Many of us have been working from home longer than we ever could have anticipated when shelter-in-place orders were rolled out in March 2020.  As we’ve tried to settle into these going-on-five months of remote work, there is always room for improvement as to our work settings.  As we ease into accepting this as “normal” instead of the “new normal,” it’s important to keep in mind things that can make your remote workday as seamless and stress-free as possible in these unprecedented times.

Make Yourself Comfortable

There are lots of articles out there about how to make your Work-From-Home life better, and the answer is almost always the same: set a routine and stick to it.  Typical Do: wake up early and work out before you sit down at your designated workspace for the day.  Typical Don’t: just roll out of bed and show up to a meeting 2 minutes before the start time in your pajamas.   While this is great advice that should be followed if possible, it’s much easier said than done.

The best and easiest advice to implement: make yourself comfortable. Cut yourself some slack. Wear soft pants while you work if that makes you comfortable.  However, it is important to remember that depending on your job, dressing the part can actually make you feel more comfortable while you are working.  If you know you will be in a meeting with your video on, put on a button-up shirt instead of a t-shirt.  Dressing up can improve your mood and confidence at work.  Changing up your clothes can signal to your brain that it’s time to buckle down and get things done.  An easy hack: keep your most professional looking sweater, cardigan, or blazer on your home office chair and for easy access to put on in the event of unexpected video calls.  There is nothing more comforting than feeling confident and prepared at work.

Change Your Mindset About Video Conferencing

If your Zoom/virtual meeting would have been held in person prior to the pandemic, you should have your video camera on for the meeting.  A storied LCW partner once imparted these wise words of wisdom: you wouldn’t show up to an in-person meeting with a bag over your head, would you? It’s easy to show up with your profile picture or name as your representation in a meeting, but it’s important to change your mindset about how you decide to show up.  You are more likely to make connections and pay closer attention if you know the other participants can see that you are paying attention.  Plus, once you have a go-to sweater or blazer ready at your workspace, you will be ready for any video conference at the drop of a hat.

If you are doing a lot of video conferencing, try moving your designated workspace closer to a window or other natural light. Especially when some of us might not be going outside at all, being as close as possible to the outdoors and breathing fresh air can greatly help boost productivity (if you are fortunate enough to live far away from the California fires).  Make sure the light is in front of you, as sitting with your light source behind you will backlight you and likely will not be as flattering.

Stay Connected During Remote Work

Instead of the now-routine sing-song greeting of “how are you” and the response of “hanging in there,” try out some new topics for small talk.  Let’s face it, we are all hanging in there and we know it.  Instead of merely asking how someone is, try asking my favorite small talk question: “what are you excited about lately?”  Although many of us may feel that we don’t currently have too much to look forward to with so many of our summer events cancelled or closed, this question forces us to think about what we have going on now that we can be excited about.  Maybe it’s a hike that you have planned this weekend, or the take-out order that you’re looking forward to for lunch, or, like me, you are excited about binge-watching another season of Survivor.

It’s also important to still attend virtual events and connect with your co-workers.  As we get more comfortable having socially distanced walks, picnics, or even indulging in outdoor dining, it’s easy to let Zoom-fatigue stop you from attending virtual lunches or happy hours.  However, it’s also easy to let yourself go a full 24 hours (or more) without speaking to anyone at all! If your office doesn’t plan virtual events, take it upon yourself to reach out to talk to your colleagues for a moment about things other than work.  Ask them what they are excited about!  Our feelings of uncertainty about the future of our work lives can be eased by connecting with others.

For those of you reading this with kids at home who are starting off another school year in distance learning, my colleague Alison Kalinski wrote a blog post from earlier in the pandemic with more helpful tips about her admirable journey in finding balance between remote work and supervising remote learning.  You can find that post here.

So, what are you excited about? 

 As California battles close to 600 wildfires burning more than one million acres across the state, many areas are experiencing unhealthy and even very unhealthy air quality. During these conditions, employers must comply with the California Division of Occupational Safety and Health (CalOSHA) worker safety requirements to protect outdoor workers from wildfire smoke effects.

Section 5141.1 of Title 8 of the California Code of Regulations was adopted as an emergency regulation in July 2019, in response to devastating wildfires throughout California. Since that time, the emergency regulation has been extended twice by the Occupational Safety and Standards Board, and now expires on January 20, 2021.

The regulation applies to workplaces where the current Air Quality Index (AQI) for particulate matter (PM) 2.5 is 151 or greater. PM2.5 measures tiny particles in the air that measure an aerodynamic diameter of 2.5 micrometers or smaller, which pose significant health risk to a person’s lungs and heart.  A PM2.5 of 151 or greater is classified as unhealthy. Many areas in Northern California reached this level over this last weekend due to wildfires burning throughout the state.

To find the current and forecasted AQI for PM2.5, employers and employees can go to www.AirNow.gov and enter the zip code of the location where employees will be working. The current AQI is also available from the U.S. Forest Service at https://tools.airfire.org/ or your local air district, which can be located at www.arb.ca.gov/capcoa/dismap.htm.

While many employers are subject to the emergency regulation, certain workplaces and operations are exempt from its requirements, including:

  1. Enclosed buildings or structures in which the air is filtered by a mechanical ventilation system and the employer ensures that windows, doors, bays, and other openings are kept closed to minimize contamination by outdoor or unfiltered air;
  2. Enclosed vehicles in which the air is filtered by a cabin air filter and for which the employer ensures that windows, doors, and other openings are kept closed to minimize contamination by outdoor or unfiltered air;
  3. Workplaces where employees are only exposed to a current AQI for PM2.5 of 151 or greater for a short time of one hour or less during a shift; and
  4. Firefighters engaged in wildland firefighting.

According to CalOSHA regulations, when the AQI reaches unhealthy levels (PM2.5 of 151 or greater), employers that are not exempt from the regulations must take the following actions to protect outdoor workers:

  1. Monitor Levels of Smoke at Worksites: Employers must check AQI using the above methods before each shift and periodically thereafter, as needed to protect employee health. Employers may also choose to conduct their own direct measurements at the worksite using methods described in Appendix A of the regulation.
  2. Communicate with Employees: Employers are required to establish and implement a system for communicating wildfire smoke hazards to employees in a form that is readily understandable by all employees. The system must include effective procedures for informing employees of the current AQI for PM2.5, communicating protective measures available to employees to reduce exposure, and encouraging employees to inform the employer of worsening air quality as well as any adverse symptoms they may experience, such as asthma, difficulty breathing, and chest pain. Employers must encourage employees to inform the employer of wildfire smoke hazards at the worksite without fear of reprisal.

Appendix B of the regulation provides a sample policy listing mandatory information to be provided to employees.

  1. Train Employees: Employers must train employees on the health effects of wildfire smoke, how to check AQI levels, the employer’s communication system and methods of protection, how to access and use respirators provided by the employer, and the right to obtain medical treatment without fear of reprisal.
  2. Control Harmful Exposure: Employers must provide enclosed areas for employees to work, such as buildings, structures, or vehicles, where the air is filtered to a PM 2.5 of less than 151. Where this is not feasible, an employer must implement administrative controls such as relocating work to an area with an AQI of less than 151, changing work schedules, reducing work intensity, or providing additional rest periods.
  3. Provide Respiratory Protective Equipment: When the AQI is more than 151 but does not exceed 500, employers must provide employees with respirators that are approved by the National Institute for Occupational Safety and Health, such as N95 face pieces, for voluntary use, and must encourage employees to use them.

Where the current AQI for PM2.5 exceeds 500, respirator use is required.

  1. Update IIPP’s: Employers are required to supplement or integrate their Illness and Injury Prevention Plans (IIPP) with the requisite wildfire smoke protection information as detailed in the regulation.

Employers are advised to review the regulation at Section 5141.1 of Title 8 of the California Code of Regulations, and to take the above actions as soon as possible to comply with CalOSHA requirements.

Election day, November 3, 2020, is only several months off.  Almost all agree the election will be historic, with a high-level of public activity anticipated, whether through donations, rally participation, letter writing, buttons, t-shirts, banners, yard signs, word-of-mouth, or social media.  Protests and even civil disobedience are possible.  Election times present unique issues for California public employers.  The following is a short list of some of these issues, and a discussion of the relevant laws.

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

What if an agency employee posts public messages on Facebook, Twitter, or other social media platforms favoring one side in the election?  What if the messages use such lurid or harsh terminology or imagery that fellow agency employees or members of the public complain?  Political speech rests at the core of what the First Amendment protects, and Courts are extremely reluctant to allow a government agency to punish or attempt to censor the speech, even if the individual works for the government agency in question.

At the same time, statements by employees on social media that harm or threaten to harm the agency’s operations in a sufficiently severe way can serve as the basis for discipline, notwithstanding constitutional free speech protections.  Examples include statements on social media that give away important and legitimate confidential information of the agency and statements in which the employee wrongly states he or she speaks on the agency’s behalf.  Also, statements by law enforcement officers that show harsh prejudice or bias if made public may cause community members to fear the officer will not protect them, and may make fellow employees sufficiently uncomfortable in the workplace that the officer has effectively disrupted the agency’s operations.  The employee will not be able to claim First Amendment immunity from discipline just because the statements appeared in the course of a political discussion.

The same considerations apply to public employee conduct at protests and rallies that can tend to disrupt an agencies’ operations or sufficiently undermine its mission.  That said, Courts are unlikely to find that mere participation in these activities outside of work will be sufficient to justify discipline of the employee.

Under First Amendment principles, an employee cannot be disciplined for his or her 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, in essence, 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.”

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: “Except as otherwise provided . . . 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 has statutes that 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(a), 3252(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 the November election, and actually presents a good reason why this use advances a bone fide purpose of the agency?  They could claim educational benefit or public outreach.  Unsurprisingly, 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.

Time Off to Vote

This year will see large-scale efforts to facilitate voting by mail.  But in California counties, voting in-person will still serve as an option (potentially with a several-day span for voting to allow for social distancing).  Under California law, employees have the right to take enough time off from work to vote, if they are unable to do so during off-work hours that the polls are open.  Elections Code section 14000(a) provides: “If a voter does not have sufficient time outside of working hours to vote at a statewide election, the voter may, without loss of pay, take off enough working time that, when added to the voting time available outside of working hours, will enable the voter to vote.”  Section 14000(b) provides: “No more than two hours of the time taken off for voting shall be without loss of pay.”  (Emphasis added.)

Any additional time needed by the employee can be unpaid unless a collective bargaining agreement or personnel rule provides otherwise.  Further, also under Section 14000(b), time off for voting shall be only at the beginning or end of the regular working shift, whichever allows the most free time for voting and the least time off from the regular working shift, unless the employee and employer agree to other arrangements.  Under Section 14000(c), if the employee believes that time off will be needed to vote on election day, he or she must give the employer notice at least two days before the election.

Conclusion

Those who work in and manage government agencies can reflect that the upcoming election represents a moment of significant national decision in the midst of a health crises, an economic crisis, and unprecedented levels of public protest and unrest.  Particularly in these circumstances, questions regarding free speech and political activities of agency employees can present complex legal issues, and in many situations it is prudent to seek advice of counsel.

In a lawsuit involving sixteen states and the District of Columbia, including California, filed against the U.S. Department of Education challenging the new regulations governing how sexual harassment allegations under Title IX of the Education Amendments of 1972 must be adjudicated, U.S. District Judge Carl J. Nichols denied the States’ request for a delay pending the litigation.  The Court’s August 12, 2020 order denying the preliminary injunction can be found here.

Earlier this week, U.S. District Judge John G. Koeltl, also refused to grant a preliminary injunction requested by the school boards for the state of New York and New York City in their lawsuit against the Department. While the states in these lawsuits will continue to litigate their disputes against the Department of Education, the regulations will take effect as scheduled on Friday, August 14, 2020.

The new regulations, released on May 6, 2020, mandate how K-12 and postsecondary education institutions that receive federal financial assistance must define, investigate, and adjudicate claims of sexual harassment under Title IX, the federal law that prohibits discrimination in education based on sex. Read more about the major changes in Title IX implementation here.

If your school, college, or university needs assistance, please contact one of our five offices statewide.  Learn more about LCW’s Title IX compliance training programs and other resources by visiting this page.

Last month, the Court of Appeal for the Second Appellate District of California issued a decision in Pico Neighborhood Association, et al v. City of Santa Monica (Jul. 9, 2020, No. B295935) __ Cal.App.3d __ [2020 WL 3866741] (“Pico”), finding that the City of Santa Monica’s at-large voting system did not violate the California Voting Rights Act (“CVRA”) or the Equal Protection clause of the California Constitution.  This Court of Appeal decision appears to mark the first time since California enacted the CVRA into law in 2001 that a public entity has successfully defended a challenge to its at-large election system under that law.

In Pico, the plaintiffs challenged the City of Santa Monica’s at-large voting system claiming the election system discriminated against Latinx voters.  Under an at-large voting system, all voters within a public agency’s geographic boundaries vote for every member of the agency’s governing body.  This governing body and all of its members then represents all residents within that geographic boundary.  This system contrasts with the by-district voting system proposed by the plaintiffs.  Under a by-district system, an agency divides its electoral boundaries into a subset of voting districts.  Candidates must run for the specific seat that will represent that voting district and only voters living within the boundaries of the voting district may vote to fill that particular seat.  Under California law, an individual running for a particular seat on a governing body must reside within that district in order to be eligible to run for that seat.

The trial court in Pico ruled in favor of the plaintiffs and ordered the City to switch to a by-district voting system. The trial court also ordered the City to pay plaintiffs’ attorneys’ fees.  The City of Santa Monica appealed the trial court’s decision.

On appeal, the Court of Appeal reversed the trial court’s ruling as to both the CVRA and Equal Protection claims. In its ruling, the Court of Appeal held that in order to establish a claim under the CVRA, plaintiffs must prove both the occurrence of racially polarized voting and that the voting system results in the dilution of minority voting power.  For purposes of the CVRA, a protected class is a class of voters who are members of a “race, color, or language minority group” as defined by the Federal Voting Rights Act (“FVRA”).  The CVRA defines “racially polarized voting” as “voting in which a protected class’s electoral preferences are different from those of the rest of the electorate in a legally significant way.” The CVRA does not define “legally significant.”  However, as discussed below, whether a protected class’s electoral preferences differ in a legally significant way depends on the facts of the particular case.  Additionally, although not defined by the CVRA, the Court of Appeal explained that the term vote “dilution” refers to a voting system that impairs voters in a protected class’s ability “to elect candidates of their choice,” or “to influence the outcome of an election.”

California Voting Rights Act Claim

On appeal, the plaintiffs argued that they had successfully established before the trial court that the City’s at-large election system prevented Latinx voters from influencing local elections and diluted their voting power.  At the time of the trial, the Latinx community made up approximately 16 percent of the City’s total population and 13.64 percent of the City’s citizen-voting-age population.  In making this argument, the plaintiffs asserted that they did not have to establish both “racially polarized voting” and voter “dilution” in order to prevail, but rather that evidence of racially polarized voting constituted sufficient evidence of dilution.

The Court of Appeal disagreed, and held that in order for plaintiffs to prevail they had to prove both dilution and racially polarized voting independently.  Specifically, the Court of Appeal analyzed Elections Code sections 14027 and 14028 (sections of the CVRA) to arrive at this conclusion.  Section14027 states: “[a]n at-large method of election may not be imposed or applied in a manner that impairs the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election, as a result of the dilution or the abridgment of the rights of voters who are members of a protected class, as defined pursuant to Section 14026.”  Section 14028, subdivision (a) provides that “[a] violation of Section 14027 is established if it is shown that racially polarized voting occurs in elections for members of the governing body of the political subdivision or in elections incorporating other electoral choices by the voters of the political subdivision.”  The Court explained that reading these sections only to require plaintiffs to prove racially polarized voting would have rendered the term “dilution” superfluous, when dilution is “a core part of the voting rights vocabulary” under U.S. Supreme Court precedent.

After setting forth this two-element standard, the Court of Appeal held that plaintiffs had failed to establish the element of dilution.  In determining whether plaintiffs presented evidence of dilution, the Court of Appeal addressed plaintiffs’ contention that their proposed by-district election system would increase the electoral “influence” of Latinx voters by increasing their percentage of voting power.  Specifically, the plaintiffs argued that under a by-district system, Latinx voters would hold 30 percent of the voting power, as compared to having 14 percent of the voting power in the at-large system and that such an increase in influence was sufficient to establish the element of dilution.

The Court of Appeal rejected the plaintiffs’ argument.  The Court of Appeal explained that the plaintiffs’ definition of “influence” was unsustainable because it would “merely ensure plaintiffs always win.”  Specifically, the Court of Appeal found that showing a marginal percentage increase in influence in a proposed district is insufficient to establish dilution.  Instead, dilution requires that the change is likely to make a difference in electoral results.  Therefore, the Court of Appeal held that plaintiffs did not prove dilution because the result of the at-large and by-district system for Latinx voters would have been the same, i.e. under either system, even if every Latinx voter voted for the same preferred candidate, absent additional votes cast for that candidate, the percentage of Latinx voters in the City of Santa Monica would be insufficient alone to elect the preferred candidate.  However, the Court of Appeal left open the possibility that, if presented with different set of facts, voter influence could have a legally significant impact on a protected class’s voting power.

The Court of Appeal’s ruling regarding the CVRA departs from recent trial court rulings and clarifies the standard by which a plaintiff must prove an at-large election system violates the CVRA.  In fact, given that it appears that no other court has utilized the standard articulated by the Court of Appeal in Pico, this decision appears to have established a new standard by which a plaintiff must prove a CVRA violation.  Specifically, the standard articulated by the Court of Appeal in Pico requires a plaintiff to establish dilution as a separate part of their claim, whereas prior trial courts identified racially polarized voting as evidence of dilution.  For example, in Sanchez v. City of Modesto, the Court of Appeal stated that “Section 14028 [of the CVRA] lists facts relevant to proving a violation: The dilution or abridgement described in section 14027 is established by showing racially polarized voting (Elec. Code, § 14028, subd. (a).).”  (Sanchez v. City of Modesto (2006) 145 Cal.App.4th 660, 670.) (Emphasis added.)

Constitutional Claim

Plaintiffs next argued the City’s at-large system violated the Equal Protection clause of the California Constitution.  The Court of Appeal found no violation.  The trial court had found that when the City twice upheld the at-large voting system, the City violated the Equal Protection clause of the California Constitution because the City acted to suppress Latinx political power. The Court of Appeal, however, explained that the trial court had applied an erroneous legal standard because it departed from the Equal Protection standard that knowledge of consequences does not prove a purpose of racial discrimination.

The Court of Appeal examined whether the City implemented its at-large system for discriminatory purposes.  The Court of Appeal examined the City’s decisions in 1946 and 1992 to adopt and maintain, respectively, an at-large voting system.  In 1946, the City adopted the at-large system it uses today.  The Court of Appeal, after pointing to evidence that “100 percent” of the leaders of the minority community at the time publicly supported the City’s decision, held that the City did not adopt the at-large system for the purpose of discriminating.  Then in 1992, a City-appointed commission issued a report recommending that the “status quo should change.” However, despite the City Council and public speakers seeking ways to increase “minority empowerment,” the City was unable to decide what change to make and therefore recommended further research before the Council took action. The Court of Appeal ruled that these series of actions also did not show racial discrimination.  Thus, the Court found there was no evidence that the City purposefully engaged in racial discrimination.

As to both the CVRA and constitutional claims, the Court of Appeal reversed the trial court’s ruling and directed the trial court to enter judgment in the City’s favor.  The Court also ordered plaintiffs to pay the City’s costs.

What Pico Means for Public Agencies

It seems likely that the plaintiffs will appeal this case to the California Supreme Court.  If the California Supreme Court declines to review the case, or upholds the Court of Appeals’ decision, Pico may make it more likely that public agencies will vigorously litigate citizens’ claims that at-large voting systems presumptively violate the CVRA.  As we have previously addressed, the Elections Code provides a mechanism for a citizen to challenge an agency’s at-large election method if the citizen believes the at-large system impairs the ability of a protected class to elect candidates or dilutes the rights of voters of a protected class.  Specifically, under Elections Code section 10010, a citizen of voting-age within an agency’s geographic boundaries may bring a claim against a public agency under Sections 14027 and 14028 of the CVRA, but only if the citizen (“prospective plaintiff”) first serves on the public agency a written notice, i.e. a pre-litigation notice which asserts that the agency’s “method of conducting elections may violate the [CVRA].”  In recent years, several prospective plaintiffs served agencies across California with these written notices.  Many agencies, recognizing that CVRA litigation is very expensive and, at least under pre-Pico standards, difficult for an agency to win, elected to settle at the pre-litigation stage and voluntarily shift from at-large to by-area elections.  However, assuming Pico remains the applicable standard, agencies may now think twice before settling at the pre-litigation stage.

We will follow the case closely and provide further updates.

 

As the “new normal” drags on longer than any of us would have hoped, some people are having a harder time adjusting than others.  While nobody likes wearing a mask or practicing social distancing, what are an agency’s options and obligations with respect to an employee who can’t or won’t?

First things first: for as long as the June 18, 2020 statewide order requiring face coverings is in effect, the employer cannot allow an employee to be in the workplace and not comply.  Further, the Occupational Safety and Health Act requires employers to provide a safe working environment for all workers, and permitting an employee to work without a mask or without social distancing compromises the safety of his or her colleagues, and also the safety of the employee.  If an employee shows up to work without a face covering, he or she must be sent home.

If the employee claims to have a medical condition that prevents compliance, the employer should initiate the interactive process.  The first step is for the employee to provide a doctor’s certification that the employee has a work restriction preventing him or her from wearing a face covering.  The certification should not specify what the employee’s condition is.  There are printable flyers or cards circulating on some corners of the Internet purporting to exempt individuals from wearing face masks:  these are not valid and no employer should accept them.  (A telltale sign is that many misspell HIPAA as “HIPPA”.)

If the employee has a work restriction, in virtually all cases, there will be only two potential accommodations: allowing the employee to work from home, or some type of leave.  It’s always good for employers to think creatively in the interactive process, but an employer has no obligation to allow an employee to violate the law.  Further, an accommodation is not reasonable if it puts others at risk.  (California Code of Regulations, Title 2, § 11067.)

What about an employee who simply doesn’t want to wear a mask, or won’t follow social distancing requirements?  Even if there is no State or County order in place, employees are required to abide by workplace rules.   An employee who refuses to conform to such rules is subject to discipline.  Employers should follow their progressive discipline policies – and continue to send the employee home each time he or she shows up maskless.  Each time is a separate occurrence of misconduct.  Social distancing violations may be tougher to spot, and therefore tougher to enforce, but employees should be encouraged to speak up if a colleague is failing or refusing to comply.

Is there potential liability for refusing to allow an employee to be in the workplace sans mask?  These rules are too new to have been tested by the courts, and the creativity of plaintiffs’ attorneys knows no bounds.  However, despite the comments of one out-of-state lawmaker, the “unmasked community” is not a protected class under state or federal law.  An employee may be able to claim disparate treatment based on a protected class if an employer fails to enforce its mask policy consistently, e.g., argue that the policy is enforced less strictly on a different group, and the stricter enforcement on the plaintiff employee’s group is discriminatory.   An employee may also argue that a mask requirement has a disparate impact: that their protected group is more burdened by an evenly enforced mask rule.  Whether either of these arguments has any success in court remains to be seen.

An employee’s failure or refusal to wear a mask or practice social distancing can present complex issues for employers, and employers should seek counsel from their trusted legal advisors when approaching these issues.

On July 30, 2020, the California Supreme Court issued its decision in Alameda County Deputy Sheriff’s Assn. v. Alameda County Employees’ Retirement Assn. (Alameda).  It was anticipated that the Court would address the continuing viability of the “California Rule.”  Under the California Rule, a public employee is vested in a pension benefit at the start of employment.  Under the traditional expression of the California Rule, benefits cannot be reduced even for prospective service, except in very limited circumstances.  The modification of a pension benefit “must bear some material relation to the theory of a pension system and its successful operation,” and any modification that results in disadvantages to employees must be accompanied by comparable new advantages. While the Court asserted at the end of the decision that it was not reexamining the California Rule, the decision leaves the current legal framework largely intact, including the California Rule.

Alameda considered whether legislative changes made to the County Employees Retirement Law of 1937 (“CERL”) by the Public Employees’ Pension Reform Act of 2013 (“PEPRA”) unconstitutionally impaired vested pension benefits of public employees employed at the time PEPRA was passed.  PEPRA excluded some forms of compensation from the calculation of retirement benefits that had long been included.  The exclusions were based on concerns related to pension spiking.  Even though these changes had the effect of reducing retirement benefits of the employees impacted, the statute made no provisions for the employees to receive any alternative benefits to make them whole for these reductions. The Court held that the PEPRA changes were constitutionally permissible. However, the Court’s determination that no comparable benefit needed to be provided largely hinged on its determination that eliminating pension spiking is a constitutionally proper purpose that would be defeated by providing a comparable advantage.  Consequently, the decision was narrow in scope and does not resolve what other motivations for pension reform will be allowed.

The Court’s ruling largely leaves the traditional California Rule and analysis intact with one deviation.  Closely tracking existing case law concerning the California Rule, the Court determined that where pension benefits are protected by the contract clause of the California Constitution, any modification of a constitutionally protected pension benefit must be reasonable in that it “must bear some material relation to the theory of a pension system and its successful operation.” Whereas traditionally, such a modification must be accompanied by other benefits, the Court found that where, as here, providing alternative benefits would be inconsistent with the purpose of the constitutionally proper modification, alternative benefits would not be required.

The Court’s Analysis

Two different disputes were discussed in the decision.  First, the Court considered whether the PEPRA amendments violated settlement agreements entered into following previous litigation involving several county retirement boards regarding compensation included in pension benefits.  Second, the Court considered whether the PEPRA amendments impaired constitutionally protected rights, which was the issue implicating the California Rule.

Violations of the Settlement Agreements

For this question, the Court observed that the retirement boards’ administrative powers are limited by the enabling legislation.  The Legislature has final authority for establishing the provisions governing pensions and the judiciary has final authority to interpret the legislation.  The Court concluded that the retirement boards had no authority to act inconsistently with the CERL and cannot disregard such amendments.  Employees had no express contractual rights to have benefits calculated in a manner inconsistent with the CERL because the retirement board had no authority to confer benefits beyond those authorized by statute.  Therefore, the Court rejected the contention that the settlement agreements precluded the legislative changes.  The Court also rejected the plaintiffs’ estoppel argument (i.e., it rejected the contention that equitable or fairness grounds required inclusion of the compensation).

       Impairment of Constitutionally Vested Rights

As the PEPRA amendments eliminated compensation that had previously been included in pension benefits for existing employees, the Court easily determined that the issue of constitutionally vested rights had been implicated.

As constitutionally protected rights were implicated and there were disadvantages caused by the modification, the Court turned to the purpose of the modification.  The Court discussed the broad preexisting language of the CERL provisions defining what compensation may be included in pension benefits.  The Court noted that the Legislature sought to limit pension spiking by eliminating practices that were “arguably” permitted under the previous broad statutory language.  The Court determined that the changes in PEPRA were enacted for a constitutionally permissible purpose (i.e., closing loopholes such as spiking that distort pension calculations).

After determining that the modification was the result of a constitutionally proper purpose, the Court turned to whether the modification required the disadvantages to be offset by comparable advantages.  The Court concluded that the constitutionally proper objective would be defeated if the California Rule was interpreted to require the pension plans to maintain the loopholes for increasing pension benefits for existing employees, or to provide comparable benefits that would perpetuate the advantages provided by the loopholes that were closed by PEPRA. Thus, the Court concluded that disadvantages did not have to be offset by comparable advantages.

Therefore, the Court held that the modifications to the CERL by the PEPRA amendments were constitutionally permitted and reversed the decision of the Court of Appeal.

Effect of the Decision

The Court’s decision will likely have little immediate impact on public agencies.  A positive outcome for public employers is that the Court approved a modification impairing pension benefits without requiring offsetting advantages. However, the decision is limited in its application.  The  Court does not state explicitly that impairments motivated by cost savings alone would be impermissible, or if permissible, would require alternative benefits. However, the narrow scope of the ruling will require additional litigation should further pension reform impair benefits for purposes of cost savings.

The California Ralph M. Brown Act (Brown Act) requires public agencies to conduct agency business in public at properly noticed open meetings, subject to very narrow exceptions.  Under the Brown Act, meeting agendas must be published seventy-two hours prior to the governing body’s meeting.  A legislative body cannot act on Items not on the agenda.

A significant statutory exception to the open meeting rule is for a closed session for members of the governing body to confer with or receive advice from legal counsel regarding pending litigation when discussion in open session concerning the matter would prejudice the agency’s position in litigation.  Under the Brown Act, “pending litigation” has a specific and multi-layered statutory definition.  For purposes of the Brown Act, “pending litigation” means formal litigation against the Agency, or, based on existing facts and circumstances, the agency has significant exposure to litigation, is meeting to decide whether a closed session is authorized, or has decided to / is deciding whether to initiate litigation.

If the basis for closed session is significant exposure to litigation or the need to determine whether closed session is authorized, the Brown Act sets forth the following additional disclosure rules related to the source of the facts and circumstances:

  1. Where the facts and circumstances that might result in litigation are not known to the potential plaintiff, the agency need not disclose such facts and circumstances on the agenda;
  2. Where the facts and circumstances that might result in litigation are known to the potential plaintiff, the facts and circumstances must be stated on the agenda or announced in open session;
  3. Where the facts and circumstances that might result in litigation are due to receipt of a written claim or communication from a potential plaintiff threatening litigation, the claim or communication must be made part of the agenda packet for (or otherwise made publicly available at) the open session;
  4. Where the facts and circumstances that might result in litigation are due to a statement threatening litigation made by a person in an open and public meeting, there is no additional disclosure requirement;
  5. Where the facts and circumstances that might result in litigation are due to a statement threatening litigation made outside an open or public meeting, the official or employee with knowledge of the threat must make a contemporaneous or other record of the statement prior to the meeting, which must be made part of the agenda packet for (or otherwise made publicly available at) the open session.

A recent First Appellate District case, Fowler v. City of Lafayette, instructs on the importance of satisfying these Brown Act requirements.  Fowler began as a dispute among neighbors over whether the City should approve a couple’s application to build a 1200 square foot tennis cabana on their private property.  At some point in the approval process, the couple’s attorney threatened to sue the City if it denied the project approval.  The threat was made by the couple’s attorney to a City planner over the phone.  The City planner noted the statement in a password-protected planning database.  The City then held three closed sessions on the dispute under the pending litigation exception but failed to disclose the facts and circumstances of the pending litigation in the agenda packet, on the agenda, or otherwise in open session.

Eventually, the City approved the cabana project.  The dispute did not end there, however.  After the approval, the anti-cabana residents learned that the City held closed session to evaluate pending litigation on the cabana project and sued, alleging the City violated the Brown Act by failing to comply with the requirements of the pending litigation exception.

In overturning the trial court’s decision for the City, the First Appellate District found the City violated the Brown Act because it failed to include a contemporaneous record of the facts and circumstances justifying the pending litigation exception in the agenda packet for the meetings during which closed session was held on the issue.  In its defense, the City argued to the Court that the note placed in the planner’s database was a public record sufficient to satisfy the Brown Act’s requirements for the closed sessions.  However, the Court disagreed, finding that the electronic notation in a password-protected database was insufficient in the face of clear language in the statute requiring disclosure as part of the agenda packet.

Despite the win on the Brown Act violation, the anti-cabana folks ultimately lost the bigger battle: to stop the cabana.  That is, the remedy sought by the plaintiffs was to nullify due to the Brown Act violation the decision to grant the project approvals.  However, because the decision to approve the cabana occurred in open session, the Brown Act failures regarding the closed sessions did not fall within the types of actions that may be nullified under the Brown Act.  Moreover, the court found the plaintiffs failed to show prejudice due to the numerous open session items on the cabana project.

The case is Fowler v. City of Lafayette (2020) 45 Cal. App. 5th 68.

If there is one word that defines this pandemic, it is fear.  While we understand more about COVID-19 today than we did even a few weeks ago, including who may be more susceptible to severe complications, this pandemic still involves a dash of Russian roulette.  It is therefore understandable that some employees – even perfectly healthy ones – will express reservations about returning to the workplace, especially in areas around California where cases are spiking.  The situation is more complicated when an employee outright refuses to return to work, and how employers choose to respond involves walking a tightrope that balances the employer’s legitimate business needs with the employee’s state and federal rights.  Indeed, as California rolls back its reopening plans, and employers face the prospect of a re-opening doppelganger, it is important for employers to understand the nuances of what may be a reoccurring trend.

Concerns About Employer’s Reopening Plans

As we have previously reported, state regulations mandate that employers use reasonable care to provide for the safety of employees and in furnishing a suitable and safe place of work.  For instance, Cal-OSHA requires employers to have an Injury Illness Prevention Plan (“IIPP”) to protect employees from foreseeable workplace hazards.  Cal-OSHA states most California workplaces should amend their IIPPs to address COVID-19, because it is widespread in California.

An employer that has not taken steps reasonably necessary to protect their employees’ health and safety may not discipline an employee who refuses to return to work until the employer can ensure their health and safety.  Furthermore, an employer should not reopen if doing so would violate state or local order.  For instance, on July 13, 2020, Governor Newsom issued a statewide order that will temporarily close many non-critical business sectors throughout California.

Fear of Contracting the Virus

Fear of contracting the virus – among healthy employees where the employer has taken adequate safety precautions – is likely an insufficient reason to refuse to return to work.  In this situation, an employer may treat an employee’s refusal to return to work despite the employer’s reasonable safety efforts as an unexcused absence or possibly insubordination.

That said, the risks of developing complications from COVID-19 increase for people with certain preexisting medical conditions, such as kidney disease, heart disease, compromised immune systems, or diabetes.  These individuals may be entitled to reasonable accommodations under California’s Fair Employment & Housing Act (“FEHA”) or the federal Americans with Disabilities Act (“ADA”).  The same may also be true for employees with preexisting mental health conditions that make coping with the work environment more challenging during a pandemic.  There is no bright-line rule in these cases, and employers must carefully address each situation on a case-by-case basis. The key will be clear lines of communication.

Be Mindful of Retaliation Claims

An employee who complains that the employer’s re-opening plans violate federal, state, or local law could trigger whistleblower protections. The same is also true if the employee refuses to work because s/he reasonably believes the work environment places them at risk of serious injury of death.  Under Labor Code section 1102.5, an employer may not discriminate or retaliate against an employee for disclosing a violation of the law as long as the employee has reasonable cause to believe the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.

Similarly, if a complaint is brought on behalf of a group of employees, it may qualify as “protected concerted activity” under the various labor relations statutes.  In addition, an employee who relies in whole or in part on their own medical condition in a return-to-work complaint may be requesting an accommodation under the FEHA or the ADA.  It would be illegal to retaliate against the employee for voicing such a complaint under those laws.

Family Care Obligations

If employees refuse to return to work due to family care obligations, they may be protected under state and federal leave laws.  California’s Healthy Workplaces, Healthy Families Act of 2014 is expansive and allows employees up to one-half of their annual accrual of sick leave or PTO to care for, among others, a parent, child, spouse, registered domestic partner, grandparent, grandchild, sibling, and parent-in-law.  Likewise, the Families First Coronavirus Response Act (“FFCRA”) allows an employee to use up to 80 hours of paid sick leave at two-thirds the employee’s regular rate of pay if the employee is unable to work because of a bona-fide need to care for an individual subject to quarantine, or to care for a child under 18 whose school or child care provider is closed or unavailable for reasons related to COVID-19.  In the latter situation, an employee is also entitled to an additional 10 weeks of expanded family and medical leave.  This will be a particularly important issue for parents of schoolchildren whose schools offer only on-line classes in the fall.  Some districts have already made that decision.

Therefore, when faced with an employee who refuses to return to work, employers must carefully consider why the employee is refusing to return.  If the employee has identified a legitimate safety concern, the employer should work to address it.  The employer should also consider whether the employee is entitled to an accommodation or protection under state or federal leave laws.  If none of the above apply, the employer would still be wise to consult with legal counsel before taking any actions that may be construed as adverse in order to minimize the likelihood of a retaliation claim.  Moreover, if the employee is covered by a collective bargaining agreement (“CBA”), the employer should carefully review the CBA to determine whether any provisions address the situation and restrict the employer’s ability to respond

These situations present new challenges.  In some cases, there is no settled law on the appropriate response and employers will have to evaluate the risks associated with their decisions.  We are here at LCW to help you work through your decisions.

Over the last few months, claims for unemployment insurance benefits have increased exponentially due to the difficult financial circumstances public and private employers have been confronted with in the wake of the COVID-19 pandemic. Reductions in services and business closures have forced many employers to implement layoffs and furloughs, causing the dramatic increase in unemployment claims.

As employees are being laid off or furloughed because of the COVID-19 impacts, employers will receive notices from the Employment Development Department (EDD) when those laid-off and furloughed employees file unemployment claims. Employers should not erroneously presume it is unnecessary to respond to the notice or that the obligation to do so has changed amidst the COVID-19 pandemic. Irrespective of the reason for the claim or the employer’s decision to not contest a claim, the employer is obligated to respond to the notice in a truthful, complete and timely manner.

In 2013, the California Legislature responded to the federal mandate set out in the Unemployment Insurance Integrity Act (“Act”) by enacting Unemployment Insurance Code section 1026.1. The Act was intended, in part, to deter employers from ignoring unemployment claims and merely accepting them as a “cost of doing business” and sets forth a consequence for employers doing so. If an employer requests that its reserve account be relieved of charges related to benefits overpayments, the EDD will not provide the relief if the employer failed on at least two occasions to timely or adequately respond to the EDD regarding claims for unemployment benefits. For this reason, it is important for employers to provide truthful, complete and timely information to the EDD as requested on individual unemployment insurance claims, even if those claims result from COVID-19 furloughs or layoffs.

Also, it is important to remember that an employer’s response to the EDD can potentially be used as evidence in any related litigation, an additional important reason for the response to be truthful and complete. If litigation is likely or anticipated, employers should consider conferring with legal counsel about the response before submitting it to the EDD.

Similarly, employers seeking to reduce their workforce as a cost-saving measure may be considering severance agreements. If an employer elects to include a provision in those agreements that it will not contest unemployment benefit claims, the employer, nevertheless, must respond to inquiries from the EDD regarding the claims. Further, severance or settlement agreement terms that state the employer will not contest unemployment claims should include language that the employer will provide truthful, complete and timely responses to the EDD. Simply ignoring the EDD’s inquiries could result in denial of future requests for relief in cases of overpayment of benefits.

To ensure compliance with the EDD’s requirements, employers should consider having any layoff or severance agreement reviewed by legal counsel.