We are excited to continue our video series – Tips from the Table. In these videos, members of LCW’s Labor Relations and Collective Bargaining practice group will provide various tips that can be implemented at your bargaining tables. We hope that you will find these clips informative and helpful in your negotiations.
Supreme Court Clarifies Low Burden for Employees to Establish Harm Supporting Discriminatory Job Transfer Claims Under Title VII
On April 17, 2024, the Supreme Court of the United States clarified the standard of harm an employee must demonstrate to support a discriminatory job transfer claim under Title VII of the Civil Rights Act.
In a unanimous decision, the Court held in Muldrow v. City of St. Louis that an employee challenging a job transfer under Title VII need not show that the allegedly discriminatory transfer produced a significant employment disadvantage. Rather, an employee need only show that the transfer brought some harm with respect to an identifiable term or condition of employment.
The Court’s decision overturned precedent in the Eighth Circuit, and other Circuits, mandating that employees challenging a transfer under Title VII must meet a heightened threshold of harm requirement, described as “significant,” “serious,” “materially adverse,” or by similar terms establishing a heightened bar. As the Court explained, to demand “significance” where the law does not require it inappropriately adds words to what Congress enacted. The language of the law only requires that employees show an allegedly discriminatory transfer brought about some “disadvantageous” change in employment terms or conditions.
The practical effect of Muldrow is that employees challenging a job transfer under Title VII will have an easier time establishing that the transfer produced some harm sufficient to support their claim. In his concurring opinion, Justice Alito speculated the ruling would not effectively alter how the statute is interpreted, explaining that lower courts may reach similar conclusions as before, just with careful wording of their decisions to comply with the terminology of the new Muldrow opinion.
Still, the ruling should allow a larger percentage discriminatory transfer claims to survive to trial or settlement, and will likely result in more such claims being filed. Employers should certainly take care to ensure that job transfers and other employment decisions are made without discriminatory motive or impact.
Notably, the transfer in question in Muldrow involved a fairly significant change in assignment for a long-time, respected police sergeant.
Sergeant Jatonya Clayborn Muldrow worked as a plainclothes officer in the St. Louis Police Department’s specialized Intelligence Division for nearly ten years. In that role, she investigated public corruption and human trafficking cases, and oversaw the Gang Unit and Gun Crimes Unit. By virtue of her position, Sgt. Muldrow was also deputized as a Task Force Officer with the FBI, granting her FBI credentials, an unmarked take-home vehicle, and the authority to pursue investigations outside of St. Louis.
Sgt. Muldrow’s job performance was exceptional. In 2017, the outgoing commander of the Intelligence Division referred to her as a “workhorse” and considered her his most reliable sergeant. But the new Intelligence Division commander told the Department that he wanted to replace Sgt. Muldrow with a male officer. The new commander – who often referred to Sgt. Muldrow as “Mrs.” rather than “Sergeant” – testified that a male officer seemed like a better fit for the Division’s dangerous work.
The Department approved the transfer and Sgt. Muldrow was transferred to a uniformed position. While her rank and pay remained the same, her responsibilities, perks, and schedule changed. Sgt. Muldrow no longer worked with high-ranking officials on priority matters in the Intelligence Division. Rather, her new duties involved supervising day-to-day activities of neighborhood patrol officers and handling various administrative matters. Sgt. Muldrow lost her FBI status and vehicle, and her workweek went from a traditional Monday-through-Friday week to a rotating schedule that included weekend shifts.
The Court found that Sgt. Muldrow’s allegations, if proven true, “left her worse off several times over,” and noted that it did not matter that her rank and pay remained the same or that she could still advance to other jobs. Title VII prohibits making a transfer based on sex with the consequences Sgt. Muldrow described.
Reporting Allegations of Peace Officer Misconduct: Checking in on the Implementation of Senate Bill 2
Senate Bill 2 (SB 2), enacted in 2021, transformed and expanded the role of the Commission on Peace Officer Standards and Training (POST). Most of the mandates in SB 2 took effect on January 1, 2023. As many readers are likely aware, one of the most significant changes brought on by SB 2 is the obligation that law enforcement agencies report all allegations of “serious misconduct” by peace officers to POST. SB 2 established the Peace Officer Standards Accountability Division, which reviews investigations conducted by law enforcement agencies and can conduct its own investigations into misconduct that could provide grounds for suspension or revocation of a peace officer’s certification.
This post serves as a reminder to law enforcement agencies that when conducting internal investigations regarding alleged wrongdoing by any of their peace officers, the agency must evaluate whether each allegation triggers an additional obligation to report that allegation to POST.
Public agencies must report all allegations of “serious misconduct” by a peace officer. Penal Code section 13510.8 and Commission Regulation 1205 define “serious misconduct” as follows:
- dishonesty relating to the reporting, investigation, or prosecution of a crime, or relating to the reporting of, or investigation of, misconduct by a peace officer;
- abuse of power, including, but not limited to, intimidating witnesses, knowingly obtaining a false confession, and knowingly making a false arrest;
- physical abuse, including, but not limited to, the excessive or unreasonable use of force;
- sexual assault as described in subdivision (b) of Penal Code section 832.7, the definition of which extends to acts committed amongst members of any law enforcement agency;
- demonstrating bias on the basis of actual or perceived race, national origin, religion, gender identity or expression, housing status, sexual orientation, mental or physical disability, or other protected status in violation of law or department policy or inconsistent with a peace officer’s obligation to carry out their duties in a fair and unbiased manner (see below for recent developments regarding this category of misconduct);
- acts that violate the law and are sufficiently egregious or repeated as to be inconsistent with a peace officer’s obligation to uphold the law or respect the rights of members of the public;
- participation in a law enforcement gang;
- failure to cooperate with an investigation into potential police misconduct; and
- failure to intercede when present and observing another officer using force that is clearly beyond that which is necessary, as determined by an objectively reasonable officer under the circumstances.
Given that most provisions of SB 2 went into effect only on January 1, 2023, there is not an abundance of practical guidance regarding the implementation of SB 2. However, below we highlight some information relating to common questions about SB 2’s reporting requirement.
Timing of reporting. Penal Code section 13510.9 requires agencies to report to POST within 10 days of receiving the allegation. In addition, agencies must report the final disposition of any investigation that determines a peace officer engaged in conduct that could render a peace officer subject to suspension or revocation within 10 days.
While there is no penalty listed in SB 2 for failing to report an allegation of misconduct to POST within 10 days, POST’s Frequently Asked Questions (FAQ) page regarding SB 2 states “it would be a clear violation of statute.”
Timing of POST investigation in relation to agency’s investigation. POST has indicated that it will wait for the agency to conclude its internal investigation before conducting its own investigation (if any). POST’s FAQ page offers the below guidance:
How will POST investigations be conducted so as not to interfere with each agency’s individual investigation?
POST will rely on the employing agency to conduct the investigation first. Allegations of serious misconduct received directly to POST will be referred to the employing agency for investigation. The findings of the agency’s investigation will be forwarded to POST for review. Any subsequent investigation needed would occur after the conclusion of the agency investigation.
In addition, POST will wait for an agency to complete its investigation before POST begins its decertification review, “unless unique circumstances dictate otherwise.”
Allegations without merit. POST has advised that all allegations of “serious misconduct” must be reported, including allegations the agency believes do not have any merit. POST’s FAQ page states “[t]here are no statutory exceptions for frivolous, unfounded, or exonerated allegations.”
Possible development regarding SB 2 interpretation. One allegation of “serious misconduct” that law enforcement agencies commonly receive is an allegation that a peace officer demonstrated bias. On December 29, 2023, POST published a Notice of Proposed Regulatory Action proposing to “expand the definition of ‘demonstrating bias’ [in Commission Regulation 1205] to clarify what the Commission considers a demonstration of bias.” In POST’s Initial Statement of Reasons, POST explained that “[a]fter thorough review of PC § 13510.8 and Commission Regulation 1205, it was determined that there needs to be additional regulatory language to define what it means for a peace officer to be ‘demonstrating bias.’”
The text of the proposed supplement to Commission Regulation 1205 is as follows:
An officer is “demonstrating” bias for purposes of this Regulation when the officer either shows or displays, by words, actions or other conduct, prejudice, intolerance, contempt, or hatred towards one or more persons due to that person’s membership within a class of persons identified in Penal Code section 13510.8(b)(5), when such words, actions or other conduct would lead a reasonable person to conclude that the officer has not fairly and impartially performed, or will not fairly and impartially perform, his or her law enforcement duties.
The public comment period for the above proposed amendment ended on February 12, 2024, and the amended regulation is under review by the Office of Administrative Law.
LCW will continue to monitor developments in this evolving area.
How Schools Can Support Students Observing Fasting Holidays
For practicing Muslims, Ramadan began on March 10, 2024, and concludes on Tuesday, April 9, 2024. Ramadan is a month in the Islamic calendar devoted to fasting and prayer. Although not all Muslim students participate in fasting during this month, many schools throughout California do serve students who are abstaining from food and drink from sunrise to sunset. During Ramadan, the traditional expectations of the school day or classes may be difficult for students who are fasting.
Students’ Rights During Ramadan and Other Religious Fasting Holidays
Among other things, the First Amendment prohibits public schools from establishing policies that discriminate against a particular religion or belief. Where school officials excuse students from class or provide accommodations based on nonreligious needs, school officials must treat religiously motivated requests similarly. Additionally, Section 220 of the California Education Code prohibits any educational institution that receives or benefits from state financial assistance or enrolls students who receive state financial aid from discriminating based on religion. Finally, schools may want to provide accommodations for students who are participating in religious fasting in order to achieve their mission and purpose, act with respect, and to demonstrate value of students’ religious beliefs.
Section 46014 of the California Education Code allows public school students to be excused from school to participate in religious exercises or to receive moral and religious instruction, with the written consent of their parents or guardians. Thus, schools may excuse students on Eid al-Fitr, on Wednesday, April 10, 2024.
Finally, most schools have policies and procedures that encourage instructors and teachers to create and foster a learning environment that is free from discriminatory attitudes, practices, events, or activities, and to prevent acts of hate or violence. Accommodating and supporting fasting students is likely both consistent with legal requirements and in furtherance of school organizational missions.
Ideas to Support Fasting Students
Schools may adopt several easy and inclusive strategies to accommodate and support students. Below are some common accommodations or ideas to consider for the learning environment for fasting students:
- Permit students to use an empty/quiet area of the classroom for prayer/religious observances.
- Excuse absences during religious holidays, and ensure students who miss class can make-up missed assignments.
- Allow alternative activities or make-up times for course work that requires strenuous physical activity, especially physical education.
- Allow fasting student to adjust their schedules for exams, or other demanding tasks, to accommodate their energy levels.
- Avoid penalties for students who may feel lethargic during the day.
- Provide students an alternative space during lunch or other times that students are eating.
- Provide positive behavior incentive systems that do not rely on food, so as not to exclude students who are fasting.
- Allow fasting students to choose seating arrangements that are comfortable for them, especially during activities or events that include food.
- Collaborate with students’ families to understand specific needs or concerns, and work together to provide appropriate support.
On the Horizon
The California Legislature introduced Assembly Bill 2377 in February 2024. If passed, this bill would excuse students in public schools K-12 who are participating in religious fasting from engaging in any physical activity components of a physical education course. LCW is monitoring this legislation closely, and will provide updates and guidance if necessary. In the meantime, schools should follow accommodation processes when requested to support the needs of students who are fasting during Ramadan, or any other religious holiday where fasting is practiced.
U.S. Supreme Court Decides New Rule for Government Officials and Social Media
On March 15, 2024, the U.S. Supreme Court issued a long-awaited decision in Lindke v. Freed an important case concerning state action, the First Amendment, government officials, and social media. The decision provides clarity on how First Amendment free speech standards apply to government officials in curating public comments on their social media pages.
In Lindke v. Freed, Port Huron City Manager James Freed maintained a public Facebook page that anyone could see and comment on. Freed posted primarily about his personal life, but also posted content related to his job as City Manager and solicited feedback from the public on issues of concern. Freed responded to comments from city residents about community matters, and occasionally deleted comments that he considered “derogatory” or “stupid.” During the COVID-19 pandemic, Freed posted about the pandemic. Kevin Lindke commented on some of Freed’s posts and expressed discontent with the city’s response to the pandemic. At first, Freed deleted Lindke’s comments. Then, Freed blocked Lindke from commenting on Freed’s posts altogether. Lindke sued Freed for violation of his First Amendment rights, alleging that Freed engaged in state action when he deleted Lindke’s comments and then blocked him. Freed prevailed at the District Court and the Sixth Circuit affirmed. Lindke appealed and the U.S. Supreme Court granted review.
In its decision, the U.S. Supreme Court articulates a test for determining, under federal law, when a government official who prevents someone from commenting on the official’s social media page engages in state action. For such conduct to be state action, the official must have both:
- Possessed actual authority to speak on the state’s behalf on a particular matter; and
- Purported to exercise that authority when speaking in the relevant social-media posts.
The first part of the test is based on the fundamental prerequisite that conduct that allegedly causes the deprivation of a federal right must be fairly attributable to the state. For example, Freed must have possessed actual state authority to post city updates, register citizen concerns, and otherwise communicate with residents on behalf of the city. Such actual authority must be “rooted in written law or longstanding custom to speak for the State,” and must extend to speech of the sort that caused the alleged rights deprivation.
Under the second part of the test, the official must speak in furtherance of their official responsibilities. The Court noted that if Freed’s Facebook page had carried a label or disclaimer stating that his page was personal or the views expressed his own, “he would be entitled to a heavy (though not irrebuttable) presumption that all of the posts on his page were personal.” The Court acknowledged that government officials have private lives and their own constitutional First Amendment rights to speak about their job and maintain some control over speech on their personal social media pages. However, since Freed’s Facebook page was not identified as personal, it allows for the possibility that his page contained a mix of personal posts and posts in his capacity as a government official. The Court found that this ambiguity requires a fact-specific inquiry into the content and function of each of Freed’s posts from which Lindke’s comments were deleted or from which Lindke was blocked from commenting.
The Sixth Circuit will now review the case in consideration of the U.S. Supreme Court’s decision and the above test.
In consideration of the decision in Lindke v. Freed, public officials may want to consider clearly differentiating between their personal and official social media pages, including placing disclaimers on their personal social media pages (e.g., the page is personal and the views expressed are their own), and keeping their personal social media pages private.
On March 15, 2024, the U.S. Supreme Court also vacated the decision in O’Connor-Ratcliff v. Garnier (Lindke v. Freed’s companion case), and remanded the case back to the Ninth Circuit to review it in a manner consistent with the Lindke v. Freed decision. The U.S. Supreme Court had granted review of both cases to resolve a split between the Sixth District and the Ninth District on this important issue. We will keep you advised of developments with Lindke v. Freed and O’Connor-Ratcliff v. Garnier.
Public Safety Video Briefing: SB 400 Clarifies When Agencies Can Announce Officer Terminations – March 2024
Our short Public Safety Video Briefings will tackle cutting-edge issues and core principles relevant to public safety employers. We hope you find these videos useful and thought-provoking.
Tips from the Table: Union Representatives Who Cross The Line
We are excited to continue our video series – Tips from the Table. In these videos, members of LCW’s Labor Relations and Collective Bargaining practice group will provide various tips that can be implemented at your bargaining tables. We hope that you will find these clips informative and helpful in your negotiations.
Workplace Violence Prevention Plan Implementation: Answers to Frequently Asked Questions
With the enactment of Senate Bill (“SB”) 553, the legislature amended Labor Code section 6401.7 and added Labor Code section 6401.9, requiring employers to adopt and implement a Workplace Violence Prevention Plan (“WVPP”) and corresponding training for their employees by July 1, 2024.
As the effective date for these statutory requirements rapidly approaches, LCW has developed a number of resources to help employers develop a WVPP for their worksites and training for their employees in order to comply with these new obligations (See here for additional information about LCW offerings).
On March 1, 2024, the Division of Occupational Safety and Health (“DOSH”), which is responsible for enforcing these sections of the Labor Code, published a model WVPP and provided guidance on ways employers may comply with the requirements set forth in Labor Code section 6401.9.
Since the enactment of the bill, employers have had questions regarding the WVPP and the training requirements. Below are some common questions and the responses to them:
- What employers need to comply with SB 553?
SB 553 is applicable to almost all California employers.
The limited exceptions include:
(1) Employers that comply with Section 3342 of Title 8 of the California Code of Regulations (“CCR”) (e.g., health facilities, home health care and home based hospice, emergency medical services and medical transport, drug treatment programs, outpatient medical services to the incarcerated);
(2) Employers that are law enforcement agencies that are a “department or participating department” (See 11 CCR § 1001) and that have received confirmation of compliance with the Commission on Peace Officer and Training (“POST”) Program from the POST Executive Director, but only if all facilities operated by the agency are in compliance;
(3) Employers that have only remote employees (i.e., there is no workplace); and
(4) Employers that have fewer than ten (10) employees working at a place at any given time and in a place that is not accessible to the public, if the workplace has a compliant Injury and Illness Prevention Plan (“IIPP”).
- What exactly needs to be completed by July 1, 2024?
By July 1, 2024, all employers must implement a WVPP and train all employees.
This means that all employees must be trained by July 1, 2024.
- If we already have an Injury and Illness Prevention Plan or Emergency Preparedness Plans in place, do we still need to comply?
Yes, even if an employer has a compliant IIPP, Emergency Preparedness Plan, or even an existing Workplace Violence Prevention Policy, the employer is still subject to the requirements of SB 553.
The new law implemented very specific requirements so it is unlikely that any existing plans or policies will address each and every statutory requirement set forth in Labor Code section 6401.9. Please also keep in mind that existing policies and procedures may need to be updated to correspond with your WVPP.
- Can a law firm like LCW do the trainings for me?
Yes!
However, the trainings must be tailored to an employer’s specific WVPP. Thus, in order to provide trainings, LCW will need to work with you to align the training with your customized WVPP.
The training also must include an opportunity for employees to ask questions of a person knowledgeable about the employer’s plan, so LCW recommends that someone familiar with the employer’s workplace also be present during the training to answer specific questions about the plan and workplace.
- Can the WVPP training be combined with other required annual trainings like sexual harassment?
The WVPP training requirements are separate and distinct from the annual training requirements related to the prevention of sexual harassment.
However, the separate trainings may be provided back-to-back in order to discharge the employer’s legal obligation for these trainings.
- How do I know if I have a multiemployer worksite? What does the coordination requirement entail in this context?
Multiemployer worksite is a term used to refer to a workplace where there is more than one employer that may be cited by DOSH in the event that an employee is exposed to a workplace hazard, such as a hazard related to workplace violence.
Employers that may be cited for hazards related to workplace violence include:
(1) The employer of the employees who were exposed to the hazard;
(2) The employer that actually created the hazard;
(3) The employer that was responsible, by contract or through actual practice, for safety and health conditions on the worksite (i.e., the employer who had the authority for ensuring that the hazardous condition is corrected); and
(4) The employer who had the responsibility for correcting the hazard.
The most common type of a multiemployer worksite is a construction site where employees of various contractors may be working simultaneously.
However, multiemployer worksites may also exist where an employer hires another employer to provide or perform services at the workplace, such as janitorial services or maintenance or repair work.
If your organization uses services provided by another employer at your workplace, it is likely that DOSH would consider your workplace to be a multiemployer worksite.
In terms of the statutory obligations related to coordination with another employer on a multiemployer worksite, the Labor Code requires that all employees are trained on the WVPP and that all workplace violence incidents are reported, investigated, and recorded.
Thus, the WVPP must clearly establish to whom employees report incidents of workplace violence or hazards related to workplace violence and which employer is responsible for investigating the incident or hazard and for taking corrective action.
Additionally, the employer or employers of employees who experienced the workplace violence incident must record it in their Violent Incident Log.
- Do elected officials and volunteers need to be trained on the WVPP?
No, employers are only required to provide training to employees.
“Employee” is defined as “every person who is required or directed by any employer, to engage in any employment, or to go to work or be at any time in any place of employment.” (8 CCR § 347.)
However, despite the fact that elected officials and volunteers are not expressly covered by the Labor Code or subject to the WVPP, it would be prudent for employers to develop a workplace violence prevention plan for such individuals to ensure that proper action is taken in response to any threats of violence or incidents of workplace violence directed at such individuals.
- Does the Labor Code requirement that employees be informed of the results of investigations into workplace violence and corrective actions mean that employers need to disclose confidential employee information?
No, the Labor Code only requires employers to inform employees of the results of the investigation and any corrective actions that will be taken to address the hazard or incident of workplace violence.
There is no requirement under the Labor Code that an employer disclose confidential information about employees. Employers should also be careful when completing the required Violent Incident Log to omit any personally identifying information of affected employees.
Please see LCW’s previous post for additional information regarding SB 553. You may also access our resources regarding the WVPP and trainings here.
Six Do’s and Don’ts of Workplace Investigations
Conducting comprehensive and accurate workplace investigations is an integral part of an employer’s duties. Whether the investigation involves allegations of minor violations of policy or more serious allegations of discrimination or harassment, each instance should be carefully analyzed to ensure all the relevant facts are uncovered so the employer can respond appropriately. If left unaddressed, such allegations may later turn into complaints of retaliation, failure to prevent harassment, or discrimination/ bias in the workplace. Compiled below are three common pitfalls to avoid, followed by three best practices to implement when conducting workplace investigations to help agencies ensure accuracy and prevent future liability.
DON’T:
Wait to get started.
Perhaps the most important piece of advice when dealing with complaints of misconduct is to begin acting on them immediately. For example, employers have a legal obligation to promptly investigate all complaints of harassment, discrimination, or retaliation. Additionally, for public safety departments, investigations run up against a one-year statute of limitations to impose any discipline for misconduct. Accordingly, it is imperative that agencies begin as soon as reasonably practicable, ideally within a few days, in order to ensure plenty of time to gather the required information and evidence needed to evaluate next steps. If you are using an outside investigator, ensure they are available on short notice. Some are in high demand and won’t be able to get to your matter quickly. There are plenty of good investigators who can be available soon, so do your research!
Be unorganized.
Disorganization is a very common pitfall for internal investigations and it can lead to troubling problems in the future when trying to impose discipline. The final investigation should be based on an unassailable record of what was reviewed, who was interviewed, when each step was completed, and what was done with the findings. These key elements will be scrutinized over and over again, so it is important to be systematic in your execution!
Be afraid to consider interim actions.
In some circumstances, it may be necessary to take interim steps to resolve the harm giving rise to the complaint while the investigation is ongoing. For example, if allegations involve discrimination or harassment, employers should consider whether a temporary assignment transfer or administrative leave is appropriate for the accused wrongdoer. However, be careful when considering transferring or placing the complainant on administrative leave, as it could be viewed as retaliation.
DO:
Document everything.
When in doubt, write it out! As noted above, it is likely for any investigation to be heavily scrutinized, meaning that the investigator will have to defend their methodology and contents of their investigation report again and again. The best defense is always a good offense, so investigators should be proactive in creating an extensive paper trail of their investigation. Be sure to collect and review all complaints, background documents, and additional evidence that is provided during the course of the investigation. It is also a good practice to record interviews, or if the witness does not wish to be recorded, make note of that in the record and take detailed notes of the interview too. If possible, having a second person available to take notes when no recording is being made can help ensure no details of their statement are overlooked. The final investigation report should include all evidence the investigator considered in making their findings, as well as provide detailed analysis of how that evidence supports the findings. An expansive investigation record is irreplaceable.
Consider an outside investigator.
In some circumstances, to ensure an unbiased investigation, it may be necessary to consider an outside investigator. This may be the case when the subject is a high-ranking employee or involves a high-profile incident where using an outside investigator will enhance the credibility of the investigation. An outside investigator can also be useful when the issues involved are complex, or when claims of discrimination/harassment/retaliation are involved, to help reduce future allegations that the investigation was conducted with bias. When choosing an outside investigator, be sure to ask for their familiarity and experience investigating the particular issues at hand, and perhaps even ask for a redacted final report from a past investigation to analyze their work product. It’s okay to be picky to ensure that you are doing your due diligence.
Take prompt corrective action.
Lastly, after the investigation is complete, be sure to take prompt corrective action, if needed. Delaying corrective action leaves the door open for claims of retaliation from the complainant and allegations of bias if an accused stays on administrative leave for an inordinately long period of time. If misconduct is involved, it is in everyone’s best interest for it to be resolved quickly and efficiently.
Internal investigations can seem daunting; however, following these tips will help ensure the process is as thorough and efficient as possible. And in all circumstances, if questions arise, it is highly recommended to consult with trusted legal counsel.
Tips from the Table: Logistics of Preparing for Negotiations
We are excited to continue our video series – Tips from the Table. In these videos, members of LCW’s Labor Relations and Collective Bargaining practice group will provide various tips that can be implemented at your bargaining tables. We hope that you will find these clips informative and helpful in your negotiations.