We’re rounding up the top 5 public safety blogs of 2020, with topics ranging from formerly incarcerated persons being trained as firefighters, COVID-19 testing in law enforcement settings, and much more!  If you’re still wanting to learn more about recent public safety legislation, be sure to check out our Webinar-on-Demand, “2021 Legislative Update for Public Safety,” presented by the Chair of LCW’s Public Safety Practice Group, Partner Geoffrey S. Sheldon.

The Top Five Public Safety Blogs of 2020 (So Far):

  1. AB 2147 Clears Career Paths for Formerly Incarcerated Persons Trained as Firefighters
  2. Issues Public Employers Face During Mass Protest – Question and Answer
  3. COVID Briefing: COVID-19 Testing and Law Enforcement
  4. UPDATE: March 30, 2020, Governor Newsom Issues Executive Order Extending One-Year Statute of Limitations for Administrative Investigations of Police Officers
  5. AB 1599 Seeks To Modify SB 1421, Potentially Further Expanding Public Access to Peace Officer Records Related to Sexual Assault

Who will be our Country’s next President is not the only issue on the ballot November 3.  If you’ve voted in California before, are in the middle of studying your ballot, don’t mute your TV commercials during election season, or read text messages that you receive from campaign volunteers, you know that California has a robust ballot proposition system.  On November 3, California voters will have the opportunity to vote on Proposition 15 (“Prop 15”), also known as The California Schools and Local Communities Funding Act of 2020.

This blog post will provide an overview of Prop 15, including the positions taken by the proponents and opponents of the initiative, and discuss how passage of the Prop 15 may impact your agency’s operations.

What is Proposition 15?

If passed, Prop 15 will increase funding to K-12 public schools, including charter schools and county offices of education, community colleges, cities, counties, and special districts by assessing property taxes on commercial and industrial real property based on the current market price of the property.  Currently, the state assesses property taxes based on the purchase price of the property.  Prop 15 exempts from its provisions residential properties, agricultural land, and owners of commercial and industrial properties with combined value of $3 million or less.  If voters approve Prop 15, it will be the most significant shift in how California assesses property taxes since voters approved Proposition 13 in 1978, essentially lifting Prop 13 restrictions on many commercial and industrial real properties throughout the State.

Property taxes currently raise around $65 billion each year for California cities, counties, schools and colleges, and special districts.  Approximately 60 percent of these funds go to cities, counties, and special districts, with the other 40 percent allocated to schools and community colleges.  The State also assesses “personal” property taxes on business equipment such as machinery, computers, and furniture.

The Legislative Analyst’s Office projects that Prop 15 will raise an additional $6.5 to $11.5 billion in new funding for local governments and public educational institutions.  If passed by voters, 60 percent of the funds would remain local, meaning that counties would collect and distribute the tax revenue among the county, city governments, and special districts.  The remaining 40% will go into a statewide “Local School and Community College Property Tax Fund” (the “Fund”) and be appropriated pursuant to provisions in the Education Code.

Of the 40 percent of funds earmarked for K-12 educational entities and community colleges, 11 percent of the Fund would be distributed to community college districts in proportion to the number of full-time equivalent students, i.e., the Student Centered Funding Formula.  The remaining 89 percent of these funds would be allocated to K-12 districts, charter schools, and offices of education, with funds to schools distributed according to the Local Control Funding Formula (“LCFF”).  Prop 15 funds will supplement and not replace other educational funding sources.  “Basic-aid districts,” – i.e., property-wealthy districts that do not receive money from the LCFF because the district raises more revenue from property taxes – will not receive funding pursuant to the LCFF, but will receive $100 dollars per unit of average daily attendance.  The additional funds that basic-aid districts will not receive will be distributed to high-needs districts pursuant to the LCFF.  Finally, Prop 15 provides that no college or school will receive less than $100 per unit of average daily attendance or enrolled full-time equivalent student, respectively.

As with many California ballot initiatives, both Prop 15’s proponents and opponents have spent tens of millions of dollars to garner support for their positions.  In an all-too-rare occurrence, public sector management and labor largely seem to be on the same team rallying support for this initiative.  The California Association of Nonprofits also supports the initiative.

Opponents include chambers of commerce, taxpayers associations, and several business associations.

Proponents contend that Prop 15’s additional tax revenues will bring critically needed funds to local governments and public educational institutions, and by extension communities, by allowing such agencies to addresses staffing shortages and invest in infrastructure that will allow them to address current crises, such as homelessness and other public health crises, as well as prepare for future crises, including but not limited to earthquakes and pandemics.  Opponents, on the other hand, argue that that commercial and industrial property owners will pass on the cost of increased taxes to the businesses and individuals who rent such property.

If passed, counties will not begin to assess Prop 15 property taxes against qualifying commercial and industrial property owners until the 2022-2023 fiscal year.

How will my agency be able to use Prop 15 funds? 

While schools, colleges, and local agencies may not see an immediate impact on their tax revenue, anticipated revenue from Prop 15 may allow agencies to better plan for and address current and expected budget shortfalls.  Additionally, Prop 15 does not limit how agencies may use tax revenues beyond limits already contained in other applicable laws.  Therefore, it appears that local governments and public educational institutions will be able to use additional tax revenues to do such things as decreasing class sizes (e.g., by hiring more teachers), hiring more school counselors and librarians, improving distance education delivery methods, and investing in essential services and workers to help better prepare for future crises including pandemics, wildfires, and earthquakes, among other things.

So, is there a catch?

A broad coalition of public agencies and labor organizations support Prop 15, including but not limited to, the California Federation of Teachers, California Teachers Association, SEIU California, Association of California School Administrators, Community College League of California, more than eighty school and community college districts, boards of education, city councils and boards of supervisors, and almost 100 local labor associations.  The California Association of Nonprofits and more than 100 non-profit organizations also support the proposition.

However, it is likely that not all communities will necessarily experience a positive benefit from increased commercial and industrial tax revenue.  The California Attorney General notes that some local governments in rural areas may end up losing money because of lower taxes on personal business property.  This decrease in personal business property revenue would particularly hit counties with few qualifying commercial or industrial properties harder.

Additionally, it is unknown how Prop 15 will impact businesses, including non-profit educational intuitions and other non-profit organizations.  Prop 15 defines “commercial and industrial property” as “real property that is used as commercial or industrial property, or is vacant land not zoned for residential use and not used for commercial agricultural production.”  Although not clear, it is likely that property owned by private schools or rented by private schools will be considered commercial property for purposes Prop 15.

For those private schools that own property, they will likely see an increase in property taxes unless the property is assessed at a fair market value of three million dollars or less.  Additionally, if at least 50 percent of the real property is occupied by a “small business,” the state will not begin assessing Prop 15 taxes against the small business until the 2025-26 fiscal year.  Prop 15 defines a small business as an independently owned and operated business with fewer than 50 full-time equivalent employees that owns real property located in California.

For those private schools that rent their property, opponents of Prop 15 also argue that commercial and industrial property owners will pass the cost of additional taxes onto tenants, including small businesses.  Supporters respond that because Prop 15 reduces taxes on personal business property, including complete exemptions on such taxes for small businesses and exemptions of up to $500,000 for other businesses, any net increase to rent will be offset by these tax breaks.  Therefore, even if private schools’ rents increase, Prop 15’s tax breaks for personal business property could offset any such increases.

What now?

Liebert Cassidy Whitmore does not take positions on political candidates or ballot measures.  This blog post was authored to educate readers on an initiative that could have a tangible impact on LCW’s clients.  This author encourages readers to study their ballot and make a plan to vote on or before November 3.

 

I moved to Los Angeles from New York 11 years ago.  One of my favorite aspects of practicing law here was appearing in different courthouses throughout Southern California.  I enjoyed seeing the mountains as I drove out to San Bernardino or visiting many courthouses around LA and Orange County.  I also got to observe oral arguments, the judge’s rulings, and the attorneys (once I recall wondering at the Santa Monica courthouse if it was really acceptable to wear flip flops to court).   Similarly, I enjoyed traveling for depositions or mediations, where I would meet my clients in person.  Having that personal interaction, even with opposing counsel, was a nice change of pace from just being in an office interacting by phone or email.  Now, however, we are litigating in a pandemic, and many things we never thought about in litigation have changed.

First, for court appearances, instead driving around and walking into the courthouse, my commute is either to my kitchen or to my LCW office so I can appear remotely.  For my first remote video appearance at the Los Angeles Superior Court, I appeared from my LCW office, just to be sure I did not have any technology issues and there would be no family interruptions.  While initially there were some complications connecting, once it worked, I had an up close view of the judge and I was able to successfully argue the motions just like I was appearing in Court.  I was able to listen to the other matters before the judge that day, just like I would if I were in court in person, but I couldn’t always see the attorneys.  One aspect that was different, and true for all video calls, is that I am conscious of how I appear on camera – now sensitive to touching my face or even drinking water.  I also need to be mindful to speak more slowly and clearly to account for any lag or unclarity in the transmission.  Another issue is to be mindful of lighting and how it appears on the computer.  These additional considerations were never something one needed to consider when appearing in person, but on the bright side, you don’t need to worry about parking!  While I would still prefer to appear in person to argue motions when the pandemic ends, appearing by video was very effective and could be more efficient to alleviate travel time.

Second, depositions have gone remote.  When the pandemic first started, we thought we would be back in the office in a month or two, so we just postponed our depositions.  But as we realized we would be working remotely longer than we anticipated, we began taking remote depositions.  There were so many questions to consider.  How would we show witnesses exhibits?  Would the witnesses cheat – could they secretly be looking at notes they prepared in advance?  What if the witness didn’t have the equipment or technology at home to do a Zoom appearance?  Could the court reporter swear the witness if they were not in the same place?  But as all attorneys and court reporters tackled these issues, we quickly worked them out.  Through Zoom, we can share documents, and the witness can be given control to look through all the pages of an exhibit.  We can ask the witness to move the camera around the room so we can see there are no notes or others present, and can ask the witness to put their phone behind them, and in a way that we can see them doing so on their computer’s camera.  When we realized the pandemic wasn’t ending any time soon, we deposed the plaintiff in a case by Zoom this summer and it was an effective and successful deposition.  We were able to thoroughly cross-examine the witness just as we would in a conference room, and the court reporter was able to prepare the same transcript.  At one point the plaintiff became emotional and cried, which to me indicates the impact of the deposition was the same as being together in a conference room.   Zoom depositions also offer more flexibility in scheduling, and may make it easier for clients to attend.  In addition, I recently agreed to accommodate a non-party witness’s work schedule to take the deposition at 7:30 a.m.  If we all had to be in the office, it would be more difficult on everyone’s schedule, but now we just need to log onto Zoom from our homes.

Finally, mediations have also gone virtual.  Before the pandemic, a mediation typically involved both sides in separate rooms and the mediator going back and forth to reach a settlement.  Mediations often lasted into the early evening, settling when everyone was worn out after a long day.  There also was a lot of downtime when the mediator was with the other side, which gave the attorneys and clients time to chat and build more personal connections.  Mediations on Zoom are different.  During the pandemic, I have had two Zoom mediations.  They were both overall shorter than I think they would have been in person; perhaps there was more of a desire to cut to the chase when everyone was in a room alone in front of a computer or people had Zoom fatigue.  There was also more free time, because often when the mediator was with the other side, everyone just muted and turned the camera off, and then we would be alerted when it was time to go back.  While this made for more efficient use of time, we lost some of the opportunities for personal connections (though in one mediation when we had some downtime, the mediator showed us how to play Scattergories online and we all shared our dogs on video).

As the pandemic is not ending any time soon, we will continue to use technology for remote appearances at motion hearings, depositions, and mediations.  In addition, while we cannot do in-person witness interviews, Zoom allows us to connect face to face better than a telephone.  Senate Bill 1146 was recently enacted and signed by the Governor on September 18, 2020.  This law took effect immediately as urgency legislation and implements pandemic-related changes including permitting remote depositions at the election of the deponent or the deposing party, as well as changes for electronic service, electronic signatures, and trial continuances.

 

Masks and face coverings have become part of the “new normal” for everyday life since the coronavirus pandemic began.  As worksites continue to reopen across California, public employers have implemented face-covering policies based on recommendations and guidance from the Centers for Disease Control and Prevention (CDC), Occupational Safety and Health Administration (OSHA), Equal Employment Opportunity Commission (“EEOC”), as well as state and local governments, in order to curtail the spread of COVID-19.

For public employers, this “new normal” may give rise to constitutional challenges stemming from a public employee’s refusal to comply with such face covering policies because:

(1)       it supposedly violates his/her First Amendment right to speech, expression, assembly, and association; and

(2)       it is perceived as a threat to his/her personal liberty.

For example, an employee may claim that forcing them to wear a face covering is synonymous to being forced to wear a muzzle in the workplace, thereby making it impossible for them to communicate freely.  In addition, given the political divide among Americans over the pandemic (with some political groups going as far as viewing the pandemic as a hoax), an employee might view face coverings as political symbols designed to compel them to “speak” in a certain manner.  Further, in light of the upcoming November election, these employees may claim that their refusal to wear a face covering is an “expression” of their political views by showing opposition towards a particular political group’s viewpoint on the pandemic.

However, as set forth below, face-covering policies implemented during these unprecedented times do not “muzzle” any First Amendment rights of a public employee.

First Amendment Implications:

A public employee’s challenge against the use of face coverings in the workplace does not implicate the First Amendment.  Generally, the First Amendment protects an individual’s freedom of speech and association and free exercise of religion.  However, a public agency’s policy requiring that employees wear face coverings is not intended to restrict speech or suppress expression – instead, these policies are generally applicable and are intended to promote the health, safety, and welfare of employees and the public.  These policies do not prevent employees from freely expressing their ideas, nor do they compel “speech” in any way.

First Amendment Rights are Not Absolute:

Indeed, although a public employee may claim that face covering policies impede on their First Amendment rights, those rights are not absolute.  Longstanding case law has reinforced a public agency’s right to protect the health and safety of the public by requiring its employees to wear face coverings, unless an exemption applies.  For more than a century, the United States Supreme Court has recognized that a community has the right to protect itself against an epidemic, which threatens the safety of its members.  In the 1905 case Jacobsen v. Massachusetts, the Supreme Court upheld the state’s smallpox vaccination requirement during an outbreak and allowed the state to impose a fine on those who did not comply.  In upholding the law, the Supreme Court determined that the state retains the authority to enact reasonable measures to safeguard the public’s health and safety.

The same can be said for an employer’s face covering policy.  Under Jacobsen, public agencies are permitted to take more restrictive measures than they would normally in order to achieve the goal of protecting citizens from a pandemic.  Based on Jacobsen, courts will likely hold that a public entity has a compelling interest in taking emergency measures to protect health and safety through its enforcement of face covering policies in the workplace.

The Supreme Court’s decision in Jacobsen is now more relevant than ever in today’s society due to COVID-19.  In order to mitigate the spread of COVID-19, state and local governments have mandated the use of face coverings.  A public agency’s face covering policy that requires its employees to wear a face covering in the workplace should not violate First Amendment rights where the purpose is to protect the health and safety of others.  As such, a public agency’s ability to enforce a face covering policy that is generally applicable to its employees would likely be found by a court to outweigh an individual worker’s free speech rights.

Issues pertaining to free speech rights can present complex legal questions for public employers.  Public employers should seek advice from legal counsel when approaching these issues.

We have previously authored a blog post on issues that public employers may face with employees who challenge COVID-19 precautionary measures.  This blog post can be found here.

 

Believe it or not, it’s been approximately 6 months since Governor Newsom announced California’s stay-at-home order. Since then, many government agencies, courts, and schools have switched to using videoconferencing platforms such as Zoom or Google Meet to help their offices stay connected during the pandemic. While these virtual meeting platforms have played a vital role in helping many employers maintain business operations, employers should also keep in mind the different privacy concerns that may arise while using these systems.

One major issue that arose at the beginning stages of the pandemic when people started using Zoom more frequently was “Zoom-Bombing.” Zoom-Bombing occurs when an uninvited individual disrupts a Zoom meeting by hacking into a call, allowing the Zoom-Bomber to view and attend the meeting, and in some instances, share unwanted content on a shared meeting screen displayed to all attendees. As a result of Zoom-Bombing and other privacy-related concerns, Zoom released security updates with updated safety features and controls. Employers who use Zoom to maintain their business operations should take advantage of these features in order to prevent unwanted participants from attending a Zoom call and ensure that Zoom meetings are secure and free from disruption.

One feature, for example, is that Zoom allows meeting hosts to enable a virtual waiting room, where participants stand by before the host admits them into a meeting. The host can then lock the meeting room after the meeting has begun so no other individuals may join. Zoom also allows users to create a unique meeting ID number and password that participants must enter prior to joining a Zoom meeting, which helps prevent unwanted guests from joining. The host can also change the meeting setting so that only the host can share their screen, and disable the chat feature to prohibit meeting participants from individually messaging with one another or sharing attachments.

Another issue that has come up with videoconferencing systems is recording. Recording virtual meetings can be helpful for those employees who are unable to attend the meeting live. However, if you plan on recording a meeting, you should keep in mind some of the privacy issues related to recording confidential communications. California has a two-party consent law, which makes it a crime for an individual to record or to eavesdrop on a “confidential communication,” including a private conversation or telephone call, unless all parties to the conversation consent. Under California Penal Code section 632, a “confidential communication” includes any communication in which a party to the communication reasonably expects that the conversation will remain private. Violations of this statute may lead to a fine of up to $2,500, or imprisonment of up to a year in jail. One way to obtain consent would be by enabling meeting attendees to agree to being recorded. Zoom has a feature that allows a meeting host to enable a recording disclaimer by which attendees receive a notification at the beginning of the meeting when a recording starts, or if they are joining a session that is already being recorded. The attendee can then provide consent by either choosing to stay in the session or leaving the meeting.

Some agencies and courts may also have restrictions on recording certain meetings, which may also include prohibiting “screenshots,” or taking photos of a virtual meeting. Employers should review their internal policies and rules to determine whether or not a meeting may be recorded.

Videoconferencing technologies play a vital role in keeping employees connected. However, employers should be wary of some of the issues that arise when utilizing these systems. By implementing these tips when conducing work-related business, an employer can help address some of the privacy issues that may arise.

Supreme Court Justice Ruth Bader Ginsburg passed away from complications from pancreatic cancer on Friday, September 18, 2020.  Justice Ginsburg inspired millions and became a beloved icon in a way that is truly uncommon for a jurist.  She was the subject of a documentary, a biopic, and an opera.   She earned wide acclaim for her legendary octogenarian workouts and her courageous battle with cancer, and, befitting her Brooklyn roots, was bestowed the moniker “Notorious R.B.G.”

Her determination and her brilliance were evident to legal observers long before young girls dressed as her for Halloween and her face and initials were emblazoned on memes, coffee mugs, and tote bags.  Her career, both as a litigator and as a judge, was largely dedicated to bringing to life the Fourteenth Amendment’s promise of equal protection under law and advancing gender equality.

While a professor at Rutgers Law School, she co-authored appellant Sally Reed’s briefs to the U.S. Supreme Court in Reed v. Reed (1971).  Sally Reed sought to serve as the administrator of her late son’s estate, but an Idaho statute provided specifically that in the appointment of an administrator, “males must be preferred to females,” resulting in the appointment of her ex-husband as administrator.  Ginsburg’s reply brief to the Supreme Court argued:

With respect to the parties before the Court, the issue raised by appellant is as vital now as it was at the inception of this controversy. The federal question presented is at least as substantial as any this Court has heard: the constitutional right of a person, who is a woman, to be judged on the basis of her individual qualifications, rather than pre-judged by a male legislature’s assignment of second rank status to all members of the female sex.

 . . .

Section 15-314 of the Idaho Code, and myriad statutes cast in the same mold still flourishing across the country, have survived into the 1970’s because this Court has not yet settled the question whether the basic law of our land establishes the principle of equality before the law without regard to sex.

The myth that women are inherently disqualified for full participation in public life as independent persons is no longer acceptable. Yet this Court’s silence has deferred recognition by the law that women are full persons, entitled as men are to due process guarantees and the equal protection of the laws. The time to break the vicious cycle which sex discriminatory laws create is overdue. If a legislature can bar a woman from service as a fiduciary on the basis of once popular, but never proved, assumptions that women are less qualified than men are to perform such services, then the myth becomes insulated from attack, because the law deprives women of the opportunity to prove it false.

Sally Reed awaits a day in Court on her application to be appointed administrator; all women await this Court’s affirmation that the Constitution guarantees to them, together with men, equal justice under the law.

The Supreme Court in Reed finally held, 103 years after its ratification, that the Fourteenth Amendment’s equal protection clause operated to protect women.

Justice Ginsburg understood that laws that pigeonhole individuals into normative gender roles are detrimental to equality, and, in many cases, she represented men in cases challenging laws purporting to favor women over men.  In Weinberger v. Wiesenfeld (1975) she succeeded in overturning a provision of the Social Security laws that provided widows, but not widowers, special benefits for caring for minor children.  In Craig v. Boren (1976), she persuaded the Court to invalidate a state statute allowing women to purchase 3.2% alcohol beer at age 18, but not men until 21, based on the assumption that women were less likely to drive drunk than men.  In Duren v. Missouri (1979), she successfully argued against a Missouri statute that automatically excluded women from jury service unless they submitted a declaration of willingness to serve, resulting in less than 1% of jurors being female.  The Court held that a system that categorically kept women off juries violated a criminal defendant’s Sixth Amendment right to a “fair cross-section.” [1]

Justice Ginsburg’s ability to create change and advance equality through persuasion was not limited to arguments before the Court.  In 1977, she co-authored an op-ed in the New York Times criticizing a Supreme Court opinion holding that an employer’s disability benefits program that provided employees with benefits for all disabilities except those arising from pregnancy or childbirth was somehow not discrimination based on sex.  In the op-ed, she advocated for Congress to overturn this decision, and, less than a year later, President Carter signed the Pregnancy Discrimination Act into law.

After 13 years of service as an appellate judge, Justice Ginsburg ascended to the Supreme Court after being nominated by President Clinton and confirmed by a 96-3 vote.  She was only the second woman ever to serve on the high court.

She wrote the Court’s majority opinion in United States v. Virginia (1996) striking down Virginia Military Institute’s males-only admission policy on equal protection grounds.   Virginia argued that admitting women to VMI would require “radical” changes that would “destroy” the school’s unique adversative model of military education, because, according to its expert witnesses “males tend to need an atmosphere of adversativeness” while “females tend to thrive in a cooperative atmosphere.”   The state offered to create a separate military academy on the campus of a private women’s college, which would de-emphasize the military aspects and instead use a “cooperative method” of education “which reinforces self-esteem.”  Justice Ginsburg’s opinion, citing the Reed v. Reed precedent her advocacy helped establish, emphasized that courts must be skeptical of justification for government-enforced distinctions based on sex that rest on generalizations, perceived “tendencies,” and “fixed notions concerning the roles and abilities of males and females.” 

As perhaps the most liberal justice on a right-leaning court, Justice Ginsburg often found herself in the minority, but understood the persuasive power of a well-argued dissent.   Her dissenting opinions, delivered while wearing one of her famed “dissent collars,” shaped the nation’s thinking about the issues addressed in the Supreme Court cases, and, like her New York Times op-ed, had the power to create change.

The most vivid example of the power of Justice Ginsburg’s dissents pertained to the time limits for lawsuits under federal antidiscrimination statute Title VII.  In Ledbetter v. Goodyear Tire & Rubber Co. (2007), a female employee discovered after 19 years that she had been paid less than all of her 15 male peers based on decisions early in her career that she believed were discriminatory.  The 5-4 majority found that the employee had lost her right to sue because she did not file her complaint within 180 days of the discriminatory decision.  Justice Ginsburg, in her dissent, which she read from the bench, argued that each paycheck was a new allegedly discriminatory act, giving rise to a new right to sue.  She closed her dissent: “Once again, the ball is in Congress’ court. . . the Legislature may act to correct this Court’s parsimonious reading of Title VII.”

While her logic did not carry the day at the Court, it did eventually prevail: President Obama signed the Lilly Ledbetter Fair Pay Act into law, adopting Justice Ginsburg’s principle, on January 29, 2009.

In recent years, Justice Ginsburg authored important employment law decisions.  In Mount Lemmon Fire Dist. v. Guido (2018) she wrote for a unanimous Court in holding that States and their political subdivisions are “employers” liable under the Age Discrimination in Employment Act even where they have fewer than 20 employees.  In Fort Bend County, Texas v. Davis (2019), she held, again for an unanimous Court, that Title VII’s requirement that plaintiffs file a complaint with the EEOC before suing is not jurisdictional, meaning that an employer’s failure to timely raise the defense that the plaintiff failed to first go to the EEOC will cause that defense to be lost.

As when her friend and ideological rival Justice Antonin Scalia died in 2016, Justice Ginsburg’s passing creates a vacancy on the high court in a presidential election year.  In 2016, the Republican-held Senate did not conduct hearings or a vote on President Obama’s nominee Merrick Garland, but instead held the Supreme Court seat open through the election on the premise that the public should have a say in who replaced Justice Scalia: that if President Obama was succeeded by a Republican, that would signal that the public wanted a conservative justice appointed to the court.  Although Justice Ginsburg’s death is several months closer to the election than Justice Scalia’s, it appears likely that the vacancy will be filled before the January 2021 inauguration for the simple reason that the Senate is controlled by the same party as the presidency.  On Saturday, September 26, 2020, President Trump nominated Judge Amy Coney Barrett of the Seventh Circuit.

No matter how hard-fought the confirmation battle may be, Justice Ginsburg’s shoes will undoubtedly be more difficult to fill than her seat.

 

 

[1] At oral argument, the state resorted to arguing that exempting women from jury service served a state interest in “safeguarding the important role played by women in family life.”   As Justice Ginsburg’s opening brief noted, the Court had already rejected this rationale four years prior.

It’s Fall!  As we transition to longer days and colder weather, we’re taking a look at our hottest blog posts from Summer 2020.

Walking the Tightrope When Employees Refuse to Return to Work

If there is one word that defines this pandemic, it is fear.  While we understand more about COVID-19 today than we did even a few weeks ago, including who may be more susceptible to severe complications, this pandemic still involves a dash of Russian roulette.  It is therefore understandable that some employees – even perfectly healthy ones – will express reservations about returning to the workplace, especially in areas around California where cases are spiking.

The Challenge of Dealing With Employees Who Challenge COVID-19 Precautionary Measures

As the “new normal” drags on longer than any of us would have hoped, some people are having a harder time adjusting than others.  While nobody likes wearing a mask or practicing social distancing, what are an agency’s options and obligations with respect to an employee who can’t or won’t?

AB 2147 Clears Career Paths for Formerly Incarcerated Persons Trained as Firefighters

While skies all over California were turned strange colors by fire and smoke on September 11, 2020, Governor Gavin Newsom signed AB 2147 into law. Passed by a 51-12 majority in the Assembly and a unanimous 30-0 vote in the Senate, this law creates new Penal Code section 1203.4b, designed to make it easier for inmates trained in firefighting in the Conservation Camp Program or on a county hand crew to gain employment as professional firefighters after release.

 

What’s in a Name? – The Karen Meme Question

If you consume social media, be it Facebook, Instagram, Twitter, or the app of the moment TikTok, you have certainly come across “the Karen meme.”  By and large, “the Karen meme” is an image depicting a middle-aged Caucasian woman, almost always sporting a spiky, short blonde haircut.  “Karen” argues with and is condescending to service industry workers, and demands to speak to the manager on account of small, meaningless inconveniences, such as an iced skinny vanilla latte with one too many ice cubes.  While memes have become popular on the internet, “the Karen meme” has the potential to create legal claims for employers depending on how it is used at work.

 

Returning to Work: How Employers Can Best Prepare for their Workforce Returning to the Office

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.

 

On September 17, 2020, Governor Gavin Newsom signed into law two COVID-19 related bills – Senate Bill (“SB”) 1159 and Assembly Bill (“AB”) 685.  SB 1159 is an urgency bill that is now effective immediately, and sets forth rebuttable presumption standards to establish workers’ compensation coverage for employees who contract COVID-19.  AB 685 modifies occupational safety standards to require employers to provide notice and report information related to COVID-19 exposures, and provides the California Division of Occupational Safety and Health (“Cal/OSHA”) expanded authority to enforce such requirements and ensure safe workplace operations.  AB 685 is effective January 1, 2021.

Below is a summary of both bills and their impact on employers.

SB 1159

SB 1159 amends existing workers’ compensation laws to address the impact of employees who contract COVID-19 and the extent that such illness is considered industrial, and therefore entitles the employee to workers’ compensation benefits.

A.  Standards for Application of Workers’ Compensation Rebuttable Presumption for an Employee’s COVID-19 Illness

Employees injured in the course and scope of employment are generally entitled to receive workers’ compensation benefits for their injuries.  Existing law establishes a series of specific injuries and illnesses for certain public safety employees that are presumed to be industrial in nature and create a rebuttable presumption that will qualify them for workers’ compensation benefits immediately, unless an employer can provide sufficient information to indicate that the injury or illness is non-industrial.

Recognizing the unique challenges posed by the COVID-19 global pandemic, SB 1159 now creates a similar presumption for illness or death resulting from COVID-19 in the following three circumstances:

  1. The bill codifies Executive Order N-62-20, issued by Governor Newsom on May 6, 2020, which expanded the workers’ compensation rebuttable presumption to ANY employee who reported to their place of employment between March 19 and July 5, 2020, and who tested positive for or was diagnosed with COVID-19 within the following 14 days during that time period.
  2. This rebuttable presumption is then extended beyond July 6, 2020, for firefighters, peace officers, fire and rescue coordinators, and certain kinds of health care and health facility workers, including in-home supportive services providers that provide services outside their own home.  For health facility employees other than those who provide direct patient care, and other than custodial employees in contact with COVID-19 patients, the presumption does not apply if the employer can show the employee did not have contact with a COVID-19 positive patient within the 14-day period.
  3. For all other employees, the rebuttable presumption is only applied if the employee works for an employer with five or more employees and the employee tests positive for COVID-19 within 14 days after reporting to their place of employment during a COVID-19 “outbreak” at the employee’s specific work place. For purposes of this presumption, a COVID-19 “outbreak” exists if within 14 calendar days one of the following occurs at a “specific place of employment” (which excludes the employee’s home):
  • If the employer has 100 employees or fewer at a specific place of employment, 4 employees test positive for COVID-19;
  • If the employer has more than 100 employees at a specific place of employment, 4% of the number of employees who reported to the specific place of employment, test positive for COVID; or
  • A specific place of employment is ordered to close by a local public health department, the State Department of Public Health, the Division of Occupational Safety and Health, or a school superintendent due to a risk of infection with COVID-19

For purposes of administering this “outbreak” presumption, SB 1159 requires employers to report to their workers’ compensation claims administrator in writing within three business days when they know or reasonably should know that an employee has tested positive for COVID-19, along with other relevant information.

The Workers’ Compensation Appeals Board (“WCAB”) is bound by these presumptions unless presented with controverted evidence to dispute the presumption.  Workers’ compensation awarded for covered COVID-19 related illness or death includes full hospital, surgical, medical treatment, disability indemnity, and death benefits. The bill also makes a workers’ compensation claim relating to a COVID-19 illness presumptively compensable, as described above, after only 30 days, rather than the standard 90-day time period for all other types of workers’ compensation claims.

B.  Application of Other COVID-19 Paid Benefits and Duration of New Law

However, SB 1159 requires an employee to exhaust any COVID-19 related supplemental paid sick leave benefits (e.g., FFCRA’s Emergency Paid Sick Leave or California’s supplemental paid sick leave under AB 1867) and meet certain certification requirements before receiving temporary disability benefits or an industrial injury leave of absence.

In addition, the effective timeframe for workers’ compensation benefits under SB 1159 based on illness or death due to COVID-19 is limited, as the law will remain in effect only until January 1, 2023, after which the law will sunset and be repealed unless extended further by the Legislature.

SB 1159 also requires the Commission on Health and Safety and Workers’ Compensation to conduct a study of the impact of COVID-19 on the workers’ compensation system, to deliver a preliminary report to the Legislature and Governor by December 31, 2021, and to deliver a final report to the legislature by April 30, 2022.

C.  Impact of SB 1159 on Employers

As SB 1159 is now law, employers need to be vigilant and prepared to respond to any indication that an employee has contracted COVID-19 and should coordinate with their workers’ compensation insurance carriers and claims adjusters to establish best practices for reporting and responding to potential workers’ compensation claims based on COVID-19.

(SB 1159 adds Sections 77.8, 3212.86, 3212.87, and 3212.88 to the Labor Code.)

AB 685

In response to the COVID-19 pandemic and its impact on maintaining a safe workplace, AB 685 amends the Labor Code in several areas to require employers to adhere to stricter occupational health and safety rules and empowers Cal/OSHA with expanded enforcement powers to address such standards as follows – effective January 1, 2021:

A.  New COVID-19 Employer Notice and Reporting Requirements

AB 685 requires employers to comply with certain reporting requirements and provide the following four notices related to potential COVID-19 exposures in the workplace within one business day of being informed of the potential exposure:

  1. Potential COVID-19 Exposure Notice to Employees

If an employer or the employer’s representative receives a notice of a potential exposure to COVID-19 in the workplace by a “qualifying individual”, the employer must provide a written notice to all employees, and to the employers of subcontracted employees, who were present at the same worksite within the infectious period (as defined by the State Department of Public Health), stating that they may have been exposed to COVID-19.

For purposes of this requirement, a “qualifying individual” means a person who can establish any of the following requirements:

  • A laboratory-confirmed case of COVID-19;
  • A positive COVID-19 diagnosis from a licensed health care provider;
  • A COVID-19 related isolation order issued by a public health official; or
  • Death due to COVID-19 as determined by the County public health department.

The notice must be sent in a manner the employer normally uses to communicate employment-related information.  This can include personal service, email, or text message so long as it can be reasonably anticipated that employees will receive the notice within the one business day requirement.  The notice must be in both English and the language understood by the majority of employees.

2.  Potential COVID-19 Exposure Notice to Exclusive Representative of Represented Employees

If the affected employees who are required to receive this COVID-19 exposure notice include represented employees, the employer must send the same notice to the exclusive representative of the affected bargaining unit.

3.  Notice of COVID-19 Related Benefits and Employee Protections

An employer must also provide all affected employees and the exclusive representative, if any, with a notice of information regarding any COVID-19-related benefits or leave rights under federal, state, and local laws, or pursuant to employer policy, as well as the employee’s protections against retaliation and discrimination.

4.  Notice of Safety Plan in Reponse to Potential COVID-19 Exposure

Finally, the employer must notify all employees, the employers of subcontracted employees, and any exclusive representative, of the employer’s plans for implementing and completing a disinfection and safety plan pursuant to guidelines issued by the federal Centers for Disease Control.

Failure to comply with these requirements may subject the employer to a civil penalty. AB 685 also prohibits employers from requiring employees to disclose medical information except as required by law, and prohibits employers from retaliating against an employee for disclosing a qualifying case of COVID-19.  Employers are also required to maintain records of these four notices for at least three years.

Where employers are notified of a number of cases that meet the definition of a COVID-19 “outbreak” as defined by the California Department of Public Health (“CDPH”), the employer must also notify the applicable local public health agency within 48 hours of the names, number, occupation, and worksite of any “qualifying individuals” related to the “outbreak”.

An “outbreak” is currently defined by CDPH as “three or more laboratory-confirmed cases of COVID-19 within a two-week period among employees who live in different households.” (See CDPH’s “COVID-19 Employer Playbook – Supporting a Safer Environment for Workers and Customers – available online at https://files.covid19.ca.gov/pdf/employer-playbook-for-safe-reopening–en.pdf)

CDPH is also required to make workplace statistics received from local health departments under this provision – other than personally identifiable employee information – available on its website, such that members of the public can track the number of cases and outbreaks by industry.

These new COVID-19 notice and reporting requirements apply to all private and public employees, with two exceptions:

  • Health facilities, as defined in Section 1250 of the Health and Safety Code, are exempt from reporting an “outbreak” within 48 hours as described above;
  • The notice requirements do not apply to exposures by employees whose regular duties include COVID-19 testing or screening or who provide patient care to individuals who are known or suspected to have COVID-19, unless the “qualifying individual” is also an employee at the same worksite.

B.  Cal/OSHA Will Be Authorized to Shut Down A Workplace, Operation, or Process that Creates an Imminent Hazard Due To COVID-19 Exposure Risk.

Under current law, whenever Cal/OSHA finds that a place of employment or specific equipment in the workplace creates an imminent hazard to employees, Cal/OSHA has the authority to prohibit entry into the affected part of the workplace or to prohibit the use of the dangerous equipment in the workplace.

AB 685 expands and clarifies Cal/OSHA’s authority within the context of COVID-19 related issues in the workplace. Under AB 685, if Cal/OSHA finds that a workplace or operation/process within a workplace exposes employees to a risk of COVID-19 infection and thereby creates an imminent hazard to employees, Cal/OSHA now has authority to prohibit entry to the workplace or to the performance of such operation/process.  If Cal/OSHA uses its authority to apply such a workplace restriction, it must then provide the employer with notice of the action and post that notice in a conspicuous place at the worksite.  Any restrictions imposed by Cal/OSHA must be limited to the immediate area where the imminent hazard exists and must not prohibit any entry into or operation/process within a workplace that does not cause a risk of infection. In addition, Cal/OSHA may not impose restrictions that would materially interrupt “critical government functions” essential to ensuring public health and safety functions, or the delivery of electrical power or water.

This expanded authority sunsets on January 1, 2023, and will be repealed automatically on that date unless further extended by the Legislature.

C.  Amends Cal/OSHA Procedures for Serious Violation Citations Relating to COVID-19

Currently, before Cal/OSHA can issue a citation to an employer alleging a “serious violation” of occupational safety and health statutes or regulations, it must make a reasonable attempt to determine and consider whether certain mitigating factors were taken by an employer to rebut the potential citation.  Cal/OSHA satisfies this requirement by sending an employer a description of the alleged violation at least 15 days before issuing a citation, and provides the employer an opportunity to respond.  Even if an employer does not provide information in response to Cal/OSHA’s inquiries, an employer is still not precluded from presenting such information at a later hearing to contest the citation.

AB 685 modifies this procedure until January 1, 2023 as applied to serious violation citations Cal/OSHA issues related to COVID-19.  For such COVID-19 serious violation citations, Cal/OSHA is not obligated to provide an alleged violation at least 15 days prior to issuing the citation to allow an employer the opportunity to respond and can instead issue the citation immediately.  The employer would still be able to contest the citation through the existing Cal/OSHA appeal procedures.

D.  Impact of AB 685 on Employers

Because AB 685 is not effective until January 1, 2021, employers have some time to prepare for its new notice and reporting requirements.  Employers should review and revise their existing procedures related to notification of COVID-19 exposures in the workplace in order to ensure they are ready to comply with the new notice and reporting requirements imposed by AB 685 once it becomes effective.

(AB 685 amends Sections 6325 and 6432 of and adds Sections 6325 and 6409.6 to the Labor Code.)

If you have questions about SB 1159 and AB 685 and how they may affect your agency’s operations, LCW attorneys are available to answer your questions.

AB 5, which went into effect January 1, 2020, codified in the Labor Code the “ABC” test for determining independent contractor status that the California Supreme Court adopted in its 2018 decision in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903. Our bulletin regarding the details of AB 5 can be found here.

On Friday, September 4, 2020, Governor Newsom signed Assembly Bill 2257 (AB 2257) into law. AB 2257 served as clean-up legislation to AB 5, and amends certain exceptions to the “ABC” test set forth in AB 5. AB 2257 was an urgency bill so it becomes effective immediately.

Importantly, AB 2257 clarifies that the “business service provider” exemption to the stricter ABC test covers contracting services provided to a “public agency.” Prior to AB 2257, because the statute did not specifically state “public agency,” there was some question regarding whether the legislature intended to apply AB 5 to public agencies. This specific mentioning of public agencies in the “business service provider” exemption appears to demonstrate that the legislature intended for AB 5 to apply to public agencies.

AB 2257 also made the following changes to some of the conditions for eligibility for the “business service provider” exemption:

  • One criterion for eligibility for the exemption is that the business service provider provide services directly to the contracting business rather than to customers. AB 2257 adds that this restriction does not apply if the business service provider’s employees are solely performing services under the name of the business service provider and the business service provider regularly contracts with other businesses.
  • AB 2257 specifies that a contract with a business service provider must include the payment amount, rate of pay, and the due date for the payment.
  • AB 2257 allows for a residence to qualify as the separate business location of the business service provider.
  • Previously, AB 5 required that the business service provider “actually” contract with other businesses and provide similar services. AB 2257 changed this requirement to “can” contract with other businesses.
  • AB 2257 clarifies that the business service provider may use proprietary materials of the contracting agency that are necessary to perform the services of the contract.

AB 2257 also created additional exemptions for various professions and occupations. For example, it exempts individuals who provide underwriting inspections and other services for the insurance industry, a manufactured housing salesperson, people engaged by an international exchange visitor program, consulting services, animal services, competition judges, licensed landscape architects, specialized performers teaching master classes, registered professional foresters, real estate appraisers and home inspectors, and feedback aggregators.

LCW can assist your agency with questions about AB 2257 and AB 5, and its potential effects on your agency.

While skies all over California were turned strange colors by fire and smoke on September 11, 2020, Governor Gavin Newsom signed AB 2147 into law. Passed by a 51-12 majority in the Assembly and a unanimous 30-0 vote in the Senate, this law creates new Penal Code section 1203.4b, designed to make it easier for inmates trained in firefighting in the Conservation Camp Program or on a county hand crew to gain employment as professional firefighters after release.

In partnership with the California Department of Forestry and Fire Protection, also known as CAL-FIRE, the Department of Corrections and Rehabilitations operates 44 minimum security Conservation Camps, where inmates who volunteer for the program receive the same entry-level training as CAL-FIRE’s seasonal firefighters and ongoing training during their time in the program.  Inmate firefighters in the Conservation Camp program have assisted in fighting the Pocket, Tubbs, Atlas, Camp, and Kincade fires.

Historically, despite the state’s investment in training these individuals in firefighting skills, formerly incarcerated persons who participated in the Conservation Camp program have struggled to find employment as municipal firefighters.  This stems, at least in part, from the fact that their conviction history prevents them from obtaining EMT certifications.

Penal Code section 1203.4b, which will take effect January 1, 2021, will allow certain persons with criminal convictions who have been released from custody to file a petition for relief in court.  If the Secretary of the Department of Corrections and Rehabilitations or the appropriate county authority certifies the defendant has successfully completed the firefighting program, the court may, in its discretion and in the interests of justice, issue an order expunging the conviction, with certain restrictions.

Defendants who were convicted of murder, kidnapping, rape, any felony punishable by death or life imprisonment, any sex offense requiring registration as a sex offender, escape from a secure perimeter in the last 10 years, or (wisely) arson are not eligible for relief under AB 2147.  Likewise, persons convicted of these crimes are not eligible to participate in the Conservation Camp Program.

A defendant who receives an order under this section will not be required to disclose the expunged conviction on an application for licensure by any state or local agency except if applying for a teaching credential, a position as a peace officer, a public office, or a contract with the California State Lottery Commission.  Therefore, he or she would not need to disclose his or her conviction to become an EMT.

An expungement order will not allow a former inmate who would otherwise be prohibited from holding public office to do so.  Likewise, a former inmate’s being granted relief under the new law does not permit them to own, possess, or have in their custody or control any firearm.