This article was originally published in October 2019.  The information has been reviewed and is up-to-date as of October 2023.

Many workplaces and schools engage in Halloween celebrations, and with good reason.  LCW is no exception:

However, Halloween parties can be scary for risk managers, as they carry the potential to put a few skeletons in an employer’s closet.  Here are some tricks to keep your Halloween party from raising the specter of liability:

  • Employees Should Know They are Free to “Ghost”.  Participation in any Halloween festivities should be entirely optional.  Employees may not feel comfortable celebrating Halloween; for some employees, it may be prohibited by their religious beliefs.  Nobody should be required to take part, and an employer should not tolerate teasing or ostracism of an employee who opts out.  It’s only fun if everyone’s having fun.
  • When Choosing Costumes, Don’t Let the Zombies Eat Your Brain.  Dracula, Frankenstein, Mickey Mouse, Elsa and/or Anna, a cowboy, an M & M, a puppy, any of the three PJ Masks. . . there are nearly unlimited options for inoffensive Halloween costumes.  And yet, every year, some ghouls make the news by wearing costumes that would give any employer nightmares.  Human Resources professionals can reduce this risk by providing common-sense guidance as to what is an appropriate costume for a Halloween celebration at the office:
    • An attempt to “wear” or parody another culture, religion, race, or identity is not a costume; it’s an exhibit in someone else’s lawsuit for harassment or discrimination.  It should go without saying that blackface or brownface is unacceptable.  The same is true of traditional cultural dress.  A good costume does not make one’s colleagues feel caricatured, mocked, or belittled for their protected characteristics.  On the other hand, an employee should not be prohibited from wearing expressions of his or her own identity.  Context matters.
    • At some point, Halloween shifted from being an opportunity for kids to get free candy to an opportunity for adults to free themselves of their inhibitions.  Inhibitions can be a good thing at work.  A Halloween costume should not expose any part of an employee’s body that ordinary work clothes would not.  If a costume is described by the seller as “sexy” or some euphemism therefor, it is probably better saved for a non-work outing.  Bottom line: the provisions of the employer’s dress code related to appropriate attire still apply.
  • No Creepy Behavior.   Despite HR’s best efforts, some employees may wear provocative costumes to the office.  This does not give other employees license to make comments or engage in conduct that would otherwise violate the employer’s harassment or other conduct policies.  If the behavior is beyond the pale, Halloween does not provide a get-out-of-Hades-free card.
  • Stay Safe Out There. If your employees work with equipment that may impact their health or safety, extra care should be taken to ensure that costumes do not imperil employees.  Some Halloween revelers like to accessorize costumes with fake weapons; realistic-looking toys could cause legitimate fear; these should not be allowed.

If an employer utilizes these few simple tricks, the office Halloween party should be a treat, and the only stomachache a risk manager should suffer is from raiding the candy bowl.

The California Civil Rights Department recently modified the regulation (2 CCR § 11017.1) associated with California’s Fair Chance Act.  The regulation addresses an employer’s restrictions and obligations for considering an applicant or employee’s criminal history.  The modified regulation took effect on October 1, 2023.

Employers should be aware of the modifications to this regulation, and should review their current hiring policies and practices and make any necessary or appropriate revisions.  We discuss some of the key modifications and clarifications below.

Modifications & Clarifications to the Individualized Assessment

California’s Fair Chance Act generally prohibits employers from inquiring about or using an applicant’s criminal history before the employer makes the applicant a conditional offer of employment, with some limited exceptions.

When an employer intends to deny an applicant due to conviction history (either solely or in part) a position it conditionally offered to the applicant, the employer must first conduct an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.  As part of the individualized assessment, the employer must consider, at minimum, the following factors:

  1. The nature and gravity of the offense or conduct;
  2. The time that has passed since the offense or conduct and/or completion of the sentence; and
  3. The nature of the job held or sought.

The modified regulation provides examples of the types of information that employers may consider for each of the above factors.  First, consideration of the nature and gravity of the offense or conduct may include:

  • The specific personal conduct of the applicant that resulted in the conviction;
  • Whether the harm was to property or people;
  • The degree of the harm (e.g., amount of loss in theft);
  • The permanence of the harm;
  • The context in which the offense occurred;
  • Whether a disability, including but not limited to a past drug addiction or mental impairment, contributed to the offense or conduct, and if so, whether the likelihood of harm arising from similar conduct could be sufficiently mitigated or eliminated by a reasonable accommodation, or whether the disability has been mitigated or eliminated by treatment or otherwise;
  • Whether trauma, domestic or dating violence, sexual assault, stalking, human trafficking, duress, or other similar factors contributed to the offense or conduct; and/or
  • The age of the applicant when the conduct occurred.

Second, consideration of the time that has passed since the offense or conduct and/or completion of the sentence may include:

  • The amount of time that has passed since the conduct underlying the conviction, which may significantly predate the conviction itself; and/or
  • When the conviction led to incarceration, the amount of time that has passed since the applicant’s release from incarceration.

Third, consideration of the nature of the job held or sought may include:

  • The specific duties of the job;
  • Whether the context in which the conviction occurred is likely to arise in the workplace; and/or
  • Whether the type or degree of harm that resulted from the conviction is likely to occur in the workplace.

The modified regulation states that an applicant’s possession of a benefit, privilege, or right required for the performance of a job by a licensing, regulatory, or government agency or board is probative of the applicant’s conviction history not being directly and adversely related to the specific duties of that job.

The modified regulation also requires employers to consider any evidence of rehabilitation or mitigating circumstances that is voluntarily provided by the applicant, or by another party at the applicant’s request, before or during the individualized assessment.

Modifications & Clarifications to Employer’s Notice Obligations

The modified regulations also amend and expand upon an employer’s notice obligations when, after conducting the individualized assessment, the employer makes a preliminary decision that the applicant’s conviction history disqualifies the applicant from the employment conditionally offered.  In that event, an employer is required to provide written notice to the applicant that contains all of the following:

  1. Notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer.
  2. A copy of the conviction history report utilized or relied on by the employer, if any (e.g., consumer reports, credit reports, public records, results of internet searches, news articles, or any other writing containing information related to the conviction history that was utilized or relied upon by the employer).
  3. Notice of the applicant’s right to respond to the notice before the preliminary decision rescinding the offer of employment becomes final.
  4. An explanation informing the applicant that, if the applicant chooses to respond, the response may include submission of (a) evidence challenging the accuracy of the conviction history report that is the basis for the preliminary decision to rescind the offer, or (b) evidence of rehabilitation or mitigating circumstances.
  5. Notice of the deadline for the applicant to respond, if the applicant chooses to do so, which must be at least five business days from the date of the applicant’s receipt of the notice (the modified regulation provides direction on determining when notice is received based on various methods of transmission).

The modified regulation provides a number of examples of evidence, including documentary evidence, of rehabilitation or mitigating circumstances that applicants may provide.  Employers cannot require applicants to provide evidence of rehabilitation or mitigating circumstances.  If, however, applicants choose to provide that information, employers must accept it.

The modified regulation further prohibits employers from taking a number of actions during this process, including:

  1. Requiring an applicant to provide a specific type of documentary evidence (e.g., a police report as evidence of domestic or dating violence);
  2. Disqualifying an applicant from the employment conditionally offered for failing to provide any specific type of documents or other evidence;
  3. Requiring an applicant to disclose their status as a survivor of domestic or dating violence, sexual assault, stalking, or comparable statuses; and/or
  4. Requiring an applicant to produce medical records and/or disclose the existence of a disability or diagnosis.

As under the prior regulation, if an applicant provides timely written notice to the employer that the applicant disputes the accuracy of the conviction history and is taking specific steps to obtain evidence supporting the applicant’s assertion, then the applicant must receive at least five additional business days to respond before the employer’s decision to rescind the conditional employment offer becomes final.

Also as under the prior regulation, employers must consider any information submitted by the applicant before making a final decision regarding whether or not to rescind the conditional offer of employment.  The modified regulation, however, provides that when considering evidence of rehabilitation or mitigating circumstances, employers may consider the following factors in addition to those set forth above as part of the individualized assessment:

  1. When the conviction led to incarceration, the applicant’s conduct during incarceration, including participation in work and educational or rehabilitative programming and other prosocial conduct;
  2. The applicant’s employment history since the conviction or completion of sentence;
  3. The applicant’s community service and engagement since the conviction or completion of sentence, including but not limited to volunteer work for a community organization, engagement with a religious group or organization, participation in a support or recovery group, and other types of civic participation; and/or
  4. The applicant’s other rehabilitative efforts since the completion of sentence or conviction or mitigating factors.

Employers remain obligated to provide written notice to an applicant when the employer makes a final decision to rescind the conditional offer and deny an application based solely or in part on the applicant’s conviction history.  Employers may use the sample Final Notice to Revoke Job Offer form, and other forms, from the California Civil Rights Department.

Expanded Definition of “Applicant”

The modified regulation expands the definition of “applicant” to generally include:

  1. Any individual who files a written application or, where an employer or other covered entity does not provide an application form, any individual who otherwise indicates a specific desire to an employer or other covered entity to be considered for employment;
  2. Individuals who have been conditionally offered employment, even if they have commenced employment when the employer undertakes a post-conditional offer review and consideration of criminal history;
  3. Existing employees who have applied or indicated a specific desire to be considered for a different position with their current employer; and
  4. An existing employee who is subjected to a review and consideration of criminal history because of a change in ownership, management, policy, or practice.

Certain Positions Remain Exempt from the Pre-Conditional Offer Inquiry/Use Prohibition

Under the modified regulations, certain positions continue to be exempt from the prohibition on pre-conditional offer criminal history inquiry and use.  For example, employers may continue to inquire about or use criminal history before a conditional offer of employment for positions with criminal justice agencies, or for positions for which a state, federal, or local law requires an employer to conduct criminal background checks or to restrict employment based on criminal history.

The modified regulations do, however, clarify that in order for the exemption to apply for positions for which a state, federal, or local law requires an employer to conduct criminal background checks or to restrict employment based on criminal history, the applicable law must require that the employer – and not another entity (e.g., an occupational licensing board) – conduct the criminal background check.

Modifications & Clarifications to the “Job Related and Consistent with Business Necessity” Burden Shifting

If an applicant or employee demonstrates that an employer’s policy or practice of considering criminal convictions creates an adverse impact on applicants or employees based on classifications protected by the Fair Employment and Housing Act, the burden shifts to the employer to establish that the policy or practice is nonetheless justifiable because it is job-related and consistent with business necessity.  In doing so, the employer must take into account at least the following factors:

  1. The nature and gravity of the offense or conduct;
  2. The time that has passed since the offense or conduct and/or completion of the sentence; and
  3. The nature of the job held or sought.

The modified regulation clarifies that if an employer demonstrates that its policy or practice of considering criminal convictions is job-related and consistent with business necessity, adversely impacted employees or applicants may still prevail in a claim against the employer if they can demonstrate that there is a less discriminatory policy or practice that serves the employer’s goals as effectively as the challenged policy or practice, such as a more narrowly targeted list of convictions or another form of inquiry that evaluates job qualification or risk as accurately without significantly increasing the cost or burden on the employer.

Final Note

As this article does not address every aspect of the modified regulation, employers are encouraged to contact trusted legal counsel to assist with fully understanding all of the modifications and their impact on the employer’s hiring policies and practices.

Editorial note: On October 8, 2023, Governor Newsom vetoed AB 504. His veto message stated, “Unfortunately, this bill is overly broad in scope and impact. The bill has the potential to seriously disrupt or even halt the delivery of critical public services, particularly in places where public services are co-located. This could have significant, negative impacts on a variety of government functions including academic operations for students, provision of services in rural communities where co-location of government agencies is common, and accessibility of a variety of safety net programs for millions of Californians.


Pending California Assembly Bill 504 (Reyes) proposes to establish a fundamental right for public employees to engage in a “sympathy strike.” The bill would amend the Government Code to provide the right of public employees to demonstrate solidarity with other public employees by honoring a strike, or by refusing to enter upon the premises of or perform work for a public employer engaged in a primary strike. The bill has been passed by the state legislature and presented to the Governor for signature.

Under current law, public employers and unions can agree to “no strike” provisions that prohibit sympathy strikes. Under the pending legislation, such agreements would be voided and parties would be required to negotiate new provisions.

This blog post critiques AB 504, which is currently awaiting signature by the Governor. The post first describes how existing law prevents “essential services” workers from striking, and how public employers can negotiate line worker agreements and petition PERB to seek an injunction when such workers threaten to do so. This post describes that, under existing, law, this process is already burdensome and in many cases ineffective. This post then explains how AB 504 will make the process even more unworkable, and thereby disserve the public interest. The right of workers to strike is valuable, but AB 504 is not the way honor it.

Current Limitations on the Ability of Essential Employees to Strike

California public employees represented by labor unions have the legal right to strike. There are a few exceptions where certain employees are prohibited from striking because they are essential to public health and safety.

 “Essential services” are services essential to protect the health or safety of the public during a strike. Police officers and firefighters are obvious examples of employees who are essential to public safety. However, other public servants have also been found to be essential during a labor strike. These are typically positions staffed around the clock, such as 911 dispatchers, cooks in detention facilities, staff of special care homes, social workers in charge of emergency child welfare, and animal control officers. Essential positions may also include legal processors in criminal courts, water treatment operators, victim advocates, and IT professionals in charge of public safety technology.

The Current Procedure to Maintain Essential Services During a Strike

 Whether employees are essential is considered a “complex and fact-intensive matter.” An employer must clearly demonstrate that disruption of services for the length of the strike would imminently and substantially threaten public health or safety. This determination requires a case-by-case analysis to determine whether the public interest overrides the right to strike.

During a strike, PERB requires that employers make all possible service reductions and consider all “other personnel” who can perform the essential services. “Other personnel” include supervisors, managers, exempted line workers, temporary employees, unrepresented employees, employees represented by non-striking bargaining units, and contractors. If “other personnel” can perform the duty in the event of a strike, generally PERB will not pursue injunctive relief to enjoin striking employees on behalf of the public employer.

Because the extent to which “other personnel” are available to provide essential services is relevant to a request to enjoin essential employees, the ability of any employee to participate in a sympathy strike complicates an employer’s efforts to maintain essential services during a strike.

Procedural Flaws Already Risk the Ability of Employers to Maintain Essential Services

Even with the law as it exists now, the process for an employer to have essential employees enjoined from striking is lengthy and in many cases ineffective. The steps are:

(1) An employer must consider “other personnel” available for coverage, and attempt to negotiate with the striking union to voluntarily exempt some employees from striking (“line workers”);

(2) An employer must file an unfair practice charge (UPC) with PERB asserting that a strike which will threaten public health or safety is imminent, along with a list of any essential positions not covered by “other personnel” or “line workers;”

(3) PERB will evaluate the UPC and decide whether to pursue injunctive relief in superior court to enjoin essential workers from striking;

(4) If PERB agrees that a strike threatening public health or safety is imminent, PERB will file a petition with superior court to enjoin essential employees from striking; and

(5) The superior court will rule on petition for injunctive relief.

This procedure is already in many cases ineffective for a number of reasons. For example:

  • The California Supreme Court has determined that 72 hours’ notice of a strike gives PERB sufficient time to process a petition and seek injunctive relief. While PERB may be able to file a petition in superior court within 72 hours, it is questionable whether a court can make and enforce a ruling within that time frame. Likely, the parties will still be litigating injunctive relief in court after the strike has begun.
  • There is no real recourse for employers to address line workers who fail to appear for work during a strike. While an employer can consider post-strike discipline or an unfair practice charge, by then, the damage to public health and safety is already done.

Likely Confusion from AB 504

AB 504 will create further delay and difficulty in an already burdensome process, further threatening an employers’ ability to maintain essential services.

1. An Employer’s Assessment of “Other Personnel” Available for Coverage Will Be Thwarted.

PERB requires employers to consider coverage options from “other personnel” before petitioning to enjoin a striking employee. However, if any of the “other personnel” can go out on a sympathy strike at any time, it is unclear how employers can make this determination. An employer cannot reasonably rely on “other personnel” if they can decide to go out on a sympathy strike at any time.

If an employer is required to negotiate with, and/or petition to enjoin “other personnel” who can perform essential services during a strike, this will delay an employer’s ability to petition PERB to enjoin essential employees.

Employers will have no timely recourse to address “other personnel” who at first voluntarily agree to cover essential services, and later decide to sympathy strike, putting essential services at risk.

2. Jurisdiction is Unclear.

A public entity’s claim that a threatened public employee strike is illegal generally constitutes an unfair labor practice claim, and therefore the claim, along with the determination of which employees are essential to public health and safety, comes within PERB’s initial jurisdiction.

The amended legislation states that it “does not alter existing law relating to strikes by essential employees as set forth in judicial decisions and decisions of PERB, as promulgated or revised from time to time.” And, PERB has jurisdiction over the chapter of the Government Code which would authorize sympathy strikes under AB 504.

However, under the pending legislation, where an unrepresented employee decides to assert the right to engage in a sympathy strike, no unfair practice will have been committed. Arguably, if an unfair practice claim is not at stake, PERB may not have jurisdiction to decide whether to pursue injunctive relief to enjoin a potential sympathy striker from striking who is (1) represented by a non-striking union or (2) unrepresented. It may be that the employer should file such petitions directly in superior court rather than with PERB. At this point, jurisdiction is murky.

3. Additional Steps Convolute an Already Dysfunctional Process.

The likely additional steps required of a public employer under AB 504 to negotiate with individual sympathy strikers and potentially file separate petitions to enjoin sympathy strikers adds to the already burdensome process employers must follow to protect essential services during a strike. This increases the likelihood that essential workers will not be enjoined before a strike starts, and that public health and safety services will go uncovered.

While the right to strike is an important protected right, it should not be at the cost of public health and safety. If this bill is signed by the Governor, these procedural questions will need to be addressed without delay in order to protect the public and vulnerable residents of local communities.

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.

Flight attendant Charlene Carter sued her employer and her union alleging, among other things, that they discriminated against her on the basis of religion, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”).  In July 2022, a jury awarded Ms. Carter $5.1 million.  This sum appears to be consistent with the increase in “nuclear verdicts” (that is, jury awards that far exceed expected reasonable or rational amounts), a phenomenon that has raised serious questions and concerns in recent years.  But that jury award is not at issue here.  After all, in December 2022, the Court reduced it significantly to $810,000.  Rather, at issue here is a Texas federal district court’s order imposing very specific “training” sanctions against three attorneys.

The “training” sanctions saga stems from the Court’s order that Ms. Carter’s employer, Southwest Airlines Co. (“Southwest”), notify flight attendants of Title VII’s prohibition against discrimination on the basis of religion.  Southwest did issue a notification, which read: “the court ordered us to inform you that Southwest does not discriminate against our Employees for their religious practices and beliefs.”  (Internal punctuation and emphasis omitted.)  On August 7, 2023, the Court made its disapproval of the notification abundantly clear, writing:

It’s hard to see how Southwest could have violated the notice requirement more. Take these modified historical and movie anecdotes.  After God told Adam, “[Y]ou must not eat from the tree [in the middle of the garden],” imagine Adam telling God, “I do not eat from the tree in the middle of the garden”—while an apple core rests at his feet.  Or where Gandalf bellows, “You shall not pass,” the Balrog muses, “I do not pass,” while strolling past Gandalf on the Bridge of Khazad-dûm.

The Court held Southwest in civil contempt, and ordered it to pay Ms. Carter’s attorneys’ fees (in connection with her Motion for Contempt and Motion to Compel Proceedings), to issue a revised notice (verbatim from the Court’s Memorandum Opinion and Order Granting Sanctions in 2023 U.S. Dist. LEXIS 136623), and, as relevant here, to send three in-house attorneys to “religious-liberty training.” 

But the Court’s order did not simply stop at “religious-liberty training.”  Rather, it specifically provided that the “training” shall be provided by the Alliance Defending Freedom (an organization that describes itself as “the world’s largest legal organization committed to protecting religious freedom, free speech, the sanctity of life, marriage and family, and parental rights”), and Southwest must provide transportation, accommodation, food, or other travel expenses for the representative providing the “training.”  The training shall also be entirely at the Alliance Defending Freedom’s discretion; the organization may choose both the representative and the time set for it.

Judge Brantley Starr’s highly specific “training” sanctions did not go unnoticed.  Fix the Court, a judicial reform advocacy group, filed a complaint against Judge Starr with the Fifth Circuit Judicial Council.  Several major news outlets reported on the case and on Judge Starr’s order that the “training” be conducted by an ideologically-affiliated organization.  For its part, Southwest is currently appealing the order.  Whether the Fifth Circuit will ultimately permit it to stand remains an open question.

While the Fifth Circuit’s decision is pending, California attorneys and employers may be wondering whether they, too, may face similar “training” sanctions.  The short answer is: “training” sanctions, likely yes in certain circumstances; similar to those imposed in the Texas federal district court, likely not. 

Federal Rule of Civil Procedure 11, subdivision (c)(1) (“Rule 11”) expressly provides for “appropriate sanctions” against attorneys and litigants alike, stating in relevant part: “the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation.”  Further, as noted in Carter, at least one California district court has already imposed training sanctions in the past, citing to Rule 11, 28 U.S.C. section 1927, and the inherent powers of the courts.  (See Moser v. Bret Harte Union High Sch. Dist. (E.D.Cal. 2005) 366 F.Supp.2d 944.)  However, as in Moser, such sanctions will more likely than not entail training provided by State Bar of California-approved programs (among which attorneys and/or litigants may choose) rather than training provided by ideologically-affiliated organizations.

To reduce the risk of incurring “training” or any other types of sanctions, California employers are encouraged to consult with experienced legal counsel in connection with complex legal questions, in particular as they pertain to Title VII’s or the Fair Employment and Housing Act’s prohibitions against discrimination, harassment, and retaliation.

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

On August 21, 2023, the California Supreme Court’s decision in Raines v. U.S. Healthworks Medical Group significantly expanded the scope of potential liability under the Fair Employment and Housing Act (“FEHA”) to an employer’s business-entity agents that have five or more employees. 

Case Background and Analysis

Plaintiffs Kristina Raines and Darrick Figg brought a class action lawsuit.  Raines received an employment offer from Front Porch Communities and Services, and Figg received an employment offer from the San Ramon Valley Fire Protection District.  Both of their offers were conditioned on passing a pre-employment medical screening that would be conducted by defendant U.S. Healthworks Medical Group (USHW).  Plaintiffs alleged the screening included a questionnaire that had many questions about their health information with no relation to their ability to perform their jobs.  Raines alleges that after she refused to answer questions about her last menstrual period, the exam was terminated and her employment offer was revoked.  Figg alleges he answered all the questions and was hired.  Plaintiffs believed the screening tests were overbroad and unrelated to the functions of any job, and sued the testing company USHW alleging the examinations violated FEHA, even though they were not employees of USHW.

Plaintiffs’ lawsuit was filed in state court, but removed to federal court, and among other things, alleged claims under FEHA.  Section 12940(e) of FEHA generally prohibits an “employer” from requiring pre-employment medical or mental examinations of applicants or making “any medical or psychological inquiry” of an applicant; however, such exams and inquires may be made “after an employment offer has been made but prior to the commencement of employment duties, provided that the examination or inquiry is job related and consistent with business necessity and that all entering employees in the same job classification are subject to the same examination or inquiry.”  FEHA section 12926(d) defines “employer” to “include[] any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly . . . .”  

The federal district court dismissed the FEHA claim, finding that FEHA does not impose liability on agents of an employer.  Plaintiffs’ appealed the dismissal to the United States Court of Appeals for the Ninth Circuit. 

The Ninth Circuit heard oral argument and then asked the California Supreme Court to answer this question:  “Does California’s Fair Employment and Housing Act, which defines ‘employer’ to include ‘any person acting as an agent of an employer,’ Cal. Gov’t Code § 12926(d), permit a business entity acting as an agent of an employer to be held directly liable for employment discrimination?”  In the opinion of August 21, 2023, the California Supreme Court answered yes.  The court explained that the plain meaning and legislative history of FEHA, federal antidiscrimination laws, and public policy support the conclusion that an employer’s business-entity agents with at least five employees that “carr[y] out FEHA-regulated activities on behalf of an employer” can fall within FEHA’s definition of “employer” and may be directly liable for FEHA violations.  The Court specifically stated that it was not deciding the significance of any employer control over the agent’s acts that gave rise to the FEHA violation and whether its decision applies to business-entity agents with fewer than five employees.

What’s next on the horizon after Raines?

Public agencies, like other employers, routinely rely on business-entity agents to assist with employment and human resource tasks – such as pre-employment, post-offer medical and psychological examinations, fitness for duty examinations, recruiting, screening candidates, interviewing, the disability interactive process, and administering workers’ compensation or disability insurance claims.  After Raines, when these business-entity agents engage in FEHA violations, they may be directly liable for violations of FEHA.  Thus, they can not only subject the employer to FEHA liability, they can also now be directly liable themselves under Raines if they have at least five employees.  As a result, agencies may now see indemnification and hold-harmless provisions in contracts with these agents for these services.  In addition, many of these business-entity agents providing these services may be large corporations with deep pockets.  In Raines, the court notes that “plaintiffs allege that USHW … are large business enterprises operating on a national scale,” which factored into the Court’s decision.  When private business-entities with ample resources are engaged in FEHA-activities, individuals may have more incentive to bring lawsuits for perceived violations, against both the agent, and public entity employer.  (In Raines, Raines also sued the employer, but reached a settlement, and her lawsuit proceeded against the testing company).

Clear the fog when conducting pre-employment post-offer medical exams

The plaintiffs in Raines alleged questions on their health history questionnaire included asking about venereal disease, penile and vaginal discharge, problems with menstrual periods, diarrhea, constipation, and painful/frequent urination.  Under FEHA, pre-employment post-offer medical inquiries must be job related and consistent with business necessity.  Plaintiff Raines applied to be a food service aide who had routine kitchen staff duties, and Plaintiff Figg to serve as a member of the Fire Protection District’s volunteer communication reserve. In both situations, it is hard to see how these questions could all be job related and consistent with business necessity, yet broadly worded inquiries like this are often made in these types of examinations. 

While public agencies may have legitimate concerns for pre-employment medical examinations to protect their employees and members of the public, narrowly tailoring the inquiry and limiting it to job related questions can be challenging – and can lead to litigation.  The examination scope is especially critical when the examination is focused on evaluating an applicant’s mental or psychological fitness for a job, because it can easily lead to claims of discrimination against mental disabilities.  Since public agencies often contract with third party providers to administer these examinations, it is essential public agencies stay vigilant and fully understand the nature and scope of the protocols the third party providers are using to ensure the examinations are always job-related and consistent with business necessity.

In Texas v. Johnson, the Supreme Court summarized the “bedrock principle” of the First Amendment: “that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” But what if the idea is being pushed by an all-knowing algorithm . . . and the idea being pushed is NyQuil chicken?

TikTok has grown in popularity in recent years among a wide range of demographics. Its users often find themselves in niche categories such as BookTok, Cottagecore, and ThriftTok via one of the app’s most notable features: the algorithm.

Through the algorithm, TikTok provides users with a never-ending flow of videos that are curated to the user’s interests. The algorithm’s ability to know almost exactly the content a user may want to consume is both irresistible and uncanny. This early stage machine omniscience prompted scrutiny from local and federal government agencies.

Scrutiny on Data Security

Perhaps the most newsworthy issue is users’ security. ByteDance, TikTok’s parent company, maintains its headquarters in Beijing and is incorporated in the Cayman Islands. Unsurprisingly, this ownership structure has raised some eyebrows. For example, the House Energy and Commerce Committee held a congressional hearing earlier this year and grilled TikTok’s CEO with their safety concerns.

With the increased scrutiny came increased regulation. President Joe Biden signed legislation that banned the app from government devices. Other countries in the “Five Eyes” security alliance (the intelligence alliance composed of Australia, Canada, New Zealand, the United Kingdom and the United States) enacted similar steps. Effective this new year, Montana will ban the app in the entire state including for private individuals.

While many dismiss the actions as unnecessarily alarmist, there are bits of validity in the concerns. Last year, TikTok admitted to using app data to track down journalists’ sources when ByteDance used the app’s records to access journalists’ IP addresses to see if they were in the same location as employees suspected of leaking information. Last month, users of ByteDance’s video editing app CapCut sued the company alleging privacy concerns. According to the complaint, CapCut harvests “unique identifying information, biometric data, geolocation, telephone numbers, and other private or confidential data, in violation of state and federal consumer protection laws.”

One after another, countless government entities—countries, states, universities—began banning TikTok from government devices. Can your agency do the same?

My Device, My Choice

As a general rule, public agencies should have policies regulating employee use of agency-owned e-mail accounts, computers, and other devices. These policies should advise that employees have no expectation of privacy or right of privacy concerning their activities on agency-owned devices. This takes care of potential liability for a claim of invasion of privacy.

Besides the privacy concern, employees may argue that banning a social media platform on agency devices restricts their freedom of expression. In the context of agency-owned devices, the focus for a First Amendment analysis is on whether the agency, by supplying devices with access to other social media, created a designated or limited “public forum.”

The agency can avoid the risk of creating a designated or limited “public forum” by instituting an “Acceptable Use” policy. This policy should restrict use of agency-owned devices to work-related purposes only, with an accommodation for incidental personal use. It can even explicitly state that the devices do not create any types of public fora. This allows the agency to discipline employees for breaking the Acceptable Use policy, and not for any protected speech. So, an employee who decides to use an agency-owned device to engage in speech on TikTok would not be disciplined for engaging in the protected speech. Instead, the employee can be disciplined for violating the Acceptable Use policy.

Don’t Take it Personal

It is much harder to regulate an employee’s use of their personal devices on their own personal time—including whether or not the employee chooses to install TikTok on their devices. The ongoing litigation over Montana’s statewide ban of the app from government and personal devices illustrates these challenges.

Employees likely have a reasonable expectation of privacy in the contents of their personal devices. Under California Labor Code, section 980, employers cannot even require employees or applicants to disclose their social media accounts.

Employers face another uphill battle on the free expression front. Employees may argue that any security concern can be mitigated by prohibiting employees from bringing their personal devices into the workplace. Outside the workplace, they can then argue, any restrictions on TikTok serve only to restrict the employee’s ability to engage in free expression.

Consequently, restricting TikTok on employees’ personal devices is likely inadvisable. Still, there are varying levels of security concerns depending on the various policies an agency may impose on use of personal devices. For example, an agency may allow employees to use their personal devices to access agency-owned email accounts, payroll services, or scheduling apps. An agency may also, instead of supplying a device, reimburse the employee for their existing personal device. These situations open up a multitude of issues to consider. If your agency decides that there is value in restricting TikTok from personal devices, such a decision should be guided by legal counsel.

Should your employees be on TikTok?

The threshold choice of restricting TikTok in the workplace is largely a policy decision. Agencies should consider the potential security concerns and determine if employees’ use of TikTok might put the agency’s data at risk.

Restricting TikTok involves several factors such as whether the agency owns the employees’ devices, the level of data security risk relative to the employee’s position and duties, and even the potential benefit of social media for marketing opportunities. Implementing these policy decisions requires comprehensive analysis of several factors unique to each agency and should be undertaken with guidance from legal counsel familiar with the issues.

Employers know all too well the negative impact that excessive employee absences can have on the workplace.  With just a month left of summer, major concerts touring, and back-to-school on the horizon, employers are likely to see many employees using up more of their paid time off as they squeeze in their final vacations and prep for the fall.  But what happens when an employee is excessively absent, or an employer suspects an employee is abusing their leave?  And how do protected leaves come into play?  This blog will discuss best-practices for recognizing and responding to employee absenteeism while lawfully navigating protected leave laws.

What is absenteeism?

Generally speaking, absenteeism is the failure to report to work as scheduled.  It includes all forms of absences, as well as employee tardiness.  It does not, however, include issues that occur (such as lack of productivity or focus) while an employee is at the workplace.

How can an employer determine if an employee’s absences are excessive?

Several methods can help an agency calculate whether absence is excessive.  The simplest way is to calculate the average amount of leave employees take as a whole, and then determine if any individual employee’s absences are well above that average.  However, if the employer feels there is an excessive absence issue agency-wide, then the overall average may not reflect an acceptable standard.  In that case, looking at the ratio of scheduled days/hours worked versus the actual days/hours worked may be best.  It’s important to remember that absenteeism can be excessive even when an employee is still able to draw upon accrued leave accounts, i.e., sick leave, vacation leave, or compensatory time.  

How are excessive absences different from abuse of leave?

Unlike excessive absences, abuse of leave deals with using leave only for an illegitimate purpose.  This can include misrepresenting what the leave is used for, taking improperly extended breaks or lunches, tardiness, falsified medical notes, or otherwise unauthorized leave.  Sometimes a pattern in an employee’s absences can indicate an abuse of leave.  For example, if an employee regularly and exclusively calls out sick on Fridays or Mondays.

Are there any activities that cannot be considered when examining an employee’s absenteeism?

Yes.  Protected leaves, or leaves that are “protected” by law which employees are entitled to take regardless of Department policy, must be excluded from any definition of excessive/ abuse of leave.  All of the protected leave laws, including the Family and Medical Leave Act (FMLA), California Family Leave Act (CFRA), and California Pregnancy Disability Leave (PDL) law expressly prohibit any form of discipline in response to the exercise of a protected leave right. 

Absences related to reasonable accommodations under the Americans with Disabilities Act (ADA) and leave related to workers’ compensation or an industrial injury are two very common protected leaves that cannot be considered when analyzing an employee’s potentially excessive absence.  Some other common protected leaves include those for:

  • Appearance at a child’s school (Labor Code 230.8 allows an employee to use up to 40 hours of personal leave, vacation, or comp time, but no more than 8 hours a month (unless there is an emergency), to participate in their child’s education and/or school activities.  Labor Code section 230.7 allows a parent-employee to take time off to appear at their child’s school due to the child’s suspension.)
  • Military deployment
  • Attending jury duty
  • Voting

Employers should carefully evaluate whether an employee’s absence falls under a protected leave before instituting discipline related to excessive or abuse of leave.

What are the employer’s options if an employee is excessively absent or abusing their leave?

First, it’s important for employers to keep a written file of key information regarding employees’ absences or tardiness, including the date, time, and location of the incident, the employee’s reason for the absence or tardiness, and the employee’s efforts to obtain authorization.  This information will be crucial when pursuing any subsequent action.

If an employee is excessively absent, and any applicable Memorandum of Understanding (MOU) provision does not otherwise prohibit it, an employer can and should respond.  Not responding can establish a past practice or lead employees to think such absences are acceptable, when they are not.

If there is reason to believe the employee is suffering from a medical condition that prevents him/her from performing the essential functions of the position, a fitness for duty examination may be appropriate.

When apparent abuse of leave occurs, the best practice is for the employer to conduct an investigation.  In addition to misusing the leave, the employee might be violating Department policies related to dishonesty.  By investigating and uncovering all relevant facts, an employer increases the likelihood that any disciplinary action imposed will be sustained if an appeal is brought in the future.  That said, investigations into medical reasons are limited by laws such as the Confidentiality of Medical Information Act.  So employers should consult with legal counsel to ensure they are asking appropriate questions.

If it is ultimately determined that an employee’s absences violate agency attendance policy, then progressive discipline is another option an employer can pursue.

Other best practices:

  • Communicate acceptable standards with employees in advance. 
  • Have a clearly defined attendance/leave policy. 
  • Be consistent! Apply the standards equally across all employees when evaluating excessive or abuse of leave.  If an exception is made to the leave policy for one, it should be made for all employees.

In the end, the best offense is a good defense.  By clearly setting expectations with employees, utilizing a well-defined written policy, closely tracking attendance, and intervening early when potential issues arise, employers can help prevent absenteeism and avoid bad blood with employees in the future.