California Public Agency Labor & Employment Blog

California Public Agency Labor & Employment Blog

Useful information for navigating legal challenges

Employers May Soon Be Required to Accommodate Employee Use of Medical Marijuana

Posted in Discrimination, Legislation

This post was authored by Megan Lewis.

Since recreational marijuana was legalized in 2016, many have assumed that employment protections for marijuana users would likely expand, either via legislation or though litigation.

We are already seeing small steps in that direction. For instance, San Francisco recently amended its ban-the-box ordinance to, among other things, prohibit employers from taking action against applicants or employees for marijuana offenses related to conduct that has since been legalized in California (such as certain offenses for non-commercial use and cultivation of marijuana).

A recent bill, known as AB 2096, would go much further and protect current medical marijuana users from discrimination in employment.

Currently, 11 states (Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York, Pennsylvania, and Rhode Island) provide some level of employment protection to individuals who use medical marijuana, though the level of that protection varies from state to state.

California, which was the first state to legalize medical marijuana, has no such protections. But that would change if AB 2096 becomes law. In its current form, the proposed bill would amend the Fair Employment and Housing Act (“FEHA”) to require employers to engage in the interactive process, and reasonably accommodate, the use of medical marijuana when the use is by a qualified patient or person with an identification card (as defined in the Health and Safety Code) and the use is to treat a known physical or mental disability or known medical condition.

The FEHA would be amended to state that the Legislature intends to “make it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment or otherwise penalize a person” based on his or her status as a medical marijuana patient or “the use of cannabis by those persons for medical purposes.” However, the bill does not go so far as to make use of medical marijuana a protected classification under the FEHA (i.e., like sex, race, religion, age, etc.). A previous version of the bill added “status as, or positive drug test for cannabis by, a qualified patient or person with an identification card, as those terms are defined in Section 11362.7 of the Health and Safety Code” to the list of protected characteristics of applicants and employees under the FEHA, but that language has been stricken from the current draft of the bill.

The bill includes two critical limitations on these new protections.

First and foremost, AB 2096 explicitly states that employers can still discipline or terminate an employee who “is impaired” at work or during work hours because of the medical use of cannabis. However, as a practical matter, it may be difficult for employers to prove whether an employee was under the influence of marijuana at work because the tests that are currently available are not sensitive enough to determine when the marijuana was consumed and/or whether someone is currently under the influence.

The bill also acknowledges that marijuana, including medical marijuana, is still illegal under federal law. Employers can refuse to hire or terminate a medical marijuana user if hiring or continuing to employ that person would “cause the employer to lose a monetary or licensing-related benefit under federal law or regulations.”

If AB 2096 passes, it will be the first time employers have been required to alter their policies and procedures to conform to the changing landscape in California regarding marijuana use. LCW will continue to monitor the bill’s progress through the Legislature and report back regarding future developments.

Preparing for Janus: What Local Agencies Can Do In Anticipation of the Most Important Public Sector Case of the Year

Posted in Labor Relations

This post was authored by Erik M. Cuadros.

Public-sector employers and unions anxiously await the outcome of Janus v. AFSCME Council 31, a case currently pending before the United States Supreme Court. Janus challenges agency shop arrangements and public sector unions’ right to collect what are known as “service” or “fair share” fees.  In an agency shop arrangement, all employees in a particular bargaining unit are required – as a condition of their continued employment – to become union members or, alternatively, pay mandatory service fees, regardless of whether the employee agrees with the union’s positions.  In theory, the service fees cover the local union’s collective bargaining and representation costs.

Court observers anticipate that the U.S. Supreme Court will strike down the practice of requiring non-members to pay service fees. If the U.S. Supreme Court holds that agency shop service fees are unconstitutional, public agencies will not have the authority to continue deducting those service fees.  Rather, they would likely be obligated to discontinue deducting and transmitting service fees upon the effective date of the decision or as otherwise indicated by the Court.

Liebert Cassidy Whitmore anticipates that the U.S. Supreme Court will issue its Janus decision in June 2018.  Although it is impossible to forecast the results with absolute certainty, LCW recommends that all public agencies, their employees, and unions be prepared to immediately respond to the decision.  The following strategies will better prepare public agencies to comply with Janus’ anticipated ruling and to fulfill their duties to meet and confer in good faith should any changes to their bargaining agreements, policies, and practices be necessary.

  1. Identify Janus’ Potential Scope of Impact Upon Your Agency

Public agencies can begin by identifying the potential scope of impact of the Janus decision.  More specifically, your agency must first review each collective bargaining agreement to determine whether any of the agreements include an agency shop or other wage deduction arrangement.  If your MOU’s do not include agency shop, it is less likely that your agency will be immediately impacted by Janus.  If one or more of your MOU’s includes such provisions, you will want to focus on those bargaining units because additional preparation will be required.

For those MOU’s that include agency shop, you should review all relevant provisions, including those related to processing service fee wage deductions. Unions typically collect both union dues and service fees through wage deductions via the agency’s Payroll Department.  Therefore, while Janus may impact unions on a greater scale, agencies with agency shop will likely be required to make administrative changes to their payroll practices.  For example, you should familiarize yourself with the amount, timing, and frequency of when your agency’s service fees are deducted.  Depending on Janus’ effective date, public agencies may not have sufficient time to notify and meet and confer with affected unions over any changes.  Your agency should be ready to both immediately implement any Court-mandated changes, if any, and to notify and meet and confer with any impacted unions regarding negotiable impacts of the changes as soon as possible.

2. Identify Contract Provisions Possibly Subject to Effects Bargaining

After this initial review, you may find it helpful to create union-specific spreadsheets or tables identifying all relevant provisions in your MOU’s, particularly if your agency has different agency shop arrangements with multiple unions. If the U.S. Supreme Court rules that agency shop is unconstitutional, your agency should be prepared to bargain over any negotiable effects of the decision.

The unions may identify various effects associated with discontinuing service fee deductions. For example, they may ask to negotiate MOU side letters or amendments regarding how or when bargaining unit employees are notified of any deduction changes, whether service fee payers should be given authorizations to participate in voluntary wage deductions, etc.

In preparation for these negotiations, we recommend that you review the impacted MOU’s to familiarize yourself with any additional release time, union access, and employee orientation benefits. Under the MMBA, release time is only permitted for negotiations and not for employees to prepare for negotiations over Janus or to meet with union membership to rally support for union causes.  Although you are not obligated to provide any more release time than otherwise required by law, your MOU may provide additional release time benefits.  On a related note, the Human Resources Department should also review its access rules and employee orientation agreements with impacted department heads and supervisors to ensure that the entire agency follows these policies consistently.

Finally, you may also wish to review any management rights, zipper, reopener, and/or severability clauses to determine whether any of these provisions apply. Once the U.S. Supreme Court issues its decision, your next steps will be more effective if you have already determined which actions are necessary to amend or eliminate MOU provisions contrary to the anticipated Janus decision.

3. Identify the Agency’s Union Dues, Service Fee, and Religious or Conscientious Objector Payers

After identifying the unions who have agency shop, your agency should develop a spreadsheet identifying each union’s members, service fee payers, and religious or conscientious objectors. This will be both the most labor intensive and absolutely critical element of your Janus preparation.

Janus will not directly impact union member employees because they are voluntarily paying union dues. However, if the U.S. Supreme Court rules that mandatory agency shops are unconstitutional, the decision will directly impact the agency’s service fee payers and any bargaining unit members who have a religious objection but are required to donate their wage deductions to a charitable organization.  To determine which category each bargaining unit member falls within, you should review the election forms in each employee’s personnel file.  Alternatively, you may review your payroll records but only if the Payroll Department uses separate deduction codes for each bargaining unit member category.  If the Payroll Department uses a master code without differentiating between the three categories or other employee donations related to union benefits, you could inadvertently misclassify an employee’s bargaining unit status.

On Janus’ effective date, your agency may be required to immediately cease all deductions from service payer and religious objector wages.  Therefore, once you identify your employee categories, you must work with the Payroll Department to establish an action plan if the U.S. Supreme Court’s decision is as anticipated.  Your Human Resources Director should send the Finance Director an official notice advising him or her of the Janus case and the potential cessation of specific deductions.  The notice should also ask that the Payroll Department identify any payroll cutoff deadlines so that your agency may plan for any potential contingencies.  Thereafter, the agency should develop an administrative plan to instantaneously modify the payroll program, including any internal procedures or plans to contact external payroll vendors.  If the Payroll Department identifies all three categories of employees under a master payroll code, it should prepare to turn off each applicable employee’s deduction on an individual basis.  Alternatively, if the Payroll Department utilizes separate payroll codes for each category of employee, this process will be easier.

4. Conclusion

Public agencies should take all advance steps within their control to plan for the immediate cessation of periodic service and religious objector fee deductions to the extent Janus requires.  They must also be prepared to immediately engage in any necessary effects bargaining.  By taking these proactive internal steps, your agency will be better prepared to address any mandatory changes to its bargaining agreements after the U.S. Supreme Court publishes its Janus decision.

We remind you, however, that while the U.S. Supreme Court is anticipated to declare agency shop arrangements unconstitutional, our analysis and advice is provided prior to publication of the Janus decision.  The final consideration of these issues ultimately depends on what the Janus decision holds and we caution public agencies against making any dramatic changes in anticipation of Janus for this reason.

Liebert Cassidy Whitmore will continue to monitor this important case and will be publishing guidance on Janus as soon as the U.S. Supreme Court issues its anticipated decision.  In the meantime, we stand ready to help guide our clients through their agency-specific preparations for Janus.  Please contact us immediately if we can be of any assistance.

California Supreme Court Adopts New “ABC Test” for Classification of Independent Contractors: Potential Risk and Impact on Public Agencies

Posted in Wage and Hour

This post was authored by Richard C. Bolanos and Michael J. Le.

On April 30, 2018, the California Supreme Court issued a decision in the case of Dynamex Operations West, Inc. v. Superior Court (S222732), in which it established a new and more streamlined legal test to determine whether a worker should be classified as an independent contractor or employee.  This test applies to California’s Industrial Welfare Commission (IWC) Wage Orders which regulates wages, hours, and working conditions.

The Court rejected the application of the longstanding and flexible multifactor standard in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal. 3d 341, which was used by California courts for years.

The new worker-friendly standard presumes all workers are employees and places the burden on an employer to establish that a worker satisfies the three independent conditions of the “ABC Test” for an independent contractor.

Factual Background and the “ABC Test”

Dynamex is a national same-day courier service that operates a number of business centers in California.  The company hires delivery drivers to transport letters and packages to its customers.  Initially, Dynamex classified its California drivers as employees, but then later converted all of its drivers from employees to independent contractors in an effort to save costs.  This lawsuit was subsequently filed by Dynamex drivers alleging that the company misclassified them because their job responsibilities as independent contractors were the same as when they were classified as employees.

Following an extensive analysis of California case law on the legal test for determining whether a worker is an employee or, instead, an independent contractor, the Supreme Court held that is was appropriate for employers to look to a standard commonly referred to as the “ABC test,” that is utilized in other jurisdictions.  Under that test a worker is properly considered an independent contractor to whom a wage order does not apply, only if the employer establishes:

  • A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact;
  • B) that the worker performs work that is outside the usual course of the hiring entity’s business; and
  • C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.

Failure to establish all of the above three factors results in a determination that a worker is an employee and thus not an independent contractor.

How Is It Relevant to Public Agencies?

The Dynamex decision affirms the general legal rule that it is the employer’s responsibility to correctly classify a worker as an independent contractor.  Failure to meet the legal test will expose your agency to back pay and fines for failure to pay federal Social Security and payroll taxes, unemployment insurance, workers compensation benefits, and for violation of various federal and state statutes and regulations governing retirement, wages, hours, and working conditions.  And while the Dynamex ruling is limited to an analysis of the California Wage Orders (Cal. Code Regs. § 11010 et seq.), it provides clear guidance for applying the independent contractor test.  Public agencies are well advised to review all independent contractor arrangements under the “ABC test” and reclassify such arrangements if necessary.   LCW is available to assist your agency in conducting such a review.

A #MeToo Legislative Reckoning is Coming to California in 2018

Posted in Discrimination, Harassment

This post was authored by Stefanie K. Vaudreuil.

There are a number of bills pending in the California Legislature this year that employers should be watching closely.

SB 1038 California Fair Employment and Housing Act: personal liability

Under existing law, individuals may be liable under the California Fair Employment and Housing Act (FEHA) for acts of unlawful harassment. SB 1038, if passed, will add individual liability for retaliation. According to the Senate Judiciary Committee’s analysis, “[f]ear of retaliation is a major reason why victims choose not to report discrimination and harassment. Yet current California law does not clearly hold individuals accountable for retaliation.” The bill’s author further states the change in the law is necessary because it will discourage individuals from retaliating against employees who exercise their rights under FEHA by complaining of discrimination and harassment. The California Association of Joint Powers Authorities opposes the bill, stating that “[t]his measure puts public taxpayer dollars at risk by holding public entities financially responsible for employee’s retaliatory actions that were completely outside of the employer’s knowledge, influence or ability to stop . . . Although seemingly a deterrent for retaliatory actions, it is the public employer who pays the liability of the employee, even if the employer has no reason to know of an employee’s retaliatory act.”

AB 1870 Employment discrimination, unlawful employment practices

Presently, a complaint must be filed with the Department of Fair Employment and Housing (DFEH) within one year from the date of the alleged unlawful employment action. This bill proposes to extend that time from one to three years. The bill’s author argues that the extension of time will allow “additional time to resolve grievances outside of court, without feeling compelled to file a claim in order to meet the short filing deadline.” Opponents of the bill believe that the extension should apply only to sexual harassment claims and that it should be no more than two years.

AB 2946 Division of Labor Standards Enforcement limitations period

Like AB 1870, this bill seeks to extend the time to file a complaint of retaliation with the Division of Labor Standards Enforcement (DLSE). The current time limitation is six months. This bill also would allow a prevailing employee to claim attorney’s fees for whistleblower claims. No statutory entitlement exists that would allow a prevailing plaintiff to an award of attorney’s fees for claims brought pursuant to Labor Code section 1102.5. The California Chamber of Commerce opposes the bill, citing the “one sided attorney’s fee provision” will “incentivize further litigation.”

AB 1867 Employment discrimination, sexual harassment records

Employers are required to maintain employee personnel records for at least three years after the employee’s separation from employment. However, due to the recent rise in sexual harassment allegations and claims, the bill’s author believes it is necessary to change the law in this regard. The bill provides that employers with 50 or more employees would be required to maintain records of internal sexual harassment complaints and investigations for a period of 10 years from the date of the filing of the complaint. The California Chamber of Commerce opposes the bill as unclear and overly burdensome for employers.

CalPERS Issues Circular Letter Regarding Employer Obligations for Out-of-Class Appointments, But Many Questions Remain

Posted in Retirement

This post was authored by Michael Youril.

On April 27, 2018, the California Public Employees’ Retirement System (“CalPERS”) issued Circular Letter No.: 200-021-18, which discusses limitations imposed on “out-of-class appointments” by Assembly Bill 1487, which added Government Code section 20480.  The Circular Letter also provides direction to employers for reporting hours for out-of-class appointments and attaches an Out-of-Class Appointment Employer Certification form  for employers to fill out.  Unfortunately, many ambiguities concerning the application of Government Code section 20480 and the reporting requirements remain.

Legal Requirements for Out-of-Class Appointments Under Government Code Section 20480

Under Government Code section 20480, “out-of-class appointments” to a “vacant position” are limited to 960 hours per fiscal year. The statute provides specific definitions for some key terms under the statue.  An “out-of-class appointment” is “an appointment of an employee to an upgraded position or higher classification by the employer or governing board or body in a vacant position for a limited duration.”  A “vacant position” is defined as “a position that is vacant during recruitment for a permanent appointment.”  The definition of “vacant position” excludes a “position that is temporarily available due to another employee’s leave of absence.”

CalPERS agencies are required to track and report the number of hours worked in the “out-of-class appointment” and report the hours to CalPERS no later than 30 days following the end of the fiscal year. The compensation for the appointment must also be stated in a collective bargaining agreement or a publicly available pay schedule.

An employer that violates Government Code section 20480 must pay penalties to CalPERS in an amount equal to three times the employee and employer contributions that would otherwise be paid to CalPERS for the difference between the compensation paid for the out-of-class appointment and the compensation paid and reported to CalPERS for the member’s permanent position for the entire period the member serves in the out-of-class appointment. The employer must also reimburse CalPERS for administrative expenses incurred by CalPERS in responding to the violation.  Although the statute did not provide the amount of administrative expenses, the Circular Letter states that the fee will be $200.  The penalties and fees are not credited to the employer or the employee’s individual account and the employer may not pass the penalties or fees onto the employee.

Employer’s Obligations Under the Circular Letter on Out-of-Class Appointments

The Circular Letter provides the following list of employer responsibilities under Government Code section 20480:

  • Tracking out-of-class hours worked in each vacant position per fiscal year.
  • Reporting hours worked in vacant position(s) to CalPERS by July 30. Until CalPERS makes system enhancements to allow online reporting, public agencies are to use the Out-of-Class Appointment Employer Certification form to submit the required information to CalPERS Employer Account Management Division.
  • Making timely payments for penalties generated in accordance with Government Code section 20480.
  • Ensuring that the out-of-class appointment is pursuant to a collective bargaining agreement or a publicly available pay schedule.

The Circular Letter also states that CalPERS will send two notification letters to CalPERS employers. An Annual Notice will be sent in June to provide the employer with a reminder of the July 30 reporting requirements for out-of-class appointments.  A Second Notice will be sent in September informing the employer that CalPERS has not received the Out-of-Class Appointment Employer Certification.  According to the Circular Letter, failure to report the information may result in penalties under Government Code section 20480 and notification to CalPERS Office of Audit Services to initiate an audit of the employer’s records.

Outstanding Issues Regarding the Out-of-Class Appointment Employer Certification

Agencies may encounter some ambiguities when completing their Out-of-Class Appointment Employer Certification. For example, Government Code section 20480 went into effect on January 1, 2018.  However, the statute says that the out-of-class appointment “shall not exceed a total of 960 hours in each fiscal year.”  The Out-of-Class Appointment Employer Certification also asks for the total hours worked in the fiscal year.  For CalPERS purposes, the fiscal year began on July 1, 2017, which predates the enactment of the law.  It is unclear whether, for this fiscal year, the employer is only required to report hours worked on or after January 1, 2018.  The Circular Letter does not address this ambiguity.  Moreover, since a certification form only needs to be completed for out-of-class appoints that exceed 960 hours in a fiscal year, it may be unclear whether a certification is even required.  This ambiguity leaves many employers wondering if they will be on the hook for penalties.

Under Government Code section 20480, in order to trigger the statute, the appointment must be to a “vacant” position “during recruitment for a permanent appointment.” The phrase “during recruitment” is not defined in Government Code section 20480 and is not further defined in the Circular Letter.  This leaves some uncertainty about when application of the statute begins.  For example, it is unclear whether the employer starts counting hours if an employee is appointed to a vacant position in March, but the employer does not actually post recruitment materials to fill the position until July.  What if the governing body authorizes a recruitment, but it is not implemented by staff for several more weeks?  The Out-of-Class Appointment Employer Certification form has a box for the employer to check that asks if the out-of-class appointment is “in a recruitment.”  The answer to that question may be “yes” on the date of the certification, but it is not clear whether hours before the “recruitment” began would be excluded.

Employers have three months before they are required to report the hours worked in qualifying out-of-class appointments to CalPERS. Absent further guidance from CalPERS, we suggest reviewing your out-of-class appointments to determine if they are of the type covered by the statute.  If so, the employer should consider making staffing changes now to avoid reporting obligations and potential penalties and expenses.

Please contact us if you have any questions about a particular appointment.

Balancing Conflicts Between Work And Religion

Posted in Personnel Issues, Workplace Policies

This post was authored by Elizabeth T. Arce.

In December 2011, a Macy’s employee was fired because she refused to allow a teenage transgender customer use of the women’s dressing area. Natalie Johnson, who worked at a Macy’s in San Antonio, Texas, watched the teenager shop in the women’s department.  When Johnson saw the teenager in the women’s dressing room, she told the teen “You’re a man,” and that the teen could not change in the women’s area.

Macys’ confronted Johnson and reminded her that the company’s policy permits individuals to use the dressing room of the gender they identify with.  Johnson said she would not comply with the policy because it was contrary to her religious beliefs.  As a result, Macy’s fired her and Johnson subsequently filed a complaint against the company with the U.S. Equal Employment Opportunity Commission.

The situation between her and Macy’s highlights the difficulty employers have balancing conflicts between workplace policies and an employee’s religious beliefs.  In order to navigate through these often murky situations, employers should keep the following points in mind.

1.  Religious beliefs must be accommodated.  Both federal and state discrimination laws require employers to accommodate their employees’ sincerely held religious beliefs, practices and observances unless providing the accommodation would create an undue hardship.  The accommodation will usually require the employer to make an exemption from, or adjustment to, the particular workplace policy so that the employee can practice his or her religion.  This can include changing a work schedule, transferring an employee to a different position, or exempting them from a dress and grooming policy.

2.  Employees must request accommodation.  Second, an employee who seeks a religious accommodation must also make the employer aware of the need for an accommodation and that it is being requested because of a conflict between work and religion.  Once the employer is aware of a request for an accommodation, the employer and employee should discuss whether an accommodation is available and can be accomplished without imposing an undue burden on the employer’s business operations.  While holding a discussion is not required under the law, it is a good practice to do so.  For example, it may be difficult for an employer to argue an accommodation would have created an undue burden for it when no discussion about possible accommodations ever took place.

3.  Employers do not have to tolerate business disruptions.  Although employers are required to accommodate employees’ religious beliefs, they are not required to accommodate disruptions to business operations which can include a refusal to assist customers.  For example, in Noesen v. Medical Staffing Network, a pharmacist who refused on religious grounds to fill birth control prescriptions was offered the accommodation of not processing such prescriptions.  The store also arranged for other employees to handle customer inquiries about birth control so that the pharmacist would not have to handle them.  However, despite this accommodation, the pharmacist refused to perform general customer service functions including signaling other pharmacy staff to assist the customer.  For example, when the pharmacist answered telephone calls from customers or physicians about birth control, he put them on hold and refused to alert other pharmacy staff that someone was holding.  He also walked away from customers at the counter and refused to tell anyone that a customer needed assistance.  The Court held that the store’s firing of the pharmacist was justified because his refusal to perform general customer service duties was unreasonable and placed an undue hardship on the employer.

4.  Obligation to accommodate is ongoing.  An employer’s obligation to accommodate an employee’s religious beliefs is ongoing.  An employee’s religious beliefs and practices may grow or lessen during the course of his or her employment.  This might result in requests for different or additional accommodations or in the discontinuance of an accommodation.

Finally, evaluating whether an accommodation would impose an undue hardship requires a case-by-case determination.  Employer’s should consider the facts of each situation including the employee’s job duties, the nature of the employer’s business, and the size and operating costs of the employer.

Not So Fast! The Ninth Circuit Reverses Itself and Rules Employers Cannot Consider Applicants’ Prior Salary in Setting Rate of Pay

Posted in Wage and Hour

This post was authored by Megan Lewis.

Just one day before Equal Pay Day, April 10, 2018, the Ninth Circuit in Rizo v. Yovino ruled that an employer cannot perpetuate a gender pay gap by paying a female employee less than a male employee for the same work, simply because the female employee made less money in a prior position. The Ninth Circuit’s decision reversed its prior precedent and changed the law in a way designed to expedite elimination of pay gaps.

Last year, the Ninth Circuit Court of Appeal held that employers may rely on an applicant’s prior salary history in setting employees’ rates of pay. Aileen Rizo, a math consultant with the Fresno County public schools, sued the County under the federal Equal Pay Act (“EPA”) and other laws after discovering the County paid her male colleagues more for the same work. The District conceded that she received lower wages than male employees for equal work, but claimed the differential was permissible under the EPA because it was based on “a factor other than sex,” namely her prior salary. The District Court rejected the County’s argument, and the Court of Appeal reversed, holding the employer could rely on prior pay to justify a lower salary.

The Ninth Circuit subsequently granted a petition for en banc review of the decision and, on April 9, 2018, reversed its prior decision (and thereby overruled a thirty year old precedent). You can read the text of the new decision in full here.

The key takeaway from the new ruling is that salary history is not a “factor other than sex” for purposes of the Equal Pay Act, meaning that employers cannot rely on an applicant’s prior salary history to justify paying one employee differently than another employee of the opposite sex for similar work.  As Judge Reinhardt wrote for the court:

“We conclude, unhesitatingly, that ‘any other factor other than sex’ is limited to legitimate, job-related factors such as a prospective employee’s experience, educational background, ability, or prior job performance. It is inconceivable that Congress, in an Act the primary purpose of which was to eliminate long-existing ‘endemic’ sex-based wage disparities, would create an exception for basing new hires’ salaries on those very disparities—disparities that Congress declared are not only related to sex but caused by sex. To accept the County’s argument would be to perpetuate rather than eliminate the pervasive discrimination at which the Act was aimed.”

In sum, because “[r]eliance on past wages simply perpetuates the past pervasive discrimination that the Equal Pay Act seeks to eradicate[,]” the court ruled that “past salary may not be used as a factor in initial wage setting, alone or in conjunction with less invidious factors.”

This ruling is consistent with legislative trends around the country. California recently passed AB 168, which restricts the ability of employers to gather applicants’ salary history information or consider such information when determining whether to offer employment to an applicant and/or what salary to offer.  You can read our blog post about AB 168 here.  Other states, including Massachusetts, Delaware, and Oregon have passed similar legislation, as have cities like New York, San Francisco, Boston, and Philadelphia.

Though the gender gap persists, this ruling is another step towards eradicating systemic discrimination against women in the workplace.

U.S. Department of Justice Sues the State of California Over Newly Enacted Immigration Laws

Posted in Constitutional Rights

This blog was authored by Alysha Stein-Manes.

Last month, the United States Department of Justice (DOJ) filed a lawsuit in federal court against the State of California (the “State”), alleging that three laws enacted by the State between June and October 2017 – Senate Bill (SB) 54 and Assembly Bills (AB) 103 and 450 – are unconstitutional.

SB 54 and AB 450 address law enforcement agencies and public and private employers’ abilities to cooperate with federal immigration authorities.

  • SB 54, or the “California Values Act,” which amended Sections 7282 and 7282.5 of the Government Code, added Chapter 17.25 to the Government Code, and repealed Section 111369 of the Health & Safety Code, prohibits state and local law enforcement agencies, including school police and security departments, from using their resources to carry out immigration enforcement activities. Such activities include, but are not limited to, making arrests based on civil immigration warrants; performing the functions of an immigration officer; inquiring into an individual’s immigration status; and providing an individual’s personal information to federal immigration authorities. Despite these limitations, local and state law enforcement agencies continue to be permitted to share with federal immigration authorities information about an individual’s criminal history; make inquiries necessary to grant visas to potential victims of crime or trafficking; respond to a notification request by federal immigration authorities regarding persons currently serving sentences for violent felonies; and participate in a joint law enforcement task force with federal agencies, so long as the primary purpose of that task force is not immigration enforcement.
  • AB 450, which added Sections 7285.1 through 7285.3 to the Government Code and Sections 90.2 and 1019.2 to the Labor Code, places significant limitations on public agencies and  private employers’, including private schools, ability to cooperate with federal immigration authorities and imposes fines for violating those limitations. These laws prohibit a public and private employer from giving voluntary consent for an immigration enforcement agent to enter nonpublic areas of the workplace, except as required by federal law or a judicial warrant. They also prohibit a private employer from giving voluntary consent for an immigration enforcement agent to access, review, or obtain employee records, except as required by federal law or a subpoena or court order. The law further requires employers to post a notice to employees when federal immigration authorities have given notice of an inspection of I-9 Employment Eligibility Verification forms and the written results of any such inspection to affected employees. Finally, private employers are now prohibited from re-verifying a current employee’s employment eligibility at a time or in a manner not required by federal law.

SB 54, AB 450 and AB 103 — popularly known as California’s so-called “sanctuary laws,” – became effective January 1, 2018.

The DOJ’s lawsuit specifically alleges that these three newly enacted laws violate the “Supremacy Clause” of the United States Constitution (the “Constitution”) and other federal immigration laws. The Supremacy Clause, codified in Article VI, Clause 2 of the Constitution, establishes that the Constitution and federal laws enacted pursuant to the Constitution are the “supreme law of the land.”  Because of the Supremacy Clause, states cannot make laws that are “contrary” to federal law.  The Supreme Court of the United States has interpreted the Supremacy Clause to prohibit the enactment of state laws that stand “as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”  (See Hines v. Davidowitz (1941) 312 U.S. 52, 67 .) To the extent that state laws are found to be an “obstacle,” such laws are considered to be “preempted” by federal law and are therefore unconstitutional.  For example, in the immigration context, the Supreme Court of the United States has held as unconstitutional an Arizona law that permitted state peace officers to arrest a person believed to be undocumented, without first obtaining a warrant, because the law provided state officers with greater authority than permitted under federal immigration law.  (See Arizona v. U.S.  (2012) 567 US 387, 407-410.)

In the instant lawsuit, the DOJ alleges that AB 103, AB 450, and SB 54 endanger federal immigration officials and therefore constitute an “obstacle” to the enforcement of federal law. The DOJ’s complaint asks the court to do two primary things.  First, it asks that the court issue a “preliminary” injunction” against the State prohibiting it from implementing the provisions of these laws until the Court determines whether the newly enacted laws themselves are preempted by federal law.  Second, it asks the court to find that these laws violate the Supremacy Cause and other federal immigration laws, thus making them unconstitutional, and that the court because of this, permanently prohibit the State from implementing the laws.

The DOJ’s lawsuit was filed in federal court in the Eastern District of California. The Court has yet to arguments from the DOJ and California regarding the preliminary injunction, as well as the constitutionality of the laws themselves.  The Court will likely hear arguments regarding the DOJ’s request for a preliminary injunction before hearing arguments on the underlying issue of constitutionality.

If SB 54 is found unconstitutional, local and state law enforcement agencies may also have greater autonomy to voluntarily use their resources to assist federal officials in implementing federal immigration laws. Additionally, if the Court determines that AB 450 is unconstitutional, private employers in California will have more autonomy to voluntarily share employment data and provide federal immigration officers with access to their employees.

Law enforcement agencies and public and private employers may continue to adhere to the new laws if and until the Court grants the DOJ’s preliminary or permanent injunctions. However, whatever the outcome of the District Court’s ruling, it is likely that the “losing” party will appeal the matter to the Ninth Circuit and ultimately, the Supreme Court of the United States.

We will monitor this case and update you as it proceeds.

4/18/2018 Correction: AB 450 applies to public and private employers –the original article did not include public agencies.

Government-Hosted Social Media – How To Avoid First Amendment Claims

Posted in Social Media

This post was authored by David Urban.

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

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

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

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

Second, in theory, an agency can take an alternative approach that rests on the “government speech” doctrine. In this approach, the agency would pick and choose only a few public comments to publish, and argue that its decision-making process constituted the expression of the agency itself.  This approach has support in U.S. Supreme Court cases from other contexts, such as from Pleasant Grove City v. Summum , in which the Court found that a city’s selection of which monuments to place in a public park constituted government speech, so that its decision not to select a particular monument was not censorship but the choice of the agency itself not to express itself in that way.  The approach has not been tested by case law in the context of social media, but could be valid under existing First Amendment law as a way to moderate content.

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

It may well be approved or disapproved soon, however. In a well-publicized case, Knight First Amendment Institute v. Trump, individuals barred from President Trump’s Twitter page have sued under the same First Amendment theories described here.  The plaintiffs’ theory is that President Trump’s page constitutes one that is government-hosted, so that First Amendment standards apply.  The case is worth watching for indications on how Courts will view social media platforms, and we will provide relevant updates.

Tips from the Table: Evaluating “Flores” Compliance at the Table

Posted in Labor Relations, Negotiations

We are excited to continue our video series – Tips from the Table. In these monthly 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.