Over the last few months, claims for unemployment insurance benefits have increased exponentially due to the difficult financial circumstances public and private employers have been confronted with in the wake of the COVID-19 pandemic. Reductions in services and business closures have forced many employers to implement layoffs and furloughs, causing the dramatic increase in unemployment claims.

As employees are being laid off or furloughed because of the COVID-19 impacts, employers will receive notices from the Employment Development Department (EDD) when those laid-off and furloughed employees file unemployment claims. Employers should not erroneously presume it is unnecessary to respond to the notice or that the obligation to do so has changed amidst the COVID-19 pandemic. Irrespective of the reason for the claim or the employer’s decision to not contest a claim, the employer is obligated to respond to the notice in a truthful, complete and timely manner.

In 2013, the California Legislature responded to the federal mandate set out in the Unemployment Insurance Integrity Act (“Act”) by enacting Unemployment Insurance Code section 1026.1. The Act was intended, in part, to deter employers from ignoring unemployment claims and merely accepting them as a “cost of doing business” and sets forth a consequence for employers doing so. If an employer requests that its reserve account be relieved of charges related to benefits overpayments, the EDD will not provide the relief if the employer failed on at least two occasions to timely or adequately respond to the EDD regarding claims for unemployment benefits. For this reason, it is important for employers to provide truthful, complete and timely information to the EDD as requested on individual unemployment insurance claims, even if those claims result from COVID-19 furloughs or layoffs.

Also, it is important to remember that an employer’s response to the EDD can potentially be used as evidence in any related litigation, an additional important reason for the response to be truthful and complete. If litigation is likely or anticipated, employers should consider conferring with legal counsel about the response before submitting it to the EDD.

Similarly, employers seeking to reduce their workforce as a cost-saving measure may be considering severance agreements. If an employer elects to include a provision in those agreements that it will not contest unemployment benefit claims, the employer, nevertheless, must respond to inquiries from the EDD regarding the claims. Further, severance or settlement agreement terms that state the employer will not contest unemployment claims should include language that the employer will provide truthful, complete and timely responses to the EDD. Simply ignoring the EDD’s inquiries could result in denial of future requests for relief in cases of overpayment of benefits.

To ensure compliance with the EDD’s requirements, employers should consider having any layoff or severance agreement reviewed by legal counsel.

Employers know they need to accommodate a disabled employee’s request to bring a service dog to work.  However, what happens when employees claim they are stressed and need to bring their dog to work for emotional support?  Here are the top five questions on emotional support dogs:

 1.  Do we need to allow an employee to bring an emotional support dog?

Yes, if the dog is a reasonable accommodation for a disabled employee.  The Fair Employment and Housing Act (“FEHA”) governs service and emotional support dogs.  Under FEHA regulations, an “assistive animal” is an animal that is “necessary as a reasonable accommodation for a person with a disability.”  The regulations list as an example: “‘Support dog’ or other animal that provides emotional or other similar support to a person with a disability, including, but not limited to, traumatic brain injuries or mental disabilities such as major depression.”  (2 C.C.R. §11065(a).)  In fact, the regulations provide allowing employees to bring “assistive animals to the work site” as an example of a reasonable accommodation.  (2 C.C.R. §11065(p)(2)(B).)

When an employee requests to bring an emotional support dog to work, the employer should engage in the interactive process and respond to the employee as it would toward any accommodation request by evaluating the following three factors:

  1. Reasonableness: Is the requested accommodation reasonable?
  2. Effectiveness: Is the request effective? Will this requested accommodation effectively allow the employee to perform the essential functions of his or her job?
  3. Undue Hardship: Does the request pose an undue hardship? With assistive animals, employers must weigh issues such as whether the animal will be disruptive to the workplace.

Just because an employee claims he/she is stressed and needs a support dog, without any documentation from a medical provider, this claim in and of itself does not require that the employer allow the dog.

2.  Can we ask for documentation of the employee’s disability and the need for the support dog?

Yes.  As with any request for an accommodation, the employer may request documentation from the employee’s health care provider stating the employee has a disability and explaining why the employee requires the animal in the workplace (e.g., why the animal is a necessary accommodation to allow the employee to perform the essential functions of the job).

3.  What if the dog bites, smells, barks constantly, or goes to the bathroom in the office?

Under FEHA regulations, employers can require assistive animals to meet minimum standards.  Employers may require the assistive animal (1) is “free from offensive odors and displays habits appropriate to the work environment, for example, the elimination of urine and feces”, and (2) “not engage in behavior that endangers the health or safety of the individual with a disability or others in the workplace.”  (2 C.C.R. §11065(a)(2).)  Thus, if the dog engages in inappropriate or aggressive behavior, an employer does not have to allow it in the workplace.

4.  If we let one person bring their dog, do we have to let everyone bring their pets?

No, allowing one employee to bring their dog would not require allowing all employees to bring their pets.  Whether other employees would be allowed to bring their pets requires an individualized assessment through the interactive process.  However, if other employees did submit similar medical certifications, it may be difficult for the employer to deny other employees’ requests based on undue burden once it determines it is a reasonable accommodation for one employee.

5.  What can we say if people ask why someone is allowed to bring their dog to work, or if people complain about there being a dog at work?

It is difficult to respond to a question about someone bringing a support dog to work without divulging private medical information.  The best way to respond is stating the employee is allowed to bring their dog as an accommodation and leave it at that.

It is also reasonable to be concerned that employees may complain about the dog, for instance because the employees are scared or allergic.  Employees have a right to a support dog at work as a reasonable accommodation to a documented disability unless it is an undue burden.  If other employees voice concern, the employer should listen and see if it can address the concerns while still accommodating the disabled employee.  If not, the employer can evaluate whether allowing the dog is now an undue burden.  However, at least one study has reported that pets in the workplace reduce stress for their owner and co-workers as well!

6.  Can the dog spread coronavirus in the workplace?

According to the CDC website, the risk for animals spreading coronavirus to the workplace appears to be low and there is no evidence that animals play a significant role in spreading the virus. Anyone bringing a dog to work will have comply with required workplace coronavirus safety procedures.

 

 

Introduction

On March 19, 2020, Governor Gavin Newsom issued a stay-at-home order for the entire state of California (with an exemption for essential workers) causing many public agencies, businesses, and schools to shut their doors. In an effort to reopen California’s economy, Governor Newsom announced a Resilience Roadmap setting out a four-stage plan that modifies the statewide stay-at-home order and gradually permits some non-essential businesses to resume operations. While many employers are eager to reopen and have their employees return to work, it is crucial to have a plan in place to address the different issues that may arise in having employees return to the worksite. Federal, state, and local officials are issuing new orders and guidance regularly, so the tips in this blog post may change as the applicable guidance and orders change. Employers should continue to monitor the applicable federal, state, city, and county guidelines to confirm whether their county is reopening at the same pace the Governor set for the state.

Assess the worksite and establish a plan

Employers should first assess their worksites to ensure that they are safe for employees to return to work. Employers should establish a written, worksite-specific COVID-19 prevention plan at every office location, perform a comprehensive risk assessment of all work areas, and designate a person at each office workspace to implement the plan. The California Department of Public Health and Cal/OSHA have issued industry guidance and industry checklists to help employers create and implement an individualized plan to prevent the spread of COVID-19. Employers should post their checklist in a place visible to employees and the public.

Part of the prevention plan should include deep cleaning of the worksite prior to having employees return and establishing disinfecting protocols that involve regular sanitation of the worksite, as well as an expectation that employees will regularly clean their own personal work areas and surfaces they touch. Employers should also implement physical distancing guidelines, which may include laying out markers to guide employees in staying six feet apart, discontinuing non-essential travel, and limiting in-person meetings.

Communicate with and train employees

It is important that employers communicate with employees on how they can protect themselves from COVID-19 and carefully consider how they will decide which employees should return to work. Employers should provide employees with reasonable advance notice of returning to work and should note which employees will stay home due to various reasons, such as for health-related or childcare reasons. Consider staggering work schedules where possible, especially for those in high-risk groups or those who may not feel comfortable returning to work at this time. Prior to reopening, employers should also train employees on the worksite’s prevention plan on how to limit the spread of COVID-19. Employees should be encouraged to use face coverings when they are in the vicinity of others, while at work, in offices, or in vehicles during work-related travel with others.

Establish a procedure for testing and checking for signs and symptoms

Employers should implement screening procedures for all employees at the beginning of their shift and before entering the workplace, which may include daily self-checks, temperature checks, masks, and symptom and exposure screening. The Center for Disease Control and Prevention has helpful guides on how to test for signs and symptoms. If an employee is sick or experiences any COVID-19-related symptoms, the employee should notify their supervisor and stay home. Employees should not return to work until they have met the criteria to discontinue home isolation.

Other considerations

Employers should carefully examine plans to reopen their worksites as well as any plans that require non-essential employees to return to work.  They should also take into consideration the potential for increased exposure to workers’ compensation liability. Typically, under California’s workers’ compensation system, an employee must prove they were injured on the job in order to qualify for workers’ compensation benefits. In response to COVID-19, Governor Newsom signed Executive Order N-62-20, which creates the rebuttable presumption that an employee’s COVID-19-related illness arose out of the course of employment for the purpose of awarding workers’ compensation benefits. Under this order, an employee is presumed to have contracted a COVID-19-related illness at work if they were diagnosed with COVID-19 or tested positive for it within 14 days after returning to their worksite during the period between March 19, 2019 and July 5, 2020. Overcoming this presumption may be difficult for employers because they will have the burden of proving that the employee contracted COVID-19 outside of the workplace.

Employers should also consider reducing personnel at worksites by permitting employees to continue (or begin) teleworking full-time or part-time, or implementing staggered or alternative work schedules to reduce the number of personnel in the workplace at any one time.

For those employees who are sick or exhibiting symptoms of COVID-19, employers should communicate sick leave options that may be available to employees, including but not limited to Emergency Paid Sick Leave, Emergency Family Medical Leave, FMLA/CFRA, local and state paid sick leave, and other employer-provided leaves.

This blog provides an overview of the steps employers should consider prior to having employees return to work. Each plan must be unique and tailored to each worksite. LCW assists public and non-profit employers in drafting tailored policies for reopening the workplace.

As more businesses start to reopen, the COVID-19 pandemic will have long-term effects on the work environment beyond temperature checks and social distancing protocols.  One impact is that it may be harder for employers to justify denying a disabled employee’s request for an accommodation to work from home.  Whereas employers previously may have been reluctant to allow employees to work from home, Governor Newson’s March 19, 2020 Stay at Home Order and local county orders have forced employers to adapt quickly to the new normal of telecommuting.   With this change comes a new perspective on whether employees can perform their essential job duties from home.

Under the California Fair Employment and Housing Act (“FEHA”), the Americans with Disabilities Act (“ADA”), and Section 504 of the Rehabilitation Act of 1973, an employer is required to engage in the disability interactive process when an employee or applicant requests an accommodation for a disability or when the employer becomes aware of a need for accommodation.  The FEHA and ADA make it unlawful for an employer to fail to make a reasonable accommodation for the known physical or mental disability.  The exception to this requirement is if the accommodation would create undue hardship for the operation of the employer’s business or would impose a significant risk of harm to the health and safety of others.

Accommodations to Work from Home Prior to the COVID-19 Pandemic

Even before the COVID-19 pandemic, the FEHA regulations expressly provided a reasonable accommodation could include permitting an employee to work from home.  (Cal. Code Regs. tit. 2, § 11065(p)(L).)  The Ninth Circuit has also recognized that “on-site presence is not required for all jobs” because some employees are able to adequately execute all work-related tasks from home.  (Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1239 (9th Cir. 2012).)

Workplaces Have Made Telecommuting Work

Based on the Stay at Home Order, many employees have now been working from home for over 12 weeks.  This has provided both employers and employees with an opportunity to try telecommuting on a long-term and workplace-wide basis.

Moving forward, when a disabled employee make an accommodation request to work from home, it may be more difficult for an employer to deny the request based on some justification that the employee needs to be physically in the workplace.  Some employees will be able to point out that they were able to telecommute and accomplish their essential job duties during the COVID-19 pandemic.  This could undercut arguments that allowing a disabled employee to telecommute is an undue hardship.

Courts will consider past instances of telecommuting to determine whether an employee can be reasonably accommodated to work from home.  In the unpublished case from California, Henry v. Pro*Act, LLC, an employer refused to allow an employee to work from home after the employee was recovering from surgery.  In determining that the employer could have made a reasonable accommodation available, the court stated it was important that the employer had previously allowed the employee to work from home after prior surgeries. (Henry v. Pro*Act, LLC, 2014 WL 12567144, at *8 (C.D. Cal. Dec. 30, 2014).)

In another unpublished federal case from California, Rezvan v. Philips Elecs. N. Am. Corp., an employee made repeated requests to work from home when she suffered severe pain or infection related to her rheumatoid arthritis.  Her employer repeatedly refused the requests and claimed the employee’s job as a Contract Manager required regular onsite attendance.  After the employee filed a lawsuit alleging refusal to accommodate a disability, the employer presented evidence that the employee’s absences negatively impacted other employees.  However, the court took note of evidence that the employer had previously allowed another Contract Manager to work remotely full-time for ten months without any issues.  The court found that there was a genuine dispute regarding whether regular onsite attendance was an essential duty of the Contract Manager position. (Rezvan v. Philips Elecs. N. Am. Corp, 2016 WL 8193160, at *4 (N.D. Cal. Dec. 15, 2016).)

Boost of Technology

During the Stay at Home Order, many workplaces began utilizing their existing technologies on a more frequent basis and adding new technologies to ease the transition to working from home.  Video conferences and conference call phone lines have replaced in-person meetings and trainings.  An employee’s ability to remote into his or her work computer has allowed access to work as if the employee never left his or her desk.  The ongoing shift to paperless work environments has allowed employees to access more documents electronically, thereby reducing the need to visit the printer and copying room.

With these technological improvements comes an ease in ability to telecommute.  The U.S. Court of Appeals for the 7th Circuit foresaw the impact technology would have on accommodation requests to work from home 25 years ago.  In Vande Zande v. State of Wis. Dep’t of Admin., the 7th Circuit determined that the employer was not required to allow a disabled employee to work from home where their productivity inevitably would be reduced.  However, the Court also predicted: “This will no doubt change as communications technology advances…”(Vande Zande v. State of Wis. Dep’t of Admin., 44 F.3d 538, 544 (7th Cir. 1995).)

Learning to Work Together While Apart

On a coworker-to-coworker level, employees have learned how to communicate and facilitate work projects with each other while working apart.  While technology cannot fully replace the comradery of face-to-face interactions with coworkers, people will have a better understanding of how they can continue to work together effectively from different locations.  Disability interactive process accommodations to work from home will be less of a hardship when telecommuting fits in to the normal workplace culture.

Flexibility is Key

Even after people are allowed to return to the workplace, employers are encouraged to continue allowing employees to work from home.  For example, the May 29, 2020 County of San Diego Public Health Order states that all essential businesses and reopened businesses shall make every effort to use telecommuting for their workforces.  As some employees begin to return to work, other employees such as those who are considered high-risk populations for COVID-19 reasons, may request to continue to work from home.

When engaging in the interactive process with disabled employees who request an accommodation to work from home, employers should carefully analyze whether or not telecommuting imposes an undue hardship on the employer’s operations.  While some employees perform duties that necessitate presence in the workplace (for example, public safety employees, water treatment operators, and notaries), other employees who have been telecommuting during the COVID-19 pandemic may have already demonstrated their abilities to perform essential job duties from home.

On June 15, 2020, the United States Supreme Court ruled that Title VII of the 1964 Civil Rights Act protects gay and transgender employees from discrimination.  The Court’s decision was 6-3 and the opinion was authored by Justice Gorsuch, who was joined in the decision by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor and Kagan.

Title VII of the 1964 Civil Rights Act is the federal law that prohibits discrimination in employment on the bases of race, color, religion, sex and national origin.  At issue before the Court was whether the word “sex” in Title VII protects employees from discrimination on the basis of their sexual orientation or transgender status.   Before the Court were appeals of three cases where the employers allegedly fired long-term employees for being homosexual or transgender.  First, in Bostock v. Clayton County, Georgia, a county employee was fired for conduct “unbecoming” a county employee after he joined a gay softball league.  Second, in Altitude Express, Inc., et al.  v. Melissa Zarda and William Allen Moore, Jr., a skydiving company fired an instructor days after he said he was gay.  Third, in R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, et al., a funeral home fired an employee who presented as a male when she was hired after she informed her employer that she planned to “live and work full-time as a woman.”

The Court ruled that the plain language of the statute – prohibiting discrimination “because of” sex – incorporates discrimination based on sexual orientation or transgender status.  The Court stated:  “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”  For example, if an employer fires a male employee for being attracted to men, but does not fire a female employee for being attracted to men, the employer’s decision is based on sex.  The Court explained that “homosexuality and transgender status are inextricably bound up with sex . . . . because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.”

Concluding that the plain meaning of the text of the statute is clear, the Court found no need to look to legislative history or other sources to interpret the law.  However, the Court rejected the employers’ arguments that prohibiting discrimination on the basis of homosexuality or transgender status was not the intent of Congress at the time the law was passed in 1964:  “But to refuse enforcement just because of that, because the parties  before us happened to be unpopular at the time of the law’s passage, would not only require us to abandon our role as interpreters of statutes; it would tilt the scales of justice in favor of the strong or popular and neglect the promise that all persons are entitled to the benefit of the law’s terms.”

Finally, the Court noted two other issues raised by the employers relating to the impact of this decision, but concluded they were not before the Court at this time.  First was the balance between religious liberty and Title VII.  The Court explained that while in the future employers may be able to raise an argument that free exercise of their religion interferes with their compliance of Title VII, none of the employers before the Court had presented that argument.  Second, employers raised concerns that extending Title VII to protect transgender employees will cause societal upheaval with bathrooms, locker rooms and dress codes.  Indeed, this was a large focus of the oral argument on these cases.  However, the Court stated that this issue was not before the Court and did not address whether a sex-segregated bathroom would violate Title VII:  “Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual ‘because of such individual’s sex.’ …   Whether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these.”

The Court’s decision is a landmark ruling for LGBTQ employees throughout the United States.  Under California law, the Fair Employment and Housing Act already prohibits discrimination against employees based on sexual orientation, gender identity, and gender expression, including transgender status.  Thus, this ruling does not change the legal landscape for California employers, but it will allow homosexual and transgender California employees who believe they were discriminated against by their employers to bring lawsuits under Title VII.  In addition, under California law, employers (1) must allow an employee to use the restroom or locker room that corresponds to the employee’s gender identity or expression; (2) are required to refer to employees using the employee’s preferred name, gender, and pronouns, and (3) may not enforce dress codes more harshly against an employee based on their gender identity/expression.

Bostock v. Clayton County, Georgia, United States Supreme Court Case No. 17–1618 (June 15, 2020)

Amid the ongoing COVID-19 pandemic, employers have developed various leaves of absence plans to support employees who contract COVID-19 or come in close contact with a COVID-19 patient.  Since the state’s phased reopening began about a month ago, employers have been developing such leave plans to ensure adequate balancing between the need to reopen and the need to maintain a healthy environment for their employees.   While the pandemic has brought many things in the world to a halt, for the most part new employment laws that were already set to take effect this year are nevertheless becoming a reality for employers whether they are ready or not.  This reality has certainly ensured that employers, public and private, have their hands full.  From AB 5, codifying the ABC test to determine whether a worker is an independent contractor or employee, to AB 9 extending the statute of limitations to file discrimination complaints to three years, and many others.  Thus, with an effective date of July 1, 2020, it is easy to see how SB 83 would fall off an employer’s radar.

SB 83 extends the duration an employee may receive Paid Family Leave (PFL) benefits from six weeks to eight weeks effective July 1, 2020.  Keep in mind that some entities, such as most public employers, are by default excluded from PFL.  In other words, the PFL only applies to a public employer if it elects to participate in the program, and the election to participate is based on negotiation between the public employer and a recognized employee organization.

In 2004, California became the first state to provide PFL.  The state funds the PFL through the State Disability Insurance (SDI) fund and currently provides for up to six weeks of benefits to employees taking time off from work to care for a spouse, child, grandparent, grandchild, sibling, or domestic partner, or to bond with a minor child within one year of birth or adoption.

SB 83 extends PFL from six to eight weeks. The PFL does not provide for job protection.  Rather, employees may qualify for job protection through other leave laws such as the Family Medical Leave Act or the California Family Rights Act.  The PFL simply provides employees with compensation of 60%-70% of their gross wages during their leave.  Additionally, SB 83 increases the wage replacement benefit for low-wage workers to up to 90% of their gross wages.

Arguably, the ticking time bomb in SB 83 is the requirement that the Governor submit a proposal extending PFL to six months by 2022.  Given the prevalent political environment in California, employers should fully anticipate that PFL will extend to six months by 2022.  The six-month benefit extension will be limited to baby bonding leaves.  Further, the six-month duration will be a total if both parents claim PFL benefits.  For example, each parent can receive PFL benefits for three months, or one parent can receive all six months. Since PFL does not currently provide job protection, employees will not be entitled to job protection during this time period.  Nevertheless, it is wise to anticipate that the legislature will modify existing law or enact a new law to provide job protection to employees opting to receive the full six months of benefits.

The obvious impact of this change is that eligible employees are soon likely to take leave for eight weeks rather than six weeks.  Further, should the six-month extension move forward, eligible employees will likely take as much time as PFL provides benefits, so long as they have corresponding job protection.

So, what should employers do?  If PFL applies to your entity, then now is the time to review leave policies, procedures, and practices.  The new PFL may be moot if you already offer your employees more generous leave benefits. Moreover, if a union represents the employees, the Memorandum of Understanding between management and the union may govern this issue as well.  As you modify your leave policies and evaluate how you will handle the six-week to eight-week change, it is prudent to prepare for the six‑month PFL extension.  Connecting with your attorney to revise or draft a leave policy consistent with the ever-evolving leave laws is the wise decision.  Essentially, preparation is key; as the old saying goes: failing to prepare is preparing to fail.

Our nation continues to react to the death of George Floyd, and this reaction includes the thousands who have participated in mass protests across the country.  Many people feel compelled to speak openly and passionately about an issue of national importance.  Public employees likely wish to express their views as well, and this includes not only those working to keep local government running effectively, but the public safety personnel now working to keep the peace.

The following question and answer discusses the speech rights of public employees and how agencies can respond to the expression of their employees in different types of scenarios during the current conditions.

 1.  What First Amendment rights do public employees have in relationship to their own employers?

In most circumstances, public employees have a right under the First Amendment to speak freely without adverse action from their employer if three requirements are met.  First, the employee must speak on an issue of “public concern.”  This includes topics of importance to the nation or community at large.  Second, the employee must speak outside the scope of their “official duties.”  This means the employee’s speech must not constitute the activity they are expected to do as part of their job.  Third, the speech must satisfy a balancing test between the government interests of the employer under the circumstances and the speech rights of the employee.  If what an employee says causes or sufficiently threatens to cause disruption to the agency, then the employee will not prevail on this third step and the speech will not have First Amendment protection.

Under this test, the subject matter of the recent protests constitutes one of “public concern.”  Yet, a police officer making statements in attempting to de-escalate a conflict during a protest, or speaking at a press conference hosted by her agency, would likely not have protection for his or her speech because the officer would be communicating as part of “official duties.”  The agency has the right to critique the officer’s performance in dealing with the situation without regard to First Amendment rights of the officer.  But if an agency employee participates in a protest on their own time, their expressive activity is not pursuant to “official duties,” and if no disruption to the agency results or is sufficiently threatened, the employee will likely have First Amendment protection for their expression.

2.  What if an employee asks for time off to engage in peaceful protesting?

An agency in responding to the request for time off should treat it in the same manner as it would treat such a request based on other general personal reasons.  If the agency allows time off only for protected leaves including sick leave, for vacation scheduled in compliance with agency policy, or for other narrowly defined reasons, it does not need to make an exception for protest activity.  But if the leave policy allows impromptu or short-notice personal days for any reason, the agency should allow the leave and indeed would risk a free speech retaliation claim in denying it based on the expressive conduct the employee intends.  If the agency suffers from short staffing (and this is likely under current conditions), it can deny the leave consistent with their current policies but has to make clear it would have denied the leave regardless of what activity the employee intended.  The agency has to make clear it is not effectively punishing the employee for the view they intend to express or for the personal activity in which they plan to engage.

3. What if an employee’s protesting leads to their arrest for curfew violation or for other civil disobedience? What about criminal misconduct?

Under Labor Code section 432.7, except in cases involving police officer employees, an employer may not take disciplinary action against an employee based solely on the employee’s arrest.  To avoid free speech concerns, the employer’s response should not constitute or appear to constitute punishment or disparate treatment based on viewpoint.  If the employer investigates and confirms the employee engaged in wrongdoing, including something on the level of a curfew violation, the employer should not impose more harsh discipline because the conduct took place in the course of expressive activity and should not create the appearance that this is the case.  Doing so could lead to claims that the employee suffered more harsh discipline for having aligned with viewpoints related to the protests.

4.  What if an employee engages in a protest and expresses hostility toward the agency?

In this scenario, because the expression is on a matter of public concern, and the employee does not act pursuant to “official duties,” a balancing test applies that weighs that agency’s legitimate interests against the employee’s speech interests.  Courts recognize that under constitutional free speech principles, public employees have the right to criticize their own employers and will uphold that right unless the employer can point to sufficient harm to their operations or functioning, which can include disruption in the workplace.  If the employee violates certain important rules in their expression, this can serve as the basis for discipline consistent with the balancing test – these can include rules against divulging confidential information of the agency, or rules against an employee improperly representing themselves as speaking for the agency.

Aside from the First Amendment, other laws including the California Constitution to some extent protect the privacy of employees in their off-duty conduct.  Employers can only control off-duty conduct in limited circumstances when an employer’s legitimate workplace interests outweigh an employee’s right of privacy in personal activities.

5. What if employees turn to social media to engage in harsh criticism or hate speech regarding their colleagues who participate in the protests?

An agency can take action against the employees consistent with the First Amendment if the balancing test described above has been met.  In supporting such action, it is important that the employer make the required showing of impact on the agency.  A public employer can potentially make this showing by demonstrating that the postings harm the reputation or credibility of the agency, render the employee unable to perform his/her duties satisfactorily, impair working relationships with fellow employees, or hinder the agency in managing and directing its work force.

6. Does an agency need to allow workplace signs, e-mail signature blocks, clothing, or other symbolic expression in the workplace regarding the protests?

This depends on what workplace rules the agency currently has governing display of personal items at work, dress codes, and similar matters.  Under constitutional free speech principles, a public employer can generally have such rules as long as they are “reasonable” and “viewpoint-neutral.”  If the employer’s rules preclude such expression and it has consistently enforced those rules, the employer is entitled to enforce them now.  But if the employer has, for example, allowed employees to use various personal messages in their e-mail signature, then the employer will have difficulty arguing now that employees cannot use messages related to the protests (unless the employer can show disruption would result or other sufficiently important administrative reasons).  Also, if the agency adopts rules now in order to block expression related to the protests, a Court could regard this as retaliation for free expression and an attempt to censor a certain viewpoint in violation of the First Amendment.  (As a caveat, special rules apply to expression pursuant to state labor relations laws – the California Public Employment Relations Board (“PERB”) has held that public employees have the right to display union insignia and messages regarding working conditions, and that rules to the contrary are presumptively invalid.)

It is important to note that the mass protests involve issues related to the Fair Employment and Housing Act (“FEHA”) protected classification of race, and the general tone of the protests could expand to other protected classifications; they possibly have already done so.  Employers have to consider that their conduct related to the protests could rightly or wrongly serve as evidence in cases in which the agency’s employment practices are challenged under those laws.  Sensitivity and courtesy in these matters is key, and agency employees committed to the public interests may be willing to voluntarily refrain from, or decline to object to, their colleagues’ expression in the interest of harmony in an important time for the organization.

7.  Can an agency coach employees about their speech during times of mass protest?

An agency can do so, but should avoid appearing to tell employees what views to express or coercing employees to remain silent or express viewpoints they do not share.  California has statutory laws against employers coercing political activities of employees (Gov. Code, §§ 1101, 1102), and appearing to force an employee to endorse a certain viewpoint on a public issue can lay the groundwork for a later claim of First Amendment violation.  But reminding employees of the heightened sensitivities in the current times and how important their role is in maintaining order and positive relations with the public can benefit the agencies and the employees themselves.  The employer can point out in a well-meaning way if warranted that in dealing with the public and other agencies and organizations, now is not the time for comments that can be misinterpreted, spontaneous remarks that one will later regret, or taking a tone in conversations that is likely to provoke conflict.

8. Are there other laws aside from the First Amendment potentially relevant to employees’ involvement with mass protests?

There are a number of others.  For example, if employees are speaking about their wages, hours, and working conditions, then state labor relations laws like the Meyers-Milias-Brown Act are potentially invoked and have to be considered.  Speaking out about race, religion, gender, and other protected classifications when related to conduct in the workplace can invoke the protections of anti-discrimination laws like the FEHA, and employees’ pointing out alleged illegal conduct of their employer can have the protection of statutory whistleblower laws.

In addition, Government Code section 3203 limits the right of cities, counties and most districts to place any restriction on the “political activities” of their employees.  Employers, however, can place limits on political activities of employees on work time or on the agency premises.  (Gov. Code, § 3207.)  Also, under state law, employees of local agencies cannot participate in political activity while in uniform.  (Gov. Code, § 3206.)  There are additional rules for public safety and fire personnel.

Free speech questions present complex legal issues, and it is prudent to seek advice of counsel.  This is certainly true at this unprecedented time in our history when agencies must make important decisions quickly.

Photo: https://www.fbi.gov/wanted/kidnap/kristin-denise-smart

This Memorial Day weekend marks the 24th anniversary of the disappearance of Kristin Smart, a student at Cal Poly San Luis Obispo who disappeared in the early morning hours of May 25, 1996 while walking to her dormitory following a party.  Kristin Smart was reported missing to the Cal Poly Police Department two days later, but believing the student may have taken a trip for the holiday weekend, university police were slow to investigate. It was quickly learned that that a male student living in a Cal Poly dorm accompanied Kristin back to her dorm that night and may have been the last person to ever see her.

Despite Kristin’s disappearance under suspicious circumstances, university police retained primary responsibility over the investigation which lacked the rigor necessary for an investigation of this magnitude.  Many believe this resulted in the loss of potentially critical evidence and leads even with increasing indications that Kristin may have been taken to the primary suspect’s dorm. It was not until weeks later that the investigation was handed off to County law enforcement as university police realized they were ill-equipped to handle the case of a missing student presumed to be the victim of a fatal crime. By this time university dorms were vacated and cleaned for the summer before any forensic examination of a potential crime scene.

To this day, Kristin Smart remains missing and is presumed dead while no person has been tried in her disappearance. As Kristin’s case has remained “active and ongoing” with local law enforcement, as well as the Federal Bureau of Investigation, this unsolved case was recently reignited in the media due to a true crime podcast and law enforcement activity surrounding the prime suspect.

Kristin’s parents championed the Kristin Smart Campus Safety Act that became law in 1998.  The legislation, codified in California Education Code sections 67381, requires community colleges and universities to have in place written agreements with local law enforcement outlining the operational responsibility for Part 1 violent crimes occurring on each institution’s campuses.  Local law enforcement agencies must enter into written agreements with campus law enforcement agencies if there are college or university campuses located in the jurisdictions of the local law enforcement agencies.

The written agreement must designate which law enforcement agency shall have operational responsibility for the investigation of each suspected Part 1 violent crime and delineate the specific geographical boundaries of each agency’s operational responsibility, including maps as necessary. Part 1 violent crimes, as defined, include willful homicide, forcible rape, robbery, and aggravated assault.  Notwithstanding, campus law enforcement maintain primary authority for providing police or security services, including the investigation of criminal activity, to their campuses.  These written agreements must be in place and available for public viewing.

While the Kristin Smart Campus Safety Act outlines the minimum requirements for written agreements between campus law enforcement and local law enforcement, these agreements can contain other agreements, including cross-training between the agencies, communication protocols and resource sharing.

The Act is one of several and often overlapping laws aimed at protecting students and addressing the obligations of colleges and universities in responding to crimes, threats and harassment.

When the COVID-19 outbreak reached California, schools throughout the state converted traditional classes to a distance education model for millions of students seemingly overnight. Distance education programs rely on a combination of websites, programs/applications, and other technologies to deliver content, facilitate communication, administer exams, and more. Video conferencing applications (e.g., Zoom) with screen sharing features allow educators to recreate live classes online and have become invaluable remote teaching tools. This sudden and unprecedented reliance on these technologies raises urgent questions regarding student privacy and specifically pupil records.

In California, public school districts must comply with specific laws regarding pupil records and educational records set forth in Education Code sections 49060, set seq. These provisions largely mirror the Family Educational Rights and Privacy Act (“FERPA”). They give parents/students certain rights with respect to pupil records and prohibit the unauthorized disclosure of information contained in pupil records unless a specific exception applies. “Pupil records” is broadly defined as “any item of information directly related to an identifiable pupil” that is maintained or required to be maintained by a school district, “whether recorded by handwriting, print, tapes, film, microfilm, or other means.” (Ed. Code, § 49061(b).) This includes photographs or videos if they depict an identifiable pupil and are “maintained by a school.” (See 84 Ops.Cal.Atty.Gen. 146.)

On March 30, 2020, the Student Privacy Policy Office within the U.S. Department of Education provided guidance to schools and colleges navigating FERPA in the online environment. The Department of Education clarified that:

  • Video recordings of virtual classes qualify as pupil records only if they directly relate to a student and are maintained by the educational institution or a party acting on its behalf;
  • Even if it does not qualify as pupil records, a video recording of a virtual class cannot be shared without appropriate authorization if it contains personally identifiable information (“PII”) from pupil records;
  • FERPA does not prohibit non-students from observing virtual class sessions so long as PII from a pupil record is not disclosed;
  • Classes may be recorded and shared with students who are unable to attend as long as PII from a pupil record is not disclosed or appropriate written consent is obtained for such disclosures;
  • Teachers may conduct meetings with parents/students over video conference but should ensure that such conversations are not overheard by third parties (such as the instructor’s spouse); and that
  • If circumstances effectively prevent a parent from exercising his or her right to inspect and review education records, then the school is required to either provide a copy of the records or make other arrangements that would allow the parent to inspect and view the requested records within 45 days of receiving the request.

The guidance did not address when an electronic recording is “maintained by the school,” which is necessary to determining what recordings constitute a pupil record in the first place. The question of when an electronic record is “maintained” by the school is complex.

Notably, the recent Department of Education guidance states that class recordings are pupil records if they are maintained by the school or a party acting on behalf of the school. This latter reference goes beyond the plain language of the law and appears to contradict S.A. and other authorities. The guidance is not binding authority, but may indicate that the Department of Education (which enforces FERPA) is taking the position that electronic records can be pupil records under FERPA even if they exist on servers not belonging to the school district. If that is the case, schools may face challenges with respect to a student/parent’s right to review and amend pupil records.

For instance, a recording of a virtual class session where multiple students appear on a video conference call and discuss their work and/or personal experiences may constitute a pupil record for each of those students. (U.S. Department of Education “FAQs on Photos and Videos Under FERPA.”) If one of those students request to review the pupil record, the student only has a right to review the specific information directly related to him or herself, and the school must take reasonable steps to redact or segregate the information. (U.S. Department of Education Letter to Wachter (Dec. 7, 2017).) If a recording that is a pupil record for multiple students and cannot be segregated and redacted without destroying its meaning, a student/parent may review the record even though it contains another student’s information. (Id.)

Given that many schools will continue distance education in at least some capacity into the next school year, we are likely to see more of these issues come up. School districts should speak to their vendors and/or IT departments about how and where class recordings are or will be stored and the district’s ability to reasonably redact or separate video recordings.

I’ve been working from home since March 16, 2020 when my children’s school closed.  I am not alone – with the COVID-19 pandemic and safer at home orders, many employees across the country have been working from home.  While restrictions may be easing, without schools reopening, many parents are balancing their roles as teachers, parents, and employees.

In non-pandemic times, I enjoy occasionally working from home.  A quiet house all to myself!  I’m super productive without daily office interruptions.  And when I take out the commute from my daily routine, I could get a full day of work done plus a load of laundry, prepping dinner, and walking the dog by the time I would normally get home.  So this transition to working at home full time should have been easy, right? Far from it.

I am working from home with my husband (also an attorney) and our two children – a preschooler (age 3) and a kindergartner (almost 6).  In addition to our attorney work, we need to supervise, engage, and educate our kids all day, which includes what feels like constant meals and snacks.  We also try to keep to some resemblance of order in our house which now constantly has dishes to wash and cleaning to be done.  This is not how working from home used to be.  But two months in, I’ve come up with some pointers to succeed at litigation and homeschooling.

Before I go any further, I am incredibly grateful to be safe at home with my family.  I am thankful to all our essential workers, first responders, and medical professionals working tirelessly to keep us safe.  I am grateful that my children’s school provides engaging distance learning– including several different Zoom classes a day and assignments, and that we have the resources at home to use this technology.

While there has been no shortage of articles with work from home tips, I haven’t found them particularly helpful. For example, tackling the hardest task in the morning is difficult with hectic mornings.  I also find making a routine work schedule challenging since I have to balance my children’s school schedules and my husband’s work schedule.  My kids are young, so we can’t leave them on Zoom unattended, and we need to work with our kindergartner on his assignments.  And even when I am working, they know I’m home, so it’s hard not be interrupted, whether for a potty emergency or snack request.

Since it will likely be a long time since schools re-open and there are many parents of young children working from home, I wanted to share some strategies that are helping me navigate this new reality:

  1. Trade Off Work and Childcare. When my husband and I are both trying to focus on work at the same time, it often backfires.  If you are fortunate to have a partner or another adult at home, trade off on childcare/schooling responsibilities.  That way everyone has some alone time to focus on their work and the kids are engaged.
  2. Carve out work and family time. I try to carve out time to focus fully on my kids, and also carve out time for work.  For example, one day I set up the easel and had a messy painting project with my 3 year old while my son had his kindergarten meeting.  My 3 year old was so happy to have one-on-one time with me and it put us both in a good  mood for the rest of the day.
  3. Don’t stress the mess. I get a little stressed when everything is messy.  But with two adults, two little kids, and a dog home all day, it gets quite messy.  We are encouraging everyone to do their share, but with all our responsibilities these days, if you are stressing about a messy home, probably best to focus on the more important things.
  4. Make time for yourself. You should do this even when it seems impossible because it feels like even though you are home all the time, you have no time.  I was not a runner, but I started running – not only does the exercise feel good, but I enjoy having time to myself and getting out of the house.  Maybe it’s a walk, yoga, reading, or making sourdough bread.
  5. Know there are good days and bad days. Yesterday was challenging and my son was upset because our rug was a different color than this classroom rug and it broke my heart.  Today, we happily got through all their assignments and made cookies too!
  6. Adjust Expectations. Unless you have superpowers, at least for a while you probably won’t get through what used to be your normal amount of work each day, get through all the homeschooling lessons, bake bread, clean the house, workout, and never let your children watch T.V.  Instead, reset your daily expectations to a more doable amount.
  7. Most important, try to stay positive and find the silver lining. This is a really scary and stressful time for everyone. It’s hard for grownups and children.  When I get stressed and worried about trying to get all my work done while being there for my children and all the scary things happening in the world, it’s overwhelming.  But then I remember they miss school and their friends, and I don’t want to pass my anxiety to them.  Years from now, I don’t want them to remember the quarantine as miserable and stressful.  Instead, I hope our family can look back on it and remember that even though we missed school and friends and worried about the world, we valued our extra family quality time.  Be grateful for the silver linings.  For me, it’s the more relaxed weekend pace – not rushing from soccer to birthday parties – and more involvement in my children’s lessons.

Using these strategies, my working from home has become more effective, and homeschooling tends to go smoother. Although the courts are closed to the public, litigations are still active and many deadlines remain in place.  Right before the stay at home orders were issued, I received a new lawsuit, and since the orders went into effect, two more.  With litigation flowing, I rely on these strategies to manage working from home, parenting, and homeschooling.  Now off to Zoom P.E. class with my kids!