On September 11, 2020, the Department of Labor (“DOL”) promulgated three revised regulations concerning the Families First Coronavirus Response Act (“FFCRA”) (29 C.F.R. 826.) The revised regulations will take effect on September 16, 2020, upon publication of the revised rule in the Federal Register.

The DOL revised these regulations in response to a challenge by the State of New York and a ruling by the District Court the Southern District of New York in that matter (See (New York v. U.S. Dep’t of Labor, No. 20-CV-3020 (JPO), 2020 WL 4462260 (S.D.N.Y. Aug. 3, 2020)).

Shortly after the Department codified the temporary rule governing the FFCRA on April 1, the State of New York challenged DOL’s interpretation and regulatory authority on several key provisions of the FFCRA, including: (1) the requirement that Emergency Paid Sick Leave (“EPSL”) and Expanded Family and Medical Leave (“EFML”) are available only if an employee has work from which to take leave (i.e., “work availability requirement”) (29 C.F.R. 826.20); (2) the requirement that an employee may take FFCRA leave intermittently only with employer approval (29 C.F.R. 826.50); (3) the definition of an employee who is a “health care provider,” whom an employer may exclude from receipt of FFCRA leave (29 C.F.R. 826.30(c)(1)); and (4) the statement that employees who take FFCRA leave must provide their employers with certain documentation before taking leave (29 C.F.R. 826.100).

While the District Court ruled in favor of the State on each of the four subjects described above, the Department revised regulations in Sections 826.30, 826.90, and 826.100 to address the District Court’s concern regarding the third and fourth issues described above. The Department rejected the District Court’s holding concerning the invalidity of other regulations, effectively reaffirming the Department’s initial interpretation and positions concerning those matters as codified in the April 1 temporary rule and paving the way for an appeal by the State.

While we will discuss each of the three revised regulations as well as how public employers may need to change their practices in order to comply with such regulations, we begin by briefly reviewing the regulations that remain unchanged.

Regulations Regarding “Work Availability” and Employer Approval of Intermittent Leave Remain Unchanged

The DOL rejected the District Court’s holding invalidating the “work availability requirement” in order for an employee to qualify for FFCRA leave and the requirement that an employee to receive their employer’s agreement or approval before using FFCRA leave intermittently. In its decision, the District Court held that the Department exceeded its rulemaking authority with the issuance of each of these regulations.

By declining to revise these regulations in order to address the Court’s concerns, the Department effectively reaffirmed its initial instruction concerning these matters. As a result, on these subjects, the temporary rule remains effective and unchanged.

Therefore, public employers should continue to comply with the April 1 temporary rule and the Department’s informal guidance on these subjects. Although an appeal could be filed in the New York case, it will likely not be resolved before the FFCRA expires, unless the law is extended.[1]

Regulations Revised by the Department of Labor

As provided above, the Department revised three regulations: (1) Section 826.30; (2) Section 826.90; and (3) Section 826.100. Public employers should take note of how the revised regulations may affect their compliance with FFCRA and take remedial action as necessary in order to maintain compliance the law.

“Definition of Health Care Provider” under Section 826.30

Sections 3105 and 5102(a) of the FFCRA provides discretionary authority to employers to exclude from the FFCRA’s leave entitlement employees who are “health care providers”. In the April 1 temporary rule, the Department promulgated a definition of “health care provider” that the District Court held to be overly broad because it depended on the identity of the employer and not on any determination of the employees’ skills, role, duties, or capabilities.

As a result of the Court’s ruling, the DOL adopted a revised and more limited definition of “health care provider” that includes employees who are heath care providers under 29 C.F.R. 825.102 and 825.125, other employees who provide diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary to the provision of patient care. (See 29 C.F.R. 826.30(c)(1).)

First, DOL revised 29 C.F.R. 826.30(c)(1)(i)(A) to define “health care provider” to include employees who fall within the definition of health care provider under 29 C.F.R. 825.102 and 825.125[2] (i.e., the Family and Medical Leave Act (“FMLA”) regulations defining “health care provider”), thereby including physicians and others who make medical diagnoses within this term. Second, DOL revised 29 C.F.R. 826.30(c)(1)(i)(B) to identify additional employees who are “capable of providing health care services”, including “diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.”

For public agencies that exempted “health care providers” from the receipt of FFCRA leave, we recommend reviewing the specific skills, role, duties, or capabilities of the employees who were exempted. If the employer, in policy or practice, exempted any employees based on the identity of the employer as a health care provider and not on a determination concerning the skills, role, duties, or capabilities of the specific employee, we recommend revising the policy and/or practice in order to only exempt those employees who are capable of performing health care services. In addition to changing such leave policies and practices prospectively, the employer should reimburse such employees for leave taken that otherwise would have been covered by the FFCRA, but for the incorrect application of the exemption entitling the employee to such leave.

Notice and Documentation Required for Expanded Family and Medical Leave under Sections 826.90 and 826.100

We discuss the remaining two revisions to the temporary rule together because of the provisions’ complementary nature.

Revisions to Notice Requirements under Section 826.90

29 C.F.R. 826.90 sets forth the circumstances under which an employee who takes EPSL or EFML must provide notice to their employer. Subsection (b) of that regulation governs the timing and delivery of notice by employees, and, according to the April 1 temporary rule, provided:

Notice may not be required in advance, and may only be required after the first workday (or

portion thereof) for which an Employee takes [Emergency] Paid Sick Leave or Expanded Family and Medical Leave.

While this statement is accurate with respect to EPSL, the FFCRA provides a different standard for the provision of notice for EFML. Section 110 (c) of the Family and Medical Leave Act (“FMLA”) (29 U.S.C. 2620(c)), as amended by FFCRA section 3102, expressly provides that “where the necessity for [EFML] is foreseeable, an employee shall provide the employer with such notice of leave as is practicable.” Therefore, for EFML, advance notice may be required if and when the employee requesting such leave foresees needing the leave.

The DOL corrected this error by revising 29 C.F.R 826.90(b) to provide that advanced notice of EFML is required as soon as practicable. Therefore, if and when the need for EFML is foreseeable, the employee requesting such leave must now provide notice of their request for such leave before taking the leave. If the need for EFML is not foreseeable, the employee may take such leave without providing their employer prior notice, but must still provide notice to the employer as soon thereafter as is practicable.

Revisions to Documentation Requirements under Section 826.100

29 C.F.R. 826.100 lists documentation that an employee must provide to their employer regarding the employee’s need to take FFCRA leave, and states that such documentation must be provided “prior to” taking paid sick leave or expanded family and medical leave.

The District Court held that the requirement that documentation be given “prior to” taking leave “is inconsistent with the statute’s unambiguous notice provision,” which allows an employer to require notice of an employee’s reason for taking leave only “after the first workday (or portion thereof)” for EPSL, or “as is practicable” for EFML.

The DOL corrected this inconsistency by revising 29 C.F.R. 826.100 (a) to clarify that the documentation need not be provided “prior to” taking EPSL or EFML, but that such documentation must be provided as soon as practicable, which in most cases will be when the employee provides notice of such leave as provided under 29 C.F.R. 826.90. In other words, an employer may require that an employee who is using any leave under FFCRA – either EPSL or EFML – provide the necessary documentation supporting such leave as soon as practicable. This documentation includes: (1) the employee’s name; (2) the dates for which leave is requested; (3) the qualifying reason for leave; and (4) an oral or written statement that the employee is unable to work (See 29 C.F.R. 826.100 (a), as well as the specific information required for each type of FFCRA leave (See 29 C.F.R. 826.100 (b)-(f)).

If you have questions about these changes in the DOL rules and how they may affect your agency’s operations, LCW attorneys are available to answer your questions.


[1] Many public agencies have chosen to require agency approval to use any FFCRA intermittently or have chosen not to permit it.  As the DOL has chosen to not modify that regulation, agencies may continue to implement their FFCRA policies regarding use of leave intermittently as they have been doing so since the law was enacted.

[2] 29 C.F.R. 825.102 and 825.125 define “health care provider” to mean “[a] doctor of medicine or osteopathy who is authorized to practice medicine or surgery” or “[a]ny other person determined by the Secretary to be capable of providing health care services.”

If you consume social media, be it Facebook, Instagram, Twitter, or the app of the moment TikTok, you have certainly come across “the Karen meme.”  By and large, “the Karen meme” is an image depicting a middle-aged Caucasian woman, almost always sporting a spiky, short blonde haircut.  “Karen” argues with and is condescending to service industry workers, and demands to speak to the manager on account of small, meaningless inconveniences, such as an iced skinny vanilla latte with one too many ice cubes.  While memes have become popular on the internet, “the Karen meme” has the potential to create legal claims for employers depending on how it is used at work.

As “the Karen meme” went viral, some have argued that “the Karen meme” itself is sexist, racist, or ageist, any combination of the three, or all three.  Others assert that it is not.  Who is right depends largely on whom you ask, and how you look at the issue.

From an academic and satirical point of view, much like “OK, Boomer” does not necessarily mean “OK, old person,” “Karen” does not necessarily mean “middle-aged Caucasian woman.”  Rather, “Karen” depicts a particular temperament instead of a particular demographic.  As the meme is used, any person, regardless of generation, race, and gender, can be “Karen” so long as they are perceived to be entitled and disrespectful.  Stated otherwise, like the “Boomer” of “OK, Boomer” fame, the “Karen” of the newest meme craze is a personality, not a person.

But from a practical standpoint, because “Karen” is almost always portrayed as a middle-aged Caucasian woman, the fact that the meme is meant to refer to a personality, not a person, is largely irrelevant.  That is a factor in why its use can create legal claims for employers.

Unlike “Karen,” “OK, Boomer” did not use a particular person – such as an elderly individual of a certain race and gender – to embody its titular character.  Indeed, the meme often used a movie or even an animated cartoon character sarcastically or stoically responding “OK, Boomer” to a statement made by a nameless, faceless “Boomer” with whom the recipient of the comment disagreed.

By contrast, “the Karen meme” is always portrayed as an individual defined by three characteristics – her age, her race, and her gender.  All three characteristics are protected under state and federal law under the Fair Employment and Housing Act (“FEHA”), Title VII of the Civil Rights Act of 1964, and the Age Discrimination in Employment Act (for age over 40).

Moreover, “the Karen meme” could pose significant issues pertaining to retaliation.  Specifically, a hallmark of the titular “Karen” character is her tendency to ask to “speak to the manager” to air her frivolous complaints.  Consequently, if “the Karen meme” finds its way into the workplace, an employee who voiced a complaint to superiors or Human Resources could perceive the meme as attacking his or her credibility and dismissing the seriousness of their concern.  If that employee is, for example, subsequently not promoted, the use of “the Karen meme” in the office would certainly play a part in his or her subsequent retaliation action. From a practical standpoint then, if “the Karen meme” is shared between employees during working hours, it may well expose employers to lawsuits alleging discrimination and harassment in state or federal court.  To minimize exposure, employers should take steps to ensure that its employees are familiar with any applicable social media policy, as well as applicable laws aimed at preventing discrimination and harassment based on protected characteristics.  To that end, clear communication of the employer’s policies, and training provided to employees, is key.

As students return to school this fall, parents find themselves learning new vocabulary terms, such as “remote learning,” “distance learning,” “synchronous or asynchronous instruction,” and “learning pods.”  Parents are also learning how to juggle their own work, either from home or onsite, and their children’s instruction.  Employers have probably been receiving requests from employees to use leave under the Families First Coronavirus Response Act (FFCRA) to care for their children whose school or place of care is closed (or whose child care provider is unavailable) due to COVID-19-related reasons.  This article will specifically address some of the issues to address when administering leave for child care purposes.

To see LCW’s full coverage on COVID-19, please visit this website.

When does an employee qualify for leave for child care purposes?

The key fact in determining whether an employee can use leave under the FFCRA is whether the child’s school or child care provider is “unavailable” for COVID-19 related reasons.  On August 27, 2020, the Department of Labor issued three new questions and answers on their website addressing this issue.  The DOL Questions and Answers #98 to #100 are found here.

The new questions and answers have provided the following guidelines:

  • If a student is only permitted to attend school on specific days, the employee qualifies for leave for those days the student is required to stay home and the employee has to care for the child.
  • If in-person instruction is available, but the parent chooses to participate in remote learning (e.g., for fear of transmission of COVID), the employee does not qualify for leave because the school is not “closed” to that student.
  • If the school decides that all students will begin with remote learning, but has plans to open the school later, the employee qualifies for leave only during the time when the school is offering remote learning.

As you can see, employers will need to conduct an individualized assessment of whether an employee can take leave for child care purposes.  This will be different for each employee depending on the county, school district, school or child care provider, and student.

How much leave is available to an employee for child care purposes?

The employee is entitled to two weeks of leave under the Emergency Paid Sick Leave Act (“EPSLA”) and twelve weeks of leave under the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) for child care purposes.  The employer can choose to have these leaves run concurrently, which means the two weeks of EPSLA can run at the same time as the first two weeks of EFMLEA.  If, however, an employee used two weeks EPSSLA for a reason other than child care, e.g., pursuant to a quarantine order, then they will still have twelve weeks of leave available to them under EFMLEA.

The amount of leave is subject to the following limitations:

  • For employees who may have used some or all of this leave earlier this year (e.g., the end of the last school year), the leave available would be reduced by the amount of leave used. For example, if an employee exhausted their leave in the spring, they would have no further leave available for the fall.
  • EFMLEA is also limited by any weeks that may have been used under traditional Family and Medical Leave Act (“FMLA”). For example, if an employee used four weeks of FMLA for their own serious health condition earlier this year, they would only have eight weeks of EFMLEA available to them.
  • Leave under the FFCRA expires on December 31, 2020. So, even if an employee starts leave before the end of the calendar year, leave under the FFCRA is only available to employees through December 31, 2020.

Is the leave under the FFCRA paid or unpaid?

Leave under EPSLA for child care purposes is paid at 2/3 the employee’s average regular rate, up to $200 per day or $2,000 in the aggregate.

The first two weeks of EFMLEA is unpaid.  The next ten weeks of EFMLEA is paid at 2/3 the employee’s average regular rate, up to $200 per day or $10,000 in the aggregate.

Please note that the “average regular rate” under the FFCRA must be calculated very carefully.  You can view LCW’s webinar on the topic here.

The employee may elect to or be required to use their paid leaves, such as vacation or personal leave, according to the employer’s existing policies.

Can the employee use leave under the FFCRA intermittently?

The DOL published a regulation, 29 C.F.R. § 826.50, which states, in part:

Subject to the conditions and applicable limits, an Employee may take Paid Sick Leave or Expanded Family and Medical Leave intermittently (i.e., in separate periods of time, rather than one continuous period) only if the Employer and Employee agree.

The DOL Question and Answer #22 reinforces that the employer must agree to provide intermittent leave for child care purposes.  However, in the same response, the DOL states: “The Department encourages employers and employees to collaborate to achieve flexibility.  Therefore, if employers and employees agree to intermittent leave on a day-by-day basis, the Department supports such voluntary arrangements.”

Further, we also note that a court in the Southern District of New York has vacated the “blanket requirement” of the employer and employee agreeing to intermittent leave.  The court held that while the employer could deny the leave to prevent the transmission and spread of COVID, the DOL did not justify the “blanket requirement of employer consent” when issuing the regulation.  Please note that this is a District Court case from New York, and is not binding on California employers.

* * *

Employers are encouraged to contact legal counsel when faced with these types of leave requests from employees.  As mentioned above, each request will require an individualized assessment on whether an employee qualifies for the leave and how much leave is available to them.

For further details on the administration of these laws, please review our previous articles here and here.

Many of us have been working from home longer than we ever could have anticipated when shelter-in-place orders were rolled out in March 2020.  As we’ve tried to settle into these going-on-five months of remote work, there is always room for improvement as to our work settings.  As we ease into accepting this as “normal” instead of the “new normal,” it’s important to keep in mind things that can make your remote workday as seamless and stress-free as possible in these unprecedented times.

Make Yourself Comfortable

There are lots of articles out there about how to make your Work-From-Home life better, and the answer is almost always the same: set a routine and stick to it.  Typical Do: wake up early and work out before you sit down at your designated workspace for the day.  Typical Don’t: just roll out of bed and show up to a meeting 2 minutes before the start time in your pajamas.   While this is great advice that should be followed if possible, it’s much easier said than done.

The best and easiest advice to implement: make yourself comfortable. Cut yourself some slack. Wear soft pants while you work if that makes you comfortable.  However, it is important to remember that depending on your job, dressing the part can actually make you feel more comfortable while you are working.  If you know you will be in a meeting with your video on, put on a button-up shirt instead of a t-shirt.  Dressing up can improve your mood and confidence at work.  Changing up your clothes can signal to your brain that it’s time to buckle down and get things done.  An easy hack: keep your most professional looking sweater, cardigan, or blazer on your home office chair and for easy access to put on in the event of unexpected video calls.  There is nothing more comforting than feeling confident and prepared at work.

Change Your Mindset About Video Conferencing

If your Zoom/virtual meeting would have been held in person prior to the pandemic, you should have your video camera on for the meeting.  A storied LCW partner once imparted these wise words of wisdom: you wouldn’t show up to an in-person meeting with a bag over your head, would you? It’s easy to show up with your profile picture or name as your representation in a meeting, but it’s important to change your mindset about how you decide to show up.  You are more likely to make connections and pay closer attention if you know the other participants can see that you are paying attention.  Plus, once you have a go-to sweater or blazer ready at your workspace, you will be ready for any video conference at the drop of a hat.

If you are doing a lot of video conferencing, try moving your designated workspace closer to a window or other natural light. Especially when some of us might not be going outside at all, being as close as possible to the outdoors and breathing fresh air can greatly help boost productivity (if you are fortunate enough to live far away from the California fires).  Make sure the light is in front of you, as sitting with your light source behind you will backlight you and likely will not be as flattering.

Stay Connected During Remote Work

Instead of the now-routine sing-song greeting of “how are you” and the response of “hanging in there,” try out some new topics for small talk.  Let’s face it, we are all hanging in there and we know it.  Instead of merely asking how someone is, try asking my favorite small talk question: “what are you excited about lately?”  Although many of us may feel that we don’t currently have too much to look forward to with so many of our summer events cancelled or closed, this question forces us to think about what we have going on now that we can be excited about.  Maybe it’s a hike that you have planned this weekend, or the take-out order that you’re looking forward to for lunch, or, like me, you are excited about binge-watching another season of Survivor.

It’s also important to still attend virtual events and connect with your co-workers.  As we get more comfortable having socially distanced walks, picnics, or even indulging in outdoor dining, it’s easy to let Zoom-fatigue stop you from attending virtual lunches or happy hours.  However, it’s also easy to let yourself go a full 24 hours (or more) without speaking to anyone at all! If your office doesn’t plan virtual events, take it upon yourself to reach out to talk to your colleagues for a moment about things other than work.  Ask them what they are excited about!  Our feelings of uncertainty about the future of our work lives can be eased by connecting with others.

For those of you reading this with kids at home who are starting off another school year in distance learning, my colleague Alison Kalinski wrote a blog post from earlier in the pandemic with more helpful tips about her admirable journey in finding balance between remote work and supervising remote learning.  You can find that post here.

So, what are you excited about? 

 As California battles close to 600 wildfires burning more than one million acres across the state, many areas are experiencing unhealthy and even very unhealthy air quality. During these conditions, employers must comply with the California Division of Occupational Safety and Health (CalOSHA) worker safety requirements to protect outdoor workers from wildfire smoke effects.

Section 5141.1 of Title 8 of the California Code of Regulations was adopted as an emergency regulation in July 2019, in response to devastating wildfires throughout California. Since that time, the emergency regulation has been extended twice by the Occupational Safety and Standards Board, and now expires on January 20, 2021.

The regulation applies to workplaces where the current Air Quality Index (AQI) for particulate matter (PM) 2.5 is 151 or greater. PM2.5 measures tiny particles in the air that measure an aerodynamic diameter of 2.5 micrometers or smaller, which pose significant health risk to a person’s lungs and heart.  A PM2.5 of 151 or greater is classified as unhealthy. Many areas in Northern California reached this level over this last weekend due to wildfires burning throughout the state.

To find the current and forecasted AQI for PM2.5, employers and employees can go to www.AirNow.gov and enter the zip code of the location where employees will be working. The current AQI is also available from the U.S. Forest Service at https://tools.airfire.org/ or your local air district, which can be located at www.arb.ca.gov/capcoa/dismap.htm.

While many employers are subject to the emergency regulation, certain workplaces and operations are exempt from its requirements, including:

  1. Enclosed buildings or structures in which the air is filtered by a mechanical ventilation system and the employer ensures that windows, doors, bays, and other openings are kept closed to minimize contamination by outdoor or unfiltered air;
  2. Enclosed vehicles in which the air is filtered by a cabin air filter and for which the employer ensures that windows, doors, and other openings are kept closed to minimize contamination by outdoor or unfiltered air;
  3. Workplaces where employees are only exposed to a current AQI for PM2.5 of 151 or greater for a short time of one hour or less during a shift; and
  4. Firefighters engaged in wildland firefighting.

According to CalOSHA regulations, when the AQI reaches unhealthy levels (PM2.5 of 151 or greater), employers that are not exempt from the regulations must take the following actions to protect outdoor workers:

  1. Monitor Levels of Smoke at Worksites: Employers must check AQI using the above methods before each shift and periodically thereafter, as needed to protect employee health. Employers may also choose to conduct their own direct measurements at the worksite using methods described in Appendix A of the regulation.
  2. Communicate with Employees: Employers are required to establish and implement a system for communicating wildfire smoke hazards to employees in a form that is readily understandable by all employees. The system must include effective procedures for informing employees of the current AQI for PM2.5, communicating protective measures available to employees to reduce exposure, and encouraging employees to inform the employer of worsening air quality as well as any adverse symptoms they may experience, such as asthma, difficulty breathing, and chest pain. Employers must encourage employees to inform the employer of wildfire smoke hazards at the worksite without fear of reprisal.

Appendix B of the regulation provides a sample policy listing mandatory information to be provided to employees.

  1. Train Employees: Employers must train employees on the health effects of wildfire smoke, how to check AQI levels, the employer’s communication system and methods of protection, how to access and use respirators provided by the employer, and the right to obtain medical treatment without fear of reprisal.
  2. Control Harmful Exposure: Employers must provide enclosed areas for employees to work, such as buildings, structures, or vehicles, where the air is filtered to a PM 2.5 of less than 151. Where this is not feasible, an employer must implement administrative controls such as relocating work to an area with an AQI of less than 151, changing work schedules, reducing work intensity, or providing additional rest periods.
  3. Provide Respiratory Protective Equipment: When the AQI is more than 151 but does not exceed 500, employers must provide employees with respirators that are approved by the National Institute for Occupational Safety and Health, such as N95 face pieces, for voluntary use, and must encourage employees to use them.

Where the current AQI for PM2.5 exceeds 500, respirator use is required.

  1. Update IIPP’s: Employers are required to supplement or integrate their Illness and Injury Prevention Plans (IIPP) with the requisite wildfire smoke protection information as detailed in the regulation.

Employers are advised to review the regulation at Section 5141.1 of Title 8 of the California Code of Regulations, and to take the above actions as soon as possible to comply with CalOSHA requirements.

Election day, November 3, 2020, is only several months off.  Almost all agree the election will be historic, with a high-level of public activity anticipated, whether through donations, rally participation, letter writing, buttons, t-shirts, banners, yard signs, word-of-mouth, or social media.  Protests and even civil disobedience are possible.  Election times present unique issues for California public employers.  The following is a short list of some of these issues, and a discussion of the relevant laws.

Employee Free Speech on Social Media, at Protests and Rallies, and in the Office

What if an agency employee posts public messages on Facebook, Twitter, or other social media platforms favoring one side in the election?  What if the messages use such lurid or harsh terminology or imagery that fellow agency employees or members of the public complain?  Political speech rests at the core of what the First Amendment protects, and Courts are extremely reluctant to allow a government agency to punish or attempt to censor the speech, even if the individual works for the government agency in question.

At the same time, statements by employees on social media that harm or threaten to harm the agency’s operations in a sufficiently severe way can serve as the basis for discipline, notwithstanding constitutional free speech protections.  Examples include statements on social media that give away important and legitimate confidential information of the agency and statements in which the employee wrongly states he or she speaks on the agency’s behalf.  Also, statements by law enforcement officers that show harsh prejudice or bias if made public may cause community members to fear the officer will not protect them, and may make fellow employees sufficiently uncomfortable in the workplace that the officer has effectively disrupted the agency’s operations.  The employee will not be able to claim First Amendment immunity from discipline just because the statements appeared in the course of a political discussion.

The same considerations apply to public employee conduct at protests and rallies that can tend to disrupt an agencies’ operations or sufficiently undermine its mission.  That said, Courts are unlikely to find that mere participation in these activities outside of work will be sufficient to justify discipline of the employee.

Under First Amendment principles, an employee cannot be disciplined for his or her speech (1) on matters of “public concern” (2) that is outside the scope of the employee’s “official duties” and (3) that prevails in a balancing test which weighs, in essence, disruption of a government agency’s operations against the importance of the speech interest at issue.  As Courts have phrased it, the balancing is “whether the [state]’s legitimate administrative interests outweigh the employee’s First Amendment rights.”

Political Activities on Work Premises or During Work Time

Under California law, public agencies can prohibit employees from engaging in “political activities” at the actual workplace, even including political activities during personal time at work.  Government Code section 3207 provides: a local agency “by establishing rules and regulations, may prohibit or otherwise restrict the following: (a) Officers and employees engaging in political activity during working hours” and “(b) Political activities on the premises of the local agency.”

The Government Code provides that public agencies should not place restrictions beyond these, however.  Section 3203 provides: “Except as otherwise provided . . . no restriction shall be placed on the political activities of any officer or employee of a state or local agency.”

Excessive Workplace Discussions About Politics

What if employees do not actively “electioneer” at the office, but do distract themselves with lengthy discussion and debates about the election.  Public employers should and generally do have rules that prohibit using excessive personal time during work hours.  There is nothing wrong with invoking these rules in this circumstance, as long as agencies apply the rules without showing favoritism to one side in a debate or issue.  The First Amendment generally authorizes rules at an agency’s office that may affect speech as long as the rules qualify as “reasonable” and “viewpoint-neutral.”

Political Activities in Uniform

California has statutes that prevent public employees from being in uniform when engaging in political activities.  Government Code section 3206 provides that “[n]o officer or employee of a local agency shall participate in political activities of any kind while in uniform.”  As to public safety officers and firefighters in particular, California law provides that their employers cannot prohibit them from engaging in “political activity,” except when they are on duty or when they are in uniform.  (Gov. Code, §§ 3302(a), 3252(a).)

Coercing or Controlling Employee Political Activities

Next, public agencies should never appear to be trying to control or coerce their employees into voting a certain way or holding particular political views.  Labor Code section 1102 provides: “No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.”  Labor Code section 1101 prevents employers from promulgating rules that have the same effect.  It provides: “No employer shall make, adopt, or enforce any rule, regulation, or policy: (a) Forbidding or preventing employees from engaging or participating in politics . . .” or “(b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.”  Public employers have strong arguments that these particular statutes do not apply to them, given current case law interpreting the Labor Code.  Nevertheless, the safest course is altogether to avoid any control or coercion of the type prohibited by these statutes.

Employee Use of Any Agency Resources for Partisan Politics

What if an employee attempts to use copy machines, office supplies, office e-mail, office computer systems, or other resources for political activity related to the November election, and actually presents a good reason why this use advances a bone fide purpose of the agency?  They could claim educational benefit or public outreach.  Unsurprisingly, California law prohibits this use.  Merely by way of example, the California Supreme Court in Stanson v. Mott in 1976, held squarely that agency use of resources to support one side in an election (in that case to support passage of a bond measure) violates state law.  Enacted in 2001, Government Code section 54964 writes into law the Stanson holding.  In addition, Government Code section 8314 provides: “It is unlawful for any elected state or local officer, including any state or local appointee, employee, or consultant, to use or permit others to use public resources for a campaign activity . . . . .”

Another example, for California public educational institutions in particular, is Education Code section 7054, which provides: “No school district or community college district funds, services, supplies, or equipment shall be used for the purpose of urging the support or defeat of any ballot measure or candidate, including, but not limited to, any candidate for election to the governing board of the district.”  The statute imposes criminal penalties for a violation.

Time Off to Vote

This year will see large-scale efforts to facilitate voting by mail.  But in California counties, voting in-person will still serve as an option (potentially with a several-day span for voting to allow for social distancing).  Under California law, employees have the right to take enough time off from work to vote, if they are unable to do so during off-work hours that the polls are open.  Elections Code section 14000(a) provides: “If a voter does not have sufficient time outside of working hours to vote at a statewide election, the voter may, without loss of pay, take off enough working time that, when added to the voting time available outside of working hours, will enable the voter to vote.”  Section 14000(b) provides: “No more than two hours of the time taken off for voting shall be without loss of pay.”  (Emphasis added.)

Any additional time needed by the employee can be unpaid unless a collective bargaining agreement or personnel rule provides otherwise.  Further, also under Section 14000(b), time off for voting shall be only at the beginning or end of the regular working shift, whichever allows the most free time for voting and the least time off from the regular working shift, unless the employee and employer agree to other arrangements.  Under Section 14000(c), if the employee believes that time off will be needed to vote on election day, he or she must give the employer notice at least two days before the election.

Conclusion

Those who work in and manage government agencies can reflect that the upcoming election represents a moment of significant national decision in the midst of a health crises, an economic crisis, and unprecedented levels of public protest and unrest.  Particularly in these circumstances, questions regarding free speech and political activities of agency employees can present complex legal issues, and in many situations it is prudent to seek advice of counsel.

In a lawsuit involving sixteen states and the District of Columbia, including California, filed against the U.S. Department of Education challenging the new regulations governing how sexual harassment allegations under Title IX of the Education Amendments of 1972 must be adjudicated, U.S. District Judge Carl J. Nichols denied the States’ request for a delay pending the litigation.  The Court’s August 12, 2020 order denying the preliminary injunction can be found here.

Earlier this week, U.S. District Judge John G. Koeltl, also refused to grant a preliminary injunction requested by the school boards for the state of New York and New York City in their lawsuit against the Department. While the states in these lawsuits will continue to litigate their disputes against the Department of Education, the regulations will take effect as scheduled on Friday, August 14, 2020.

The new regulations, released on May 6, 2020, mandate how K-12 and postsecondary education institutions that receive federal financial assistance must define, investigate, and adjudicate claims of sexual harassment under Title IX, the federal law that prohibits discrimination in education based on sex. Read more about the major changes in Title IX implementation here.

If your school, college, or university needs assistance, please contact one of our five offices statewide.  Learn more about LCW’s Title IX compliance training programs and other resources by visiting this page.

Last month, the Court of Appeal for the Second Appellate District of California issued a decision in Pico Neighborhood Association, et al v. City of Santa Monica (Jul. 9, 2020, No. B295935) __ Cal.App.3d __ [2020 WL 3866741] (“Pico”), finding that the City of Santa Monica’s at-large voting system did not violate the California Voting Rights Act (“CVRA”) or the Equal Protection clause of the California Constitution.  This Court of Appeal decision appears to mark the first time since California enacted the CVRA into law in 2001 that a public entity has successfully defended a challenge to its at-large election system under that law.

In Pico, the plaintiffs challenged the City of Santa Monica’s at-large voting system claiming the election system discriminated against Latinx voters.  Under an at-large voting system, all voters within a public agency’s geographic boundaries vote for every member of the agency’s governing body.  This governing body and all of its members then represents all residents within that geographic boundary.  This system contrasts with the by-district voting system proposed by the plaintiffs.  Under a by-district system, an agency divides its electoral boundaries into a subset of voting districts.  Candidates must run for the specific seat that will represent that voting district and only voters living within the boundaries of the voting district may vote to fill that particular seat.  Under California law, an individual running for a particular seat on a governing body must reside within that district in order to be eligible to run for that seat.

The trial court in Pico ruled in favor of the plaintiffs and ordered the City to switch to a by-district voting system. The trial court also ordered the City to pay plaintiffs’ attorneys’ fees.  The City of Santa Monica appealed the trial court’s decision.

On appeal, the Court of Appeal reversed the trial court’s ruling as to both the CVRA and Equal Protection claims. In its ruling, the Court of Appeal held that in order to establish a claim under the CVRA, plaintiffs must prove both the occurrence of racially polarized voting and that the voting system results in the dilution of minority voting power.  For purposes of the CVRA, a protected class is a class of voters who are members of a “race, color, or language minority group” as defined by the Federal Voting Rights Act (“FVRA”).  The CVRA defines “racially polarized voting” as “voting in which a protected class’s electoral preferences are different from those of the rest of the electorate in a legally significant way.” The CVRA does not define “legally significant.”  However, as discussed below, whether a protected class’s electoral preferences differ in a legally significant way depends on the facts of the particular case.  Additionally, although not defined by the CVRA, the Court of Appeal explained that the term vote “dilution” refers to a voting system that impairs voters in a protected class’s ability “to elect candidates of their choice,” or “to influence the outcome of an election.”

California Voting Rights Act Claim

On appeal, the plaintiffs argued that they had successfully established before the trial court that the City’s at-large election system prevented Latinx voters from influencing local elections and diluted their voting power.  At the time of the trial, the Latinx community made up approximately 16 percent of the City’s total population and 13.64 percent of the City’s citizen-voting-age population.  In making this argument, the plaintiffs asserted that they did not have to establish both “racially polarized voting” and voter “dilution” in order to prevail, but rather that evidence of racially polarized voting constituted sufficient evidence of dilution.

The Court of Appeal disagreed, and held that in order for plaintiffs to prevail they had to prove both dilution and racially polarized voting independently.  Specifically, the Court of Appeal analyzed Elections Code sections 14027 and 14028 (sections of the CVRA) to arrive at this conclusion.  Section14027 states: “[a]n at-large method of election may not be imposed or applied in a manner that impairs the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election, as a result of the dilution or the abridgment of the rights of voters who are members of a protected class, as defined pursuant to Section 14026.”  Section 14028, subdivision (a) provides that “[a] violation of Section 14027 is established if it is shown that racially polarized voting occurs in elections for members of the governing body of the political subdivision or in elections incorporating other electoral choices by the voters of the political subdivision.”  The Court explained that reading these sections only to require plaintiffs to prove racially polarized voting would have rendered the term “dilution” superfluous, when dilution is “a core part of the voting rights vocabulary” under U.S. Supreme Court precedent.

After setting forth this two-element standard, the Court of Appeal held that plaintiffs had failed to establish the element of dilution.  In determining whether plaintiffs presented evidence of dilution, the Court of Appeal addressed plaintiffs’ contention that their proposed by-district election system would increase the electoral “influence” of Latinx voters by increasing their percentage of voting power.  Specifically, the plaintiffs argued that under a by-district system, Latinx voters would hold 30 percent of the voting power, as compared to having 14 percent of the voting power in the at-large system and that such an increase in influence was sufficient to establish the element of dilution.

The Court of Appeal rejected the plaintiffs’ argument.  The Court of Appeal explained that the plaintiffs’ definition of “influence” was unsustainable because it would “merely ensure plaintiffs always win.”  Specifically, the Court of Appeal found that showing a marginal percentage increase in influence in a proposed district is insufficient to establish dilution.  Instead, dilution requires that the change is likely to make a difference in electoral results.  Therefore, the Court of Appeal held that plaintiffs did not prove dilution because the result of the at-large and by-district system for Latinx voters would have been the same, i.e. under either system, even if every Latinx voter voted for the same preferred candidate, absent additional votes cast for that candidate, the percentage of Latinx voters in the City of Santa Monica would be insufficient alone to elect the preferred candidate.  However, the Court of Appeal left open the possibility that, if presented with different set of facts, voter influence could have a legally significant impact on a protected class’s voting power.

The Court of Appeal’s ruling regarding the CVRA departs from recent trial court rulings and clarifies the standard by which a plaintiff must prove an at-large election system violates the CVRA.  In fact, given that it appears that no other court has utilized the standard articulated by the Court of Appeal in Pico, this decision appears to have established a new standard by which a plaintiff must prove a CVRA violation.  Specifically, the standard articulated by the Court of Appeal in Pico requires a plaintiff to establish dilution as a separate part of their claim, whereas prior trial courts identified racially polarized voting as evidence of dilution.  For example, in Sanchez v. City of Modesto, the Court of Appeal stated that “Section 14028 [of the CVRA] lists facts relevant to proving a violation: The dilution or abridgement described in section 14027 is established by showing racially polarized voting (Elec. Code, § 14028, subd. (a).).”  (Sanchez v. City of Modesto (2006) 145 Cal.App.4th 660, 670.) (Emphasis added.)

Constitutional Claim

Plaintiffs next argued the City’s at-large system violated the Equal Protection clause of the California Constitution.  The Court of Appeal found no violation.  The trial court had found that when the City twice upheld the at-large voting system, the City violated the Equal Protection clause of the California Constitution because the City acted to suppress Latinx political power. The Court of Appeal, however, explained that the trial court had applied an erroneous legal standard because it departed from the Equal Protection standard that knowledge of consequences does not prove a purpose of racial discrimination.

The Court of Appeal examined whether the City implemented its at-large system for discriminatory purposes.  The Court of Appeal examined the City’s decisions in 1946 and 1992 to adopt and maintain, respectively, an at-large voting system.  In 1946, the City adopted the at-large system it uses today.  The Court of Appeal, after pointing to evidence that “100 percent” of the leaders of the minority community at the time publicly supported the City’s decision, held that the City did not adopt the at-large system for the purpose of discriminating.  Then in 1992, a City-appointed commission issued a report recommending that the “status quo should change.” However, despite the City Council and public speakers seeking ways to increase “minority empowerment,” the City was unable to decide what change to make and therefore recommended further research before the Council took action. The Court of Appeal ruled that these series of actions also did not show racial discrimination.  Thus, the Court found there was no evidence that the City purposefully engaged in racial discrimination.

As to both the CVRA and constitutional claims, the Court of Appeal reversed the trial court’s ruling and directed the trial court to enter judgment in the City’s favor.  The Court also ordered plaintiffs to pay the City’s costs.

What Pico Means for Public Agencies

It seems likely that the plaintiffs will appeal this case to the California Supreme Court.  If the California Supreme Court declines to review the case, or upholds the Court of Appeals’ decision, Pico may make it more likely that public agencies will vigorously litigate citizens’ claims that at-large voting systems presumptively violate the CVRA.  As we have previously addressed, the Elections Code provides a mechanism for a citizen to challenge an agency’s at-large election method if the citizen believes the at-large system impairs the ability of a protected class to elect candidates or dilutes the rights of voters of a protected class.  Specifically, under Elections Code section 10010, a citizen of voting-age within an agency’s geographic boundaries may bring a claim against a public agency under Sections 14027 and 14028 of the CVRA, but only if the citizen (“prospective plaintiff”) first serves on the public agency a written notice, i.e. a pre-litigation notice which asserts that the agency’s “method of conducting elections may violate the [CVRA].”  In recent years, several prospective plaintiffs served agencies across California with these written notices.  Many agencies, recognizing that CVRA litigation is very expensive and, at least under pre-Pico standards, difficult for an agency to win, elected to settle at the pre-litigation stage and voluntarily shift from at-large to by-area elections.  However, assuming Pico remains the applicable standard, agencies may now think twice before settling at the pre-litigation stage.

We will follow the case closely and provide further updates.

 

As the “new normal” drags on longer than any of us would have hoped, some people are having a harder time adjusting than others.  While nobody likes wearing a mask or practicing social distancing, what are an agency’s options and obligations with respect to an employee who can’t or won’t?

First things first: for as long as the June 18, 2020 statewide order requiring face coverings is in effect, the employer cannot allow an employee to be in the workplace and not comply.  Further, the Occupational Safety and Health Act requires employers to provide a safe working environment for all workers, and permitting an employee to work without a mask or without social distancing compromises the safety of his or her colleagues, and also the safety of the employee.  If an employee shows up to work without a face covering, he or she must be sent home.

If the employee claims to have a medical condition that prevents compliance, the employer should initiate the interactive process.  The first step is for the employee to provide a doctor’s certification that the employee has a work restriction preventing him or her from wearing a face covering.  The certification should not specify what the employee’s condition is.  There are printable flyers or cards circulating on some corners of the Internet purporting to exempt individuals from wearing face masks:  these are not valid and no employer should accept them.  (A telltale sign is that many misspell HIPAA as “HIPPA”.)

If the employee has a work restriction, in virtually all cases, there will be only two potential accommodations: allowing the employee to work from home, or some type of leave.  It’s always good for employers to think creatively in the interactive process, but an employer has no obligation to allow an employee to violate the law.  Further, an accommodation is not reasonable if it puts others at risk.  (California Code of Regulations, Title 2, § 11067.)

What about an employee who simply doesn’t want to wear a mask, or won’t follow social distancing requirements?  Even if there is no State or County order in place, employees are required to abide by workplace rules.   An employee who refuses to conform to such rules is subject to discipline.  Employers should follow their progressive discipline policies – and continue to send the employee home each time he or she shows up maskless.  Each time is a separate occurrence of misconduct.  Social distancing violations may be tougher to spot, and therefore tougher to enforce, but employees should be encouraged to speak up if a colleague is failing or refusing to comply.

Is there potential liability for refusing to allow an employee to be in the workplace sans mask?  These rules are too new to have been tested by the courts, and the creativity of plaintiffs’ attorneys knows no bounds.  However, despite the comments of one out-of-state lawmaker, the “unmasked community” is not a protected class under state or federal law.  An employee may be able to claim disparate treatment based on a protected class if an employer fails to enforce its mask policy consistently, e.g., argue that the policy is enforced less strictly on a different group, and the stricter enforcement on the plaintiff employee’s group is discriminatory.   An employee may also argue that a mask requirement has a disparate impact: that their protected group is more burdened by an evenly enforced mask rule.  Whether either of these arguments has any success in court remains to be seen.

An employee’s failure or refusal to wear a mask or practice social distancing can present complex issues for employers, and employers should seek counsel from their trusted legal advisors when approaching these issues.

On July 30, 2020, the California Supreme Court issued its decision in Alameda County Deputy Sheriff’s Assn. v. Alameda County Employees’ Retirement Assn. (Alameda).  It was anticipated that the Court would address the continuing viability of the “California Rule.”  Under the California Rule, a public employee is vested in a pension benefit at the start of employment.  Under the traditional expression of the California Rule, benefits cannot be reduced even for prospective service, except in very limited circumstances.  The modification of a pension benefit “must bear some material relation to the theory of a pension system and its successful operation,” and any modification that results in disadvantages to employees must be accompanied by comparable new advantages. While the Court asserted at the end of the decision that it was not reexamining the California Rule, the decision leaves the current legal framework largely intact, including the California Rule.

Alameda considered whether legislative changes made to the County Employees Retirement Law of 1937 (“CERL”) by the Public Employees’ Pension Reform Act of 2013 (“PEPRA”) unconstitutionally impaired vested pension benefits of public employees employed at the time PEPRA was passed.  PEPRA excluded some forms of compensation from the calculation of retirement benefits that had long been included.  The exclusions were based on concerns related to pension spiking.  Even though these changes had the effect of reducing retirement benefits of the employees impacted, the statute made no provisions for the employees to receive any alternative benefits to make them whole for these reductions. The Court held that the PEPRA changes were constitutionally permissible. However, the Court’s determination that no comparable benefit needed to be provided largely hinged on its determination that eliminating pension spiking is a constitutionally proper purpose that would be defeated by providing a comparable advantage.  Consequently, the decision was narrow in scope and does not resolve what other motivations for pension reform will be allowed.

The Court’s ruling largely leaves the traditional California Rule and analysis intact with one deviation.  Closely tracking existing case law concerning the California Rule, the Court determined that where pension benefits are protected by the contract clause of the California Constitution, any modification of a constitutionally protected pension benefit must be reasonable in that it “must bear some material relation to the theory of a pension system and its successful operation.” Whereas traditionally, such a modification must be accompanied by other benefits, the Court found that where, as here, providing alternative benefits would be inconsistent with the purpose of the constitutionally proper modification, alternative benefits would not be required.

The Court’s Analysis

Two different disputes were discussed in the decision.  First, the Court considered whether the PEPRA amendments violated settlement agreements entered into following previous litigation involving several county retirement boards regarding compensation included in pension benefits.  Second, the Court considered whether the PEPRA amendments impaired constitutionally protected rights, which was the issue implicating the California Rule.

Violations of the Settlement Agreements

For this question, the Court observed that the retirement boards’ administrative powers are limited by the enabling legislation.  The Legislature has final authority for establishing the provisions governing pensions and the judiciary has final authority to interpret the legislation.  The Court concluded that the retirement boards had no authority to act inconsistently with the CERL and cannot disregard such amendments.  Employees had no express contractual rights to have benefits calculated in a manner inconsistent with the CERL because the retirement board had no authority to confer benefits beyond those authorized by statute.  Therefore, the Court rejected the contention that the settlement agreements precluded the legislative changes.  The Court also rejected the plaintiffs’ estoppel argument (i.e., it rejected the contention that equitable or fairness grounds required inclusion of the compensation).

       Impairment of Constitutionally Vested Rights

As the PEPRA amendments eliminated compensation that had previously been included in pension benefits for existing employees, the Court easily determined that the issue of constitutionally vested rights had been implicated.

As constitutionally protected rights were implicated and there were disadvantages caused by the modification, the Court turned to the purpose of the modification.  The Court discussed the broad preexisting language of the CERL provisions defining what compensation may be included in pension benefits.  The Court noted that the Legislature sought to limit pension spiking by eliminating practices that were “arguably” permitted under the previous broad statutory language.  The Court determined that the changes in PEPRA were enacted for a constitutionally permissible purpose (i.e., closing loopholes such as spiking that distort pension calculations).

After determining that the modification was the result of a constitutionally proper purpose, the Court turned to whether the modification required the disadvantages to be offset by comparable advantages.  The Court concluded that the constitutionally proper objective would be defeated if the California Rule was interpreted to require the pension plans to maintain the loopholes for increasing pension benefits for existing employees, or to provide comparable benefits that would perpetuate the advantages provided by the loopholes that were closed by PEPRA. Thus, the Court concluded that disadvantages did not have to be offset by comparable advantages.

Therefore, the Court held that the modifications to the CERL by the PEPRA amendments were constitutionally permitted and reversed the decision of the Court of Appeal.

Effect of the Decision

The Court’s decision will likely have little immediate impact on public agencies.  A positive outcome for public employers is that the Court approved a modification impairing pension benefits without requiring offsetting advantages. However, the decision is limited in its application.  The  Court does not state explicitly that impairments motivated by cost savings alone would be impermissible, or if permissible, would require alternative benefits. However, the narrow scope of the ruling will require additional litigation should further pension reform impair benefits for purposes of cost savings.