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In a much-publicized congressional hearing on December 5, 2023, the presidents of Harvard, MIT, and the University of Pennsylvania faced pointed questions by the House Education and Workforce Committee regarding antisemitism on college campuses. Several exchanges—and public debate thereafter—focused on whether certain violent or politically-charged speech would violate the universities’ Code of Conduct, particularly the sections prohibiting harassment and discrimination.

These three private universities certainly aren’t the only institutions facing challenging questions regarding students’ and employees’ political speech. In fact, the issue is more challenging for public institutions.  The hearing raises an opportunity for a refresher on public agencies’ and public schools’ legal obligations when it comes to the tangled intersection of free speech and unlawful harassment and discrimination. Below are a few broad principles to keep in mind.

Free Speech vs. Harassment and Discrimination

Public agencies, including public schools, are subject to the First Amendment of the U.S. Constitution, which prohibits them from infringing on employees’ or students’ free speech rights. (For more on public employees’ right to free speech, see this LCW blog post.) At the same time, these entities are subject to a variety of laws that require them to act to address harassment and discrimination based on an employee’s or student’s protected status.  

These are distinct but overlapping legal obligations. On the one hand, freedom of speech does not absolve a school or agency from responding to reports of harassment or discrimination. If the speech is sufficiently severe or pervasive to create a hostile environment under the applicable anti-discrimination law, the entity has a duty to take prompt and effective steps to eliminate the hostile environment and prevent the harassment from reoccurring.

On the other hand, disciplining speakers or preventing them from expressing protected speech can violate the Constitution. Moreover, if an organization’s written policies prohibiting harassment, discrimination, or bullying are too expansive—for example, a bullying policy that contains a prohibition on “offensive” speech—there is a risk that a court could find the policies vague and overbroad and thus invalid under the First Amendment.

Public schools and agencies, like the courts, must balance these legal obligations. Whether the speaker had a First Amendment right to say something—in a classroom, at a protest, or elsewhere—is a crucial question, but the inquiry should not end there. Even if the school or agency chooses not to shut down the speech or discipline the speaker, the institution can take creative measures such as issuing a statement to the community or offering students and employees alternatives to exposure to the speech.

Conduct and Targeting an Individual Are Not Prerequisites for Taking Action

One point of confusion that arose from the congressional hearing is whether speech must cross over into conduct in order to constitute harassment. Under federal and state anti-discrimination laws, the answer is no. Speech based on protected status, including epithets, chants, derogatory comments, slurs, and jokes, can rise to the level of unlawful harassment if it sufficiently alters the conditions of employment or interferes with a student’s access to educational benefits or opportunities.

Moreover, speech need not target an individual in order to constitute harassment under anti-discrimination laws. Speech issued to the public—for example, a chant at a rally or media published online—can rise to the level of harassment if it meets the legal criteria for creating a hostile work or educational environment.

The Importance of Enforcing Policies Consistently

As if the above reminders are not complicated enough, public agencies and schools should also be mindful that enforcing harassment and discrimination policies inconsistently will almost certainly give rise to legal challenges. An individual subject to discipline may claim impermissible viewpoint discrimination under the First Amendment if they can point to a circumstance in which the entity did not similarly enforce its policies against a speaker who expressed a different viewpoint. There is an additional risk of a discrimination claim if these differing viewpoints are tied to a protected status—for example, if an entity imposes discipline for or restrains speech denigrating one ethnic or religious group but not another.

Conclusion

As the congressional hearing on December 5 illustrated, the intersection of free speech and anti-discrimination laws can raise more questions than answers. Please seek counsel when faced with complex issues involving both legal obligations.

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What is Senate Bill 525?

Senate Bill 525 (SB 525) is a new California law that raises the minimum wage for covered health care employees. SB 525 went into effect on January 1, 2024.  It periodically raises the minimum wage over a number of years using four separate wage increase schedules based on the type of health care facility. SB 525 is codified at California Labor Code Section 1182.14.

Who and What is Covered by SB 525?

SB 525 applies to entities that employ “covered health care employees” that work in “covered health care facilities.” Expansive lists of “covered health care employees” and “covered health care facilities” are set forth in the statute and warrant careful review.  Below we discuss some of the most relevant categories of employees and facilities covered by SB 525 as they relate to public employers.

“Covered health care employees” are employees who work for a health care facility employer to provide patient care, health care services, or services supporting the provision of health care. The statutory definition is very broad and includes employees as diverse as physicians, patient care technicians, interns, food service staff, billing personnel, and laundry workers. However, as applied to the public sector, the term “covered health care employees” only applies to employees whose primary duties are health care services.

“Covered health care employees” include contracted or subcontracted employees where a covered employer exercises control over the employee’s wages, hours, or working conditions. It does not include outside workers who are medical transportation workers, such as EMT and ambulance workers, or waste collection and delivery services workers.

SB 525 also broadly defines the term “covered health care facilities.”  Examples of “covered health care facilities” include: (a) licensed special, acute care, or psychiatric care hospitals as defined in Section 1250 of the Health and Safety Code; (b) certain clinics defined in Section 1206 of the Health and Safety Code, including community clinics operated by public agencies that are exempt from licensure, as well as rural health clinics as defined in Section 1396d of Title 42 of the U.S. Code; and (c) county correctional facilities that provide health services; and county mental health facilities.  Due to the statute’s detailed definition of “covered health care facilities,” employers should carefully review the statute to see if their type of facility is covered. LCW can also help clients make that determination.[1]

Are Counties and Charter Cities Covered?

By the plain language of the statute, the legislature clearly intended SB 525 to apply to all public agencies.  However, counties and charter cities should evaluate whether they are exempt from SB 525 under Article XI, Sections 1, 4, and 5 of the California Constitution, which constitute the “Home Rule Doctrine.” [2]  Under the Home Rule Doctrine, charter cities and counties have exclusive authority to regulate and determine their own municipal affairs, including setting employee compensation, free from intrusion by the state.  For more discussion on this topic, click here. 

Charter cities and counties should consult legal counsel to evaluate the applicability of the Home Rule Doctrine to SB 525.

The Four Minimum Wage Schedules

Under SB 525, the minimum wage for covered health care employees at covered health care facilities will increase on June 1, 2024 (except for county covered health care facilities, which do not need to comply with SB 525 before January 1, 2025).  The SB 525 minimum wage will then increase to $25 per hour over a period of between two to nine years, depending on the wage schedule applicable to the covered health care facility, as set forth below.  Once the SB 525 minimum wage reaches $25 per hour, it will then be adjusted on an annual basis using a formula equivalent to the state minimum wage increase formula.[3]

Greater Than 10,000 Full Time Employees, Counties with a Population Over 5,000,000

This wage schedule includes covered health care facilities with 10,000 or more full time or equivalent employees. It also includes covered health facilities owned, affiliated, or operated by a county with a population of over 5,000,000.    

  • $23 per hour effective June 1, 2024;
  • $24 per hour effective June 1, 2025;
  • $25 per hour effective June 1, 2026.

Governmental Payor Mix, Rural Facilities, Counties with Populations Under 250,000

This wage schedule covers hospitals with a high governmental payor mix[4] and independent hospitals with an elevated government payor mix.[5] It also includes rural independent covered health care facilities, or covered health care facilities that are owned, affiliated, or operated by a county with a population of less than 250,000.

  • $18 per hour effective June 1, 2024;
  • 3.5 percent increase effective June 1, 2025 and every year thereafter through 2032;
  • $25 per hour effective June 1, 2033.

Primary Care Clinics, Community Clinics, Rural Health Clinics, Urgent Clinics

This wage schedule covers primary care clinics, community clinics, rural health clinics, and urgent clinics owned and operated by primary care clinics.

  • $21 per hour effective June 1, 2024;
  • $22 per hour effective June 1, 2026;
  • $25 per hour effective June 1, 2027;

All Other Covered Health Care Facility Employers

This wage schedule covers all other covered health care facility employers

  • $21 per hour effective June 1, 2024;
  • $23 per hour effective June 1, 2026;
  • $25 per hour effective June 1, 2028.

County One-Year Exception

SB 525 provides that a covered health care facility owned, affiliated or operated by a county shall not be required to comply with the new minimum wage requirements before January 1, 2025.[6]

How Does SB 525 Affect Salaried Employees?

SB 525 states that for a covered health care employee to qualify as exempt from minimum wage and overtime law, they must earn a monthly salary of at least 150% of the health care worker minimum wage or 200% of the applicable minimum wage, whichever is greater.  The statute expressly states this salary basis applies to the state, a political subdivision of the state, the University of California, or a municipality.  Importantly, because public agencies are exempt from the overtime provisions of the California Wage Orders, the effect of SB 525’s salary basis on public agencies is primarily limited to ensuring covered health care employees are paid in compliance with minimum wage law. 

However, there is a secondary effect for public agencies that are covered by California Labor Code 512.1.  Under Labor Code 512.1, public employers must provide meal and rest periods to employees who provide or support direct patient care in a general acute care hospital, clinic, or public health setting – unless the employee is exempt from overtime under state law.  Since SB 525 increases the state’s salary basis for covered health care employees, more public employees who provide or support direct patient care in a general acute care hospital, clinic, or public health setting may be subject to Labor Code 512.1’s meal and rest period requirements.  For more information on Labor Code 512.1, click here.

Public agencies with general acute care hospitals, clinics, and/or public health settings should immediately begin looking into the effect of SB 525 on employees that may have been exempted from Labor Code 512.1. 

How Does SB 525 Affect Overtime and Other Wage and Hour Laws?

The applicable minimum wages in SB 525 constitute the state minimum wage for covered health care employment for all purposes under the Labor Code and Wage Orders of the Industrial Welfare Commission.

Waivers

The SB 525 requirements can be waived. The Department of Industrial Relations must develop a waiver by March 1, 2024.  The waiver will allow a covered health care facility to apply for a temporary pause or alternative phase-in schedule of the minimum wage requirements. Waivers can be renewed, but the entity must apply to renew a waiver at least 180 days before it expires.

Moratorium on Local Wage Regulation

SB 525 contains a 10-year moratorium on local ordinances, regulations, or administrative actions that would impose wage or compensation requirements for covered health care facility employees, subject to limited exceptions. The moratorium began on September 6, 2023 and expires January 1, 2034. Consult with legal counsel to evaluate whether this provision applies to counties and charter cities.

[1] Skilled nursing facilities are addressed separately at California Labor Code Section 1182.15.

[2] Three sections of the California Constitution provide grounds for the argument that SB 525 does not apply to charter cities and counties under the Home Rule Doctrine: Article XI, Section 1(b) provides that counties shall set the compensation of their employees; Article XI, Section 4(b) provides that county charters shall set compensation for employees unless delegated to the Legislature; Article XI, Section 5(b)(4) provides plenary authority for city charters to set compensation for their employees..

[3] SB 525 provides that following the implementation of a $25 minimum wage increase, on or before August 1 of the following year and annually thereafter, the Director of Finance shall calculate an adjusted minimum wage that increases by the lesser of 3.5 percent or the rate of change in the non-seasonally adjusted U.S. Consumer Price Index.

[4] “Payor mix” measures the percent of patients who have federal health insurance such as Medicaid and Medicare compared to patients who pay themselves or pay with private health insurance. A “hospital with a high governmental payor mix” means a licensed acute care hospital, as defined in subdivision (a) or (b) of Section 1250 of the Health and Safety Code, where the combined Medicare and Medi-Cal payor mix is 90 percent or greater. A hospital only qualifies under this definition if the combined payor mix of both the hospital and the health care system to which it belongs, if any, is 90 percent or greater.

[5] An “independent hospital with an elevated payor mix” means a hospital, as defined in subdivision (a) or (b) of Section 1250 of the Health and Safety Code, where the combined Medicare and Medi-Cal payor mix is 75 percent or greater. For the purposes of SB 525, the hospital must not be owned, controlled, or operated by any parent entity with two or more separately licensed hospitals.

[6] California Labor Code Section 1182.14(c)(5).

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In the intricate landscape of legal disputes, pro se/pro per plaintiffs—individuals representing themselves without legal counsel—pose unique challenges for defendants. As a preliminary note, self-represented plaintiffs are referred to as “pro se” plaintiffs in federal court and “pro per” plaintiffs in state court. During the course of this post, the term “pro se plaintiffs” will be used to reference self-represented plaintiffs. Reports have shown that in California state courts, there has been a rise in the number of pro se litigants. In 2004, over 4.3 million users of the California court system were self-represented. While many of those cases were family law or unlawful detainer cases, 16% of general civil cases were filed by pro se plaintiffs. In federal courts, data shows that between 1999 and 2018, over 1,517,000 federal district court cases, or 28 percent of all cases filed, involved at least one pro se party. Amongst these cases, 91.2 percent of all pro se litigation involve pro se plaintiffs which amounts to 25.4 percent of total filings between 1999 and 2018. Moreover, 20 percent of employment civil rights cases involved at least one pro se party. Generally, the federal courts have seen a consistent rate of pro se cases, between 1999 and 2019. As seen from the statistics, pro se plaintiffs, while not as prevalent in the employment space, are still more prevalent than one would expect. Accordingly, understanding the unique dynamics of such cases and being equipped with strategic approaches are vital.

It Is a Mistake to Discount the Pro Se Plaintiff

It may be easy to treat cases with pro se plaintiffs dismissively because the common assumption is they lack legal skills and are easier to litigate against. This is a misguided assumption. Pro se plaintiffs provide an interesting dynamic in that what they lack in legal knowledge is juxtaposed by increased leniency from judges in both federal and state courts. Despite the general duty of California courts to treat a person representing himself the same as though he were represented by counsel (Monastero v. Los Angeles Transit Company (1955) 131 Cal.App.2d 156, 160-61), judicial preference in pro se cases can be to resolve matters based on merit rather than dismiss due to procedural defaults. This typically manifests in California courts, among other acts of leniency, liberally construing documents filed by pro se plaintiffs, liberally allowing amendments to pleadings, and explaining different procedures to them during the course of litigation. Federal courts take a similar approach in how they treat pro se plaintiffs. (See Haines v. Kerner (1972) 404 U.S. 519, 521 (per curium) (pro se complaints are held to “less stringent” standards than those drafted by attorneys).) Therefore, while filing motions to dismiss in federal court and demurrers in state court is a great way to attack the pleadings of pro se plaintiffs, courts may be inclined to deny such motions much more readily than if the pleadings had been prepared and filed by experienced counsel.

Moreover, many pro se litigants may be much more knowledgeable than anticipated. Pro se plaintiffs may have legal backgrounds or even have assistance behind the scenes from family and friends who have legal backgrounds.

Additionally, cases with pro se plaintiffs often require more time and money than cases in which plaintiffs are represented by counsel because a large part of the battle is deciphering the various pleadings and motions that a pro se plaintiff may file. Pro se plaintiffs’ lack of knowledge regarding procedural elements may also cause hiccups along the road, which leads to more time and money spent to figure out how to address these hiccups.

Thus, it is important to treat pro se plaintiffs very much as seriously as plaintiffs represented by counsel.

Provide Help to the Court via Briefing

As difficult as it may be for defendants to ascertain pro se plaintiffs’ arguments, it is equally as difficult for the courts. Therefore, defendants should seek to provide courts with motions and briefing that clearly outline the facts, provide robust analysis of the legal issues, and even anticipate or interpret plaintiffs’ arguments. By providing the courts with briefing of this type, defendants provide courts with a good outline of the law that relieves courts from having to do their own research. Moreover, briefing that is complete, clear, and concise has the added benefit of providing courts with more incentive to use that briefing as the basis for their orders. In the context of litigating against pro se plaintiffs, briefing is more important than ever.  

Approach Informal Settlement Talks Cautiously

Early resolution is appealing, especially if it means getting rid of a case with a pro se plaintiff that may take much more time and money than a case in which counsel represents the plaintiff. While some pro se plaintiffs may be open to early resolution, it is important to understand the risks that come with informally negotiating settlement with a pro se plaintiff before jumping in headfirst.

Pro se plaintiffs are not bound by the professional code of conduct that binds attorneys. Therefore, for example, while attorneys are bound by the professional codes of conduct that prohibit misrepresentations, pro se plaintiffs may make misrepresentations during the course of settlement talks to your detriment. Pro se plaintiffs may also agree to settlement terms and then back track afterwards to get better terms.

If a settlement is reached, it is important to take care to craft a thorough settlement agreement to avoid any attempts of pro se plaintiffs reneging as to agreed terms. It may be worthwhile to consider having a witness for the execution of the settlement agreement and any other precautions to document the events surrounding the execution of the settlement agreement.

Use Mediation and Other Alternative Dispute Resolution Solutions

While defendants should cautiously approach informal settlement talks, mediation, settlement conferences, and other alternative dispute resolution solutions may lead to a positive result. When a neutral party is involved in facilitating settlement discussions, defendants may be able to achieve much more than if they were themselves to approach pro se plaintiffs informally. Moreover, the neutral party may help provide more perspective to pro se plaintiffs and manage those plaintiffs’ expectations.

In conclusion, the landscape of pro se litigation requires a serious and strategic mindset. Defendants must acknowledge the challenges posed by pro se plaintiffs and adopt tailored strategies to navigate these legal complexities effectively. By doing so, defendants not only safeguard their interests but also contribute to the efficient and equitable resolution of legal disputes.

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On October 8, 2023, Governor Gavin Newsom signed SB 497 into law, which amends Labor Code sections 98.6, 1102.5, and 1197.5 effective January 1, 2024. The amendments establish a rebuttable presumption of retaliation if an employer takes an adverse action against an employee within ninety (90) days of that employee’s protected activity. The amendments also impose a maximum $10,000 civil penalty for each violation.

“Wait! They’re changing ‘retaliation’ again? What am I supposed to do?” Short answer: What constitutes “retaliation” is the same as it’s been, and employers’ obligations regarding retaliation haven’t changed. What the “rebuttable presumption” amendment does is make it easier for an employee to prove a “prima facie” case of retaliation and survive early-stage challenges to their pleadings. To learn how, read on.

Employer Obligations Under Labor Code Sections 98.6, 1102.5, and 1197.5

Labor Code section 1102.5, commonly referred to as the “whistleblower” statute, prohibits an employer from taking an adverse action against an employee who engages in protected activity such as disclosing information to a state, federal, or local agency that the employee reasonably believes constitutes a violation of law, regulation, or statute. Labor Code section 1197.5 prohibits employers from retaliating against an employee for invoking their rights under the California Equal Pay Act, and section 98.6 prohibits employers from retaliating against employees who report wage and hour violations.

The concept is straightforward, but understanding what constitutes a “protected activity” or an “adverse action” is key to protecting your employees’ rights and avoiding liability for violations of the statute. California courts have interpreted both “protected activity” and “adverse actions” with an eye toward the realities of the workplace.

What is protected activity?

Each section of the Labor Code amended by SB 497 protects its own category of employee action. Broadly speaking, these statutes prohibit employers from taking retaliatory action against employees who report a reasonable belief that the employer has violated some sort of law or regulation.

Under Labor Code section 1102.5, “protected activity” includes disclosing information to a government or law enforcement agency that the employee reasonably believes involves a violation of state, local, or federal law or regulations, or refusing to participate in activity that would involve the violation of law Labor Code section 1102.5 also prohibits employers from making, adopting, or enforcing any policy that prevents an employee from disclosing such information to a government or law enforcement agency. The information the employee discloses can involve misconduct by either the employer or fellow employees.

Under Labor Code section 1197.5, protected activity would include an employee reporting suspected wage discrimination on the basis of an employee’s sex, race, or ethnicity. For example, if a female employee reports to her supervisor that she believes she is getting paid less, because of her gender, than a male colleague who is performing substantially similar work, she is engaging in protected activity.

Protected activity under section 98.6 would include, for example, an employee’s report that the employer failed to pay overtime wages properly or report of other wage-and-hour violations to the labor commissioner.

Importantly, section 1102.5 provides that an employee of a government agency who discloses such information to their own employer makes “a disclosure of information to a government or law enforcement agency.” So even if an employee of a government agency only reports alleged misconduct internally and does not make a report with an official state or federal agency, they have still engaged in protected activity under section 1102.5.

What’s an adverse employment action?

An adverse employment action is any change that materially affects the terms, conditions, or privileges of employment. Terminations, demotions, and other discipline are classic examples of adverse employment actions. Individual actions like nitpicking performance or laterally transferring an employee without any materially adverse consequences usually are not considered “adverse actions” for the purposes of retaliation, but California courts have found the following actions to be “adverse”:

  • Denial of overtime
  • Repeated, daily criticism, along with increased supervision and unfounded misconduct investigations
  • Relocation to the basement and reduction in duties
  • Reassignment that affects the employee’s prospects for promotion
  • Reduction in pay or hours
  • Unwarranted, negative performance reviews

Whether an action materially affects the terms, conditions, or privileges of employment is, of course, a factually intensive inquiry that will change based upon the specific and unique circumstances of each employee. However, employers should understand that even seemingly neutral decisions, taken after an employee engaged in protected activity, can under some circumstances form the basis of a retaliation claim.

‘Prima Facie’ Case of Retaliation

If an employee can show that they engaged in protected activity and were subject to an adverse employment action, they’re close to establishing a “prima facie,” or presumptive, case of retaliation. But the employee also needs to establish a causal connection between that protected activity and adverse employment action. In other words, they need to show that the adverse employment action was motivated by the protected activity.

To determine whether a causal connection exists, courts will look at whether the totality of the circumstances indicates that an employer had a retaliatory motive for the adverse employment action. A common factor employees use to demonstrate retaliatory motive is the timing of the adverse action (for example, whether the adverse action was taken shortly after the protected activity). Additionally, the employee must demonstrate that the employer had knowledge of the protected activity when it decided to enact the adverse employment action.

So, to claim retaliation before SB 497, employees had to demonstrate: 1) they engaged in protected activity; 2) they were subject to an adverse employment action; and 3) there was a causal connection between the protected activity and the adverse employment action. SB 497 does not change this analysis for purposes of employees whose alleged adverse employment action occurred more than ninety days after their protected activity. But for employees who can show that they suffered an adverse employment action within ninety days of their protected activity, SB 497 drastically reduces the work employees have to do to establish a “prima facie” case of retaliation.

SB 497 is just the latest in recent adjustments to the evidentiary requirements employees must satisfy when bringing a retaliation claim. In 2022, the California Supreme Court clarified in Lawson v. PPG Architectural Finishes, Inc. that employees only have to show by a preponderance of the evidence that their protected activity was a contributing factor in their adverse employment action, after which employers must show by clear and convincing evidence that they had legitimate, non-retaliatory reasons for the action. Rejecting the McDonnell Douglas burden-shifting test in the retaliation context (typically used in discrimination cases), the Lawson decision requires employers to meet a higher evidentiary standard when proving that they had a legitimate business reason for an adverse employment action.

The New ‘Rebuttable Presumption’ of Retaliation

A presumption is a legal principle that assumes one conclusion based on the existence of a set of specific facts. More simply, a presumption allows courts to assume “C,” if “A” and “B” exist. In the context of SB 497 and its amendments to the Labor Code, courts will now presume that an employer retaliated against an employee if that employee suffers an adverse employment action within ninety days of protected activity.

This presumption makes it much easier for such employees to prove a prima facie case of retaliation. Whereas before SB 497, every employee needed to demonstrate the three elements of a prima facie case of retaliation to survive early challenges to their claim, now, employees whose adverse action falls within the ninety-day window are presumed to have experienced retaliation. This lessens the employee’s burden in proving up the causal connection element of their retaliation claim, and it will make it harder for employers to dispose of these retaliation claims at the early stages of litigation.

But it’s important to note: This presumption is rebuttable. This means that, even if an employee demonstrates that they suffered an adverse action within ninety days of protected activity, the employer can offer evidence demonstrating other justifications for the adverse action (for example, employee misconduct or poor performance). For employees in this ninety-day window, the burden of proof has shifted to employers to show a legitimate, non-retaliatory reason for the adverse action.

Best Practices in Light of the Rebuttable Presumption

If all of this “presumption” and “assumption” and “evidentiary burden” talk is scary to you, don’t worry. The best way to make sure you never have to hear about how “there is a rebuttable presumption of retaliation if an employee suffers an adverse action within ninety days of engaging in protected activity” is to make sure that your organization adheres to its obligations under the Labor Code and refrains from engaging in behavior that could form the basis for a retaliation claim.

It’s also important to note that in 2020, the Legislature amended section 1102.5 to add subsection (j), which allows prevailing employees (not employers) to recover attorneys’ fees. This one-way attorneys’ fees provision makes it even more important for employers to prevent retaliation claims in the first place, as the cost of defending such a claim (even if the employer prevails) can be significant.

Here are some best practices to make that happen:

  • Document when, how, and where an employee makes a complaint about any potentially violative conduct. Update your record-keeping practices as necessary to make sure your organization maintains clear records of employee complaints.
  • Provide your supervisors (and anyone with decision-making authority) with clear, accurate training on what constitutes adverse actions, protected activity, and retaliation.
  • Review on a regular basis your personnel policies and procedures relating to retaliation to ensure compliance with the California Labor Code.

If you have further questions or believe that you need help addressing this issue, please check with your trusted legal counsel.

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The holiday season is upon us and it’s not just about decking the halls but also managing employee time off effectively.  Here are some tips for navigating this festive challenge:

Plan Ahead: A Holiday Calendar is Your Best Friend

  • Start early by creating a holiday calendar that highlights critical dates, including office closures and special events.
  • Share the calendar with your employees well in advance.
  • As the holiday season approaches, remind employees about vacation and leave policies – including how and when to submit time-off requests.

Communicate, Communicate, Communicate

  • Promote open communication channels for vacation requests.  Ensure that you have a clear and fair process for responding to time off requests. 
  • Encourage employees to coordinate with their peers in advance to ensure essential tasks are covered during the holidays.
  • Communicate anticipated office closures and leaves to all stakeholders in advance.

Know the Legal Landscape

  • Work with Human Resources or legal counsel to stay compliant with California labor laws regarding time off, overtime, and holiday pay.
  • Ensure that you have classified employees correctly, distinguishing between exempt and non-exempt workers, as this can impact overtime pay and time-off policies.
  • Remember union contracts may govern time-off policies and requests.  Compliance with these agreements is crucial to maintaining workplace peace.
  • Ensure meticulous record-keeping when managing time-off requests.  Accurate records are not only good practice, but also vital for legal defense in case of disputes.
  • Document all communications regarding time-off requests. This paper trail can be invaluable in demonstrating compliance with legal requirements and fairness in decision-making.
  • Be careful when it comes to protected leaves – such as those under the Family Medical Leave Act (“FMLA”) and California Family Rights Act (“CFRA”) – as employees are entitled to such leaves regardless of the season. 

Reward Those Who Stay

  • Recognize and appreciate employees who hold down the fort during the holiday season.  A certificate or public recognition is a great gesture of appreciation. 
  • Host fun and inclusive virtual events or small office celebrations.  Perhaps a catered meal or a team celebration is in order.
  • Continue to invest in your employees’ growth during the holiday season by continuing to offer them access to training, seminars, or workshops that can help them in their career development.
  • Emphasize the importance of self-care and rejuvenation.  Remind employees of available benefits such as Employee Assistance Program (“EAP”) or Flexible Spending Account (“FSA”).

Managing employee time off during the holiday season does not have to be daunting – as long as you have the right plan.  Be proactive, communicate openly, and keep the spirit of the season alive in your workplace.  Happy holidays and happy time-off planning from your friends at LCW!

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With the approaching election year, we can anticipate a high level of political activity from the public to support their views of what should be the country’s future.  No doubt, at times this political activity will encroach on the workplace, and for public agency employers, this can create unique problems.  State statutes and agency rules limit the political activities of government employees, but at the same time those employees have free speech rights under the U.S. Constitution’s First Amendment, and can sometimes successfully assert those rights against their employer if the employer attempts to limit their speech.    

As agencies look forward to 2024, advance planning will help maintain an orderly, fair, well-functioning, and legally compliant operation.  This post describes various standards for agency management to keep in mind.   

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

Under First Amendment principles, a public employee cannot be disciplined for their 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 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.” 

Suppose a city employee posts publicly on social media that he supports one side in the upcoming election, and harshly denigrates anyone who supports the other side.  Then suppose coworkers complain, arguing that they have needlessly suffered an insult from the employee and this has inhibited their productivity.  The answer to the existence of First Amendment protection will depend on application of the three elements described above.  First, the speech will be on a matter of “public concern” since it relates to an issue, the Presidential election, of great importance to the public at large.  Second, since the employee posted during off-work time and without any connection to job duties, their social media speech will pass the “official duties” hurdle of the First Amendment protection test, and proceed to the third element.   In that element, the balancing test, Courts would look to whether the speech has disrupted the operations of the agency – would simply offending coworkers be enough?  Some cases involving politics do have sufficiently egregious facts and level of acrimony that the disruption test will favor the employer, and result in no constitutional free speech protection for the employee’s statements.

On the other hand, what about a reference librarian at a county library who feels it is their duty to mention their own political views to patrons any time they answer a reference question?  Answering reference questions is in the librarian’s “official duties,” and no First Amendment protection should exist for them in their speech in carrying out this duty (at least not as to their government employer).  The same answers would hold for speech, political or otherwise, rendered pursuant to any employee’s “official duties,” be they a police officer, building inspector, firefighter, or other type of worker.  (There is an exception to this “official duties” rule for certain work by professors, as described in LCW’s prior post.)

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: “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 statutes 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, subd. (a), 3252, subd. (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 an election, and actually presents a good reason why this use advances a bona fide purpose of the agency?  They could claim educational benefit or public outreach.  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.  (There are exceptions described in Section 7054.1, however, for allowing board members and administrators to appear before citizen groups and provide reasons why the board called a bond election and allowing responses to inquiries from the citizen groups.) 

Conclusion

Questions regarding free speech and political activities of agency employees can present complex legal issues, and in most situations, it is prudent to seek advice of counsel.

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Assembly Bill 1484, which enhances the representational rights of temporary employees of California local government agencies, was recently signed into law by Governor Newsom. While the Meyers Milias Brown Act (MMBA) (Government Code section 3500 et seq.) currently gives temporary employees of public sector agencies the right to form, join, and be represented by an employee organization, AB 1484 enhances those rights and imposes new duties on local agencies. The intent of the legislation is to ensure that temporary employees are protected by state laws, and to ensure that the increasing use of temporary employees does not undermine public employee labor relations.

AB 1484 takes effect January 1, 2024 and adds Government Code section 3507.7 to the MMBA.  It obligates local government agencies to do the following with respect to temporary employees who have been hired to perform the same or similar type of work that is performed by permanent employees who are represented by a recognized employee organization:

1. Upon request of a recognized employee organization, add temporary employees to the same bargaining unit as permanent employees who perform the same or similar type of work.

    2. Once temporary employees are added to a bargaining unit in response to a labor organization’s request, promptly participate in bargaining with the labor organization over wages, hours, and terms and conditions of employment for temporary employees.

    3. The employer must provide temporary employees, upon hire, with a copy of their job description, wage rates, eligibility for benefits, anticipated length of employment, and procedures to apply for open, permanent positions.  This information must also be provided to the recognized employee organization within five days of hire.  Although not explicitly clear, the law appears to require the information to be provided to the recognized employee organization regardless of whether the employee organization has requested that temporary employees be added to a bargaining unit.

    4. Along with the list of new employee information provided to an employee organization under Government Code section 3558, the employer must also provide the anticipated end date of employment for each temporary employee, or actual end date if the temporary employee has been released from service since the last list was provided.  This appears to require that employers provide the personal contact information of temporary employees to the recognized employee organization regardless of whether the employee organization has requested that temporary employees be added to a bargaining unit.  Employers are reminded that Government Code section 3558 permits employers to meet and confer over procedures to give employees notice and the opportunity to opt out of having their home addresses, personal telephone numbers, and personal email addresses provided to a labor organization, consistent with County of Los Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 905.

    Agencies are not required to make changes to existing bargaining units unless a labor organization requests that temporary employees be added. Some labor organizations may choose not to add temporary employees to existing units based on the preferences of existing members and current temporary employees.

    If temporary employees are added to a bargaining unit pursuant to such a request, they are not automatically entitled to the same terms and conditions of employment as their permanent employee counterparts. Rather, the parties are required to bargain over terms and conditions for temporary employees. The bill specifically notes that the issue of whether a temporary employee should receive seniority or credit for their time in temporary employment upon obtaining permanent employment is a matter within the scope of representation.

    Initially, an agreement over temporary employee terms can be an addendum to the existing memorandum of understanding. Thereafter, if the labor organization so requests, the terms and conditions of employment for permanent and temporary employees must be included in the same memorandum of understanding.

     “Temporary employee” per AB 1484 means a temporary employee, casual employee, seasonal employee, periodic employee, extra-help employee, relief employee, limited-term employee, per diem employee, and any other public employee who has not been hired for a permanent position.  This can also include a retired annuitant who meets the definition of temporary employee.  It does not include an employee employed by a temporary services employer as defined in Section 201.3 of the Labor Code.[1]  The bill does not apply to temporary employees hired pursuant to a written agreement between a public employer and a labor organization that primarily represents employees in the building and construction trades.  The bill does not apply to independent contractors.

    The legislation specifies that it does not supersede or provide any exemption to the restrictions or requirements related to individuals working after retirement from a public retirement system.

    Complaints alleging violations of the new Government Code section 3507.7 shall be processed as unfair practice charges at the Public Employment Relations Board pursuant to Government Code Section 3509.

    There will undoubtedly be numerous questions about AB 1484 that are not clearly answered by the bill.   You should prepare for the implementation of AB 1484.  Trusted legal counsel can help you with your questions as well as strategize with you over the unique issues you will face in implementing AB 1484 at your agency.

    [1] Labor Code section 201.3 defines a temporary services employer as “an employing unit that contracts with clients or customers to supply workers to perform services for the clients or customers and that performs all of the following functions:

    (A) Negotiates with clients and customers for matters such as the time and place where the services are to be provided, the type of work, the working conditions, and the quality and price of the services.

    (B) Determines assignments or reassignments of workers, even if workers retain the right to refuse specific assignments.

    (C) Retains the authority to assign or reassign a worker to another client or customer when the worker is determined unacceptable by a specific client or customer.

    (D) Assigns or reassigns workers to perform services for clients or customers.

    (E) Sets the rate of pay of workers, whether or not through negotiation.

    (F) Pays workers from its own account or accounts.

    (G) Retains the right to hire and terminate workers.

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    Last week, on October 31, 2023, the U.S. Supreme Court heard argument in two important cases concerning the First Amendment and government agencies.  Both cases present the question of when and how First Amendment free speech standards apply to government officials in curating public comments on their social media pages.  

    The cases are O’Connor-Ratcliff v. Garnier involving Trustees of the Poway Unified School District near San Diego, and Lindke v. Freed, involving a City Manager in Michigan.  In both cases, members of the public posted comments on the officials’ Facebook or Twitter (now X) pages and had their comments deleted, hidden, or blocked by the officials.  The federal appellate court in Garnier found in favor of the members of the public, whereas the court in Lindke found in favor of the official.  Both cases turned on the key disputed legal issue of whether the officials’ activities on their social pages constituted state action.  First Amendment free speech protection binds only government actors, and if the officials could prove their social media pages basically operated only as their personal pages, then they could avoid liability for improper censorship in deleting comments or blocking members of the public. 

    In reviewing and deciding the two cases, the U.S. Supreme Court will need to resolve inconsistencies between the federal appellate courts on how to test if state action exists in this social media context.  As a very general matter, the test applied by the appellate court in Garnier emphasized how the official’s page appears to the public, whereas the Freed court emphasized how the social media page actually functioned as an extension of the work of the official’s agency.

    This post describes these two cases, which illustrate how the legal issues come up in practice.  It then describes some general guidelines for public agencies regarding how to address issues of censorship on social media while awaiting the U.S. Supreme Court’s decisions.

    Underlying facts of the cases:

    O’Connor-Ratcliff v. Garnier involves two members of the Poway Unified School District Board of Trustees, who in 2014 created public Facebook and Twitter pages to promote their campaigns for office.  As the Court of Appeals’ opinion described: “After they won and assumed office, the two used their public social media pages to inform constituents about goings-on at the School District and on the PUSD Board, to invite the public to Board meetings, to solicit input about important Board decisions, and to communicate with parents about safety and security issues at the District’s schools.”  The Garniers, parents of two children in the District, often left comments on the social media pages critical of the Trustees, and at times re-posted the same long criticisms.  The Trustees first deleted or hid these posts, and then eventually blocked the Garniers from the pages.  The Garniers thereafter sued, alleging this constituted censorship of their speech that violated the First Amendment.

    Lindke v. Freed involved the Facebook page of Port Huron City Manager James Freed, who posted both personal content and content related to his job.  As the Court of Appeals’ opinion described: “Freed was an active Facebook user whose page featured a medley of posts.  He shared photos of his daughter’s birthday, his visits to local community events, and his family’s weekend picnics. He also posted about some of the administrative directives he issued as city manager.  And when the Covid-19 pandemic hit in spring 2020, he posted about that too, sharing the policies he initiated for Port Huron and news articles on public-health measures and statistics.”  Plaintiff Kevin Lindke took issue with how Freed was handling the pandemic response, and posted critical comments on the Facebook page.  Freed responded by deleting the posts, and eventually blocking Lindke from the page to prevent Lindke from commenting.  Freed then sued for violation of his First Amendment rights.

    Oral argument before the Supreme Court:

    The U.S. Supreme Court heard both cases on the morning of October 31, 2023, in an argument session that spanned about three hours to cover both cases.  Plaintiffs’ side for the most part advocated an appearance-based test for state action.  Under this test, if it appeared that the official was exercising his government authority in maintaining the page, even if it was by simply posting updates news reports about local issues, or information about upcoming decisions, then this favored a finding of state action.  Also, it would support state action if the way the individual used social media was only possible because of their office.  On the other hand, the public officials supported a test that would be less easy for plaintiffs to satisfy.  It required the existence of government requirement or control over what the official did or the official’s actual exercise of government authority through the social media presence.

    There appeared no consensus among the Justices as to which test to apply, and argument focused a good deal on the Justices asking questions that explored the outer parameters of what their ruling would mean.  For example, Justice Thomas asked a couple of times whether it was important, and how it mattered, that the alleged public forum at issue resided on privately owned property in cyberspace subject to its own rules and regulations, of Facebook and X respectively.  Justice Kagan emphasized in her questions that, in developing a test for state action in the context social media, the Court was considering a medium that has changed rapidly in a short period of time and that could undergo further fundamental changes relatively soon.

    With the cases now both submitted, Supreme Court decisions in the cases could issue in the next several months, but more likely toward June 2024.  The Supreme Court in its opinions will then be able to provide guidance on these important issues in time for the November 2024 election.

    Practical considerations for agencies and government officials while the cases are pending:

    How can agencies honor their obligations under the First Amendment yet avoid having their public officials serve inadvertently as the message board for certain types of content?  There are a number of ways (until the U.S. Supreme Court provides further guidance through its opinions in Garnier and Lindke).

    First, agencies can recommend that public officials separate their personal social media presence from the pages they intend to use that have any significant relationship to their government work.  This may mean one page for personal use (ideally limited to friends or other particular connections) and one page related to the individual’s government work. 

    Second, for public official social media pages that do reference government work or agency operations, public officials can set up their own rules or guidelines for how their pages should operate so that their decisions to curate comments can have a good chance of complying with First Amendment standards.  Indeed, cities, counties, special districts, and other government agencies that maintain their own social media pages already often do, and should, have such policies.  An official’s putting such a policy into place involves developing it in specific written terms (ideally with the help of counsel) and then notifying social media page users of the policy. The policy can specify, for example, that obscene, defamatory, and other similar types of public comments are not permitted.  If posts are limited to certain topics or users, the policy can also specify that comments have to relate to the matter originally posted.  The policy can describe that repetitive or overly long comments, subject to a specific word or other limitation, will be deleted.   

    In general, the policy 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 public official in almost all circumstances cannot suppress one view on a topic yet allow comments favoring the opposing view.  In addition, the official must be able to justify the policy’s restrictions on certain types of comments in a way that will satisfy forum analysis requirements.

    We will keep you advised of developments.  Because this area of law is developing rapidly, it is best to involve legal counsel in crafting policies related to social media and for which there are any First Amendment concerns.

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    In 2022, the California Legislature passed and Governor Newsom approved, Assembly Bill 2188 (AB 2188).  Effective January 1, 2024, AB 2188 amends California’s Fair Employment and Housing Act (“FEHA”) 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 if the discrimination is based on either of the following:

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

    This year, the California Legislature passed and the Governor approved, Senate Bill 700 (SB 700), which further modifies the law enacted by AB 2188 to also make it unlawful for an employer to request information from an applicant for employment relating to the applicant’s prior use of cannabis.  Further, a person’s prior cannabis use obtained from the person’s criminal history may only be considered or inquired into to the extent the employer is permitted to do so under California’s Fair Chance Act (Gov. Code, § 12952), or other state or federal law.

    In the October 2022 blog post, New Law Prohibits Discrimination in Employment for Outside-of-Work Cannabis Use, LCW wrote about what employers need to know about AB 2188 in anticipation of its January 1, 2024, effective date, and recommended employers do the following in consultation with trusted legal counsel to prepare for AB 2188 to take effect:

    • 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.

    In addition to the above and in consideration of SB 700, employers should further review and assess their hiring practices to ensure that they are not requesting from applicants any information relating to prior cannabis use, except where permitted under California’s Fair Chance Act or other state or federal law.  Trusted legal counsel can assist employers in determining how AB 2188 and SB 700 impacts their practices and operations, and to help in taking the necessary steps to prepare for these two pieces of legislation to take effect.