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In Texas v. Johnson, the Supreme Court summarized the “bedrock principle” of the First Amendment: “that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” But what if the idea is being pushed by an all-knowing algorithm . . . and the idea being pushed is NyQuil chicken?

TikTok has grown in popularity in recent years among a wide range of demographics. Its users often find themselves in niche categories such as BookTok, Cottagecore, and ThriftTok via one of the app’s most notable features: the algorithm.

Through the algorithm, TikTok provides users with a never-ending flow of videos that are curated to the user’s interests. The algorithm’s ability to know almost exactly the content a user may want to consume is both irresistible and uncanny. This early stage machine omniscience prompted scrutiny from local and federal government agencies.

Scrutiny on Data Security

Perhaps the most newsworthy issue is users’ security. ByteDance, TikTok’s parent company, maintains its headquarters in Beijing and is incorporated in the Cayman Islands. Unsurprisingly, this ownership structure has raised some eyebrows. For example, the House Energy and Commerce Committee held a congressional hearing earlier this year and grilled TikTok’s CEO with their safety concerns.

With the increased scrutiny came increased regulation. President Joe Biden signed legislation that banned the app from government devices. Other countries in the “Five Eyes” security alliance (the intelligence alliance composed of Australia, Canada, New Zealand, the United Kingdom and the United States) enacted similar steps. Effective this new year, Montana will ban the app in the entire state including for private individuals.

While many dismiss the actions as unnecessarily alarmist, there are bits of validity in the concerns. Last year, TikTok admitted to using app data to track down journalists’ sources when ByteDance used the app’s records to access journalists’ IP addresses to see if they were in the same location as employees suspected of leaking information. Last month, users of ByteDance’s video editing app CapCut sued the company alleging privacy concerns. According to the complaint, CapCut harvests “unique identifying information, biometric data, geolocation, telephone numbers, and other private or confidential data, in violation of state and federal consumer protection laws.”

One after another, countless government entities—countries, states, universities—began banning TikTok from government devices. Can your agency do the same?

My Device, My Choice

As a general rule, public agencies should have policies regulating employee use of agency-owned e-mail accounts, computers, and other devices. These policies should advise that employees have no expectation of privacy or right of privacy concerning their activities on agency-owned devices. This takes care of potential liability for a claim of invasion of privacy.

Besides the privacy concern, employees may argue that banning a social media platform on agency devices restricts their freedom of expression. In the context of agency-owned devices, the focus for a First Amendment analysis is on whether the agency, by supplying devices with access to other social media, created a designated or limited “public forum.”

The agency can avoid the risk of creating a designated or limited “public forum” by instituting an “Acceptable Use” policy. This policy should restrict use of agency-owned devices to work-related purposes only, with an accommodation for incidental personal use. It can even explicitly state that the devices do not create any types of public fora. This allows the agency to discipline employees for breaking the Acceptable Use policy, and not for any protected speech. So, an employee who decides to use an agency-owned device to engage in speech on TikTok would not be disciplined for engaging in the protected speech. Instead, the employee can be disciplined for violating the Acceptable Use policy.

Don’t Take it Personal

It is much harder to regulate an employee’s use of their personal devices on their own personal time—including whether or not the employee chooses to install TikTok on their devices. The ongoing litigation over Montana’s statewide ban of the app from government and personal devices illustrates these challenges.

Employees likely have a reasonable expectation of privacy in the contents of their personal devices. Under California Labor Code, section 980, employers cannot even require employees or applicants to disclose their social media accounts.

Employers face another uphill battle on the free expression front. Employees may argue that any security concern can be mitigated by prohibiting employees from bringing their personal devices into the workplace. Outside the workplace, they can then argue, any restrictions on TikTok serve only to restrict the employee’s ability to engage in free expression.

Consequently, restricting TikTok on employees’ personal devices is likely inadvisable. Still, there are varying levels of security concerns depending on the various policies an agency may impose on use of personal devices. For example, an agency may allow employees to use their personal devices to access agency-owned email accounts, payroll services, or scheduling apps. An agency may also, instead of supplying a device, reimburse the employee for their existing personal device. These situations open up a multitude of issues to consider. If your agency decides that there is value in restricting TikTok from personal devices, such a decision should be guided by legal counsel.

Should your employees be on TikTok?

The threshold choice of restricting TikTok in the workplace is largely a policy decision. Agencies should consider the potential security concerns and determine if employees’ use of TikTok might put the agency’s data at risk.

Restricting TikTok involves several factors such as whether the agency owns the employees’ devices, the level of data security risk relative to the employee’s position and duties, and even the potential benefit of social media for marketing opportunities. Implementing these policy decisions requires comprehensive analysis of several factors unique to each agency and should be undertaken with guidance from legal counsel familiar with the issues.

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Employers know all too well the negative impact that excessive employee absences can have on the workplace.  With just a month left of summer, major concerts touring, and back-to-school on the horizon, employers are likely to see many employees using up more of their paid time off as they squeeze in their final vacations and prep for the fall.  But what happens when an employee is excessively absent, or an employer suspects an employee is abusing their leave?  And how do protected leaves come into play?  This blog will discuss best-practices for recognizing and responding to employee absenteeism while lawfully navigating protected leave laws.

What is absenteeism?

Generally speaking, absenteeism is the failure to report to work as scheduled.  It includes all forms of absences, as well as employee tardiness.  It does not, however, include issues that occur (such as lack of productivity or focus) while an employee is at the workplace.

How can an employer determine if an employee’s absences are excessive?

Several methods can help an agency calculate whether absence is excessive.  The simplest way is to calculate the average amount of leave employees take as a whole, and then determine if any individual employee’s absences are well above that average.  However, if the employer feels there is an excessive absence issue agency-wide, then the overall average may not reflect an acceptable standard.  In that case, looking at the ratio of scheduled days/hours worked versus the actual days/hours worked may be best.  It’s important to remember that absenteeism can be excessive even when an employee is still able to draw upon accrued leave accounts, i.e., sick leave, vacation leave, or compensatory time.  

How are excessive absences different from abuse of leave?

Unlike excessive absences, abuse of leave deals with using leave only for an illegitimate purpose.  This can include misrepresenting what the leave is used for, taking improperly extended breaks or lunches, tardiness, falsified medical notes, or otherwise unauthorized leave.  Sometimes a pattern in an employee’s absences can indicate an abuse of leave.  For example, if an employee regularly and exclusively calls out sick on Fridays or Mondays.

Are there any activities that cannot be considered when examining an employee’s absenteeism?

Yes.  Protected leaves, or leaves that are “protected” by law which employees are entitled to take regardless of Department policy, must be excluded from any definition of excessive/ abuse of leave.  All of the protected leave laws, including the Family and Medical Leave Act (FMLA), California Family Leave Act (CFRA), and California Pregnancy Disability Leave (PDL) law expressly prohibit any form of discipline in response to the exercise of a protected leave right. 

Absences related to reasonable accommodations under the Americans with Disabilities Act (ADA) and leave related to workers’ compensation or an industrial injury are two very common protected leaves that cannot be considered when analyzing an employee’s potentially excessive absence.  Some other common protected leaves include those for:

  • Appearance at a child’s school (Labor Code 230.8 allows an employee to use up to 40 hours of personal leave, vacation, or comp time, but no more than 8 hours a month (unless there is an emergency), to participate in their child’s education and/or school activities.  Labor Code section 230.7 allows a parent-employee to take time off to appear at their child’s school due to the child’s suspension.)
  • Military deployment
  • Attending jury duty
  • Voting

Employers should carefully evaluate whether an employee’s absence falls under a protected leave before instituting discipline related to excessive or abuse of leave.

What are the employer’s options if an employee is excessively absent or abusing their leave?

First, it’s important for employers to keep a written file of key information regarding employees’ absences or tardiness, including the date, time, and location of the incident, the employee’s reason for the absence or tardiness, and the employee’s efforts to obtain authorization.  This information will be crucial when pursuing any subsequent action.

If an employee is excessively absent, and any applicable Memorandum of Understanding (MOU) provision does not otherwise prohibit it, an employer can and should respond.  Not responding can establish a past practice or lead employees to think such absences are acceptable, when they are not.

If there is reason to believe the employee is suffering from a medical condition that prevents him/her from performing the essential functions of the position, a fitness for duty examination may be appropriate.

When apparent abuse of leave occurs, the best practice is for the employer to conduct an investigation.  In addition to misusing the leave, the employee might be violating Department policies related to dishonesty.  By investigating and uncovering all relevant facts, an employer increases the likelihood that any disciplinary action imposed will be sustained if an appeal is brought in the future.  That said, investigations into medical reasons are limited by laws such as the Confidentiality of Medical Information Act.  So employers should consult with legal counsel to ensure they are asking appropriate questions.

If it is ultimately determined that an employee’s absences violate agency attendance policy, then progressive discipline is another option an employer can pursue.

Other best practices:

  • Communicate acceptable standards with employees in advance. 
  • Have a clearly defined attendance/leave policy. 
  • Be consistent! Apply the standards equally across all employees when evaluating excessive or abuse of leave.  If an exception is made to the leave policy for one, it should be made for all employees.

In the end, the best offense is a good defense.  By clearly setting expectations with employees, utilizing a well-defined written policy, closely tracking attendance, and intervening early when potential issues arise, employers can help prevent absenteeism and avoid bad blood with employees in the future. 

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Starting a new internship can be a mix of excitement and nerves. Because an internship is limited in scope and duration, you want to maximize your experience while making a positive impression on your colleagues. To help you succeed in your internship, we’ve gathered some valuable tips from the outgoing class of summer associates at LCW that can be applied across various industries.

  1. Embrace Uncertainty

As an intern just starting their career, you’ll be working alongside experienced professionals who may not have all the answers themselves. After all, LCW’s public and private sector clients seek legal support to help them comply with an array of labor, employment, education, and nonprofit laws, many of which involve complicated and overlapping standards. In the law, “it depends” is a practice turned adage—and for good reason. Uncertainty is the law’s bread and butter and navigating it effectively is essential for success.

How do you grapple with uncertainty?

“Don’t be afraid to ask questions,” answers Jacqueline Hubbell, a summer associate at the Los Angeles office. “The attorneys at LCW are aware you are at the beginning of your career, and they are more than happy to share their knowledge.” When receiving an assignment, Juliana Pech from Los Angeles suggests asking preliminary questions like “Where would you start?” and “How would you go about this assignment?”

“Everyone has made themselves available for help and guidance,” she says, “it is just about asking for it.”

Remember also that asking for help does not guarantee perfection in your work. Another summer associate, Sam Holmberg of the Los Angeles office, encourages everyone to try their best but to not be afraid of making mistakes, as they are opportunities for growth and learning.

In addition to asking questions, it is also good practice to regularly solicit and embrace feedback from your direct supervisors. Allison Sipe from the San Francisco office meets regularly with her mentor and other attorneys she is assigned to work with. “Doing so keeps you on track with your workload and deepens your understanding of the different kinds of work happening at the firm,” she says.

2. Be Proactive

Take ownership of your internship experience. While your workload coordinator or supervisor plays a role in assigning your work, it is essential that you communicate your interests as well. Cindy Rivas from the Los Angeles office suggests identifying the practice areas that intrigue you while being open to gaining experience in unfamiliar practice groups you may not have originally thought you would be interested in. “It will expand your horizons as an attorney and a person,” Jacqueline says. She advises that you find attorneys who do the work you like and ask them what path they took to get there.

Being proactive requires some degree of putting yourself out there. “Don’t just sit at your desk,” says Monica Chinchilla of the San Francisco office. “Walk around and talk to different associates and partners and ask what they’re working on. You’ll find some cool opportunities and develop your network by being proactive.”

Also, take advantage of your office’s resources and opportunities. Allison encourages summer associates at LCW to shadow as many court proceedings as they can, such as depositions and mediations. “We seldom get to see court proceedings in law school,” she says, “so it’s an excellent opportunity at LCW.” Juliana was able to shadow a consortium call on AB 2188, attend a public safety negotiation, and a wage and hour class action hearing in just a few short weeks! And as Sam suggests, unless you have a good reason, avoid declining any opportunities that come your way.

3. Balance Work and Life

Diligence and professionalism are crucial skills to develop, but it is equally important to maintain your personality and interests outside of work. To that end, Chase Booth from the San Diego office reminds interns to be themselves. “Self-regulate as needed to maintain professionalism in the workplace,” he cautions, “but do not entirely discard your personality.” Part of any work culture is determining fit, which includes determining how your personality meshes with those of your future colleagues.

Developing personal connections with your colleagues is an essential aspect of your internship experience. Abigail Lee from the Sacramento office adds that the attorneys you work with are more than just professional mentors. “Part of having a healthy career is work-life balance,” she says, “and I learned a lot about maintaining that from the attorneys at my office.” A simple “Doing anything fun this weekend?” will go a long way. “How was the Barbie movie?” on the following Monday will go even further in building rapport (so long as Barbie was viewed with enthusiasm—your mileage, and the mileage of any reluctant parent dragged along may vary). Let your personality shine and allow the personality of others to shine, too. “The attorneys at LCW are genuine, kind, and friendly people,” Cindy says.

Despite being scattered across various California offices, LCW’s unique “one-firm” philosophy promotes close collaboration because everyone is just a quick phone call or email away. Sam and Cindy encourage interns to get to know as many people as possible, not just the attorneys or staff at your office. You never know what shared hobbies and interests you may have with coworkers unless you ask. “I personally appreciate that many of the attorneys at LCW are parents,” says Abigail, “and as someone who wants to have a family one day, I feel inspired by seeing how hard they work both as parents and lawyers.”

In conclusion, the success of any internship, including at LCW, is defined by effort and engagement. Embrace uncertainty, ask questions, exhibit enthusiasm, be proactive, and maintain your authentic self while showing genuine interest in your colleagues. By following these tips, you can make the most out of your summer internship and lay a strong foundation for your future career.

On or about June 8, 2023, a law firm filed a complaint of discrimination with the Civil Rights Department (“CRD” [formerly the Department of Fair Employment and Housing]) and requested a right to sue notice on behalf of a former employee of Lake County who received a disability retirement through the California Public Employees’ Retirement System (“CalPERS”).  The narrative of the complaint purports to name CalPERS, the State of California, the County of Lake, and entities that contract with CalPERS to provide retirement benefits under the Public Employees’ Retirement Law (“PERL”) as defendants.  The notice and right to sue letters, along with a narrative of the complaint and a purported tort claim, were served on many, if not most, CalPERS contracting agencies.

The complaint indicates that the potential class of employees plaintiff seeks to represent consists of the following:

[A]ll persons who were employed by Defendants; who were at or over age 40 at the time they became members of the CalPERS system; who applied for and were granted ordinary disability retirement; whose retirement benefits are administrated by CalPERS; and either (1) who have ever received disability retirement benefit payments pursuant to Government Code section 21423, who were over age 41 at membership in CalPERS, and who at retirement were credited with 18.518 or fewer years of actual service; or (2) who have ever received disability retirement benefit payments pursuant to Government Code section 21098, and who at retirement were credited with 24.691 or fewer years of actual service; or (3) who have ever received disability retirement benefit payments pursuant to Government Code section 21424, and who at retirement were credited with 29.629 or fewer years of actual service.

The complaint alleges that provisions of the PERL, which are legislatively enacted and administered by CalPERS, discriminate against individuals based on their age.  The complaint further alleges that this amounts to disparate treatment and intentional discrimination, and failure to prevent discrimination, under the Fair Employment and Housing Act (“FEHA”).  The complaint also alleges breach of contract claims.  Given that the alleged wrongful conduct was the result of a legislatively adopted statute, it is not clear what theory would support a claim that would make contracting agencies liable for the statutory scheme or under a breach of contract theory.

The attachments to the CRD claim also contain a generic purported tort claim.  It is also unclear whether the theories advanced by the plaintiff would be subject to the Tort Claims Act or whether the attachment complies or substantially complies with the requirements of the Tort Claims Act.  Agencies should discuss with their counsel whether to overtly act on the tort claim, by providing a notice of rejection of the tort claim, or not respond, which ultimately results in a rejection  by operation of law. Agencies should also discuss with their counsel whether to notify their employment practices liability insurer.

At this time, it is uncertain whether a lawsuit will be filed, whether a class will be certified, and what theories will be alleged.   We are currently unaware of any agencies being served with a lawsuit.

Liebert Cassidy Whitmore attorneys are closely monitoring developments in relation to this Special Bulletin and are able to advise on the impact this could have on your organization. If you have any questions about this issue, please contact our Los Angeles, San Francisco, Fresno, San Diego, or Sacramento office.

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Since its November 2022 launch, ChatGPT, an artificial intelligence (AI) chatbot, has garnered significant international attention. By January 2023, ChatGPT had an estimated 100 million monthly active users. Given its extensive adoption, it is likely your agency’s employees have used or are currently using ChatGPT personally, or even in the workplace. Employers should implement policies and guidelines for any usage of ChatGPT, or other AI chatbots, in the workplace. 

  1. Policy Cautioning Limitations of ChatGPT  

Employers should first understand how ChatGPT works. Despite our science-fiction fantasies, ChatGPT is not currently a source compiling the entirety of humanity’s knowledge. Instead, ChatGPT and AI chatbots use large language models to provide responses to a user’s prompt. When ChatGPT responds, it does not pull facts or run an internet search – it predicts strings of words based on the data and information uploaded to the program (or what is commonly referenced as the information the AI chatbot has been “trained on”). Because ChatGPT does not rely on facts but merely predicts strings of words, users may receive an intelligent-sounding, polished, but completely factually inaccurate response. 

Employers should develop guidelines and policies prohibiting any user from relying on the accuracy of any response provided by ChatGPT. As a tale of caution, a thirty-year practicing attorney in New York used ChatGPT to write his legal brief. The problem? ChatGPT fabricated the cases the attorney cited, resulting in a scathing order by the judge and widespread embarrassment for the attorney and his firm.

In addition, ChatGPT has only been trained on information up to 2021. This means that ChatGPT can also provide outdated responses. Employers should prohibit employees from relying on ChatGPT for research or as legal or expert advice. Employers should direct employees to always double (and triple) check any information generated by ChatGPT.

2. Acceptable Use Policy

Employers should also outline clear guidelines and policies regarding employees’ authorization to use ChatGPT in the workplace. In doing so, employers should consider and refer to any computer-use or other relevant technology policies already instituted.  

As one option, employers could bar employees from using ChatGPT in any circumstance in the workplace. Alternatively, employers could restrict employees from using ChatGPT for only certain tasks. Employers could also limit employee’s use of ChatGPT by prohibiting them from using workplace login credentials (for example, their work email addresses), or prohibiting employees from using ChatGPT on workplace devices. Employers should implement policies that are clear, thorough, and applied consistently.  

3. Educate and Train

Employers should educate and train their employees about the previously discussed limitations of ChatGPT. ChatGPT responses certainly sound legitimate, and may easily fool untrained employees. Employers should educate employees to warn them about the limitations of ChatGPT to prevent inaccuracies and mistakes. Employers should also stay current on the latest iterations of AI chatbots like ChatGPT, or any other technological advances, to ensure all employees are properly trained on any resources used in the workplace.

4. Watch for New Legislation

Further, employers should monitor legislation that may affect the use of AI in the workplace. For instance, there are efforts on a federal level by the National Telecommunication and Information Administration, as well as other agencies, to “create a cohesive and comprehensive federal government approach to AI-related risks and opportunities.” This session, California State Legislators have also proposed (but have not passed) several bills related to the regulation of AI. For instance, the proposed SB313 would require any state agency using generative AI to communicate with members of the public to provide additional notice. New legislation on the use of AI is likely to emerge and may impact employers. 

5. Safeguarding Data and Confidential Information

Further, employers should create policies and guidelines instructing employees about how to protect data and personal, confidential, or private information when using ChatGPT. A general rule of thumb is to train employees to treat any information provided to ChatGPT as if it will be posted on a public website.

Thinking through how this may arise in the workplace, some recommend using ChatGPT to assist with summarizing meeting notes or analyzing large amounts of data. However, if an employee attempts to summarize, for instance, meeting notes from an interactive process meeting to accommodate an employee with a disability, or data that includes confidential employee information like social security numbers, then uploading the information to ChatGPT could violate relevant privacy and data protection regulations and laws. Employers should institute policies and guidelines prohibiting employees from uploading confidential or private information or data into ChatGPT.

As they have for decades, employers will continue to reckon with new challenges posed by technological advances. AI chatbots and ChatGPT can be a great resource for employees and employers alike. Employers should establish clear, thorough, and  consistently applied policies for their employees. These policies should be adaptable and continuously evaluated. Trusted legal counsel can help employers navigate implementing new policies and guidelines so employers and employees can embrace the benefits of technological advances.    

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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Please note this content is dated. The following blog has been updated in accordance with new regulations under AB 1484:

AB 1484 Adopts Enhanced Representational Rights for Temporary Employees

The California Legislature is currently reviewing AB 1484 (Zbur), a bill that would add Section 3507.7 to the Meyers-Milias-Brown Act (MMBA). Proponents of the bill hope that it will address an increase in public agency use of temporary employees, aiming to bring equity to temporary employees who perform similar work as permanent employees but without some of the benefits afforded to permanent employees. However, as discussed below, City, County, and Special District employers subject to the MMBA may incur certain fiscal and administrative impacts if the bill passes legislative muster.

Temporary Employee Defined

AB 1484 defines a temporary employee as “a temporary employee, casual employee, seasonal employee, periodic employee, extra-help employee, relief employee, limited-term employee, per diem employee, and any other employee who has not been hired for a permanent position.” It specifies that the law will apply to temporary employees who are “hired to perform the same or similar type of work that is performed by permanent employees.”

Potential Requirements under AB 1484

The bill would impose certain duties on public employers with respect to temporary employees as defined above. These requirements include, but are not limited to, the following:

  • At a recognized employee organization’s request, certain temporary employees would be automatically included in the same bargaining unit as permanent employees.
  • Also upon request, parties would need to negotiate terms and conditions of employment within a single Memorandum of Understanding (MOU) covering both permanent and temporary employees.
  • Upon a temporary employee’s hire, the public employer would be required to provide each temporary employee with a job description, wage rates, eligibility for benefits, anticipated length of employment, and procedures to apply for open, permanent positions. Employers would need to produce this information to the exclusive representative within five (5) business days of hire.
  • Also within five (5) business days of hire, employers would need to provide the exclusive representative with the temporary employee’s anticipated end date and certain employee information pursuant to Government Code section 3558.
  • Finally, if not waived in the MOU, temporary employees would become entitled to certain grievance procedure rights after 30 calendar days of employment, specifically to challenge disciplinary actions without cause.

Any violation of Section 3507.7 would be actionable as an unfair practice charge before the California Public Employment Relations Board (PERB).

Potential Impact on Public Employers

Proponents of AB 1484 indicate that the bill does not intend to restrict a public employer’s ability to employ temporary employees or to give temporary employees permanent status; instead, the focus is on allowing temporary employees to bargain alongside permanent employees.

However, employers should be aware of potential fiscal and administrative impacts. For example, employers may incur costs and expenditure of administrative time and effort related to adding temporary employees to a bargaining unit or MOU, implementing wages and benefits negotiated by temporary employees, and administering the grievance process.

These and other associated costs may interfere with temporary employee retention and hiring. In fact, the League of California Cities, in opposition to the bill, foresees a potential increase in hiring costs for temporary employees to the public’s detriment. They project a potential impact on “extra help” employees often retained for seasonal or “surge” needs, such as nurses, health care workers, election workers, and parks and recreation staff.

Finally, by mandating the inclusion of temporary employees in established bargaining units, the bill will necessarily impact the public employer’s options for delivering essential services by expanding the number of employees covered by a strike while limiting the employer’s options for utilizing alternative personnel. Thus, the bill raises questions about the role of temporary employees as providers of necessary public services when strikes occur, what impact, if any, the bill may have during the negotiation of “line pass” agreements, and the identification of employees who will stand ready to cross the picket lines to assist in the event of an emergency. These potential adverse consequences should be carefully evaluated and presented by the bill’s opponents.

LCW will continue to monitor and report on the status of this legislation.