We are excited to continue our video series – Wage & Hour Issues in the Workplace. In these videos, members of LCW’s Wage & Hour practice group will provide various tips that can be implemented in your workplace. We hope that you will find these clips informative and helpful!
Across the country, cities have been considering legislation that would allow all residents over age 18 to vote in local school board elections, regardless of citizenship status. Supporters of this movement argue that because noncitizens pay local taxes, volunteer at schools, and participate in school board meetings, they should be able to have a say in selecting the officials who set the district policies that impact their children’s education. One such city to allow noncitizen voting, was San Francisco – the first in California to do so. Circumstances dramatically changed on July 29, 2022, however, when a Superior Court judge struck down San Francisco’s local law, finding it contrary to the California Constitution. As discussed below, this ruling has affected other California cities currently considering noncitizen voting.
San Francisco’s Proposition N
In 2016, San Francisco voters passed Proposition N, which granted noncitizen parents of San Francisco Unified School District students the right to vote in the November 2018, 2020, and 2022 school board elections. San Francisco County Board of Supervisors later passed Ordinance No. 206-21, extending this voting right indefinitely beyond 2022.
However, in March 2022, a California attorney, James Lacy, filed a lawsuit against the City and County of San Francisco arguing that this local law was unlawful, and stated that “when noncitizens vote in an election, the voting rights of citizens are wrongly diluted.”
Lawsuit Against the City and County of San Francisco
In this lawsuit Lacy v. City and County of San Francisco, the defendants, the City and County of San Francisco, argued that despite the California Constitution stating that all voters must be United States citizens, under Article IX, section 16(a) of the California Constitution, charter cities like San Francisco are allowed to provide for the time, manner, and terms for which members of the boards of education are elected. Relying on the word “manner,” the defendants argued that this includes setting voting right qualifications. The superior court was not persuaded. The court first found that absent from article IX, section 16(a) was any mention of voters or their qualifications. The court then looked at Education Code section 5390 which did mention “qualifications of voters.” However, the court found that under this section, the language clearly stated that voter qualifications “shall be governed by those provisions of the Elections Code applicable to statewide elections.” Under Elections Code section 2300(a), which is applicable to statewide elections, “All voters, pursuant to the California Constitution and this code, shall be citizens of the United States.” Taken together, the court ruled that the City and County of San Francisco’s local law granting noncitizen voting rights was contrary to the California Constitution and therefore void and unenforceable.
Following this ruling, the City and County of San Francisco appealed, while the same plaintiff filed another suit – this time against the City of Oakland.
Lawsuit Against the City of Oakland
In June 2022, the City of Oakland’s City Council voted to place a measure on the November 2022 ballot that would allow noncitizen parents or guardians of school-age children to vote in school board elections. In response to this measure, the plaintiff in the City and County of San Francisco case sued the City of Oakland, seeking a court order to remove this measure from the November ballot. The plaintiff again argued that allowing noncitizens to vote would violate the California Constitution. On August 30, 2022, an Alameda County Superior Court judge said that the measure can appear on the November ballot, as it would be premature to decide before a ballot measure is passed, whether it is constitutional. However, the judge also remarked that the San Francisco ruling was likely correct, but that the issues it addressed would need to be decided by higher courts.
What This Means For Your City
The trend of both extending local election voting rights to noncitizens and facing legal challenges over such proposals is taking shape. The lawsuits against the City and County of San Francisco and the City of Oakland have already caused some California cities, such as the City of San Jose and City of Santa Ana, to reconsider adopting noncitizen voting laws due to the legal challenges they will likely face.
If your city is considering extending local election voting rights to noncitizens, please reach out to your trusted legal advisors to navigate the potential legal implications.
The newest generational wave, Generation Z or “Gen Z,” has now entered the workplace, and according to NPR, they are on track to be one of the most diverse generations in U.S. history. While Gen Zs share many traits with Millennials, they also bring with them unique characteristics, needs, attributes, and work style. For example, many Gen Zs entered into the workforce during the COVID-19 pandemic and experienced their formative years in the workplace via remote work, unlike previous generations that thrived in vastly different work environments than what we have today. These differences may create some new challenges, and employers can anticipate a shift in workplace culture and needs as more Gen Zs enter the workforce. The following tips can help employers understand this new generation, and how to effectively integrate and retain Gen Zs in their workplace.
Who is Gen Z?
The Merriam-Webster Dictionary defines Gen Z as “the generation of people born in the late 1990s and early 2000s.” According to U.S. Census estimates for 2022, Gen Z currently makes up 20.2% of the U.S. population, and is the most racially and ethnically diverse generation in history. Gen Zs were also born and raised in a time where technology and social media have become an integral part of day-to-day life. This is part of what distinguishes Gen Zs from their previous generations.
Additionally, according to a study conducted by Deloitte, Gen Zs prefer to work in environments that cultivate career development, provide learning and development opportunities, and value diversity and inclusion. For example, in a study conducted by LinkedIn, 80% of Gen Z workers reported they are looking to work for employers who are better aligned with their personal interests or values, 76% reported they are looking for more opportunities to learn or practice new skills, and 61% seek more opportunities to move up or increase their responsibilities.
Tips for Integrating Gen Z into the Workplace
Among the top concerns for why Gen Zs left their workplaces over the last two years included pay, feeling the workplace was detrimental to their mental health, and burnout. Beyond better compensation, good work/life balance, flexibility, and learning and development opportunities, Gen Zs also want to derive a sense of meaning from their work, and to work for organizations that have a positive societal impact. To attract and retain talent, employers should emphasize the significance of the individual’s role in the organization, and how their contributions make an impact or serve the organization’s mission.
Employers should also listen to their employees and empower them to drive change. They can do so through initiatives like reverse mentoring, where newer employees are paired to mentor established leaders, and through this relationship, new employees can share a fresh perspective on the way things are run. Rather than the traditional model of mentoring, where a senior employee takes a newer employee under their wing and teaches them how the organization is run, this allows for frank discussions regarding issues that affect the organization and provides opportunities to solicit feedback on what newer employees truly want and need from management. Employers should be also be transparent about what opportunities for leadership and development are available within the organization, so as to encourage employees to grow and explore their potential. It is also important to set aside time to answer questions, accept feedback, and address any concerns that may arise. Where possible, employers should also consider more personalization and flexibility when it comes to certain roles, rather than trying to fill cookie-cutter positions.
By keeping some of these tips in mind, employers will hopefully “pass the vibe check” for Gen Z employees, and be better suited in recruiting and retaining members of the newest generation.
Social media sites have become the new “public square” where individuals share opinions and information about all types of political and societal events. Public sector employees, as much as anyone else, use social media to post viewpoints and to participate in public debate. Problems arise, however, when a public employee posts harsh, derogatory, defamatory, or biased statements that may interfere with the public agency’s ability to effectively carry out its mission, or impact the public employee’s ability to perform job duties. This reality can result in a clash between the public employee’s First Amendment rights, and the rights of their agency to carry out its responsibilities on behalf of the public.
Many California government agencies have social media policies that set forth rules regarding the conduct of their employees on social media. Earlier this month, on August 5, 2022, in Hernandez v. City of Phoenix, the U.S Court of Appeals for the Ninth Circuit (which covers California) issued an opinion that provides significant guidance on two important issues. First, what type of speech is entitled to First Amendment protection. Second, how can government agencies structure social media policies while complying with the First Amendment’s free speech guarantee. Below is a summary of the key points.
Facts of the Case
In 2013 and 2014, Sergeant Juan Hernandez, a Police Sergeant in the City of Phoenix Police Department, posted news articles and memes on his Facebook page that denigrated Muslims and Islam. Hernandez posted the content off duty and he did not state he was a City employee although other content on his Facebook page showed him in uniform. The posts generated no controversy or disruption in the Department until they were identified by the Plain View Project and disclosed publicly in 2019. The Plain View Project is an organization that collects and maintains a database of Facebook posts from certain law enforcement departments nationwide. The Plain View Project disclosed the posts along with others from members of the Phoenix Police Department that reflected bias, and this disclosure generated significant public criticism and media attention aimed at the Department.
The Department took steps to discipline Hernandez for four of his Facebook posts, which it viewed as violating the Department’s social media policy. But in the midst of this process Hernandez sued in federal court asserting that the Department was retaliating against him for his First Amendment-protected speech. Hernandez also challenged the Department’s social media policy as overbroad and vague, and thus unconstitutional.
The federal trial court granted the City’s motion to dismiss and concluded that (1) the City did not retaliate against Hernandez in violation of the First Amendment because his speech was not on a matter of “public concern,” and (2) the City’s social media policy was not overbroad or vague. Hernandez appealed to the Ninth Circuit.
The Decision of the Ninth Circuit
The Ninth Circuit reversed in part, holding first that the trial court erred in determining that Hernandez’s speech was not on a matter of “public concern.” By way of background, to prevail on a First Amendment retaliation claim, a public employee must show that (1) they spoke on a matter of “public concern,” (2) they spoke outside the scope of their “official duties,” and (3) their speech interests under the circumstances outweigh the countervailing administrative interests of their agency employer (this final element is called “Pickering balancing” after the case of that name). The Ninth Circuit then remanded the case back to the trial court because the trial court had erroneously determined that Hernandez’s speech could not constitute a matter of public concern.
The Ninth Circuit’s discussion of “public concern” addressed the important issue of whether harsh, biased speech on social media – particularly by law enforcement members – meets the “public concern” test. The Court explained: although it was true that the Facebook posts “expressed hostility toward, and sought to denigrate or mock, a major religious faith and its adherents,” nevertheless the U.S. Supreme Court has made clear (in that Court’s words) that “[t]he inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.” The Ninth Circuit emphasized that nevertheless, speech that has a biased or bigoted character, even if it met the public concern test, would “be of particularly low First Amendment value at the next step of the Pickering balancing test” although “its distasteful character alone does not strip it of all First Amendment protection.” The Court also noted that the fact that Hernandez’s posts had received extensive media coverage supported its finding that the posts were a matter of public concern.
The Ninth Circuit then provided a prediction of how the next steps, the Court’s conducting a balancing process, would turn out, and provided language particularly helpful to law enforcement agencies seeking to discipline members for bigoted or biased speech:
“In remanding the case, we do not mean to suggest that the Department will face a particularly onerous burden to justify disciplining Hernandez for his posts, given the comparatively low value of his speech. Government employee speech that exposes wrongdoing or corruption within the employee’s own agency lies at ‘the apex of the First Amendment’ in this context. Needless to say, Hernandez’s Facebook posts occupy a much lower rung on the First Amendment hierarchy, and indeed they touched on matters of public concern ‘in only a most limited sense.’ On the other side of the scale, a police department’s determination that an officer’s speech warrants discipline is afforded considerable deference, and police departments may permissibly consider the special status officers occupy in the community when deciding what limitations to place on officers’ off-duty speech. Speech by a police officer that suggests bias against racial or religious minorities can hinder that officer’s ability to effectively perform his or her job duties and undermine the department’s ability to effectively carry out its mission.”
(Quoting authority, citations omitted.)
The Ninth Circuit agreed with the trial court’s decision on most aspects of the Police Department’s social media policy. In particular, it found that the trial court appropriately rejected the argument that the City’s social media policy was overbroad and/or vague by prohibiting social media posts that:
The Ninth Circuit, however, found that the following provisions were potentially invalid as overbroad:
The Court was careful to point out that, technically, their decision to overturn the trial court’s decision meant that the Police Department could try to present evidence to support these last two provisions, but the Court did not explain what evidence the Department could present for them to be found valid.
Impact on Government Employee Social Media Policies
The Court’s discussion of “public concern” means that public employers confronted with employees whose social media posts appear bigoted or hateful must anticipate that a Court could conclude the speech is protected by the First Amendment. Accordingly, employers that desire to take action against an employee for posting such content must be prepared to identify specific disruption to the agency as a result of the speech, such as the speech impaired co-worker relations, impacted the speaker’s ability to carry out job duties, or undermined the agency’s ability to operate effectively, to name a few. The Court in Hernandez, however, did provide some encouraging language for law enforcement by signaling that hateful or bigoted speech does not possess a high degree of First Amendment protection, if any, and that public safety departments may be able to show disruption fairly easily.
The Court’s discussion of social media policies requires agencies that have policies containing language of the type the Court identified as problematic to reconsider that language. Maintaining social media policies that prohibit any type of speech that may embarrass or discredit the agency is likely overbroad and may lead to liability. In addition, precluding an employee from disclosing any information at all gained from their employment will be problematic.
The language the Court approved will, by contrast, help agencies in crafting such policies. Nevertheless, an important consideration is that although the Ninth Circuit in the Hernandez case, as described above, rejected a facial challenge to the policy language at issue (i.e., a challenge that the language standing by itself is invalid), an employee could still make what is known as an “as applied” challenge if an agency applies the language to particular conduct by the employee in a way that violates the First Amendment. An example might be an agency’s punishing an employee who complains about genuine police misconduct at the Department and bases the discipline on the fact that the employee’s complaint undermines “respect” for the agency. Accordingly, agencies must still take care in applying language such as that approved by the Ninth Circuit in Hernandez, and will be well-served by creating social media policy prohibitions that are as specific and straightforward to apply as possible.
Agencies should turn to trusted legal counsel for updates on social media policies as needed, and now is an appropriate time.
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.
The Ninth Circuit Court of Appeals recently ruled in Garnier v. O’Connor-Ratcliffe that public officials violated their constituents’ First Amendment rights by blocking them from the public officials’ social media accounts that were used for official duties.
School District Trustees Block Two Parents on Social Media
In Garnier, Michelle O’Connor-Ratcliff and T.J. Zane, two members of the Poway Unified School District (PUSD) Board of Trustees (Board) used their social media pages to post content related to PUSD and Board activities. O’Connor-Ratcliffe described herself on Facebook as a “Government Official” and “President of the PUSD Board of Education” and included her official PUSD email address. Zane described himself as a “Government Official” and represented his Facebook account as “the official page for T.J. Zane, Poway Unified School District Board Member, to promote public and political information.” Both used their social media pages to promote PUSD-related information and to solicit public feedback through their posts. Among the users who commented on the Trustees’ social media pages, were PUSD parents Christopher and Kimberly Garnier.
The Garniers frequently expressed their PUSD concerns in comments they posted to the Trustees’ social media accounts. At one point, Christopher Garnier posted 226 identical replies, one to each Tweet O’Connor-Ratcliff had posted. Frustrated by the Garniers’ repetitive commenting, both Trustees decided to block the Garniers from their respective Twitter and Facebook pages. In effect, the blocking prevented the Garniers from commenting on and reacting to the Trustees’ posts. In response, the Garniers filed suit under 42 U.S.C. § 1983 (the Civil Rights Act of 1871). The purpose of § 1983 is to deter government actors from using their badge of authority to deprive individuals their federally-guaranteed rights. [1] The Garniers alleged that the Trustees’ social media pages constituted a public forum and that by blocking their speech, the Trustees violated the First Amendment. The Trustees countered that blocking the Garniers’ speech from that forum was permissible as it was done pursuant to a sufficiently narrowly tailored restriction. The District court disagreed and found it was not narrowly tailored. The Trustees appealed and the case went to the Ninth Circuit Court of Appeals.
Acting Under the Color of State Law
To state a claim under §1983, a plaintiff must allege the violation of a federal right committed by someone acting under the color of state law.[2] One test to determine whether someone acted under the color of state law, is the “nexus test.” The Ninth Circuit followed the nexus test analysis used by the Second, Fourth, and Eighth Circuit appellate courts. This analysis is fact-sensitive and applies when there is “such a close nexus between the State and the challenged action, that the seemingly private behavior may be fairly treated as that of the State itself.”[3] As applied here, an off-duty public official uses their social media as an “organ of official business” when:
Using this test, the Ninth Circuit found that the Trustees acted under the color of law when they identified themselves on their social media accounts as “government officials,” and displayed their official titles, presented their PUSD email addresses, and described their accounts as official PUSD board member pages. In addition, the content on the Trustees’ pages were focused on providing official PUSD information and soliciting public input. The Trustees’ claimed they did not act under the color of law because their pages were not authorized by PUSD. The Court disagreed, finding that the Trustees’ pages lacked a disclaimer that their expressed opinions were personal, and not official, and that the pages displayed a “badge” to the public, signifying the page as an official PUSD Trustee account. In appearance and content, the Court found the Trustees held their pages out as official channels of PUSD communication.
As for the second prong, the Court found that by the Trustees presenting their social media pages as official outlets to facilitate their PUSD duties, this had the purpose and effect of influencing the behavior of others. Supporting this conclusion was the fact that both Trustees actively solicited constituent input and feedback about PUSD matters, and encouraged constituents to fill out Board surveys and apply for volunteer Board committees. According to the Court, the Trustees were able to receive this public engagement on their pages because they invoked their governmental status.
Lastly, the Court found that the harm inflicted upon the Garniers – being blocked – was linked to the Trustees’ performance of their duties. This is because the Trustees used their social media pages to communicate about PUSD and they did not want the Garniers’ comments to detract from their messages. Therefore, the Ninth Circuit concluded that the Trustees acted under the color of state law, which in turn meant their decision to block the Garniers constituted state action under § 1983.
The Blocking Feature’s Impact on Free Speech
The Ninth Circuit then turned to the First Amendment issues and analyzed whether the Trustees’ social media pages constituted a designated public forum. A designated public forum exists where the government intentionally opens up a nontraditional forum for public discourse.[5] In a designated forum, the government may impose reasonable restrictions on the time, place, and manner of protected speech so long as the restrictions are narrowly tailored to serve a significant government interest and leave open ample room for alternative channels of communication.[6]
First, the Court found the Trustees’ social media pages at the time of the blocking did constitute designated public forums. This is because their pages were open to the public without any restriction on the form or content of comments, and the Trustees both solicited and replied to comments on their pages. This is in contrast to being designated a limited public forum (a type of nonpublic forum that the government has intentionally opened to certain groups or topics), which the Trustees’ pages later transformed into when they utilized word filters to screen out certain comments.
Next, the Court analyzed whether the blocking restriction was narrowly tailored, such that it did not burden substantially more speech than necessary to further their interest.[7] The Court found the decision to block the Garniers was not narrowly tailored for two reasons: (1) it did not advance a significant government interest because, due to social media technology features, the Garniers’ repetitive comments did not actually disturb or impede the Trustees’ posts or prevent public engagement; and (2) blocking burdened substantially more speech than necessary because instead of restricting the length or repetitiveness of the Garniers’ comments, it entirely prevented the Garniers’ ability to comment on Facebook and view content on Twitter. According to the Court, alternative restrictions such as deleting or hiding unduly repetitive comments, or establishing rules of etiquette, would have had less of an impact on speech than blocking. Therefore, the Court ruled that the Trustees violated the Garniers’ First Amendment rights by blocking them from the Trustees’ social media accounts.
What This Means for Public Agencies
While the First Amendment does not apply to private organizations, it does apply to public agencies. Public agencies should examine their social media accounts, including the accounts of their public officials, because in addition to blocking, other social media practices and restrictions may also result in First Amendment free speech violations. If you have any questions regarding the First Amendment and best practices for social media, please reach out to trusted legal counsel.
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[1] McDade v. West (9th Cir. 2001) 223 F.3d 1135, 1139.
[2] West v. Atkins (1988) 487 U.S. 42, 48.
[3] Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n (2001) 531 U.S. 288, 295.
[4] Naffe v. Frey (9th Cir. 2015) 789 F.3d 1030, 1037.
[5] DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ. (9th Cir. 1999) 196 F.3d 958, 964.)
[6] Ward v. Rock Against Racism (1989) 491 U.S. 781, 791.)
[7] Id. at 799.
A recent case has made clear that a government agency’s ceasing doing business with a company based on the viewpoints of the company’s owners can lead to First Amendment liability for the agency. Earlier this year, in Riley’s American Heritage Farms v. Elsasser, the United States Court of Appeals for the Ninth Circuit (the federal appellate court covering California), held that a California school district potentially violated a field trip vendor’s First Amendment rights. The Ninth Circuit ruled that when the school district ceased its longstanding business relationship with the vendor upon receiving complaints from parents about controversial social media posts by the company’s owner, it raised First Amendment issues.
The two important take-aways from the case are: (1) when ceasing a business relationship because of viewpoints associated with a private company, the same First Amendment test applies as for speech by public employees (i.e., the “Pickering” test), and (2) whether the speech at issue causes or threatens to cause sufficient disruption at the agency constitutes an important factor Courts will consider in determining whether a decision to cease doing business in this context is constitutional.
Factual Background
Riley’s American Heritage Farms (“Riley’s Farm”) provides historical reenactments from the American Revolution, the Civil War, and historical farm life for students on school field trips. It also hosts events such as apple picking. For many years, the Claremont Unified School District arranged for student field trips to Riley’s Farm. The principal shareholder of the company used his personal Twitter account (separate from any social media account for business) to comment on a range of controversial topics, including, as the Ninth Circuit opinion described: “President Donald Trump’s alleged relationship with Stormy Daniels, President Barack Obama’s production deal with Netflix, Senator Elizabeth Warren’s heritage, and Riley’s opinions on gender identity.” Parents of students in the District learned of the posts, and reported them to the District as alarming and biased. In August 2018, a parent of a kindergarten student emailed to her child’s teacher: “I do NOT feel comfortable with my son patronizing an establishment whose owner (and/or family/employees) might be inclined to direct bigoted opinions towards my child or other vulnerable children in the group.” Other parents began to make similar communications to teachers and administrators at the District, local news media reported on the controversy, and ultimately field trips to Riley’s Farm from District schools stopped. (The District disputed whether there was any actual policy prohibiting field trips.) Riley’s Farm and its owner sued District officials in federal court, contending that the discontinuation of business constituted retaliation prohibited by the First Amendment. They contended it essentially constituted punishment of the owner for his speech on social media.
The Trial Court found in favor of the District officials, on the basis that their damages claim was barred by qualified immunity, a defense available to public officials based on lack of clarity in the law, as described below. The Trial Court also ruled that Riley’s Farm’s separate injunctive relief claim failed because there was no evidence the school district continued to have a policy against doing business with the company.
The Court’s Ruling in Riley’s
The Court of Appeals reversed in part. Although it ultimately agreed that qualified immunity barred Plaintiffs’ damages claims, it determined that the injunctive relief claim survived because evidence in the record showed the school district did appear to have a policy of not patronizing Riley’s Farm.
As to the issue of First Amendment liability, the Court held it was possible on the record that liability existed, so that summary judgment for either side was not possible. Further proceedings were necessary, including possibly a trial.
a. First Amendment Rights of Businesses
In reaching its decision, the Court of Appeals mapped out how First Amendment law applied to an agency’s decisions as to its business relationships. The Court began by reciting the general rule that the government may not punish individuals for protected speech without violating the First Amendment. The question, the Court continued, was whether First Amendment law allowed the government some leeway when it came to choosing which business relationships to continue or discontinue. The Court explained that it did, and that the appropriate analogy to the agency-vendor relationship is the agency-employee relationship. The agency-employee relationship is governed by the “Pickering” test (from the seminal 1968 U.S. Supreme Court case on public employee speech rights Pickering v. Board of Education). This test acknowledges that government employees have First Amendment free speech rights as against their own employer, but that those rights are diminished when compared to rights of members of the public generally. The Court observed that appellate decisions had already applied this test to a number of different types of contracting relationships, and ultimately determined that the test should apply in the Riley’s case as well, even though the business relationship was less formalized and not pursuant to a specific contract.
b. How the First Amendment Rights Applied
The Court proceeded to apply the Pickering test as follows. It explained that the test requires among other things, that the speech be on a matter of “public concern,” that the plaintiff suffer an adverse action from the government agency because of the speech, and that the agency demonstrate that it caused the adverse action because the agency “had ‘legitimate countervailing government interests [that were] sufficiently strong’ . . . to ‘outweigh the free speech interests at stake.’” (Quoting authority.) Under applicable precedent, an agency can make this demonstration by showing that the speech at issue caused sufficient actual or threatened disruption of the agency’s operations.
The Court determined that Riley’s speech on Twitter satisfied the “public concern” requirement, because of “public concern” includes speech on such topics as “politics, religion, and issues of social relations.” The Court next found that Riley’s Farm suffered an adverse action as a result of discontinued business from District field trips. Finally, the Court determined that the District did not meet its burden under the balancing of interests, in particular because the District’s evidence did not show significant actual or threatened disruption from Riley’s speech on Twitter.
In concluding the District has presented insufficient evidence to prevail in the balancing of interests, the Court emphasized, first, that there was only an “attenuated relationship between Riley’s controversial speech and the field trips themselves.” In particular, “Riley’s controversial tweets were made on his personal Twitter account, and did not mention or reference the School District or field trips to Riley’s Farm in general,” there were no allegations “that Riley made (or planned to make) any controversial statements during a school field trip,” and there were “no allegations that he interacted at all with the students during the field trips.”
Second, no sufficient evidence of disruption existed. The District presented the Trial Court with only “two complaints from parents, only one of which involved a student currently enrolled in the School District,” and a reference to other parents excusing themselves from trips, without the District describing “the number of parents or the nature of those complaints.” (By contrast, other cases had found complaints from 60 or “hundreds” of parents sufficient evidence of disruption under the circumstances of those cases for the school district to prevail on balancing.) There was also insufficient evidence of future disruption, in that only a handful of parents appears to have asked that their students be excused from a single field trip. The Court also observed, in evaluating disruption, that there had been only relatively sparse media attention directed to Riley’s tweets, compared to other cases in which a significantly greater public controversy arose.
The Court of Appeals did, however, confirm that the doctrine of qualified immunity blocked any damages claims against officials of the District. Under the doctrine of qualified immunity, a public official who violates an individual’s constitutional rights is nevertheless not liable in damages if those rights were not clearly established at the time of the misconduct.
Qualified immunity, however, did not apply to Plaintiffs’ request for injunctive relief. That meant Plaintiffs’ case for injunctive relief could proceed.
Import of the Riley’s Case Ruling
The case illustrates hazards in an agency’s terminating a business relationship with an individual or company based on the political, social, or other views they express, particularly when that expression of views has no connection to the services the individual or company has offered. Under the test described by Riley’s, however, it is possible for an agency to do so without violating the First Amendment. To do so, the agency must be able to present sufficient evidence it would prevail in a balancing of interests, including sufficiently persuasive and substantial evidence of the disruption caused by the speech at issue or that could be caused.
Given the often complex nature of this area of law, it is helpful to consult trusted legal counsel when these types of First Amendment issues arise. Federal case law will likely soon provide further answers in these areas.
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.
Updating personnel rules is an endless task. Laws are constantly changing, and agencies are experiencing significant operational changes now more than ever. The responsibility of ensuring that all personnel rules are up to date and reflect both the legal requirements and the operational requirements is time-consuming and daunting. However, auditing personnel rules is one of the most valuable ways for agencies to avoid liability. You may be asking yourself: “where do I even start?” There is no simple answer – most policies are important and valuable – but a good starting point is to make sure your agency’s personnel rules and policies at least include those required by law.
Your focus should be on adopting and clearly establishing legally-mandated policies and standards. It is critical to make sure these policies remain up to date on a yearly basis in order to remain compliant with new laws and regulations from California legislators, California and federal courts, and rule-making administrative bodies. Below is a list of the most important policies that must be included in your agency’s personnel rules to ensure legal compliance.
Every agency should have an equal opportunity policy that makes a strong and clear statement against all forms of illegal discrimination. This policy should cover both applicants and existing employees and list the protected classifications established by California law. Protected classifications include race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age (40 and over), sexual orientation, or military and veteran status or any other basis protected by law.[1]
In addition to the general equal employment opportunity policy, agencies should have a policy that clearly defines protected classes, what constitutes harassment, discrimination, and retaliation and how the agency addresses claims of harassment, discrimination, and retaliation. Specifically, state law requires that harassment prevention policies set forth: (1) the illegality of sexual harassment; (2) the definition of sexual harassment; (3) a description of sexual harassment; (4) the internal complaint procedure; (5) legal remedies available through the Department of Fair Housing and Employment (“DFEH”) and how to contact DFEH; and (6) the legal protections from retaliation provided under California law.[2] Each of the enumerated items above must be clearly outlined in the agency’s personnel rules.
Public agencies have an affirmative duty to provide applicants and employees who are disabled with reasonable accommodations. Employers must engage in a timely, good faith, interactive process in order to determine what accommodation(s) must be made for the employee to perform his or her essential job functions. Further, an employer must determine if an accommodation can be made without causing an undue burden to the employer or presenting a direct threat to the health and safety of others.
Your agency’s reasonable accommodation policy should outline the procedure for requesting and receiving an accommodation. Specifically, it should cover: (1) how to make a request; (2) what documentation may be requested; (3) fitness for duty exams; (4) the interactive process; and (5) that determinations will be made on a case-by-case basis. This section should also include a process of resolving requests for religious accommodations.
Numerous leave policies should be included in agencies’ personnel rules. Leaves include both legally required and operationally required leaves. The leaves section should include: (1) vacation time accrual if provided, and the procedures for taking the time off; (2) the agency’s designated holidays; and (3) any other leave time the agency grants employees. The below are leave policies required by law.
a. Federal Family Medical Leave Act (“FMLA”) and California Family Rights Act (“CFRA”)
The FMLA and CFRA both provide rights to employees to take leave to care for family members. Your policy must include the definitions as provided in each Act and note the differences where they exist. Employers are required to inform employees of when they are qualified to take this type of leave and how much leave may be taken. This policy will need to be highly detailed to inform employees of their rights under both FMLA and CFRA.
b. Pregnancy Disability Leave (“PDL”)
Employers are obligated to provide leave for pregnant employees. PDL is separate and distinct from the need to take a leave of absence as part of a reasonable accommodation and has different qualifications than leave under FMLA and CFRA. At a minimum, employers are required to provide four (4) months of leave for pregnant employees. This policy should cover the amount of leave permitted, whether employees will be paid during the leaves, notification requirements, and the process for reinstatement after the conclusion of the leave.
c. Sick Leave
Sick leave is required under two California laws: the Healthy Workplace Healthy Family Act of 2014 and the Kin Care Law. While these laws are separate and distinct, they overlap in important ways. Your agency’s sick leave policy should cover both of these required sick leave laws.
California’s Healthy Workplace Healthy Family Act of 2014 requires employers to provide paid sick leave. It entitles an employee who has worked at least thirty (30) days in twelve (12) months with an employer in California to accrue sick leave. Employees are permitted to use sick leave to attend to their own illness and the illness of other family members.
California’s 2001 Kin Care law requires those employers who already provide paid sick leave to expand the permissible use of that sick leave, so that employees can use up to half of accrued and available annual sick leave entitlement to attend to the illness of the following family members: child, parent, spouse, or registered domestic partner. Kin Care leave can also be used to attend to issues related to domestic violence. Sick leave policies must accurately cover requirements under both laws and reflect any additional sick leave benefits employers may provide.
It is critical to provide a policy that (i) defines overtime in a manner consistent with the Fair Labor Standards Act (“FLSA”) and (ii) requires non-exempt employees to obtain pre-approval from their supervisor prior to working overtime. This policy will lay out the obligations of employees when it comes to overtime work. Agencies should also clearly define what work is compensable for overtime calculations. The FLSA only requires that actual hours worked be counted, but some employers will count additional hours. Employees should be able readily to determine what their obligations are when working overtime and what will be counted towards compensable time.
Conclusion
The above is not an exhaustive list of legally required policies and only provides a brief overview of the critical components of each policy. Nevertheless, it should serve as a starting point and guidepost in considering whether your agency’s personnel rules are missing any critical policies. Most agencies will have these policies, but many policies are outdated or incomplete. Because the aforementioned policies are required by law, it is critical to ensure they are kept up to date on an annual basis. While regular audits of personnel rules may be time-consuming and cumbersome, it is an effective way that an agency can reduce its exposure with respect to employee claims.
Check here to see if your policies reflect the most recent legal updates.
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[1] Gov. Code §12940, subd. (a).
[2] Cal Code Regs., tit. 2, § 11023.
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