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In Cadena v. Customer Connexx LLC, decided on July 10, 2024, the United States Court of Appeals for the Ninth Circuit (which includes California) recently affirmed the applicability of the “de minimis” doctrine, which provides that under the Fair Labor Standards Act (FLSA) employers are not required to pay wages for work performed before or after scheduled work hours when the amount of time is “de mininis.”   The court however, held that a triable issue of fact existed whether the employees’ alleged pre/post shift work actually was de minimis, and reversed the district court’s granting of summary judgment to the employer.

Background

Defendant Customer Connexx LLC operates a customer service call center in Las Vegas for an appliance recycling business.  Plaintiffs are customer service representatives of Connexx who spoke to customers on the phone, or supervised call center agents.  Connexx required these employees to clock in/out for each shift with a computer timekeeping software program.  To do so, employees had to turn on/awaken the computer, log in, and then open the timekeeping software to clock in.  Employees did not have their own workstation.  Employees testified some computers were “old and slow” and that sometimes they had to try several work stations before they found a working computer. 

Under Connexx’s policies, employees had to be clocked in and ready to accept calls before their shift started, so employees had to arrive and login before their shift began.  Connexx policy prohibited employees from clocking in 7 or more minutes before their shift began.

Plaintiffs Cariene Cadena and Andrew Gonzales, two Connexx call center workers, filed a collective action complaint (which allows similarly situated employees to opt into the action), seeking unpaid overtime under the FLSA for the time they spent booting up and down their computers before and after clocking into the timekeeping software each shift.  The district court initially granted summary judgment to Connexx, and on appeal the Ninth Circuit reversed and remanded to the District Court to determine whether this time was compensable or de minimis under the FLSA.  On remand the District Court again granted summary judgment to Connexx concluding the time was de minimis.  Plaintiffs appealed.

Is the de minimis rule still valid?

First, the Court evaluated whether the de minimis doctrine is still good law in light of the United States Supreme Court’s 2014 decision in Sandifer v. U.S. Steel Corp., 571 U.S. 220 (2014).  Sandifer held the de minimis doctrine was inapplicable to 29 U.S.C. §203(o) which allows parties to a collective bargaining agreement to exclude as compensable time spent changing clothes at the start or end of the workday (“donning and doffing”).  The Ninth Circuit rejected Plaintiffs’ argument that Sandifer foreclosed the applicability of the de minimis rule.  The Court reviewed its prior decisions applying the de minimis rule, noting they did not concern donning/doffing or exclusions from collective bargaining agreements, but rather addressed when pre/post shift work activities were compensable or de minimis.  Thus, the Ninth Circuit concluded that Sandifer did not overrule the de minimis rule.

Was Plaintiffs’ time waiting for computers to boot up non-compensable de minimis time?

The Ninth Circuit considers three factors in determining whether work time is de minimis:

  1. “the regularity of the additional work,”
  2. “the aggregate amount of compensable time,” and
  3. “the practical administrative difficulty of recording the additional time.”

 This is the employer’s burden.  The Court addressed each of the factors in turn.

First, as to the regularity of the work, employees performed uncompensated work before every shift since they need to boot up a computer to clock in, and likely had to wait for their computers to shut down at the end of this shift, and Connexx was aware of this.  While the amounts of time employees had to wait for their computers to boot up varied, that did not impact the regularity of this time.  This regularity favored compensability.

Second, the Ninth Circuit found a disputed factual issue as to the aggregate amount of time spent on booting up/down.  Employees testified as to estimated ranges varying from a “few seconds up to thirty minutes per shift” booting up and shutting down their computers.   The Ninth Circuit found that spending eleven to thirty minutes “cannot be characterized as de minimis” and this uncompensated time “could be substantial over time.”

Finally, the Ninth Circuit rejected Connexx’s arguments that it was administratively difficult and impracticable to record this time.  The Court suggested a number of alternatives, such as having employees swipe in/out when they arrive and leave, or using a non-computer based time tracker, such as a separate time clock on the wall, or a punch clock at their workstations.

Based on these three factors, the Ninth Circuit concluded the plaintiffs raised triable issues whether their boot up/down time was de minimis, and this precluded summary judgment.  The Ninth Circuit remanded to the District Court for further proceedings.

Application to California Employers

While the Ninth Circuit’s decision in Cadena v. Connexx is helpful to employers in affirming the application of the de minimis rule, the Court’s decision emphasizes the burden on employers to prove the work time really is de minimis and should not be compensated.  The Court’s decision further highlights that regular uncompensated time, even in small or varying amounts, could aggregate to significant amounts that warrant compensation and are not de minimis.  Finally, employers should anticipate that, in their making de minimis arguments that time is too administratively and practically challenging to calculate, courts could well view the arguments with skepticism and close examination.  When California employers are aware employees are engaging in pre/post shift work activities that are not being compensated, they should take appropriate action to make sure there is compliance with the FLSA.  This includes among other things evaluating if this work time is regular and if there are easy ways to capture and compensate employees for this time.

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Late last year, President Biden issued Executive Order No. 14110 laying out his Administration’s policy directions to federal agencies concerning the use of Artificial Intelligence (“AI”) by individuals and organizations under their jurisdiction.

In response to the Executive Order, the Department of Labor (“DOL”) published a list of “Principles for Developers and Employers” (“DOL AI Principles”), establishing eight (8) principles to guide the development and integration of AI into labor relations between employers and employees.

The DOL’s AI Principles recognize the costs and benefits associated with the use of AI. While employers across a wide range of industries may be able to incorporate powerful AI tools and systems into their work to reduce costs and improve efficiency, the use of AI without clearly articulated principles and safeguards may have negative consequences for employees and, if unlawful, for the employer.

The Executive Order and DOL’s AI Principles are instructive for employers as they provide insight as to how the DOL may regulate this emerging technology in the future as well as how other federal and state agencies may approach its use by employers in other contexts.

DOL’s AI Principles

The DOL’s list of principles for AI developers are instructive for employers that are considering the use of these tools in the workplace:

1. Centering Worker Empowerment: Workers and their representatives, especially those from underserved communities, should be informed of and have genuine input in the design, development, testing, training, use, and oversight of AI systems for use in the workplace.

The DOL expressly identified this principle as its “North Star,” conveying its importance relative to the other principles.

This principle encourages employers using AI tools and systems to solicit participation from those who may be affected by their use of AI. The DOL advises employers to involve employees and the employee organizations that represent them in decision-making regarding the use of AI in the workplace, mirroring the Executive Order’s directive that “all workers need a seat at the table, including through collective bargaining.”

For agencies with represented workforces, this principle implicates the public employer’s existing legal obligation to meet and confer on mandatory subjects of negotiation and to provide notice and an opportunity to bargain the negotiable effects of a management decision.

As the “North Star” of the DOL guidance, employers should keep this principle front of mind when considering making a decision concerning the use of AI in the workplace.

2. Ethically Developing AI: AI systems should be designed, developed, and trained in a way that protects workers.

The DOL’s second principle builds on the first and emphasizes protecting workers from the negative consequences of AI.

Employers may play a part in the design, development, and training of AI for use in their workplaces. Accordingly, employers should closely review what data will be provided to the AI system and how the system will use and learn from such data. Importantly, employers should be mindful not to use data that promotes and reinforces biases and to safeguard confidential or privileged information about their employees.

Further, employers should be wary of arrangements that involve the sale of the employer’s data as such sales may be unethical and violate employees’ privacy rights.

3. Establishing AI Governance and Human Oversight: Organizations should have clear governance systems, procedures, human oversight, and evaluation processes for AI systems for use in the workplace.

The DOL’s third principle makes clear the importance of human involvement and oversight in the deployment of AI in the workplace.

Given that the advancements in AI are currently outpacing efforts to regulate the technology, the decision to implement AI in the workplace should be preceded by the implementation of safeguards to monitor its initial and subsequent use, so that the system acts in compliance with the employer’s intentions and any legal obligations related to its use.

4. Ensuring Transparency in AI Use: Employers should be transparent with workers and job seekers about the AI systems that are being used in the workplace.

The DOL’s fourth principle encourages transparency from employers regarding their use of AI tools and systems.

This principle mirrors emerging legislative efforts to develop a system that would require employers to provide notice when using AI to make an employment decision or to use the individual’s data or information as part of an AI system. For example, Assembly Bill (“AB”) 2930, which is pending in the California legislature, would require employers to notify applicants for employment if the employer intends to use AI as part of the employer’s hiring decision. The bill would also require that employers accommodate requests by applicants to opt out of the employer’s use of AI in such decision-making.

While the requirements under pending legislation are not yet law, it would be good practice for employers to develop policies and practices that increase transparency concerning their use of AI to make employment decisions.

5. Protecting Labor and Employment Rights: AI systems should not violate or undermine workers’ right to organize, health and safety rights, wage and hour rights, and anti-discrimination and anti-retaliation protections.

The DOL’s fifth principle is intended to ensure that employers use AI tools and systems in a manner that complies with existing legal obligations, whether labor or employment law.

One of the principal concerns related to the use of AI in employment decision-making is algorithmic discrimination; where an AI system uses biased data and information in such a way that perpetuates discrimination. Since AI systems use data and information from the real world to make decisions, biases present in the real world may, if unaddressed, result in outcomes that are themselves discriminatory.

To mitigate the risks associated with algorithmic discrimination, the Equal Employment Opportunity Commission (“EEOC”) issued guidance encouraging employers to audit their AI tools and systems in order to ensure that such tools and systems do not result in disparate (i.e., discriminatory) impact, which is prohibited under existing state and federal law.

Employers should be mindful about the adoption and use of new AI tools and systems and how those tools and systems are operating, as well as existing tools and systems that are beginning to incorporate AI into their products.

6. Using AI to Enable Workers: AI systems should assist, complement, and enable workers, and improve job quality.

The sixth AI principle is to enable employees to use AI to improve their work. This principle aligns with the overall goal of the Biden Administration and the DOL as they relate to the use of AI in employment contexts. Instead of using AI to reduce the number of workers and to replace employees with AI technology, this principle suggests that employers should look for opportunities where AI can assist employees in the performance of their duties.

7. Supporting Workers Impacted by AI: Employers should support or upskill workers during job transitions related to AI.

Similar to the other principles, the seventh AI Principle recommends that employers train employees on new AI systems, so that employees can learn and develop advanced skills that will make them more capable, competent, and competitive employees. Instead of replacing an employee with AI, the DOL encourages employers to support employees in gaining the experience and understanding, skills, and knowledge required in order to maintain and operate new AI systems.

8. Ensuring Responsible Use of Worker Data: Workers’ data collected, used, or created by AI systems should be limited in scope and location, used only to support legitimate business aims, and protected and handled responsibly.

DOL’s eighth and final principle relates to employee information and data.

As discussed above, employers should preserve and protect employee information and data and not compromise employee privacy or confidences through or by the use or sale of such information.

This principle also makes clear that employers should only use employee information for legitimate business purposes and not use it for other private purposes.

What’s Next?

Employers should stay tuned for guidance issued by other federal and state governmental agencies concerning the use of AI by employers in employment contexts. Relatedly, there are several bills currently pending in the California Legislature that may affect how employers may use AI.

Liebert Cassidy Whitmore is monitoring statutory and regulatory authority that may affect how employers may lawfully use AI as well as informal guidance, such as that issued by the DOL, and will be providing further updates as necessary.

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Assembling and maintaining your workforce is a crucial step in the execution of your organization’s mission and goals. Every employee is fulfilling a purposefully designed role within your operations and their current duties are supposed to be set forth by their position’s classification specification (“class spec”).  The upkeep of class specs can understandably get lost in the busy day-to-day operations and viewed as a rainy day project. When was the last time your organization reviewed class specs to ensure their accuracy and necessity? 4 years ago? 10 years ago? 20 years ago? Do not let these foundational tools become antiquated and irrelevant. 

REASONS TO UPDATE CLASS SPECS:

Resource Allocation – Pay for the work your organization needs.

A strategic review of class specs will distinguish the critical work roles within your operations. This will assist in prudently allocating financial resources to those positions necessary to thrive as an organization. Accurate class specs will also help in clearly identifying comparable positions within the competitive labor market to effectively adjust compensation rates for strong recruitment and retention outcomes.

Workforce Engagement – Pave the way for your workforce’s future.

A creative design of class specs will generate career mobility roadmaps within job families and beyond. This will help your staff take a methodical approach to their professional development by mastering essential functions of their current position and augmenting targeted knowledge, skills, and abilities of the position next level up. You will reap the rewards of an engaged, exceeding standards employee while ensuring the systematic growth of your organization’s next generation of leaders.

Title VII and FEHA Compliance – Fortify your unbiased stance in personnel actions.

A clearly defined class spec will serve as an objective, non-discriminatory foundation for all recruitment and performance based personnel decisions. Merit-based recruitments proficiently operate by the guidance of established essential functions, knowledge, skills, and abilities within the position’s class spec. In addition, formally addressing job performance issues through written evaluations and disciplinary actions requires accurate and current class specs.

ADA and FEHA Compliance – Ensure employee health and safety during job performance.

A class spec that distinctly describes essential functions, their frequency, and the environments in which they are performed will aid your occupational health provider in determining an applicant’s or employee’s fit for duty status. An employer must rely on these independent job-related medical determinations to safely put workers in appropriate roles. If significant restrictions are deemed necessary or an unfit for duty status is determined, the class spec will serve as an impartial starting point in the interactive process while exploring possible accommodations.

FLSA Compliance – Compensate as required.

Class specs assist in properly identifying qualifying exemptions from overtime to assist in the lawful recording of hours worked and payment of wages. In addition to minimum compensation requirements, FLSA overtime exemptions (Executive, Administrative, Professional, Computer, and Highly Compensated Employees) are based on the nature of an employee’s duties. Accurate depictions of an employee’s essential functions within their position’s class spec will directly govern exemption status and help your agency to ensure compliance with the law.

METHODOLOGY TO UPDATE CLASS SPECS (JOB ANALYSIS AND CLASS SPEC REVIEW):

Incumbent Perspective – Gain first-hand knowledge of what the job entails from those doing the actual work.

Develop a written questionnaire to provide incumbents the opportunity to describe and pinpoint their duties and responsibilities. Encourage as many details as possible including the environment, tools, and frequency involved with each job function.

Supervisor Perspective – Compare and contrast first-hand knowledge gained from the incumbent with insights from those who supervise the function.

Develop a similar written questionnaire to provide supervisors the opportunity to describe and pinpoint the duties and responsibilities of their subordinates. Encourage as many details as possible including the environment, tools, and frequency involved with each job function.

Executive Perspective – Properly place gathered job details within the organization’s structural context as described by those who are responsible for leading the delivery of desired services.

Craft a big-picture interview questions list to provide management the opportunity to expound on the relevancy of services delivered by the incumbents and supervisors. Encourage commentary on why the service is provided and how it currently interconnects within the larger scope of the organization’s mission.

Reviewer/Analyst Perspective – Verify and clarify any discrepancies in job details with on-site observations from an independent source.

Schedule time to job shadow an incumbent. Make notes, take pictures, and ask clarifying questions. Utilize this time to make final verifications of information gathered.

Historical Perspective – Review and understand how the role has been described in the past.

Read the prior class specs with the job analysis knowledge gained from the prior steps detailed above and identify how the position has changed based on technology advancements, organizational restructuring, shifting service providers, and evolving community priorities.

Collaboration of Perspectives – Taking into account all the information gathered during the job analysis, rework the class spec to best represent the present day demands of the position and include validated minimum qualifications that correlate to actual job duties.

Utilize a working draft document in track changes to easily account for and reference proposed updates to all stakeholders. Complete updates within a single job family or career ladder prior to moving on in order to ensure congruency and outlined mobility for incumbents and future staff.

STRATEGY TO COMMUNICATE AND IMPLEMENT UPDATES TO CLASS SPECS:

Labor Relations – Meet and Confer Obligations: Updated class specs will likely trigger certain meet and confer obligations with the exclusive representation of any represented positions.   This may only require negotiations over the impacts of your changes, but may also cause the labor organizations to seek additional compensation for some of the class spec changes as they may perceive the changes as making the classification a higher level. 

Consistent and transparent communication with your represented labor groups will foster a greater ability to productively collaborate on management initiatives. Prior to initiating a job analysis and class spec review, inform the involved labor groups of the upcoming process and the desired outcomes. Let them know their members will be integral to the success of updating class specs. Following the review and analysis, be prepared to encounter compensation-related requests from labor organizations during meetings with them. Depending on the significance of updates, your organization may want to proactively pursue a subsequent compensation study to determine comparative market positioning.

Governing Authority – Personnel Review Board or Civil Service Commission Approval: Depending on the structure of your organization, updated class specs may need to be presented and justified to a governing body or their proxy.

Management’s desire to complete an update of class specs should be shared as a proposed organizational goal with the governing authority. Typically, it is best to avoid surprises with those who are elected to lead. This organizational goal can be presented as a best practice in safeguarding efficient usage of public funds on labor costs, as well as a necessary component of continuing compliance with Federal and State labor and employment laws. Following the review and analysis, be prepared to give a high-level presentation of updates and have detailed redline documentation ready as-needed. In addition, there could be labor negotiation activity depending on the happenings during the meet and confer process.

Confirm the last time your organization completed an update of class specs and consider all the recent technology advancements, organizational restructuring, shifting service providers, and evolving community priorities. Determine strategic timing to conduct your next class spec update and evaluate your Human Resources Department’s bandwidth to complete this crucial process in-house. For external support, a team with legal and human resource expertise can assist and lead in designing a high functioning classification plan.

Accurate and updated class specs are a critical element for organizational success. They will lead to clear work expectations, high performance, and appropriate compensation. A strong classification framework directly impacts your organization’s ability to achieve its goals by properly staffing the required workforce and building operational efficiency long-term.

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At a time when transgender individuals are gaining visibility around the country, the world of employment law has been expanding to protect employees from discrimination, harassment, and retaliation on the basis of their gender identity. Given that a 2021 study showed that nearly half of LGBTQ+ employees reported discrimination or harassment on the basis of their sexual orientation or gender identity, this area of law will likely continue to develop. This post provides general guidance to employers about the rights of transgender, nonbinary, and gender nonconforming employees in California.

In 2020, the Supreme Court held that Title VII of the federal Civil Rights Act of 1964 protects employees from discrimination on the basis of sexual orientation and gender identity. (See Bostock v. Clayton County (2020) 590 U.S. 640 (“Bostock”). While this landmark determination expanded employees’ rights to file federal lawsuits, California has afforded these protections at a state level for years.

Under California law, including the Fair Employment and Housing Act (“FEHA”), Unruh Civil Rights Act, and California Code of Regulations (“CCR”), employers may not discriminate against employees based on actual or perceived sexual orientation, gender identity, and gender expression, including transgender status. Government entities and employers with at least five employees are forbidden from discriminating against these gender diverse employees at any time during hiring, employment, or termination. In addition, all employers have an obligation to take reasonable steps to prevent gender diverse employees from experiencing a hostile work environment and correct harassing behavior.

In light of the significant legislation aimed at protecting transgender, nonbinary, and gender nonconforming employees’ rights in California, employers should familiarize themselves with these laws, including the following:

Locker Rooms and Facilities. Under California law, employers have a right to use facilities that correspond to their gender identity or gender expression, regardless of the employee’s assigned gender at birth. An employer may not request documentation from the employee to prove their gender identity. Whether the employee has undergone gender reconstruction surgery is also irrelevant. However, employers can make reasonable and confidential inquiries of an employee’s gender identity for the sole purpose of ensuring safe and adequate access to facilities. If employers have single-occupant facilities, such as single-stall restrooms, they must be designated as gender-neutral with clearly posted signage.

Gender Pronouns. California law requires employers to address employees by their preferred name and pronoun, regardless of whether the employee has legally changed their name or gender identity.

Dress Codes. California prohibits employers from imposing physical appearance, grooming, or dress standards upon an applicant or employee that are inconsistent with that individual’s gender identity or gender expression.

Healthcare Coverage. Under California law, employer-provided health care plans must cover medically-necessary gender affirming care just as they cover other medically necessary treatments.

Given the legal obligations to protect transgender employees, employers should take affirmative steps to prevent discrimination and harassment, such as:

  • Educating and training supervisors and nonsupervisory employees about the laws that protect transgender, nonbinary, and gender nonconforming employees;
  • Displaying the Civil Rights Department (“CRD”) required posters about California’s Discrimination and Harassment laws and Transgender Rights in the Workplace;
  • Making the CRD’s Fact Sheet about transgender employees’ rights available to all employees;
  • Ensuring that existing harassment, discrimination, and retaliation policies conform with all legal requirements;
  • Promptly and thoroughly investigating any allegation of discrimination, harassment, or retaliation.

This post does not address exceptions, such as those for religious associations, religious rights in the workplace, Bona Fide Occupational Qualifications (“BFOQ”), and Business Necessity. Employers are encouraged to seek legal advice when addressing these issues in the workplace.

References

https://www.reuters.com/legal/us-supreme-court-hear-challenge-ban-transgender-care-minors-2024-06-24/.

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On January 1, 2024, California Government Code section 7299.7 went into effect, requiring “local agencies” to provide “emergency related information” in languages other than English.  To date, there is little guidance as to what the law legally requires, most likely because the actual implementation date is January 1, 2025.  Given that we are now over halfway to January 2025, it is probably the right time to start considering the new law’s impact.  So, let’s take a look to see how to prepare.

Where to Find Government Code section 7299.7

Government Code section 7299.7 is located in the Chapter of the Government Code known as the Dymally-Alatorre Bilingual Services Act.  (Gov. Code § 7290.)  As the name implies, this chapter focuses on language, specifically aiming to increase the accessibility of services, benefits, and rights for citizens and residents who speak languages other than English.  (Gov. Code § 7291.)  The chapter requires state agencies (as defined under Government Code section 11000) and local public agencies (as defined under Government Code section 54951) to employ a sufficient number of qualified bilingual persons in public contact positions to ensure information and services to the public in non-English languages.  (Gov. Code §§ 7292-7293.)  The chapter also requires the translation and distribution of materials explaining available services.  (Gov. Code §§ 7295-7295.4.) 

Notably, the Dymally-Alatorre Bilingual Services Act must be implemented to the extent that local, state, or federal funds are available, and to the extent permissible under federal law and the provisions of civil service law governing state and local agencies.  (Gov. Code § 7299.)  However, there are several exceptions.  The Chapter does not apply to school districts, county boards of education, or the office of a county superintendent of schools.  (Gov. Code § 7298.)   And the Department of Human Resources may exempt state agencies from certain requirements where the state agency’s primary mission does not include responsibility for furnishing information or rendering services to the public, or if the state agency has not been required to employ bilingual staff to meet its obligations and employs fewer than 25 full-time employees in public contact positions.  (Gov. Code § 7299.5.) 

What Government Code section 7299.7 Requires

Within the context of the rest of the Dymally-Alatorre Bilingual Services Act, Government Code section 7299.7 represents an expansion of law that specifically targets certain local agencies providing emergency response services to non-English speakers within their jurisdiction.  Rather than starting discussion on the first few subsections of the statute, I think it is always better to start with definitions, so I will begin by looking at subsection (e) which lists three definitions specific to this section. 

The following are defined. “Emergency” means a situation that calls for immediate action to respond to the threat of serious harm or mass casualties, including conditions of natural disaster or conditions posing extreme peril to the safety of persons and property in the territorial limits of the local agency.”  “Emergency response services” means police, fire, or emergency medical services.  And “local agency” means a city, county, city and county, or a department of a city or county.  (Gov. Code § 7299.7(e).)

The easiest definition to approach is “local agency,” which is expressly a city, county, city and county, or a department of a city or county.  This is a markedly narrower definition than the rest of the Dymally-Alatorre Bilingual Services Act uses, which is Government Code section 54951’s more expansive “county, city, whether general law or chartered, city and county, town, school district, municipal corporation, district, political subdivision, or any board, commission or agency thereof, or other local public agency” language.  Because the definition of “local agency” is expressly defined in this section, it is hard to imagine that the legislature intended anything other than what is written.  The law’s scope is further narrowed because it applies only to those local agencies that provide “emergency response services,” meaning police, fire, or emergency medical services.  (Gov. Code § 7299.7(a).)  While not a perfectly drawn line, this at least helps us understand the ballpark of which agencies and departments of agencies are affected. 

In contrast to that specificity, the definition of “emergency” is a little vague.  It clearly entails serious conditions, but what qualifies as a situation that calls for immediate action or a threat of serious harm or mass casualties?  Probably not something as gradual as climate change, maybe not something so rare or hard to predict as a lightning strike.  Maybe a beach with a history of shark attacks?  And what about extreme peril to the safety of persons and property?  Probably something like a wildfire, earthquake or tornado qualifies, but what about a string of home robberies or attempted murders?  There are no metrics on the outer bounds of what qualifies, so it is hard to say precisely, but agencies should still be able to craft policies tailored to comply with the law, especially with the assistance of legal counsel.  Agencies should be aware of these uncertainties while they proactively plan to comply with Government Code section 7299.7.

With these definitions in hand, let’s look at what the law requires if it applies to your agency.  Beginning January 1, 2025, cities and counties (or their departments) that provide police, fire, or emergency medical services need to provide information related to an emergency in English and all languages spoken jointly by 5 percent or more of the population that speaks English less than “very well.”  (Gov. Code § 7299.7(a).)  To determine which languages are required, these local agencies need to use data from the American Community Survey or “an equally reliable source,” and need to reassess the data every five years to update which languages are provided. 

The law specifically names the American Community Survey, and agencies should recognize that it “is an ongoing survey that provides vital information on a yearly basis” (which separates it from the Decennial Census that occurs every ten years) and is implemented through the United States’ Census Bureau.  Currently, the Los Angeles Regional Office handles all data collection, data dissemination, and operations for the whole of California (and six other states). A link to the American Community Survey’s homepage follows, and if you dig around, you will notice that there are a few links that may be useful, such as a link to the Census Bureau’s publicly available data (which can be filtered down to individual cities and counties), as well as pre-prepared data tables, data tools, and guidance on how to navigate data more efficiently.

If you determine that your agency should be providing information in additional languages, the next question is necessarily “what information?”  Under Government Code section 7299.7, subsection (c)(1), we are told that the agency must ensure that the quality of information translated and provided is just as “comprehensive, actionable, and timely” as the information provided to English-speaking persons.  At its base, it seems that if your agency were to provide an emergency alert of some kind in English, you also need to do so in other required languages, but we cannot say for certain what the scope of information actually is.  We also know from subsection (c)(2) that the agency must endeavor to use community members with cultural competencies and language skills that can effectively communicate with non-English speakers receiving information and “whenever feasible, native speakers of the relevant languages who also speak English fluently.”  

There are two other provisions of the new law that need mentioning.  First, beginning January 1, 2027, the Office of Planning and Research will begin surveying a sample of local agencies (to occur every three years) to determine how agencies are complying with these requirements.  (Gov. Code § 7299.7(d).)  Because that starts two years after the new requirements go into effect (and three years after the law itself went into effect), it seems that the legislature wanted to provide a bit of a grace period for agencies to learn how to comply.  Second, this new law does not affect any responsibilities required under the California Emergency Services Act, found at Government Code section 8550 et seq.  (Gov. Code § 7299.7(f).) 

Closing Thoughts on Government Code section 7299.7

Clearly, Government Code section 7299.7 is an ambitious attempt to provide emergency services information in languages other than English to those who need it.  But like with any new law, there are some questions that will probably need to be answered via legal counsel.  It could be that additional government guidance will be forthcoming to help answer questions as the commencement date gets closer.  For now, if your agency is concerned about compliance, we recommend reaching out to legal counsel for advice on how to proceed through this uncharted territory.

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

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This blog article was authored by Partner Liz Arce in 2013 and continues to be one of our most popular articles.  This post was reviewed in May 2024 and is up-to-date. 

Many public employers utilize 9/80 work schedules for non-exempt employees.  A 9/80 work schedule is essentially a two-workweek schedule of eight 9-hour days, one 8-hour day, and one day off.  However, once the 9/80 work schedule is implemented, there are a number of mistakes unsuspecting employers often make which can inadvertently trigger overtime liability. These pitfalls, which can also apply to a 3/12 work schedule, and how to avoid them are described below.

Pitfall #1 – Not Designating the Workweek Properly.  Although employers are required to designate a workweek for each non-exempt employee, they often fail to do so.  The problem this creates with respect to a 9/80 schedule is that the employee will end up working 36 hours in the first workweek and 44 hours in the second workweek because the employer uses an FLSA workweek which ends on a Saturday or Sunday night at midnight.  Thus, the employer will likely incur 4 hours of overtime liability in the second workweek.  This problem can be avoided by designating an employee’s workweek to begin four hours after the start time of the employee’s eight hour day, and designating the employee’s day off on the same day of the week in the following week.  The Department of Labor regulations implementing the FLSA specifically permit an employer to designate FLSA workweeks for individual employees.  29 CFR section 778.105.  Thus, if you have employees with different start times on their alternating work day, their FLSA workweek can be different – four hours after the start time of their shift.

Pitfall #2 – Allowing Employees to Change or Switch Their Regular Day Off.  Employers should be cautious of employee requests to change their regular day off because moving it will likely cause the employer to incur four hours of overtime liability.  For example, if an employee who is off-duty every other Friday is scheduled to work this Friday, he/she might ask to take this Friday off and work the following Friday (the day he is ordinarily scheduled to be off duty).  Because each 40 hour workweek is examined on its own, this scenario will result in more hours being worked in one of the two workweeks in the two week pay period.  The best way to avoid this problem is to prohibit employees from changing or switching their regular day off.

Pitfall #3 – Allowing Employees to Come In and Leave Early.  In addition to coming in and leaving early, employees who are permitted to come in and leave late on the alternating work day could also trigger overtime.  Because the workweek in a 9/80 schedule begins four hours into their eight hour shift on the day of the week which constitutes their alternating work day, permitting an employee to work more or less hours before the four hour cutoff will cause overtime to accrue.  For example, if an employee whose workweek starts at noon (because his regular Friday hours are from 8:00 a.m. to 5:00 p.m.) came to work at 6:30 a.m. on Friday and worked until 3:30 p.m., the employee would be owed 1.5 hours of overtime because the hours worked between 6:30 a.m. and noon would be in the first workweek of the two week pay period.  Like the solution to Pitfall #2, employers can avoid overtime liability under this scenario by not allowing employees to adjust the start and end times of their shifts.

Pitfall #4 – Failing to Monitor When Lunch Is Taken.  Failure to monitor lunches on the alternating day worked (e.g., Friday) could also inadvertently trigger an overtime obligation.  For example, if an employee is scheduled to work between 8:00 a.m. and 5:00 p.m. on the alternating Friday and has an unpaid one hour lunch, the employee should work the first four hours (until noon), then take lunch, and return to work the last four hours (until 5:00 p.m.).  However, if the employee decided to take lunch at 11:00 a.m., this would result in the employee working the last five hours after 12:00 p.m. thereby triggering one hour of overtime liability in the second workweek of the two week pay period.  Thus, employers should emphasize to employees the importance of taking lunch after the first four hours of the alternating work day and periodically audit employee lunch breaks to make sure they are being taken at the appropriate time.

Public employers are encouraged to scrutinize their use of the 9/80 work schedule to see if any of the common mistakes are being made.  This may require employers to separately examine each department, division or unit as there may be variations in each group’s practices.

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The days are getting longer and the vacation requests are piling up. If your agency uses compensatory time off, or “CTO,” granting vacation requests can be tricky when everyone wants to take time off at the same time.

What is CTO?

The Federal Labor Standards Act (“FLSA”) requires employers to pay employees at least 1.5x the employee’s regular rate of pay for overtime hours worked. Alternatively, the FLSA allows public employers and employees to agree on a different method of compensation: CTO. Instead of paying 1.5x the regular rate of pay for overtime hours worked, public employers can instead provide employees with time off work at 1.5x their overtime hours worked.

Using CTO is quite different from using regular vacation leave. For vacation leave, employers may typically approve or deny an employee’s request subject only to conditions in the employer’s personnel rules or applicable memoranda of understanding.

For CTO, agencies must be familiar with two standards: (1) “reasonable period” and (2) “undue disruption.”

A “reasonable period” considers the “customary work practices within the agency based on the facts and circumstances in each case.” The FLSA regulations provide four non-exhaustive factors that could contribute to the analysis: (1) the normal schedule of work; (2) the anticipated peak workloads based on past experience; (3) emergency requirements for staff and services; and (4) availability of qualified substitute staff. For represented employees, the agency should strongly defer to the MOU’s provisions on CTO to determine what is reasonable, if applicable.

If the agency cannot provide a reasonable period of time in which the employee can use CTO, the agency must be able to justify its decision by showing undue disruption. “Undue disruption” is an unreasonable burden on the agency’s ability to provide services of acceptable quality and quantity.

Typically, showing undue disruption is a difficult task. Undue disruption is more than a mere inconvenience, and there is some authority that even having to hire replacements—by itself—does not establish undue disruption.

Save the Date

The Department of Labor (“DOL”) maintains its “longstanding position that employees are entitled to use compensatory time on the date requested absent undue disruption to the agency.”

In contrast, the Ninth Circuit held in 2004 in Mortensen v. County of Sacramento that the FLSA does not require employers to approve an employee’s specifically requested CTO date. Instead, once an employee requests CTO, the agency has a reasonable period of time to grant the request.

The Ninth Circuit declined to defer to the DOL’s interpretation  because it concluded that the text of the FLSA “unambiguously states that once an employee requests the use of CTO, the employer has a reasonable period of time to allow the employee to use accrued time.” Thus, employers may provide a reasonable period of time in which the employee can use CTO, without showing that the employee’s specifically requested date would cause undue disruption.

The Ninth Circuit’s decision in Mortensen remains unchallenged in this jurisdiction, and the Supreme Court has not reviewed the issue. Accordingly, California agencies are likely able to follow Mortensen’s decision and provide employees with a reasonable period of time in which they can use CTO instead of approving the employee’s specifically requested date.

A reasonable period of time, as mentioned previously, may depend on several factors, such as the agency’s practice of approving time off requests. In Mortensen, for example, the County of Sacramento had the following “leave book” policy: If the CTO request falls on a date for which all the leave openings are full, the County denies the CTO request. The employee may select any other day with a leave opening, up to one year. If the employee has not used their CTO within a year, the County cashes out the CTO.

The Ninth Circuit held that this policy complies with the FLSA, even though the “reasonable period” may theoretically last for up to one year. The Court observed that the County used this same policy for all leaves and the employee’s bargaining unit assented to the policy under the MOU.

In sum, when an employee requests to use their accrued CTO, the agency must grant the request to use CTO within a reasonable period unless the request will unduly disrupt the agency’s operations. That is, the agency is not required to grant a request to use CTO on a specific date. However, the employee must be able to use the CTO within a reasonable period, which depends on several factors mentioned above. Otherwise, the agency must be able to show that allowing CTO use within a reasonable period would unduly disrupt the agency’s operations.

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At Columbia, Yale, University of Southern California, University of Texas, University of California Los Angeles, and elsewhere one has seen tent city campus landscapes, and students gathered for delivery of impassioned chants before cameras, sitting quietly with protest signs against walkways, or alternating turns to speak publicly to gathered crowds.  Many times, however, news cameras capture scenes of harsh face-to-face conflict, clashes with police, and organized lawless acts by students, who trespass or interfere with campus operations — to underscore their demands and their commitment to a cause. 

The pro-Palestinian protests at U.S. institutions of higher education present unprecedented legal challenges for administrators.  At public institutions, administrators have to contend with the First Amendment rights of not just students and faculty who participate in protests, but also outsiders to campus who choose to join the protests and perhaps propel them further.  At the same time, protest rhetoric has taken what many perceive as an overtly menacing tone, and administrators must carefully safeguard their community members’ rights to be free of harassment, and perceived threats to their safety.

This post presents six legal areas for issue-spotting by administrators.

1.  It goes without saying that public colleges have to allow peaceful protests in areas designated for free expression.  At community colleges, board policies and administrative procedures often specify that all outside areas generally available to students and the community may be used for expressive activities (some have more limited areas).  Campus requirements for students, employees, or outsiders to obtain advance permission to use the speech areas carry a strong risk that a Court will strike the regulations down as unconstitutional prior restraints on speech, and many college procedures instead involve only an optional check-in prior to use of the areas.  A public college can place legitimate time, place, and manner restrictions on use of the areas, and these restrictions by definition will have nothing to do with the content of the expression.  They can include, for example reasonable limitations on use of amplification, provisions that the campus areas are closed overnight and cannot be used for camping, and also requirements that expressive activities cannot improperly disrupt or interfere with the college’s operations. 

2.  It is lawful for a public college to take action when legitimate rules are violated, even when protestors commit the violations in the name of their cause and the right to free expression.  When students occupy administrative offices, block campus traffic, or trespass, they can legitimately suffer consequences without having their First Amendment rights infringed.  The consequences can include not just suspension or other student discipline, but arrest and even criminal prosecution.  Our nation has a long and honored tradition of civil disobedience as a means of effectuating change, and in the view of many, the willingness to suffer the legal consequences in support of a cause serves as part of what provides these acts of disobedience their moral significance.

3.  Colleges and universities accepting federal funding have an obligation under Title VI of the federal Civil Rights Act to protect students from unlawful harassment on campus on the basis of these students’ protected classifications, including race, color, and national origin.  This obligation extends to harassment based on religion, under the “shared ancestry” rule developed by the federal Office for Civil Rights (“OCR”).  (Executive Order 13899, issued in 2019 on Combating Anti-Semitism, reaffirms the principle that anti-Semitism and discrimination against Jews are prohibited under Title VI based on a “shared ancestry.”)  If the speech is sufficiently severe or pervasive to create a hostile environment under the applicable anti-discrimination law, the institution must act to eliminate the hostile environment and prevent the harassment from reoccurring.  Also, as the Department of Education clarified in a recent “Dear Colleague” letter, speech need not target an individual to constitute harassment under federal anti-discrimination laws.  Speech issued to the public can rise to the level of harassment if, based on the totality of circumstances, the speech is “subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the recipient’s education program or activity.”

How can an institution both allow protests that could involve harsh rhetoric based on what appear to be protected classifications, and at the same time protect students?  The OCR has provided some guidance, and this includes making sure that students are able to navigate their way to class and to other commitments without encountering protests.  An institution can take the more extreme step of putting into place remote learning, as Columbia University has done.

4.  A public college does not have to tolerate as part of a protest, expression that qualifies as a “true threat,” which is a serious expression of an intent to commit unlawful violence to a particular individual or group of individuals.  Such a speech lacks First Amendment protection.  Also, hate speech that does not qualify as a true threat could subject a student speaker to discipline under the student code of conduct, or a faculty member or other employee to discipline.  Hate speech by outsiders can be dealt with under California Penal Code sections 626.4 and 626.6 when the standards of those statutes as to threat and level of disruption are met.  Those statutes authorize individuals to be directed off campus and barred from returning for a certain time.  Also, a college or university can request that law enforcement prosecute criminal conduct that outsiders commit on campus.

5.  If the public college opens a forum for exchange of views (on social media, in a listserv, at a town hall), then administrators cannot discriminate against viewpoints.  Protesters’ views need to be included when relevant to the topic.  But the First Amendment does not authorize protesters to interfere with, disrupt, or interject presentations into an event or function dedicated to an unrelated purpose.  For example, top constitutional law scholar Erwin Chemerinsky of U.C. Berkeley recently hosted a dinner event for students at his and his wife’s private residence.  Protesters attended the event and one stood with a microphone they had brought to deliver remarks on Palestine; even though the host had created no “forum” for expression of views in this manner.  Free speech commentators agreed afterwards that hosts in such a situation could stop the expressive activity (in this case for the additional reason that the event took place on the hosts’ private property).

6.  What are the risks in just letting protests continue, even if administrators could halt them without offending the First Amendment or other laws?  As a general rule, if the protesters break rules, the protest should not continue, but if the protesters do not break rules the protest may continue.  There should not be administrator discretion in which expressive activities go forward and which do not.  Picking and choosing presents the risk that other sets of protestors, for a different cause, at some future time, who do experience consequences for violating campus policy, can argue that administrators have violated the First Amendment by engaging in viewpoint discrimination – in particular, allowing other protests but not theirs. 

It is critical to contact trusted legal counsel to navigate these challenging issues on campus.