This post appeared in April 2018.  It has been reviewed and is up to date.

Social media and the First Amendment is a fascinating and quickly-developing area of the law.  All types of business organizations have a social media presence, for example, a Twitter page or Facebook account, and often on their own websites invite the public to comment.  The same is true for news sources, from the most well-established like The New York Times and Los Angeles Times, to personal blogs and very small media outlets.  Often public comments provide content that is just as interesting and informative as what the owner of the site originally publishes.  Indeed, the owners may have a hand in this, because (unless their terms of service provide otherwise) they are free to pick and choose comments without concern about legal claims of censorship.  The First Amendment does not apply to private organizations, only to the government, and these private organizations are free to curate comments on their sites.

Many public agencies, including law enforcement, cities, counties, and educational institutions, themselves host social media sites for the benefit of the community, and encourage the public to post comments.  The First Amendment, however, does apply to these government agencies, and curating or censoring comments can, in some circumstances, lead to claims of First Amendment violations and expensive lawsuits.  For example, in 2012, the Honolulu Police Department faced a legal challenge to its decision to remove two local residents’ comments from its Department Facebook page.  The residents argued that the Police Department had created a public forum in its maintenance of the Facebook page, and that removal of their posts constituted unconstitutional censorship.  The Department’s guidelines described the page as “a forum open to the public,” yet the Department allegedly removed the residents’ posts simply because they were critical of the Department.  The case eventually settled with a payment by the Department of attorneys’ fees, and an agreement to revise its social media policies.

How can agencies honor their obligations under the First Amendment yet avoid having to serve inadvertently as the message board for certain types of content?  There are a number of ways.

First, and primarily, the agency can put into place a policy, carefully vetted by legal counsel, that sets forth what comments are authorized and what are not.  For example, the policy can specify that obscene, defamatory, and other similar types of comments are not permitted.  The policy can also specify that comments have to relate to the matter originally posted.  In general, the policy however, must satisfy the forum analysis standards of free speech law, a primary requirement of which is that the policy operate in a “viewpoint-neutral” way.  This means that the agency in almost all circumstances cannot suppress one view on a topic yet allow comments favoring the opposing view.  In addition, the agency must be able to justify its restrictions on certain types of comments in a way that will satisfy forum analysis requirements.

Second, in theory, an agency can take an alternative approach that rests on the “government speech” doctrine.  In this approach, the agency would pick and choose only a few public comments to publish, and argue that its decision-making process constituted the expression of the agency itself.  This approach has support in U.S. Supreme Court cases from other contexts, such as from Pleasant Grove City v. Summum, in which the Court found that a city’s selection of which monuments to place in a public park constituted government speech, so that its decision not to select a particular monument was not censorship but the choice of the agency itself not to express itself in that way.  The approach has not been extensively tested by case law covering California, and will likely depend on the facts and circumstances of a particular case.  It is best to consult with counsel before implementing.

Third, although it does not help as a proactive approach, there is a particular litigation defense articulated by commentators to lawsuits against public agencies for censoring social media.  Some commentators have taken the position that speech on an agency-hosted platform is, in fact, not subject to the First Amendment, because the actual site itself belongs to a private entity.  In the case of a Facebook or Twitter page, the actual platform in cyberspace belongs to those organizations.  This theoretical defense, however, has so far not received significant support in case law.

Indeed, the most prominent case in this area, Trump v. Knight Institute from March 2020, provides a holding that  squarely favors constitutional free speech protections for the public.  In Knight, the Second Circuit Court of Appeals, which encompasses New York, held that Donald Trump, during his Presidency, violated the First Amendment by blocking some of his critics from access to his Twitter account.  The Court found that the public comment part of the account constituted a public forum in cyberspace, to which First Amendment free speech principles did apply.  The Court did not accept the argument that the decision to block content in that case constituted government speech.

We will keep readers informed of further developments in this important area of law.

On February 28, 2022, the California Department of Public Health (“CDPH”) updated its guidance concerning the use of face coverings to further relax those requirements.

While the updated CDPH guidance continues to require the use of face covering in certain high-risk settings,[1] the guidance removes those requirements in most other circumstances:

  • Effective March 1, 2022, the CDPH will no longer require that unvaccinated individuals wear a face covering in indoor public settings; and
  • After March 11, the CDPH will no longer require face covering in K-12 and childcare settings.

In order to ensure that the updated CDPH guidance also applies to employees in workplaces subject to the Cal/OSHA Emergency Temporary Standards (“ETS”), on February 28, 2022, Governor Newsom issued Executive Order N-5-22. That Executive Order immediately suspends the regulatory obligation under the Cal/OSHA ETS that otherwise would have required that employers ensure that unvaccinated employees wear face coverings when indoors and in vehicles.

In pertinent part, the Executive Order states:

  1. California Code of Regulations, title 8, section 3205(c)(6)(A)[2] is suspended.
  2. The ETS, adopted on December 16, 2021, which has a 90 day period specified in Government Code section 11346.1(h), is extended by 21 days.

As a result of the updated CDPH guidance and the Executive Order, employers no longer need to require that employees wear face coverings. If an employer elects to exercise its authority and allows employees to go without wearing face coverings, it should also update its COVID-19 Prevention Program (“CPP) and inform employees of the change or advise its employees that the relevant CPP provisions no longer apply.

For employers with represented workforces, LCW recommends the following steps to effectuate this change in policy:

  1. Provide notice to its employee organizations and an opportunity to bargain the change in the employer’s face covering requirements;
  2. Once the employer and its employee organizations agree on the revised face coverings requirements, either modify the relevant section of their COVID-19 Prevention Program (“CPP) or inform employees that that section is no longer operative, but that it has been supplanted by revised requirements, which should be provided to the employer’s employees.

These employers should consider which option is preferable given the Cal/OSHA ETS, with the extension provided under the Executive Order, is set to expire on April 6, 2022.

In the meantime, employers should continue to be mindful of any applicable local health orders that may prescribe the continued use of face coverings by some or all employees.[3]

LCW attorneys are closely monitoring developments on this subject and will continue to provide updates as necessary.

[1] These settings now include public transit, in emergency shelters, healthcare settings, correctional facilities, homeless shelters, long-term care settings, and senior care facilities.

[2] This provision required: “For all employees who are not fully vaccinated, employers shall provide face coverings and ensure they are worn when indoors or in vehicles.” (8 CCR 3205(c)(6)(A), emphasis added.)

[3] See 8 CCR 3205(c)(9)(B)

The Fair Employment and Housing Act (the FEHA) provides employees with legal protection from harassment, discrimination and retaliation. The Department of Fair Employment and Housing (DFEH) is the California agency that oversees and enforces the FEHA. As part of its oversight role, DFEH issues guidance to employers to assist in compliance with the FEHA requirements. This blog post summarizes the DFEH guidance and outlines key considerations for employers when creating a FEHA complaint anti-harassment, discrimination, and retaliation policy. To summarize, employers should create their own policy that encourages reporting and clearly communicate the policy to all employees.

Reduced Risk For Legal Action, Increased Chance Of Productivity

Under the FEHA, California employers have a duty to take reasonable steps to prevent and, when necessary, respond to and correct conduct that is discriminatory or harassing. In addition, although some inappropriate behavior will not violate the law because it is not severe or pervasive enough, such behavior is likely still offensive, contributes to an unproductive environment, and may lead to future issues. Prohibiting inappropriate behavior and clearly communicating the prohibition can both protect the employer from legal actions and create a more productive work environment.

What To Include When Creating Your Policy

When creating the policy, employers should avoid simply reciting the law. Although it may seem simple and the most protective, a mere recitation of the law creates risk for the employer. If the policy is simply a recitation of the legal standard, it could be found that the employer admitted that illegal conduct occurred when determining that its policy was violated.

To avoid these potential issues, employers should write their own policy and consider making it a “zero tolerance policy.” A zero tolerance policy prohibits any abusive conduct, harassment, discrimination, or retaliation, regardless of whether the behavior meets the legal threshold of being severe and pervasive. With a zero tolerance policy, employers can take action to investigate identified harassing behavior and correct it if necessary before it becomes a legal issue.

In addition, employers should follow the DFEH guidance when creating their policy. Specifically, the policy should meet the following requirements:

  1. Be in writing.
  2. List all current protected categories covered under the FEHA. Those categories include race and national origin, religious creed, physical disability, mental disability, medical condition, sex/gender, age (40 and over), sexual orientation, gender identity and expression, genetic information, veteran or military status, opposition to unlawful conduct, or any perception that a person is in one of the defined categories.
  3. Indicate that the law prohibits co-workers, third parties, supervisors, and managers from engaging in conduct prohibited under the FEHA.
  4. Set forth a complaint process that ensures complaints receive:
    • Employer confidentiality, to the extent possible;
    • A timely response;
    • Impartial and timely investigations by qualified personnel;
    • Documentation and tracking for reasonable progress;
    • Appropriate options for remedial actions and resolutions; and
    • Timely closures.
  5. Provide a complaint process that does not require an employee to complain directly to the employee’s supervisor, by providing additional avenues to lodge complaints, such as:
    1. Direct communication with a designated representative, Human Resources manager, EEO officer, other supervisor, or ombudsperson;
    2. A complaint hotline; and/or
    3. A referral to the EEOC and DFEH.
  6. Instruct supervisors to report misconduct or complaints of misconduct to a designated representative or a Human Resources manager. This topic must be in the mandated sexual harassment training provided by the employer.
  7. Indicate that upon receipt of allegations of misconduct, the employer will conduct a fair, timely, and thorough investigation that provides all parties with due process and reaches reasonable conclusions based on the evidence collected.
  8. State that the employer will keep the complaint and investigation confidential to the extent possible, but not indicate that the investigation will be completely confidential.
  9. Indicate that appropriate remedial measures will be taken if, at the end of the investigation, misconduct is found.
  10. Make clear that employees will not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.
  11. Include a link to, or the DFEH’s website address for, the sexual harassment online training courses created by the DFEH.

What To Include In The Policy’s Complaint Process

Once created, the policy is only as strong as its complaint process (described in items four and five above). If the policy includes the outlined items but does not facilitate and encourage reporting of inappropriate behavior, the employer remains at a heightened risk for legal action against it. An employer can increase the accessibility of the policy’s complaint process by incorporating the following considerations into it:

  1. The complaint process should encourage reporting by affording employees with multiple reporting outlets, not just the direct supervisor of the employee.
  2. Additionally, confidentiality should be maintained to the highest degree possible. The employer should make it clear that complete confidentiality is not guaranteed because investigations and due process may require disclosure of some information, but that disclosure will only be made as needed.
  3. The employer should respond when a complaint is received to notify the employee that the employer received the complaint and that any needed action will follow.

What To Include When Communicating The Policy To Employees

Once the employer has completed the policy with an accessible complaint process, translation may be necessary. If ten percent or more of the workforce speaks a language that is not English, the employer must translate the policy into all languages spoken by the employees.

When the necessary translations are complete and the policy is ready for communication to employees, the employer should take at least one of the following actions to ensure employees are aware of the policy:

  1. Print and provide a hardcopy of the policy to all employees with an acknowledgment form for the employee to sign and return to the employer.
  2. Send the policy via e-mail with an acknowledgment form for the employee to sign and return to the employer.
  3. Post the policy on the employer’s intranet with a system to track those employees that read and acknowledge the policy.
  4. Provide and discuss the policy with new employees.
  5. Any other alternative or additional method that ensures receipt and understanding of the policy.

Employers are also required to post the DFEH-created poster regarding transgender rights in a prominent and accessible location in the workplace.

Completing a comprehensive workplace anti-harassment, discrimination, and retaliation policy requires time and focus, but it is an important part of any agency’s Human Resources work.  Agencies should contact trusted legal counsel with any questions about the process of creating and communicating an anti-harassment, discrimination, and retaliation policy.

Our short Public Safety Video Briefings will tackle cutting-edge issues and core principles relevant to public safety employers. We hope you find these videos useful and thought-provoking.

LCW’s Tony Carvalho discusses Assembly Bill 481 and the new obligations imposed on law enforcement agencies in regards to the acquisition and use of military equipment.

 

Non-employees may be able to sue employers for COVID-19 infections that can be traced to the employer’s workplace. A recent California Court of Appeal decision may pave the way for third parties to collect compensation from employers due to COVID-19 infections.

A California Court of Appeal recently allowed a cause of action brought by an employee against her employer for the wrongful death of her husband due to COVID-19 to proceed on the merits. In See’s Candies, Inc. v. Superior Court of California for County of Los Angeles, an employee, Matilde Ek (“Plaintiff”), filed a wrongful death claim against her employer, See’s Candies, Inc. (“See’s”). She alleges that because of See’s failure to take appropriate and necessary health and safety measures to protect employers from a viral infection, she contracted COVID-19 and then infected her husband who eventually died from the disease. Plaintiff further alleges that See’s failed to take sufficient precautionary measures to protect its employees despite the employees’ request for the implementation of new safety and mitigation measures designed to mitigate their risk of exposure to the virus.

Harm suffered while on the job is typically covered by the California Workers’ Compensation Act (“WCA”). WCA establishes an exclusive system of compensation for injuries or death to employees “arising out of and in the course of” their employment, and provides coverage for virtually every employer and employee in the state. It is designed to allow employees to receive medical treatment for on-the-job injuries or illnesses, regardless of fault; in return, WCA prohibits employees from bringing claims against their employer for the injuries. (Labor Code section 3600.)

See’s requested that the trial court dismiss the wrongful death claim and contended that the WCA preempted the employee’s claim based on the “derivative injury doctrine”, which generally bars “certain third party claims deemed collateral to or derivative of the employee’s injury.” For example, a claim by an employee’s spouse for loss of the employee’s consortium or for emotional distress stemming from witnessing the employee’s injuries is usually rejected under the derivative injury doctrine. See’s contended that the derivative injury doctrine applies “when an employee contracts a virus at work, subsequently infects a family member, and the family member dies as a result.”

The Court of Appeal held that the derivative injury doctrine does not apply to the facts at issue. It concluded that while the employer arguably suffered a workplace injury for the purposes of the WCA, the derivative injury doctrine does not extend to separate physical injuries suffered by non-employees. The Court of Appeal rejected See’s invocation of the derivative injury doctrine, denied its petition for writ of mandate, and remanded the case to the trial court to allow Plaintiff to bring her claims against See’s.

The Court of Appeal distinguished the case from Kuciemba v. Victory Woodworks, Inc. In Kuciemba, an employee, Mr. Kuciemba, alleged that he contracted a mild case of COVID-19 in the course of his employment at Victory Woodworks Inc. (“Victory”) and then infected his wife, who suffered severe symptoms. The Kuciembas alleged that Victory had a duty to protect Mrs. Kuciemba from exposure to COVID-19 and was liable for her harm. The district court concluded that the Kuciembas’ claims were barred due to workers’ compensation exclusivity, and further held that the employer had no duty to nonemployees off work premises. Of particular note here, the Kuciemba court acknowledged that Victory had followed official guidance for best practices in reducing the spread of the virus.

While there are meaningful procedural differences to these cases – a federal district court dismissed Kuciemba for failure to state a claim, whereas the California Court of Appeal denied a writ of mandate to vacate an order overruling a demurrer in See’s –  there are many factual similarities. The key factual distinction between the cases, according to the Court of Appeal, was that Victory effectively implemented COVID-19 safety and mitigation measures. While this distinction may not have been determinative, the Court of Appeal’s decision in See’s nevertheless highlights the possible consequences for employers who fail to implement adequate health and safety measures aimed at reducing the risk of exposure and transmission.

 

For full summaries of See’s and Kuciemba see:

Wife Could Not Sue Spouse’s Employer For Her COVID-19 Infection

Wrongful Death Claim Brought By Employee Who Allegedly Caught COVID-19 At Work And Infected Husband Resulting In His Death Is Not Preempted By Workers Compensation Act

On February 9, 2022, Governor Newsom signed Senate Bill (“SB”) 114[1] into law. The law reauthorizes COVID-19 Supplemental Paid Sick Leave (“SPSL”), providing paid leave entitlements to employees who are unable to work or telework due to a number of qualifying reasons related to COVID-19. The law becomes effective on February 19, 2022 and will require covered employers to provide SPSL to qualifying employees retroactive to January 1, 2022 and through September 30, 2022.

The purpose of this bulletin is to explain the requirements set forth in SB 114, identify key differences between this bill and Senate Bill (“SB”) 95, which created SPSL in 2021,[2] and advise employers on how they can discharge their SPSL legal obligations. Additionally, Liebert Cassidy Whitmore will be conducting a webinar about SB 114 and how to manage its requirements on February 23.

I. Overview of the Major Provisions of SB 114

A. Employers Covered by SB 114

The law’s requirements apply to public and private employers that employ 26 or more workers “under any appointment or contract of hire.”[3]

B. Qualifying Reasons to Take SPSL

The law requires that covered employers provide SPSL to any employee who cannot work or telework due to one or more of the following COVID-19-related reasons[4]:

1. The covered employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidance of the California Department of Public Health (“CDPH”), the federal Centers for Disease Control and Prevention (“CDC”), or a local public health officer who has jurisdiction over the workplace.[5]

2. The covered employee has been advised by a health care provider to isolate or quarantine due to COVID-19.

3. The covered employee is attending an appointment for themselves or a family member[6] to receive a vaccine or a vaccine booster for protection against COVID-19.[7]

4. The covered employee is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster that prevent the employee from being able to work or telework.[8]

5. The covered employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.

6. The covered employee is caring for a family member who:

A. Is subject to a CDPH, CDC, or local health officer order or guidance to isolate or quarantine, OR

B. Has been advised by a health care provider to isolate or quarantine.

7. The covered employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

8. The covered employee, or a family member for whom the covered employee is providing care, tests positive for COVID-19.[9]

C.  Amounts of SPSL Available to Covered Employees

1. SPSL Available for Reasons 1 through 7

The subparagraphs below describe the SPSL amounts to which covered employees are entitled under the law:

a.  Full-Time Employees

Employees who worked at least 40 hours per week in the two weeks before they take SPSL, or who the employer considers to be full-time employees, are entitled to 40 hours of SPSL for qualifying reasons 1 through 7, above.[10]

b.  Firefighters

Firefighters who were scheduled to work more than 40 hours in the workweek before they take SPSL are entitled to the amount of SPSL equal to the “total number of hours that the covered employee was scheduled to work for the employer in that workweek,” which may exceed 40 hours, for qualifying reasons 1 through 7.[11]

Because the bill counts “the total number of hours that a [firefighter] was scheduled to work,” the plain language of the statute covers scheduled overtime. Employers should include such time in the SPSL allotment provided to firefighters. Notably, the bill also does not address work schedules that vary week-to-week. Instead, the bill establishes firefighters’ SPSL entitlement based on the work hours scheduled for the week immediately preceding the week the firefighter takes SPSL. Firefighters are often scheduled to work differing hours form one week to the next. The bill does not seem to consider this in determining the amount of leave that firefighters receive.

c.  Other Employees

If an employee does not fall into the first two categories (e.g., works part-time), then the amount of SPSL will depend on the employee’s schedule.[12]

i.   Part-Time Employees with Regular Schedules

If the employee has a regular weekly schedule, then the employee will receive an amount of SPSL equivalent to one regular workweek for qualifying reasons 1 through 7.

ii. Part-Time/Seasonal Employees with Irregular Schedules

If an employee works variable hours, then the employer must calculate the average number of hours the employee worked each workday over the last six months and multiply the result by seven to get the amount of SPSL. If the employee has worked for fewer than six months, then the employer calculates the average hours worked for the entire employment period and multiplies the daily average by seven.

If an employee works variable hours and has only worked for seven days or fewer, then the employee receives an amount of SPSL equivalent to the total number of hours worked for the employer.

2. SPSL Available for Reason 8

In addition to the leave amounts described above, SB 114 also grants employees a separate “leave bank” of SPSL for qualifying reason 8 that equals the amount of SPSL the employee receives for qualifying reasons 1 through 7.[13] As a result, employers should be prepared to provide two separate leave banks to covered employees: (1) a leave bank for qualifying reasons 1 through 7 with an amount of leave based on their work schedule, as described above; and (2) a leave bank for qualifying reason 8 with an equivalent amount of leave as provided to the employee for qualifying reasons 1 through 7.

Employees who take SPSL under qualifying reason 8 may also qualify for SPSL coverage under more than one of the above-enumerated qualifying reasons (see qualifying reasons 1, 2, and 6). Therefore, it will be important for employers to ascertain the specific qualifying reason for the employee’s leave in order to deduct SPSL from the appropriate leave bank and properly record such leave usage.

Covered employees generally have the right to determine how much of their SPSL balance they would like to use.[14] Employers must provide SPSL immediately upon oral or written request, but may withhold payment for the usage of leave for qualifying reason 8 in the event that the employee does not provide test results, as described below.

D. Additional Requirements and Limitations on SPSL Taken for Reason 8

Employers that receive employee requests for the use of SPSL for qualifying reason 8 possess certain discretionary authority under SB 114, but must observe specific limitations placed on such authority, as discussed below.

1. Employers Are Authorized to Require Employees Produce Test Results to Confirm Leave Entitlement

If an employee requests SPSL for reason 8, the employer may require that the employee provide the positive test result to confirm that the employee qualifies for such leave. The employer may also require that the employee provide the family member’s positive test result[15] if the employee is requesting leave in order to provide care to a covered family member.[16]

As a best practice, employers should consider requesting that the employee provide documentation of COVID-19 test results from an independent third party, such as a health care provider or test center.[17] While SB 114 does not specify which, if any, COVID-19 tests are preferred or prohibited for this purpose, a documentation of the test result produced by a third party will ensure that employers remain in compliance with the regulatory requirements for tests under the Cal/OSHA Emergency Temporary Standard (“ETS”).[18]

The bill expressly provides that if an employee refuses to produce the initial positive test result for either the employee themselves or their family member[19], depending on the reason for the leave, then the employer has no obligation to provide SPSL for reason 8.[20]

2. Employers Are Authorized to Require that Employees Who Use Leave because of a COVID-19 Case Re-Test Five Days after the Initial Positive Test Result

Employers may also require an employee who has taken SPSL for qualifying reason 8 to test for COVID-19 on or after day five, following the initial positive test.[21] Under existing isolation guidance from the CDPH,[22] as well as Department of Industrial Relations (“DIR”) guidance on the Cal/OSHA ETS,[23] employees who test negative for COVID-19 on or after day five and who do not present COVID-19 symptoms may end their isolation periods and return to work.

For the purpose of potentially discontinuing isolation after a positive COVID-19 test, both the CDPH and DIR state a preference for antigen tests to determine an individuals’ COVID-19 status.[24] While neither the CDPH nor DIR require that the COVID-19 test be administered by an independent third party for such purpose, employers may consider disallowing self-administered and self-read tests (e.g., at-home tests) and requiring that employees provide documentation of the negative test result prepared by an independent third party before returning to work.[25]

Employers should note that if they require an employee to test on or after day five, then the employer must provide the test “at no cost to the employee.”[26]

3. Employers Are Not Authorized to Require that Employees Exhaust Leave for Reasons 1 through 7 before Using Leave for Reason 8

The bill does not require that employees exhaust SPSL for reasons 1 through 7 before the employee uses SPSL for reason 8.[27]

4. Employers Are Not Authorized to Require Employees to Draw Down Leave for Reasons 1 through 7 before Using Leave for Reason 8

While several of the qualifying reasons for leave are substantially similar (compare qualifying reasons 1, 2, and 6 to qualifying reason 8), employers are not authorized to draw down such leave concurrently, and will need to track the reasons for employees’ SPSL use meticulously.

For example, an employee who tests positive for COVID-19 might take SPSL for qualifying reasons 1, 2, or 8. Such an employee may be required to isolate pursuant to current CDPH guidance (i.e., qualifying reason 1), due to a health care provider recommendation (i.e., qualifying reason 2) or because the employee tested positive (i.e., qualifying reason 8.)

When an employee requests SPSL for a purpose that may be covered by more than one qualifying reason (e.g., employee tested positive for COVID-19), the employer should request that the employee identify which qualifying reason the employee is using to take SPSL (e.g., qualifying reason 1, 2 or 8 for an individual with COVID-19). The employer should then deduct the SPSL from the appropriate leave bank (i.e., the SPSL bank reserved for qualifying reasons 1 through 7, or the SPSL bank reserved for qualifying reason 8). The employer should keep written records of its employees’ leave usage and the amount of leave used and remaining in each of the SPSL banks.

E. Compensation for Use of SPSL

Under SB 114, the compensation for SPSL for employees is determined by the employees’ exemption status and their pay rate.[28]

For nonexempt employees, compensation is based on the employee’s regular rate of pay or the employee’s total wages less any overtime premium pay.[29] For exempt employees, the law requires employers to calculate employee compensation for SPSL as they would for other forms of paid leave time.[30]

Employers are not required to pay employees more than $511 per day when using SPSL and not more than $5,110 in total.[31]

If an employee’s regular compensation exceeds $511 per day, the employee may elect to supplement the SPSL maximum pay amount with other accrued paid leaves to make up the difference in pay.[32]

F. Notice and Posting Obligations

The law also requires that, each pay period, employers provide employees “written notice” regarding SPSL that includes the amount of SPSL that an employee has used through the pay period.[33]

Employers may satisfy the notice requirement by listing the SPSL amount separately on an employee’s itemized wage statement[34] or providing such information in a separate writing on paydays.

Further, the law requires that employers post information about SPSL in the workplace.[35] The Labor Commissioner will design and produce a model notice that employers may use to discharge this posting requirement.

For employees who do not frequent the workplace (e.g., teleworking employees), employers may provide the posting information via email.

G. Effective Period

1. SPSL Leave Obligations Take Effect on February 19, 2022

The new SPSL obligations will take effect 10 days after the Governor enacts SB 114 into law, but as described below, will be retroactive to January 1, 2022.

2. SPSL Leave Obligations Retroactive to January 1, 2022

SPSL will apply retroactively to cover leave taken by employees on or after January 1, 2022 that would otherwise have qualified under reasons 1 through 8.[36]

In other words, if an employee was unable to work or telework due to one of the eight qualifying reasons enumerated above and used another paid leave (or went without pay), then the employee may request that SPSL be applied retroactively to that leave and the employer should restore the leave that the employee used previously.

While employees may request the retroactive application of paid leave either orally or in writing, employers should request that employee make such requests in writing in order for the employer to document such requests and demonstrate their compliance with the law.

3. SPSL Leave Obligations Will Remain in Effect through September 30, 2022

The SPSL obligations will remain in effect through September 30, 2022. However, as with the SPSL provided under SB 95, an employee who is using SPSL on September 30, 2022 may continue to use the leave after that expiration date so long as the leave is uninterrupted, and the employee has SPSL remaining available for their use.[37]

II. Interaction with Employer Obligations in the Cal/osha ets

One of the most important changes to the authority provided to employers under SB 95 and SB 114 is the new restriction[38] that employers may not compel employees to use SPSL to provide for their continued compensation while the employees are excluded from the workplace pursuant to the Cal/OSHA Emergency Temporary Standard (“ETS”).[39]

Previously, SB 95 (codified at Labor Code section 248.2) authorized employers to draw down employees’ SPSL balances when the employee was excluded from the workplace due to a COVID-19 case or work-related close contact exposure.[40] Now, SB 114 expressly prohibits employers from requiring that employees use SPSL for this purpose:

An employer shall not require a covered employee to first exhaust their COVID-19 supplemental paid sick leave under this section before satisfying any requirement to provide paid leave for reasons related to COVID-19 under any Cal-OSHA COVID-19 Emergency Temporary Standards.[41]

This statutory change leaves employers in the potentially awkward and administratively difficult position of using other paid leaves accrued by the employee in order to provide for their continued compensation while they are excluded from the workplace. While employers cannot require employees who are excluded from the workplace to use the new SPSL, employers may use discretionary authority provided to them pursuant to the DIR[42] in order to use these employees’ paid sick leave accruals in order to provide for their continued compensation.

As a result, employers that are required to exclude employees from the workplace pursuant to the Cal/OSHA ETS regulatory requirements may consider adopting the following approach:

1. Request, but do not require, that employees authorize the use of SPSL to provide for their continued compensation during the exclusion period.

2. If the employee declines to use SPSL for this purpose, require that the employee (who possesses a paid sick leave balance in excess of the maximum statutory leave amount) draw down sick leave in order to provide for their continued compensation while excluded (as discussed at length in this prior special bulletin);[43]

3. If the employee declines to use SPSL during the exclusion period and does not possess a sufficient amount of paid sick leave to provide for their compensation while excluded from the workplace:

A. Provide the employee paid administrative leave to provide for their compensation during the exclusion period; and

B. Do not draw down employees’ SPSL balances during the exclusion period.

Employers that are considering adopting this approach should consult with legal counsel to discuss specific nuances concerning the provision of the leave and associated pay.

III. Potential Sources of Public Funding for Costs Incurred by Public Agency Employers Related to the Provision of SPSL

Public agencies should be aware that federal funds may aid them in recouping the costs of providing SPSL to their employees. The American Rescue Plan Act (“ARPA”) established the Coronavirus Local Fiscal Recovery (“CLFR”) fund to support local government’s response to, and recovery from, the COVID-19 public health emergency.[44] The Treasury has confirmed that paid sick, medical, and family leave programs provided by public employers to enable compliance with COVID-19 public health precautions will be eligible for receipt of CLFR fund. As such, employers may use payments from the CLFR fund to cover expenses related to the provision of SPSL.[45]

IV. Conclusion

While many of the SPSL requirements will seem familiar to employers, it is imperative to note the differences between SB 114 and SB 95 and the different legal obligations that they entail.

Liebert Cassidy Whitmore attorneys are familiar with obligations created by SB 114. If you wish to learn more, you can register for the firm’s February 23 webinar on SB 114 and its requirements. Should you have any questions about this new legislation and its potential effect on your agency’s leave policies and practices, please do not hesitate to contact the firm.

[1] Sen. Bill No. 114 (2021-2022 Reg. Sess.).

[2] Sen. Bill No. 95 (2021-2022 Reg. Sess.).

[3] Labor Code § 248.6, subd. (a)(3); Labor Code § 245.5, subd. (b).

[4] SB 114 also includes legislation that would provide SPSL for in-home caregivers under Labor Code § 248.7.

[5] NOTE: If multiple isolation or quarantine periods apply, the employee may use SPSL for the minimum amount of time required by the longest isolation or quarantine period.

[6] For the purposes of SB 114, a “family member” includes an employee’s child, a parent, spouse, registered domestic partner, grandparent, grandchild, or sibling. A “child” is a biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis. A “parent” includes a biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child. (Labor Code § 245.5, subd. (c).)

[7] The employer may limit the total SPSL used for each vaccination or booster to 3 days or 24 hours, unless the employee provides verification from a health care provider that the covered employee or their family member is continuing to experience symptoms related to a COVID-19 vaccine or vaccine booster.

[8] Employers may apply the same limitation of 3 days or 24 hours’ SPSL here, unless the employee provides verification from a health care provider that the covered employee or their family member is continuing to experience symptoms related to a COVID-19 vaccine or vaccine booster.

[9] Labor Code § 248.6, subds. (b)(1), (b)(2)(D).

[10] Labor Code § 248.6, subd. (b)(2)(A).

[11] Labor Code § 248.6, subd. (b)(2)(B).

[12] Labor Code § 248.6, subd. (b)(2)(C).

[13] Labor Code § 248.6, subd. (b)(2)(D)(i).

[14] Labor Code § 248.6, subd. (b)(2)(G). If an employee takes SPSL for reasons 3 or 4, above, then the employer may limit leave taken to 24 hours or 3 days unless the employee provides a qualifying note from a health care provider. Labor Code § 248.6, subds. (b)(1)(C), (D).

[15] The Genetic Information Nondiscrimination Act (“GINA”) (42 U.S.C. §§ 2000ff, et seq.) prohibits employers from requesting, requiring, or purchasing genetic information with respect to an employee or a family member of the employee. (42 U.S.C. § 2000ff-1(b).) “Genetic information” includes “information about the manifestation of disease or disorder in family members of the individual.” (29 C.F.R. § 1635.3(b).) However, the prohibition against requesting genetic information does not apply where a covered employer “requests family medical history to comply with the certification provisions of . . . State or local family and medical leave laws.” (29 C.F.R. § 1635.8(b)(3).) SPSL provided under SB 114 likely qualifies for this exemption. Accordingly, the GINA likely does not prevent employers from requesting family members’ COVID-19 test results under SB 114.

[16] Labor Code § 248.6, subd. (b)(2)(D)(iii).

[17] As a general rule, the Confidentiality of Medical Information Act (“CMIA”) prohibits employers from using, disclosing, or knowingly permitting employees or agents to use or disclose employee medical information. (Civil Code § 56.20, subd. (c).) However, an exception to the rule allows employers to use employee medical information in order to administer and maintain employee benefit plans, and to determine eligibility for paid and unpaid leave from work for medical reasons. (Civil Code § 56.20, subd. (c)(3).) Employers may request employee test results to administer SPSL under this exception; however, they should still observe confidentiality requirements where applicable.

[18] The Cal/OSHA ETS prohibits the use of self-administered and self-read tests for purposes under those regulations. 8 C.C.R. § 3205(b)(6)(C).

[19] See footnote 17, supra, regarding the implications of receiving a family member’s results under the GINA.

[20] Labor Code § 248.6, subd. (b)(2)(D)(iv). In this scenario, employers will need to provide leave immediately to the employee, but can withhold payment for the leave duration until the employee produces the COVID-19 test result.

[21] Labor Code § 248.6, subd. (b)(2)(D)(ii).

[22] CDPH, “Guidance for Local Health Jurisdictions on Isolation and Quarantine of the General Public” (Updated on January 8, 2022) <https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Guidance-on-Isolation-and-Quarantine-for-COVID-19-Contact-Tracing.aspx> (as of February 4, 2022).

[23] DIR, “COVID-19 Emergency Temporary Standards Frequently Asked Questions (Updated on January 28, 2022) <https://www.dir.ca.gov/dosh/coronavirus/COVID19FAQs.html#iso> (as of February 4, 2022).

[24] The CDPH does not have a preferred test for individuals who must quarantine, but nucleic acid amplification tests (“NAAT”) or Loop-Mediated Isothermal Amplification (“LAMP”) tests are acceptable, as well as over-the-counter tests.

[25] See Labor Code § 2802, subd. (a); 29 C.F.R. § 785.43.

[26] Labor Code § 248.6, subd. (b)(2)(D)(ii).

[27] Labor Code § 248.6, subd. (b)(2)(D)(v).

[28] Nonexempt employees are subject to the requirements of the Fair Labor Standards Act (29 U.S.C. §§ 201, et seq.). Exempt employees are not subject to the Act’s minimum wage and maximum hours requirements. (29 U.S.C. § 213.)

[29] Labor Code § 248.6, subd. (b)(3)(A)(i).

[30] Labor Code § 248.6, subd. (b)(3)(A)(ii).

[31] Labor Code § 248.6, subd. (b)(3)(C). For firefighters, this calculation methodology may result in the employee exhausting SPSL leave after 10 days, regardless of extra SPSL entitlements they may have based upon their scheduled hours.

[32] Labor Code § 248.6, subd. (b)(3)(C).

[33] Labor Code § 248.6, subd. (d)(2).

[34] Labor Code § 226.

[35] Labor Code § 248.6, subd. (d)(4); Labor Code § 247, subd. (a).

[36] Labor Code § 248.6, subds. (c), (e)(2).

[37] Labor Code § 248.6, subd. (f).

[38] Labor Code § 248.6, subd. (b)(5).

[39] See 8 C.C.R. § 3205(c)(9)(D).

[40] Labor Code § 248.2, subd. (b)(5).

[41] Labor Code § 248.6, subd. (b)(5) [emphasis added].

[42] DIR, “COVID-19 Emergency Temporary Standards Frequently Asked Questions (Updated on January 28, 2022) <https://www.dir.ca.gov/dosh/coronavirus/COVID19FAQs.html#iso> (as of February 4, 2022).

[43] SB 114 states that an employer “shall not require a covered employee to use any other paid or unpaid leave, paid time off, or vacation time provided by the employer to the covered employee before the covered employee uses [SPSL] or in lieu of [SPSL].” (Labor Code § 248.6, subd. (b)(4).) As a result, an employer must take care to avoid any implication that it is requiring the employee to utilize such sick leave before using SPSL. Rather, employers must effectively communicate that they are utilizing non-statutory sick leave to satisfy the ETS exclusion pay requirement because the employee has chosen not to use SPSL. The distinction is subtle, but it is important. During these conversations, employers can also remind employees that their SPSL hours expire September 30, 2022 as an incentive to utilize SPSL first, while employer-provided sick leave hours do not carry a similar expiration date.

[44] U.S. Department of the Treasury, “Coronavirus State and Local Fiscal Recovery Funds,” <https://home.treasury.gov/policy-issues/coronavirus/assistance-for-state-local-and-tribal-governments/state-and-local-fiscal-recovery-funds> (accessed February 8, 2022). American Rescue Plan Act § 9901; 42 U.S.C. §§ 802, 803.

[45] See Final Rule 31 C.F.R. § 35.6, subd. (b).); 87 Fed. Reg. 4368 [“Treasury agrees that . . . under the final rule, creating, expanding, or financially supporting paid sick, medical, or family leave programs is an enumerated eligible use of funds to respond to the negative economic impacts of the pandemic.”].  Further support for this reading is also found in the “Overview of the Final Rule,” supra, at 14, 18 and the current Interim Final Rule at 86 Fed. Reg. 26822 [proposed 31 C.F.R. § 35.6, subd. (b)(1)(xiv)].

 

This week, the California Legislature is considering the adoption of Assembly Bill (“AB”) 84, which would reauthorize COVID-19 Supplemental Paid Sick Leave (“SPSL”). If passed, the bill would require that most employers in the state provide paid sick leave to employees for certain reasons related to COVID-19.

 

Earlier this week, the State Senate adopted AB 84, and it is anticipated that the Assembly will do so on Thursday. After the bill’s final passage, Governor Newsom is expected to act quickly to enact the bill into law.

Liebert Cassidy Whitmore attorneys are actively monitoring the legislation and will provide a comprehensive analysis of the bill, its specific operation, and interaction with other COVID-19 related obligations when it is finally adopted.  Given the complexity of the bill, we also anticipate conducting a webinar to help you to administer the bill’s leave provisions.  Look for additional information about the webinar later this month.

Governor Gavin Newsom signed Assembly Bill 45 (“AB 45”) into law on October 6, 2021.  AB 45 is landmark legislation for the Cannabidiol (“CBD”) and hemp infused product industry in California.  CBD and hemp infused products became widely available across the country following the federal government’s adoption of the Agriculture Improvement Act of 2018.  Recreational marijuana use has also been legal in California since 2016 after the Control, Regulate and Tax Adult Use of Marijuana Act became law.  AB 45 extends these recent advances of the cannabis industry by formally authorizing the inclusion of CBD and hemp extracts or derivatives in dietary supplements, food, beverages, cosmetics, and other products sold in California.

What Does AB 45 Do?

AB 45 specifically allows the inclusion of CBD and hemp in a variety of products in California so long as their tetrahydrocannabinol (“THC”) concentration levels remain below 0.3%.  This requirement aims to bring manufacturers and distributors of such products into compliance with existing California law under the Sherman Food, Drug, and Cosmetic Law, and federal statutory law, which is discussed in more detail below.  AB 45 requires that any product sold or distributed in the state have documentation certifying that an independent laboratory confirmed the final form of the product does not exceed a THC concentration of 0.3%.  (Health & Saf. Code, § 111925.2.)  The bill also establishes a state regulatory scheme over such products and prohibits untrue health statements on product labels, among other things less relevant to the employment context.

Are All CBD Products Now “Legal” in California?

We have previously provided guidance, in a February 2020 Blog Post, on whether CBD products are legal.  As was the case then, the short answer to this question is “strictly speaking, no; but it is complicated.”

Uncertainty under Federal Regulators

The legal landscape at the federal level remains largely unchanged since our prior blog post.  Federal law draws a sharp distinction between cannabis products based upon their THC concentration level.  The federal government and executive agencies, such as the Drug Enforcement Agency (“DEA”), consider any cannabis product at or above 0.3% THC concentration to be marijuana.  Marijuana is considered a Schedule 1 drug under the Controlled Substances Act.  (21 U.S.C. § 812, subd. (c)(10).)  Any product below the 0.3% THC concentration threshold is considered “industrial hemp,” which is legal to produce.

Despite that distinction, the Food and Drug Administration (“FDA”) has signaled in non-binding guidance, “It is currently illegal to market CBD by adding it to a food or labeling it as a dietary supplement.” As a result, the FDA does not currently regulate such products.  In May of 2021, United States Senators Ron Wyden, Rand Paul, and Jeff Merkley introduced proposed legislation on this issue.  The stated goal of the “Hemp Access and Consumer Safety Act” is to “ensure hemp-derived CBD products are regulated by the U.S. Food and Drug Administration (“FDA”) like other legal products used in dietary supplements, foods and beverages” and to resolve the current “regulatory gray zone” that exists for these products.  Until this or similar legislation is acted upon by Congress or until the FDA changes its course, the regulatory gray zone remains at the federal level.

AB 45 only complicates matters further.  Due to the FDA’s position on CBD products, the published THC concentrations of CBD and hemp infused products have widely been considered unreliable in the past.  AB 45’s requirement that all CBD or hemp infused products contain less than 0.3% THC concentration—and that an independent laboratory verify that concentration level—aims to bring all such products into compliance with federal statutory law and existing state laws (such as the Sherman Food, Drug, and Cosmetic Law).  California’s requirements, however, now lie in tension with federal regulators like the FDA.

AB 45 passed as urgency legislation, meaning that it went into effect immediately upon signature by the Governor on October 6, 2021.  As a result—in theory—all CBD and hemp infused products sold and distributed in California must comply with AB 45’s requirements at this time and therefore comply with other relevant state laws.  Nonetheless, a risk remains that such products currently sold in California do not yet comply with state law given the short time span since AB 45 went into effect.

Should Employees Avoid CBD Products if They Must Submit to Employer-Mandated Drug Testing?

The short answer to this question is, “it depends upon the type of test and who is administering it.”  For example, employees subject to Department of Transportation (“DOT”) drug testing should carefully weigh whether to use CBD or hemp infused products.  DOT does not specifically test for CBD, but it issued a “CBD Notice” on February 18, 2020.  The CBD Notice warns, “Since the use of CBD products could lead to a positive drug test result, Department of Transportation-regulated safety-sensitive employees should exercise caution when considering whether to use CBD products.”  The Notice continues, “CBD use is not a legitimate medical explanation for a laboratory-confirmed marijuana positive result.”

Employers may receive inquiries from employees about whether using CBD or hemp infused products will generate a positive drug test.  Employers are generally not obligated to advise their employees on whether a certain substance will register on an employer-required drug test.  Employees bear the responsibility of passing employer-required drug tests as a condition of employment.  If employers are inclined to provide any advice to their employees in this scenario, they should advise them to evaluate the reliability of the product’s reported THC concentration, and, in certain situations, consult with their health care provider(s) prior to consumption.  Employers should also advise employees if use of CBD or hemp infused products will violate employer policies irrespective of whether employees are drug tested.

What Other Issues Should Employers Consider Related to Employee CBD Product Use?

Employer Policies

First and foremost, employers should examine their current drug use policies to determine whether CBD and hemp infused products are covered by that policy’s provisions.  If they are, supervisors should be aware of what the policy states about CBD and hemp infused products.  If they are not, employers should consider defining CBD and hemp infused product use and consider establishing rules relating to such use.  We recommend that any employer consult with legal counsel should they wish to revise their current drug use policy to address these products.

The Disability Interactive Process

The second major area where the use of CBD and hemp infused products is likely to arise is processing disability accommodation requests.  It is clear under California law that employers are not obligated to accommodate marijuana use and can take adverse employment actions against employees for such use, and for possession or consumption of marijuana at the workplace.  (See, e.g., Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920; Health & Saf. Code, § 11362.45 (f).)  The central holding of the Ross decision was that, despite the existence of the Compassionate Use Act, “[t]he FEHA does not require employers to accommodate the use of illegal drugs.”  (Id. at 926 [emphasis added].)  The law is far hazier on whether an employer is obligated to accommodate an employee’s off-duty use of CBD or hemp infused products as treatment for an underlying health condition.  This is especially true considering the fact that AB 45 was drafted to ensure that all CBD and hemp infused products sold in California comply with other state laws and federal statutory law.

Under the Americans with Disabilities Act (“ADA”) and the Fair Employment and Housing Act (“FEHA”), employers are generally obligated to consider modifying employment policies as a potential reasonable accommodation for a disability.  (See 42 U.S.C. §§ 12111, subd. (9)(b); 29 C.F.R. § 1630.2, subd. (o)(2)(ii).)  However, one federal district court recently cast doubt on whether an employee’s request to revise her employer’s drug use policy to allow for CBD as treatment for a medical condition could support a failure to accommodate claim under the ADA.  (See Hamric v. City of Murfreesboro (M.D. Tenn., Sept. 10, 2020, No. 3:18-CV-01239) 2020 WL 5424104, at *5.)  Some states, such as Virginia, have passed legislation that expressly forbids employers from disciplining employees for lawful CBD use if the employee possesses documentation from a health care provider that states such use is part of the employee’s treatment plan.  However, even Virginia’s law allows employers to take adverse action against employees that are impaired on the job from such use.  Given the wide array of situations an accommodation request can arise in, employers should consult with legal counsel and tread thoughtfully when responding to an employee accommodation request involving CBD or hemp infused products as a potential treatment for a disability.

There are a number of unresolved legal issues surrounding the use of CBD and hemp infused products in California.  Employers should continue to monitor this fast-moving legal space for further guidance.

On January 27, 2022, the California Supreme Court unanimously decided that the McDonnell Douglas burden-shifting analysis that is widely used to determine whether an employment discrimination or retaliation case should be dismissed before trial does not apply to whistleblower retaliation claims brought under California Labor Code section 1102.5. As a result, employers will face a higher burden to obtain summary judgment before trial in whistleblower retaliation cases.

The case prompting this question was Lawson v. PPG Architectural Finishes, Inc. (Lawson), which was originally pending in the Ninth Circuit Court of Appeals. The Ninth Circuit certified the following question of state law for the California Supreme Court to answer: “Does the evidentiary standard outlined in Section 1102.6 of the California Labor Code replace the McDonnell Douglas test as the evidentiary standard for retaliation claims brought under Section 1102.5 of California’s Labor Code?”

Lawson v. PPG Architectural Finishes, Inc.
Lawson worked as a territory manager for a manufacturer that sold paint and other home-improvement products to retailers. Lawson claimed that his supervisor asked him to “mistint” slow-selling paint products at Lowe’s stores in order to allow the manufacturer to fraudulently avoid having to repurchase the slow-selling paint. Lawson claims he refused and reported the directive to the company – twice. During the same month he first reported this directive to the company, he was placed on a Performance Improvement Plan. After he submitted his second complaint, he received a low rating for his work and was eventually terminated. Lawson filed a complaint against the manufacturer alleging that he was retaliated against as a whistleblower for his reports about the request to “mistint” the paint.

The employer in Lawson moved for summary judgment. The trial court applied the McDonnell Douglas burden-shifting test to Lawson’s whistleblower claim. For nearly 40 years the McDonnell Douglas has set forth the process for summary judgment motions in employment discrimination and retaliation cases in both state and federal courts, except for the rare cases in which direct evidence of discrimination or retaliation is shown.

McDonnell Douglas Test
Step One: The Plaintiff must establish, by a preponderance of evidence, their prima facie case of retaliation : (1) that they engaged in protected activity; (2) that they suffered an adverse employment action; and (3) there is a causal connection between the protected activity and the adverse employment action.

Step Two: If the Plaintiff can do so, the Defendant Employer must carry the burden of production to articulate a legitimate, non-retaliatory reason for the adverse employment action.

Step Three: If the Defendant carries its burden, the Plaintiff is then given the opportunity to prove, by a preponderance of evidence, that the Defendant Employer’s stated reason was in fact pretext.

After applying this well-established framework to Lawson’s section 1102.5 whistleblower retaliation claim, the federal trial court found that Lawson failed to carry his burden of showing pretext and granted summary judgment to his employer. Lawson appealed to the Ninth Circuit.

Lawson argued in his appeal that the trial court should have applied the evidentiary standard set forth in California Labor Code section 1102.6 – not the McDonnell Douglas test – to his section 1102.5 retaliation claim. Under section 1102.6, the test operates as follows:

Section 1102.6 Test
Step One: the Plaintiff must establish, by a preponderance of evidence, that retaliation for their protected activities was a contributing factor in the contested employment action.

Step Two: Once the Plaintiff makes the required showing, the burden shifts to the Defendant Employer to demonstrate, by clear and convincing evidence, that it would have taken the action in question for legitimate, independent reasons even if the plaintiff had not engaged in protected activity.

The preponderance of evidence test in Step One requires the employee to prove that a fact is more likely than not true, whereas the clear and convincing test in Step Two requires the employer to prove that it is highly probable that the fact is true.

Ninth Circuit
The Ninth Circuit reviewed existing case law and found that some courts insisted on applying the McDonnell Douglas framework for summary judgment motions, while other courts applied the section 1102.6 framework. The Ninth Circuit noted that “the continued application of McDonnell Douglas to section 1102.5 retaliation claims seems to ignore a critical intervening statutory amendment” – Senate Bill 777 of 2003. According to the Ninth Circuit, “the California legislature thus expressly adopted a burden-shifting evidentiary standard that seemingly replaced the McDonnell Douglas test for section 1102.5 retaliation claims.” As a result, the Ninth Circuit asked the California Supreme Court to decide which test it should apply to a summary judgment motion on a section 1102.5 claim.

California Supreme Court
In its January 27, 2022 decision, the California Supreme Court unanimously decided that trial courts should apply the Labor Code section 1102.6 test when evaluating whistleblower retaliation claims brought under Section 1102.5, and not the McDonnell Douglas test. The Court reasoned that while both McDonnell Douglas and section 1102.6 offer a method for proving retaliatory intent, the California Legislature in 2003 intentionally added section 1102.6 to establish the evidentiary burdens of both parties to a whistleblower retaliation action. (Slip Opinion, pg. 7; 10). The Court noted that in drafting section 1102.6, the Legislature departed from the McDonnell Douglas presumption that an employer has a single reason for taking an adverse action against an employer, and instead established a “contributing factor” inquiry that contemplates an employer having multiple possible reasons for the employment action. (pg. 12). Under this inquiry, even if an employer has a genuine, nonretaliatory reason for its adverse action, the plaintiff may prove a violation of section 1102.5 by showing that the employer also had at least one retaliatory reason that was a contributing factor to the employment decision. (pg. 11; 15).

As a result, the Court found that the well-established McDonnell Douglas framework does not work for the evaluation of section 1102.5 whistleblower retaliation claims, as these claims contemplate multiple reasons for the disputed adverse employment action. (pg. 14-15). Thus, the Court decided that section 1102.6 provides the governing whistleblower retaliation framework for summary judgment motions on section 1102.5 claims.

What this means for Employers
Although California jury instructions had already adopted the section 1102.6 clear and convincing standard for trials long ago, most California courts had continued to use the McDonnell Douglas burden shifting test for summary judgment motions on section 1102.5 claims. The rejection of the McDonnell Douglas test will make it more difficult for employers to obtain summary judgment of whistleblower retaliation claims under section 1102.5 by requiring employers to meet a significantly higher evidentiary standard – clear and convincing – to prove their legitimate business decision, and by enabling employees to defeat summary judgment without disproving an employer’s legitimate business reason if the employee can show a retaliatory reason was a contributing factor to the decision.

Liebert Cassidy Whitmore is here to address any questions and claims regarding this matter.

We are excited to continue our video series – Tips from the Table. In these videos, members of LCW’s <a href=”https://www.lcwlegal.com/expertise/labor-relations-and-collective-bargaining”>Labor Relations and Collective Bargaining</a> practice group will provide various tips that can be implemented at your bargaining tables. We hope that you will find these clips informative and helpful in your negotiations.

&nbsp;