotiated Memoranda of Understanding is now State law. Effective January 1, 2019, public employers may be required to grant paid leaves of absence to employees so they can serve in leadership positions in their unions, if requested by the exclusive representative. The new law is codified as section 3558.8 of the California Government Code. As detailed below, the law requires unions to reimburse employers for the expenditures on behalf of the union employees on leave, but the parties must meet and confer to define the terms of the leaves and reimbursements.

What Does the Law Require?

Paid Leave of Absence for Union Leadership

Under the new law, an exclusive representative may request that the employer grant a leave of absence (with pay and without losing benefits) for an employee or employees, so that the employee(s) can serve as stewards or officers of the exclusive representative or its affiliated employee organization. The law requires the public employer to grant a “reasonable” leave of absence for the identified employee(s) – potentially on a full-time, part-time, periodic, or intermittent basis. The term “reasonable” is not defined by this law.

Right to Reinstatement and No Loss of Rank, Seniority, or Benefits

Upon return from this leave of absence, employees have a right to reinstatement to the same position and work location, if feasible, or to a substantially similar position if reinstatement to the exact position and location is not feasible. The employees will not suffer any loss of rank, seniority, or classification, and the employees will continue to accrue credit toward retirement while serving on the leave of absence for the exclusive representative. The employees must continue to pay their contributions if already required to do so under the current Memorandum of Understanding or other applicable rules.

Union Reimbursement for Employer’s Payments

In order to ensure the employees are compensated during the leave of absence, the employer is required to continue paying the employees’ salary, benefits, and any contributions to the employees’ retirement fund under the applicable labor agreement. The union must then reimburse the employer within 30 days of receiving certification of these expenses.

How Does this Law Affect Our Public Agency?

This new legislation raises a host of questions and challenges for public employers. How will a public employer determine whether a particular requested leave of absence is a “reasonable” one that must be granted under the new law? How can your agency’s departments plan to absorb the impact of these new leaves of absence? What procedures must the parties follow to process a request for a leave of absence under new Government Code section 3558.8?

We anticipate this will be a hot topic for the new season at the bargaining tables. The parties are required to negotiate the procedures for the exclusive representative to request the leave of absence, and the procedures for the employer to be reimbursed when the employer grants a leave of absence. Does the meet and confer fall under the same good faith obligation, and can it lead to impasse and factfinding if the parties cannot agree? What, if any, unilateral imposition authority does a public agency have following these procedures? If the parties’ negotiation fails and the impasse process does not produce an agreement, may the legislative body resolve the impasse by leaving everything status quo (meaning the employee stays on-the-job) instead of imposing its best offer for the union leave?

We hope your team will use this alert to develop an effective strategy to minimize the burden on public employers while honoring the unions’ and their members’ rights under this new law. Please reach out to any of our labor relations experts here at LCW to assist in developing proposals to meet these requirements (and your agency’s best interests) under this new law

Governor Signs SB 1421 and AB 748, Dramatically Increasing Public Access to Peace Officer Personnel Records

By Paul D. Knothe on October 2, 2018 Posted in Public Safety Issues

This post was authored by Paul D. Knothe.

On September 30, 2018, Governor Edmund G. Brown, Jr. signed two significant pieces of legislation, Senate Bill 1421 and Assembly Bill 748, that will require major changes in how law enforcement agencies respond to requests for peace officer personnel records. We described this legislation in detail in a previous Special Bulletin.

In short, these two statutes will allow members of the public to obtain certain peace officer personnel records that were previously available only through the Pitchess procedure by making a request under the California Public Records Act (“CPRA”) request.

Effective January 1, 2019, SB 1421 amends Government Code Section 832.7 to generally require disclosure of records and information relating to the following types of incidents in response to a request under the CPRA:

Records relating to the report, investigation, or findings of an incident involving the discharge of a firearm at a person by a peace officer or custodial officer.
Records relating to the report, investigation or findings of an incident in which the use of force by a peace officer or custodial officer against a person results in death or great bodily injury.
Records relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency that a peace officer or custodial officer engaged in sexual assault involving a member of the public. “Sexual assault” is defined for the purposes of section 832.7 as the commission or attempted initiation of a sexual act with a member of the public by means of force, threat, coercion, extortion, offer of leniency or any other official favor, or under the color of authority. The propositioning for or commission of any sexual act while on duty is considered a sexual assault.
Records relating to an incident in which a sustained finding of dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation, or prosecution of a crime, or directly relating to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including but not limited to, any sustained finding of perjury, false statements, filing false reports, destruction of evidence or falsifying or concealing of evidence.

AB 748 requires agencies, effective July 1, 2019, to produce video and audio recordings of “critical incidents,” defined as an incident involving the discharge of a firearm at a person by a peace officer or custodial officer, or an incident in which the use of force by a peace officer or custodial officer against a person resulted in death or great bodily injury, in response to CPRA requests.

These statutes have different timelines for production of records, and different circumstances under which production of records can be delayed or records can be withheld. Further, agencies may wish to evaluate their document retention policies in light of these new disclosure requirements. Agencies should work closely with trusted legal counsel to ensure compliance with both statutes.

Building on #MeToo Momentum, California Legislature Seeks to Expand FEHA

By Erin Kunze on September 27, 2018 Posted in Discrimination

This post was authored by Erin Kunze.

Earlier this year, members of the State Senate and Assembly introduced bills that would expand protections provided by the Fair Employment and Housing Act (“FEHA”). In its current iteration, proposed Senate Bill 1300 would alter the standard of review for harassment claims, limit the ability to summarily dismiss harassment claims, encourage “bystander” intervention training, and prohibit settlement agreements that require employees to sign “nondisparagement” clauses or (except in limited cases) release their right to pursue FEHA actions against their employers. In its current iteration, Assembly Bill 1870 would extend the statute of limitations for employees to file employment discrimination claims. Though neither of these bills has yet been signed by the Governor, and thus neither is current law, they demonstrate a growing trend to protect employees from harassment, to provide victims of harassment with time to address their claims, and to ensure that they have the opportunity to disclose information about unlawful acts.

I. Pending Senate Bill 1300

Senate Bill 1300 in an initial section describes the Legislature’s intent regarding the application of FEHA to harassment claims. In so doing, it sets forth new standards for judicial review. For example, the Legislature asserts its approval of the standard set forth by Supreme Court Justice Ruth Bader Ginsburg, that in workplace harassment suits a plaintiff “need not prove that his or her tangible productivity has declined as a result of the harassment. It suffices to prove that a reasonable person subjected to the discriminatory conduct would find… that the harassment so altered working conditions as to make it more difficult to do the job.” In addition, the Legislature seeks to eliminate the “severe or pervasive” standard for litigating sexual harassment claims. Instead, a “single incident of harassing conduct” would be sufficient to create a triable issue regarding the existence of a hostile work environment. The existence of a hostile work environment would depend on the “totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination.” The Legislature also asserts its intent that the legal standard for sexual harassment does not vary by type of workplace. Finally, it opines that harassment cases are “rarely appropriate for disposition on summary judgment.” If passed, this means that harassment claims should proceed to trial for fact-finding more often than not.

In addition to its assertions of legislative intent, Senate Bill 1300 empowers an employer to provide “bystander intervention training.” Such training would provide employees with information and guidance on how bystanders can recognize potentially problematic behaviors, and motivate them to take action when such behaviors are observed.

The Bill would also make it unlawful for an employer, in consideration for a raise or bonus, “or as a condition of employment or continued employment,” to require an employee to sign a release of a claim or right under FEHA, or to sign a nondisparagement agreement that denies the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment. Notably, however, it would not be unlawful for an employer to enter into a “negotiated settlement agreement” with an employee to resolve a FEHA claim that the employee either filed in court, before an administrative agency, in an alternative dispute resolution forum, or through the employer’s internal complaint process. To demonstrate that such agreement is sufficiently “negotiated,” it would have to be voluntary, deliberate, and informed, provide consideration of value (e.g. money) to the employee, and give the employee notice and an opportunity to retain an attorney unless he or she is already represented.

Senate Bill 1300 would additionally limit a prevailing defendant’s (usually an employer’s) ability to be awarded fees and costs in relation to FEHA cases. Fees and costs would only be available if a court finds that the plaintiff’s action was “frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.”

Finally, Senate Bill 1300, and its companion bill, Senate Bill 1038, create personal liability for employees who retaliate against others in connection with harassment perpetrated by the same employee.

II. Pending Assembly Bill 1870

In a further effort to expand access to FEHA, Assembly Bill 1870 seeks to extend the period (or “statute of limitations”) during which an individual can file a complaint alleging employment discrimination. Currently, under California’s Civil Code, if an individual does not file such claim within one year from the date the alleged unlawful practice occurred, the individual has no right to bring the complaint forward. If passed, Assembly Bill 1870 would extend the period to file a complaint from one to three years from the date upon which the unlawful practice allegedly occurred. This is consistent with federal laws applicable to harassment and discrimination complaints.

Notably, Senate Bill 1300 and Assembly Bill 1870 were presented to the Governor for signature earlier this month. However, he has until September 30th to sign or veto the bills. Even if the pending bills do not move forward, they certainly indicate the Legislature’s willingness to further protect workers from harassment, including broadening employees’ access to the legal system designed to prohibit such conduct.

Stay tuned for further updates on this legislation!

It’s a New Fiscal Year – Time to Reset Your CalPERS Stopwatch

By Guest Author on September 25, 2018 Posted in Pension, Retirement

This post was authored by Matthew Nakano.

As public agencies near the end of the first quarter of the new fiscal year, now is the ideal time for California Public Employees’ Retirement System (CalPERS) agencies to verify that hours worked are being tracked for certain types of employees. The consequences for failing to accurately monitor hours worked can be significant if these employees work beyond certain limits during a fiscal year. Since agencies are still in the first quarter of the fiscal year, it’s not too late to catch potential tracking issues before it results in costly consequences due to an inadvertent oversight in this area.

The following are three common employment situations that require careful tracking of hours for CalPERS purposes and an explanation of the consequences for working beyond established thresholds:

Out-of-Class Appointments

As discussed in our earlier blog post, AB 1487 enacted Government Code section 20480, which went into effect on January 1, 2018. AB 1487 limits the amount of time an employee can work in an “out-of-class appointment” to 980 hours per fiscal year. An “out-of-class appointment” is defined as “an appointment of an employee to an upgraded position or higher classification by the employer or governing board or body in a vacant position for a limited duration.” A “vacant position” is defined as “a position that is vacant during recruitment for a permanent appointment.” A “vacant position” does not include a position that is temporarily vacant due to another employee’s leave of absence. CalPERS requires agencies to report all out-of-class appointments, as well as the number of hours worked in the out-of-class appointment, regardless of whether the total amount of hours exceeds 980 in a fiscal year.

If an employee works more than 980 hours in an out-of-class appointment, the employer will be required to pay CalPERS an amount equal to three times the employee and employer contributions that would otherwise be paid to CalPERS for the difference between the compensation paid for the appointment and the compensation paid and reported to CalPERS for the member’s permanent position for the entire period the member serves in the out-of-class appointment as well as a $200 administrative fee.

Retired Annuitants

Under certain circumstances, and in compliance with Government Code section 21221(h), a CalPERS retired annuitant may be appointed on an interim basis to a vacant position during the recruitment for a permanent appointment if the governing body deems the position to require “specialized skills” or during an emergency to prevent stoppage of public business. Such an appointment does not require reinstatement from retirement. A retiree may only be appointed once to this vacant position.

Additionally, under Government Code section 21224, a CalPERS retired annuitant may serve without reinstatement from retirement if appointed either during an emergency to prevent stoppage of public business or because the retired person has “specialized skills” needed in performing work of a limited duration.

Under both Government Code sections 21221(h) and 21224, a retired annuitant is limited to working 960 hours for all employers each fiscal year. Thus, if a retired annuitant also works for another CalPERS employer during the same fiscal year, those hours will also count towards the 960-hour limit. Also, all hours worked by a retired annuitant must be reported to CalPERS with each payroll cycle. If a retired annuitant exceeds the 960-hour limit: (1) he or she will be reinstated from retirement retroactive to the first day of employment in the position; (2) both the employer and employee will have to pay retroactive contributions plus interest to CalPERS as well as administrative fees; and (3) the employee will have to reimburse CalPERS for any retirement allowance received since the date of employment in the position.

Less Than Full-Time or Part-Time/Temporary Employees

Many agencies have less than full-time or part-time/temporary employees who work on a seasonal, intermittent, on-call, limited-term, or irregular basis (e.g., lifeguards, community center instructors, etc.), and are not normally enrolled in CalPERS unless the employee was already a CalPERS member when he/she was first hired by your agency. These employees will be eligible for membership after 1,000 hours of paid service or 125 days (if paid on a daily or per diem basis) in a fiscal year. Overtime hours as well as paid sick leave or vacation time is included in calculating the 1,000 hours. If an employee works more than 1,000 hours or 125 days, the employer will be required to enroll the employee in CalPERS. Failure to enroll an employee into membership within 90 days of becoming eligible for membership may result the employer being required to pay all arrears costs for member contributions and a $500 administrative fee.

CalPERS agencies should consult with legal counsel if they are unsure of whether they need to track hours for a particular position, or require assistance in developing strategies to ensure hours worked do not exceed the statutory limits.

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

By Stefanie K. Vaudreuil on September 18, 2018 Posted in Employment, Workplace Policies

This post was authored by Stefanie K. Vaudreuil.

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

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

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

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

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

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

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

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

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

By Lisa S. Charbonneau on September 11, 2018 Posted in FLSA, Wage and Hour

This post was authored by Lisa S. Charbonneau.

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

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

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

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

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

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

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

California Strengthens Breastfeeding Protections in the Workplace

By Megan Lewis on September 5, 2018 Posted in Workplace Policies

This post was authored by Megan Lewis.

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

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

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

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

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

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

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

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

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

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

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

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