Photo of Frances Rogers

Frances Rogers has extensive litigation, arbitration, and administrative hearing related experience. Additionally, she provides representation and legal counsel to clients in all matters pertaining to labor, employment, and education law.

Frances is experienced in conducting and assisting with investigations pertaining to harassment, discrimination, internal affairs and other employee misconduct. Frances also advises public agencies on retirement issues, including local safety disability retirement and compliance with other state and federal employment laws.

Frances was recently selected for inclusion in Super Lawyers 2010 Northern California Rising Star in the field of Employment & Labor Law.

Retiree_Working.jpgIn an effort to keep public employers and retirees confused, the Legislature made more changes to the limitations of post-retirement employment for retirees of the California Public Employees’ Retirement System (“PERS”).  This is the second change to go into effect in less than six months.  Senate Bill 1021, passed by the Legislature on June

San Jose-San Diego Sign.jpgTwo pension reform ballot measures were overwhelmingly passed by voters in San Diego and San Jose last week.  Now, other cities, counties and districts in California that participate in CalPERS or STRS, or maintain a ’37 Act system are asking, “can we do the same thing?”  The short answer is, “no,” at least not at

Retirement Sign.jpgThe vested nature of public employee retirement benefits is a hot topic. On the one hand, there are municipalities dealing with increasing pension costs and unfunded liabilities. On the other hand, there are often times a vested right to future pension benefits for employees and retirees cannot be impaired except under very limited circumstances.  Most

Police Officer_Small.JPGThe “blue wall” is a phrase sometimes used to refer to an unofficial practice of police officers protecting or shielding the wrongdoing of a fellow officer.  In an interesting twist, one police officer claimed that when his department placed him on paid administrative leave and then failed to afford him the “professional courtesy” of intervening

Retirement2.pngOn March 14, 2012, the Board of  Administration of the California Public Employees’ Retirement System (“CalPERS”) approved lowering the “discount rate” or “rate of investment return” from 7.75% to 7.5% in its assumptions when it determines employer contribution rates.  This means that employers who contract with CalPERS for pension benefits will see their employer contribution

Jury.jpgThe California Court of Appeal recently highlighted a fundamental flaw in the California Civil Jury Instructions (“CACI”) on a cause of action for retaliation in violation of the Fair Employment and Housing Act (“FEHA”).  The instruction is missing the element of retaliatory intent or animus.  This flaw has not been brought to the forefront previously

Employee-Termination.jpgFor every death certificate filed, there is one “manner” and one or more “cause(s)” of  death.  The manner is essentially whether it was accidental, natural, suicide, homicide or undetermined, but there can be only one.  The cause, though, is more specific, such as exsanguination or a cardiopulmonary embolism and often times there is more than

Performance-Review.pngHow many times have you heard LCW attorneys tell you to timely and accurately complete performance evaluations?  You likely hear this advice at every Employment Relations Consortium training you’ve attended.  A recent case reminds us all how crucial honest performance evaluations and other forms of progressive discipline can be.

In the case of Dickerson v. Board of Trustees of Community College District No. 522,   Bobby Dickerson was employed as a part-time janitor by an Illinois Community College District.  Between 2005 and 2007, his supervisor gave him written warnings issued for his refusal to perform work assignments, failure to secure job-related equipment, and for leaving the worksite without permission.  In 2005, 2006 and 2007, Dickerson applied for full-time positions with the district, but never succeeded.  Shortly after his third failed attempt at a promotion, Dickerson complained to the district that he was being discriminated against because of his “personal traits” and a speech defect. 

Dickerson then received a performance evaluation in December, 2007 for the period of November, 2006 through November, 2007.  Dickerson received “unsatisfactory” ratings in three of the seven performance categories.  The supervisor also provided written comments such as, “Dickerson is consistently late for work and needs to improve;” “jobs need to be redone because of not listening to the job instructions;” and that Dickerson “does only the bare minimum to meet job requirements.”  Dickerson disagreed with the evaluation and filed a grievance with his union alleging the district gave him the evaluation in retaliation for his exercise of union activities.

In February, 2008, Dickerson filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) alleging the district failed to promote him to a full-time position because it believed he was mentally disabled in violation of the Americans with Disabilities Act (ADA).  Dickerson had a below average IQ which indicated “mild mental retardation.”

Shortly after filing the EEOC complaint, Dickerson approached the Vice President of Human Resources and asked what he should be doing differently in order to be promoted to a full-time position.  The Vice President replied to the effect of, “you are suing your employer and you should not be suing your employer.”

Continue Reading Documentation Of Poor Work Performance Defeated Claims Of Discrimination And Retaliation In Violation Of The ADA

This post was co-authored by Steve Berliner

By now every local agency that contracts with CalPERS is aware of the launch of the new reporting software known as My|CalPERS which will replace the former software, ACES.  My|CalPERS is set to go live with local contracting agencies on September 19, 2011.  While agency payroll staff are gaining technical training from CalPERS, agency administrators should take the time now to understand the impact and changes that will come with the My|CalPERS reporting system.

The My|CalPERS system is not only intended to be a more user-friendly and versatile reporting format, but it will also provide more information to CalPERS than was previously reported on the current reporting format.  What this means for local contracting agencies is that it may now be easier for CalPERS to identify agencies who are out of compliance with the Public Employees’ Retirement Law (PERL) and its implementing regulations.

Some of reporting changes that will come with My|CalPERS include the following:

  • Reporting hours worked by PERS retirees.  Any employee of your agency who is also a PERS retired annuitant will be registered in My|CalPERS as any other new employee.  Agencies will be required to regularly report hours worked by retired annuitants.  When a retired annuitant nears 960 hours in the fiscal year, CalPERS is supposed to notify the agency.  However, most retired annuitants may only be appointed to a position of “limited duration,” and in many instances, that appointment may not exceed 12 months.  This new reporting format may allow CalPERS to more easily identify retired annuitants who illegally work beyond this limitation.
  • Identifying employment position rather than simply coverage group.  My|CalPERS will now require employers to identify the job into which the employee has been hired.  Previously, employers simply identified employees by coverage group (e.g. “local safety,” “local miscellaneous”).  The new system will provide employers with “Appointment IDs” for employees at the time of enrollment based on the employee’s position with the employer.  This might allow CalPERS to more easily identify employees who are in the wrong membership classification, such as an employee who should be in the local safety classification, rather than local miscellaneous.  It may also enable CalPERS to identify employers who are not complying with the new PERS regulations pertaining to payrate and special compensation.
  •  Reporting special compensation category and type.  When reporting special compensation, CalPERS will now require employers to identify the category of special compensation (e.g. incentive, educational, premium, or special assignment pay, or statutory items), as well as special compensation type (the type of compensation within a category such as paramedic pay, longevity pay, patrol premium, etc.).  This is not required under the current reporting system.  Sometimes employers may mistakenly believe an item of pay is special compensation and report it as such.  The new reporting system may make it easier for CalPERS to identify pay inappropriately reported as special compensation, when it in fact is not considered as such under the PERS regulations.
  •  Distinction is made between member contributions and employer contributions.  Under the current reporting system, there is not a clear distinction made between member paid contributions and employer paid contributions.  My|CalPERS will provide new fields allowing for distinguishing between pre-tax and after-tax contributions or deductions paid by the member, as well as pre-tax contribution amounts paid by the employer.  This may allow CalPERS to more easily identify Employer Paid Member Contributions (“EPMC”) that are not consistent with PERL.
  • Coming Soon: Reporting non-CalPERS member data.  Employers will not be required to report non-member data when My|CalPERS first launches on September 19th.  However, after the initial launch, PERS will begin to define requirements for collection of non-member data (e.g. part-time, seasonal, temporary, or intermittent employees, or independent contractors).  When this eventually happens, this will make it easier for CalPERS to identify employees who should by members of PERS, but whom employers have inappropriately excluded from enrollment.  It may also make it easier for CalPERS to identify independent contractors working for an agency who should be considered “common law employees,” and therefore, also members of CalPERS.

Continue Reading New CalPERS Reporting System Launches September 19th; Employers Must Ensure Legal PERS Practices Now To Avoid Possible Audits