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Overall, employers fared well in the outcome of published decisions related to various employment claims this year (although there were cases that went to employees).  Some of the notable cases are discussed below.

Fitness for Duty

A university professor unsuccessfully sued his employer for violations of the California Fair Employment and Housing Act (FEHA), the

Capitol.jpgThe way complaints for violation of the Fair Employment and Housing Act (“FEHA”) are processed and enforced by the Department of Fair Employment and Housing (“DFEH”) is about to undergo a significant transformation.  Motivated by a desire to close a nearly $16 billion budget deficit by reducing duplication and maximizing efficiency within State government, Governor

This guest post was authored by Heather R. Coffman 

child holding lunch.JPGIn a recently published decision, Anchorage School District v. M.P., (9th Cir. 2012) —F.3d — [2012 WL 2927758], the Ninth Circuit Court of Appeals sent a cool message to school districts struggling to provide special education services to children with hyper-litigious parents: Parents’ poor behavior

US Supreme Court_2.jpgPublic agency officials and employees may read newspaper articles about recently decided landmark cases in public sector labor and employment law, and may feel relief, anger, surprise, or vindication in the result.  This is especially true if the decision impacts how the agency functions on a day-to-day basis.  These same individuals may also find developing

couthouse-flag.JPGPublic employers in California have a powerful tool available to them in California’s anti-SLAPP statute, California Civil Procedure Code section 425.16.  This availability was confirmed in a recent case named Vargas v. City of Salinas.  Not much fanfare accompanied the Vargas decision, which issued last November.  But the Court of Appeal’s decision, on constitutional grounds, not to deny public employers access to this statute is significant. 

To understand why, let’s review what an anti-SLAPP motion is.  “SLAPP” stands for “strategic lawsuit against public participation.”  In general, SLAPP suits are understood to be lawsuits filed by a plaintiff to stifle a defendant’s exercise of free speech rights.  The term “strategic” more or less serves as a euphemism for “meritless.” SLAPP’s are considered bogus lawsuits designed only for the purpose of bludgeoning the defendant, and threatening those who wish to avoid being sued, into refraining from criticizing the plaintiff, or from making public statements contrary to the plaintiff’s interests.  Further, the common understanding is that a plaintiff who files a SLAPP knows that, even though it is meritless, it will take months if not years for a court or jury to make that determination.  By then, the defendant will have already been stigmatized by having a lawsuit pending for a considerable time, and been required to spend substantial attorney’s fees to dispose of it. 

California’s anti-SLAPP statute serves as a remedy by targeting these two harms caused by SLAPPS at an early time.  First, it remedies the lingering effect of the lawsuit by allowing the defendant at the very outset of the case to demand that the plaintiff present evidence showing that plaintiff has a “probability” of prevailing.  The court will dismiss the case if plaintiff cannot make this early showing.  Second, the statute alleviates the financial harm to the defendant by requiring plaintiff to pay the defendant’s attorneys’ fees if the case is in fact dismissed pursuant to the statute.  

If your agency is sued, how can you determine if the lawsuit can be disposed of early under the anti-SLAPP statute?  This will depend initially on whether the lawsuit arises from what the statute defines as protected activity (i.e., the first step of the anti-SLAPP statute’s test).  The fairly broad definition is as follows – a lawsuit will be covered if it arises from any of the following by the defendant: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”  

Items (1) and (2) of this definition are of particular importance to public agencies.  They encompass within the scope of the anti-SLAPP statute statements before or in connection with any “official proceeding authorized by law,” regardless of whether the statements relate to a matter of public interest.  An “official proceeding” can include an administrative proceeding, and also an investigation by a public agency in preparation for initiating such a proceeding.  For example, in Vanginderen v. Cornell University, a federal court in California found that anti-SLAPP protection applied to the Cornell University Department of Public Safety’s investigation into the plaintiff’s involvement in alleged thefts, because the investigation was preparatory to the potential initiation of official proceedings against the plaintiff. 


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This guest post was authored by James Oldendorph

Signing-Document.JPGOn August 3, 2011, the Ninth Circuit U.S. Court of Appeals held that a public employee had not knowingly waived his right to a due process pre-termination hearing by signing a “last chance agreement,” and that the public employer violated his due process right by not

This guest post was authored by James E. Oldendorph Jr.

In October 2009, Metrolink installed two inward-facing cameras in all of its locomotive cabs.  While one of the inward-facing cameras records the control panel and gauges, the other is located seven to eight feet from where the locomotive engineer is seated inside the cab and captures a 270 degree span of the interior of the cab, including a view of the engineer.  There is also a forward-facing camera which does not capture any activities or sounds in the locomotive cab, but records video images of the rail right of way, tracks, and train signals.  Metrolink installed cameras and microphones in its locomotive cabs in the wake of the tragic Chatsworth railroad collision of September 12, 2008, involving a Metrolink train in which 25 people were killed and over 100 injured.  The National Transportation Safety Board determined that the collision was caused in part by an engineer using a cell phone to send text messages while operating the train.

On October 20, 2009, the union for a class of Metrolink locomotive engineers, and one individual engineer, sued seeking declaratory and injunctive relief against Metrolink and the removal of the cameras from the locomotive cabs.  The plaintiffs contended that the engineers had a reasonable expectation of privacy in the locomotive cabs, and that Metrolink’s audio and video monitoring system violated the engineers’ procedural and substantive due process rights.  Plaintiffs also asserted that Metrolink’s actions were preempted by state law.

On June 1, 2011, Los Angeles County Superior Court Judge Luis A. Lavin granted Metrolink’s motion for summary judgment on all causes of action, finding that there were no issues of material fact warranting trial.  This ruling resulted in a victory for Metrolink on all claims and judgment in its favor.

Judge Lavin found that Metrolink’s camera policy and system did not violate the engineers’ constitutional right to procedural due process because they failed to establish that they were deprived of any life, liberty or property interest or of any statutorily conferred benefit, and failed to establish that the camera policy undermined their collective bargaining agreement with their employer, Amtrak.  Plaintiffs further could not show that Metrolink’s policy and system violated their substantive due process rights in that they failed to show any form of outrageous or egregious conduct constituting a true abuse of power on the part of Metrolink.  Additionally, Judge Lavin determined that Metrolink’s implementation of the camera policy reasonably related to a proper legislative goal of promoting safety on the railways.


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Social networking websites have become a treasure trove for lawyers looking for damaging information that could be used to impeach an opposing party or any adverse witnesses in a lawsuit.  As a result, the New York Bar Association’s Committee on Professional Ethics looked into the following question:

May a lawyer view and access the Facebook