On September 18, 2022, Governor Newsom signed and approved Assembly Bill 2188 (“AB 2188”), which amends the California Fair Employment and Housing Act (“FEHA”) to generally prohibit an employer from discriminating against an employee or employment applicant for cannabis use off the job and away from work, which is a significant change to the FEHA.

Since AB 2188, does not become operative until January 1, 2024, California employers have some time to fully understand and prepare for the impact of AB 2188 on the workplace.  As we wait for AB 2188 to become operative, it’s also possible that the California Civil Rights Department, the state agency charged with enforcing the FEHA and California’s other civil rights laws, will issue guidance for employers, employees, and applicants about this change in law.  In the meantime, here’s what we know now:

Which Employers Are Covered Under AB 2188?

The FEHA sets forth a general definition of employer that applies unless a particular section of the FEHA sets forth a different definition.  Since AB 2188 does not set forth its own definition of employer, the general definition of employer applies.

Accordingly, for purposes of AB 2188, an employer is a person or entity regularly employing five or more persons, the state, any political or civil subdivision of the state, and cities.  Nonprofit religious associations and nonprofit religious corporations are expressly excluded from the definition of employer under the FEHA, and so AB 2188 does not apply to them.

Which Employees and Applicants Are Covered Under AB 2188?

AB 2188 applies to all employees and applicants of a covered employer, except the following:

  • Employees in the building and construction trades; and
  • Applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with United States Department of Defense regulations (National Industrial Security Program Operating Manual (NISPOM), 32 CFR Part 117), or equivalent regulations applicable to other agencies.

What Exactly Is Prohibited?

AB 2188 makes it unlawful for a covered employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person, if the discrimination is based upon any of the following:

  • The person’s use of cannabis off the job and away from the workplace; or
  • An employer-required drug-screening test that has found the person to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.

What About On-The-Job Cannabis Use?

AB 2188 does not permit an employee to possess, to be impaired by, or to use cannabis on the job.  As such, at this time it appears covered employers may continue to enforce any policies they may have prohibiting employees from possessing, being impaired by, or using cannabis while working.  Presumably, if an employee smokes or consumes cannabis out of work, and arrives to work impaired, that conduct would not be protected by AB 2188.

AB 2188 also does not affect the rights or obligations of an employer to maintain a drug- and alcohol-free workplace under California Health and Safety Code Section 11362.45, or by federal law or regulation.

What About Drug-Testing?

AB 2188 does not preempt state or federal laws and regulations requiring applicants or employees to be tested for controlled substances as a condition of employment, for the employer to receive federal funding or federal licensing-related benefits, or to be able to enter into a federal contract.

AB 2188 also expressly allows employers to make employment-related decisions based on tests that apply to current impairment, in particular scientifically valid pre-employment drug screening conducted through methods that do not screen for non-psychoactive cannabis metabolites, such as those that test for tetrahydrocannabinol (“THC”).

When Must Employers Start Complying with AB 2188?

AB 2188 adds Section 12954 to the Government Code, which becomes operative on January 1, 2024.

What’s the Intent Behind AB 2188?

The Legislative intent behind AB 2188 is to prevent adverse employment actions against applicants and employees because of off-duty cannabis use that does not cause impairment while working.  The Legislature noted that after an individual smokes or consumes cannabis, THC is metabolized and stored in the body for several weeks as a non-psychoactive cannabis metabolite.  As such, the presence of non-psychoactive cannabis metabolites in the body does not indicate that an individual is impaired, only that they smoked or consumed cannabis in the last few weeks.

However, many drug tests used by employers to test for cannabis use only show the presence of non-psychoactive cannabis metabolites in the body, and do not test for actual impairment.  As a result, employers have taken adverse employment actions against applicants and employees based on drug test results that revealed past cannabis use, but not active, current impairment.

In passing AB 2188, the Legislature wanted to end this from occurring, while still allowing employers to use drug tests that measure active, current impairment, including those that identify the presence of THC in an individual’s bodily fluids, and to take appropriate employment actions based on those results.

Recommendations to Prepare for AB 2188 to Take Effect

As employers prepare for AB 2188 to take effect, we recommend the following in consultation with legal counsel:

  • Assess which categories of employees, if any, may be exempt from AB 2188;
  • Review drug and alcohol free workplace policies for any necessary changes to comply with AB 2188, and make those revisions in time to be adopted effective January 1, 2024; and
  • Review and update any drug testing policies and practices for employees covered by AB 2188 to eliminate testing that screens for non-psychoactive cannabis metabolites, and instead use testing that only indicates impairment on the job, such as the presence of THC. Make those revisions in time to be adopted effective January 1, 2024.

Trusted legal counsel are available to consult on the impact of AB 2188 to individual employers, and also to assist taking the necessary steps to prepare for this new legislation to take effect.

We are excited to continue our video series – Tips from the Table. In these videos, members of LCW’s Labor Relations and Collective Bargaining practice group will provide various tips that can be implemented at your bargaining tables. We hope that you will find these clips informative and helpful in your negotiations.

 

On Monday, September 12, 2022, the U.S. Department of Education closed the two-month comment period for the public to voice their opinions on the proposed changes to Title IX, the federal law that governs how schools supported by federal funding respond to forms of sex discrimination. Over 200,000 comments flooded the U.S. Department of Education during the 60-day period. Education Secretary Miguel Cardona’s draft rule would revisit the current mandate requiring live hearings to determine responsibility following a report of sexual violence. Instead, institutions could determine whether to hold a hearing or pursue a “single-investigator” model, which would allow one official to conduct interviews then render a determination. The new draft rule would also offer LGBTQ and pregnant students new protections under Title IX, and expand the definition of sexual harassment.

Who submitted comments?

Various associations, advocacy organizations, school boards, parents, students, and members of the public drafted comments to voice their opinions on the proposed regulations. Supporters praised the draft rule preserving informal resolutions to Title IX cases in lieu of formal hearings. On the other hand, critics panned the draft rule, arguing it is inconsistent with current law.  They also argued that, by allowing institutions flexibility to choose the disciplinary model they deem most appropriate and thereby bypass a formal hearing process, the draft does not confer due process and will increase disparities amongst institutions. This proposed rule had almost twice as many comments submitted as compared to the regulations proposed by the Trump administration in 2018. Although widely criticized during its public comment period, the regulations largely went unchanged.

What happens next?

The Department of Education must address all comments in some form before releasing final regulations for Title IX. The Department will likely not respond to every individual comment, but watchers expect that the final regulations will address concerns that the public has raised. Currently, there is no timeline on when the Department is set to release its final Title IX regulations. However, the Trump administration needed nearly a year and a half to review the comments before finalizing the Title IX regulations that were implemented by the administration in August of 2020.

LCW will continue to monitor status of the new proposed Title IX regulations. If your institution needs assistance in complying with federal and state laws, please contact trusted legal counsel.

Telecommuting is a wonderful tool. Employees with compatible jobs can work from any location with an internet connection. They gain flexibility through ease of access. Telecommuting can reduce turnover and absenteeism, and modern technology has made remote work increasingly reliable. Yet, like any tool, telecommuting may cause issues if employers do not handle it competently. This blog post covers several topics related to remote work with the goals of informing an employer’s choice to offer telecommuting and providing some tips on effective management.

Get It In Writing

First things first, prepare a remote work policy. An employer with a written policy is more likely to manage remote work arrangements consistently. A written policy reduces the risk of confusion or misunderstandings. It is also important for counseling or disciplinary purposes if employees fail to meet requirements or expectations.

What employers include in their remote work policy will vary, depending on each employer’s operational needs, job compatibility with remote work, each employer’s technology resources, and a host of other factors. As employers write their remote work policies, they should check for consistency with existing policies. The following policies commonly overlap with telecommuting: social media use, employer-owned equipment or devices, confidentiality or privacy policies, internet use, and employee accommodations (disability, religious, etc.).

Employers may also use teleworking agreements. The contents will vary, but at the very least a teleworking agreement requires the individual employee to verify he or she has read and understood the teleworking policy and procedures.

Location, Location, Location

Left to their own discretion, employees may choose to work from anywhere. The remote location matters. Cities and counties have laws that may apply to employees working remotely within their geographic boundaries. The COVID-19 pandemic has spurred many cities and counties to adopt their own sick leave policies, for example. Even before COVID-19, some cities and counties also set their own minimum wage requirements. Thus, employees working remotely from another city or county may subject the employer to new legal requirements.

The question of applicable law becomes even more complicated when employees work from a different state. California has laws on protected leaves, workplace injuries, retirement plans, mandated reporting, discrimination and harassment prevention, work hours, overtime, employee representation, tax obligations, and so forth. The same may be true of the other states from which employees perform the work. Multi-state telecommuting may require an employer to consult with legal, tax, and other professionals in both jurisdictions. As a result, compliance becomes increasingly difficult.

Telecommuting Schedules

Remote work options can be customized in many ways, but they generally fall into two categories: hybrid and fully remote schedules.

A fully remote schedule involves the employee working remotely full-time with no time spent in-person. While this option may seem less flexible since it requires a position that is compatible with fully remote work, it remains a viable option. For instance, a fully remote schedule may serve as a reasonable accommodation. It may also be necessary on a temporary basis, as many employers discovered during the COVID-19 lockdowns. Even if an employer ultimately adopts a hybrid schedule, it is still worth considering fully remote schedules in case the employer must use them as a reasonable accommodation or in response to a temporary emergency.

A hybrid schedule involves some time spent in-person and some time spent telecommuting. Hybrid schedules offer a high degree of versatility. The employer can choose whether to require certain days to be in-person, let employees choose which days are remote, or use a mix of both options. The decision will depend on the employer’s operational needs, the needs of specific units or departments, and each job position’s compatibility with remote work. The arrangement may also rely upon specific types of remote work that are available. For example, an electrician may need to make field calls but may be able to handle certain tasks remotely while on a call.

Open Communication

Whether employers offer hybrid or fully remote schedules, it is critical to maintain open lines of communication. Telecommuting employees should know how and when they can reach their supervisors and vice versa. Employees should know which forms of communication to use: phone calls, emails, text messages, video calls, et cetera. If an employee or supervisor will be unavailable for a part of the day (e.g., in a meeting), the person should use out-of-office messages or update the team accordingly. Employees should know how to reach their coworkers and supervisors in the event of a sudden development or emergency.

Ideally, the open lines of communication should appear in the teleworking policies. This will allow employers to clarify expectations and resolve any confusion before employees begin working remotely. Including communication procedures in a teleworking policy helps employers to resort to discipline when necessary, because the policy will describe expectations and acceptable conduct.

Once an employer has open lines of communication, it should schedule regular check-ins. If the employer uses a hybrid schedule, days where employees report to work in-person may serve as meeting days. If check-ins occur remotely, employers should use video conference calls and encourage employees to turn on their video cameras. Employers should plan both group and individual check-ins. This is because individual employees may want to discuss certain things that they feel uncomfortable raising in a group setting.

Feedback and Review

Expectations should not change when an employee transitions to remote work. The employee should still provide the same quality and quantity of work product while working remotely. Regular performance reviews are effective communication tools that help maintain employee performance, whether in-person or remote.

In addition to regular performance reviews, supervisors and managers should plan less formal reviews and should create opportunities to give and receive feedback. For employees with hybrid schedules, review checks or feedback can occur on in-person workdays. Video conference calls serve for employees who work fully remote schedules.

Summing It Up

Telecommuting arrangements can take many forms. This blog post considers only a few of the subjects related to remote work. Employers’ approaches and experiences will vary. However, the more planning and preparation an employer can do beforehand, the better situated it will be to support telecommuting employees.

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[1] NOTE: This post uses terms like “telecommuting,” “telework,” and “remote work” interchangeably.

 

 

 

Across the country, cities have been considering legislation that would allow all residents over age 18 to vote in local school board elections, regardless of citizenship status.  Supporters of this movement argue that because noncitizens pay local taxes, volunteer at schools, and participate in school board meetings, they should be able to have a say in selecting the officials who set the district policies that impact their children’s education.  One such city to allow noncitizen voting, was San Francisco – the first in California to do so.  Circumstances dramatically changed on July 29, 2022, however, when a Superior Court judge struck down San Francisco’s local law, finding it contrary to the California Constitution.  As discussed below, this ruling has affected other California cities currently considering noncitizen voting.

San Francisco’s Proposition N

In 2016, San Francisco voters passed Proposition N, which granted noncitizen parents of San Francisco Unified School District students the right to vote in the November 2018, 2020, and 2022 school board elections.  San Francisco County Board of Supervisors later passed Ordinance No. 206-21, extending this voting right indefinitely beyond 2022.

However, in March 2022, a California attorney, James Lacy, filed a lawsuit against the City and County of San Francisco arguing that this local law was unlawful, and stated that “when noncitizens vote in an election, the voting rights of citizens are wrongly diluted.”

Lawsuit Against the City and County of San Francisco

In this lawsuit Lacy v. City and County of San Francisco, the defendants, the City and County of San Francisco, argued that despite the California Constitution stating that all voters must be United States citizens, under Article IX, section 16(a) of the California Constitution, charter cities like San Francisco are allowed to provide for the time, manner, and terms for which members of the boards of education are elected.  Relying on the word “manner,” the defendants argued that this includes setting voting right qualifications.  The superior court was not persuaded.  The court first found that absent from article IX, section 16(a) was any mention of voters or their qualifications.  The court then looked at Education Code section 5390 which did mention “qualifications of voters.”  However, the court found that under this section, the language clearly stated that voter qualifications “shall be governed by those provisions of the Elections Code applicable to statewide elections.”  Under Elections Code section 2300(a), which is applicable to statewide elections, “All voters, pursuant to the California Constitution and this code, shall be citizens of the United States.”  Taken together, the court ruled that the City and County of San Francisco’s local law granting noncitizen voting rights was contrary to the California Constitution and therefore void and unenforceable.

Following this ruling, the City and County of San Francisco appealed, while the same plaintiff filed another suit – this time against the City of Oakland.

Lawsuit Against the City of Oakland

In June 2022, the City of Oakland’s City Council voted to place a measure on the November 2022 ballot that would allow noncitizen parents or guardians of school-age children to vote in school board elections.  In response to this measure, the plaintiff in the City and County of San Francisco case sued the City of Oakland, seeking a court order to remove this measure from the November ballot.  The plaintiff again argued that allowing noncitizens to vote would violate the California Constitution.  On August 30, 2022, an Alameda County Superior Court judge said that the measure can appear on the November ballot, as it would be premature to decide before a ballot measure is passed, whether it is constitutional.  However, the judge also remarked that the San Francisco ruling was likely correct, but that the issues it addressed would need to be decided by higher courts.

What This Means For Your City

The trend of both extending local election voting rights to noncitizens and facing legal challenges over such proposals is taking shape.  The lawsuits against the City and County of San Francisco and the City of Oakland have already caused some California cities, such as the City of San Jose and City of Santa Ana, to reconsider adopting noncitizen voting laws due to the legal challenges they will likely face.

If your city is considering extending local election voting rights to noncitizens, please reach out to your trusted legal advisors to navigate the potential legal implications.

The newest generational wave, Generation Z or “Gen Z,” has now entered the workplace, and according to NPR, they are on track to be one of the most diverse generations in U.S. history. While Gen Zs share many traits with Millennials, they also bring with them unique characteristics, needs, attributes, and work style. For example, many Gen Zs entered into the workforce during the COVID-19 pandemic and experienced their formative years in the workplace via remote work, unlike previous generations that thrived in vastly different work environments than what we have today. These differences may create some new challenges, and employers can anticipate a shift in workplace culture and needs as more Gen Zs enter the workforce. The following tips can help employers understand this new generation, and how to effectively integrate and retain Gen Zs in their workplace.

Who is Gen Z?

The Merriam-Webster Dictionary defines Gen Z as “the generation of people born in the late 1990s and early 2000s.” According to U.S. Census estimates for 2022, Gen Z currently makes up 20.2% of the U.S. population, and is the most racially and ethnically diverse generation in history. Gen Zs were also born and raised in a time where technology and social media have become an integral part of day-to-day life. This is part of what distinguishes Gen Zs from their previous generations.

Additionally, according to a study conducted by Deloitte, Gen Zs prefer to work in environments that cultivate career development, provide learning and development opportunities, and value diversity and inclusion. For example, in a study conducted by LinkedIn, 80% of Gen Z workers reported they are looking to work for employers who are better aligned with their personal interests or values, 76% reported they are looking for more opportunities to learn or practice new skills, and 61% seek more opportunities to move up or increase their responsibilities.

Tips for Integrating Gen Z into the Workplace

Among the top concerns for why Gen Zs left their workplaces over the last two years included pay, feeling the workplace was detrimental to their mental health, and burnout. Beyond better compensation, good work/life balance, flexibility, and learning and development opportunities, Gen Zs also want to derive a sense of meaning from their work, and to work for organizations that have a positive societal impact. To attract and retain talent, employers should emphasize the significance of the individual’s role in the organization, and how their contributions make an impact or serve the organization’s mission.

Employers should also listen to their employees and empower them to drive change. They can do so through initiatives like reverse mentoring, where newer employees are paired to mentor established leaders, and through this relationship, new employees can share a fresh perspective on the way things are run. Rather than the traditional model of mentoring, where a senior employee takes a newer employee under their wing and teaches them how the organization is run, this allows for frank discussions regarding issues that affect the organization and provides opportunities to solicit feedback on what newer employees truly want and need from management. Employers should be also be transparent about what opportunities for leadership and development are available within the organization, so as to encourage employees to grow and explore their potential. It is also important to set aside time to answer questions, accept feedback, and address any concerns that may arise. Where possible, employers should also consider more personalization and flexibility when it comes to certain roles, rather than trying to fill cookie-cutter positions.

By keeping some of these tips in mind, employers will hopefully “pass the vibe check” for Gen Z employees, and be better suited in recruiting and retaining members of the newest generation.

Social media sites have become the new “public square” where individuals share opinions and information about all types of political and societal events.  Public sector employees, as much as anyone else, use social media to post viewpoints and to participate in public debate.  Problems arise, however, when a public employee posts harsh, derogatory, defamatory, or biased statements that may interfere with the public agency’s ability to effectively carry out its mission, or impact the public employee’s ability to perform job duties.  This reality can result in a clash between the public employee’s First Amendment rights, and the rights of their agency to carry out its responsibilities on behalf of the public.

Many California government agencies have social media policies that set forth rules regarding the conduct of their employees on social media.  Earlier this month, on August 5, 2022, in Hernandez v. City of Phoenix, the U.S Court of Appeals for the Ninth Circuit (which covers California) issued an opinion that provides significant guidance on two important issues.  First, what type of speech is entitled to First Amendment protection.  Second, how can government agencies structure social media policies while complying with the First Amendment’s free speech guarantee.  Below is a summary of the key points.

Facts of the Case

In 2013 and 2014, Sergeant Juan Hernandez, a Police Sergeant in the City of Phoenix Police Department, posted news articles and memes on his Facebook page that denigrated Muslims and Islam.  Hernandez posted the content off duty and he did not state he was a City employee although other content on his Facebook page showed him in uniform.  The posts generated no controversy or disruption in the Department until they were identified by the Plain View Project and disclosed publicly in 2019.  The Plain View Project is an organization that collects and maintains a database of Facebook posts from certain law enforcement departments nationwide.  The Plain View Project disclosed the posts along with others from members of the Phoenix Police Department that reflected bias, and this disclosure generated significant public criticism and media attention aimed at the Department.

The Department took steps to discipline Hernandez for four of his Facebook posts, which it viewed as violating the Department’s social media policy.  But in the midst of this process Hernandez sued in federal court asserting that the Department was retaliating against him for his First Amendment-protected speech.  Hernandez also challenged the Department’s social media policy as overbroad and vague, and thus unconstitutional.

The federal trial court granted the City’s motion to dismiss and concluded that (1) the City did not retaliate against Hernandez in violation of the First Amendment because his speech was not on a matter of “public concern,” and (2) the City’s social media policy was not overbroad or vague.  Hernandez appealed to the Ninth Circuit.

The Decision of the Ninth Circuit

The Ninth Circuit reversed in part, holding first that the trial court erred in determining that Hernandez’s speech was not on a matter of “public concern.”  By way of background, to prevail on a First Amendment retaliation claim, a public employee must show that (1) they spoke on a matter of “public concern,” (2) they spoke outside the scope of their “official duties,” and (3) their speech interests under the circumstances outweigh the countervailing administrative interests of their agency employer (this final element is called “Pickering balancing” after the case of that name).  The Ninth Circuit then remanded the case back to the trial court because the trial court had erroneously determined that Hernandez’s speech could not constitute a matter of public concern.

The Ninth Circuit’s discussion of “public concern” addressed the important issue of whether harsh, biased speech on social media – particularly by law enforcement members – meets the “public concern” test.  The Court explained: although it was true that the Facebook posts “expressed hostility toward, and sought to denigrate or mock, a major religious faith and its adherents,” nevertheless the U.S. Supreme Court has made clear (in that Court’s words) that “[t]he inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.”  The Ninth Circuit emphasized that nevertheless, speech that has a biased or bigoted character, even if it met the public concern test, would “be of particularly low First Amendment value at the next step of the Pickering balancing test” although “its distasteful character alone does not strip it of all First Amendment protection.”  The Court also noted that the fact that Hernandez’s posts had received extensive media coverage supported its finding that the posts were a matter of public concern.

The Ninth Circuit then provided a prediction of how the next steps, the Court’s conducting a balancing process, would turn out, and provided language particularly helpful to law enforcement agencies seeking to discipline members for bigoted or biased speech:

“In remanding the case, we do not mean to suggest that the Department will face a particularly onerous burden to justify disciplining Hernandez for his posts, given the comparatively low value of his speech.  Government employee speech that exposes wrongdoing or corruption within the employee’s own agency lies at ‘the apex of the First Amendment’ in this context.  Needless to say, Hernandez’s Facebook posts occupy a much lower rung on the First Amendment hierarchy, and indeed they touched on matters of public concern ‘in only a most limited sense.’  On the other side of the scale, a police department’s determination that an officer’s speech warrants discipline is afforded considerable deference, and police departments may permissibly consider the special status officers occupy in the community when deciding what limitations to place on officers’ off-duty speech.  Speech by a police officer that suggests bias against racial or religious minorities can hinder that officer’s ability to effectively perform his or her job duties and undermine the department’s ability to effectively carry out its mission.”

(Quoting authority, citations omitted.)

The Ninth Circuit agreed with the trial court’s decision on most aspects of the Police Department’s social media policy.  In particular, it found that the trial court appropriately rejected the argument that the City’s social media policy was not overbroad and/or vague by prohibiting social media posts that:

  • Are “detrimental to the mission and functions of the Department,”
  • “[U]ndermine the goals and mission of the Department or City,” or
  • “[U]ndermine respect or public confidence in the Department.”

The Ninth Circuit, however, found that the following provisions were potentially invalid as overbroad:

  • “Employees are prohibited from using social media in a manner that would cause embarrassment to or discredit the Department in any way.”
  • “Department personnel may not divulge information gained while in the performance of their official duties.” (The Court clarified that provisions on disclosure of confidential information can be appropriate.)

The Court was careful to point out that, technically, their decision to overturn the trial court’s decision meant that the Police Department could try to present evidence to support these last two provisions, but the Court did not explain what evidence the Department could present for them to be found valid.

Impact on Government Employee Social Media Policies

The Court’s discussion of “public concern” means that public employers confronted with employees whose social media posts appear bigoted or hateful must anticipate that a Court could conclude the speech is protected by the First Amendment.  Accordingly, employers that desire to take action against an employee for posting such content must be prepared to identify specific disruption to the agency as a result of the speech, such as the speech impaired co-worker relations, impacted the speaker’s ability to carry out job duties, or undermined the agency’s ability to operate effectively, to name a few.  The Court in Hernandez, however, did provide some encouraging language for law enforcement by signaling that hateful or bigoted speech does not possess a high degree of First Amendment protection, if any, and that public safety departments may be able to show disruption fairly easily.

The Court’s discussion of social media policies requires agencies that have policies containing language of the type the Court identified as problematic to reconsider that language.  Maintaining social media policies that prohibit any type of speech that may embarrass or discredit the agency is likely overbroad and may lead to liability.  In addition, precluding an employee from disclosing any information at all gained from their employment will be problematic.

The language the Court approved will, by contrast, help agencies in crafting such policies.  Nevertheless, an important consideration is that although the Ninth Circuit in the Hernandez case, as described above, rejected a facial challenge to the policy language at issue (i.e., a challenge that the language standing by itself is invalid), an employee could still make what is known as an “as applied” challenge if an agency applies the language to particular conduct by the employee in a way that violates the First Amendment.  An example might be an agency’s punishing an employee who complains about genuine police misconduct at the Department and bases the discipline on the fact that the employee’s complaint undermines “respect” for the agency.  Accordingly, agencies must still take care in applying language such as that approved by the Ninth Circuit in Hernandez, and will be well-served by creating social media policy prohibitions that are as specific and straightforward to apply as possible.

Agencies should turn to trusted legal counsel for updates on social media policies as needed, and now is an appropriate time.

We are excited to continue our video series – Tips from the Table. In these videos, members of LCW’s Labor Relations and Collective Bargaining practice group will provide various tips that can be implemented at your bargaining tables. We hope that you will find these clips informative and helpful in your negotiations.