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On October 4, 2023, Governor Newsom signed Senate Bill (“SB”) 616 into law.

SB 616 amends the Healthy Workplaces, Healthy Families Act of 2014 (Labor Code sections 245-249) to increase the minimum number of paid sick days to which employees, including public employees, are entitled as well as the minimum number of days employees may carry over from one year of employment to the next. While these substantive changes do not apply to employees who are covered by certain Memorandums of Understanding (“MOUs”) or Collective Bargaining Agreements (“CBAs”), employees covered by such contractual agreements nevertheless will receive certain procedural protections against discrimination and retaliation related to the use of paid sick leave that they did not previously possess.

Before SB 616 takes effect January 1, 2024, here is what your agency needs to know about the law, so that your agency can revise your personnel policies as necessary to comply with the new legal obligations.

The Current Law

The Healthy Workplaces, Healthy Families Act of 2014 (Labor Code sections 245-249) establishes paid sick leave entitlements for most employees in California.

Currently, the substantive benefits and procedural protections under the law do not extend to employees who are covered by an MOU or a CBA that provides the following: (1) paid sick days, leave or time off; (2) final and binding arbitration; and (3) a regular hourly rate of pay not less than thirty percent (30%) more than the state minimum wage (i.e., $20.80 per hour on January 1, 2024 when the minimum wage increases to $16.00 per hour).

Under the current law, employers must allow covered employees to accrue paid sick leave at a rate not less than one (1) hour of leave accrued for every 30 hours of work (known as the 1:30 accrual rate). Employers may use a different accrual method, so long as employees receive a minimum of three (3) days (or 24 hours) of paid sick leave by the employees’ 120th calendar day of employment. Alternatively, current law allows employers to front-load the “full amount of leave” (i.e., providing three (3) days (or 24 hours) of paid sick leave) at the beginning of each year of employment, calendar year, or 12-month period).

While current law entitles covered employees to accrue and carry over from one year of employment to the next a certain amount of paid sick leave, the law does not require employers to allow employees to accrue more than six (6) days (or 48 hours) of paid sick leave nor does the law require employers to allow employees to carry over more than three (3) days (or 24 hours) of such leave. If an employer elects to front-load sick leave, the employer is not obligated to allow employees to carry over any sick leave that they may have remaining at the end of the year because there is the understanding that employees will receive their full allocation of sick leave at the beginning of the next year of employment, calendar year, or 12-month period.

The current law also only provides procedural protections to covered employees (i.e., those not subject to MOUs or CBAs like those defined above). Such employees receive statutory protection related to their use or attempted use of paid sick leave, including the right to use accrued sick leave and the right to be free from discrimination related to the use or attempted use of such leave and to be free from retaliation if they file a complaint with the Labor Commissioner regarding paid sick leave violations. Employees who are not covered by the Healthy Workplaces, Healthy Families Act are not entitled to these procedural protections currently.

The New Paid Sick Leave Landscape

The enactment of SB 616 will make a number of significant changes to paid sick leave entitlements for and procedural protections available to employees under the Healthy Workplaces, Healthy Families Act.

The new law does not change 1:30 accrual rate set forth under the existing law. However, for employers that use a different accrual method, the law now requires that they provide employees a minimum of five (5) days (or 40 hours) of paid sick leave by the employees’ 200th calendar day of employment. This new statutory requirement supplements the existing requirement that such employers provide employees three (3) days (or 24 hours) of paid sick leave by the employees’ 120th calendar day of employment.

If an employer uses the 1:30 method or a different accrual method, the employer must allow the employee to carry over any accrued sick leave from year to year. Using one of these accrual methods, the employer must now allow an employee to accrue up to 10 days or 80 hours of paid sick leave.

Under the new law, the alternative front-loading approach remains available to employers, so long as the employer front-loads the “full amount of leave”, which is five (5) days or 40 hours of paid sick leave. Employers that elect to front-load five (5) days or 40 hours of paid sick leave are not required to allow employees to carryover leave from one year to the next.

Finally, the new law extends the procedural protections that were previously only available to employees who were not covered by an MOU or CBA to those that are covered by such a contractual agreement.

Steps to Making Sure Your Organization Is Ready

Given these significant changes to paid sick leave law, it is important that employers act promptly in order to ensure compliance with the new legal obligations when they take effect January 1, 2024.

  1. Review the Agency’s Paid Sick Leave Policies: Review the agency’s existing paid sick leave policy to ensure that the policy satisfies the new substantive requirements regarding accrual and carry-over of paid sick leave under the Healthy Workplaces, Healthy Families Act for employees who are covered by the law and entitled to those substantive benefits.
  2. Review the Agency MOUs or CBAs: Review and analyze the agency’s MOUs and CBAs to determine whether the agreements provide for (1) paid sick days, leave or time off; (2) final and binding arbitration; and (3) sufficient compensation to employees. If the MOUs or CBAs do not satisfy the requirements for exemption from the substantive requirements under Labor Code section 245, understand that the employees covered by such MOUs or CBAs will be entitled to those substantive benefits.
  3. Consider the Status of an Employee: For employers with part-time employees, consider the front-loading approach, which will likely reduce the administrative burden associated with the monitoring hours worked by employees who may work irregular hours.
  4. Provide Procedural Protections for All Employees: Extend the procedural protections set forth under Labor Code section 246.5 to all employees, including those that are covered by an MOU or CBA that satisfies the requirements for exemption from the substantive requirements of the Healthy Workplaces, Healthy Families Act.
  5. Communicate: Communicate to affected employee organizations any changes to policy or practice that the agency must make in order to comply with the changes to the law. An agency does not need to negotiate a change that is necessary in order to comply with the law, but it should communicate that it is changing its policy or practice and provide the employee organizations an opportunity to identify any negotiable effects or impacts of the decision and request to bargain those effects or impacts.
  6. Document, Document, Document: Maintain thorough records that the agency reviewed and, if necessary, revised its policies or practices to comply with the law.
  7. Consult Trusted Legal Advisors: If you are uncertain about how the changes in the law may affect your agency or if you need guidance in updating your policies, consider consulting with your trusted legal advisors.

By following these steps, your agency can ensure that it is fully prepared for the changes that will take effect January 1, 2024.

This article was originally published in October 2019.  The information has been reviewed and is up-to-date as of October 2023.

Many workplaces and schools engage in Halloween celebrations, and with good reason.  LCW is no exception:

However, Halloween parties can be scary for risk managers, as they carry the potential to put a few skeletons in an employer’s closet.  Here are some tricks to keep your Halloween party from raising the specter of liability:

  • Employees Should Know They are Free to “Ghost”.  Participation in any Halloween festivities should be entirely optional.  Employees may not feel comfortable celebrating Halloween; for some employees, it may be prohibited by their religious beliefs.  Nobody should be required to take part, and an employer should not tolerate teasing or ostracism of an employee who opts out.  It’s only fun if everyone’s having fun.
  • When Choosing Costumes, Don’t Let the Zombies Eat Your Brain.  Dracula, Frankenstein, Mickey Mouse, Elsa and/or Anna, a cowboy, an M & M, a puppy, any of the three PJ Masks. . . there are nearly unlimited options for inoffensive Halloween costumes.  And yet, every year, some ghouls make the news by wearing costumes that would give any employer nightmares.  Human Resources professionals can reduce this risk by providing common-sense guidance as to what is an appropriate costume for a Halloween celebration at the office:
    • An attempt to “wear” or parody another culture, religion, race, or identity is not a costume; it’s an exhibit in someone else’s lawsuit for harassment or discrimination.  It should go without saying that blackface or brownface is unacceptable.  The same is true of traditional cultural dress.  A good costume does not make one’s colleagues feel caricatured, mocked, or belittled for their protected characteristics.  On the other hand, an employee should not be prohibited from wearing expressions of his or her own identity.  Context matters.
    • At some point, Halloween shifted from being an opportunity for kids to get free candy to an opportunity for adults to free themselves of their inhibitions.  Inhibitions can be a good thing at work.  A Halloween costume should not expose any part of an employee’s body that ordinary work clothes would not.  If a costume is described by the seller as “sexy” or some euphemism therefor, it is probably better saved for a non-work outing.  Bottom line: the provisions of the employer’s dress code related to appropriate attire still apply.
  • No Creepy Behavior.   Despite HR’s best efforts, some employees may wear provocative costumes to the office.  This does not give other employees license to make comments or engage in conduct that would otherwise violate the employer’s harassment or other conduct policies.  If the behavior is beyond the pale, Halloween does not provide a get-out-of-Hades-free card.
  • Stay Safe Out There. If your employees work with equipment that may impact their health or safety, extra care should be taken to ensure that costumes do not imperil employees.  Some Halloween revelers like to accessorize costumes with fake weapons; realistic-looking toys could cause legitimate fear; these should not be allowed.

If an employer utilizes these few simple tricks, the office Halloween party should be a treat, and the only stomachache a risk manager should suffer is from raiding the candy bowl.

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The California Civil Rights Department recently modified the regulation (2 CCR § 11017.1) associated with California’s Fair Chance Act.  The regulation addresses an employer’s restrictions and obligations for considering an applicant or employee’s criminal history.  The modified regulation took effect on October 1, 2023.

Employers should be aware of the modifications to this regulation, and should review their current hiring policies and practices and make any necessary or appropriate revisions.  We discuss some of the key modifications and clarifications below.

Modifications & Clarifications to the Individualized Assessment

California’s Fair Chance Act generally prohibits employers from inquiring about or using an applicant’s criminal history before the employer makes the applicant a conditional offer of employment, with some limited exceptions.

When an employer intends to deny an applicant due to conviction history (either solely or in part) a position it conditionally offered to the applicant, the employer must first conduct an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.  As part of the individualized assessment, the employer must consider, at minimum, the following factors:

  1. The nature and gravity of the offense or conduct;
  2. The time that has passed since the offense or conduct and/or completion of the sentence; and
  3. The nature of the job held or sought.

The modified regulation provides examples of the types of information that employers may consider for each of the above factors.  First, consideration of the nature and gravity of the offense or conduct may include:

  • The specific personal conduct of the applicant that resulted in the conviction;
  • Whether the harm was to property or people;
  • The degree of the harm (e.g., amount of loss in theft);
  • The permanence of the harm;
  • The context in which the offense occurred;
  • Whether a disability, including but not limited to a past drug addiction or mental impairment, contributed to the offense or conduct, and if so, whether the likelihood of harm arising from similar conduct could be sufficiently mitigated or eliminated by a reasonable accommodation, or whether the disability has been mitigated or eliminated by treatment or otherwise;
  • Whether trauma, domestic or dating violence, sexual assault, stalking, human trafficking, duress, or other similar factors contributed to the offense or conduct; and/or
  • The age of the applicant when the conduct occurred.

Second, consideration of the time that has passed since the offense or conduct and/or completion of the sentence may include:

  • The amount of time that has passed since the conduct underlying the conviction, which may significantly predate the conviction itself; and/or
  • When the conviction led to incarceration, the amount of time that has passed since the applicant’s release from incarceration.

Third, consideration of the nature of the job held or sought may include:

  • The specific duties of the job;
  • Whether the context in which the conviction occurred is likely to arise in the workplace; and/or
  • Whether the type or degree of harm that resulted from the conviction is likely to occur in the workplace.

The modified regulation states that an applicant’s possession of a benefit, privilege, or right required for the performance of a job by a licensing, regulatory, or government agency or board is probative of the applicant’s conviction history not being directly and adversely related to the specific duties of that job.

The modified regulation also requires employers to consider any evidence of rehabilitation or mitigating circumstances that is voluntarily provided by the applicant, or by another party at the applicant’s request, before or during the individualized assessment.

Modifications & Clarifications to Employer’s Notice Obligations

The modified regulations also amend and expand upon an employer’s notice obligations when, after conducting the individualized assessment, the employer makes a preliminary decision that the applicant’s conviction history disqualifies the applicant from the employment conditionally offered.  In that event, an employer is required to provide written notice to the applicant that contains all of the following:

  1. Notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer.
  2. A copy of the conviction history report utilized or relied on by the employer, if any (e.g., consumer reports, credit reports, public records, results of internet searches, news articles, or any other writing containing information related to the conviction history that was utilized or relied upon by the employer).
  3. Notice of the applicant’s right to respond to the notice before the preliminary decision rescinding the offer of employment becomes final.
  4. An explanation informing the applicant that, if the applicant chooses to respond, the response may include submission of (a) evidence challenging the accuracy of the conviction history report that is the basis for the preliminary decision to rescind the offer, or (b) evidence of rehabilitation or mitigating circumstances.
  5. Notice of the deadline for the applicant to respond, if the applicant chooses to do so, which must be at least five business days from the date of the applicant’s receipt of the notice (the modified regulation provides direction on determining when notice is received based on various methods of transmission).

The modified regulation provides a number of examples of evidence, including documentary evidence, of rehabilitation or mitigating circumstances that applicants may provide.  Employers cannot require applicants to provide evidence of rehabilitation or mitigating circumstances.  If, however, applicants choose to provide that information, employers must accept it.

The modified regulation further prohibits employers from taking a number of actions during this process, including:

  1. Requiring an applicant to provide a specific type of documentary evidence (e.g., a police report as evidence of domestic or dating violence);
  2. Disqualifying an applicant from the employment conditionally offered for failing to provide any specific type of documents or other evidence;
  3. Requiring an applicant to disclose their status as a survivor of domestic or dating violence, sexual assault, stalking, or comparable statuses; and/or
  4. Requiring an applicant to produce medical records and/or disclose the existence of a disability or diagnosis.

As under the prior regulation, if an applicant provides timely written notice to the employer that the applicant disputes the accuracy of the conviction history and is taking specific steps to obtain evidence supporting the applicant’s assertion, then the applicant must receive at least five additional business days to respond before the employer’s decision to rescind the conditional employment offer becomes final.

Also as under the prior regulation, employers must consider any information submitted by the applicant before making a final decision regarding whether or not to rescind the conditional offer of employment.  The modified regulation, however, provides that when considering evidence of rehabilitation or mitigating circumstances, employers may consider the following factors in addition to those set forth above as part of the individualized assessment:

  1. When the conviction led to incarceration, the applicant’s conduct during incarceration, including participation in work and educational or rehabilitative programming and other prosocial conduct;
  2. The applicant’s employment history since the conviction or completion of sentence;
  3. The applicant’s community service and engagement since the conviction or completion of sentence, including but not limited to volunteer work for a community organization, engagement with a religious group or organization, participation in a support or recovery group, and other types of civic participation; and/or
  4. The applicant’s other rehabilitative efforts since the completion of sentence or conviction or mitigating factors.

Employers remain obligated to provide written notice to an applicant when the employer makes a final decision to rescind the conditional offer and deny an application based solely or in part on the applicant’s conviction history.  Employers may use the sample Final Notice to Revoke Job Offer form, and other forms, from the California Civil Rights Department.

Expanded Definition of “Applicant”

The modified regulation expands the definition of “applicant” to generally include:

  1. Any individual who files a written application or, where an employer or other covered entity does not provide an application form, any individual who otherwise indicates a specific desire to an employer or other covered entity to be considered for employment;
  2. Individuals who have been conditionally offered employment, even if they have commenced employment when the employer undertakes a post-conditional offer review and consideration of criminal history;
  3. Existing employees who have applied or indicated a specific desire to be considered for a different position with their current employer; and
  4. An existing employee who is subjected to a review and consideration of criminal history because of a change in ownership, management, policy, or practice.

Certain Positions Remain Exempt from the Pre-Conditional Offer Inquiry/Use Prohibition

Under the modified regulations, certain positions continue to be exempt from the prohibition on pre-conditional offer criminal history inquiry and use.  For example, employers may continue to inquire about or use criminal history before a conditional offer of employment for positions with criminal justice agencies, or for positions for which a state, federal, or local law requires an employer to conduct criminal background checks or to restrict employment based on criminal history.

The modified regulations do, however, clarify that in order for the exemption to apply for positions for which a state, federal, or local law requires an employer to conduct criminal background checks or to restrict employment based on criminal history, the applicable law must require that the employer – and not another entity (e.g., an occupational licensing board) – conduct the criminal background check.

Modifications & Clarifications to the “Job Related and Consistent with Business Necessity” Burden Shifting

If an applicant or employee demonstrates that an employer’s policy or practice of considering criminal convictions creates an adverse impact on applicants or employees based on classifications protected by the Fair Employment and Housing Act, the burden shifts to the employer to establish that the policy or practice is nonetheless justifiable because it is job-related and consistent with business necessity.  In doing so, the employer must take into account at least the following factors:

  1. The nature and gravity of the offense or conduct;
  2. The time that has passed since the offense or conduct and/or completion of the sentence; and
  3. The nature of the job held or sought.

The modified regulation clarifies that if an employer demonstrates that its policy or practice of considering criminal convictions is job-related and consistent with business necessity, adversely impacted employees or applicants may still prevail in a claim against the employer if they can demonstrate that there is a less discriminatory policy or practice that serves the employer’s goals as effectively as the challenged policy or practice, such as a more narrowly targeted list of convictions or another form of inquiry that evaluates job qualification or risk as accurately without significantly increasing the cost or burden on the employer.

Final Note

As this article does not address every aspect of the modified regulation, employers are encouraged to contact trusted legal counsel to assist with fully understanding all of the modifications and their impact on the employer’s hiring policies and practices.

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Editorial note: On October 8, 2023, Governor Newsom vetoed AB 504. His veto message stated, “Unfortunately, this bill is overly broad in scope and impact. The bill has the potential to seriously disrupt or even halt the delivery of critical public services, particularly in places where public services are co-located. This could have significant, negative impacts on a variety of government functions including academic operations for students, provision of services in rural communities where co-location of government agencies is common, and accessibility of a variety of safety net programs for millions of Californians.

Pending California Assembly Bill 504 (Reyes) proposes to establish a fundamental right for public employees to engage in a “sympathy strike.” The bill would amend the Government Code to provide the right of public employees to demonstrate solidarity with other public employees by honoring a strike, or by refusing to enter upon the premises of or perform work for a public employer engaged in a primary strike. The bill has been passed by the state legislature and presented to the Governor for signature.

Under current law, public employers and unions can agree to “no strike” provisions that prohibit sympathy strikes. Under the pending legislation, such agreements would be voided and parties would be required to negotiate new provisions.

This blog post critiques AB 504, which is currently awaiting signature by the Governor. The post first describes how existing law prevents “essential services” workers from striking, and how public employers can negotiate line worker agreements and petition PERB to seek an injunction when such workers threaten to do so. This post describes that, under existing, law, this process is already burdensome and in many cases ineffective. This post then explains how AB 504 will make the process even more unworkable, and thereby disserve the public interest. The right of workers to strike is valuable, but AB 504 is not the way honor it.

Current Limitations on the Ability of Essential Employees to Strike

California public employees represented by labor unions have the legal right to strike. There are a few exceptions where certain employees are prohibited from striking because they are essential to public health and safety.

 “Essential services” are services essential to protect the health or safety of the public during a strike. Police officers and firefighters are obvious examples of employees who are essential to public safety. However, other public servants have also been found to be essential during a labor strike. These are typically positions staffed around the clock, such as 911 dispatchers, cooks in detention facilities, staff of special care homes, social workers in charge of emergency child welfare, and animal control officers. Essential positions may also include legal processors in criminal courts, water treatment operators, victim advocates, and IT professionals in charge of public safety technology.

The Current Procedure to Maintain Essential Services During a Strike

 Whether employees are essential is considered a “complex and fact-intensive matter.” An employer must clearly demonstrate that disruption of services for the length of the strike would imminently and substantially threaten public health or safety. This determination requires a case-by-case analysis to determine whether the public interest overrides the right to strike.

During a strike, PERB requires that employers make all possible service reductions and consider all “other personnel” who can perform the essential services. “Other personnel” include supervisors, managers, exempted line workers, temporary employees, unrepresented employees, employees represented by non-striking bargaining units, and contractors. If “other personnel” can perform the duty in the event of a strike, generally PERB will not pursue injunctive relief to enjoin striking employees on behalf of the public employer.

Because the extent to which “other personnel” are available to provide essential services is relevant to a request to enjoin essential employees, the ability of any employee to participate in a sympathy strike complicates an employer’s efforts to maintain essential services during a strike.

Procedural Flaws Already Risk the Ability of Employers to Maintain Essential Services

Even with the law as it exists now, the process for an employer to have essential employees enjoined from striking is lengthy and in many cases ineffective. The steps are:

(1) An employer must consider “other personnel” available for coverage, and attempt to negotiate with the striking union to voluntarily exempt some employees from striking (“line workers”);

(2) An employer must file an unfair practice charge (UPC) with PERB asserting that a strike which will threaten public health or safety is imminent, along with a list of any essential positions not covered by “other personnel” or “line workers;”

(3) PERB will evaluate the UPC and decide whether to pursue injunctive relief in superior court to enjoin essential workers from striking;

(4) If PERB agrees that a strike threatening public health or safety is imminent, PERB will file a petition with superior court to enjoin essential employees from striking; and

(5) The superior court will rule on petition for injunctive relief.

This procedure is already in many cases ineffective for a number of reasons. For example:

  • The California Supreme Court has determined that 72 hours’ notice of a strike gives PERB sufficient time to process a petition and seek injunctive relief. While PERB may be able to file a petition in superior court within 72 hours, it is questionable whether a court can make and enforce a ruling within that time frame. Likely, the parties will still be litigating injunctive relief in court after the strike has begun.
  • There is no real recourse for employers to address line workers who fail to appear for work during a strike. While an employer can consider post-strike discipline or an unfair practice charge, by then, the damage to public health and safety is already done.

Likely Confusion from AB 504

AB 504 will create further delay and difficulty in an already burdensome process, further threatening an employers’ ability to maintain essential services.

1. An Employer’s Assessment of “Other Personnel” Available for Coverage Will Be Thwarted.

PERB requires employers to consider coverage options from “other personnel” before petitioning to enjoin a striking employee. However, if any of the “other personnel” can go out on a sympathy strike at any time, it is unclear how employers can make this determination. An employer cannot reasonably rely on “other personnel” if they can decide to go out on a sympathy strike at any time.

If an employer is required to negotiate with, and/or petition to enjoin “other personnel” who can perform essential services during a strike, this will delay an employer’s ability to petition PERB to enjoin essential employees.

Employers will have no timely recourse to address “other personnel” who at first voluntarily agree to cover essential services, and later decide to sympathy strike, putting essential services at risk.

2. Jurisdiction is Unclear.

A public entity’s claim that a threatened public employee strike is illegal generally constitutes an unfair labor practice claim, and therefore the claim, along with the determination of which employees are essential to public health and safety, comes within PERB’s initial jurisdiction.

The amended legislation states that it “does not alter existing law relating to strikes by essential employees as set forth in judicial decisions and decisions of PERB, as promulgated or revised from time to time.” And, PERB has jurisdiction over the chapter of the Government Code which would authorize sympathy strikes under AB 504.

However, under the pending legislation, where an unrepresented employee decides to assert the right to engage in a sympathy strike, no unfair practice will have been committed. Arguably, if an unfair practice claim is not at stake, PERB may not have jurisdiction to decide whether to pursue injunctive relief to enjoin a potential sympathy striker from striking who is (1) represented by a non-striking union or (2) unrepresented. It may be that the employer should file such petitions directly in superior court rather than with PERB. At this point, jurisdiction is murky.

3. Additional Steps Convolute an Already Dysfunctional Process.

The likely additional steps required of a public employer under AB 504 to negotiate with individual sympathy strikers and potentially file separate petitions to enjoin sympathy strikers adds to the already burdensome process employers must follow to protect essential services during a strike. This increases the likelihood that essential workers will not be enjoined before a strike starts, and that public health and safety services will go uncovered.

While the right to strike is an important protected right, it should not be at the cost of public health and safety. If this bill is signed by the Governor, these procedural questions will need to be addressed without delay in order to protect the public and vulnerable residents of local communities.

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.

Flight attendant Charlene Carter sued her employer and her union alleging, among other things, that they discriminated against her on the basis of religion, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”).  In July 2022, a jury awarded Ms. Carter $5.1 million.  This sum appears to be consistent with the increase in “nuclear verdicts” (that is, jury awards that far exceed expected reasonable or rational amounts), a phenomenon that has raised serious questions and concerns in recent years.  But that jury award is not at issue here.  After all, in December 2022, the Court reduced it significantly to $810,000.  Rather, at issue here is a Texas federal district court’s order imposing very specific “training” sanctions against three attorneys.

The “training” sanctions saga stems from the Court’s order that Ms. Carter’s employer, Southwest Airlines Co. (“Southwest”), notify flight attendants of Title VII’s prohibition against discrimination on the basis of religion.  Southwest did issue a notification, which read: “the court ordered us to inform you that Southwest does not discriminate against our Employees for their religious practices and beliefs.”  (Internal punctuation and emphasis omitted.)  On August 7, 2023, the Court made its disapproval of the notification abundantly clear, writing:

It’s hard to see how Southwest could have violated the notice requirement more. Take these modified historical and movie anecdotes.  After God told Adam, “[Y]ou must not eat from the tree [in the middle of the garden],” imagine Adam telling God, “I do not eat from the tree in the middle of the garden”—while an apple core rests at his feet.  Or where Gandalf bellows, “You shall not pass,” the Balrog muses, “I do not pass,” while strolling past Gandalf on the Bridge of Khazad-dûm.

The Court held Southwest in civil contempt, and ordered it to pay Ms. Carter’s attorneys’ fees (in connection with her Motion for Contempt and Motion to Compel Proceedings), to issue a revised notice (verbatim from the Court’s Memorandum Opinion and Order Granting Sanctions in 2023 U.S. Dist. LEXIS 136623), and, as relevant here, to send three in-house attorneys to “religious-liberty training.” 

But the Court’s order did not simply stop at “religious-liberty training.”  Rather, it specifically provided that the “training” shall be provided by the Alliance Defending Freedom (an organization that describes itself as “the world’s largest legal organization committed to protecting religious freedom, free speech, the sanctity of life, marriage and family, and parental rights”), and Southwest must provide transportation, accommodation, food, or other travel expenses for the representative providing the “training.”  The training shall also be entirely at the Alliance Defending Freedom’s discretion; the organization may choose both the representative and the time set for it.

Judge Brantley Starr’s highly specific “training” sanctions did not go unnoticed.  Fix the Court, a judicial reform advocacy group, filed a complaint against Judge Starr with the Fifth Circuit Judicial Council.  Several major news outlets reported on the case and on Judge Starr’s order that the “training” be conducted by an ideologically-affiliated organization.  For its part, Southwest is currently appealing the order.  Whether the Fifth Circuit will ultimately permit it to stand remains an open question.

While the Fifth Circuit’s decision is pending, California attorneys and employers may be wondering whether they, too, may face similar “training” sanctions.  The short answer is: “training” sanctions, likely yes in certain circumstances; similar to those imposed in the Texas federal district court, likely not. 

Federal Rule of Civil Procedure 11, subdivision (c)(1) (“Rule 11”) expressly provides for “appropriate sanctions” against attorneys and litigants alike, stating in relevant part: “the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation.”  Further, as noted in Carter, at least one California district court has already imposed training sanctions in the past, citing to Rule 11, 28 U.S.C. section 1927, and the inherent powers of the courts.  (See Moser v. Bret Harte Union High Sch. Dist. (E.D.Cal. 2005) 366 F.Supp.2d 944.)  However, as in Moser, such sanctions will more likely than not entail training provided by State Bar of California-approved programs (among which attorneys and/or litigants may choose) rather than training provided by ideologically-affiliated organizations.

To reduce the risk of incurring “training” or any other types of sanctions, California employers are encouraged to consult with experienced legal counsel in connection with complex legal questions, in particular as they pertain to Title VII’s or the Fair Employment and Housing Act’s prohibitions against discrimination, harassment, and retaliation.

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.

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On August 21, 2023, the California Supreme Court’s decision in Raines v. U.S. Healthworks Medical Group significantly expanded the scope of potential liability under the Fair Employment and Housing Act (“FEHA”) to an employer’s business-entity agents that have five or more employees. 

Case Background and Analysis

Plaintiffs Kristina Raines and Darrick Figg brought a class action lawsuit.  Raines received an employment offer from Front Porch Communities and Services, and Figg received an employment offer from the San Ramon Valley Fire Protection District.  Both of their offers were conditioned on passing a pre-employment medical screening that would be conducted by defendant U.S. Healthworks Medical Group (USHW).  Plaintiffs alleged the screening included a questionnaire that had many questions about their health information with no relation to their ability to perform their jobs.  Raines alleges that after she refused to answer questions about her last menstrual period, the exam was terminated and her employment offer was revoked.  Figg alleges he answered all the questions and was hired.  Plaintiffs believed the screening tests were overbroad and unrelated to the functions of any job, and sued the testing company USHW alleging the examinations violated FEHA, even though they were not employees of USHW.

Plaintiffs’ lawsuit was filed in state court, but removed to federal court, and among other things, alleged claims under FEHA.  Section 12940(e) of FEHA generally prohibits an “employer” from requiring pre-employment medical or mental examinations of applicants or making “any medical or psychological inquiry” of an applicant; however, such exams and inquires may be made “after an employment offer has been made but prior to the commencement of employment duties, provided that the examination or inquiry is job related and consistent with business necessity and that all entering employees in the same job classification are subject to the same examination or inquiry.”  FEHA section 12926(d) defines “employer” to “include[] any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly . . . .”  

The federal district court dismissed the FEHA claim, finding that FEHA does not impose liability on agents of an employer.  Plaintiffs’ appealed the dismissal to the United States Court of Appeals for the Ninth Circuit. 

The Ninth Circuit heard oral argument and then asked the California Supreme Court to answer this question:  “Does California’s Fair Employment and Housing Act, which defines ‘employer’ to include ‘any person acting as an agent of an employer,’ Cal. Gov’t Code § 12926(d), permit a business entity acting as an agent of an employer to be held directly liable for employment discrimination?”  In the opinion of August 21, 2023, the California Supreme Court answered yes.  The court explained that the plain meaning and legislative history of FEHA, federal antidiscrimination laws, and public policy support the conclusion that an employer’s business-entity agents with at least five employees that “carr[y] out FEHA-regulated activities on behalf of an employer” can fall within FEHA’s definition of “employer” and may be directly liable for FEHA violations.  The Court specifically stated that it was not deciding the significance of any employer control over the agent’s acts that gave rise to the FEHA violation and whether its decision applies to business-entity agents with fewer than five employees.

What’s next on the horizon after Raines?

Public agencies, like other employers, routinely rely on business-entity agents to assist with employment and human resource tasks – such as pre-employment, post-offer medical and psychological examinations, fitness for duty examinations, recruiting, screening candidates, interviewing, the disability interactive process, and administering workers’ compensation or disability insurance claims.  After Raines, when these business-entity agents engage in FEHA violations, they may be directly liable for violations of FEHA.  Thus, they can not only subject the employer to FEHA liability, they can also now be directly liable themselves under Raines if they have at least five employees.  As a result, agencies may now see indemnification and hold-harmless provisions in contracts with these agents for these services.  In addition, many of these business-entity agents providing these services may be large corporations with deep pockets.  In Raines, the court notes that “plaintiffs allege that USHW … are large business enterprises operating on a national scale,” which factored into the Court’s decision.  When private business-entities with ample resources are engaged in FEHA-activities, individuals may have more incentive to bring lawsuits for perceived violations, against both the agent, and public entity employer.  (In Raines, Raines also sued the employer, but reached a settlement, and her lawsuit proceeded against the testing company).

Clear the fog when conducting pre-employment post-offer medical exams

The plaintiffs in Raines alleged questions on their health history questionnaire included asking about venereal disease, penile and vaginal discharge, problems with menstrual periods, diarrhea, constipation, and painful/frequent urination.  Under FEHA, pre-employment post-offer medical inquiries must be job related and consistent with business necessity.  Plaintiff Raines applied to be a food service aide who had routine kitchen staff duties, and Plaintiff Figg to serve as a member of the Fire Protection District’s volunteer communication reserve. In both situations, it is hard to see how these questions could all be job related and consistent with business necessity, yet broadly worded inquiries like this are often made in these types of examinations. 

While public agencies may have legitimate concerns for pre-employment medical examinations to protect their employees and members of the public, narrowly tailoring the inquiry and limiting it to job related questions can be challenging – and can lead to litigation.  The examination scope is especially critical when the examination is focused on evaluating an applicant’s mental or psychological fitness for a job, because it can easily lead to claims of discrimination against mental disabilities.  Since public agencies often contract with third party providers to administer these examinations, it is essential public agencies stay vigilant and fully understand the nature and scope of the protocols the third party providers are using to ensure the examinations are always job-related and consistent with business necessity.