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DFEH Provides Guidance on Impact of New SB 1343 Harassment Training Requirements: Some Questions Answered, Many Still Remain – Including Possibility that ALL Supervisory and Nonsupervisory Employees Need to Be Trained or Retrained Again in 2019

Posted in Harassment, Legislation

This Special Bulletin was authored by Gage C. Dungy and Lars T. Reed.

Since 2005, Assembly Bill 1825 has required private sector employers with 50 or more employees and all public employers provide two hours of sexual harassment training to supervisory employers within six months of assuming a supervisory position and again at least every two years.  This has commonly been referred to as “AB 1825” supervisor harassment training and is codified under Government Code section 12950.1 and interpreted in the Department of Fair Employment and Housing’s (DFEH) regulations at 2 C.C.R. § 11024.

As part of the 2018 Legislative Session, Governor Jerry Brown signed into law Senate Bill 1343, which expands existing harassment training requirements to lower the private sector employer threshold down to 5 or more employees and to mandate one hour of harassment training for nonsupervisory employees of qualified employers, which includes all public agencies.  While the law becomes effective January 1, 2019, it requires most existing nonsupervisory employees to undergo harassment training by January 1, 2020.  In the case of temporary and seasonal employees, such training must be provided within certain timelines after January 1, 2020.  To assist employers in satisfying this obligation, SB 1343 also directs the DFEH to develop and make available two interactive, online training courses – a two-hour training for supervisory employees and a one-hour training for nonsupervisory employees.

While on the surface, SB 1343 appears to simply expand mandated harassment training requirements to include all nonsupervisory employees, the implementation of this new law has raised a number of questions for employers.  Among them, how employers can administer a training program that will comply with the new requirement and whether any previous mandated or optional harassment training provided to employees will satisfy this new law.

On November 26, 2018, the DFEH announced a new online resources page for employers, which includes information on required postings and other tools for addressing California’s discrimination and harassment laws.  Also included is a “Sexual Harassment Prevention Training and SB 1343 FAQ to assist with SB 1343 compliance.

While the DFEH’s SB 1343 FAQ sheet addresses some interpretation questions,, it leaves many questions unanswered.  In addition, the DFEH’s SB 1343 FAQ sheet implies that all supervisory and nonsupervisory public employees (with the exception of temporary or seasonal employees) will need to be trained or retrained in 2019, regardless of whether they were provided compliant harassment training in 2018.

Responding to some common questions, below is our understanding of the law as written and initially interpreted by the DFEH in its SB 1343 FAQ sheet:

Who is now required to undergo harassment training under SB 1343?

Under SB 1343, most California employees must undergo harassment training. Supervisory employees who have already been covered by AB 1825 harassment training requirements must continue to receive at least two hours of harassment training within six months of becoming a supervisor, and at least every two years thereafter. Nonsupervisory employees now must receive at least one hour of harassment training within six months of hire and at least every two years thereafter.

Seasonal and temporary employees or “any employee that is hired to work for less than six months” are required to undergo the applicable supervisory or nonsupervisory training within 30 calendar days after the hire date or within 100 hours worked, whichever occurs first.  SB 1343 clarifies that temporary employees provided by an outside temporary services employer (e.g., temp agency) must be provided any applicable harassment training by that temporary services employer.

When will the DFEH issue the online interactive training courses to comply with SB 1343?

SB 1343 requires the DFEH to develop and make available to employers on its website online, interactive training courses that satisfy the two-hour supervisory and one-hour nonsupervisory training requirements.  However, the DFEH’s SB 1343 FAQ sheet indicates that the DFEH expects to have these courses available by “late 2019”, and it does not provide a more specific date for the release of the online training materials.

In the meantime, the DFEH has issued a “toolkit” for sexual harassment prevention, which includes a sample training presentation that employers may use in conjunction with a qualified trainer, as defined in the existing DFEH regulations at 2 C.C.R. § 11024.

In short, compliance with SB 1343’s training requirements in calendar year 2019 may either have to wait until “late 2019” for the DFEH to provide its materials or utilize sooner alternate sources.

What is the difference between the one-hour nonsupervisory harassment training and the two-hour supervisory harassment training required under SB 1343?

Other than the shorter training time, SB 1343 does not specify how the new one-hour harassment training for nonsupervisory employees should differ from the existing two-hour harassment training for supervisory employees.

The required content in the existing two-hour AB 1825 supervisory harassment training – including requirements specific to supervisory employees – is set forth in the DFEH’s regulations at 2 C.C.R. § 11024. The DFEH’s SB 1343 FAQ sheet references these existing regulations but does not note that the regulations have not been revised relative to SB 1343.  It is likely that future DFEH rulemaking will result in revised regulations, but no regulatory changes have been proposed at this time, and the DFEH has not announced a timeline for any such changes.   Absent further clarification from the DFEH, the only insight into what content is required in the new one-hour nonsupervisory harassment training will be the DFEH’s own online training course, which is scheduled to be released in “late 2019” as mentioned above.

At this time, we recommend modeling the one-hour training for nonsupervisory employees closely after the existing DFEH regulations for AB 1825 supervisor training at 2 C.C.R. § 11024.  However, where the existing regulations are specific to supervisory employees, we believe such content would not need to be included in a nonsupervisory employee training.

When is the deadline to provide harassment training to employees under SB 1343?

SB 1343 requires that most public employees – supervisory and nonsupervisory – receive the harassment training between January 1, 2019 and January 1, 2020.  After the initial training, follow-up training must be provided to employees every two years thereafter.  In addition, any new supervisory or nonsupervisory employees who assume such positions on or after January 1, 2019 are required to undergo their initial harassment training within six months of assuming such a position.

The only exception to this rule applies to seasonal and temporary employees who are hired to work for less than six months – the obligation to provide training to such employees does not become effective until January 1, 2020.  On or after that date, SB 1343 requires the employer to provide training to seasonal or temporary employees hired to work less than six months within 30 calendar days from the date of hire, or before the employee reaches 100 hours worked, whichever comes first.

If my agency already provided the required AB 1825 supervisory employee harassment training in calendar year 2018 as part of their two-year training track in accordance with existing law, does SB 1343 require us to retrain those employees again in 2019?

Based on the DFEH’s SB 1343 FAQ sheet, the answer appears to be “Yes”.  SB 1343 amends Government Code section 12950.1(a) to add the following new sentence:

An employer who has provided this training and education to an employee after January 1, 2019, is not required to provide training and education by the January 1, 2020 deadline.

Practically speaking, this new sentence is awkward in its application.  If an employer that is required to provide the applicable harassment training by January 1, 2020 provides such training after January 1, 2019, that employer would then not be required to provide the training by the January 1, 2020 deadline.  This sentence would probably make more sense if the initial date referenced was January 1, 2018, and not January 1, 2019.  Therefore, it is not clear if this language was intentional or a clerical error on the part of the Legislature.

More importantly, this new sentence in Section 12950.1(a) does not distinguish between existing AB 1825 supervisory training that employers are already mandated to provide every two years and the new SB 1343 nonsupervisory training.  As a result, a possible interpretation of Section 12950.1(a) is that employers who provided the required supervisory training in calendar year 2018 believing such supervisory employees would not need to be trained again until calendar year 2020 would now have to retrain the same employees a year earlier in calendar year 2019.

The DFEH’s SB 1343 FAQ sheet appears to follow this interpretation that ALL supervisory and nonsupervisory employees (except temporary or seasonal employees) be trained or retrained in calendar year 2019, regardless of whether they were otherwise previously provided harassment training in calendar year 2018 in accordance with existing law.  As noted in the DFEH’s SB 1343 FAQ sheet:

What if my employees were trained between January 1 and December 31, 2018?

The law requires that employees be trained during calendar year 2019.  Employees who were trained in 2018 or before will need to be retrained.

As a result of this initial interpretation from the DFEH, some employers who provided the required every-two-year supervisory training in calendar year 2018 may now have to provide the training again, one year sooner in calendar year 2019.

While this is the DFEH’s initial interpretation of SB 1343, we believe there is a strong possibility the DFEH will either provide additional clarification or the Legislature may provide clean-up legislation to address this scenario.  LCW is actively working with public agency groups such as the League of California Cities, CSAC, and CSDA to seek such clarification from the Legislature and the DFEH.  It is our understanding that a number of other employer groups impacted by this interpretation are doing the same thing.

Keep in mind that nothing in SB 1343 changes the existing two-hour harassment training requirements for supervisory employees.  To require supervisory employees who were provided the required harassment training in calendar year 2018 to be retrained a year early does not seem necessary or consistent with the intent of the original law, in addition to creating additional expense and operational impacts to the affected employer.  Therefore, agencies who have supervisory employees who were trained in calendar year 2018 may want to wait and see if the DFEH or Legislature provides clarification on the impact of SB 1343 before scheduling affected employees for retraining in calendar year 2019.

My agency has already been providing harassment training to nonsupervisory employees.  Are we already in compliance with SB 1343?  When do we have to train these employees again?

This is also an issue that is not entirely clear under SB 1343’s bill language and the DFEH’s interpretation of the new law.  Prior to SB 1343, many employers voluntarily chose to require nonsupervisory employees to attend harassment training.  In many instances, employers had nonsupervisory employees attend the same AB 1825-compliant, supervisor training.

However, as noted above, SB 1343’s bill language and modifications to Government Code section 12950.1 does not provide any indication of what type of training will satisfy the obligations of the new nonsupervisor training.  It would seem reasonable that any harassment training provided to nonsupervisory employees prior to SB 1343 that is otherwise in compliance with existing DFEH regulations at 2 C.C.R. § 11024 would be compliant with this new law. However, this is not entirely clear based on SB 1343’s statutory language.

Furthermore, as noted above, to the extent any such compliant harassment training was provided to nonsupervisory employees in calendar year 2018 or before, it appears that the DFEH’s initial interpretation of SB 1343 requires that all nonsupervisory employees be retrained in calendar year 2019.  Absent further clarification from the DFEH or the Legislature, it appears that any previous harassment training provided to nonsupervisory employees will not satisfy SB 1343’s requirements, and such employees should be retrained in calendar year 2019.

My agency has new employees who were provided SB 1343 compliant harassment training at their previous employment.  Does our agency need to provide them with harassment training again?  What about seasonal and temporary employees who return to our agency each year and were previously provided harassment training?  Does our agency have to provide them with harassment training each time they are re-hired as a seasonal or temporary employee?

This is another question that is not entirely clear based on SB 1343’s statutory language.  However, existing DFEH regulations regarding supervisory employees who were previously trained provides some guidance that may be extended to these other scenarios.  As noted under 2 C.C.R. § 11024(b)(5):

(5) Duplicate Training. A supervisor who has received training in compliance with this section within the prior two years either from a current, a prior, an alternate or a joint employer need only be given, be required to read and to acknowledge receipt of, the employer’s anti-harassment policy within six months of assuming the supervisor’s new supervisory position or within six months of the employer’s eligibility. That supervisor shall otherwise be put on a two year tracking schedule based on the supervisor’s last training. The burden of establishing that the prior training was legally compliant with this section shall be on the current employer.

Since the DFEH’s SB 1343 FAQ sheet references and incorporates these existing regulations, there is a strong argument that 2 C.C.R § 11024 (b)(5) would also apply to new employees who were trained previously or to previous seasonal or temporary employees who were trained at previous employment within the past two years.  In such a scenario, the employer would need to provide the affected employee a copy of the employer’s anti-harassment policy and then ensure that any follow-up harassment training be provided otherwise in accordance with the law.  Nonetheless, we caution employers to await further clarification on this issue from the DFEH.

In conclusion, there is a lot about the application of SB 1343’s new harassment training requirements that remains to be settled.  While the DFEH’s SB 1343 FAQ sheet provides some guidance, it appears that many unanswered questions remain.  As noted, LCW is actively working to seek clarification from the DFEH and the Legislature and will provide further updates as the information becomes available.

In the meantime, LCW offers both supervisory and nonsupervisory harassment training that are compliant with SB 1343.  For more information on our training programs, contact our Training Coordinator Anna Sanzone-Ortiz at asanzone@lcwlegal.com or (310) 981-2051 or Director of Marketing and Training Cynthia Weldon at cweldon@lcwlegal.com or (310) 981-2000.

If you have any questions about this Special Bulletin, please contact attorneys in our Los Angeles, San Francisco, Fresno, Sacramento, or San Diego offices for further guidance.

Court — and Legislature — Limit Employer Use of “Offer of Compromise” in FEHA Litigation

Posted in Legislation, Litigation

This post was authored by Jeffrey C. Freedman.

What happens when two totally valid legislative goals—that happen to contradict each other—collide? Like the title of the 2003 film with Diane Keaton and Jack Nicholson, “Something’s Gotta Give!” In Huerta v. Kava Holdings, Inc., decided this past November 14, the collision was between a Code of Civil Procedure (CCP) section (§ 998(c)) intended to encourage settlement of lawsuits prior to trial, and a Government Code section (§ 12965(b)) serving to avoid discouraging meritorious employment discrimination cases by claimants of modest means. As you might guess, the CCP provision was required to stand aside and the Government Code section was given priority.

Felix Huerta, after being fired from his job at the legendary Bel-Air Hotel, sued Kava Holdings, the Hotel’s owner, for violation of the Fair Employment and Housing Act (FEHA) on a number of theories, most of which were dismissed before or during trial. At trial, the jury decided all the remaining claims against him and in favor of the Hotel.  Just prior to trial, the Hotel made an offer to compromise pursuant to CCP section 998, which Huerta rejected. Subsection (c)(1) of section 998 provides in pertinent part: “If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant’s costs from the time of the offer” as well as certain expert witness fees. Accordingly, since Huerta rejected the settlement offer and won nothing from the jury, the judge awarded the Hotel $50,000 in costs and expert witness fees.

Huerta appealed. The Court of Appeal, otherwise affirming the judgment in favor of the Hotel, vacated the cost and fees award as contrary to the Government Code provision in FEHA. The appellate court held that section 12965(b) “overrides” section 998(c) and therefore a prevailing defendant cannot obtain an award of cost or fees even if its offer of compromise is rejected and the plaintiff fails to obtain a better result at trial. The Court noted language in a prior decision that “shifting these litigation expenses to what ordinarily are modest-or low-income individuals would unduly discourage these plaintiffs from litigating legitimate claims.”

Ever since FEHA was reorganized in 1980, Government Code section 12965(b) has provided: “In civil actions brought under this section, the court, in its discretion, may award to the prevailing party. . . , reasonable attorney’s fees and costs, including expert witness fees.” Thus, as written, a prevailing plaintiff or defendant could receive an award, not merely of costs, but also of attorney’s and expert witness fees. However, in 1978, the U.S. Supreme Court, in Christiansburg Garment Co. v. EEOC, had construed similar language about costs and attorney’s fees in Title VII of the federal Civil Rights Act of 1964 as allowing an award to a prevailing plaintiff as a matter of course, but only to a prevailing employer when the plaintiff’s case was frivolous, unreasonable or groundless, or where the plaintiff continued to litigate after it clearly became so. The California courts adopted this same standard for FEHA cases, and since then prevailing defendants have routinely been denied fees and costs as long as the plaintiff’s case was assessed by the trial judge as “non-frivolous.” However, until now, defendants could still make section 998 offers of compromise almost up to the eve of trial in hopes of encouraging settlement by putting the plaintiff in jeopardy of a significant adverse award of costs and fees even if they won at trial but received less than the defendant had offered.

Now, due to the Huerta decision, and an amendment to section 12965(b) to become effective this coming January 1, section 998 is no longer available to defendants in most all FEHA cases as leverage to settle cases up to the eve of trial by putting plaintiffs at risk of such awards. Effective the first of 2019, this language is added to the final sentence of section 12965(b), which allows costs and attorney’s fees to the prevailing party in a FEHA case: “except that, notwithstanding Section 998 of the Code of Civil Procedure, a prevailing defendant shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.” Thus, the only exception will be in those rare cases which a judge agrees are “frivolous, unreasonable, or groundless.”

Please note, however, that section 998 will still be available for plaintiffs to use against employers they have sued for a FEHA violation. Also, employers can still use section 998(c) against plaintiffs to this extent: 998 also provides that “If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs.” So, if an employer’s section 998 offer is rejected, and the plaintiff at trial wins less than the employer offered, the plaintiff cannot receive an award for costs s/he incurred after the offer was made.

Questions and Answers Regarding Responding Quickly to Disasters

Posted in Public Safety Issues, Safety

This post was authored by Laura SchulkindJenny Denny and Eileen O’Hare-Anderson 

Many of you are facing tremendous challenges with the current fires in both ends of the state.  We wish we could stand next to you and be of practical help.  Since we can’t do that, we offer these legal answers to the immediate questions you are facing, so you have ready answers at your fingertips.  While these are by no means complete answers to every issue that can, will, and has come up, they address the most pressing questions that we have already started to hear.  We hope that having this information easily accessible will allow you more time to focus on the needs and safety of your students, employees, and facilities.  We are available to help in any way we can.  We will keep you all in our thoughts, and look forward to hearing from you soon, in happier times.

HOW CAN WE CONVENE OUR BOARD AS QUICKLY AS POSSIBLE?

EMERGENCY MEETING

What is an emergency meeting?

“Emergency meetings” are a limited class of meetings held when prompt action is needed due to an actual or threatened emergency situation and are held on little notice. (Gov. Code, § 54956.5.)  An emergency situation means a work stoppage, crippling activity, or other activity that severely impairs public health, safety, or both, as determined by a majority of the members of the legislative body. (Gov. Code, § 54956.5 subd. (a)(1).)  It also means a dire emergency, which is a crippling disaster, mass destruction, terrorist act, or threatened terrorist activity that poses peril so immediate and significant that requiring a legislative body to provide one-hour notice before holding an emergency meeting (discussed below) may endanger the public health, safety, or both, as determined by a majority of the members of the legislative body.

What are the notice requirements for an emergency meeting?

Before the meeting

A legislative body may hold an emergency meeting without complying with either the 72-hour notice and agenda posting requirement of regular meetings or the 24-hour notice and agenda posting requirement of special meetings. (Gov. Code, § 54956.5 subd. (b)(1).)

Although the 72 hours’ or 24 hours’ notice is not necessary, the Board President or designee should notify each local newspaper of general circulation and radio or television station that has requested notice of special meetings one hour prior to the emergency meeting. In the case of a dire emergency, the Board President or designee should provide this notice at or near the time they notify the Board Members of the emergency meeting.  (Gov. Code, § 54956.5 subd. (b)(2).)

The Board President or designee should provide this notice by telephone and attempt to provide notice using all telephone numbers provided in the media’s written request. If telephones are not working, the notice requirements are deemed waived. However, the news media must be notified as soon as possible of the holding of the meeting, the purpose of the meeting, and any action taken.  (Gov. Code, § 54956.5 subd. (b)(2).)

If news media does not have a written request on file for notification of special or emergency meetings, a legislative body has no legal obligation to notify news media of special or emergency meetings—although notification may be advisable in any event to promote communication during disasters.

After the meeting

As soon as possible after the emergency meeting, the legislative body must post the minutes of the meeting, a list of persons whom the body notified or attempted to notify, a copy of the roll call vote and any actions taken at the meeting for at least 10 days in a public place.  (Gov. Code, § 54956.5 subd. (e).)

How do you convene an emergency meeting?

When a majority of the legislative body determines that an emergency situation exists, it may call an emergency meeting. (Gov. Code § 54956.5.)  Thus, the first order of business at an emergency meeting must be declaration of an emergency.  An emergency must be declared by a majority of the full board (not just a majority of those present.)

What may be covered at an emergency meeting?

Business should be limited to those items requiring prompt attention due to the emergency. Further, while a legislative body is relieved of the responsibility to post an agenda prior to an emergency meeting, an agenda consistent with the parameters of an emergency meeting should be developed and utilized.   A legislative body may not take action on items of business not appearing on the agenda. (Gov. Code §§ 54956; 54956.5 subd. (d).) Finally, as a general rule, emergency meetings may not be held in closed session. However, a legislative body may meet in closed session, where the basis for closed session complies with section 54957, if agreed to by a two-thirds vote of the members of the legislative body present, or, if less than two-thirds of the members are present, by a unanimous vote of the members present. (Gov. Code, § 54956.5 subd. (c).)

SPECIAL MEETING

What is a special meeting?

“Special meetings” are meetings called by the Board President or majority of the legislative body to discuss only discrete items on the agenda under the Brown Act’s notice requirements for special meetings.  (Gov. Code, § 54956 subd. (a).)

What are the notice requirements for a special meeting?

At least 24 hours before the meeting, a legislative body must post a notice in a location freely accessible to the public that contains the time and place of the meeting and identifies matters to be transacted or discussed at the meeting. The body must also post the agenda on its Internet website, if it has one. (Gov. Code, § 54956(a).)  The District should describe the business to be transacted or discussed be in the same manner that an item for a regular meeting would be described on the agenda—with a brief general description. Closed session items should be described in accordance with the Brown Act’s provisions to protect legislative bodies and elected officials from challenges of noncompliance with notice requirements.

How do you convene a special meeting?

The Board President or a majority of the members of the legislative body, may call a special meeting by delivering written notice to each member of the legislative body. The notice must be delivered to all members of the legislative body (typically personally) at least 24 hours before the meeting (unless waived in writing before the meeting or if the member actually appears at the meeting). The body must also provide notice to any newspaper, radio or television station that requested notice of special meetings in writing. (Gov. Code, § 54956 subd. (a).)

A legislative body may not call a special meeting regarding the salaries, salary schedules, or compensation paid in the form of fringe benefits, of a local agency executive. (Gov. Code, § 3511.1 subd. (d).) This does not apply to a local agency calling a special meeting to discuss the local agency’s budget.

What are the agenda requirements for a special meeting?

There is no specific agenda requirement for special meetings, but the notice of the special meeting effectively serves as the agenda and limits the business that may be transacted or discussed. No other business may be considered by the legislative body. (Gov. Code, § 54956.)  The legislative body must give members of the public the opportunity to speak before or during consideration of an item on the agenda but need not allow members of the public an opportunity to speak on other matters within the jurisdiction of the legislative body. (Gov. Code, § 54954.3 subd. (a).)

MEETING LOGISTICS

What if it is not safe to meet in our regular meeting place?

The Brown Act generally requires all regular and special meetings of a legislative body, including retreats and workshops, to be held within the boundaries of the territory over which the local agency exercises jurisdiction.  (Gov. Code, § 54954 subd. (b).) However, if a fire, flood, earthquake, or other emergency makes the usual meeting place unsafe, the Board President is authorized to designate another meeting place for the duration of the emergency. News media that have requested notice of meetings must be notified of the designation by the most rapid means of communication available.  (Gov. Code, § 54954 subd. (e).)  This means you may move your Board meetings to another public venue within your District boundaries.

May members of the legislative body teleconference into the emergency or special meeting?

The Brown Act allows a legislative body to use any type of teleconferencing to meet, receive public comment and testimony, deliberate, or conduct a closed session.  (Gov. Code, § 54953 subd. (b)(1).) However, the decision to use teleconferencing is entirely discretionary within the body and can present some issues.

“Teleconference” is defined as “a meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either audio or video, or both.” (63 Ops.Cal.Atty.Gen. 215 (1980).)  Teleconference meetings must comply with all requirements of the Brown Act, including, but not limited to, including the address of each teleconference location in the agenda, posting the agenda in the teleconference location, and public accessibility to the teleconference location. The legislative body must conduct teleconference meetings in a manner that protects the statutory and constitutional rights of the public or parties appearing before the legislative body.  This might indicate that teleconferenced emergency meetings, where there is little or no public notice, might be problematic.  When the public has short notice of emergency meetings, Districts should be careful in limiting access further by using teleconferenced meetings.

HOW DO WE HANDLE EMPLOYEE ISSUES?

DISASTER SERVICES WORKERS

What is a disaster services worker?

Under the California Emergency Services Act (Gov. Code, § 8550) all public employees are required to render all possible assistance to the Governor and the Secretary of Emergency Management in carrying out the provisions of the Emergency Services Act. (Gov. Code, § 8614.) In addition, all public employees, except legally employed aliens, are deemed disaster service workers. (Miller v. Board of Supervisors (1981) 121 Cal.App.3d 184.)

What is disaster service?

Disaster service means “all activities authorized by and carried on pursuant to the California Emergency Services Act, including approved and documented training necessary or proper to engage in such activities.” (Cal. Code Regs., tit. 19, § 2570.2 subd. (b)(1).)

How can we assign work to a disaster services worker?

The California Emergency Services Act does not set out how employees should be notified of their disaster service assignments. Rather, District disaster plans should set out potential disaster scenarios. (Gov. Code, §§ 8610, 8877.5.)

SALARY ISSUES

How do we compensate employees performing disaster services?

The provisions of the Emergency Services Act give agencies some power to direct their employees to perform disaster service duties outside of their typical job duties. The Education Code addresses a District’s obligation to pay overtime for hours worked in excess of eight hours in a day or forty hours in a week.  (Ed. Code, § 88027.)  (If an employee has a regular workday of less than eight but more than seven hour, or a regular workweek of less than 40 but more than 30 hours, for certain classes the employee will be entitled to overtime for time worked in excess of the established workday.  Ed. Code, § 88027.)  The District may order employees to work overtime.  If your collective bargaining agreement addresses the rotation of overtime, Districts should follow that language.

If the bargaining agreement is silent, use a fair system, such as asking for volunteers or by assigning overtime by lot. Taking such steps unilaterally is likely authorized by the management rights clauses in your CBAs, regarding disaster situations. However, we also recommend communicating and working with your union leadership as quickly as possible, to share information on the well-being and needs of impacted employees as well as district plans for directing and compensating disaster service work.

What if employees are unable to work?

Employees who have suffered personal loss or injury, or who are needed to care for a family member, may of course utilize the full array of applicable leaves available to them by law and pursuant to your collective bargaining agreements. These include but are not limited to: sick leave, extended leave, personal necessity leave, and FMLA/CFRA leave.

Districts should also work with employees who live or travel through affected areas.  The fires or associated road closures may interfere with their travel and they may have trouble getting to work on time or at all.  School closures will also play havoc with parents’ arrangements.

To address employee’s inability to attend work, districts should:

  • Review the management rights clauses in all your contracts. As noted above, these likely authorize some amount of unilateral action in the face of such a natural disaster. This would include making decisions about work schedules, revised call-in procedures, revised uses of available paid leaves, and other workplace issues normally subject to negotiation.
  • While some unilateral action is likely authorized, we recommend meeting quickly—by phone is fine—with union leadership. Check-in and share information each may have on affected employees; strategize how to get support to those in need; inform how the district is addressing needs for leave; etc.

Do we pay employees for time the district is closed?

Whether or not there is a legal obligation to pay employees during a district closure depends on a variety of factors under both the federal FLSA, and state wage and our law, such as: whether the employee is exempt or nonexempt, the length of the closure, whether the employee worked during any period of an FLSA workweek, and whether the employee is otherwise ready, willing and able to work.  Thus, as a first step we recommend that you look at your own policies and collective bargaining agreements—which may address the issue.   If your policies and/or CBAs are silent, unclear, or you are not sure if they meet minimum legal requirements, contact legal counsel.

Student Issues

Student Attendance Accounting

We anticipate that if campus closures last long enough to affect student contact hours the California Community College Chancellor’s Office will issue guidance as it has in the past. For programs with specific clinical or other attendance requirements, such as allied health, districts will need to work with the State Accrediting Agency to determine whether those requirements will be revised or modified.

Individual Course Requirements

At colleges fortunate enough to be open, districts should encourage individual faculty members to be flexible, and work with students living or traveling through affected areas.

Origins and Applications of the Home Rule Doctrine

Posted in Constitutional Rights, Labor Relations, Personnel Issues, Public Sector, Wage and Hour

This post was authored by Lisa S. Charbonneau.

Under Article XI, Sections 4 and 5 of the California Constitution, charter cities and counties have exclusive authority to regulate and determine their own municipal affairs, free from intrusion by the state.  These provisions of the Constitution are collectively referred to as the municipal affairs clause and have given rise to what is known as the “home rule” or “municipal affairs” doctrine.  At its essence, the home rule doctrine embodies the principle that a municipality knows its wants and needs better than the state at large.

The origins of the home rule doctrine lie in the creation of the state of California itself.  That is, when the original California Constitution was ratified in 1849, many municipalities within the state had operated autonomously for decades using their own laws, government structures, and tax systems.  In the face of the new power emanating from Sacramento, many established municipalities (such as Los Angeles or San Francisco) were skeptical of the state legislature and favored local autonomy.  The municipal affairs clause and the home rule doctrine reflect that sentiment; they evidence an affirmative adjustment to the political relationship between the state and municipalities that grants charter cities and counties the power to regulate their own municipal affairs.  For more on the history of municipal affairs in California, click here or here.

A case from 1899 involving the City and County of San Francisco (CCSF), Popper v. Broderick, exemplifies how the home rule doctrine has been invoked and applied.  In 1897, the state passed a bill setting minimum salaries for municipal police and fire personnel that were higher than that paid by many municipalities at that time.  For example, whereas the new state bill set the minimum salary for a police chief at $5000 per year, the police chief of San Francisco was only paid $4000 per year.  In response, San Francisco resident Max Popper sued to prevent CCSF from raising the salaries of any affected CCSF employees to comply with the new state law.  According to Popper, the law was an unconstitutional intrusion into a purely municipal affair; the state lacked the power to force the taxpayers of CCSF to pay increased compensation to its police and fire personnel.  In 1899, the California Supreme Court agreed, finding that the constitution’s home rule provisions were intended “to prevent the constant tampering [by the state] with matters which concern only or chiefly the municipality” and that “the pay of firemen and policemen clearly falls within the term ‘municipal affairs.’”

Since Popper, numerous California courts have taken up the issue of whether wages and salaries paid by charter cities and counties to their employees constitute a municipal affair.  For example, in 1979, the California Supreme Court held that a state law preventing public agencies from providing cost-of-living increases to their employees violated the home rule provisions of the California Constitution because the determination of wages paid to employees of charter cities and counties is a matter of local rather than state-wide concern.  In another example, the First District Court of Appeal held in 2008 that overtime pay and meal and rest breaks constitute matters of local concern, and that thus, under the home rule doctrine, provisions in the Labor Code regulating overtime and meal and rest breaks do not apply to charter cities and counties.

Today, charter cities and counties regularly invoke the home rule doctrine in response to attempts by various interests to apply inapplicable state regulation to charter cities and counties or to otherwise regulate on a state-level the goings-on within charter cities and counties.  Thus, courts throughout the state continue to apply a doctrine born in the 1800s to the modern day realities of state versus local government, with varying results.  Charter cities and counties should consult legal counsel to evaluate the applicability of the home rule doctrine to any particular state law or regulation that appears to address what may be a purely municipal matter.

Real Strange Employment Cases About Real People

Posted in Employment, Litigation

This post was authored by Stefanie K. Vaudreuil.

In this fifth annual installment of a look at some unbelievable, strange and wacky employment litigation, there remains no shortage of cases that will make you believe your human resources issues aren’t so bad after all.

The Thing That Happened on the Way to Jurassic Park

Before getting into the specifics of this unbelievable case, a science review is in order. About 100 million years ago, pterosaurs (winged lizards) dominated the skies. That reign lasted for about 35 million years. So, that means there has not been a living pterodactyl in 65 million years—or has there? Nancy Barnette sued Federal Express Corporation for gender discrimination after she was fired from her position as a driver following two preventable accidents. Barnette claimed that while on her assigned route an “oversized avian struck the passenger window.” Barnette described this winged creature as a “pterodactyl.” She did not immediately report the pterodactyl encounter to her employer. Meanwhile, Barnette continued along her delivery route despite the “pterodactyl” strike. Then, according to Barnette, about an hour later the window shattered into the vehicle. Apparently, that “pterodactyl” was actually the automatic gate of a housing division. The police department received a report of a FedEx driver smashing into the gate entrance. The damage to the FedEx truck was consistent with the report to the police. Before Barnette was approached by law enforcement, she informed a dispatcher at FedEx that her truck had been hit by a “pterodactyl.” After being confronted with what really happened and informed that she would be terminated, Barnette claimed she was being discriminated against because of her gender. Her theory was that male employees were not fired for accidents. What she failed to acknowledge was that the male employees did not claim that an extinct, flying dinosaur caused the damage to the vehicle. Her lawsuit was ultimately unsuccessful. As an aside, there were 161 “pterodactyl” sightings reported in the United States in 2017 with the most sightings being in Utah and Oklahoma. Too bad for Barnette she lived in Florida.

He Wasn’t On the Way to White Castle When He Stopped to Feed the Grizzlies

When an employee smokes marijuana before work and his job is to feed grizzly bears, you would think the employer should not be liable when the grizzly bear attacks the stoned employee. Well, that was not the outcome in a workers’ compensation case from Montana. The employer owned a grizzly bear park where visitors could drive through to observe grizzly and black bears. The employee (who was deemed to have been an employee and not a volunteer by the Uninsured Employers’ Fund) admitted that he smoked marijuana before he went to work the morning of the grizzly bear attack. While feeding the grizzlies, like he had done on countless occasions before, he was attacked and injured. The Montana Supreme Court agreed with the decision that the employee was entitled to compensation for his injuries: “I cannot conclude based on the evidence before me that the major contributing cause of the grizzly bear attack was anything other than the grizzly. It is not as if this attack occurred when [the employee] inexplicably wandered into the grizzly pen while searching for the nearest White Castle.” The employee was not quite let off the hook for his poor judgment: His “use of marijuana to kick off a day of working around grizzly bears was ill-advised to say the least and mind-bogglingly stupid to say the most.” Just as it was stupid to feed grizzly bears after smoking marijuana, employees who have safety sensitive jobs are rightfully told that being under the influence of marijuana at work is misconduct and could be cause for discipline.

If Waterboarding Doesn’t Improve Employee Performance, Nothing Will

In this lawsuit filed by a former employee of a one-on-one education call center, the plaintiff alleged he was injured in the course of his employment by his supervisor’s unorthodox motivational methods. According to the plaintiff, his supervisor would draw mustaches with permanent marker on employees’ faces and take away their chairs if they failed to meet performance goals. This same supervisor was also known to walk around the office slamming a wooden paddle on desks and tabletops in an apparent effort to “motivate” employees. The last straw for the plaintiff occurred when he “volunteered” for a new motivational exercise. The plaintiff claimed that his participation was based upon his supervisor’s challenging the team’s loyalty and determination. What the plaintiff did not realize is that he was agreeing to participate in an exercise of waterboarding. The plaintiff was held down by other team members while the supervisor poured water over his mouth and nose so he could not breathe. The plaintiff complained to human resources, which he said did nothing about the situation, so he quit. Perhaps other methods besides Guantanamo Bay-like exercises are better suited for the workplace.

Do Speedos Make You Swim Faster?

In a case brought against the New York State Office of Parks Recreation & Historic Preservation, a seasonal lifeguard claimed he was discriminated against because of his age and gender when he was denied requalification as a lifeguard in 2007 and 2008. According to the former lifeguard, he refused to wear a speedo-type swimsuit and instead wore a more modest swimsuit that resembled bicycle shorts. He alleged the refusal to qualify him based on the type of swimsuit he wore was discrimination based on his age, 57, and gender, male. This case raises interesting questions about dress codes for applicants. Although the plaintiff had previously worked as a lifeguard, it was seasonal employment that required him to re-apply each summer. How far can an employer go with respect to what an applicant may wear? Maybe he should have been allowed to wear his swimsuit of choice during the application process but required to wear the employer’s version if he were employed. Something to think about.

Appellate Law – The Final Judgment Rule and its Exceptions

Posted in Litigation

This post was authored by David Urban.

Many times, parties to a lawsuit receive trial court rulings in the midst of the litigation that are unfavorable, oppressive, and seem to them to be demonstrably wrong.  The parties want to appeal immediately, but their counsel will say that cannot happen, citing the “Final Judgment Rule.”  The rule certainly sounds dark and fateful.  Perhaps courts intend it to be, because the rule serves to deter disgruntled litigants from appealing while the trial court case is ongoing, and typically requires those litigants to wait months, or even years, to appeal.  So what is this rule?  And perhaps more importantly, what are ways to gain access to an appellate court early without offending it?

The Final Judgment Rule (sometimes called the “One Final Judgment Rule”) is the legal principle that appellate courts will only hear appeals from the “final” judgment in a case.  A plaintiff or defendant cannot appeal rulings of the trial court while the case is still ongoing.  For example, a party that loses its motion to compel discovery, motion for summary judgment, or demurrer cannot appeal these decisions, at least not until a final judgment has been entered in the case, concluding the lawsuit in the trial court.  The Final Judgment Rule has existed for hundreds of years, and serves the purpose of promoting judicial efficiency – cases would practically never end if the party who lost a motion while the case was pending could appeal it, wait for a decision from the court of appeal, and then continue with the trial court case.

Moreover, the Final Judgment Rule greatly reduces appellate court workloads by tending to make it so that only very important issues are ultimately presented to those courts.  If a party loses a motion early in the trial court case, they may certainly feel wronged.  But in the weeks or months afterward, the case may settle, the issue may fade in importance, or the trial court might actually decide to change the ruling, making appellate review unnecessary.  Postponing review conserves appellate court resources, and those of the parties as well.  In addition, postponing appellate review allows the appellate court to rule on all the challenges to the trial court’s decisions at the same time, thereby further promoting efficiency.  The appellate court will not have to consider “piecemeal” appeals.

The Final Judgment Rule may make sound policy sense.  But it is not much comfort to a litigant who has lost an important motion in court many months before the actual trial will start and cannot immediately appeal the bad ruling.

There are, however, some ways around the Final Judgment Rule.  Here are examples of four significant ways, and the circumstance under which each is available.

  1. Petition for Writ of Mandamus:

This is the classic method for obtaining relief while a litigation matter is still ongoing.  This type of petition to an appellate court seeks a “writ of mandamus” (sometimes also called a “writ of mandate”), essentially an order from the appellate court to the trial court directing it the trial court to change its decision or take some other action.  This type of writ is available in both federal and state courts.

The advantage of a petition for writ of mandamus is that it is available to overturn essentially any ruling or order made by a trial court, even though the lawsuit is still ongoing.  The disadvantage of this type of petition, however, is that it is entirely discretionary in the court of appeal.  The court of appeal is free to turn down any writ petition, even one that clearly has merit, and the court of appeal denies the overwhelming majority of petitions for writ of mandamus seeking review of trial court orders.  The state court percentage of accepted petitions is low and the number is even lower in federal court.  The reason these writs are so often denied on this summary basis (i.e., without even considering whether they raise a valid legal point) is that courts of appeal rarely see any reason to depart from the underlying principles of the Final Judgment Rule.

There are particular types of scenarios in which appellate courts are more likely to decide a writ on the merits.  One is when issues of privilege or confidentiality are concerned.  For example, when a trial court orders a litigant to disclose sensitive personnel records of individuals or information in which the litigant claims attorney-client privilege, the need for appellate review is immediate.  If the litigant obeys the trial court’s order, then the disclosure will be made, and the alleged harm done, before any appellate court can determine whether the trial court’s ruling in fact was correct.  It is widely understood that in these scenarios, appellate courts will more likely choose to intervene in the midst of litigation.

Another example is when the issue raised by the writ petition is one of great public importance, and when the party who files the petition can persuade the court that the public would be well served by the appellate court immediately reviewing and providing guidance on that particular issue without waiting for the case to conclude.

  1. A Preliminary Injunction Ruling:

The parties can also immediately appeal a trial court’s ruling granting or denying injunctive relief.  Trial courts have the power to issue preliminary injunctions at the beginning of a case that can operate to preserve the status quo.  For example, a trial court can order that a public college must stop enforcing a rule that supposedly stifles student First Amendment free speech rights.  Trial courts can make these orders based on an initial showing by the plaintiff, at the beginning of the case, that they are likely to succeed on the merits of their claim, that they are likely to suffer irreparable harm if the preliminary injunction is not granted, and that general equities and the public interest support issuance of the injunction.

Not only are these types of orders for injunctive relief by trial courts (either granting or denying) immediately appealable, but in the federal appellate courts, appeals of injunctions are given priority over other types of cases.

  1. Rulings on Anti-SLAPP Motions:

An immediate appeal is also available from a state trial court’s ruling on what is known as an “anti-SLAPP motion.”  This type of motion can be used by a defendant, including a public entity, in response to a lawsuit that challenges conduct by the defendant in furtherance of the defendant’s right of petition or free speech as defined by the anti-SLAPP statute.  (SLAPP stands for “Strategic Lawsuit Against Public Participation,” and is meant to refer essentially to meritless lawsuits brought against persons or organizations to punish them for and/or deter them from speaking out on important issues or petitioning the government for redress.)  The statute defines protected activities very broadly.  Indeed, courts have interpreted the definition to include government statements in various types of proceedings, including internal investigations conducted by public entities as to their employees.  (Hansen v. California Dept. of Corrections and Rehabilitation.)

If the anti-SLAPP statute applies in a given context, then the defendant can make a motion at the outset of the case to have a trial court determine if there is any “probability” of success on the claim.  If the plaintiff cannot present evidence making this showing of a “probability,” then the trial court rules in favor of the defendant.  If the defendant wins the motion, the trial court will require the plaintiff to pay the defendant’s attorneys’ fees and costs.  Thus, another very important way to have an appeal heard early in state court is to bring an anti-SLAPP motion.

  1. Qualified Immunity Decisions:

Another judicial determination that is often immediately appealable, in the midst of litigation, is a federal trial court’s decision on the defense of qualified immunity.  This is a defense available to individuals who are officials or employees of government agencies and are named personally in federal civil rights lawsuits.  In general, the defense of qualified immunity applies when the individual defendant is challenged for actions he or she took relating to an area of law that is unclear or unsettled.  If it is sufficiently difficult for the individual to tell what is constitutionally prohibited in the situation in question, then this defense will apply.  Qualified immunity will not provide a defense to claims for declaratory or injunctive relief against the individual, but it will serve as a defense to a monetary damages claim.

If the trial court either grants or denies a motion based on qualified immunity in the middle of the case, then either side respectively can appeal the determination, if the appeal involves essentially legal questions such as whether the plaintiff’s alleged rights at issue were sufficiently unclear to merit applying the defense.  The defense applies in a wide variety of cases brought against government officials and employees.  Significantly, individual defendants can claim the qualified immunity defense in wrongful termination cases in which the former employee claims violation of his or her constitutional free speech or due process rights.

Each of these four ways to obtain appellate review on an interlocutory basis — i.e., in the middle of the case — are available to public entity defendants.  This gives public entities a unique ability in many cases to structure the defense to obtain immediate access to an appellate court, and thus have important matters resolved before the case concludes.

For other litigation posts on related issues, see prior LCW posts: “Anti-Slapp Motions As A Litigation Resource For Public Employers,” “Extending Qualified Immunity To Private Individuals,” and “Appellate Law — What Are Amicus Curiae Briefs?”

2019 Public Sector Employment Law Conference – Registration Now Open!

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.

Register now!

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

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 employeesand 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

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:

  1. Promptly and thoroughly investigate all claims of harassment, discrimination, or retaliation.
  2. 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.
  3. 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.

  1. 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.

  1. 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.

  1. 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

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