Employers and employee organizations are often looking for new, creative ways to expand, streamline, or restructure employees’ health benefits.  Starting in January 2020, employers may offer two different health reimbursement arrangements (“HRA’s”) to their current employees.  Typically, employers offer HRAs for retirees through collective bargaining agreements but do not offer them for current employees because of restrictive HRA rules.  Under new rules issued on June 13, 2019, employees can benefit from two new types of HRAs, starting on January 1, 2020: Individual Coverage HRAs and Excepted Benefit HRAs.  Read on to learn more about these new HRA options and whether your agency might offer them through the collective bargaining process.

Overview: What is an HRA?

Employers may reimburse employees tax-free for qualified medical expenses through Health Reimbursement Arrangements.  Employers fund an account, which reimburses employees’ and their dependents’ qualifying medical expenses.

What are the new HRA options?

Employers may offer either an Individual Coverage HRA or an Excepted Benefit HRA to a class of employees – it cannot offer both options to the same group.

An Individual Coverage HRA has the following attributes:

  • Participants must enroll in individual health insurance coverage or Medicare.
  • The HRA can reimburse medical insurance premiums, medical care expenses, or both, without an annual limit.
  • Unused amounts will roll over into the next plan year.
  • Employees must be able to opt-out and waive future reimbursements each plan year.
  • Employees can participate in a Health Flex Savings Account and the Individual Coverage HRA.
  • Employers must offer the HRA to a minimum class size of employees on the same terms and conditions.

By comparison, an Excepted Benefit HRA offers the following:

  • Participants must have the opportunity to enroll in the employer’s group plan, but the participants are not required to enroll.
  • The HRA can reimburse medical care expenses, plus premiums for only excepted benefit coverage, like stand-alone dental coverage, up to $1,800 for the 2020 plan year.
  • Unused amounts will roll over into the next plan year.
  • The employer must offer the same benefit to all similarly situated employees.

Interested in learning more?

These new plans touch on a complex web of laws including tax, health and welfare, and labor laws.  In addition, please remember that changes to employees’ health benefits must be negotiated, and these new policies require a notice period before any negotiated changes would take effect.  If your agency is interested in learning more about these new HRA benefits, LCW is available to help assess your Agency’s long-term labor relations and benefits coverage strategies.

I know I’ve made some very poor decisions recently,

but I can give you my complete assurance that my work will be back to normal.

HAL 9000 – 2001 A Space Odyssey

Microchips for dogs and cats is nothing new.  Our fluffy friends have been receiving microchips for more than 30 years, resulting in happy reunifications of owners and lost pets.  The latest trend in microchipping moves beyond cats and dogs and on to the workplace—not because employees are getting lost but as a means to assess productivity and track efficiency, among other things.

In January 2015, the Swedish conglomerate Epicenter started offering employees implanted microchips in their hands that would permit them to open doors, log on to computers, or buy food and drinks. The Wisconsin company Three Square Market began voluntarily chipping employees in 2017, with roughly a third of the employees chipped by August 2018.

Since the United States has a history of striving to protect individual privacy rights, do these employee microchips have a viable future in the workplace?  Twenty states currently have laws concerning the use of microchips but only a handful of those laws directly address the employment context.  California Civil Code section 52.7 expressly prohibits a person, which includes business entities, from “requiring, coercing, or compelling” an individual to undergo subcutaneous implanting of an identification device.  The statute further forbids “the conditioning of any private or public benefit or care on consent to implantation, including employment, promotion, or other employment benefit.”  California law does not stop employers from asking employees to consent to microchipping, but the law also does not establish any particular guidelines for microchipping employees.

In 2019, Arkansas introduced legislation that specifically addresses the use of microchips in the employment context by outlining legal parameters for microchipping.  The legislation seeks to strike a balance between employee privacy and the value of microchips to employers.  The employee must give written consent to implanting the microchip and the employer must disclose all the information that it collects, among other requirements.  Importantly, the microchip cannot be a condition of employment.  The employer also must permit and pay for removal of the microchip upon the employee’s request.

While employees may recoil at the thought of being monitored through microchips, employers could reap notable benefits, such as assessing workplace efficiency and effectiveness.  Employers often use card swipe data in a variety of matters, such as monitoring employee entry and exit times from buildings.  This information often assists employers in disciplinary matters. Employee access card information, however, can be unreliable.  Employees easily could find ways to enter buildings without swiping a card, or could enter or exit with a group of people, without having to swipe their own card.  The microchip, however, offers greater and more consistent data collection.

With the rise of microchipping employees in Europe and advancements in technology, other states may follow Arkansas’ lead by creating specific employment laws to govern employee microchipping.  For the 2019/2020 California legislative term, the only microchip legislation introduced so far relates to dogs, cats and horses.  Despite California having one of the stronger laws on microchipping humans, future legislation may be likely if the employee microchip trend gains more interest from employers.  Without legal parameters in place, employers could develop their own policies and procedures for microchipping but should exercise caution to avoid violating existing law, as well as the appearance of coercion or retaliation.

On July 3, 2019, Governor Gavin Newsom signed into law a bill that extends California’s workplace and school discrimination protections to cover race-related traits, including hair.  SB-188 expands the definition of “race” under the Fair Employment and Housing Act and the nondiscrimination provisions of the Education Code.  Effective January 1, 2020, “race” will include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.”  The law further specifies that “protective hairstyles” “includes, but is not limited to, such hairstyles as braids, locks, and twists.”  This change in the law includes protection from such discrimination against employees and students.

The bill was introduced by State Senator Holly J. Mitchell, and sponsored by a coalition comprised of the National Urban League, Western Center on Law & Poverty, Color of Change, and personal care brand Dove.  Effective January 1, 2020, it amends Government Code section 12926 and adds section 212.1 to the Education Code.

The bill appears primarily intended to prevent unequal treatment related to natural Black hairstyles.  The bill includes a legislative declaration that “Despite the great strides American society and laws have made to reverse the racist ideology that Black traits are inferior, hair remains a rampant source of racial discrimination with serious economic and health consequences, especially for Black individuals.”  The declaration also states that “Workplace dress code and grooming policies that prohibit natural hair, including afros, braids, twists, and locks, have a disparate impact on Black individuals as these policies are more likely to deter Black applicants and burden or punish Black employees than any other group.”

Although the bill specifically references Black hairstyles, the statutory changes it establishes may be more broad.  For example, under the new statutory language, it appears employers and schools are prohibited from discriminating based on any trait “historically associated with race.”  The parameters of this standard, i.e. whether a particular trait qualifies as “historically associated with race” will be subject to debate. In addition, although the findings and declarations speak to Black hairstyles, the new statutory language does not limit protection to African American individuals with traditionally Black hairstyles.  These types of issues will surely be the subject of litigation in court.

Employers should ensure their policies (including, but not limited to, anti-harassment policies, dress codes and grooming standards) are updated in accordance with this change of law going into effect January 1, 2020. In addition, supervisors should be  trained on the expansion of the definition of “race” in the Fair Employment and Housing Act and/or Education Code.

This Special Bulletin was authored by Eileen O’Hare-Anderson & Emanuela Tala

The Public Employment Relations Board (“PERB”) found that the Contra Costa Community College District (“District”) did not violate the Educational Employment Relations Act when it withheld copies of written discrimination complaints against two faculty members in advance of investigatory interviews.

In Contra Costa Community College District (2019) PERB Decision No. 2652E, PERB found that a union has a right to reasonable notice of the alleged wrongdoing before the investigatory interview, but the union does not have a right to a copy of the written complaint until after the initial investigatory interview is completed.

The District received two student complaints against two faculty members, and subsequently hired an attorney to investigate the complaints.  The District required the two accused faculty members to attend investigatory interviews.  The faculty members requested union assistance in connection with the interviews, and the union agreed to assist them.  The union then requested copies of the complaints prior to the interviews.  The District, through its attorney, informed the union that its policy was not to provide copies of complaints before an interview.  The District asserted the need to protect the integrity of the investigation and the complainants’ privacy rights as primary reasons for denying requests for copies of the complaints.

PERB held that the employer must provide reasonable notice of the alleged misconduct.  This must be timely and include sufficient information about the alleged wrongdoing “to enable a union representative to represent an employee in a meaningful manner during the interview.”  Whether an employer has met this obligation is a case-by-case determination.  However, “the employer has no obligation to provide the underlying written complaint until after the employer conducts an initial investigatory interview.”

Notice is timely if it gives the accused employee enough time to consult with his or her representative.  Notice is sufficient if it provides the accused employee and his or her representative with enough information about the allegations to allow for representation in a meaningful manner during the interview.

PERB also explained that after an investigatory interview, the employer may not deny the union’s request for information on the basis that a disciplinary meeting or proceeding falls outside the scope of the bargaining agreement or on the basis that the union has no duty of fair representation.

Similarly, the employer may not deny the union’s request for information by simply asserting a third party’s right to privacy.  PERB reaffirmed the rule that after the employer raises the legitimate privacy rights of a third party, such as a student, the employer cannot simply refuse to provide any information.  Rather, the employer must meet and confer in good faith to reach an accommodation of both the union’s and the accused employee’s right to obtain the information and the third party’s right to privacy.  Such accommodations could include redacting information that is not relevant, or entering into agreements limiting use of the information.

NOTE:  Employers must be careful in responding to requests for information, especially while investigations are pending.  Agencies should work with local counsel to navigate the requirements of this and other applicable laws.


This blog post was authored by J. Scott Tiedemann & Lars T. Reed 

On Thursday, June 27, 2019, Governor Newsom signed into law the new State Budget as well as accompanying budget trailer bills.  One of the budget trailer bills, Senate Bill 94, contains clean-up language for provisions added to the California Public Records Act by last year’s Assembly Bill 748.

AB 748, which we have discussed in previous blog posts, amended the Public Records Act, starting July 1, 2019, generally to require agencies to disclose video and audio recordings of “critical incidents” involving the use of force resulting in great bodily injury or the discharge of a firearm by a peace officer or custodial officer at a person.  Redaction and/or withholding of records is permitted to protect specified privacy interests.  Disclosure of a record can also be delayed for between 45 days up to one year, depending on the circumstances, if disclosure would undermine an active criminal or administrative investigation.

An agency can withhold a recording if its disclosure would violate privacy interests of a person depicted in the recording and if the person’s privacy cannot be adequately protected through redaction.  However, an agency must disclose the record to the subject whose privacy is sought to be protected (or to their legal representative).  The question addressed by SB 94 is when that disclosure must occur.  The question was raised because AB 748 included ambiguous language that could appear to require an agency to disclose a recording to a party whose privacy the agency sought to protect, even if the agency could otherwise withhold the record because it would undermine an active criminal or administrative investigation.

Under the original language of AB 748, the provision explaining how these provisions interact when they all apply was ambiguous:  as written, it would require the agency to disclose a recording to the party whose privacy is implicated while simultaneously (and inconsistently) permitting the agency to withhold the recording for between 45 days to a year to protect an active investigation.  SB 94 removes this inconsistency: it now only requires the agency to provide the requesting party with the estimated date for disclosure of the recording and allows the agency to withhold the record if certain conditions are met.

As a budget trailer bill, SB 94 took effect immediately upon the Governor signing the bill into law. As such, the cleaned-up language in SB 94 will already be in effect when the disclosure requirement under Government Code section 6254 begins on July 1, 2019.

This post was authored by David Urban

Cities, counties, special districts, public educators, and other government entities who invite public comment and contribution on their Twitter accounts, Facebook pages, websites, or other spaces on the internet might face liability for violating the First Amendment if they remove content posted by members of the public or block certain members of the public from participating.  The theory is that such virtual spaces function the same way as physical government spaces like a park reserved for public expression; under well-established principles, the government cannot prevent speech in such areas simply because it disagrees with the message.  Instead, in very general terms, the government must abide by rules it establishes for the forum, which must pass exacting judicial scrutiny.  The rules can include some content-neutral “time, place, and manner” restrictions or rules designed to satisfy sufficiently important interests with a sufficiently minimized impact on those who wish to express themselves in the forum.

Courts in recent years have tried to interpret how these rules — developed primarily for physical spaces — translate to the internet.  It is still unclear how they apply, or even whether they do, given how much of the internet, hardware and otherwise, is privately owned.  (The First Amendment almost always applies only to governmental actions not private individuals or businesses.)  Nevertheless, government agencies, and government officials including elected officials, have to pay close attention to this area of law if they wish to moderate public participation on their on-line forums.

No binding judicial precedent yet exists on these specific issues in California, and may not for some time.  The following three cases, from federal courts, provide clues to where the law is going.

1.) Davison v. Randall (4th Cir Jan. 7, 2019) – In this case, the U.S. Court of Appeals for the Fourth Circuit (covering Eastern states including Virginia, West Virginia, North Carolina, and South Carolina) held that the Chair of a County Board of Supervisors who created a Facebook page through which she conducted substantial county business had effectively created a “public forum,” and that she could not bar community members from participating. The Court first determined that the supervisor acted in her official capacity in operating the page. Among other things, the Court observed that in operating the page: “[Supervisor] Randall provides information to the public about her and the Loudoun [County] Board’s official activities and solicits input from the public on policy issues she and the Loudoun Board confront.”  The Court concluded that the page itself constituted a public forum.  It reasoned:

“[A]spects of the Chair’s Facebook Page bear the hallmarks of a public forum. Randall “intentionally open[ed the public comment section of the Chair’s Facebook Page] for public discourse,” inviting “ANY Loudoun citizen” to make posts to the comments section of the Chair’s Facebook Page—the interactive component of the page—“on ANY issues, request, criticism, complement or just your thoughts”. . . .

The Supervisor was thus liable under the First Amendment for blocking a member of the public from commenting on her County Chair Facebook page, after the individual criticized the Loudoun Board.

For public agencies and officials, this Davison case shows the risks in blocking users, or in removing publicly posted content on platforms used for official purposes.  Davison is not binding precedent in California, but courts in this state could choose to follow it.

2.) Knight First Amendment Institute v. Trump (2d Cir.) – this high-profile case is currently pending in the U.S. Court of Appeals for the Second Circuit (covering New York, Connecticut, and Vermont). The Court must decide whether President Trump’s Twitter page, @realDonaldTrump, constitutes a public forum and whether the President infringed the First Amendment rights of individuals he barred from his page. The individual plaintiffs, who are social media commentators, sued President Trump for blocking their access to his Twitter page allegedly because of the viewpoints they expressed.  Trump contends that his Twitter account pre-dated his tenure as President, and constituted a private platform not subject to First Amendment restrictions, based on the variety of ways (both personal and governmental) in which he used it.

The Trial Court determined that Trump’s Twitter account is, in fact, a public forum for First Amendment purposes.  First, the Court found it was effectively a government-run space.  The Court described that the President used the page to carry out the duties of his office, observing; “the @realDonaldTrump account has been used in the course of the appointment of officers (including cabinet secretaries), the removal of officers, and the conduct of foreign policy — all of which are squarely executive functions . . . .”  The Court went on to find the interactive part of the page, in which users had the ability to comment and exchange views, constituted a public forum.  The Court observed: “The interactivity of Twitter is one of its defining characteristics, and indeed, the interactive space of the President’s tweets accommodates a substantial body of expressive activity.”

The Court of Appeals heard oral argument in the appeal on March 26, 2019, and is expected to issue its decision soon.

For public agencies and officials, the Knight case will shed light on the circumstances under which social media accounts that host public comments will have to abide by the First Amendment, and will likely contain some discussion relating to when and how public agencies and officials can moderate comment when the First Amendment does apply.  Like Davison, the Knight case will not serve as binding precedent in California, but courts in this state may find its reasoning persuasive.

3.) Prager University v. Google, LLC (9th Cir.) — this case is currently pending in the U.S. Court of Appeals for the Ninth Circuit (covering Western states including California). It involves one of the most cutting-edge legal issues in First Amendment law: does the First Amendment in fact apply to privately run social media platforms? The case involves YouTube, which is a subsidiary of Google.  It is well-established law that the provisions of the U.S. Constitution like the First Amendment only restrict government conduct, not the conduct of private companies or individuals acting outside any government capacity.  Rare exceptions exist, however, for private organizations that engage in “state action” by taking on traditional governmental roles.  There is also a1946 U.S. Supreme Court case, Marsh v. Alabama, which held that a privately owned “company town” was subject to the First Amendment.  In that case, the Court held that a private company that controlled a whole town could not censor speech by having criminal sanctions imposed against those who entered the town to engage in expressive activity (in that case, Jehovah’s Witnesses who wished to hand out literature).

In this case, the plaintiff Prager University has argued that YouTube, under both the state action doctrine and the Marsh case, must abide by the First Amendment.  Prager is an educational nonprofit company and explains in its complaint that it is not an academic institution.  Its mission, according to its complaint, is to “provide conservative viewpoints and perspectives on public issues that it believes are often overlooked or ignored.”  To further its mission, Prager creates short educational videos which “espouse[s] viewpoints and perspectives based on conservative values.”  It posts its videos on YouTube.

Prager argues that YouTube discriminated against it based on viewpoint.  Prager did not allege any of its videos were completely removed from YouTube, but instead that based on viewpoint, some of its videos were “demonetized” and also censored in the form of an age restriction or exclusion from a Restricted Mode setting (a mode that the complaint describes facilitates access to the videos by certain types of users like schools).

The Trial Court rejected Prager’s contentions that YouTube’s platform presents any type of public forum governed by the First Amendment, including Prager’s contentions based on Marsh, and dismissed the complaint.  Prager appealed.  The Ninth Circuit will likely set oral argument to take place in the next several months.

The Prager case does not involve government agency-hosted social media, but it will constitute binding federal precedent in California, and will likely contain reasoning relevant to how governments operate social media.  For example, the Ninth Circuit could discuss how YouTube’s existing policies on restricting user videos and comments would fare under First Amendment scrutiny.  This could help government agencies structure their own policies.  The Ninth Circuit could also consider arguments that YouTube itself has its own institutional First Amendment right to curate the content it presents to users.  This treatment of private company speech could inform when and how public entities can use the corollary “government speech” doctrine to respond to claims of improper censorship on websites.

Prager has to contend with the overwhelming precedent against applying constitutional principles to private actors.  Indeed, just last week, on June 17, 2019, in Manhattan Community Access Corp. v. Halleck, the U.S. Supreme Court held that a private company hired by New York City to operate its public access channel (which the city was required to have under state law) was not a state actor subject to the First Amendment.  In an opinion by Justice Kavanaugh, the Court emphasized the general rule that the First Amendment free speech clause applies to government, not private actors; the Court observed “a private entity… who opens its property for speech by others is not transformed by that fact alone into a state actor.”

We have posted previously on how government agencies structure policies on social media: https://www.lcwlegal.com/news/government-hosted-social-media-how-to-avoid-first-amendment-claims , and on the related topic of what happens when public employees themselves put content on social media in a way that can impact an agency: https://www.lcwlegal.com/news/new-guidance-on-employer-control-over-employee-social-media .  We will provide further information as the case law in this area develops.

This post was authored by Kevin J. Chicas.

It is not uncommon for public agencies to contract with another organization or company to provide temporary services to cover for vacant positions. A recent decision issued by the CalPERS Board of Administration (the “Fuller” Decision) illustrates why public employers should be careful about classifying someone as an independent contractor just because they are retained through a third-party agency.

Relevant Background

The public district employer lost their Finance Manager with only a 30-day notice that created an immediate need for an experienced interim Finance Manager while the district recruited to permanently fill the position.  In order to find a competent interim Finance Manager, the district contracted with the Regional Government Services (“RGS”), a joint powers authority that does not contract with CalPERS.  RGS has worked with over 200 local agencies since approximately 2002 to provide government agencies with temporary professionals who can perform duties and provide services critical to the agency.

The district entered into a contract with RGS which stated, among other things, that the relationship of RGS to the district was “that of an independent contractor and all persons working for or under the direction of RGS are its agents or employees and not agents or employees of [the] Agency. The Agency and RGS shall, at all times, treat all persons working for or under the direction of RGS as agents and employees of RGS, and not as agents or employees of the Agency.”  The contract also specified that the district did not have the ability to direct how services were to be performed, specify the location where services are performed, or establish hours or days for performance of services.  The district only had the right to direct the results of RGS’ services.

The contract with RGS then reflected the service to be provided by a “RGS Staff Position.”  The contract named Tracy Fuller as the “RGS Staff Position” to “perform the functions of  Interim Finance Manager as assigned” at an hourly rate of $90.00.  The contract indicated that RGS employees may perform services at the district’s offices or at other locations.

The district did not contract with Fuller.  RGS, however, had an employment contract with Fuller.  The contract between RGS and Fuller clearly referred to Fuller as an “employee” of RGS and that the employment is subject to termination at any time at the sole discretion of the RGS executive director.  Fuller’s performance and compensation were to be reviewed at least annually by the RGS executive director.

The district paid RGS directly for Fuller’s services and RGS paid Fuller, although it is not clear if Fuller herself received the full hourly rate that RGS charged the district.  The district also paid a housing allowance for Fuller.

Fuller previously worked with other CalPERS member agencies and retired within the CalPERS system prior to her employment with RGS. Fuller performed the functions of interim Finance Manager for the district for approximately eight months. The district, believing Fuller was an independent contractor (by and through her employment with RGS), did not report Fuller’s hours and compensation to CalPERS.  Throughout Fuller’s retention, the district actively sought to (and eventually did) hire a permanent Finance Manager replacement.

CalPERS staff conducted a membership and payroll audit of the district in late 2014. As part of this audit, CalPERS reviewed the working relationship between Fuller and the district.  CalPERS staff issued a report finding Fuller was not an independent contractor, but rather an employee of the district. Therefore, the district was required to enroll Fuller in CalPERS as an eligible employee. Also note, because Fuller was previously an active member of CalPERS, she was entitled to immediate membership if employed by any CalPERS employer, regardless of position, length of employment, or hours worked.

The Decision of the CalPERS Board of Administration

The district appealed the determination by CalPERS staff.  The appeal was heard by an administrative law judge (“ALJ”) from the state Office of Administrative Hearings who issues a proposed decision to the CalPERS Board of Administration.  The ALJ issued a proposed decision finding Fuller was a District “employee” under the Public Employees’ Retirement Law (PERL), which defines an employee as “[a]ny person in the employ of any contracting agency.”  (Gov. Code § 20028(b); See also, Gov. Code §§ 20069; 20502.)

In particular, the ALJ relied on several factors supporting Fuller’s status as a district “employee” including 1) the district ultimately had the right to control the manner and means in which Fuller accomplished her assignments; 2) Fuller ultimately reported to the district’s General Manager; 3) the district determined, issued and evaluated her particular work, not RGS;  3) the district described Fuller as a staff member in its board minutes; 4) RGS and the district’s independent contractor agreement provided for an option to extend the agreement on a month-to-month basis, past the specified four-month term; and 5) although the district paid Fuller indirectly through RGS, Fuller was still paid by the hour, not the job.

On September 28, 2018, the CalPERS Board of Administration (“Board”) adopted the proposed decision as the final decision of the Board.  In February 2019, CalPERS staff recommended that the Board designate the Decision as a “precedential decision.”  The Board may designate a decision as precedential if it contains a significant legal or policy determination of general application that is likely to recur. If the Board designated the Fuller decision as precedential it would have the same effect as Board-adopted regulations and relied upon by future litigants in administrative and court proceedings as legal authority.

In March and April of this year, stakeholders were invited to provide feedback to the Board.  The recommendation of designating the Decision as precedential was added to the agenda for the June 19, 2019 Board meeting.  However, at the time of this blog, the agenda item was pulled from the Board’s agenda for reasons that are not entirely clear. We do not have further information as to whether the Board will possibly consider the Fuller Decision at a future meeting.

Impact and Effect of Decision

Regardless of whether the Fuller Decision is designated precedential, it did not establish any fundamentally different interpretation of the law or new administrative policy.  The Board previously issued a precedential decision regarding the test employed to determine if the so-called independent contractor is truly an employee subject to active CalPERS membership.  (See In the Matter of the Application for CalPERS Membership Credit by Lee Neidengard (2005) CalPERS Precedential Decision No. 05-01.) That was the first precedential decision of the Board on this subject following the California Supreme Court’s decision in Metropolitan Water District v. Superior Court (Cargill).  The Cargill decision held that an “employee” eligible for CalPERS membership is determined by the common law employment test, particularly in the case of presumed independent contractors.

As the Board of Administration relied upon and followed Cargill in this recent Decision, it did not establish a new analysis regarding independent contractor determinations.  If anything, Fuller stands as a cautionary tale about how intently CalPERS reviews independent contractor relationships and how narrowly they construe the test for common law employment.

While the ALJ relied upon several factors in finding Fuller was a common law employee, certain factors may weigh differently in other cases, but these are factors that could potentially serve as red flags for future CalPERS audits.

As it was before Fuller, employers are strongly cautioned about believing a person providing service to the agency is an independent contractor simply because they are retained through an outside agency or company.  The test remains the same whether the public agency contracts directly with the individual or contracts with another agency for the services provided by the individual. The fundamental test being that a common law employment relationship exists if the principal controls the manner and means by which the individual performs his/her services.


This post was authored by Megan Lewis.

A plaintiff who wants to file a lawsuit for a violation of Title VII of the Civil Rights Act of 1964 (a claim of discrimination based on race, religion, sex, etc.) must first “exhaust administrative remedies” by filing a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) or a similar state agency.

The U.S. Supreme Court recently held in Fort Bend County, Texas v. Davis, — S. Ct. —- (U.S. June 3, 2019) that an employee’s failure to exhaust administrative remedies is not a “jurisdictional” requirement that can be raised at any time during litigation, but rather a procedural requirement that can be waived if not raised in a timely manner.

Background Facts

Plaintiff Lois Davis worked in the information technology (IT) department for Fort Bend County, Texas.  In 2010, Davis submitted an internal complaint alleging that Fort Bend’s IT Director had sexually harassed her.  She later submitted an EEOC intake questionnaire, and ultimately filed a charge of discrimination with the EEOC regarding these allegations.

While this charge was pending, Davis was told to report to work on a Sunday.  Davis alleges that, when she refused for religious reasons, her employment was terminated.

Davis then amended her EEOC intake questionnaire by writing “religion” in the “Employment Harms or Actions” section and checking the boxes for “discharge” and “reasonable accommodation” on the form.  However, Davis never amended her actual EEOC charge to include religious discrimination.

Davis obtained a right-to-sue notice from the EEOC and subsequently filed a lawsuit against the County for discrimination on the basis of religion and retaliation for reporting sexual harassment.

The County Waits Years to Raise the Failure to Exhaust Defense

After the case had been pending (and actively litigated) for nearly five years, the County asserted for the first time that the district court lacked jurisdiction to hear Davis’ religious discrimination claim because she had not included religious discrimination in her EEOC charge (and therefore failed to exhaust administrative remedies).  The district court agreed, but the Fifth Circuit Court of Appeals reversed, concluding that the charge-filing requirement was not jurisdictional and therefore could be waived if the employer waits too long to assert it, as the County did in this case.

The Supreme Court Rules the Defense Can Be Waived

The Supreme Court agreed with the Fifth Circuit.  In a rare unanimous decision, the Supreme Court explained that a “rule requiring parties to take certain procedural steps in, or prior to, litigation, may be mandatory in the sense that a court must enforce the rule if timely raised,” but such requirements are “ordinarily forfeited if not timely asserted.”  A jurisdictional requirement, on the other hand, is foundational to a court’s ability to adjudicate a claim and may be raised at any time during litigation.  The Court held that the charge-filing requirement is the former.

The Takeaway for Employers

As a practical matter, an employee must still file a charge of discrimination before filing a lawsuit.  If the employee fails to do so, the employer may be able to get the lawsuit dismissed on those grounds.  However, employers are now on notice that, if they fail to raise this defense in a timely manner, a court may determine that the employer has waived the defense and allow the case to proceed even though the employee did not fulfill this “mandatory” requirement.

This post was authored by Lisa S. Charbonneau.

A recent jury decision from the federal trial court in Arizona shows how expensive it can be to ignore a federal law that requires employers to provide mothers with nursing children accommodations to express breast milk.

In 2010, Congress added section 7(r) to the Fair Labor Standards Act (FLSA) to require that employers provide break time for nursing mothers to express breast milk.  This amendment  requires employers to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has the need to express the milk.”  In addition, employers must provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”  The breaks need not be paid.  However, if an employer provides paid rest breaks and an employee uses that time to express breast milk, the employee must be compensated for that break time.  The Department of Labor fact sheet on this law can be found here.

Although this FLSA provision may not be well known, a recent $3.8 million dollar jury verdict against the City of Tucson underscores the importance of ensuring compliance with the FLSA’s nursing break requirements.  In that case, Clark v. City of Tucson, paramedic Carrie Clark alleged that, after her first child was born, she was assigned to fire stations that lacked adequate space for her to express milk in violation of the FLSA, which was discrimination in violation of Title VII of the 1964 Civil Rights Act.  In addition, Clark alleged that, after she raised the issue, she was retaliated against in violation of  FLSA.  On April 12, 2019, the jury found in favor of Clark on all counts, including that she was discriminated against on the basis of pregnancy or pregnancy-related condition (breastfeeding) when she was assigned to fire stations that did not have FLSA-compliant space to express breast milk.  The jury even awarded her $50,000 in compensatory damages for the City’s failure to provide her with FLSA-compliant space to express breast milk.  (Since a plaintiff’s damages under section 7(r) are limited to lost wages, this award may well be reduced if not eliminated altogether on appeal or other post-trial review.)  As for the FLSA retaliation claim, the jury found that Clark was retaliated against after she opposed the City’s failure to provide a space for her to express breast milk and awarded her $1,850,000 due to the retaliation, which included requiring her to take leave to avoid having to express breast milk in locations without appropriate nursing rooms and counseling her for “not being in harmony with others.”  More about the facts of the case and the parties’ allegations can be found here.

The lesson here is clear: employers must ensure compliance with all applicable laws when it comes to the rights of mothers to express breast milk, even laws buried in the FLSA.  Failure to do is illegal and may be extremely costly.

This blog was authored by Alysha Stein-Manes.

April 1, 2020, is national Census Day and will kick off a year-long process of counting every resident in the United States.  In California, the California Citizens Redistricting Commission (the “Commission”), a non-partisan commission comprised of democratic, republican and independent (decline-to-state or no party preference) voters, is responsible for re-drawing California State Assembly and Senate, U.S. Congressional, and State Board of Equalization districts to reflect new population and shifting population data.

In addition to working with state and federal agencies to assist in the Census count, local government agencies will have their own responsibilities to address representation issues within the geographic boundaries of their local agency.  As agencies begin to think about their role in the Census process, this post reviews some important issues that may arise concerning local representation.

At-large Voting Systems

Voters generally elect members of an agency’s local governing body using one of two voting systems:

  • By-area Voting System. Under a by-area, or electoral district, voting system, an agency’s boundaries are divided into a subset of voting districts.  For example, if a city has seven council seats, the city’s boundaries are divided into seven areas, or “districts,” and a particular council seat is assigned to that district.  Only voters residing in the particular district may vote for individuals running for that council seat.  Under California law, an individual running for a particular seat on a governing body must reside within that district in order to be eligible to run for that seat.
  • At-large Voting System. Under an at-large system, also referred to as “block voting,” voters within an agency’s entire geographic boundaries elect the members of an agency’s governing body to represent all residents within the agency’s boundaries, as opposed to a subset of residents residing in a particular district.

At-large voting systems are vulnerable to challenge under the California Voting Rights Act of 2001 (“CVRA”) and Section 2 of the Federal Voting Rights Act of 1965 (“FVRA”).  The CVRA provides that an at-large election of the members of the governing body must not impair the ability of a protected class to elect candidates or dilute the rights of voters of a protected class (also known as “racially polarized voting”).  Additionally, Section 2 of the FVRA prohibits any election method or procedure that has a discriminatory result.  Potential liability under these laws broadly depends on the agency’s demographics; the presence of polarized voting within the agency’s boundaries; and past voting records for or against “protected class” candidates in the agency’s elections, or in other elections in which voters within the agency’s boundaries may participate. Demographic studies suggest that at-large voting systems are much more likely to dilute the rights of voters.  By-area voting systems, on the other hand, are generally not subject to challenge under the CVRA or FVRA, unless in creating the voting districts, the agency manipulated demographic data or applied such data in a discriminatory manner, e.g. gerrymandering.

The California Elections Code provides a mechanism for a citizen to challenge an agency’s at-large election method if it impairs the ability of a protected class to elect candidates or dilutes the rights of voters of a protected class. If a voter challenges an at-large election system in court and a court finds it in violation of CVRA, the court must implement remedies, including the imposition of by-area elections that are tailored to remedy the violation.

In recent years, several agencies in California have been the subject of CVRA and/or FVRA litigation.  This sort of litigation is very expensive and difficult for an agency to win.  In fact, we are unaware of any agency that has successfully defended an at-large voting system. Other agencies have voluntarily moved from at-large to by-area elections both to avoid potential litigation and out of concern for ensuring equitable voter representation.

If your agency currently maintains at at-large system, we recommend that you consult with legal counsel to determine whether it would be in your agency’s best interest to voluntarily move to a by-area voting system.  As a proactive means of addressing potential violations of the CVRA or FVRA under an at-large system, agencies may also want to consider conducting a demographic analysis to determine if polarized voting is present within the agency’s geographic boundaries.

Re-drawing Local Agency Lines in 2021

If your agency currently elects the members of its governing body using the by-area system or plans to move to a by-area system, beginning in 2021, your agency will need to redraw its district/area lines using 2020 census data.

The redrawing of by-area voting lines must seek to ensure compliance with the CVRA, FVRA and the U.S. Constitution.  In redrawing an agency’s district lines, an agency must consider factors including, but not limited to:

  • Whether the boundaries of each voting district are nearly equal in population in order to ensure compliance with the Equal Protection Clause of the Constitution;
  • Whether the boundaries of each voting area may likely result in a denial or abridgment of the right of any citizen to vote because of race or color as provided in section 2 of the FVRA;
  • Whether the boundaries of each voting area respect communities of interest, rural or urban populations, social interests, agricultural, industrial or service industry interests, and the like, insofar as practicable;
  • Whether the boundaries of each voting area are compact, insofar as practicable; and
  • Whether the boundaries of each voting area contain contiguous territory, insofar as practicable.

Public input is required under California law before an agency may adopt new district maps.

As agencies begin to ramp up for the 2020 Census, they should consider consulting legal counsel and demographic consultants in preparation for the redistricting process.