Senate Bill 1421 (“SB 1421”) went into effect on January 1, 2019.  As a result, under Government Code section 832.7 as amended, certain types of peace officer personnel records became subject to disclosure pursuant to a California Public Records Act (“CPRA”) request. Shortly after the effective date of SB 1421, Kern High School District received CPRA requests for such records from several sources, including news agencies.  Upon receipt of these CPRA requests, the District notified Jerald Wyatt, a police officer it previously employed, that it identified responsive documents in his personnel file.

During Mr. Wyatt’s employment, an internal affairs investigation was opened into allegations against him.  However, by the time the investigation was completed, the District no longer considered Mr. Wyatt an active employee.  When Mr. Wyatt requested access to his personnel file, he discovered among other things, a document listing two sustained findings for “Misuse of [the California Law Enforcement Telecommunications System]” and “Dishonesty.”  Mr. Wyatt claimed that he was not notified of these findings.  Under SB 1421, records relating to sustained findings of certain dishonesty-related misconduct by a peace officer are discloseable pursuant to a CPRA request.

Upon receipt of the notification, Mr. Wyatt filed a petition for a writ of mandate, temporary restraining order, and preliminary injunction, to enjoin the District from producing documents in his personnel file in response to the CPRA requests.  He argued that the records at issue did not relate to “sustained” findings (as the term is defined in Penal Code section 832.8, subdivision (b)) because he was never notified of such findings, and did not receive an opportunity to administratively appeal.  The case ultimately made its way to the Fifth District Court of Appeal.

Endeavoring to determine the parameters of the District’s obligations in connection with the CPRA requests at issue, the Fifth District Court of Appeal in Wyatt v. Kern High School (2022) — Cal.Rptr.3d – first considered SB 1421.

Looking to the legislative history of SB 1421, the appellate court found no indication that the Legislature considered a situation such as Mr. Wyatt’s – that is, a situation where sustained findings were made after a peace officer’s separation from employment.  Under these circumstances, California courts would have to guess between two equally plausible outcomes – that the Legislature would have determined that the records are disclosable or, just as likely, that it would have concluded that a peace officer’s privacy interests prevail in the absence of notice and an opportunity to administratively appeal.  Refusing to engage in guesswork, the appellate court found that the records at issue were not disclosable under SB 1421.

The appellate court’s analysis did not end there, however.  The Fifth District acknowledged that, pursuant to Senate Bill 16, which expanded upon SB 1421 and went into effect on January 1, 2022, “Records that shall be released pursuant to this subdivision also include records relating to an incident specified in paragraph (1) in which the peace officer or custodial officer resigned before the law enforcement agency or oversight agency concluded its investigation into the alleged incident.”  (Penal Code § 832.7, subd. (b)(3).) The appellate court expressed no opinion as to what the outcome of CPRA requests for the records at issue received on or after January 1, 2022 might be.

In light of the Fifth District Court of Appeal’s decision in Wyatt v. Kern High School, a public agency’s obligations when faced with a CPRA request may depend, in great part, on whether a finding was “sustained,” within the meaning of applicable law, and the timing of the request.  If a CPRA request seeks records of sustained findings as to which a peace officer did not receive notification or an opportunity to administratively appeal, such records are not disclosable under SB 1421 if the request was received on or before December 31, 2021.

Whether such records are disclosable under SB 16 if the request was made on or after January 1, 2022 is an open question.  Agencies are strongly encouraged to consult with an attorney prior to responding to CPRA requests pursuant to SB 1421 and SB 16.

When does a City create a public forum for speech under the First Amendment?  When can a City restrict which flags fly on a City flagpoles?  When can a City limit religious speech under the First Amendment?  The United States Supreme Court addressed these questions in its unanimous decision in Shurtleff v. City of Boston, Case No. 20–1800 on May 2, 2022.

Boston’s Practice of Allowing Groups to Raise Flags Outside City Hall

This case revolved around a flagpole outside Boston City Hall.  There are three flagpoles on the plaza outside Boston’s City Hall.  The first flies the American flag, the second flies the Commonwealth of Massachusetts flag, and the third usually – but not always – flies Boston’s flag.  Boston allows the public to use City Hall Plaza for events and acknowledges it is a “public forum.”  A public forum is a place the public can use for the free exchange ideas and for purposes of assembly.  When a public forum exists on government property, the government may only regulate the content of expressive activity if it serves a compelling state interest and narrowly drawn to achieve that interest.

Since at least 2005, Boston also allowed groups to have flag-raising ceremonies on the plaza where they were allowed to raise a flag of their choice on the third flagpole. Examples included flags of other nations, Pride Week, emergency medical workers, and a community bank.  About 50 different flags were raised between 2005 and 2017 and Boston never denied a request.

Boston Denies Request to Raise Christian Flag on Flagpole

Harold Shurtleff is the director and co-founder of an organization called Camp Constitution.  In 2017, Shurtleff applied for a flag-raising event on the Plaza to “’commemorate the civic and social contributions of the Christian community’” where he sought to raise what was described as the “Christian flag.”  The picture of the flag showed “a red cross on a blue field against a white background.”  Boston denied the request because it was the “Christian flag” and believed raising the flag would violate the Establishment Clause of the First Amendment.  The Establishment Clause prohibits public employers from engaging in conduct that endorses religion (i.e., it requires “separation of church and state”).  The City told Shurtleff the event could proceed if they raised a different flag.

Shurtleff and Camp Constitution sued claiming the City’s refusal to let them raise the Christian flag violated their right to free speech. The parties agreed on all the relevant facts.  The District Court ruled in favor of Boston and the United States Court of Appeals for the First Circuit affirmed.  The Supreme Court unanimously reversed and ruled in favor of Shurtleff.

The Supreme Court’s Decision

The Supreme Court focused on two questions:  (1) is the flag raising program government speech, and (2) can Boston deny the request under the First Amendment?

Was Raising the Flag Government Speech?

The Court first recognized that the First Amendment does not limit a government’s ability to express opinions or “speak for the community.”  This line “can blur” when there is public participation in a government program.  The Court explained it makes a “holistic inquiry” to evaluate “whether the government intends to speak for itself or to regulate private expression.”  The Court considered the following factors, such as “the history of the expression at issue; the public’s likely perception as to who … is speaking; and the extent to which the government has actively shaped or controlled the expression.”

While acknowledging flags convey government messages, the court noted the flag raising program allows other flags which the public may not associate with Boston.  More importantly, Boston did not control the flags raised by groups in the flag raising program.  While Boston controlled the scheduling of the event, maintained the physical premises, and provided a crank to raise the flag, Boston exercised no control over the content or messages conveyed by the flags.  Boston has no policies or guidance on what flags groups could fly, expressed it wished to accommodate all applicants, and until this event, never even saw the flags before the events.  Because the City had little to no involvement in the selection of the flags raised by the public or their message, or the events at which they were raised, the Court concluded the flag raisings are private expression and not government speech.

Could Boston Refuse to Raise the Christian Flag?

Because the public flag raisings constitute private expression – not government speech – Boston cannot discriminate based on viewpoint.  The Christian flag is Camp Constitution’s speech – not Boston’s.   Because Boston denied the Christian flag on the basis it promoted Christianity, that is impermissible viewpoint discrimination in violation of the First Amendment.

Three Takeaways For Your Agency

  1. Before regulating speech or expression, especially in connection with public events or programs, take a “holistic approach” to consider who is speaking – is your agency speaking or a private citizen?
  2. Implement and follow written policies to control government speech. The main reason the Supreme Court concluded the flag raising program was private – and not government – speech was because the City had no policies over the selection of the flags.  In contrast, the Court noted the City of San Jose California has a written policy stating its flagpoles are not a public forum for free expression.
  3. When your agency creates a public forum for free expression, be on the lookout for any regulations of the content of expressive activity in the forum. Limit restrictions in public forums to limits on the time, place, and manner of expressive activity.  These time, place and manner restrictions must be content-neutral, serve a significant government interest, and leave open ample alternative channels of communication.

Public agencies have to be mindful of the protections the First Amendment provides to the public when seeking to limit expressive activity on government property.  LCW regularly advises public agency and education clients concerning First Amendment issues and can assist you with these issues.

Nearly all California employers are impacted by, and should be familiar with, the provisions of the California Family Rights Act (“CFRA”) and the Fair Employment and Housing Act (“FEHA”).  There are currently bills working their way through the Legislature that would modify these key statutes.

AB 1949: Modifying CFRA to Include Bereavement Leave

The CFRA provides eligible employees with up to 12 weeks of unpaid protected leave during any 12-month period to care for their own serious health condition, to care for a family member with a serious health condition, or to bond with a new child.

This bill would amend CFRA to prohibit employers from denying a request from an eligible employee (defined as a person employed by the employer for at least 30 days prior to the commencement of the leave) to take up to 5 days of bereavement leave upon the death of a family member, which includes the employee’s spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law.  The employee would be required to take the 5 days of leave within 3 months of the date of the family member’s death.

Leave under this bill would be unpaid, but, where an employer already has a bereavement leave policy in place, the CFRA bereavement leave would be taken pursuant to that policy.  Where an employer does not have an existing bereavement leave policy (or the existing policy provides for less than 5 days of paid bereavement leave), the bill would require that employees be allowed to use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available to the employee.

Under this bill, employers could require employees requesting bereavement leave to provide documentation of the death of a qualifying family member, such as a death certificate, a published obituary, or written verification of death, burial, or memorial services from various sources.

A note for employers with represented employees – the new CFRA bereavement leave provision would not apply to employees who are covered by a valid collective bargaining agreement that already provides for bereavement leave.

AB 2188: Modifying FEHA to Include Off the Clock Cannabis Use as a Protected Characteristic

The FEHA prohibits discrimination, harassment, and retaliation in the workplace on the basis of various specified protected characteristics, including race, religion, disability, sex/gender, age, and sexual orientation.

Beginning on January 1, 2024, this bill would amend the FEHA to also make it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, for (1) the person’s use of cannabis off the job and away from the workplace; and/or (2) the results of an employer-required drug screening test that found the person to have nonpsychoactive cannabis metabolites in their urine, hair, blood, or bodily fluids.

This prohibition is based on the Legislature’s findings that, when most drug tests for cannabis are conducted, the results show only the presence of nonpsychoactive cannabis metabolites.  These nonpsychoactive metabolites do not indicate impairment, only that an individual has consumed cannabis in the last few weeks.  As science has improved, employers now have access to tests that do not rely upon the presence of nonpsychoactive metabolites and instead, for instance, measure an individual employee against their own baseline performance and/or identify the presence of THC (the chemical compound in cannabis that can indicate impairment and cause psychoactive effects) in an individual’s bodily fluids.

This bill would not prohibit employers from taking action against a person based on “scientifically valid pre-employment screening conducted using methods that do not screen for nonpsychoactive cannabis metabolites.”  The bill does not provide any insight into specific testing that would be permissible under this standard, but this provision seems aimed towards ensuring that employers rely upon the more sophisticated testing available even in pre-employment testing.

The bill would also exempt certain applicants and employees from the bill’s provisions, including employees in the building and construction trades and employees in positions that require a federal background investigation or clearance. Similarly, the bill would not preempt state and/or federal laws requiring applicants or employees to be tested for controlled substance.

 

LCW will continue to monitor and report on any developments with these and other employment-related bills.

On June 8, 2022, the California Department of Public Health (“CDPH”) adopted new definitions for two terms that are critical to determining how employers must respond to COVID-19 cases in the workplace: “close contact” and “infectious period.”[1]

The updated definitions will affect employer obligations under both CDPH health orders that use such terms and the Cal/OSHA COVID-19 Emergency Temporary Standard (“ETS”), which relies on these CDPH definitions to establish workplace health and safety obligations.

In order to ensure compliance with applicable health orders and regulations, California employers must adapt their policies and practices concerning workplace COVID-19 exposures. The purpose of this special bulletin is to review the updated definitions, explain the legal implications for employers, and provide guidance as to how employers should respond in order to ensure compliance with the new legal requirements.

Revised Definition of “Close Contact” Focuses on Shared Indoor Airspace

Pursuant to the June 8, 2022 Health Order, CDPH now defines a “close contact” as follows:

[S]omeone sharing the same indoor airspace (e.g., home, clinic waiting room, airplane etc.) for a cumulative total of 15 minutes or more over a 24-hour period (for example, three individual 5-minute exposures for a total of 15 minutes) during an infected person’s (laboratory-confirmed or a clinical diagnosis) infectious period.

(Emphasis added.)

This definition removes the prior requirement that the contact must be “within six feet” to constitute a “close contact” and replaces that bright-line rule with a more ambiguous one that the individuals “shar[e] the same indoor airspace.” While the new definition “acknowledge[s] that COVID-19 is an airborne disease . . . , rather than one spread by respiratory droplets,”[2] it does not necessarily take into account how employers are to determine which employees share the same airspace in the event of a workplace exposure.

The new definition carries added significance, because the ETS uses the CDPH definition of “close contact”[3] to trigger certain workplace health and safety obligations.

Investigating and Responding to COVID-19 Cases

The most important issue will be how employers identify “close contacts” under the new, expanded, but more ambiguous definition. On June 20, 2022, CDPH provided some guidance to assist employers in this regard.

Updated Approach to Identifying “Close Contacts”

While the revised definition, in combination with regulatory obligations under the ETS, requires that employers exclude “close contacts” who are symptomatic, the CDPH also recommends prioritizing “high-risk contacts” for identification, testing, and potential exclusion. The CDPH provides the following criteria to identify such “high-risk contacts”: (1) the individual’s proximity to the COVID-19 case; (2) the duration or intensity of the exposure; and (3) any heightened risk of severe illness or death the individual might have from exposure.[4]

The CDPH’s “high-risk contact” framework exposes employers to potential liability under federal and state laws that protect the confidentiality of employee medical information. The federal Americans with Disabilities Act (“ADA”) and the California Fair Employment and Housing Act (“FEHA”) both prohibit medical inquiries unless the employer can demonstrate that the inquiry is job-related and consistent with business necessity.[5] Additionally, the California Confidentiality of Medical Information Act (“CMIA”) prohibits use or disclosure of employee medical information unless one of a few very narrow exceptions applies or the employee gives written, CMIA-compliant permission.[6]

It can be difficult and time-consuming to use or access employee medical information correctly, and the penalties for wrongful access, use, or disclosure are severe. Rather than risk issues with employee medical information, we generally advise that employers adopt the following approach in order to ensure compliance with the new definition and the associated ETS exclusion requirements:

  1. Pursuant to Labor Code section 6409.6, inform all employees in the workplace of the exposure;[7]
  2. Inform such employees that, should they present a symptom or symptoms associated with COVID-19 subsequent to the exposure, they should contact Human Resources for additional instruction;[8]
  3. Identify rooms or areas within the larger workplace where the COVID-19 case was present and where there may be “shared airspace” with other employees. These spaces may include, but are not limited to, waiting rooms, bathrooms, breakrooms, eating areas, open work areas, and rooms with open doors[9] that connect to such spaces. While “transient exposures” in hallways may not independently total 15 minutes, employers should identify such spaces for the cumulative effect the exposures in such areas may have on employees;[10] and
  4. Investigate employees’ potential exposures to the COVID-19 case in order to determine whether the employee “shar[ed] the same indoor airspace” as the COVID-19 case for 15 minutes or more.[11] If the employee meets the new definition of “close contacts” and the employee is symptomatic, the employer must instruct the symptomatic “close contact” to leave the workplace[12] and not return until satisfying the ETS return-to-work requirements.[13]

We believe the above approach will account for individuals considered “high-risk contacts” by the CDPH, as well as anyone else who qualifies as a “close contact” under the new definition. This approach is meant to ensure that the employer has discharged both its statutory and regulatory obligations. Employers should note that future orders or guidance from the CDPH might further change the approach to workplace “close contacts.”

“Infectious Period” Now Aligns with Shortened Isolation and Quarantine Periods

The CDPH Health Order also revises the definition of “infectious period” as follows:

  • For symptomatic infected persons, the period starts 2 days before the infected person had any symptoms and lasts through Day 10 after symptoms first appeared (or through Days 5-10 if testing negative on Day 5 or later), and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved.
  • For asymptomatic infected persons, the period starts 2 days before the positive specimen collection date and lasts through Day 10 after positive specimen collection date (or through Days 5-10 if testing negative on Day 5 or later) after specimen collection date for their first positive COVID-19 test.

Previously, the ETS definition of “infectious period” applied. The ETS defines “infectious period” almost identically to the new CDPH definition, except that the ETS did not account for an early end to the infectious period if the COVID-19 case tests negative on or after Day 5 and meets the other requirements listed in the CDPH definition. Now, because the CDPH has defined “infectious period” in a Health Officer Order, the ETS will follow the CDPH’s definition.[14]

Changes to the definition of “infectious period” bring it in line with current CDPH and Cal/OSHA ETS return-to-work requirements. Therefore, the updated definition should not result in any significant changes to how employers handle COVID-19 cases, workplace exclusion, or return to work.

LCW attorneys are monitoring changes to COVID-19-related requirements and stand ready to assist employers with COVID-19 response and prevention.

________________________________________________________________________________________________________

[1] CDPH, “Beyond the Blueprint” (June 8, 2022) <https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Order-of-the-State-Public-Health-Officer-Beyond-Blueprint.aspx> [State Health Officer Order].

[2] CDPH, “Isolation and Quarantine Q&A” (June 20, 2022) <https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Isolation-Quarantine-QA.aspx>.

[3] 8 C.C.R. § 3205(b)(1) (stating if “close contact is defined by regulation or order of the CDPH[, then] the CDPH definition shall apply”).

[4] The CDPH has also stated a “high-risk contact” may include a person “who may experience severe illness if they become infected with COVID-19 or for whom the transmission potential is high (high intensity/duration of indoor exposure).” CDPH, “Guidance for Local Health Jurisdictions on Isolation and Quarantine of the General Public” (June 9, 2022) <https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Guidance-on-Isolation-and-Quarantine-for-COVID-19-Contact-Tracing.aspx>.

[5] 42 U.S.C. § 12112(d)(4)(A) [ADA]; Gov. Code § 12940(f)(1) [FEHA].

[6] Civil Code §§ 56, et seq.

[7] 8 C.C.R. § 3205(c)(3)(B)3.

[8] 8 C.C.R. § 3205(c)(1)(A).

[9] NOTE: Current CDPH guidance does not clearly describe which rooms or areas that are connected to a “shared airspace” would also be considered part of the shared airspace. Accordingly, the most cautious approach is to treat any connected rooms or areas as part of the “shared airspace” until the CDPH publishes further guidance that clarifies the issue.

[10] CDPH, “Isolation and Quarantine Q&A” (June 20, 2022).

[11] CDPH, “Beyond the Blueprint” (June 8, 2022); CDPH, “Isolation and Quarantine Q&A” (June 20, 2022).

[12] 8 C.C.R. § 3205(c)(9)(B); CDPH, “Guidance for Local Health Jurisdictions on Isolation and Quarantine of the General Public” (June 9, 2022) [Table 2: Close Contacts – General Public].

[13] Currently, COVID-19 cases who were asymptomatic or whose symptoms are resolving may return to work if they test negative at least five days after the date that symptoms first presented or they took the specimen that resulted in the first positive test, and if the individual has gone at least 24 hours without a fever of 100.4 degrees Fahrenheit or higher without the use of fever-reducing medication. 8 C.C.R. § 3205(c)(10)(A). If symptoms are not resolving, the COVID-19 cases cannot return to work until at least 24 hours have passed without a fever of 100.4 degrees Fahrenheit or higher without the use of fever-reducing medication, the symptoms are resolving, and at least 10 days have passed since the date that symptoms first presented or they took the specimen that resulted in the first positive test. 8 C.C.R. § 3205(c)(10)(B). NOTE: ETS return-to-work requirements currently mirror the CDPH’s isolation and quarantine guidance. However, if the CDPH advises a shorter isolation or quarantine period, that shorter period would control so long as Executive Order N-84-20 is in effect.

[14] 8 C.C.R. § 3205(b)(9) (“‘Infectious period’ means the following time period, unless otherwise defined by CDPH regulation or order, in which case the CDPH definition shall apply.”).

You’ve probably heard the term “Skelly” meeting or conference hundreds, if not thousands of times, but what does “Skelly” really mean?  Even if you think you know, a refresher can’t hurt, right?!

Most California public employees have what is known as a constitutionally protected “property” interest in continued employment, once and if they successfully complete their probationary period in the position. This can make the already difficult decision to impose “significant” discipline, up to and including terminating an employee for cause, even more complex for public agencies looking to balance considerations of fairness, constitutionality, and agency operational needs. Imposing significant discipline on an employee with a property interest in the employee’s position requires an agency to provide pre-discipline and post-discipline “due process”— generally, the opportunity to be heard within a reasonable time and in a meaningful manner. Failure to provide due process protections can result in a disciplinary action being reversed or civil actions being filed against the agency.

Pre-Discipline (Skelly) vs. Post-Discipline Due Process Rights

The requirements for pre-discipline and post-discipline due process are distinct. The legal floor for pre-discipline due process that an employer must provide, as well as best practices and strategies for ensuring that a disciplinary termination is upheld, require,

(1) A written notice of intent to impose significant discipline,

(2) A reasonable time for the employee to respond,

(3) The opportunity for a Skelly conference before an appropriate “Skelly Officer,” and

(4) A final notice of discipline.

These procedural safeguards are commonly referred to as “Skelly rights” after the 1975 California Supreme Court case Skelly v. State Personnel Board.  There, the Court found that a plaintiff employee was denied due process when he was terminated, without the above safeguards, for misconduct for which he had been repeatedly counseled, reprimanded, and even suspended. In addition to these Skelly rights, agency rules, memoranda of understanding (MOUs), or collectively bargaining agreements (CBAs) may provide additional due process protections to employees.

Post-discipline or termination due process requires the opportunity for an evidentiary appellate hearing, with procedural safeguards that generally present more like a civil trial. During the hearing, the employer bears the burden of proving the charges against the employee by a “preponderance of the evidence” (i.e. greater than 50%, more likely than not). At the conclusion of the hearing, or shortly thereafter, the hearing officer or decision-making body will typically issue a detailed written decision explaining their findings on the sufficiency of the evidence and the appropriateness of the level of the discipline.

“Significant” Discipline

In the absence of agency rules or MOU provisions to the contrary, Skelly pre-disciplinary due process does not apply unless the level of discipline is “significant.” Generally, discharges, suspensions, demotions, and disciplinary reductions in pay are considered “significant.”  However, warnings (verbal or written) and reprimands are usually not considered “significant.”  Additionally “improvement needed” ratings in performance evaluations, denial of merit increases, counseling sessions, and releases during probation do not require Skelly procedures either (because they are not considered to be discipline).

Case authority suggests that, unless there is an agency rule, MOU, or practice to the contrary, suspensions of fewer than five days would not trigger the Skelly procedures, as long as the Skelly rights can be afforded during the suspension or within a reasonable time thereafter. However, notwithstanding such authority, there is risk in not using Skelly procedures before imposing discipline whenever the proposed discipline involves a loss of pay, including suspensions of fewer than five days.

Best Practices for Pre-Discipline Due Process (Skelly Proceedings)

Ensuring compliance with an employee’s Skelly rights and relevant agency policy or MOU/CBA provisions is the minimum to which an agency must adhere when imposing significant discipline on an employee.   However, in addition to such minimum requirements, implementing disciplinary best practices will help protect your agency from challenges to your agency pre-discipline processes, which could result in overturning a disciplinary decision during a post discipline appeal hearing.

  1. Adhere to the Principle and Practice of Progressive Discipline, and Document Thoroughly. More often than not, the events which lead to imposition of significant discipline begin long before Skelly rights manifest. Documentation of disciplinary actions taken before significant discipline serves as the evidentiary foundation in the event an agency needs to later issue a notice of intent to impose significant discipline. Critically, thorough and constructive documentation give employees the best opportunity to correct course, potentially removing the need for more significant discipline and Skelly procedures at all. While there are of course situations that may necessitate an agency’s need to forego progressive discipline, such situations should be considered exceptions, and not the rule.
  2. Be Fair and Transparent. When delivering the notice of intent to impose significant discipline, ensure that the letter is thorough but concise, and lacks ambiguity. The notice of intent (and final notice) should list and include as exhibits all the materials the agency relied upon in making its recommendation for the proposed discipline.

Additionally, the notices and level of discipline should be fair in light of agency past practices and procedures.  Employee discipline is often reviewed by a hearing officer or governing body in light of whether employees in similar situations received the same level of discipline. Fairness may also be judged by whether an agency follows its rules, including applicable deadlines.

  1. Ensure Consistency Between the Notice of Intent and the Final Notice of Discipline. Additional charges that were not included in the notice of intent should not be added to a final notice of discipline after the Skelly conference; otherwise, a new Skelly conference will be required. If newly discovered evidence is gathered supporting new charges, then the new charges and supporting evidence should be included in a new or amended notice of intent and the employer must provide the employee with the right to another Skelly
  2. If an Employee Elects a Skelly Conference, Pick an Appropriate “Skelly ” A Skelly conference is a meeting at which an employee has the opportunity to tell their “side of the story” or to offer any mitigating factors they believe the decision maker should consider before the discipline is finalized. Its purpose, according to the courts, is to minimize the risk of the employer making an error in the action it takes. It is important to remember that the Skelly conference is not an evidentiary hearing.  While a Skelly conference is primarily for an employee’s benefit, management can and should use the meeting as a tool to determine the strength and weaknesses of the charges; ascertain the true defenses available to the employee; and avoid surprise in the event of post-discipline appeal.

If an employee elects to have a Skelly conference, an agency should consider carefully who may be the best person to serve as the “Skelly Officer.” While the Skelly Officer should be “reasonably impartial,” and not involved in the underlying action, courts have found that it is not a violation of due process for a manager who conducted an underlying investigation to serve as the Skelly officer. Additionally, the Skelly officer should:

a. Consider making a record of the Skelly meeting/conference by audio taping it;

b. If the employee does not reveal the information on their own, consider asking questions to ascertain: (1) whether the employee denies the commission of any of the alleged conduct; and (2) the full range of defenses that the employee may be claiming, including the existence of past practices adverse to management, claims of disparate treatment, and (particularly if the employee is represented by counsel) any legal impediments to the imposition of discipline; and

c. Get the names and contact information of all witnesses who would corroborate the employee’s position.

  1. Become Familiar With, and Adhere to, Applicable Procedures and Time Limits in Your Agency’s Policies, MOU, CBA, or Statutes. For example, an agency has 30 days after deciding to impose discipline to serve a firefighter or police officer with a final notice of discipline. Or, discipline of academic employees of a community college district must be commenced within four years, and of classified employees within two years, of the conduct that forms the basis for the disciplinary action.

As a best practice, an agency should serve the final notice of discipline within 30 days after the Skelly meeting/conference. Doing so will avoid any dispute as to whether the agency timely served the final notice. Some agencies also have their own rules (e.g., personnel rules or MOU or CBA provisions), which contain specific time limits for service of disciplinary documents.

  1. Know What Kinds of Disciplinary Actions Trigger Due Process Requirements. As explained above, Skelly rights only attach to “significant” discipline. When in doubt as to whether a certain level of discipline triggers such protections, examine relevant agency rules, MOUs, or CBAs, and check with your legal counsel.

Authors: Alysha Stein-Manes and Nathan J. Price

On Thursday, June 23, 2022, the U.S. Department of Education released proposed changes to the Title IX regulations. The release of the amendments marks the 50th anniversary of Title IX, the federal law protecting individuals against sex discrimination in education programs and activities supported by federal funding. The proposed regulations will be open for public comment for 60 days from the date of publication in the Federal Register, which is pending.

The Department’s release of the proposed regulations follows a comprehensive review of the existing regulations, which began in March 2021, as directed by Executive Order 14021 – Guaranteeing an Educational Environment Free From Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity.

Major Changes in the Proposed Title IX Regulations

  • Expand protections offered by Title IX: The proposed regulations explicitly protect students and employees from all forms of sex discrimination, including discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity. This protection would include prohibiting an institution from adopting policies and practices that prevent a student from participating in an institution’s education program or activity consistent with their gender identity. (As discussed below, the Department will address separately student eligibility to participate in male or female athletics teams.) The proposed regulations also clarify that an institution must protect students and employees from discrimination based on pregnancy or related conditions.
  • Require institutions to respond to written or verbal complaints: The proposed regulations would establish clear requirements for an institution to investigate all sex discrimination complaints, whether presented orally or in writing.
  • Expand the definition of sex-based harassment: The proposed regulations still feature three categories of sexual harassment. However, they change two categories. First, quid pro quo harassment would no longer be limited to employee respondents and would include agents or others who condition aid, benefits, or services on a person’s participation in unwelcome sexual conduct. Second, a hostile environment would be defined as “Unwelcome sex-based conduct that is sufficiently severe or pervasive that, based on the totality of the circumstances and evaluated subjectively and objectively, denies or limits a person’s ability to participate in or benefit from the recipient’s education program or activity.” The current regulations prohibit unwelcome sex-based conduct only if it is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”
  • Expand when an institution must respond to off-campus conduct, including conduct outside the United States: The proposed regulations require an institution to address sexual harassment in its education program or activity even when the harassment contributing to the hostile environment occurred outside the institution’s education program or activity or outside the United States.
  • Return to proactive reporting and response requirement: The proposed regulations would require an institution to take prompt and effective action to end any prohibited sex discrimination that occurs in its education program or activity, to prevent its recurrence, and to remedy its effects. Non-confidential employees at elementary schools or secondary schools will be required to report conduct that may constitute sex discrimination to the Title IX Coordinator. At a postsecondary institution, employees with authority to take corrective action or who are responsible for administrative leadership, teaching, or advising in the institution’s education program or activity, will be required to report to the Title IX Coordinator information pertaining to students or employees who have been subjected to conduct that may constitute sex discrimination. All other non-confidential employees at a postsecondary institution will be required to either notify the Title IX Coordinator of employee or student sex discrimination, or provide individuals who inform them of conduct that may constitute sex discrimination with the Title IX Coordinator’s contact information or with reporting information.
  • Expand who may file a complaint of sex discrimination: Students, employees and individuals who suffered conduct that could constitute sex discrimination while they were participating or attempting to participate in the institution’s education program or activity will be able to file complaints. Individuals will be able to file a Title IX sex discrimination complaint even if they chose to leave the institution’s education program or activity because of the discrimination or for other reasons. Currently, the regulations limit the Title IX complaint process to current students or employees or to individuals attempting to participate in the institution’s education program or activity. The proposed regulations would also allow third parties to report sex discrimination, but the complainant under the proposed regulations is defined at the individual who is alleged to have been subjected to the sex discrimination, not the third party reporter.
  • Eliminate live hearings, including cross-examinations for post-secondary institutions: The proposed regulations will require an institution to have a process for a decision-maker to assess the credibility of parties and witnesses, if necessary, through live questions by the decision-maker, but the proposed regulations will not require cross-examination by the parties. Accordingly, an institution may determine that its Title IX grievance process is fair and reliable without a live hearing and cross-examination, which are required under the current regulations.
  • Revise retaliation protections: The proposed regulations clarify that Title IX protects a person from retaliation, including peer retaliation. The proposed regulations define retaliation as “intimidation, threats, coercion, or discrimination against anyone because the person has reported possible sex discrimination, made a sex-discrimination complaint, or participated in any way in a recipient’s Title IX process.” The proposed regulations define peer retaliation as “retaliation by one student against another student.” Retaliation will no longer protect individuals from action for refusing to participate in any manner in an investigation, proceeding, or hearing. In other words, an institution will be able to discipline individuals for failing to cooperate in the investigation process.

Foreshadowing Of Additional Title IX Regulations Regarding Athletics

The Department of Education has stated it will engage in a separate rulemaking process to address Title IX’s application in the context of athletics and, in particular, what criteria an institution may use to establish student eligibility to participate on a particular male or female athletic team.

Next Steps

Individuals and institutions are encouraged to provide a public comment to the new proposed regulations once they are published in the Federal Register. The unofficial version of the proposed regulations, a press release inviting public comment, a summary with background information, and a fact sheet published by the Department are found on OCR’s website and can be accessed via this link: https://www.ed.gov/news/press-releases/us-department-education-releases-proposed-changes-title-ix-regulations-invites-public-comment?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term.

Until the Department completes the formal rulemaking process and implements any revised regulations, the current regulations, which became effective on August 14, 2020, remain in effect. An institution’s obligations to address sex- and gender-based harassment and discrimination stem from a variety of sources under federal and state law. To the extent state law and regulations do not conflict with the current Title IX regulations, an institution must follow both. In the event a state law or regulation conflicts with the current Title IX regulations, an institution must follow Title IX.

LCW will be publishing policies, procedures, and forms to assist our clients in complying with the new regulations once they become effective. If your institution needs assistance in complying with federal and state laws protecting students and employees against sex discrimination and harassment, please contact one of our five offices statewide.

This post originally appeared in January 2022.

In light of the current surge in COVID-19 cases, it is important that employers understand their obligations in the event that there is a COVID-19 outbreak at one of their workplaces.

This blog post is intended to provide an overview of the various statutory and regulatory obligations that employers have during an outbreak so that employers can discharge their legal duties and return their operations to normal as soon as possible.

Laws Implicated During a COVID-19 Outbreak

There are two laws that are implicated by workplace COVID-19 outbreaks: (1) Labor Code section 6409.6, which requires that the employer provide notice to the local health department in the event of an outbreak; and (2) the Cal/OSHA COVID-19 Emergency Temporary Standard (“ETS”), which imposes a number of regulatory requirements when there is an outbreak.

Defining “COVID-19 Outbreak”

The Labor Code and Cal/OSHA ETS use similar, but slightly different, definitions for the term “COVID-19 outbreak.” As discussed herein, the difference in the definitions may lead to the unusual or unexpected circumstance where there is an outbreak according to the Labor Code, but not under the Cal/OSHA ETS.

Statutory Definition of an Outbreak under the Labor Code is Broader

The Labor Code relies on the California Department of Public Health (“CDPH”) definition of COVID-19 outbreak. That definition provides that an outbreak means “[a]t least three COVID-19 cases among workers at the same worksite within a 14-day period.” The Labor Code defines “worksite” to mean “the building, store, facility, agricultural field, or other location where a worker worked during the infectious period.” (Lab. Code § 6409.6(d)(7).) As a result of the use and definition on the term “worksite,” the Labor Code provided a definition of “COVID-19 outbreak” that is broader than the Cal/OSHA ETS definition.

Regulatory Definition of an Outbreak under the Cal/OSHA ETS is Narrower

The Cal/OSHA ETS defines the term COVID-19 outbreak to mean “three (3) or more employee COVID-19 cases within an exposed group … [who have] visited the workplace during their high-risk exposure period at any time during a 14-day period.” While the ETS defines the term “exposed group” as meaning “all employees at a work location, working area, or a common area at work, where an employee COVID-19 case was present at any time during the high-risk exposure period” (8 C.C.R. § 3205(b)(7)), it expressly excludes from inclusion work locations that a COVID-19 case momentarily passed through or that the individual visited for less than 15 minutes while using a face covering. As a result, the regulatory definition of an outbreak is more limited than that under the Labor Code.

The Cal/OSHA ETS definitions allow employers to potentially reduce the number of workplace outbreaks by subdividing their “worksites” into smaller “work locations, working areas, or common areas,” and using these specific locations, as opposed to the worksite generally, to determine when there is an outbreak. As a result, there may be circumstances that would constitute an outbreak under the Labor Code, but not under the Cal/OSHA ETS.

Given the different definitions of COVID-19 outbreaks under the Labor Code and Cal/OSHA, employers may want to consider how they will approach a workplace outbreak and whether they would treat an outbreak under the Labor Code as also constituting an outbreak under the Cal/OSHA ETS, despite the different definitions and more specific regulatory criteria.

Statutory Obligations under Labor Code Section 6409.6

As provided above, the principal statutory requirement under Labor Code section 6409.6 is to provide notice of a workplace COVID-19 outbreak to the local health department.

Under that section, upon learning of a COVID-19 outbreak at a worksite, the employer must, within 48 hours or one business day, whichever is later, notify the local public health agency of the following:

  • The names of the employees who are COVID-19 cases;
  • The number of COVID-19 cases;
  • The occupations of the COVID-19 cases;
  • The worksites of COVID-19 cases;
  • The business address of the worksite; and
  • The North American Industry Classification System (“NAICS”) code of the worksite where the COVID-19 cases work.

The employer must further notify the local health department of any subsequent COVID-19 cases at that worksite. (Lab. Code § 6409.6(b).)

In order to comply with these requirements, and hopefully in advance of an actual outbreak, employers should identify the appropriate contact at the local health department to receive the outbreak notice as well as the form, if any, required by the health department to report COVID-19 outbreaks. As always, employers should monitor COVID-19 cases in the workplace and be prepared to report an outbreak if, and when, there are three or more cases in the 14 day period.

Regulatory Obligations under Cal/OSHA ETS

In addition to the statutory notice obligations, the Cal/OSHA ETS imposes regulatory requirements on employers in the event of a workplace outbreak. (8 C.C.R. § 3205.1.).

COVID-19 Testing

Where there is an outbreak, the regulations require that employers make COVID-19 testing available at no cost to employees in the exposed group during such employees’ paid time. (8 C.C.R. § 3205.1(b).)

Employers must offer this testing immediately after becoming aware of the outbreak and then again one week later. Furthermore, employers must continue to offer such testing to employees in the exposed group until no new COVID-19 cases are detected in the exposed group for 14 days. (8 C.C.R. § 3205.1(b)(2)(B).)

This requirement does not apply to (1) employees who were not present during the 14 day period, (2) symptomless and fully vaccinated employees who were fully vaccinated before the outbreak, and (3) COVID-19 cases who returned to work (for 90 days after their diagnosis/start of symptoms).

Face Coverings and Social Distancing

In the event of an outbreak, employers must also ensure that employees in the exposed group wear face coverings and observe physical distancing. Specifically, employers must ensure the following: (1) employees in the exposed group wear face coverings when indoors, or when outdoors and less than six feet from another person, (2) unvaccinated employees in the exposed group are given notice of their right to request a respirator for their use at work, and (3) the employer implements physical distancing requirements in the workplace and evaluates the need for solid partitions between work stations. (8 C.C.R. § 3205.1(d).)

Employers should document their compliance with each of these requirements.

Investigation and Changes

Finally, employers must immediately perform a review of their COVID-19 policies, procedures, and controls. If such review indicates that changes are needed to prevent the further transmission of the virus that causes COVID-19 in the workplace, such remedial measures must be undertaken. (8 C.C.R. § 3205.1(e).) Employers must document this review and any remedial actions and update it every 30 days until the outbreak has concluded.

In sum, upon the identification of an outbreak at the workplace, employers must immediately notify the local health department and transmit the required information in a timely manner. The employer must then offer COVID-19 testing at no cost to the employees in the exposed group, during such employees’ paid time. This testing should continue to be offered until no new COVID-19 cases in the exposed group are detected. Finally, in addition to reviewing relevant COVID-19 policies and procedures, and enacting any needed changes, employers must also ensure that employees in the exposed group wear face coverings and engage in physical distancing.

The past two years have challenged employers’ resilience and adaptability in our rapidly-changing workplaces.  One such change was the explosion of remote work, which swept across workplaces throughout the country and in some cases, landed a permanent position at the hiring table.  As employers adapt to the increasing prevalence of remote work, one important question surfaces: What is an employer’s duty to keep the workplace safe for remote workers?

The recent decision in Colonial Van v. Superior Court may help answer that question.

In that case, wife Carol Holaday and her husband Jim Willcoxson were both employed by Colonial Van & Storage Inc.  Ms. Holaday generally worked in her company’s Fresno office, however, she was authorized to work from home at her discretion.  She frequently had her fellow co-workers visit her home for both social and work-related reasons.  Carol Holaday’s son, Kyle, also resided with his mother and Willcoxson.  Kyle was a war veteran suffering from PTSD.  He also had a history of misusing firearms and kept loaded guns around the house.

On the evening of March 24, Holaday and Willcoxson invited Crystal Dominguez and Rachel Schindler, who also brought her 5-month old child, to their house.  Dominguez was a fellow Colonial employee.  Schindler worked for a different moving company that frequently worked with Colonial; she only knew Holaday and Willcoxson in a professional setting.  Kyle was also present that evening.  While everyone was in the living room, Kyle shot and killed Willcoxson and wounded Holaday, Schindler, and Dominguez.

Dominguez and Schindler filed lawsuits against both Holaday and Colonial. Amongst other things, they alleged that Colonial was vicariously liable for Holaday’s misconduct pursuant to the doctrine of respondeat superior.  After Colonial’s summary judgment motion was denied by the trial court, Colonial requested a writ of mandate from the Second District Court of Appeal to vacate the decision.  The court was faced with the following question: Does an employer have a duty to ensure that off-site work locations are safe from third-party criminal conduct?

The court found that Colonial did not owe Dominguez nor Schindler a duty to protect, because Colonial did not own, possess, or control the home where the incident happened.  Colonial did not set specific hours for the employees to work in the home, designate the home as a business location for insurance or tax purposes, nor list the home as an extension of the business on business documents.  The court further held that although Colonial derived a commercial benefit from the home, by nature of Holaday working from home at times, it was still insufficient to create a duty to protect.

The court also found that Colonial did not owe Dominguez a duty to protect based on the employer-employee relationship.  Again, the court emphasized that Colonial did not have control over the Holaday’s home since it was a private residence.  Moreover Colonial did not have any control over Holaday’s son, Kyle, such that Colonial was negligent in preventing the assault.  Kyle was not himself an employee of Colonial, so Colonial was unaware of Kyle’s PTSD, violent past, or gun misuse.  Nor was there evidence of any prior threats or attacks by Kyle on Colonial employees.

Accordingly, the Appellate Court vacated the lower court’s decision and granted Colonial’s motion for summary judgment on all causes.

This holding provides a promising outlook regarding employers’ duties with respect to remote work.  While the decision still leaves some questions open (for example: would there be a duty if remote work was required as part of the position?) it is an encouraging start for limiting employer liability to the standard workplace.

And as a reminder, for all your employees still in the office, the Department of Fair Employment and Housing (DFEH) requires employers to display several required posters throughout the workplace in order to maintain a safe and equitable working environment.  As of this year, DFEH updated several of the required posters, including the Prohibition on Workplace Discrimination and Harassment, the Rights and Obligations of a Pregnant Employee, and the Family Care & Medical Leave & Pregnancy Disability Leave posters.

Such posters must be displayed (1) at each location where an employer has employees; (2) at employment agencies, hiring offices, and union halls; and (3) on computers as long as the posters are posted electronically in a conspicuous place where employees will tend to see it.  The text of the posters must be large enough for employees and job applicants to read them, and must be displayed in any language spoken by 10% or more of the employer’s workforce.

A link to all required posters, as well as others, can be found here: https://www.dfeh.ca.gov/publications/#requiredBody

This post appeared in June 2015.  It has been reviewed and is up to date.

Many schools, colleges, and municipalities operate special programs and camps during the summer months.  Staffing these programs and camps frequently involves hiring temporary or “seasonal” personnel, such as lifeguards, camp counselors, swim instructors and boathouse attendants.  In recognition that many seasonal employees’ work days differ from that of the full-time, permanent employee, the law provides employers of such employees some exemptions to state and federal overtime and minimum wage requirements, if one of the following exemptions apply:

California’s Organized Camp Exemption

If you operate what California law defines as an “organized camp,” your camp counselors may qualify for the “organized camp” exception to the California state minimum wage requirement.  This exception is set forth in California Labor Code section 1182.4.  To qualify as an “organized camp,” the camp must be accredited by or otherwise meet the minimum standards of the American Camping Association.  In addition, the camp’s programs and facilities must have been established for the primary purpose of providing an “outdoor group living experience with social, spiritual, educational, or recreational objectives, for five days or more during one or more seasons of the year.”  (Cal. Health & Safety Code §18897.)  If these requirements are met, full-time camp or program counselors need only make a weekly salary of 85% of the state minimum wage for a forty-hour week, regardless of the number of hours worked.  Counselors who work less than 40 hours per week may be paid 85% of the state minimum hourly wage for each hour worked.  This exemption may be especially relevant for schools or municipalities with outdoor recreation facilities such as campgrounds or ranches.

The FLSA’s Seasonal Recreational Establishment Exemption

In addition, employees employed by an establishment that is an amusement or recreational establishment, organized camp, or a religious or non-profit educational conference center may be exempt from the minimum wage and overtime requirements of the federal Fair Labor Standards Act (FLSA).  (29 U.S.C. §213(a)(3).) To qualify for the exemption, the establishment must be seasonal, which means it must not operate for more than seven months in any calendar year, or the establishment’s average receipts for any six months of the preceding calendar year cannot be more than one third of its average receipts for the other six months of the year.  (Id.) The term “establishment” means a “distinct physical place.”   Examples of amusement or recreational establishments include summer camps, golf courses, fairgrounds, recreation areas, and swimming pools.  An entity with no fixed location besides an administrative office is unlikely to be an establishment for purposes of the FLSA’s recreational establishment exemption.