In June 2021, the Supreme Court declined an invitation to overturn Employment Division, Department of Human Resources of Oregon v. Smith, its seminal 1990 case holding that a facially neutral and generally applicable law survives a challenge under the Free Exercise Clause if it is rationally related to a legitimate government interest.  However, the Court left the door open for future challenges, with five justices expressing either an outright willingness to overturn Smith or, at a minimum, to give serious consideration to doing so.

Just three months thereafter, another challenge to Smith came through that open door.  On September 24, 2021, a Petition for a Writ of Certiorari was filed in connection with 303 Creative LLC, et al. v. Elenis, et al, with the Petitioners – a limited liability company and its owner – framing the questions presented for the Court’s consideration as follows:

  1. Whether applying a public-accommodation law to compel an artist to speak or stay silent, contrary to the artist’s sincerely held religious beliefs, violates the Free Speech or Free Exercise Clauses of the First Amendment.
  2. Whether a public-accommodation law that authorizes secular but not religious exemptions is generally applicable under Smith, and if so, whether this Court should overrule Smith.

On February 22, 2022, the Court granted the writ petition and, along with it, an apparent reprieve for Smith – at least for now.  In granting the writ petition, the Court limited the question presented to “Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”  However, although the Court’s question is limited, its ruling may not be.

The underlying case arose because a graphic and website design company intends to (but does not yet) offer wedding website services.  The company also intends to refuse to create websites celebrating same-sex marriages, regardless of whether the request for such a website comes from a same-sex couple or a heterosexual individual (such as a friend or a wedding planner) associated with the couple.  It also intends to publish a statement regarding the religious motivations behind that refusal.  The company and its owner filed a lawsuit prior to offering wedding website services, claiming that they did not want to violate Colorado’s Anti-Discrimination Act by their intended conduct once such services become available.

The Tenth Circuit Court of Appeals held, among other things, that while Colorado’s Anti-Discrimination Act does compel speech (i.e., the creation of websites for both same- and opposite-sex couples), the Act also satisfies “strict scrutiny” review, and therefore survives a First Amendment challenge, despite the First Amendment’s general prohibition on compelled speech.  Based on the question presented as limited, the Supreme Court appears poised to revisit this prong of the Tenth Circuit’s decision and through its answer, potentially further increase the burden a public agency must meet to survive “strict scrutiny” review in this type of situation.

If the Supreme Court rules in favor of the petitioner, public agencies could face an increased amount of lawsuits challenging policies on the basis of compelled speech.  Employers are strongly encouraged to consult with counsel in connection with complicated questions involving the First Amendment’s free speech and free exercise clauses.

This post appeared in August 2016.  It has been reviewed and is up to date.

CalPERS issued a Circular Letter on July 12, 2016, which provided information on its compliance review process and its most common findings, including employing retired annuitants.  In our practice, we have also observed some confusion surrounding the specifics on how to hire a retired annuitant.  Let’s take a look at the restrictions on hiring retired annuitants, and more importantly, the exceptions to those restrictions.

First of all, the general rule is that an agency cannot hire a retired annuitant to work for your agency without reinstating that individual back into CalPERS.

This may sound incorrect because you know of agencies (maybe even yours!) that have hired retired annuitants.  The California Public Employees’ Retirement Law and Public Employees’ Pension Reform Act of 2013 do outline exceptions to the general rule.  It is through these exceptions that agencies have been able to hire retired annuitants.  The two common exceptions are found in Government Code sections 21221(h) and 21224.  However, when an agency is utilizing either one of these exceptions, it must be aware of the strict and complicated requirements associated with these exceptions.

REQUIREMENTS COMMON TO SECTION 21221(H) AND 21224 APPOINTMENTS

Whether your agency appoints a retired annuitant to a vacant position under Section 21221(h) on an interim basis or hires an annuitant for a limited duration pursuant to Section 21224 for extra help, the following restrictions apply to both types of employment:

  1. The retiree may only work a combined total of 960 hours for all contracting agencies.If the retiree is working or has worked for two or more agencies that contract with CalPERS, the total combined hours cannot exceed 960 hours in a fiscal year.  Please be aware if the retiree is working for you and any other CalPERS agency.
  1. The compensation shall not exceed the maximum monthly based salary paid to other employees performing comparable duties as listed on a publicly available pay schedule for the vacant position divided by 173.333.Your agency is limited in how much it can pay a retiree.  The maximum rate is set by the publicly available pay schedule, and your agency cannot pay the retiree more than that rate.
  1. The retiree shall not receive any benefits, incentives, compensation in lieu of benefits, or any other forms of compensation in addition to the hourly rate.Your agency must only pay the retiree the hourly rate, as discussed above.  As a retiree, he or she cannot receive any benefits, such as health insurance, vacation days, or personal use of a company vehicle.
  1. The appointment must not be any sooner than 180 days after the retiree’s retirement date, unless there is an exception.There are exceptions to the 180-day wait period, and the two exceptions used most by our clients are the firefighter or public safety officer exception and the critically needed position exception, applicable to non-sworn employees.  If your agency is using the “critically needed position” exception, the governing body must certify the nature of the position and the necessity to fill a critical need.  This certification and resolution should be received by CalPERS before the retiree’s hire date.  Please note that certification for a “critically needed position” is different from the certification that the appointment requires “specialized skills.”  Also, note that these exceptions to the 180-day wait period are not available to retirees who accept an incentive to retire.
  1. If the retiree is under normal retirement age, there must be a bona fide separation in service.A bona fide separation requires: (1) no pre-determined agreement between the employer and the member to work after retirement; and (2) there is a 60-day separation from employment.  Please note that there are no exceptions to this 60-day separation.  This means that even if the retiree can meet an exception of the 180-day wait period, if he or she is under normal retirement age, he or she must still serve a 60-day wait period.
  1. The retiree cannot have received any unemployment insurance payments for retired annuitant work for any public employer within 12 months prior to the appointment date.The retiree must certify in writing to your agency that he or she did not receive any unemployment insurance payments within 12 months prior to the appointment for previously retired annuitant work with any CalPERS employer.

REQUIREMENTS FOR SECTION 21221(H) APPOINTMENTS

Appointments under Section 21221(h) are interim appointments into vacant positions.  In general, this exception is used for upper-level positions because the appointment must be made by the agency’s governing board.  The requirements for a Section 21221(h) appointment are as follows:

  1. The appointment must be an interim appointment of limited duration.It should not be left open-ended or indefinite.  Note that this is different from the 960-hour limit discussed above.
  1. The appointment must occur during recruitment for a permanent appointment.Your agency must conduct active recruitment during the period of the interim appointment.  If there is no longer an ongoing recruitment for whatever reason, the agency may need to terminate the interim appointment.
  1. The governing body must deem that the appointment requires specialized skills or is necessary during an emergency to prevent stoppage of public business.Under Section 21221(h), even though the authority to make interim appointments may be delegated to an individual, the statute requires that the governing body deem that the appointment requires specialized skills or is during an emergency.  For many of your agencies, the governing body is a board or a council.
  1. The appointment can only be made once.The retiree cannot be appointed to the same position twice.  This also means the retiree’s appointment cannot be extended, even if he or she has not worked 960 hours in a fiscal year.

REQUIREMENTS FOR SECTION 21224 APPOINTMENTS

Appointments under Section 21224 are for “extra help,” such as eliminating a backlog, working on a special project, or performing work that is an excess of what permanent employees are able to do.  This exception should not be used to fill a vacant position.  The requirements for a Section 21224 appointment are as follows:

  1. The appointment must of limited duration.Similar to above, the appointment must have a start and end date, and it should not be left open-ended or indefinite.
  2. The appointing power must deem that the appointment requires specialized skills or is during an emergency to prevent stoppage of public business.Under Section 21224, the appointment may be made by anyone with the power to hire persons for employment.

As you can see, these requirements require analysis on the individual retiree and the work that will be performed.  If your agency is considering hiring a retired annuitant, seek legal counsel to ensure that your agency is in compliance with the law to avoid potential ramifications.

The California Public Records Act (“CPRA”) strikes a balance between the need for privacy in certain records and the people’s interest in transparent government. The reality of the balance is that it may – and often does – weigh heavily upon agencies that must respond to CPRA requests. This blog post discusses several topics related to CPRA requests, including the requirements of the Act, record retention policies, identifying records that are subject to disclosure, and challenges related to redactions. By understanding these topics ahead of time, agencies will be better equipped to respond successfully to CPRA requests.

General Requirements

The CPRA (Gov. Code § 6250, et seq.) applies to state and local agencies. It defines “public records” broadly to include any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. There are certain, limited exceptions (discussed below). However, the broad category of items potentially subject to disclosure shows the Act’s inclination toward transparency.

Agencies have 10 days to determine whether any part of a request seeks records that are disclosable, and the agency must promptly give written notice of the determination to the requesting party. Agencies may extend the deadline by up to 14 days in “unusual circumstances,” which may include situations where the records are difficult to access, especially voluminous, or not available in a producible format. The deadline only applies to giving notice of the determination – not to providing the records themselves. Nevertheless, any responsive records must be provided “promptly,” and the Act prohibits agencies from delaying or obstructing the inspection or copying of public records.

Requesting parties, however, do not have free reign under the Act. A records request must reasonably describe an identifiable record or records. Requests that do not reasonably describe the records sought may be subject to objection or denial, although agencies should only do so in good faith. Agencies may also charge fees to cover the costs of duplication or applicable statutory fees.

Responsive Materials and Record Retention Policies

“Record Retention Policy” is a commonly accepted misnomer for policies that dictate when and how agencies dispose of old records. Timing can become a critical issue in CPRA requests, because agencies typically dispose of old records on an ongoing basis. If an agency receives a record request, it has an obligation to provide any responsive records to the requesting party. This obligation includes preserving responsive records from disposal. Accordingly, public agencies should implement a system that flags potentially responsive records before they are lost. It is especially important for larger agencies to have a system in place, because the employee who receives the CPRA request may not belong to the same department or unit that disposes of records according to the record retention policy.

Subject to Disclosure? Exemptions, Confidentiality, and Privilege

Part of assembling responsive records is winnowing out any records that are not subject to disclosure. The CPRA describes over a dozen categories of exempted records. The categories range from records of testing materials used in licensing or employment exams, to certain geological or geophysical data, to preliminary drafts, notes, or memoranda that are not retained in the normal course of business. Notably, the Act exempts from disclosure personnel, medical, or similar files if the disclosure would constitute an unwarranted invasion of personal privacy.

In addition to the Act, state or federal law may exempt a record from disclosure. Attorney-client privileged communications, attorney work product, deliberative process communications, and records subject to the official information privilege are not subject to disclosure. To an extent, peace officer personnel records are also protected from disclosure – although state law has identified several categories of peace officer records that are subject to disclosure. Whether a particular record falls within an exempted category can form a significant part of the review. The review process takes time, but it is necessary to ensure that responsive information is produced and exempted information is withheld.

Logistical Impact of Redactions

A record that contains non-disclosable information may still be subject to production. Agencies have a duty to redact or remove non-responsive portions of an otherwise-responsive record where the responsive portions may be reasonably separated. Redaction means increased time and cost. It requires additional levels of review to ensure that sensitive information is properly removed but responsive information is preserved.

Because the Act defines the term, “writing” broadly to include mediums like photographs, audio recordings, or video footage, redaction may require specialized services to handle alternative formats. For example, consider a video that contains both responsive information and protected information. The video would potentially need to be reviewed once to identify any responsive material, once to apply redactions, and once more to ensure that the sensitive information has been removed and the responsive information is still present.

Redaction shows the importance of managing the expectations of the requesting party. Many requestors quickly grow impatient. They do not always understand the efforts that go into assembling and preparing records for a CPRA response. Requestors may also react negatively to the redactions themselves if a requestor believes that responsive information has been removed. Agencies should understand these possibilities and consider ways to address them. Cooperation between the agency and the requesting party helps fulfill the goals of the CPRA and may prevent future disputes.

Trusted legal counsel can help in navigating issues related to CPRA matters.

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

 

In California, nearly 8 million of the state’s 40 million residents have a criminal record.  Research has shown that when individuals with criminal records have access to gainful employment, it helps reduce recidivism.  However, these individuals often face barriers to employment.

That is why on October 20, 2021, the California Department of Fair Employment and Housing (DFEH) announced that it is now utilizing technology to identify and enforce violations of the Fair Chance Act – a “Ban the Box” law seeking to reduce barriers to employment for individuals with criminal records.

According to the DFEH, this technology allows them to mass-search online job advertisements for statements in violation of the Act.  Particularly, it targets statements saying that the employer will not consider job applicants with a criminal record.  If the search discovers an unlawful statement, the DFEH then sends a notice to the employer to remove the statement.  According to the DFEH, during a one-day test, the mass-search tool discovered over 500 job advertisements using unlawful statements.  This new enforcement technology should prompt employers to review their job advertisements to ensure they comply with the Fair Chance Act.

The Fair Chance Act

The California Fair Chance Act, codified as section 12952 in the Government Code, went into effect on January 1, 2018.  The Act repealed Labor Code section 432.9, which prohibited only public employers from asking job applicants about their criminal conviction history before determining whether the applicant met the minimum employment requirements, and instead broadened this prohibition.  Now under the Act, this prohibition applies to both public and private employers with five or more employees.  However, some exceptions apply.  For instance, the Act does not apply to job positions for which another law requires the employer to conduct background checks or to restrict employment based on criminal history.[1]

As noted, the goal of this Act is to help individuals with conviction histories obtain gainful employment in order to support themselves and reduce their chance of recidivating.  Therefore, to help achieve this goal, the Act makes it unlawful for an employer to:[2]

  • Include on a job application, any questions seeking disclosure of an applicant’s conviction history.
  • Ask about or consider an applicant’s conviction history before the employer makes a conditional job offer.
  • Consider, distribute, or disseminate (while conducting a conviction history background check), information about arrests not followed by conviction, referrals to or participation in pretrial or post-trial diversion programs, and convictions that have been dismissed, sealed, expunged, or statutorily eradicated.

As a result, employers must be cognizant of the language they use in their job advertisements.  Blanket statements such as “No felons” or “Must have a clean record” would violate the Act.

Therefore, LCW encourages employers to reach out to ensure their job advertisements and hiring practices comply with the Fair Chance Act.

[1] Cal. Gov. Code 12952 (d).

[2] Cal. Gov. Code 12952 (a).

AB 89, also known as the Peace Officers Education and Age Conditions for Employment, or “PEACE” Act, went into effect on January 1, 2022.

The most straightforward piece of that legislation was Government Code section 1031.4, which raises the minimum age for most peace officer employment from 18 to 21.  This is a current requirement for new hires, but does not affect officers who were hired or cadets who were in the academy by the end of 2021.  The new age minimum does not apply to custodial officers, park rangers, housing authority patrol officers, security officers, welfare fraud investigators, child support investigators, court service officers or marshals, arson investigators, voluntary fire wardens, and other assorted peace officers whose duties differ from traditional local policing.

The Legislature, in imposing this requirement, made a connection between increasing the minimum age of peace officers, and the aim of minimizing the use of deadly force.  It noted that it has “repeatedly relied on neurological research with respect to criminal sentencing law reflecting a growing understanding that cognitive brain development continues well beyond age 18 and into early adulthood.  Scientific evidence on young adult development and neuroscience shows that certain areas of the brain, particularly those affecting judgment and decisonmaking, do not develop until the early to mid-20s.”  The Legislature continued by noting that law enforcement officers are required to make split-second decisions in dangerous situations, and that a young adult whose brain is still developing may struggle to make quick judgments.

AB 89 also creates Penal Code section 13511.1, which takes steps towards a goal of imposing new minimum educational requirements to be hired as a peace officer, of either a bachelor’s degree or a “modern policing” degree from a California community college, but appears to stumble.

In support of this goal, the Legislature noted that “a study has shown that better educated officers perform better in the academy, receive higher supervisor evaluations, have fewer disciplinary problems and accidents, are assaulted less often, and miss fewer days of work than their counterparts.”

Penal Code section 13511.1 requires the office of the Chancellor of the California Community Colleges to submit a report to the Legislature by June 1, 2023 making recommendations regarding this “modern policing” degree program.  POST, stakeholders from law enforcement, including both management and employee representatives, California State University, including administration and faculty, and community organizations are to serve as advisors to the Office of the Chancellor.

There are some specific requirements for the Chancellor’s recommendations:

  • First, the modern policing degree must focus on courses pertinent to law enforcement, which the Legislature determined shall include, but not be limited to, psychology, communications, history, ethnic studies, law, and courses determined to help develop necessary critical thinking skills and emotional intelligence. These course areas are generally consistent with the required curriculum for a college degree in criminal justice at institutions such as Marymount California University and California State University-Los Angeles.
  • Second, the recommendations must include allowances for prior law enforcement experience, work experience, postsecondary education, or military experience to satisfy the minimum eligibility requirement for peace officer employment. It is not clear if experience could qualify for credit toward a degree — the recommendation is that experience will count toward the eligibility requirement, as opposed to the degree, but the statute also seeks to establish a degree as an eligibility requirement.
  • Third, the recommendations must recommend that the modern policing degree or a bachelor’s degree be adopted as minimum education requirements for employment of a peace officer. POST has no discretion to make a different recommendation.  It is not clear why the Legislature mandated POST to make this recommendation to the Legislature rather than enacting the minimum education requirement itself.
  • Fourth¸ they must include recommendations to adopt financial assistance for students of historically underserved and disadvantaged communities with barriers to higher education.

As of March 29, 2022, the only mention of this program on the Chancellor’s website is an item on the agenda for the Board of Governors of the community colleges’ March 21 meeting, indicating that the Chancellor’s office circulated a survey to the colleges on this and other issues to campus policing, and received responses from less than 14% of the colleges.

The statute next requires that, within two years of the submission of the recommendations to the Legislature, POST “shall” approve and adopt education criteria “based on” the Chancellor’s recommendation – which must recommend a minimum requirement of either the modern policing degree or a bachelor’s degree.  Some observers question whether POST actually has the authority to impose, by regulation, a higher educational standard than currently required by Government Code section 1031, subd. (e), which sets a minimum of a high school diploma or equivalent.

Further, as shown by the delay of the bias-screening regulations under AB 846, which are still not in effect four months after the statutory deadline, legislation requiring a regulatory agency to issue a regulation does not necessarily cause a regulation to be effectuated timely.

Thus, while it is clear that the Legislature desires higher education to be a prerequisite to employment as a police officer or deputy sheriff, whether or not this requirement is actually in effect by June 2025 remains to be seen.

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