The California Supreme Court will soon schedule oral argument in controversial cases involving legislative pension reform impacting the pension benefits of state and local government employees. By the close of 2020, the Supreme Court will issue a decision that may very well strike at the heart of the so-called “California Rule.”

For nearly 60 years, since the California Supreme Court issued its decision in Allen v. City of Long Beach in 1955, the “California Rule” remained a mainstay of California common law. The California Rule is the general notion that a public employee is vested in the pension benefit promised at the start of employment such that those benefits cannot be reduced even for prospective service except under exceptionally limited circumstances. To be legally permissible under the California Rule, 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.

Among the provisions enacted with the Public Employee Pension Reform Act of 2013 (PEPRA) were changes to the definitions of “compensation earnable” or “pensionable compensation.” These two terms refer to the items of employee compensation that may be included in the calculation of the employee’s ultimate pension benefit. For example, compensation for special assignments, education, or performance of extra duties. The PEPRA revised a statute under the County Employees Retirement Law of 1937 (CERL) such that particular items of compensation that were formerly included in “compensation earnable,” are now expressly excluded for employees hired prior to PEPRA’s effective date (“Legacy Members”). Soon after, Legacy Members challenged what they believed to be PEPRA’s violation of the California Rule.

The first of these cases decided by a California Court of Appeal was Marin Assn. of Public Employees v. Marin County Employees’ Retirement Assn. in 2016. In Marin, the court held that public pension system members are not entitled to an immutable, unchanging pension benefit for the entirety of employment, but are entitled only to a “reasonable” pension. The Marin court further held that detrimental pension modifications should, rather than must, be accompanied by comparable new advantages. The Marin court focused heavily on the “dire financial predictions necessitating urgent and fundamental changes to improve the solvency of various pension systems” in concluding that PEPRA’s modifications to the definition of compensation earnable for Legacy Members was “reasonable” and therefore, did not impair constitutionally protected vested rights. The Marin Association of Public Employees appealed the decision. The California Supreme Court granted review on November 22, 2016, but deferred action in the matter pending the decision in the next case, Alameda County Deputy Sheriff’s Assn. v. Alameda County Employees’ Retirement Assn.

Decided in 2018, the Alameda court declined to follow the decision in Marin, issuing a decision closer in line with the California Rule. The court held that the law requires an individualized balancing test to determine if modifications to pension benefits are reasonable and lawful. The Alameda court explained that when detrimental modifications are made to a public employee’s pension benefits, and no corresponding new advantages are provided, the application of the detrimental changes can only be justified by compelling evidence establishing that the required changes bear some material relation to the theory of a pension system and its successful operation. The Alameda court instructed that the individualized analysis requires focusing on factors such as the impacts of the detrimental changes on the Legacy Members and whether exempting the Legacy Members from the detrimental changes would make it difficult for the particular pension system to meet its pension obligations. The Alameda decision was appealed and the California Supreme Court granted review on March 28, 2018.

Marin and Alameda leave us with somewhat conflicting legal frameworks for analyzing if, when, and under what circumstances a public employer or the legislature may modify the pension benefits of public employees after they have begun employment. On January 10, 2020, the Supreme Court issued notice for the scheduling of oral argument. This means a final decision of the Supreme Court may come before the end of the year that may provide an answer as to the existence and fate of the California Rule.

 

Marin Assn. of Public Employees v. Marin County Employees’ Retirement Assn. (2016) 2 Cal.App.5th 674 review granted, Marin Association of Public Employees v. Marin County Employees’ Retirement Association (State of California) (Cal. 2016) 210 Cal.Rptr.3d 15.

Alameda County Deputy Sheriff’s Assn. v. Alameda County Employees’ Retirement Assn. (2018) 19 Cal.App.5th 61, as modified (Feb. 5, 2018), review granted Alameda County Deputy Sheriff’s Association v. Alameda County Employees’ Retirement Assn. (Cal. 2018) 230 Cal.Rptr.3d 681.

On January 7, 2020, Assemblyman Jordan Cunningham (R-San Luis Obispo) reintroduced Assembly Bill 1599, which proposes to expand upon Senate Bill 1421 by making more records relating to officer-involved sexual assault available to the public.  SB 1421 changed the status quo by amending Government Code section 832.7 to generally allow disclosure of records related to certain categories of officer misconduct:  (1) officer-involved shootings; (2) certain uses of force; (3) sustained findings of sexual assault involving a member of the public; and (4) sustained findings of certain types of dishonesty.  We described this legislation in detail in a previous Special Bulletin.

Despite SB 1421’s attempt to streamline disclosure of such records, language contained within Penal Code section 832.8(b) has created some complexities with regard to how public agencies handle California Public Records Act (PRA”) requests.  Specifically, Penal Code section 832.8(b) defines “sustained” as “a final determination by an investigating agency, commission, board, hearing officer, or arbitrator, as applicable, following an investigation and opportunity for an administrative appeal pursuant to Sections 3304 and 3304.5 of the Government Code that the actions of the peace officer or custodial officer were found to violate law or department policy.”

Compliance with a PRA request for records relating to sustained findings of sexual assault seems straightforward where imposed discipline has been upheld after an administrative hearing.  It is also clear that if the investigation is ongoing, or an administrative appeal of imposed discipline is pending, then the allegations have not yet been “sustained” and disclosure is not yet warranted.  However, what if a peace officer decides to resign prior to the completion of an investigation or prior to discipline, in an effort to dodge a negative mark on their record?  *Cue AB 1599.*  AB 1599 seeks to “increase police transparency” and expand upon SB 1421 by modifying the language of Penal Code section 832.8(b).  It would make available for public inspection “personnel records pertaining to a peace officer or custodial officer accused of sexual assault involving a member of the public when the peace officer or custodial officer resigns before the employing agency has concluded its investigation into the sexual assault…”  Thus, records previously which at least arguably may not have been subject to disclosure would now clearly be subject to disclosure to the public pursuant to a PRA request.

AB 1599 and its proposed changes to the existing law are still in its preliminary stages. Until further legislative guidance on SB 1421 has been provided and AB 1599 becomes law (or not), we recommend public agencies seek case-specific legal advice to decide whether they will disclose records regardless of whether a “sustained finding” has been made regarding officer-involved sexual assault, or whether a peace officer has resigned prior to the completion of an investigation.

We authored prior blog posts on SB 1421 which can be found here:

In the meantime, stay tuned for upcoming updates on AB 1599.

It might surprise many California public employers that there is no law that requires them to provide meal and rest breaks to most of their employees.  Similarly, there is no law that requires California public employers to pay overtime to most of their employees for working over eight hours in a day or pay “double time” for working over 12 hours in a day.

What about the FLSA?  Nope.  With respect to overtime, the FLSA requires that an employee work over 40 hours in a seven-day work week before being paid overtime.  The federal law is silent on daily overtime.  Similarly, the FLSA does not mandate meal periods or daily overtime.

What about California law?  Well, this is where it gets a bit interesting.  For example, a California public employer or employee may have looked up Labor Code section 510, which states:

Eight hours of labor constitutes a day’s work.  Any work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek and the first eight hours worked on the seventh day of work in any one workweek shall be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee.  Any work in excess of 12 hours in one day shall be compensated at the rate of no less than twice the regular rate of pay for an employee.  In addition, any work in excess of eight hours on any seventh day of a workweek shall be compensated at the rate of no less than twice the regular rate of pay of an employee.

Upon reading this, one might be convinced that California public employers are required to pay daily overtime and/or double overtime.

In 2009, however, the California Court of Appeal held in Johnson v. Arvin-Edison Water Storage District, that “unless the Labor Code provisions are specifically made applicable to public employers, they only apply to employers in the private sector.”   Section 510 does not specifically reference public employers, and under the plain language of Johnson’s holding, it should not apply to them.

Still not convinced?  Well, let’s look at the California Industrial Welfare Commission Wage Orders.  For example, IWC Wage Order 4, which applies to employees in professional, technical, clerical, mechanical, and similar occupations, states, in Section 1, paragraph (B):

Except as provided in Sections 1, 2, 4, 10, and 20, the provisions of this order shall not apply to any employees directly employed by the State or any political subdivision thereof, including any city, county, or special district.

Notably missing from this are Sections 3, 11, and 12.  Section 3 requires daily overtime.  Section 11 requires meal periods.  Section 12 requires rest periods.  This Wage Order, and others like it, expressly exempt California public employers from state overtime provisions and meal and rest break requirements.

But before we finish, we have to note the exceptions.

Some agricultural and irrigation public employees may be covered by state IWC Wage Order 14, which regulates agricultural and irrigation employees.  Commercial drivers for public entities are covered by portions of state IWC Wage Order 9, which regulates the transportation industry.  In addition, Wage Order 15 generally applies to public entities that employ in-home services support workers.

Why do California public employers still provide meal breaks and daily overtime?

More likely than not, this is because public agencies do provide for meal periods and rest breaks in some agency rule or policy or in a collective bargaining agreement.  This is where you will also likely find daily overtime provisions.  This is important to know so that California public employers can properly enforce these requirements, either under the law or by contract.

Plaintiff Cari McCormick worked as an appraiser for Lake County.  In 2010, she started to experience physical pain throughout her body and felt constantly fatigued.  McCormick’s symptoms worsened when she was in her office environment but felt much better if she was at home or outside.  McCormick was eventually told by her supervisors that she “was a liability” and “should stay home.”  McCormick took leave under the Family Medical Leave Act and continued to ask for accommodations such as permission to telecommute.  However, her supervisors declined to let her work anywhere other than in the courthouse.  In May 2013, Lake County terminated McCormick’s employment because she had exhausted her medical leave.

McCormick applied for disability retirement to CalPERS.  In the application, she stated that her disability was “[respiratory] and systemic health problems as a result of exposures in indoor environment” at the courthouse.  She also explained that she could work in another building but that her employer would not allow her to work outside of the courthouse.  CalPERS denied the application in December 2014.  McCormick appealed the decision.  At the administrative hearing on the appeal, McCormick’s doctor indicated that he had initially opined that McCormick was “temporarily partially disabled.”  He explained at the hearing that he had assumed in forming his initial assessment that she would be able to find a different location in which to work.  While his diagnosis remained unchanged, McCormick’s doctor testified that McCormick was permanently disabled to the extent that she was unable to work at that courthouse due to her symptoms.  CalPERS presented testimony from another one of McCormick’s doctors who opined that “if the environment can be amended or… accommodations [could be provided] to help her, then she would not be disabled.”

Accordingly, based on the medical testimony, the administrative law judge (ALJ) issued a proposed decision denying McCormick’s appeal and finding that she was not permanently disabled or substantially incapacitated from performing her usual job duties at the time she submitted her disability retirement application.  The ALJ rejected McCormick’s argument that because the County would not accommodate her to work at a location outside the courthouse, she was substantially incapacitated from performing her usual job duties.  The Board of Supervisors adopted the ALJ’s proposed decision and McCormick filed a petition for writ of administrative mandate.

The Court of Appeal did not dispute that McCormick was physically capable of performing her usual job duties if she worked in an environment that did not trigger her systems.  However, the Court acknowledged that “Section 21156 is concerned with members’ ability to perform their duties for their actual employers, not their ability to perform their duties in the abstract.  Thus, the relevant question is whether McCormick was incapacitated from performing the duties of an Appraiser III for Lake County, not whether she was incapacitated from performing them elsewhere.”  Thus, whether McCormick was able to perform the duties of an appraiser somewhere other than the Lakeport courthouse did not foreclose a finding that under Section 21156 that she was unable to perform her usual job duties.  Moreover, Lake County denied McCormick’s request for accommodation, which included a request to work in a different location or environment. Therefore, the Court found that CalPERS may not deny disability retirement under Section 21156 when, due to a medical condition, applicants can no longer perform their duties at the only location where their employer will allow them to work.

Based on the holding of this case, employers should explore, during an interactive process meeting, whether the employee can perform their essential job duties at a different work location as a reasonable accommodation.  If the employer denies such an accommodation, then the employee may be found to be substantially incapacitated from performance of their usual job duties and entitled to a disability retirement.

On October 8, 2019, the U.S. Supreme Court heard oral arguments in three cases: Altitude Express, Enc. v. Zarda (out of New York), Bostock v. Clayton County, Georgia (out of Georgia), and R.G. and G. R. Harris Funeral Homes v. EEOC (out of Michigan).  All three cases involve plaintiffs arguing that Title VII of the Civil Rights Act, which prohibits employment discrimination “because of . . . . sex,” includes protection against discrimination because of sexual orientation or gender identity.  Zarda and Bostock both involve men who were fired from their jobs after coming out as gay.  Harris involves a transgender woman who was fired after she informed her employer of her identification as female, when she was previously living as a man.

Zarda and Bostock, the two cases involving male employees that were fired after coming out as gay, were heard before the Supreme Court together.  The U.S. Court of Appeals for the Second Circuit in Zarda ruled that discrimination based on sexual orientation is protected by Title VII.  The U.S. Court of Appeals for the Eleventh Circuit in Bostock, on the other hand, had ruled that Title VII does not cover discrimination based on sexual orientation.

The transgender woman in Harris was allegedly fired after she announced in 2013 her intention to live as a woman and have sex-reassignment surgery to reflect her female identity.  Her employer testified that he fired her because she was “no longer going to represent himself as a man” which he believed would go against “God’s commands.”  The U.S. Court of Appeals for the Sixth Circuit reversed the district court’s ruling that Title VII does not apply to transgender employees.  The employer thereafter appealed to the U.S. Supreme Court.

At oral argument, in Zarda and Bostock, the plaintiffs argued that sexual orientation discrimination is on the basis of “sex” for purposes of Title VII protection because when an “employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII.”  The employer argued that “sex” and “sexual orientation” are separate and different characteristics, and that “sexual orientation by itself does not constitute discrimination because of sex under Title VII.”  The Trump Administration presented its views at oral argument as amicus curiae (third party or friend of the court) on behalf of the employer.  The Justices’ questioning in Zarda and Bostock focused on the role of Congress and what it understood “sex” to mean when enacting Title VII, as well as the effect on bathroom usage and sex-specific dress codes.

The Plaintiff in Harris argued that a transgender female employee was fired for contravening sex-specific expectations and stereotypes about how men and women should behave, and that the term “sex” as used in Title VII should be narrowly read to mean “sex assigned at birth.”  Taking a similar position to that of the employers in Zarda and Bostock, the employer argued that sex and transgender status are independent concepts,  and also advanced the notion that “sex-based differentiation is not the same as sex discrimination.”  In the Harris oral argument, the Trump Administration also argued as amicus curiae on behalf of the employer and pointed out that Justice Gorsuch commented that Harris was a “close textual case.”  The questioning from the Justices again revolved a lot around the implications of sex-specific bathroom usage and sex-specific dress codes.

The rulings in all three cases will likely be handed down in Summer 2020 at the latest.

In comparison to federal law, California law already provides significant protections for both the sexual orientation and gender identity or expression of LGBTQ+ employees.  The Fair Employment and Housing Act (FEHA) prohibits discrimination and harassment on the basis of sexual orientation, gender, gender identity, and gender expression.  Gender expression under FEHA is defined as a “person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.”  FEHA accordingly protects both transgender and non-binary employees, as well as persons undergoing gender transition, from discrimination and retaliation.

The Supreme Court’s decisions in these three cases will likely not have a significant impact on California’s standing protections of LGBTQ+ employees.  Since 2012, California’s anti-discrimination laws expressly include a person’s sexual orientation, gender identity, and gender expression.   If the Supreme Court decides in these cases that Title VII’s prohibition on discrimination on the basis of “sex” does not include sexual orientation and/or gender identity, it will not affect protections provided by California’s FEHA or the interpretations of such protections.  Should the Court affirmatively decide that “sex” includes sexual orientation and/or gender identity, this will expand employees’ rights to sue in federal court.

As a refresher on FEHA’s protections for gender discrimination, remember that in California, it is an unlawful employment practice to do any of the following because of an employee’s sex, sexual orientation, gender identity, or gender expression:

  • Fail or refuse to hire
  • Discharge from employment
  • Discriminate in compensation, terms, conditions, or privileges of employment

Employers in California must allow employees to dress consistently with the employee’s gender identity and protect them from harassment and discrimination on that basis.  The Department of Fair Employment and Housing (DFEH) also advises employers that all employees have a right to a safe and appropriate restroom and locker room facility that corresponds to their gender identity, regardless of their assigned sex at birth.  For more information on DFEH guidance on transgender rights in the workplace, visit here.

The beginning of the New Year (and a new plan year for many public agencies) is a good time to review key provisions of the Comprehensive Omnibus Budget Reconciliation Act (“COBRA”), including what notice requirements COBRA imposes on public agencies.

This year, make a resolution to ensure that your public agency fully complies with COBRA by following the guidance in this post. Educate your Human Resources staff about the law to equip them with the knowledge to respond quickly, confidently and accurately to questions that your public agency employees may have about their obligations and rights under COBRA.

What is COBRA and Who is Eligible?

COBRA is a federal law that provides for the continuation of group health plan benefits to “covered employees” (i.e., employees who elect group health plan coverage) and “qualified beneficiaries” (i.e., the spouses and dependents of covered employees) under certain circumstances when the health coverage would otherwise be lost. Generally, COBRA permits continued coverage under the group health plan for eighteen (18) months, but under certain circumstances, the coverage period may be extended.

General Notice Requirements for Agencies that Serve as Plan Administrators

Many public agencies also serve as administrators for their group health care plans. In such circumstances, COBRA requires that the public agency provide a written general notice of COBRA rights to each covered employee and spouse within ninety (90) days of the commencement of their coverage. These public agencies must also send this notice to any new dependents who join the plan after the covered employee’s enrollment in COBRA.

The general notice must include the following information: (1) a summary plan description; (2) a list of individuals who can become qualified beneficiaries under the plan; and (3) an explanation of the qualified beneficiaries’ obligations when a qualifying event under COBRA occurs. The Department of Labor has a COBRA Model General Notice that public agencies may use to meet this general notice obligation.

These public agencies may provide a single general notice to a covered employee and his or her spouse if they reside at the same address. However, agencies should note that delivery of the notice to an employee at work does not constitute delivery to the spouse, so they will need to provide a separate notice to the spouse.

Procedure for Employees to Notify the Plan Administrator of a “Qualifying Event”

In addition to general notice requirements, a public agency that serves as a plan administrator must also establish in the summary plan description a procedure by which covered employees and qualified beneficiaries can provide notice to the plan administrator in the event they experience a “qualifying event.” These public agencies may require employees and beneficiaries to use a standard form. However, the form must be readily available and provided without cost.

What are “Qualifying Events”?

“Qualifying events” are events that would otherwise cause a covered employee or qualified beneficiaries to lose health coverage. The following events constitute “qualifying events” for covered employees if they would cause the employee to lose coverage under the group health plan:

  • Termination for any reason other than gross misconduct; and
  • Reduction in hours worked.

In addition to those events described above, which also constitute “qualifying events” for qualified beneficiaries, the following events constitute “qualifying events” for the qualified beneficiaries separate from the covered employee:

  • Covered employee becomes entitled to Medicare;
  • Divorce or legal separation of the spouse from the covered employee; and
  • Death of the covered employee.

The occurrence of one of these “qualifying events” triggers an obligation for the covered employee or qualified beneficiary to notify the public agency.

Unless the group health plan provides a more liberal policy, covered employees and qualified beneficiaries must provide notice to the public agency of the occurrence of a “qualifying event” within sixty (60) days.

Election Notice after a “Qualifying Event”?

If the agency does not serve as the plan administrator, the agency must notify the plan administrator of the occurrence of a “qualifying event” within thirty (30) days after it receives notice. The plan administrator will then notify the beneficiaries of their respective rights under the Act to elect to continue coverage under the group health plan.

For a public agency that also serves as a plan administrator, COBRA requires that the public agency notify beneficiaries of their election rights. Such an agency must provide election notice to the covered employee and/or qualified beneficiary within fourteen (14) days of receiving notice that a “qualifying event” has occurred.

For each of the common “qualifying events”, identified above, we now indicate the proper recipients of election notices:

  • Termination for any reason other than gross misconduct requires notice to the former employee and qualified beneficiaries;
  • Reduction in hours worked requires notice to the employee and qualified beneficiaries;
  • Covered employee becomes entitled to Medicare requires notice to the employee and qualified beneficiaries;
  • Divorce or legal separation of the spouse from the covered employee requires notice to the employee’s former spouse and qualified beneficiaries; and
  • Death of the covered employee requires notice to the deceased employee’s spouse and surviving and qualified beneficiaries.

The provision of election notice to a covered employee and/or qualified beneficiary discharges the agency’s COBRA notice requirements. Thereafter, the agency and its staff may continue to work with the employee, his/her spouse and dependents to decide whether to continue to receive coverage under the group health plan under COBRA.

In the corporate world, the practice of giving annual performance reviews to employees has come under attack in recent years.  Leading business magazines and newspapers have printed articles advocating for the elimination of performance evaluations.  There are even books in the marketplace that teach companies how to get rid of performance reviews.  Among the reasons for eliminating annual evaluations is that the process is a waste of time, bad for morale, and unnecessarily creates conflicts between employees and supervisors.  So, if private employers are moving towards eliminating annual evaluations, should public employers also do away with them?

The short answer is “no.”  The primary reason for this is the difference between private and public employment.  Generally, private sector employees are “at-will” meaning they can be terminated at any time without notice and for any non-discriminatory reason or no reason at all.  By contrast, public employees usually have a vested right to continued employment and this property right cannot be taken away without first being afforded certain procedural safeguards pre- and post-discipline.  These due process protections place the burden on public employers to show there are factual grounds for the discipline and that the level of discipline is appropriate.  One way public employers can satisfy this burden is by using performance evaluations.  Therefore, it is critical that public employers continue the practice of giving annual performance reviews.

Now, in fairness to proponents of getting rid of annual evaluations, those proponents do not support giving no feedback at all on employee performance.  They also recognize the employer’s need to motivate, direct and improve employee performance.  Rather, they are encouraging employers to replace the annual review with “check-in” meetings that occur throughout the year where supervisors can regularly discuss the employees’ performance and what is needed from them.  We agree with this approach and train employers that regular “check-ins” should be part of an on-going process of assessing employee performance throughout the entire year that culminates in the employee’s annual performance evaluation.  In other words, the annual evaluation is the final chapter in a year-long review process.

Another fair criticism of annual evaluations from critics is that they are ineffective because they are usually poorly written.  Some supervisors view annual performance evaluations with dread because they are time consuming or because the supervisors are uncomfortable with having to honestly assess employees.  Consequently, it is no surprise that written evaluations can fall short.  The following are a few tips for giving effective annual evaluations:

Observe Employees’ Performance During the Entire Evaluation Period

The evaluation should reflect performance over the entire evaluation period, not just the few weeks or months before the evaluation is given to the employee.  This makes it important for supervisors to observe and assess the employee’s performance throughout the year and keep a record of it.  As these observations are being made, supervisors should also make it a point to address performance issues with the employee as they arise.  Not only is it important to raise performance deficiencies with the employee as they come up, but supervisors should also make a point of praising employees when they do a good job.

Use S-P-I-R-I-T When Writing the Evaluation

The comments in the evaluation should be written with S-P-I-R-I-T.  This means that the comments should be Specific, have Purpose, and identify specific performance Incidents that the employee did well and where improvement is needed.  Where misconduct has occurred, the comments should also reflect workplace Rules that were violated and the Impact the performance problems have caused to the employer, other employees and/or members of the public.  Finally, the Timelines for giving evaluations in your agency’s rules should be followed.

Make Time to Meet with the Employee to Go Over the Evaluation

After the evaluation is written, supervisors should meet with each employee to discuss the evaluation.  Too often, employees complain that their supervisors just give them their evaluations to review on their own.  This is a poor practice.  Successful personnel management requires effective communication.  Therefore, supervisors should make time to meet with employees, provide honest and constructive feedback, recognize accomplishments, and develop a plan for improvement, if necessary.

For more tips on writing performance evaluations see our workbook on Evaluation and Discipline.

Happy-Holidays-messageReady or not, the holidays are here.  Not only are the holidays a time to reflect on the passing year, but also a time full of fun, festive celebrations.  As you get ready for this season’s festivities at work, make sure to keep in mind following tips that can help your agency stay in the festive mood without the post-holiday hangover of a lawsuit.

Religious Holiday Accommodations

For many, the holidays are a time for religious observance.  For example, a Christian employee working the night shift may ask for the evening off to attend Christmas Eve mass or a Jewish employee may request time off to observe Hanukah.  Both federal and state discrimination laws require employers to accommodate their employees’ sincerely held religious beliefs, practices, and observances.  Thus, employers who are confronted with requests for time off should try to accommodate them unless doing so would impose an undue hardship.  Accommodating an employee may mean changing the employee’s schedule or allowing the employee to switch shifts with a co-worker.

Workplace and Workspace Decorations

Before decking the halls, employers should consider the location of holiday decorations.  Employers who plan to decorate common work areas should strive to avoid the appearance of endorsing one religion over another.  For example, if a nativity scene is displayed in the reception area or lunch room, the employer may be perceived as favoring the Christian religion. Some employees may this find offensive.  Therefore, employers who wish to decorate the workplace should use non-religious, winter themed decorations such as snowflakes, candy canes, holly and gingerbread houses.

Since non-religious decorations are permissible, there is always debate over whether a Christmas tree is a religious symbol.  While  a decorated tree  may have religious connotations for some people, the U.S. Supreme Court has determined that a Christmas tree is a secular nonreligious symbol.  This view was also adopted by the EEOC.  Thus, employers may include Christmas trees among their decorations even if an employee objects.  However, for purposes of promoting positive employee relations, employers should be sensitive to the diversity of their workplace.  Thus, even if you have a tree, ornaments with religious connotations, such as crosses, angels, or nativity references should not be allowed.

Employees who wish to decorate their own personal workspaces with Christmas, Kwanzaa or Hanukah themed decorations present a more difficult question.  Prohibiting employees from displaying religious holiday themed decorations in their own workspaces may give rise to claim of violation of free speech and religious expression.  Because the law requires employers to accommodate religious beliefs, employers should not try to suppress religious expression in an employee’s personal workspace unless it creates an undue hardship on business operations.

Finally, mistletoe should never be allowed in any area of the workplace including individual workspaces because it could lead to sexual harassment or hostile work environment claims.

Holiday Gift Exchanges

The traditional holiday gift exchange where one “Secret Santa” employee gives a gift to a randomly assigned employee has largely been replaced by the “white elephant” gift exchange.  Employees favor this type of gift exchange because it is fun and the gifts up for grabs are often humorous.  However, this game can easily turn into blood sport as employees become competitive and even downright vicious towards each other in their quest for the best gift.

In order to ensure fun for all employees, the announcement of a gift exchange should include language reminding employees to select gifts appropriate for the workplace.  For example, employees should be discouraged from buying items that contain profane, graphic or sexual content.  In addition, employees should be reminded that the gift exchange is a festive occasion where everyone should be treated respectfully.  A very modest limit on the cost of such gifts should be established, such as $10 or $15.

Holiday Parties

The two biggest concerns for employers about holiday parties are potential legal liability from sexual harassment and drinking and driving.  Because employees typically “let their hair down” during these events, they may not conduct themselves the same way they do at work.  Also, alcohol clouds judgment. A luncheon rather than an evening event is more prudent for all these reasons. If a festive evening is the preferred celebration, employers may want to consider taking the following preventative steps to reduce liability.

Employees should be reminded of the employer’s discrimination, harassment and alcohol and drug policies.  In addition, employers should designate a supervisor or manager to provide discrete oversight over employees during the party.  For example, if an employee appears to have had too much to drink, a supervisor or manager can intervene and make arrangements for the employee to get home safely.  If alcohol is served, employers should limit the amount consumed by either issuing drink tickets to employees or stopping the service of alcohol well before guests start leaving the party.  Finally, if a harassment complaint is made after the party, employers should make sure they promptly investigate it.

Wheelchair 2The Reasonable Accommodation Process continues to be an important issue for public sector employers. Under the ADA and FEHA, the employer has the duty to identify and implement a reasonable accommodation to allow a disabled employee to perform the essential functions of the job. Over the past several years, we have seen numerous public agencies have challenges with determining appropriate accommodations. As a result, we would like to re-emphasize some of the common pitfalls in this process:

1.     Over-reliance on the written job description

Job descriptions are critical in the disability interactive process for identifying the essential functions of the job.  This is one reason why we repeatedly urge employers to update job descriptions.  However, the employer should refrain from over-relying on the written job description for identifying the essential functions without considering what is actually occurring in the workplace.  For instance, a written job description for a parks maintenance worker may list removal of trees as an essential job function and state that this function requires the worker to use a heavy piece of equipment such as a wood chipper.  However, in practice, the maintenance workers may have only removed one tree in the last several years.   So this essential function may not be essential after all.  This is a fact-specific determination that should be made on a case-by-case basis. The important thing for the employer to do when determining the essential functions is to make the relevant inquiries of incumbents and supervisors for the job position and consider how the job is currently being performed.

2.     Failure to consider all vacant positions for reassignment

Reassignment to a vacant position should be considered in these circumstances: (1) accommodation within the individual’s current position would pose an undue hardship; (2) the employee can no longer perform the essential functions of the current position even with accommodation;  (3) if both the employer and employee agree that reassignment is preferable; or (4) if the employee so requests.

The employee with a disability is entitled to preferential consideration for assignment to a vacant position over other applicants and incumbent in-house candidates unless doing so would violate a bona fide seniority system.

The employer is not required to create a position.  Again, however, it is important for the employer to be aware of what is actually occurring in the workplace.  For example, the employer should inquire and consider whether there is a position that will be vacant within a reasonable period of time.

3.     Failure to analyze the undue hardship defense thoroughly

Undue hardship is an ADA and FEHA defense to the employer’s obligation to provide reasonable accommodation to a disabled employee.  The employer must affirmatively show that a requested accommodation creates an undue hardship.   Employers will sometimes cursorily conclude that the requested accommodation is too expensive and would cause financial difficulty and therefore is an undue hardship.  However, financial difficulty is not enough.  There are numerous factors, including cost, that must be considered when evaluating an undue hardship defense.  Employers should review all the ADA and FEHA factors and carefully analyze whether a requested accommodation would cause undue hardship.   Keep in mind that hardship is not enough to justify denying accommodations.  The hardship must be “undue.”  The hardship must create a significant difficulty or expense to the employer.  In enacting the ADA and FEHA requirements, Congress and the California legislature intended that some hardships must be shouldered by employers in order to accommodate disabled employees and applicants.