California Public Agency Labor & Employment Blog

California Public Agency Labor & Employment Blog

Useful information for navigating legal challenges

Tips from the Table: Use of Supposals, Packaged Supposals & Proposals

Posted in Labor Relations, Negotiations

We are excited to continue our video series – Tips from the Table. In these monthly videos, members of LCW’s Labor Relations and Collective Bargaining practice group will provide various tips that can be implemented at your bargaining tables. We hope that you will find these clips informative and helpful in your negotiations.

To Be or Not to Be an Adverse Employment Action – What is Paid Administrative Leave?

Posted in Employment, Public Sector, Workplace Policies

This post was authored by Peter J. Brown, Stephanie J. Lowe and Brett A. Overby

This principle used to be clear – paid administrative leave was outside the scope of an adverse employment action.  This was based on court holdings that an employee suffers no substantial or material change in terms and conditions of employment while on paid administrative leave.  For years, courts held that an employee who is put on paid administrative leave cannot prove he or she suffered an adverse employment action to give rise to a viable discrimination or retaliation claim.  However, what once was clear, is no more.

First, in 2013, the Ninth Circuit put into question the principle that paid administrative leave does not constitute a type of adverse employment action.  In Dahlia v. Rodriguez (9th Cir. 2013) 735 F.3d 1060, the Ninth Circuit held paid administrative leave could constitute an adverse employment action when considering the totality of the circumstances.  Second, on November 15, 2017, the Fourth District Court of Appeal issued a decision in Whitehall v. County of San Bernardino holding that the imposition of an administrative leave may constitute an adverse employment action. ((2017) 2017 WL 5485398)

The decisions in Whitehall and Dahlia have forced California employers to rethink when paid administrative leave may qualify as an adverse employment action and to consider the risk involved with placing an employee on paid administrative leave.

The Purpose of Paid Administrative Leave

The purpose of paid administrative leave is to temporarily remove an employee from the workplace to address a particular situation.  For example, if an employee engages in or threatens violence in the workplace, an employer can and should remove the employee from the workplace pending an investigation into the alleged misconduct.  Paid administrative leave has also been used by employers when, on balance, they feel it is better that the subject of an investigation is not in the workplace while the investigation is pending.  Use of paid administrative leave has not been limited to investigations of discrimination, harassment or retaliation.  It has had a widespread use for many different types of alleged misconduct.

During paid administrative leave, the employee is typically relieved of all duties and responsibilities of his/her position.  The employee remains employed by the agency and continues to receive full pay and benefits.  During the leave, an agency may prohibit the employee from entering agency-owned property or facilities and can order the employee to surrender all agency-provided property (office keys, IDs, credit cards, computers, etc.).  The agency can also require the employee to remain available during regular business hours to answer any and all work-related inquiries.

The Definition of an Adverse Employment Action

The California Supreme Court has coined “adverse employment action” as a “term of art.”  It is generally used as a shorthand description of the kind of adverse treatment imposed upon an employee to support a cause of action under a discrimination or retaliation statute.

Employees in California may bring claims of discrimination and retaliation pursuant to the Fair Employment and Housing Act (“FEHA”).  Under the FEHA, an adverse employment action must be reasonably likely to impair an employee’s job performance or prospects for advances.[1]  It does not include minor or trivial actions that do no more than anger or upset an employee.  While an adverse employment action may include more than just “ultimate” employment acts, such as hiring, firing, demotion, or failure to promote, it nevertheless requires “a substantial adverse change in the terms and conditions” of employment.[2]  The reason why an employee must provide a substantial adverse job effect is to guard the employer from judicial micromanagement of business practices and frivolous lawsuits over insignificant slights.  This brings up the question, is paid administrative leave a substantial and adverse change in employment?

The Split in Federal Circuit Court Authority

There is a split in federal circuit authority about whether paid administrative leave constitutes adverse or punitive action.  However, the split is heavily weighted to one side favoring paid administrative leave is not an adverse employment action.  The odd man out in this split of authority is the Ninth Circuit, which is the circuit whose decisions govern employers in California.  The resounding chorus of the Second, Third, Fifth, Sixth, Seventh, Eighth, and Tenth Circuits have all held that placing an employee on paid administrative leave, without more, is not an adverse employment action.[3]

Deviation in the Ninth Circuit

Dahlia v. Rodriguez was the first Ninth Circuit case to decide whether placement on administrative leave constitutes an adverse employment action.  In Dahlia, Burbank Police Detective John Dahlia was assigned to assist a robbery investigation.  A day after the robbery, Dahlia allegedly observed Lieutenant Omar Rodriguez grab a suspect and threaten him with a gun.  Later that evening, Dahlia claimed he heard yelling and the sound of someone being slapped in a room where a Sergeant was interviewing another suspect.  Dahlia met with a Lieutenant to disclose the abuse he witnessed and was allegedly told to “stop his sniveling.”  The Burbank Police Department’s Internal Affairs Unit initiated an investigation into the physical abuse related to the robbery.  Following Dahlia’s interview with internal affairs, the City placed Dahlia on paid administrative leave pending the determination of discipline.  Dahlia filed a lawsuit against the City alleging that he was placed on paid administrative leave in retaliation for exercising his free speech rights in disclosing alleged abusive interrogation tactics by other officers.

To succeed on a claim of retaliation, one element the plaintiff must prove is he or she suffered an adverse employment action.  The lower court found that placement on paid administrative leave did not constitute an adverse employment action for purposes of First Amendment retaliation.  The Ninth Circuit disagreed.  The Ninth Circuit concluded that, under some circumstances, placement on administrative leave can constitute an adverse employment action.  The Ninth Circuit reasoned that to constitute an adverse employment action, the retaliation need not be severe or of a certain kind.  For First Amendment retaliation cases, the key inquiry was whether the action was “reasonably likely to deter employees from engaging in the protected activity.”

The Ninth Circuit was persuaded by Dahlia’s assertion that paid administrative leave, when considered in the context of his employment, prevented him from taking the sergeant’s exam, required him to forfeit on-call and holiday pay, and prevented him from furthering his investigative experience.  The Ninth Circuit held that if Dahlia could prove these effects, he could prove he suffered an adverse employment action because these effects and the general stigma from being put on administrative leave likely deters employees from engaging in protected activity.  Ultimately, Dahlia does not hold that paid administrative leave must always constitute an adverse employment action, rather it provides a short and under-developed conclusion that paid administrative leave, by itself, may constitute an adverse employment action in some situations.

Dahlia’s analysis focused on paid administrative leave in retaliation cases.  The California Court of Appeal, in Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, has also determined that a paid administrative leave may constitute an adverse employment action in a discrimination case.  In Horsford, a police officer was placed on paid administrative leave because of a claim that he was mentally unstable.  After he was cleared to return to work by two psychologists, he was still not allowed to return to his position as an officer.  In assessing whether the officer suffered an adverse employment action to prove a discrimination charge, the Court of Appeal noted the jury was entitled to collectively consider the alleged discriminatory acts.  In other words, the employer’s acts could be viewed under the totality of the circumstances.  The Court of Appeal found that an officer who is removed from a highly desirable position and placed on paid administrative leave for months suffered an adverse employment action because a jury could find that the leave was unjustified and may have resulted from racial animus.

California’s Fourth District Court’s Interpretation in Whitehall

In Whitehall v. County of San Bernardino, the Fourth District Court of Appeal addressed whether paid administrative leave could constitute an adverse employment action.  The Court described the facts as follows:  Mary Anna Whitehall was a social worker for San Bernardino County Children and Family Services (“CFS”).  After CFS assigned another social worker, Eric B., to investigate the death of a nine-month old baby who died under suspicious circumstances, the baby’s four older siblings were placed in protective custody.  CFS assigned Whitehall to investigate for the jurisdiction/disposition hearing, an assignment referred to as a “J/D writer.”  In her investigation, Whitehall collected evidence that validated Eric’s concerns for the safety of the four older children.  Whitehall collected the police report, photographs of the family home from the time of the baby’s death showing filthy, unsanitary conditions, and reports from the medical examinations of the four older siblings showing ligature marks on their wrists and ankles and burn marks.

The deputy director of CFA allegedly instructed Whitehall to withhold certain photographs and to provide altered ones.  Whitehall learned CFS never provided a complete police report to the court, so she gave the assigned deputy county counsel a computer disk containing all photographs obtained from police.  Subsequently, CFS removed Whitehall from the case and instructed her not to discuss the case with the new J/D writer, contrary to normal practice.  In addition, CFS fired Eric for allegedly exaggerating the condition of the house and reporting the smell of methamphetamine despite the fact that the social worker who assisted him during the initial response corroborated his version of events.

Concerned about her potential liability for withholding evidence and providing altered photographs to the court and counsel, Whitehall met with an attorney to discuss her situation.  The attorney drafted a declaration for Whitehall and Whitehall, Eric, and the social worker who had assisted Eric during the initial response filed a motion informing the juvenile court that CFS had perpetrated a fraud upon the court.

Six days after filing the motion, CFS placed Whitehall on administrative leave while it conducted an internal investigation into Whitehall’s potential violation of County rules and policies barring disclosure of confidential information to unauthorized persons.  After Whitehall was on administrative leave for approximately two months, which included two hearings, the County decided to terminate Whitehall for violating the confidentiality policy.  However, after learning of the County’s intentions to terminate her, Whitehall resigned.  Whitehall filed a complaint against the County and CFS based on whistleblower liability and retaliation.

Essentially, Whitehall turns on the whistleblower statute, Labor Code section 1102.5, which prohibits an employer from retaliating against an employee for disclosing information that may evidence improper government activity, if the purpose of the disclosure was to remedy the improper situation.  The Court found that the County’s placement of Whitehall on administrative leave with the intention of firing her was in retaliation for Whitehall’s disclosure to the juvenile court the County’s attempt to manipulate evidence.  Thus, the Court found that Whitehall’s paid administrative leave constituted an adverse employment action.

As in Dahlia, the court’s decision in Whitehall does not assert that paid administrative leave always constitutes an adverse employment action.  Rather, the Whitehall decision merely establishes that paid administrative leave may constitute an adverse employment action in certain circumstances.  Furthermore, the court in Whitehall reiterated that adverse employment claims remain inherently fact-specific.  Quoting Yanowitz v. L’Oreal USA (2005), the court reaffirmed that:

“the impact of an employer’s action in a particular case must be evaluated in context. Accordingly, although an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into the account the unique circumstances of the affected employee as well as the workplace context of the claims.” (26 Cal.4th 1028, 1051)

The Effect of Dahlia & Whitehall

In the past, if an employee was placed on paid administrative leave but suffered no additional punitive action, he or she could not bring a successful claim of discrimination or retaliation because none of the employer’s actions materially or substantially affected the terms or conditions of employment.

This assumption changed post-Dahlia.  Even though an employee receives full pay and benefits during paid administrative leave, when looking at the totality of the circumstances, a court may find the secondary effects that come as a natural result of being away from the workplace deter an employee from engaging in protected activity and constitute adverse employment action.  Furthermore, after Whitehall, a court may find that an employee placed on paid administrative leave shortly after “whistle-blowing” or engaging in other protected activity experienced an adverse employment action.

Based on Whitehall, Dahlia and Horsford, the court may consider the loss of promotional opportunities, the loss of specialty pay, the loss of opportunities to gain work experience, whether the employer had a legitimate managerial reason to place the employee on paid administrative leave, the stigma of being placed on administrative leave, and the employee’s participation in protected activity.

However, these cases continue to leave open questions.  When does paid administrative leave cross over to an adverse employment action?  What if the employer places the employee on paid administrative leave but allows the employee to take a promotional examination when the opportunity arises?  What if the employer agrees to set a practice where employees on paid administrative leave will receive holiday pay while on leave?

If paid administrative leave can be an adverse employment action, then employees placed on paid administrative leave who file a discrimination or retaliation lawsuit against an employer have added leverage in proving their case or negotiating a settlement.  This creates tricky situations for employers who must now assess the risk in placing an employee on paid administrative leave.

Example 1: A Police Department suspects that a police officer violated a direct order from a sergeant to stay out of the downtown area during his shift and not get involved with a particular group of suspected gang members.  The Department wants to conduct an internal affairs investigation and place him on paid administrative leave during the investigation.  Should the Department place the police officer on paid administrative leave?

Most likely yes.  It is fairly standard for an employee to be placed on paid administrative leave during an investigation.  If the Department regularly places officers on paid administrative leave during pending investigations, particularly investigations into insubordination, then the Department can do so in this case.  In this example, there appears to be no evidence that the officer engaged in protected activity.  However, if the officer has engaged in protected activity, then the Department must consider whether placing the officer on paid administrative leave would likely deter employees from engaging in that protected activity.

Example 2: An IT Analyst submits a letter of resignation to the County on Monday stating that he is resigning effective Friday.  On that same Monday, the IT Analyst provides a statement to an investigator regarding an investigation involving another employee.  The County suspects that the IT Analyst is sharing information with the other employee in a manner that harms the integrity of the investigation.  The County does not want the IT Analyst in the workplace for the remainder of the week as the investigation is taking place.  Should the County place the IT Analyst on paid administrative leave until the effective date of his resignation?

Probably not.  The biggest risk the County has to consider is that the employee likely engaged in protected activity by making statements to the investigator.  If the County places the IT Analyst on paid administrative leave, it might be construed as an adverse employment action in retaliation following his protected activity.  The risk increases if the County has no history of ever placing an employee who has resigned on paid administrative leave.  An alternative to paid administrative leave is for the County to offer the IT Analyst the option of taking time off with pay leading up to his last day on Friday.  If the IT Analyst chooses to voluntarily take this offer, the IT Analyst will remain away from the workplace and cannot allege that the County took adverse employment action against him.

Example 3: A water district employee has expressed genuine concerns to her supervisor about the efficacy of the district’s  current lead testing protocols on a few occasions.  Each time, the supervisor told the employee that she was handling the issue.  In fact, the district  was adequately and properly addressing the issue and working on updating the lead testing protocols.  Concerned that her supervisor was not adequately addressing the issue, the employee brings her concern and documentation of a recent lead test report to the Department of Drinking Water. Individuals at the district  learn of the employee’s revelation of district  information to the Department  and conduct an investigation.  Should the district  place this employee on paid administrative leave while conducting the investigation?

Most likely no.  Should the employee file a complaint under the whistleblower statute, the court may conclude that paid administrative leave constitutes retaliation, and thus an adverse employment action.  Instead, the agency should first conduct an investigation into the allegation and impose discipline based on the results of the investigation.

Due Process Disciplinary Rights

Another question that remains: if paid administrative leave can be an adverse employment action, then must employers provide pre-disciplinary and post-disciplinary due process rights to an employee prior to placing them on paid administrative leave?  In Skelly v. State Personnel Board (1975) 15 Cal.3d 194, the California Supreme Court held that a permanent public employee’s property rights (i.e., their vested right to continued employment) cannot be taken away by an employer without first being affording certain procedural safeguards. Where “significant punitive action” is imposed, an employee is entitled to notice of the proposed disciplinary action, a statement of the reasons for the proposed disciplinary action, a copy of the charges and materials on which the proposed discipline is based, and the right to respond, either orally or in writing, to the authority initially proposing the action.  Generally, discharges, suspensions, demotions, and disciplinary reductions in pay are considered “significant” punitive action.  Warnings and reprimands are not considered “significant” punitive actions.  If paid administrative leave may constitute an adverse employment action, then it is not clear whether paid administrative leave could also constitute a significant punitive action depending on the circumstances.

For police officers, the lingering question is whether paid administrative leave can be considered punitive action?  The Public Safety Officers Procedural Bill of Rights Act (“POBR”) provides police officers with the right to administratively appeal punitive actions.  The POBR defines “punitive action” as any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.  There is currently no case law holding that paid administrative leave constitutes punitive action for purposes of entitling an officer to the right to appeal a paid administrative leave decision.

Factors to Consider When Making a Paid Administrative Leave Decision

In light of Whitehall, Dahlia and Horsford, agencies in California should remain aware that the relationship between paid administrative leave and an adverse employment action is not so clear anymore.  Below is a checklist of the factors agencies should consider when making a decision to place an employee on paid administrative and conducting a risk assessment into such decision.  Courts will determine whether paid administrative leave constitutes an adverse employment action by looking at the totality of the circumstances.  These factors balance the various factors a court may consider.

  • Will the employee continue to receive full pay and benefits?

To help keep paid administrative leave out of the realm of an adverse employment action, the employee must continue to receive full pay and benefits.  This means the employee must continue to receive any and all health, dental, vision, and life insurance.  The employee must continue to accrue vacation, sick leave, and personal time off just as he/she would be entitled to accrue if he/she was not on leave.  Under Dahlia, receipt of full pay may mean that in addition to the employee’s regular wages, the employee should continue to receive some types of specialty pay.  The employer should provide employees on paid administrative leave with the same specialty pay it provides employees on other types of paid leave, such as vacation and paid sick leave.  This could include educational pay, shooting pay, longevity pay, special assignment pay, and/or acting pay.  Other types of specialty pay may require the employee to actually perform the work necessary to receive the pay, such as on-call pay and standby pay.

  • Has the employee engaged in protected activity?

If the employee has engaged in protected activity, then placing an employee on paid administrative leave immediately following such protected activity may appear retaliatory.  Protected activity includes but is not limited to free speech, whistleblowing, opposition to harassment, discrimination, and retaliation, concerted activity, participation in a discrimination proceeding, and requesting a reasonable accommodation based on religion or disability.  If the decision has no connection to the employee’s protected activity, the employer must nevertheless be prepared to defend its decision to place an employee on paid administrative leave so close in temporal proximity to the protected activity.  The employer can offer evidence that the action was taken for a legitimate, nondiscriminatory reason, but the better option may be to consider alternatives before placing the employee on paid administrative leave in the first place.

  • Is the leave likely to deter employees from engaging in protected activity?

The Ninth Circuit in Dahlia held that the proper inquiry in determining whether paid administrative leave constitutes an adverse employment action is: whether the action is reasonably likely to deter employees from engaging in protected activity?  If employee activity is reasonably likely to be chilled due to the fear of being placed on paid administrative leave, then it may constitute an adverse employment action.

  • Are any of the secondary effects of the leave likely to deter employees from engaging in protected activity?

In addition to the paid administrative leave itself, if any secondary effects that come as a natural result of the employee being away from the workplace are likely to deter employees from engaging in protected activity, then the leave may constitute an adverse employment action.  Examples of secondary effects include loss of specialty pay, loss of opportunities for promotion, and loss of opportunities to gain experience.

  • What has the employer done in similar situations in the past?

Employers should consider past practices.  If the employer regularly places suspect employees on paid administrative leave pending harassment, discrimination, and retaliation investigations, then it has a strong reason to continue that practice.  By establishing that it has placed similarly situated employees on paid administrative leave in the past, the employer can demonstrate that it has not singled out a particular employee.  Such past practice will also help the employer prove it had a legitimate, nondiscriminatory reason to place the employee on paid administrative leave.

  • Will the paid administrative leave hinder an employee’s opportunity for promotion or advancement?

If paid administrative leave will prevent an employee from applying for a promotion or taking a test for advancement, then he/she may claim that the leave constitutes an adverse employment action.  Since employees are frequently told to remain available during working hours during paid administrative leave, employers may want to consider allowing an employee on leave the chance to apply for promotional opportunities to the same extent the employee could have applied if his/she was not on leave.

  • Will the employee encounter stigma in the workplace for being placed on paid administrative leave?

The Ninth Circuit held that if Dahlia could prove the general stigma from being put on administrative leave deterred employees from engaging in protected activity, he could prove the leave constituted an adverse employment action.  Whenever an employee is placed on paid administrative leave, his/her coworkers are bound to notice his/her absence but that alone likely does not create stigma.  However, if an employee can prove that employees refrain from engaging in protected activity because they fear being placed on paid administrative leave will alienate them, cause harm to their relationships with coworkers, or create some other stigmatizing effect, then a court may find the leave to be an adverse employment action.

  • Are there any alternatives to placing this employee on paid administrative leave?

On a case by case basis, the employer should consider whether there are any alternatives to placing an employee on paid administrative leave.  Thinking back to the purpose of paid administrative leave, can the employer address the situation without removing the employee from the workplace?  Can the employer request that the employee take voluntary paid leave?  Can the employer place the employee in a different work location on a temporary basis pending the conclusion of an investigation?  These alternatives may achieve the employer’s goal without raising adverse employment action questions.

If you have any questions about this issue, please contact our Los Angeles, San Francisco, Fresno, Sacramento, or San Diego office.

[1] Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054-1055.

[2] Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1455.

[3] See Joseph v. Leavitt (2d Cir. 2006) 465 F.3d 87; Jones v. Southeastern Pennsylvania Transportation Authority (3rd Cir. 2015) 796 F.3d 323; Breaux v. City of Garland (5th Cir. 2000) 205 F.3d 150; Peltier v. United States (6th Cir. 2004) 388 F.3d 984; Nicols v. Southern Illinois University-Edwardsville (7th Cir. 2007) 510 F.3d 772; Singletary v. Missouri Dep’t of Corr. (8th Cir. 2005) 423 F.3d 886; Benavides v. City of Oklahoma City (10th Cir. 2013) 508 Fed.Appx. 720.

California Supreme Court Lets Stand New Case on Officers’ Rights to Discovery Prior to Second Interrogation

Posted in Appeals, Privacy, Public Safety Issues

On October 18, 2017, the California Supreme Court denied review of Santa Ana Police Officers Association, et al. v. City of Santa Ana et al., a decision from the Fourth District Court of Appeal involving information (sometimes referred to as “discovery”) that must be provided to a law enforcement officer in connection with a disciplinary interrogation under the Public Safety Officers Procedural Bill of Rights Act (POBRA).  Whereas most agencies understand that officers have a right to recordings, notes, reports and complaints after an interrogation takes place (see Pasadena Police Officers Association v. City of Pasadena), under the new Santa Ana decision, officers also have a right to recordings, notes, reports and complaints prior to a second interrogation.

In Santa Ana, two police officers were being investigated for alleged misconduct while executing a search warrant at a marijuana dispensary.  After the officers were interrogated as part of the investigation, the City obtained new video recordings of the officers’ conduct during the execution of the search warrant.  The recordings were from hidden video cameras at the marijuana dispensary that officers failed to disable while executing the search warrant.  After receiving the new footage, the City sought to interrogate the officers a second time.

Prior to the second interrogation, counsel for the officers requested that the City provide the officers with materials pursuant to section 3303(g) of the POBRA, which states (in relevant part): “If a tape recording is made of the interrogation, the public safety officer shall have access to the tape if any further proceedings are contemplated or prior to any further interrogation at a subsequent time.  The public safety officer shall be entitled to a transcribed copy of any notes made by a stenographer or to any reports or complaints made by investigators or other persons, except those which are deemed by the investigating agency to be confidential.”  The City did not provide materials in response to the officers’ request and proceeded with second interrogations.

In response, the Santa Ana Police Officers Association (POA) et al. sued the City under two theories: (1) that use of the hidden video recordings violated the officers’ privacy rights under the California Invasion of Privacy Act and (2) that the City’s failure to turn over the hidden video records prior to the officers’ second interrogations violated the Section 3303(g) of the POBRA.  The trial court dismissed both claims.  The Court of Appeal affirmed dismissal of the privacy claim, but found that the POA stated a claim for relief under the POBRA.  Specifically, the Court agreed with the POA’s argument that section 3303(g) of the POBRA required the City to produce the recording of the first interrogation and “any reports of complaints made by investigators or other persons” prior to the second interrogation, which included the secret video footage obtained by the City after the first round of interrogations.

Prior to Santa Ana, most agencies looked to a 1990 California Supreme Court case Pasadena Police Officers Association v. City of Pasadena for guidance as to the information an officer must be provided prior to interrogation.  Under Pasadena, officers are entitled to recordings, notes, reports and complaints after an interrogation takes place.  However, under Santa Ana, agencies must exercise caution in the event a second interrogation is necessary.  Under the law announced in Santa Ana, unless all recordings, notes, reports and complaints are provided prior to the second interrogation, the interrogation may violate the officers’ POBRA rights.

Importantly, the Court in Santa Ana did not find that the City in fact violated the officers’ POBRA rights.  Rather, the Court found that the officers stated a viable claim under the POBRA and could therefore proceed with their lawsuit.

The case is Santa Ana Police Officers Association et al., v. City of Santa Ana et al. (2017) 13 Cal. App. 5th 317.

New Statute Prohibits Inquiries Into Applicant’s Private Sector Salary History

Posted in Employment, Hiring, Legislation, Wage and Hour, Workplace Policies

On October 12, 2017, Governor Jerry Brown signed into law AB 168, which will go into effect January 1, 2018 as Labor Code 432.3.  This new statute prohibits employers, in many circumstances, from attempting to obtain information regarding a job applicant’s salary history, or from considering that salary history in determining whether to offer employment to an applicant or what salary to offer an applicant.  This prohibition applies only to the applicant’s salary history in the private sector, and generally does not prohibit employers from considering public sector salary history.

Importantly to many LCW clients, the statute specifically states that it applies to all employers, including state and local government employers and the Legislature.  While local agencies are exempt from many requirements of the Labor Code, they will be responsible for compliance with new Labor Code section 432.3.

Restrictions on Seeking Salary History Information and Exception for Government Employees

Section 432.3(b) provides that, “An employer shall not, orally or in writing, personally or through an agent, seek salary history information, including compensation and benefits, about an applicant for employment.”  This language prohibits an employer from asking the employee about his or her prior compensation, including a question to that effect on a written application, or asking the applicant’s former employer, references, or a background check investigator.

However, section 432.3(e) specifically excepts from this prohibition “salary history information disclosable to the public pursuant to federal or state law, including the California Public Records Act or the federal Freedom of Information Act.”  This means that employers can legally inquire into an applicant’s salary history pertaining to employment with federal, state, or local agencies.  This exception is effective for all employers, but is of special interest to public agencies, who frequently hire career civil servants.

Restrictions on Use of Salary History Information

In general, pursuant to Section 432.3(a), “an employer shall not rely on the salary history information of an applicant for employment as a factor in determining whether to offer employment to an applicant or what salary to offer an applicant.”  This means that, generally, even if an employer considers other factors in addition to salary history, if salary history plays any role in the decision-making process, the employer has violated the law.

However, the section 432.3(e) exception regarding salary information publicly available under the California Public Records Act or Freedom of Information Act (i.e., employment with a federal, state, or local agency) excepts the information entirely from the statute.  Therefore, it is legal to consider, as well as obtain, an applicant’s salary history as it pertains to federal or California state or local agency employment.

Further, section 432.3(h) provides that if an applicant “voluntarily and without prompting” provides his or her salary history, an employer can consider that information “in determining the salary for that applicant.”  It is essential to note that the general prohibition from which this exception is carved prohibits an employer from considering salary information in whether to offer employment as well as what salary to offer.  This exception only permits an employer to consider an applicant’s voluntarily provided salary history with respect to how much compensation to offer, but not with respect to whether to offer employment.

Because an applicant’s salary history with respect to employment by a state or local agency is entirely outside the scope of the statute, an employer can legally consider that information when deciding whether to make an offer of employment.

Employer’s Obligation to Provide Pay Scale

Section 432.3(c) requires that an employer “upon reasonable request” provide the pay scale for a position to an applicant for a position.  The statute does not define what constitutes a “reasonable request,” nor does it address an employer’s obligations, if any, with respect to positions that do not have a predetermined pay scale.

No Misdemeanor Liability

Section 433 of the Labor Code makes it a misdemeanor to violate certain provisions of the Labor Code pertaining to prohibited inquiries of applicants.  Section 432.3(d), however, states that Section 433 does not apply to violations of Section 432.3.

Employers who have questions about compliance with new Labor Code section 432.3 should seek advice from trusted employment counsel.

Governor Brown Vetoes Bill To Codify Into State Law Federal Regulations And Repealed Federal Guidance On Student Sexual Assault

Posted in Education, Harassment, Legislation

This post was authored by Alysha Stein-Manes and Jenny Denny

On October 15, 2017 Governor Brown vetoed Senate Bill (SB) 169, a bill that would have codified into state law federal Title IX regulations and recently-repealed guidance on sexual assault and sexual violence issued by the U.S. Department of Education’s (ED) Office for Civil Rights (OCR).

In January 2017, a California State Senator introduced SB 169 in response to news the Trump Administration would review and likely rescind previously issued federal guidance regarding educational institutions’ obligations to respond to sexual assault and sexual violence under Title IX of the Civil Rights Act of 1964.  Specifically SB 169 would have codified standards set forth in OCR’s 2011 Dear Colleague Letter into California law for both K-12 schools and institutions of higher education.  In other words, certain provisions outlined by OCR’s regulations and guidance would remain in effect in California regardless of whether the ED amended or repealed Title IX regulations.  On September 22, 2017, OCR, now under the leadership of U.S. Secretary of Education Betsy DeVos, rescinded the Obama era guidance documents, including the 2011 Dear Colleague Letter.  The OCR cited the Department’s intent to engage in the formal rulemaking process concerning the development of new federal regulations pertaining to Title IX responsibilities arising from complaints of sexual misconduct.  In the interim, OCR issued new guidance on campus sexual misconduct that explained the Department’s expectations of educational institutions.

SB 169

Had Governor Brown signed SB 169 into law, the changes to state law would have included the following:

  • SB 169 would have clarified that harassment and other sex-based discrimination includes sexual harassment and sexual violence.  The now-repealed 2011 Dear Colleague Letter laid out equivalent standards.
  • Under current state law, educational institutions must comply with federal guidance related to sexual harassment and sexual violence.  SB 169 would have removed the reference to federal law and specified that all educational institutions use the “preponderance of evidence” standard of proof to decide whether an incident of sexual harassment or sexual violence occurred.  This means the evidence must show it is “more likely than not” – i.e., greater than 50 percent likelihood – that the victim did not consent.  Even without the passage of SB 169, however, current California law under Education Code section 67386 requires institutions of higher education to utilize the preponderance of evidence standard when adjudicating sexual assault complaints.
  • Institutions of higher education covered by SB 169 would have been required to adopt grievance and investigation procedures that provide for prompt and equitable resolution of student sexual harassment complaints filed by a student against an employee, another student, or a third party.  These institutions would also have been required to designate at least one employee as a gender equity officer to coordinate its efforts to comply with and carry out its responsibilities under this law.

Governor Brown’s Veto

Governor Brown vetoed SB 169, stating that while he recognizes that sexual harassment and sexual violence are “serious and complicated matters” that require the educational institutions to balance the rights of the alleged victim and the accused, he was hesitant to enact more laws on the subject given already existing state protections.  He explained,

Given the strong state of our laws already, I am not prepared to codify additional requirements in reaction to the shifting federal landscape, when we haven’t yet ascertained the full impact of what we recently enacted.  We have no insight into how many formal investigations result in expulsion, what circumstances lead to expulsion, or whether there is disproportionate impact on race and ethnicity.  We may need more statutory requirements than what this bill contemplates.  We may need fewer.  Or still yet, we may need simply to fine tune what we have.

In referencing current California law Government Brown was specifically referring to California’s affirmative consent or “Yes Means Yes” law enacted through passage of SB 967 in 2014.  Under SB 967, an institution’s policy governing its student disciplinary process must use an affirmative consent standard to determine whether both parties to sexual activity provided consent.  Affirmative consent is a conscious and voluntary agreement to engage in sexual activity.  We previously published a summary of SB 967 here.

Additionally, in 2015, Governor Brown signed into law several bills addressing sex equity and assault in educational settings.  Specifically, SB 186 permits community college districts to extend their jurisdictions beyond their campus borders and use their existing disciplinary process to discipline, expel, or suspend students for off-campus sexual assault and sexual exploitation.  Similar to requirements under federal Title IX regulations, SB 1375 requires K-12 and higher education institutions receiving federal funding to post the following in a prominent location on their websites: the name and contact information of their Title IX coordinator, students’ rights and schools’ responsibilities under Title IX, and information about how to file a complaint under Title IX.  In the K-12 educational context, SB 695 requires that public high school health classes provide students instruction on affirmative consent, sexual harassment, assault, violence, and the importance of developing positive and healthy relationships.

As many of these laws have only been enacted in the last three years, Governor Brown wants to provide the state legislature more time to determine whether current protections are effective before adding more requirements into the law.

What Now?

As Governor Brown pointed out in his veto message, California law in its current form mandates that educational institutions respond to sexual assault and sexual violence.  An educational institution’s obligations to address sex- and gender-based harassment and discrimination, including sexual violence, stalking, and intimate partner violence, stem from a variety of sources, including Title IX, Clery/VAWA Section 304, the U.S. Supreme Court, Title VII, Title VI, OCR, California state law, and the particular educational institution’s own policies and procedures.  Some state laws provide stricter standards than federal laws and regulations.  For example, community college districts’ requirements under Title 5 of the California Code of Regulations and the “Yes Means Yes” law are both more comprehensive and stringent that many requirements under federal Title IX.  For these reasons, we recommend the following:

  • All educational institutions should continue to implement their policies and procedures regarding reports of sexual harassment, assault, violence and stalking.  If your educational institution has not updated its procedures in the last three years, we recommend that you work with legal counsel to audit your current policies and procedures.
  • Institutions of higher education must continue to use the “preponderance of the evidence standard” when adjudicating claims of sexual assault, domestic violence, dating violence, and stalking.  K-12 districts may also use this same standard, but absent any additional amendments to California law, they may also use the “clear and convincing” standard of proof.  All educational institutions should continue to apply the same standard of proof in adjudications for sexual misconduct as they do for adjudicating other student misconduct cases.
  • Contribute recommendations when the ED’s formal rulemaking process opens.  The ED has yet to open this process, but we will provide updates once it does.

We will continue to provide guidance and alerts regarding the obligations of educational institutions to respond to sexual assault and sexual violence under state and federal law as new developments unfold.  If you have questions about this issue, please contact any of our statewide offices.

Supreme Court Agrees to Look Again at Mandatory Agency Shop Fees

Posted in Appeals, Constitutional Rights, First Amendment, Litigation, Public Sector

This post was authored by Amit Katzir

Last month, the U.S. Supreme Court agreed to review Janus v. AFSCME, a case out of Illinois challenging the constitutionality of mandatory agency shop fees for public employees.  Illinois, like California, is one of several states where agency shop arrangements are authorized in the public sector.

Under an agency shop arrangement, employees within a designated unit who decline union membership must pay a proportionate “fair share” fee to the union for collective bargaining and other activities conducted on their behalf.

However, the Supreme Court has held that unlike union dues, agency shop fees may not be used to express political views, support a political candidate, or otherwise advance an ideological cause unrelated to collective bargaining, as doing so violates First Amendment free speech principles.

The plaintiffs in Janus assert that an agency shop arrangement likewise infringes on their free speech rights because collective bargaining with a government agency is essentially tantamount to political speech intended to influence policymaking.  The Supreme Court addressed, and rejected, the same argument 40 years ago in Abood v. Detroit Bd. of Ed.  Thus, the plaintiffs in Janus have requested that Abood be overruled.

This is not the first time the Supreme Court has considered overruling Abood.  The same issue recently arose in the 2016 case of Friedrichs v. California Teachers Assoc.  However, that case resulted in a 4-4 split among the justices at a time when the ninth seat on the Court was vacant following the death of Justice Antonin Scalia.  As a result, Abood remained the law.

Following Friedrichs, public sector unions in California have maintained the ability to impose agency shop fees on non-member employees, consistent with Abood.  Nevertheless, with Justice Neil Gorsuch’s appointment to the Supreme Court, analysts predict that Abood will now be overruled, effectively putting a stop to agency shop arrangements in every state.  If that happens, the impact on revenue and participation rates for public sector unions could be severe.  Non-members may be disinclined to voluntarily pay fees.  Meanwhile, some existing members may choose to leave their union in order to avoid mandatory dues, especially if they see non-members reaping the benefits of union activities without paying for them.  Indeed, in states with so-called “right to work” laws, where employees may decline to pay for union representation, the union participation rate is significantly lower than in other states.

The Janus case initially arose in 2015, when Illinois Governor Bruce Rauner filed suit in federal district court to halt collection of agency shop fees.  Rauner contended that Illinois law was unconstitutional insofar as it permitted agency shop arrangements.  Although the case was ultimately dismissed because Rauner lacked standing to bring a claim, the district court permitted two union-represented public employees to intervene, including Mark Janus, the lead plaintiff.  Janus’s claim was also denied, however, because the district court lacked authority to overrule Abood.  Only the Supreme Court has the power to set aside its own prior rulings.  Janus then appealed to the U.S. Court of Appeals for the Seventh Circuit, which affirmed, and finally to the U.S. Supreme Court.

The high court will take up the case during this term, with oral argument anticipated in the next few months and a decision by June 2018.  We will continue to monitor the case and provide updates as they become available.

Don’t Wait for a Scandal: Now is the Time to Update Your Agency’s Harassment Policies and Procedures

Posted in Discrimination, Harassment, Personnel Issues, Retaliation, Workplace Policies

The allegations of sexual harassment and assault levied against Hollywood producer Harvey Weinstein have been front page news for the last week.  The board of directors of his company swiftly voted to terminate his employment, but only time will tell what impact Mr. Weinstein’s transgressions (and alleged criminal activity) will have on his former company.  If any of Mr. Weinstein’s accusers ultimately file suit against him and his former employer, the extent to which the company failed to comply with its legal obligations to prevent sexual harassment could affect the liability of the company.

The time to ensure your agency’s anti-harassment policies and procedures are complete and legally compliant is now – before the agency is faced with a harassment complaint.

Is Your Agency’s Harassment Prevention Policy Complete?

Department of Fair Employment and Housing Regulations that became effective on April 1, 2016 set forth new requirements regarding employer policies with respect to the prevention of harassment, discrimination, and retaliation. The new laws require employers to have a policy that:

  • Is in writing;
  • Lists all current protected categories covered under the Fair Employment and Housing Act (“FEHA”);
  • Indicates that the law prohibits co-workers, third parties, supervisors, and managers from engaging in conduct prohibited by the Act;
  • Sets forth a complaint process that ensures complaints receive:
    • Employer confidentiality, to the extent possible;
    • A timely response;
    • Impartial and timely investigations by qualified personnel;
    • Documentation and tracking for reasonable progress;
    • Appropriate options for remedial actions and resolutions; and
    • Timely closures
  • Provides a complaint process that does not require an employee to complain directly to his or her supervisor, by providing additional avenues to lodge complaints, such as:
    • Direct communication with a designated representative, Human Resources manager, EEO officer, other supervisor, or ombudsperson;
    • A complaint hotline; and/or
    • A referral to the EEOC and DFEH
  • Instructs supervisors to report misconduct or complaints of misconduct to a designated representative or a Human Resources manager;
  • Indicates that, upon receipt of a complaint, the employer will conduct a fair, timely, and thorough investigation that provides all parties with due process and reaches reasonable conclusions based on the evidence collected;
  • States that the employer will keep the complaint and investigation confidential to the extent possible;
  • Indicates that appropriate remedial measures will be taken if, at the end of the investigation, misconduct is found; and
  • Makes clear that employees will not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.

What Should a Supervisor Do When He or She Receives a Report of Harassment?

Though every situation is unique, there are some general actions supervisors should always take when a complainant or witness raises allegations of harassment.  The supervisor should:

  • Make no judgments as to whether the conduct reported is minor or severe;
  • Assure the complainant or the witness that someone will follow up promptly according to the agency’s policy;
  • Take notes and read them back to the complainant or witness to confirm accuracy;
  • Inform the complainant his or her complaint cannot be held in complete confidence, but will only be shared with those who need to know so the agency can conduct a thorough investigation and impose discipline, if appropriate, based on the results of the investigation;
  • Notify Human Resources and the appropriate administrator; and
  • Document date and time of report to Human Resources and appropriate administrators consulted.

When Is An Investigation Required?

The FEHA requires employers to take all reasonable steps necessary to prevent harassment in the workplace, which includes investigating complaints of harassment.  An employer should take every complaint seriously.  That means an agency must conduct an investigation whenever a complaint of harassment is made, even if the complaint appears to have no merit whatsoever.

Employers should not wait for a formal complaint.  Knowledge of possible harassment, via talk in the workplace or observations, is sufficient to trigger a prompt investigation of the situation.  In addition to an explicit complaint of harassment, an investigation may also be triggered when:

  • A person, other than the aggrieved person, complains about harassment;
  • Someone indicates that inappropriate conduct is occurring, even if the word “harassment” is not used; and/or
  • A supervisor personally observes inappropriate conduct or language, or has general knowledge of a potentially hostile work environment.

Finally, occasionally an individual who reports harassment will request that the employer do nothing.  Honoring such a request could place other employees at risk for harassment and could place the public agency at risk for failure to investigate and failure to take prompt remedial action. An employer must investigate once it is on notice of an alleged occurrence of harassment, even if the complainant requests that the employer “do nothing” or not investigate. The employer should therefore advise the complainant that it will investigate the complaint, but it should also elicit and address any specific concerns that the complainant has regarding an investigation.  The investigation should proceed even when the alleged victim or other complainant does not request or consent to an investigation.

It is critical for every agency to have a legally-compliant harassment prevention policy, as well as clear procedures to manage reports of conduct that may violate the agency’s policy.  If you are concerned that your agency’s policies or procedures are not adequate, legal counsel can help ensure you are prepared and in compliance with all applicable laws.

Questions and Answers Regarding Responding Quickly to Disasters

Posted in Public Safety Issues, Safety

This post was authored by Laura Schulkind, Jenny 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 FSLA, 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.

Disaster and Medical Relief Workers: How to Compensate Public Employees Deployed to Help Others

Posted in Labor Relations, Military Leave, Wage and Hour, Workplace Policies

This post was authored by Stephanie J. Lowe and Brett A. Overby

Over the past two months, a series of hurricanes has caused devastation to the United States, Puerto Rico, and other regions.  As a result, the National Disaster Medical System (NDMS) has called upon some public employees with special skills to deploy to the affected regions to provide disaster and medical relief.  This leaves public agencies with questions about how to classify an employee’s leave and whether the employee is entitled to pay for their time away to provide disaster relief efforts.

About the National Disaster Medical System

The NDMS is a healthcare system that collaborates with states, public entities, and private entities to respond to domestic and international emergencies like natural disasters and acts of terrorism.  The NDMS is comprised of medical professionals, including physicians, registered nurses, paramedics, and medical examiners.  The United States Department of Health and Human Services, Department of Homeland Security, Department of Defense, and Department of Veterans Affairs collectively operate the NDMS.  The NDMS also coordinates with the Federal Emergency Management Agency (FEMA).

During an emergency, NDMS issues official orders to deploy individuals to areas in need of relief.  For example, in late August, the NDMS deployed a San Diego-based Disaster Medical Assistance Team to assist with the Hurricane Harvey emergency response in Texas.

USERRA Covers National Disaster Medical System Deployments

Federal law expressly provides that deployment under official NDMS orders qualifies as “service in the uniformed services” under the Uniformed Services Employment and Reemployment Rights Act (USERRA).  (42 U.S. Code § 300hh-11; 38 U.S.C. §§ 4301-4335.)  In addition, the period of time NDMS personnel participate in NDMS-authorized training programs is service in the uniformed services.  Therefore, for purposes of USERRA coverage, NDMS personnel are treated as members of the uniformed services and are entitled to all rights and benefits under USERRA.

Compensation and Benefits Under USERRA

Generally, USERRA does not require employers to pay employees wages for time spent performing uniformed service.  However, USERRA deems an employee’s military service to be a leave of absence that entitles an employee to receive the same rights and benefits that the employer generally provides to other similarly situated employees on a leave of absence.  This includes all bonuses and raises.  While USERRA does not require employers to pay employees for military service, a state may enact legislation requiring employers to do so (as California has done).

Under USERRA, employees have the right to request and use vacation, annual leave, or similar leave with pay.  Employees may also use accrued sick leave if the agency allows similarly situated employees on a comparable leave of absence to use paid sick leave.  However, an agency may not require an employee to use vacation, annual leave, or similar leave during such period of military service.

Compensation and Benefits Under California Law

As mentioned above, states may grant more beneficial rights to individuals than USERRA requires.  Under California Military and Veterans Code section 395.01, any public employee who is on a temporary military leave of absence is entitled to receive his or her compensation as a public employee for the first 30 days of such absence.  A “temporary military leave of absence” is an order for active military training, inactive duty training, encampment, naval cruises, special exercises, or “like activity” for a period not to exceed 180 calendar days.  A “public employee” is any officer or employee of the state, or any county, city, municipal corporation, school district, irrigation district, water district, or other district.  While there is no express language providing whether Section 395.01 applies to public employees deployed for disaster and medical relief purposes, the broad definition of “temporary military leave” appears to encompass orders for the “uniformed services” of a NDMS deployment.

The California Military and Veterans Code limits its pay requirements to no more than 30 calendar days during any one military leave or during any one fiscal year unless the agency provides for more.  Therefore, agencies should also check their memoranda of understanding and internal policies for further guidance.

California law also provides job-protected leave allowing employees to take time off to perform emergency duties or attend related training.  Under California Labor Code sections 230.3 and 230.4, an employee who performs duties as a volunteer firefighter, as a reserve peace officer, or as emergency rescue personnel, and who works for an employer with 50 or more employees, shall be permitted to take temporary leaves of absence, not to exceed an aggregate of 14 days per calendar year, to engage in fire, law enforcement, or emergency rescue training.

If you have any questions about these issues, please contact our Los Angeles, San Francisco, Fresno, San Diego, or Sacramento office.

Affordable Care Act Reporting Draws Near

Posted in Healthcare

This post was authored by Heather DeBlanc

Over the last year we watched multiple unsuccessful attempts to repeal and replace the Patient Protection and Affordable Care Act (“ACA”).  Now, ACA’s reporting deadlines are merely months away and the chance of repeal is low.  Employers who are “applicable large employers” (“ALEs”) and Employers who offer self-insured health plans must comply with ACA’s reporting requirements or face penalties.

What’s an ALE?  An ALE is an “applicable large employer” pursuant to the ACA’s special calculation.  It means you have at least 50 full-time employees (including full-time equivalents).  The ACA defines a full-time employee as one who averages 30 or more hours of service per week.

What’s the relevance of being an ALE?  An ALE must comply with the Employer Mandate and ACA’s Reporting Requirements or face penalties.

What is the Employer Mandate?  The law that says an ALE must offer affordable coverage to substantially all full-time employees and their dependents, or face potential penalties.

What is the ACA Reporting Requirement?  The law requires that ALE’s report to the IRS the offer of coverage made to full-time employees.  The IRS uses this information to determine compliance with the Employer Mandate.  Employers who offer self-insured health plans also must report to the IRS those employees who enroll in the self-insured coverage.

What do I tell Employees?  An Employer must provide to each employee reported on, a “statement” or a copy of the Form to be filed with the IRS.

What is a “self-insured” health plan?  A self-insured plan is one where you, as the employer, are paying the claims, as opposed to an insurer.

What Forms must be provided to Employees?

  • ALE – A copy of Form 1095-C to every ACA full-time employee (and, if applicable, every employee receiving self-insured coverage)
  • Not an ALE, but provides self-insured coverage – A copy of Form 1095-B to every employee who enrolled in the coverage.

What are the ACA Reporting Deadlines?

  • January 31, 2018 – Copies of 1095-C/1095-B Forms to Employee
  • February 28, 2018 – ALE Reporting covering 2017 tax year due to IRS, if filing hard copy returns
  • March 31, 2018 – ALE Reporting covering 2017 tax year due to IRS, if filing electronically (Note: ALE’s filing at least 250 returns must file electronically)

What Forms must be filed with IRS?

  • ALE’s (incl. those with self-insured plan) – Forms 1094-C and 1095-C
    • A separate 1095-C must be filed for each full-time employee or employee enrolled in self-insured coverage
  • Not an ALE, but provides self-insured coverage – Forms 1094-B and 1095-B
    • A separate 1095-B must be filed for each enrolled employee

What are the Penalties for Failure to Report?

  • Failure to file return = up to $260 per return ($3,193,000 max.)
  • Failure to provide statement to employee = up to $260 per statement ($3,193,000 max.)
  • Intentional Disregard = up to $530 per return (no limitation)

Where do I find the Forms and Instructions for Filing?

Note:  If you are using a vendor to complete your forms, please double check for accuracy.  The IRS will ultimately hold the employer responsible, not the vendor.