Happy New Year from Liebert Cassidy Whitmore!
All of us at LCW have come together to say “Thank You!”
We hope that you enjoy our video card.
This post was authored by Alysha Stein-Manes.
As we ring in the new year, employers will be tasked with implementing new laws that Governor Brown signed into law this past fall. Here is a summary of a few major bills that go into effect on New Year’s Day:
1. AB 1976: Lactation Accommodations
AB 1976 amends Labor Code section 1031, regarding lactation accommodations in the workplace. California law requires employers to provide a reasonable amount of break time to accommodate employees who want to pump or express breast milk for an infant child and to provide these employees with the use of a room or other location, other than a toilet stall, close to the employee’s work area to express breast milk in private. With AB 1976, beginning on January 1, 2019, employers may no longer designate the lactation location as anywhere in a bathroom. An employer will comply with the new law if the employer provides a temporary lactation location that meets all of the following requirements:
AB 1976 also creates an exemption for employers who can demonstrate to the Department of Industrial Relations (“DIR”) that providing a room or location, other than a bathroom, would impose an undue hardship when considering the size, nature, and structure of the employer’s business. An employer must request the exemption from the DIR. However, even if the DIR grants the employer an exemption, the employer is still required to make reasonable efforts to provide an employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee’s work area to express breast milk in private.
Relatedly, for public colleges and universities, beginning on January 1, 2020, another bill, AB 2785 will amend the Education Code to require California Community Colleges and the California State University, and encourage the University of California, to provide reasonable accommodations on their respective campuses for a lactating student to express breast milk, breastfeed an infant child, or address other needs related to breastfeeding.
Reasonable accommodations for students will include, but will not be limited to, the following:
The lactation accommodation must be available to a student whenever a student is required to be present on campus.
As public colleges and universities begin to implement the requirements of AB 1976, they should begin to consider how they plan to also comply with student accommodations beginning in 2020.
2. SB 1085: Paid Leaves of Absence for Union Stewards and Officers
SB 1085 creates paid leave for stewards and officers to participate in employee organization or union activities. The new law will require public employers to grant reasonable leaves of absence without loss of compensation or other benefits, including retirement benefits, for employees to serve as stewards or officers of the employee organization. The exclusive employee organization must make the request to the employer on behalf of the employee for whom it seeks leave. Agencies may grant the leave on a full-time, part-time, periodic, or intermittent basis.
An employee organization is not obligated to use leave and may end an employee’s granted leave at any time. If, however, the employee organization elects to request this leave, it must reimburse the public agency for all compensation paid to the employee on leave, unless otherwise provided in a collective bargaining agreement or memorandum of understanding. An employee organization is required to make such reimbursements to the public agency on or before 30 days after receiving certification from the public agency showing payment to the employee.
At the end of the leave, the employee has a right to reinstatement to the same position and work location he or she held before the leave, or, if not feasible, a substantially similar position without loss of seniority, rank, or classification.
The law will require the public agency and employee organization to reach a mutual agreement on procedures for requesting and granting leave. Public agencies should be prepared to meet and have discussions with employee organizations to come up with an agreement on how this new paid leave of absence will be provided.
3. SB 1421: Peace Office Records
As described in detail in a prior Special Bulletin, SB 1421 amends the Penal Code to require the disclosure of certain peace officer personnel records under the California Public Records Act (“CPRA”). To date, such records could only be released pursuant to a Pitchness motion.
SB 1421 specifically amends Penal Code section 832.7 to generally require the disclosure of records and information relating to the following types of incidents in response to a request under the CPRA, without a Pitchess motion:
Relatedly, AB 748 delays the effect of SB 1421 for certain videos or audio recordings. Specifically, effective July 1, 2019, law enforcement agencies will be required to produce, in response to CPRA requests, video and audio recordings of “critical incidents,” defined as an incident involving the discharge of a firearm at a person by a peace officer or custodial officer, or an incident in which the use of force by a peace officer or custodial officer against a person resulted in death or great bodily injury.
As a reminder, SB 1343 expands existing harassment training requirements for public and private employers, to encompass private sector employers with five or more employees and mandate harassment training for nonsupervisory employees of qualified employers. We addressed these new requirements in detail in post earlier this month.
This post was authored by Erin Kunze.
Last month, the Court of Appeal for the Third Appellate District of California found that an employee’s time traveling between home and a job site in an employer’s vehicle was not compensable, despite the employer restricting the employee’s activities during the commute time at issue. Notably, this case analyzed a California wage and hour law on travel time that applies to public sector employers other than counties or charter cities.
In Hernandez v. Pacific Bell Telephone Company, Pacific Bell established a “Home Dispatch Program” by which it allowed employees to take work vehicles home, and to use those vehicles to travel to various job sites without first checking in at a central garage. The “Home Dispatch Program” was voluntary in nature. Employees who chose to participate were required to be at their first worksite by 8:00 a.m., and were not compensated for any time before 8:00 a.m. spent driving from their homes to the initial worksite. Nor were the employees paid for time spent driving home with equipment and tools after their last appointment. However, during these commutes, participating employees were prohibited from talking on cell phones while driving (even before doing so was illegal), and were prohibited from making personal stops to run errands or drop off or pick up children from school while using the company vehicle.
Employees who did not opt to participate in the Home Dispatch Program were required to commute to and from a company garage each day, where they would pick up and drop off company vehicles. Such employees were not compensated for their home-to-garage commute time. Instead, they would be compensated once they arrived at the garage site at 8:00 a.m.
Employees who participated in the Home Dispatch Program brought suit against Pacific Bell claiming that the control Pacific Bell exerted over their commute time, while using a company vehicle, rendered the time compensable. Relying on State law, the Court determined that, because the Home Dispatch Program was optional and employees were not required to use the company vehicle to commute to and from their worksites, they were not under the employer’s control, and the travel time was not compensatory. The Court further articulated that carrying tools and equipment in company vehicles during the home-to-site commute times did not make the time compensatory because employees were not required to engage in any effort or extra time to effectuate the transport. Notably, employees who participated in the Program were compensated when they were required to travel to and from the central garage to load equipment and tools needed for that week.
While this case does not necessarily change existing law, it clarifies that prohibiting employees from stopping for personal errands or carrying other passengers while commuting in an employer’s vehicle does not necessarily render the commute time compensatory under California law. Rather, the question will be whether the use of the employer’s vehicle for that purpose, with the corresponding restrictions, was required by the employer. In this case, because the Home Dispatch Program was optional and voluntary, employees were not entitled to compensation for their commute to and from various worksites at the start and end of the otherwise regular workday using a company vehicle.
We encourage public agencies to consult legal counsel to assess whether and how this case impacts the agency or its existing rules.
A federal district judge in Texas ruled last Friday that the Patient Protection and Affordable Care Act’s individual mandate was unconstitutional and that the ACA’s other provisions were therefore also invalid.
The decision centers around the ACA’s “shared responsibility payment,” a penalty on individuals who decline to purchase insurance coverage pursuant to the ACA’s individual mandate. Construing this penalty as a tax, the U.S. Supreme Court ruled in 2012 that the individual mandate was constitutional under Congress’ power of taxation. However, last year, Congress reduced the shared responsibility payment amount to zero, effective January 1, 2019, as part of the Tax Cuts and Jobs Act of 2017. According to last week’s district court ruling, when this change in the law takes effect, it will eliminate the individual mandate’s constitutional hook.
Had the story ended there, the ruling could have been easily overlooked by employers as impacting only individual taxpayers. However, the district judge went a step further, finding that the remainder of the ACA was untenable absent the individual mandate. He held, therefore, that the entire law, which includes various provisions directed at employers, was invalid.
What Now for Employers?
The ACA’s employer provisions include:
In response to the ACA, many employers have reexamined and, in some cases, significantly changed their health benefits programs for employees. Many employers have also shifted resources to satisfy their reporting obligations under the ACA.
With a federal court now saying that the ACA no longer passes legal muster, what is an employer to do?
For now, the federal government has no immediate plans to stop enforcing the ACA. The case will almost certainly undergo review by a higher court. Indeed, the same day the Texas ruling came down, the White House stated that the law will remain in effect pending the appeal process. In the meantime, employers should still plan to comply with the ACA’s information reporting requirements for 2018, including the requirement to provide written statements to employees by March 4, 2019 and electronically file Forms 1094C and 1095C by April 1, 2019.
We will provide updates as the case makes its way through the courts. Stay tuned.
Update: On December 30, 2018, the district court ordered that its ruling be stayed pending an appeal of the case. In the meantime, the ACA’s employer provisions remain in effect.
This post was authored by Megan Lewis.
The Department of Fair Employment and Housing (DFEH) recently issued its 2017 Annual Report, which provides a fascinating glimpse into who is filing complaints and why.
The DFEH is the largest state civil rights agency in the country. Its stated mission is to protect the people of California from unlawful discrimination in employment, housing, and public accommodations, and from hate violence and human trafficking. To accomplish its mission, the DFEH receives, investigates, conciliates, mediates, and prosecutes complaints of alleged violations of various statutes, including the Fair Employment and Housing Act (FEHA) and the Unruh Civil Rights Act. The DFEH began issuing annual reports regarding its operations after the California Legislature authorized the DFEH to file lawsuits in state court in 2013.
How Many Complaints Were Filed?
More than ever before.
The DFEH received nearly 25,000 complaints from members of the public in 2017, which is a notable increase from 2016 (+5%) and a whopping 25% increase from 2014. Over half of the claims filed in 2017 were requests for an immediate “Right-to-Sue” letter, which allows a complainant to bypass the DFEH’s investigation process and instead file a case in civil court.
What Kind of Complaints?
Mostly employment, almost 20% of which were based on age.
The vast majority (90%) of complaints filed were related to employment matters, while another 5% related to housing issues.
Of the employment-related complaints:
Who is Filing All These Complaints?
People who live in Southern California, and more white people than any other racial group.
People who live and/or work in Los Angeles County submitted the most complaints of any county in the state in 2017, about a third of the total number of complaints the DFEH received that year. This is unsurprising given that Los Angeles County is by far the most populated county in California. Orange County, San Diego County, San Bernardino County, and Riverside County round out the top 5.
In Northern California, Alameda County submitted the most complaints, followed closely by Sacramento County and San Francisco County.
In terms of race and national origin, more whites (31%) and Americans (52%) filed complaints than any other groups (at least with respect to the 52% of complainants that disclosed their race and the 35% that disclosed their national origin). The DFEH does not track other demographic information at this time.
How Are These Complaints Resolved?
The DFEH received 24,779 complaints in 2017, only 19,032 of which were ultimately filed. Of those, the DFEH investigated 6,160 complaints.
The DFEH facilitated nearly $13 million in settlements in 888 matters.
140 claims were referred to the DFEH’s attorneys in the Enforcement Division, and just 25% of those (35 matters) resulted in litigation filed by the DFEH.
The report is silent on the outcome of the remaining 5,000 or so complaints.
More total complaints, and more related to discrimination and harassment on the basis of sex/gender.
In 2017, the DFEH launched a new cloud-based filing and case management system that allows members of the public and their representatives to submit complaints online for all of the civil rights laws the DFEH enforces. We expect that instituting online filing will result in a significant increase in total complaints submitted. We also think it is very likely that, in the wake of the “me too” movement, the DFEH will report a spike in sex/gender claims and sexual harassment claims submitted in 2018.
Since 2005, Assembly Bill 1825 has required private sector employers with 50 or more employees and all public employers provide two hours of sexual harassment training to supervisory employers within six months of assuming a supervisory position and again at least every two years. This has commonly been referred to as “AB 1825” supervisor harassment training and is codified under Government Code section 12950.1 and interpreted in the Department of Fair Employment and Housing’s (DFEH) regulations at 2 C.C.R. § 11024.
As part of the 2018 Legislative Session, Governor Jerry Brown signed into law Senate Bill 1343, which expands existing harassment training requirements to lower the private sector employer threshold down to 5 or more employees and to mandate one hour of harassment training for nonsupervisory employees of qualified employers, which includes all public agencies. While the law becomes effective January 1, 2019, it requires most existing nonsupervisory employees to undergo harassment training by January 1, 2020. In the case of temporary and seasonal employees, such training must be provided within certain timelines after January 1, 2020. To assist employers in satisfying this obligation, SB 1343 also directs the DFEH to develop and make available two interactive, online training courses – a two-hour training for supervisory employees and a one-hour training for nonsupervisory employees.
While on the surface, SB 1343 appears to simply expand mandated harassment training requirements to include all nonsupervisory employees, the implementation of this new law has raised a number of questions for employers. Among them, how employers can administer a training program that will comply with the new requirement and whether any previous mandated or optional harassment training provided to employees will satisfy this new law.
On November 26, 2018, the DFEH announced a new online resources page for employers, which includes information on required postings and other tools for addressing California’s discrimination and harassment laws. Also included is a “Sexual Harassment Prevention Training and SB 1343 FAQ” to assist with SB 1343 compliance.
While the DFEH’s SB 1343 FAQ sheet addresses some interpretation questions,, it leaves many questions unanswered. In addition, the DFEH’s SB 1343 FAQ sheet implies that all supervisory and nonsupervisory public employees (with the exception of temporary or seasonal employees) will need to be trained or retrained in 2019, regardless of whether they were provided compliant harassment training in 2018.
Responding to some common questions, below is our understanding of the law as written and initially interpreted by the DFEH in its SB 1343 FAQ sheet:
Who is now required to undergo harassment training under SB 1343?
Under SB 1343, most California employees must undergo harassment training. Supervisory employees who have already been covered by AB 1825 harassment training requirements must continue to receive at least two hours of harassment training within six months of becoming a supervisor, and at least every two years thereafter. Nonsupervisory employees now must receive at least one hour of harassment training within six months of hire and at least every two years thereafter.
Seasonal and temporary employees or “any employee that is hired to work for less than six months” are required to undergo the applicable supervisory or nonsupervisory training within 30 calendar days after the hire date or within 100 hours worked, whichever occurs first. SB 1343 clarifies that temporary employees provided by an outside temporary services employer (e.g., temp agency) must be provided any applicable harassment training by that temporary services employer.
When will the DFEH issue the online interactive training courses to comply with SB 1343?
SB 1343 requires the DFEH to develop and make available to employers on its website online, interactive training courses that satisfy the two-hour supervisory and one-hour nonsupervisory training requirements. However, the DFEH’s SB 1343 FAQ sheet indicates that the DFEH expects to have these courses available by “late 2019”, and it does not provide a more specific date for the release of the online training materials.
In the meantime, the DFEH has issued a “toolkit” for sexual harassment prevention, which includes a sample training presentation that employers may use in conjunction with a qualified trainer, as defined in the existing DFEH regulations at 2 C.C.R. § 11024.
In short, compliance with SB 1343’s training requirements in calendar year 2019 may either have to wait until “late 2019” for the DFEH to provide its materials or utilize sooner alternate sources.
What is the difference between the one-hour nonsupervisory harassment training and the two-hour supervisory harassment training required under SB 1343?
Other than the shorter training time, SB 1343 does not specify how the new one-hour harassment training for nonsupervisory employees should differ from the existing two-hour harassment training for supervisory employees.
The required content in the existing two-hour AB 1825 supervisory harassment training – including requirements specific to supervisory employees – is set forth in the DFEH’s regulations at 2 C.C.R. § 11024. The DFEH’s SB 1343 FAQ sheet references these existing regulations but does not note that the regulations have not been revised relative to SB 1343. It is likely that future DFEH rulemaking will result in revised regulations, but no regulatory changes have been proposed at this time, and the DFEH has not announced a timeline for any such changes. Absent further clarification from the DFEH, the only insight into what content is required in the new one-hour nonsupervisory harassment training will be the DFEH’s own online training course, which is scheduled to be released in “late 2019” as mentioned above.
At this time, we recommend modeling the one-hour training for nonsupervisory employees closely after the existing DFEH regulations for AB 1825 supervisor training at 2 C.C.R. § 11024. However, where the existing regulations are specific to supervisory employees, we believe such content would not need to be included in a nonsupervisory employee training.
When is the deadline to provide harassment training to employees under SB 1343?
SB 1343 requires that most public employees – supervisory and nonsupervisory – receive the harassment training between January 1, 2019 and January 1, 2020. After the initial training, follow-up training must be provided to employees every two years thereafter. In addition, any new supervisory or nonsupervisory employees who assume such positions on or after January 1, 2019 are required to undergo their initial harassment training within six months of assuming such a position.
The only exception to this rule applies to seasonal and temporary employees who are hired to work for less than six months – the obligation to provide training to such employees does not become effective until January 1, 2020. On or after that date, SB 1343 requires the employer to provide training to seasonal or temporary employees hired to work less than six months within 30 calendar days from the date of hire, or before the employee reaches 100 hours worked, whichever comes first.
If my agency already provided the required AB 1825 supervisory employee harassment training in calendar year 2018 as part of their two-year training track in accordance with existing law, does SB 1343 require us to retrain those employees again in 2019?
Based on the DFEH’s SB 1343 FAQ sheet, the answer appears to be “Yes”. SB 1343 amends Government Code section 12950.1(a) to add the following new sentence:
An employer who has provided this training and education to an employee after January 1, 2019, is not required to provide training and education by the January 1, 2020 deadline.
Practically speaking, this new sentence is awkward in its application. If an employer that is required to provide the applicable harassment training by January 1, 2020 provides such training after January 1, 2019, that employer would then not be required to provide the training by the January 1, 2020 deadline. This sentence would probably make more sense if the initial date referenced was January 1, 2018, and not January 1, 2019. Therefore, it is not clear if this language was intentional or a clerical error on the part of the Legislature.
More importantly, this new sentence in Section 12950.1(a) does not distinguish between existing AB 1825 supervisory training that employers are already mandated to provide every two years and the new SB 1343 nonsupervisory training. As a result, a possible interpretation of Section 12950.1(a) is that employers who provided the required supervisory training in calendar year 2018 believing such supervisory employees would not need to be trained again until calendar year 2020 would now have to retrain the same employees a year earlier in calendar year 2019.
The DFEH’s SB 1343 FAQ sheet appears to follow this interpretation that ALL supervisory and nonsupervisory employees (except temporary or seasonal employees) be trained or retrained in calendar year 2019, regardless of whether they were otherwise previously provided harassment training in calendar year 2018 in accordance with existing law. As noted in the DFEH’s SB 1343 FAQ sheet:
What if my employees were trained between January 1 and December 31, 2018?
The law requires that employees be trained during calendar year 2019. Employees who were trained in 2018 or before will need to be retrained.
As a result of this initial interpretation from the DFEH, some employers who provided the required every-two-year supervisory training in calendar year 2018 may now have to provide the training again, one year sooner in calendar year 2019.
While this is the DFEH’s initial interpretation of SB 1343, we believe there is a strong possibility the DFEH will either provide additional clarification or the Legislature may provide clean-up legislation to address this scenario. LCW is actively working with public agency groups such as the League of California Cities, CSAC, and CSDA to seek such clarification from the Legislature and the DFEH. It is our understanding that a number of other employer groups impacted by this interpretation are doing the same thing.
Keep in mind that nothing in SB 1343 changes the existing two-hour harassment training requirements for supervisory employees. To require supervisory employees who were provided the required harassment training in calendar year 2018 to be retrained a year early does not seem necessary or consistent with the intent of the original law, in addition to creating additional expense and operational impacts to the affected employer. Therefore, agencies who have supervisory employees who were trained in calendar year 2018 may want to wait and see if the DFEH or Legislature provides clarification on the impact of SB 1343 before scheduling affected employees for retraining in calendar year 2019.
My agency has already been providing harassment training to nonsupervisory employees. Are we already in compliance with SB 1343? When do we have to train these employees again?
This is also an issue that is not entirely clear under SB 1343’s bill language and the DFEH’s interpretation of the new law. Prior to SB 1343, many employers voluntarily chose to require nonsupervisory employees to attend harassment training. In many instances, employers had nonsupervisory employees attend the same AB 1825-compliant, supervisor training.
However, as noted above, SB 1343’s bill language and modifications to Government Code section 12950.1 does not provide any indication of what type of training will satisfy the obligations of the new nonsupervisor training. It would seem reasonable that any harassment training provided to nonsupervisory employees prior to SB 1343 that is otherwise in compliance with existing DFEH regulations at 2 C.C.R. § 11024 would be compliant with this new law. However, this is not entirely clear based on SB 1343’s statutory language.
Furthermore, as noted above, to the extent any such compliant harassment training was provided to nonsupervisory employees in calendar year 2018 or before, it appears that the DFEH’s initial interpretation of SB 1343 requires that all nonsupervisory employees be retrained in calendar year 2019. Absent further clarification from the DFEH or the Legislature, it appears that any previous harassment training provided to nonsupervisory employees will not satisfy SB 1343’s requirements, and such employees should be retrained in calendar year 2019.
My agency has new employees who were provided SB 1343 compliant harassment training at their previous employment. Does our agency need to provide them with harassment training again? What about seasonal and temporary employees who return to our agency each year and were previously provided harassment training? Does our agency have to provide them with harassment training each time they are re-hired as a seasonal or temporary employee?
This is another question that is not entirely clear based on SB 1343’s statutory language. However, existing DFEH regulations regarding supervisory employees who were previously trained provides some guidance that may be extended to these other scenarios. As noted under 2 C.C.R. § 11024(b)(5):
(5) Duplicate Training. A supervisor who has received training in compliance with this section within the prior two years either from a current, a prior, an alternate or a joint employer need only be given, be required to read and to acknowledge receipt of, the employer’s anti-harassment policy within six months of assuming the supervisor’s new supervisory position or within six months of the employer’s eligibility. That supervisor shall otherwise be put on a two year tracking schedule based on the supervisor’s last training. The burden of establishing that the prior training was legally compliant with this section shall be on the current employer.
Since the DFEH’s SB 1343 FAQ sheet references and incorporates these existing regulations, there is a strong argument that 2 C.C.R § 11024 (b)(5) would also apply to new employees who were trained previously or to previous seasonal or temporary employees who were trained at previous employment within the past two years. In such a scenario, the employer would need to provide the affected employee a copy of the employer’s anti-harassment policy and then ensure that any follow-up harassment training be provided otherwise in accordance with the law. Nonetheless, we caution employers to await further clarification on this issue from the DFEH.
In conclusion, there is a lot about the application of SB 1343’s new harassment training requirements that remains to be settled. While the DFEH’s SB 1343 FAQ sheet provides some guidance, it appears that many unanswered questions remain. As noted, LCW is actively working to seek clarification from the DFEH and the Legislature and will provide further updates as the information becomes available.
In the meantime, LCW offers both supervisory and nonsupervisory harassment training that are compliant with SB 1343. For more information on our training programs, contact our Training Coordinator Anna Sanzone-Ortiz at firstname.lastname@example.org or (310) 981-2051 or Director of Marketing and Training Cynthia Weldon at email@example.com or (310) 981-2000.
If you have any questions about this Special Bulletin, please contact attorneys in our Los Angeles, San Francisco, Fresno, Sacramento, or San Diego offices for further guidance.
This post was authored by Jeffrey C. Freedman.
What happens when two totally valid legislative goals—that happen to contradict each other—collide? Like the title of the 2003 film with Diane Keaton and Jack Nicholson, “Something’s Gotta Give!” In Huerta v. Kava Holdings, Inc., decided this past November 14, the collision was between a Code of Civil Procedure (CCP) section (§ 998(c)) intended to encourage settlement of lawsuits prior to trial, and a Government Code section (§ 12965(b)) serving to avoid discouraging meritorious employment discrimination cases by claimants of modest means. As you might guess, the CCP provision was required to stand aside and the Government Code section was given priority.
Felix Huerta, after being fired from his job at the legendary Bel-Air Hotel, sued Kava Holdings, the Hotel’s owner, for violation of the Fair Employment and Housing Act (FEHA) on a number of theories, most of which were dismissed before or during trial. At trial, the jury decided all the remaining claims against him and in favor of the Hotel. Just prior to trial, the Hotel made an offer to compromise pursuant to CCP section 998, which Huerta rejected. Subsection (c)(1) of section 998 provides in pertinent part: “If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant’s costs from the time of the offer” as well as certain expert witness fees. Accordingly, since Huerta rejected the settlement offer and won nothing from the jury, the judge awarded the Hotel $50,000 in costs and expert witness fees.
Huerta appealed. The Court of Appeal, otherwise affirming the judgment in favor of the Hotel, vacated the cost and fees award as contrary to the Government Code provision in FEHA. The appellate court held that section 12965(b) “overrides” section 998(c) and therefore a prevailing defendant cannot obtain an award of cost or fees even if its offer of compromise is rejected and the plaintiff fails to obtain a better result at trial. The Court noted language in a prior decision that “shifting these litigation expenses to what ordinarily are modest-or low-income individuals would unduly discourage these plaintiffs from litigating legitimate claims.”
Ever since FEHA was reorganized in 1980, Government Code section 12965(b) has provided: “In civil actions brought under this section, the court, in its discretion, may award to the prevailing party. . . , reasonable attorney’s fees and costs, including expert witness fees.” Thus, as written, a prevailing plaintiff or defendant could receive an award, not merely of costs, but also of attorney’s and expert witness fees. However, in 1978, the U.S. Supreme Court, in Christiansburg Garment Co. v. EEOC, had construed similar language about costs and attorney’s fees in Title VII of the federal Civil Rights Act of 1964 as allowing an award to a prevailing plaintiff as a matter of course, but only to a prevailing employer when the plaintiff’s case was frivolous, unreasonable or groundless, or where the plaintiff continued to litigate after it clearly became so. The California courts adopted this same standard for FEHA cases, and since then prevailing defendants have routinely been denied fees and costs as long as the plaintiff’s case was assessed by the trial judge as “non-frivolous.” However, until now, defendants could still make section 998 offers of compromise almost up to the eve of trial in hopes of encouraging settlement by putting the plaintiff in jeopardy of a significant adverse award of costs and fees even if they won at trial but received less than the defendant had offered.
Now, due to the Huerta decision, and an amendment to section 12965(b) to become effective this coming January 1, section 998 is no longer available to defendants in most all FEHA cases as leverage to settle cases up to the eve of trial by putting plaintiffs at risk of such awards. Effective the first of 2019, this language is added to the final sentence of section 12965(b), which allows costs and attorney’s fees to the prevailing party in a FEHA case: “except that, notwithstanding Section 998 of the Code of Civil Procedure, a prevailing defendant shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.” Thus, the only exception will be in those rare cases which a judge agrees are “frivolous, unreasonable, or groundless.”
Please note, however, that section 998 will still be available for plaintiffs to use against employers they have sued for a FEHA violation. Also, employers can still use section 998(c) against plaintiffs to this extent: 998 also provides that “If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs.” So, if an employer’s section 998 offer is rejected, and the plaintiff at trial wins less than the employer offered, the plaintiff cannot receive an award for costs s/he incurred after the offer was made.
Many of you are facing tremendous challenges with the current fires in both ends of the state. We wish we could stand next to you and be of practical help. Since we can’t do that, we offer these legal answers to the immediate questions you are facing, so you have ready answers at your fingertips. While these are by no means complete answers to every issue that can, will, and has come up, they address the most pressing questions that we have already started to hear. We hope that having this information easily accessible will allow you more time to focus on the needs and safety of your students, employees, and facilities. We are available to help in any way we can. We will keep you all in our thoughts, and look forward to hearing from you soon, in happier times.
HOW CAN WE CONVENE OUR BOARD AS QUICKLY AS POSSIBLE?
What is an emergency meeting?
“Emergency meetings” are a limited class of meetings held when prompt action is needed due to an actual or threatened emergency situation and are held on little notice. (Gov. Code, § 54956.5.) An emergency situation means a work stoppage, crippling activity, or other activity that severely impairs public health, safety, or both, as determined by a majority of the members of the legislative body. (Gov. Code, § 54956.5 subd. (a)(1).) It also means a dire emergency, which is a crippling disaster, mass destruction, terrorist act, or threatened terrorist activity that poses peril so immediate and significant that requiring a legislative body to provide one-hour notice before holding an emergency meeting (discussed below) may endanger the public health, safety, or both, as determined by a majority of the members of the legislative body.
What are the notice requirements for an emergency meeting?
Before the meeting
A legislative body may hold an emergency meeting without complying with either the 72-hour notice and agenda posting requirement of regular meetings or the 24-hour notice and agenda posting requirement of special meetings. (Gov. Code, § 54956.5 subd. (b)(1).)
Although the 72 hours’ or 24 hours’ notice is not necessary, the Board President or designee should notify each local newspaper of general circulation and radio or television station that has requested notice of special meetings one hour prior to the emergency meeting. In the case of a dire emergency, the Board President or designee should provide this notice at or near the time they notify the Board Members of the emergency meeting. (Gov. Code, § 54956.5 subd. (b)(2).)
The Board President or designee should provide this notice by telephone and attempt to provide notice using all telephone numbers provided in the media’s written request. If telephones are not working, the notice requirements are deemed waived. However, the news media must be notified as soon as possible of the holding of the meeting, the purpose of the meeting, and any action taken. (Gov. Code, § 54956.5 subd. (b)(2).)
If news media does not have a written request on file for notification of special or emergency meetings, a legislative body has no legal obligation to notify news media of special or emergency meetings—although notification may be advisable in any event to promote communication during disasters.
After the meeting
As soon as possible after the emergency meeting, the legislative body must post the minutes of the meeting, a list of persons whom the body notified or attempted to notify, a copy of the roll call vote and any actions taken at the meeting for at least 10 days in a public place. (Gov. Code, § 54956.5 subd. (e).)
How do you convene an emergency meeting?
When a majority of the legislative body determines that an emergency situation exists, it may call an emergency meeting. (Gov. Code § 54956.5.) Thus, the first order of business at an emergency meeting must be declaration of an emergency. An emergency must be declared by a majority of the full board (not just a majority of those present.)
What may be covered at an emergency meeting?
Business should be limited to those items requiring prompt attention due to the emergency. Further, while a legislative body is relieved of the responsibility to post an agenda prior to an emergency meeting, an agenda consistent with the parameters of an emergency meeting should be developed and utilized. A legislative body may not take action on items of business not appearing on the agenda. (Gov. Code §§ 54956; 54956.5 subd. (d).) Finally, as a general rule, emergency meetings may not be held in closed session. However, a legislative body may meet in closed session, where the basis for closed session complies with section 54957, if agreed to by a two-thirds vote of the members of the legislative body present, or, if less than two-thirds of the members are present, by a unanimous vote of the members present. (Gov. Code, § 54956.5 subd. (c).)
What is a special meeting?
“Special meetings” are meetings called by the Board President or majority of the legislative body to discuss only discrete items on the agenda under the Brown Act’s notice requirements for special meetings. (Gov. Code, § 54956 subd. (a).)
What are the notice requirements for a special meeting?
At least 24 hours before the meeting, a legislative body must post a notice in a location freely accessible to the public that contains the time and place of the meeting and identifies matters to be transacted or discussed at the meeting. The body must also post the agenda on its Internet website, if it has one. (Gov. Code, § 54956(a).) The District should describe the business to be transacted or discussed be in the same manner that an item for a regular meeting would be described on the agenda—with a brief general description. Closed session items should be described in accordance with the Brown Act’s provisions to protect legislative bodies and elected officials from challenges of noncompliance with notice requirements.
How do you convene a special meeting?
The Board President or a majority of the members of the legislative body, may call a special meeting by delivering written notice to each member of the legislative body. The notice must be delivered to all members of the legislative body (typically personally) at least 24 hours before the meeting (unless waived in writing before the meeting or if the member actually appears at the meeting). The body must also provide notice to any newspaper, radio or television station that requested notice of special meetings in writing. (Gov. Code, § 54956 subd. (a).)
A legislative body may not call a special meeting regarding the salaries, salary schedules, or compensation paid in the form of fringe benefits, of a local agency executive. (Gov. Code, § 3511.1 subd. (d).) This does not apply to a local agency calling a special meeting to discuss the local agency’s budget.
What are the agenda requirements for a special meeting?
There is no specific agenda requirement for special meetings, but the notice of the special meeting effectively serves as the agenda and limits the business that may be transacted or discussed. No other business may be considered by the legislative body. (Gov. Code, § 54956.) The legislative body must give members of the public the opportunity to speak before or during consideration of an item on the agenda but need not allow members of the public an opportunity to speak on other matters within the jurisdiction of the legislative body. (Gov. Code, § 54954.3 subd. (a).)
What if it is not safe to meet in our regular meeting place?
The Brown Act generally requires all regular and special meetings of a legislative body, including retreats and workshops, to be held within the boundaries of the territory over which the local agency exercises jurisdiction. (Gov. Code, § 54954 subd. (b).) However, if a fire, flood, earthquake, or other emergency makes the usual meeting place unsafe, the Board President is authorized to designate another meeting place for the duration of the emergency. News media that have requested notice of meetings must be notified of the designation by the most rapid means of communication available. (Gov. Code, § 54954 subd. (e).) This means you may move your Board meetings to another public venue within your District boundaries.
May members of the legislative body teleconference into the emergency or special meeting?
The Brown Act allows a legislative body to use any type of teleconferencing to meet, receive public comment and testimony, deliberate, or conduct a closed session. (Gov. Code, § 54953 subd. (b)(1).) However, the decision to use teleconferencing is entirely discretionary within the body and can present some issues.
“Teleconference” is defined as “a meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either audio or video, or both.” (63 Ops.Cal.Atty.Gen. 215 (1980).) Teleconference meetings must comply with all requirements of the Brown Act, including, but not limited to, including the address of each teleconference location in the agenda, posting the agenda in the teleconference location, and public accessibility to the teleconference location. The legislative body must conduct teleconference meetings in a manner that protects the statutory and constitutional rights of the public or parties appearing before the legislative body. This might indicate that teleconferenced emergency meetings, where there is little or no public notice, might be problematic. When the public has short notice of emergency meetings, Districts should be careful in limiting access further by using teleconferenced meetings.
HOW DO WE HANDLE EMPLOYEE ISSUES?
DISASTER SERVICES WORKERS
What is a disaster services worker?
Under the California Emergency Services Act (Gov. Code, § 8550) all public employees are required to render all possible assistance to the Governor and the Secretary of Emergency Management in carrying out the provisions of the Emergency Services Act. (Gov. Code, § 8614.) In addition, all public employees, except legally employed aliens, are deemed disaster service workers. (Miller v. Board of Supervisors (1981) 121 Cal.App.3d 184.)
What is disaster service?
Disaster service means “all activities authorized by and carried on pursuant to the California Emergency Services Act, including approved and documented training necessary or proper to engage in such activities.” (Cal. Code Regs., tit. 19, § 2570.2 subd. (b)(1).)
How can we assign work to a disaster services worker?
The California Emergency Services Act does not set out how employees should be notified of their disaster service assignments. Rather, District disaster plans should set out potential disaster scenarios. (Gov. Code, §§ 8610, 8877.5.)
How do we compensate employees performing disaster services?
The provisions of the Emergency Services Act give agencies some power to direct their employees to perform disaster service duties outside of their typical job duties. The Education Code addresses a District’s obligation to pay overtime for hours worked in excess of eight hours in a day or forty hours in a week. (Ed. Code, § 88027.) (If an employee has a regular workday of less than eight but more than seven hour, or a regular workweek of less than 40 but more than 30 hours, for certain classes the employee will be entitled to overtime for time worked in excess of the established workday. Ed. Code, § 88027.) The District may order employees to work overtime. If your collective bargaining agreement addresses the rotation of overtime, Districts should follow that language.
If the bargaining agreement is silent, use a fair system, such as asking for volunteers or by assigning overtime by lot. Taking such steps unilaterally is likely authorized by the management rights clauses in your CBAs, regarding disaster situations. However, we also recommend communicating and working with your union leadership as quickly as possible, to share information on the well-being and needs of impacted employees as well as district plans for directing and compensating disaster service work.
What if employees are unable to work?
Employees who have suffered personal loss or injury, or who are needed to care for a family member, may of course utilize the full array of applicable leaves available to them by law and pursuant to your collective bargaining agreements. These include but are not limited to: sick leave, extended leave, personal necessity leave, and FMLA/CFRA leave.
Districts should also work with employees who live or travel through affected areas. The fires or associated road closures may interfere with their travel and they may have trouble getting to work on time or at all. School closures will also play havoc with parents’ arrangements.
To address employee’s inability to attend work, districts should:
Do we pay employees for time the district is closed?
Whether or not there is a legal obligation to pay employees during a district closure depends on a variety of factors under both the federal FLSA, and state wage and our law, such as: whether the employee is exempt or nonexempt, the length of the closure, whether the employee worked during any period of an FLSA workweek, and whether the employee is otherwise ready, willing and able to work. Thus, as a first step we recommend that you look at your own policies and collective bargaining agreements—which may address the issue. If your policies and/or CBAs are silent, unclear, or you are not sure if they meet minimum legal requirements, contact legal counsel.
Student Attendance Accounting
We anticipate that if campus closures last long enough to affect student contact hours the California Community College Chancellor’s Office will issue guidance as it has in the past. For programs with specific clinical or other attendance requirements, such as allied health, districts will need to work with the State Accrediting Agency to determine whether those requirements will be revised or modified.
Individual Course Requirements
At colleges fortunate enough to be open, districts should encourage individual faculty members to be flexible, and work with students living or traveling through affected areas.
This post was authored by Lisa S. Charbonneau.
Under Article XI, Sections 4 and 5 of the California Constitution, charter cities and counties have exclusive authority to regulate and determine their own municipal affairs, free from intrusion by the state. These provisions of the Constitution are collectively referred to as the municipal affairs clause and have given rise to what is known as the “home rule” or “municipal affairs” doctrine. At its essence, the home rule doctrine embodies the principle that a municipality knows its wants and needs better than the state at large.
The origins of the home rule doctrine lie in the creation of the state of California itself. That is, when the original California Constitution was ratified in 1849, many municipalities within the state had operated autonomously for decades using their own laws, government structures, and tax systems. In the face of the new power emanating from Sacramento, many established municipalities (such as Los Angeles or San Francisco) were skeptical of the state legislature and favored local autonomy. The municipal affairs clause and the home rule doctrine reflect that sentiment; they evidence an affirmative adjustment to the political relationship between the state and municipalities that grants charter cities and counties the power to regulate their own municipal affairs. For more on the history of municipal affairs in California, click here or here.
A case from 1899 involving the City and County of San Francisco (CCSF), Popper v. Broderick, exemplifies how the home rule doctrine has been invoked and applied. In 1897, the state passed a bill setting minimum salaries for municipal police and fire personnel that were higher than that paid by many municipalities at that time. For example, whereas the new state bill set the minimum salary for a police chief at $5000 per year, the police chief of San Francisco was only paid $4000 per year. In response, San Francisco resident Max Popper sued to prevent CCSF from raising the salaries of any affected CCSF employees to comply with the new state law. According to Popper, the law was an unconstitutional intrusion into a purely municipal affair; the state lacked the power to force the taxpayers of CCSF to pay increased compensation to its police and fire personnel. In 1899, the California Supreme Court agreed, finding that the constitution’s home rule provisions were intended “to prevent the constant tampering [by the state] with matters which concern only or chiefly the municipality” and that “the pay of firemen and policemen clearly falls within the term ‘municipal affairs.’”
Since Popper, numerous California courts have taken up the issue of whether wages and salaries paid by charter cities and counties to their employees constitute a municipal affair. For example, in 1979, the California Supreme Court held that a state law preventing public agencies from providing cost-of-living increases to their employees violated the home rule provisions of the California Constitution because the determination of wages paid to employees of charter cities and counties is a matter of local rather than state-wide concern. In another example, the First District Court of Appeal held in 2008 that overtime pay and meal and rest breaks constitute matters of local concern, and that thus, under the home rule doctrine, provisions in the Labor Code regulating overtime and meal and rest breaks do not apply to charter cities and counties.
Today, charter cities and counties regularly invoke the home rule doctrine in response to attempts by various interests to apply inapplicable state regulation to charter cities and counties or to otherwise regulate on a state-level the goings-on within charter cities and counties. Thus, courts throughout the state continue to apply a doctrine born in the 1800s to the modern day realities of state versus local government, with varying results. Charter cities and counties should consult legal counsel to evaluate the applicability of the home rule doctrine to any particular state law or regulation that appears to address what may be a purely municipal matter.
This post was authored by Stefanie K. Vaudreuil.
In this fifth annual installment of a look at some unbelievable, strange and wacky employment litigation, there remains no shortage of cases that will make you believe your human resources issues aren’t so bad after all.
The Thing That Happened on the Way to Jurassic Park
Before getting into the specifics of this unbelievable case, a science review is in order. About 100 million years ago, pterosaurs (winged lizards) dominated the skies. That reign lasted for about 35 million years. So, that means there has not been a living pterodactyl in 65 million years—or has there? Nancy Barnette sued Federal Express Corporation for gender discrimination after she was fired from her position as a driver following two preventable accidents. Barnette claimed that while on her assigned route an “oversized avian struck the passenger window.” Barnette described this winged creature as a “pterodactyl.” She did not immediately report the pterodactyl encounter to her employer. Meanwhile, Barnette continued along her delivery route despite the “pterodactyl” strike. Then, according to Barnette, about an hour later the window shattered into the vehicle. Apparently, that “pterodactyl” was actually the automatic gate of a housing division. The police department received a report of a FedEx driver smashing into the gate entrance. The damage to the FedEx truck was consistent with the report to the police. Before Barnette was approached by law enforcement, she informed a dispatcher at FedEx that her truck had been hit by a “pterodactyl.” After being confronted with what really happened and informed that she would be terminated, Barnette claimed she was being discriminated against because of her gender. Her theory was that male employees were not fired for accidents. What she failed to acknowledge was that the male employees did not claim that an extinct, flying dinosaur caused the damage to the vehicle. Her lawsuit was ultimately unsuccessful. As an aside, there were 161 “pterodactyl” sightings reported in the United States in 2017 with the most sightings being in Utah and Oklahoma. Too bad for Barnette she lived in Florida.
He Wasn’t On the Way to White Castle When He Stopped to Feed the Grizzlies
When an employee smokes marijuana before work and his job is to feed grizzly bears, you would think the employer should not be liable when the grizzly bear attacks the stoned employee. Well, that was not the outcome in a workers’ compensation case from Montana. The employer owned a grizzly bear park where visitors could drive through to observe grizzly and black bears. The employee (who was deemed to have been an employee and not a volunteer by the Uninsured Employers’ Fund) admitted that he smoked marijuana before he went to work the morning of the grizzly bear attack. While feeding the grizzlies, like he had done on countless occasions before, he was attacked and injured. The Montana Supreme Court agreed with the decision that the employee was entitled to compensation for his injuries: “I cannot conclude based on the evidence before me that the major contributing cause of the grizzly bear attack was anything other than the grizzly. It is not as if this attack occurred when [the employee] inexplicably wandered into the grizzly pen while searching for the nearest White Castle.” The employee was not quite let off the hook for his poor judgment: His “use of marijuana to kick off a day of working around grizzly bears was ill-advised to say the least and mind-bogglingly stupid to say the most.” Just as it was stupid to feed grizzly bears after smoking marijuana, employees who have safety sensitive jobs are rightfully told that being under the influence of marijuana at work is misconduct and could be cause for discipline.
If Waterboarding Doesn’t Improve Employee Performance, Nothing Will
In this lawsuit filed by a former employee of a one-on-one education call center, the plaintiff alleged he was injured in the course of his employment by his supervisor’s unorthodox motivational methods. According to the plaintiff, his supervisor would draw mustaches with permanent marker on employees’ faces and take away their chairs if they failed to meet performance goals. This same supervisor was also known to walk around the office slamming a wooden paddle on desks and tabletops in an apparent effort to “motivate” employees. The last straw for the plaintiff occurred when he “volunteered” for a new motivational exercise. The plaintiff claimed that his participation was based upon his supervisor’s challenging the team’s loyalty and determination. What the plaintiff did not realize is that he was agreeing to participate in an exercise of waterboarding. The plaintiff was held down by other team members while the supervisor poured water over his mouth and nose so he could not breathe. The plaintiff complained to human resources, which he said did nothing about the situation, so he quit. Perhaps other methods besides Guantanamo Bay-like exercises are better suited for the workplace.
Do Speedos Make You Swim Faster?
In a case brought against the New York State Office of Parks Recreation & Historic Preservation, a seasonal lifeguard claimed he was discriminated against because of his age and gender when he was denied requalification as a lifeguard in 2007 and 2008. According to the former lifeguard, he refused to wear a speedo-type swimsuit and instead wore a more modest swimsuit that resembled bicycle shorts. He alleged the refusal to qualify him based on the type of swimsuit he wore was discrimination based on his age, 57, and gender, male. This case raises interesting questions about dress codes for applicants. Although the plaintiff had previously worked as a lifeguard, it was seasonal employment that required him to re-apply each summer. How far can an employer go with respect to what an applicant may wear? Maybe he should have been allowed to wear his swimsuit of choice during the application process but required to wear the employer’s version if he were employed. Something to think about.