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This year’s presidential election will take place in only about a month and a half, and in the final weeks, one can expect an increase in political discussion and debate.  This discussion and debate could certainly continue after the election as well.  This activity could make its way into the government workplace, and public agencies should prepare to respond appropriately and lawfully.  The First Amendment requires that public employers respect certain employee free speech rights, particularly concerning politics.  At the same time, laws prohibit use of government resources for political activity.  Government employers also have rights to safeguard their operations from disruption.

This post collects and describes some of the primary laws addressing the issues government employers face for yet another eventful national election.

Employee Free Speech in the Office, on Social Media, and Elsewhere

Political speech rests at the core of what the First Amendment protects, and Courts only reluctantly allow a government agency to punish or attempt to censor such speech.  This is true even for those who work for the agency and engage in political speech in their personal capacity.

At the same time, statements by employees on social media that harm or threaten to harm the agency’s operations in a sufficiently severe way can serve as the basis for discipline, notwithstanding constitutional free speech protections.  For example, the employee could disclose on social media important and legitimate confidential information of the agency, or could misrepresent that they speak for the agency on a social issue related to an election.  Also, statements by law enforcement officers in the course of political discussions that show prejudice or bias, if made public, can give the impression the officers will fail to protect certain segments of the community adequately, and may make fellow employees sufficiently uncomfortable in the workplace that the officers have effectively disrupted the agency’s operations.  If the impacts on the agency are severe enough, the officers could not claim the First Amendment protects them from being disciplined.

Under First Amendment principles, a public employee cannot be disciplined for their speech (1) on matters of “public concern,” (2) that is outside the scope of the employee’s “official duties,” and (3) that prevails in a balancing test which weighs, in essence, disruption of a government agency’s operations against the importance of the speech interest at issue.  Courts have described the balancing as “whether the [state]’s legitimate administrative interests outweigh the employee’s First Amendment rights.”

Political Activities on Work Premises or During Work Time

Under California law, public agencies can prohibit employees from engaging in “political activities” at the actual workplace, even including political activities during personal time at work.  Government Code section 3207 provides: a local agency “by establishing rules and regulations, may prohibit or otherwise restrict the following: (a) Officers and employees engaging in political activity during working hours” and “(b) Political activities on the premises of the local agency.”  The agency should promulgate a workplace rule or regulation to describe this type of prohibition.

The Government Code provides that public agencies should not place restrictions beyond these, however.  Section 3203 provides, “Except as otherwise provided . . . no restriction shall be placed on the political activities of any officer or employee of a state or local agency.”

Political Activities in Uniform

California law prohibits public employees from engaging in political activities while in uniform.  Government Code section 3206 provides that “[n]o officer or employee of a local agency shall participate in political activities of any kind while in uniform.”  For public safety officers and firefighters specifically, California law provides that their employers cannot prohibit them from engaging in “political activity,” except when those employees are on duty or when they are in uniform.  (Gov. Code, §§ 3302, subd. (a), 3252, subd. (a).)

Employee Use of Agency Resources for Partisan Politics

California law prohibits the use of government agency resources for partisan political activities related to an election – this includes copy machines, office supplies, office e-mail, office computer systems, or other resources.  The California Supreme Court in Stanson v. Mott in 1976 held squarely that agency use of resources to support one side in an election (in that case to support passage of a bond measure) violates state law.  Enacted in 2001, Government Code section 54964 writes into law the Stanson holding.  In addition, Government Code section 8314 provides, “It is unlawful for any elected state or local officer, including any state or local appointee, employee, or consultant, to use or permit others to use public resources for a campaign activity . . . .”

For California public educational institutions in particular, Education Code section 7054 provides, “No school district or community college district funds, services, supplies, or equipment shall be used for the purpose of urging the support or defeat of any ballot measure or candidate, including, but not limited to, any candidate for election to the governing board of the district.”  The statute imposes criminal penalties for a violation.

Education Code section 7054.1, however, provides a carve-out related to bond issues that are on the ballot.  It allows board members and administrators to appear before citizen groups and provide reasons why the board called a bond election and allowing responses to inquiries from the citizen groups.

Time Off to Vote

California law provides employees the right to take enough time off from work to vote, if they are unable to do so during off-work hours that the polls are open.  Elections Code section 14000 subdivision (a) provides, “If a voter does not have sufficient time outside of working hours to vote at a statewide election, the voter may, without loss of pay, take off enough working time that, when added to the voting time available outside of working hours, will enable the voter to vote.”  Section 14000 subdivision (b) provides, “No more than two hours of the time taken off for voting shall be without loss of pay.”  (Emphasis added.)

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

Conclusion

Questions regarding political activities and the government workplace can raise complex issues, and trusted legal counsel can help navigate the agency’s response.  Also, a prudent administrator or manager will review the agency’s personnel and other policies in advance to be ready when issues do arise. 

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.

This post appeared in November 2017.  It was reviewed in September 2024 to provide the most up-to-date legal information.

This principle used to be clear – paid administrative leave was outside the scope of adverse employment action.  This was based on court holdings that an employee suffers no substantial or material change in terms and conditions of employment while on paid administrative leave.  For years, courts held that an employee who is put on paid administrative leave cannot prove he or she suffered an adverse employment action to give rise to a viable discrimination or retaliation claim.  However, what once was clear, is no more.

First, in 2013, the Ninth Circuit put into question the principle that paid administrative leave does not constitute a type of adverse employment action.  In Dahlia v. Rodriguez (9th Cir. 2013) 735 F.3d 1060, the Ninth Circuit held paid administrative leave could constitute an adverse employment action when considering the totality of the circumstances.  Second, on November 15, 2017, the Fourth District Court of Appeal issued a decision in Whitehall v. County of San Bernardino (2017) 17 Cal.App.5th 352, holding that the imposition of an administrative leave may constitute an adverse employment action.   Since 2017, there has been at least one published California case and one published federal court case that have found that placement on paid administrative leave may constitute an adverse employment action depending on the specific facts presented. [1]

The decisions in Whitehall and Dahlia have forced California employers to rethink when paid administrative leave may qualify as an adverse employment action and to consider the risk involved with placing an employee on paid administrative leave.

The Purpose of Paid Administrative Leave

The purpose of paid administrative leave is to temporarily remove an employee from the workplace to address a particular situation.  For example, if an employee engages in or threatens violence in the workplace, an employer can and should remove the employee from the workplace pending an investigation into the alleged misconduct.  Paid administrative leave has also been used by employers when, on balance, they feel it is better that the subject of an investigation is not in the workplace while the investigation is pending.  Use of paid administrative leave has not been limited to investigations of discrimination, harassment or retaliation.  It has had widespread use for many different types of alleged misconduct.

During paid administrative leave, the employee is typically relieved of all duties and responsibilities of his/her position.  The employee remains employed by the agency and continues to receive full pay and benefits.  During the leave, an agency may prohibit the employee from entering agency-owned property or facilities and can order the employee to surrender all agency-provided property (office keys, IDs, credit cards, computers, etc.).  The agency can also require the employee to remain available during regular business hours to answer any and all work-related inquiries.

The Definition of an Adverse Employment Action

The California Supreme Court has coined “adverse employment action” as a “term of art.”  It is generally used as a shorthand description of the kind of adverse treatment imposed upon an employee to support a cause of action under a discrimination or retaliation statute.

Employees in California may bring claims of discrimination and retaliation pursuant to the Fair Employment and Housing Act (“FEHA”).  Under the FEHA, an adverse employment action must be reasonably likely to impair an employee’s job performance or prospects for advances. [2]  It does not include minor or trivial actions that do no more than anger or upset an employee.  While an adverse employment action may include more than just “ultimate” employment acts, such as failure to hire, termination, demotion, or failure to promote, it nevertheless requires “a substantial adverse change in the terms and conditions” of employment. [3]  The reason why an employee must provide a substantial adverse job effect is to guard the employer from judicial micromanagement of business practices and frivolous lawsuits over insignificant slights.  This brings up the question, is paid administrative leave a substantial and adverse change in employment?

The Split in Federal Circuit Court Authority

There is a split in federal circuit authority about whether paid administrative leave constitutes adverse or punitive action.  Some circuits have a split in authority even amongst district courts within the circuit.  This is because the determination of whether paid administrative constitutes an adverse employment action involves the courts to closely scrutinize the exact facts in the case.  There is no one-size-fits all answer and courts sometimes have to draw lines that are not always clear in deciding whether there has been a substantial or material change in the terms and conditions of employment.  The Ninth Circuit, which is the circuit whose decisions govern employers in California, has found paid administrative leave can be an adverse employment action in the Dahlia case.  A court in the First Circuit has found that whether paid administrative leave is a materially adverse action is “an objective test and ‘should be judged from the perspective of a reasonable person in the plaintiff’s position, considering all the circumstances.’” [4]  There are cases from the Second, Third, Fifth, Sixth, Seventh, Eighth, and Tenth Circuits that have held that placing an employee on paid administrative leave, without more, is not an adverse employment action. [5]  There have also been other cases from the Fifth and Sixth Circuits that have found that paid administrative leave cannot be flatly ruled out as an adverse employment action. [6]

Deviation in the Ninth Circuit

Dahlia v. Rodriguez was the first Ninth Circuit case to decide whether placement on administrative leave constitutes an adverse employment action.  In Dahlia, Burbank Police Detective John Dahlia was assigned to assist a robbery investigation.  A day after the robbery, Dahlia allegedly observed Lieutenant Omar Rodriguez grab a suspect and threaten him with a gun.  Later that evening, Dahlia claimed he heard yelling and the sound of someone being slapped in a room where a Sergeant was interviewing another suspect. Dahlia met with a Lieutenant to disclose the abuse he witnessed and was allegedly told to “stop his sniveling.”  The Burbank Police Department’s Internal Affairs Unit initiated an investigation into the physical abuse related to the robbery.  Following Dahlia’s interview with internal affairs, the City placed Dahlia on paid administrative leave pending the determination of discipline.  Dahlia filed a lawsuit against the City alleging that he was placed on paid administrative leave in retaliation for exercising his free speech rights in disclosing alleged abusive interrogation tactics by other officers.

To succeed on a claim of retaliation, one element the plaintiff must prove is he or she suffered an adverse employment action.  The lower court found that placement on paid administrative leave did not constitute an adverse employment action for purposes of First Amendment retaliation.  The Ninth Circuit disagreed.  The Ninth Circuit concluded that, under some circumstances, placement on administrative leave can constitute an adverse employment action.  The Ninth Circuit reasoned that to constitute an adverse employment action, the retaliation need not be severe or of a certain kind.  For First Amendment retaliation cases, the key inquiry was whether the action was “reasonably likely to deter employees from engaging in the protected activity.”

The Ninth Circuit was persuaded by Dahlia’s assertion that paid administrative leave, when considered in the context of his employment, prevented him from taking the sergeant’s exam, required him to forfeit on-call and holiday pay, and prevented him from furthering his investigative experience.  The Ninth Circuit held that if Dahlia could prove these effects, he could prove he suffered an adverse employment action because these effects and the general stigma from being put on administrative leave likely deter employees from engaging in protected activity.  Ultimately, Dahlia does not hold that paid administrative leave must always constitute an adverse employment action, rather it provides a short and under-developed conclusion that paid administrative leave, by itself, may constitute an adverse employment action in some situations.

Dahlia’s analysis focused on paid administrative leave in retaliation cases.  The California Court of Appeal, in Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, has also determined that a paid administrative leave may constitute an adverse employment action in a discrimination case.  In Horsford, a police officer was placed on paid administrative leave because of a claim that he was mentally unstable.  After he was cleared to return to work by two psychologists, he was still not allowed to return to his position as an officer.  In assessing whether the officer suffered an adverse employment action to prove a discrimination charge, the Court of Appeal noted the jury was entitled to collectively consider the alleged discriminatory acts.  In other words, the employer’s acts could be viewed under the totality of the circumstances.  The Court of Appeal found that an officer who is removed from a highly desirable position and placed on paid administrative leave for months suffered an adverse employment action because a jury could find that the leave was unjustified and may have resulted from racial animus.

California’s Fourth District Court’s Interpretation in Whitehall

In Whitehall v. County of San Bernardino, the Fourth District Court of Appeal addressed whether paid administrative leave could constitute an adverse employment action.  The Court described the facts as follows:  Mary Anna Whitehall was a social worker for San Bernardino County Children and Family Services (“CFS”).  After CFS assigned another social worker, Eric B., to investigate the death of a nine-month-old baby who died under suspicious circumstances, the baby’s four older siblings were placed in protective custody.  CFS assigned Whitehall to investigate for the jurisdiction/disposition hearing, an assignment referred to as a “J/D writer.”  In her investigation, Whitehall collected evidence that validated Eric’s concerns for the safety of the four older children.  Whitehall collected the police report, photographs of the family home from the time of the baby’s death showing filthy, unsanitary conditions, and reports from the medical examinations of the four older siblings showing ligature marks on their wrists and ankles and burn marks.

The deputy director of CFS allegedly instructed Whitehall to withhold certain photographs and to provide altered ones.  Whitehall learned CFS never provided a complete police report to the court, so she gave the assigned deputy county counsel a computer disk containing all photographs obtained from police.  Subsequently, CFS removed Whitehall from the case and instructed her not to discuss the case with the new J/D writer, contrary to normal practice.  In addition, CFS fired Eric for allegedly exaggerating the condition of the house and reporting the smell of methamphetamine despite the fact that the social worker who assisted him during the initial response corroborated his version of events.

Concerned about her potential liability for withholding evidence and providing altered photographs to the court and counsel, Whitehall met with an attorney to discuss her situation.  The attorney drafted a declaration for Whitehall and Whitehall, Eric, and the social worker who had assisted Eric during the initial response filed a motion informing the juvenile court that CFS had perpetrated a fraud upon the court.

Six days after filing the motion, CFS placed Whitehall on administrative leave while it conducted an internal investigation into Whitehall’s potential violation of County rules and policies barring disclosure of confidential information to unauthorized persons.  After Whitehall was on administrative leave for approximately two months, which included two hearings, the County decided to terminate Whitehall for violating the confidentiality policy.  However, after learning of the County’s intentions to terminate her, Whitehall resigned.  Whitehall filed a complaint against the County and CFS based on whistleblower liability and retaliation.

Essentially, Whitehall turns on the whistleblower statute, Labor Code section 1102.5, which prohibits an employer from retaliating against an employee for disclosing information that may evidence improper government activity, if the purpose of the disclosure was to remedy the improper situation.  The Court found that the County’s placement of Whitehall on administrative leave with the intention of firing her was in retaliation for Whitehall’s disclosure to the juvenile court the County’s attempt to manipulate evidence.  Thus, the Court found that Whitehall’s paid administrative leave constituted an adverse employment action.

As in Dahlia, the court’s decision in Whitehall does not assert that paid administrative leave always constitutes an adverse employment action.  Rather, the Whitehall decision merely establishes that paid administrative leave may constitute an adverse employment action in certain circumstances.  Furthermore, the court in Whitehall reiterated that adverse employment claims remain inherently fact-specific.  Quoting Yanowitz v. L’Oreal USA (2005), the court reaffirmed that:

“The impact of an employer’s action in a particular case must be evaluated in context. Accordingly, although an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into the account the unique circumstances of the affected employee as well as the workplace context of the claims.” (26 Cal.4th 1028, 1051.)

The Effect of Dahlia & Whitehall

In the past, if an employee was placed on paid administrative leave but suffered no additional punitive action, he or she could not bring a successful claim of discrimination or retaliation because none of the employer’s actions materially or substantially affected the terms or conditions of employment.

This assumption changed post-Dahlia.  Even though an employee receives full pay and benefits during paid administrative leave, when looking at the totality of the circumstances, a court may find the secondary effects that come as a natural result of being away from the workplace deter an employee from engaging in protected activity and constitute adverse employment action.  Furthermore, after Whitehall, a court may find that an employee placed on paid administrative leave shortly after “whistle-blowing” or engaging in other protected activity experienced an adverse employment action.

Based on Whitehall, Dahlia and Horsford, the court may consider the loss of promotional opportunities, the loss of specialty pay, the loss of opportunities to gain work experience, whether the employer had a legitimate managerial reason to place the employee on paid administrative leave, the stigma of being placed on administrative leave, and the employee’s participation in protected activity.

However, these cases continue to leave open questions.  When does paid administrative leave cross over to an adverse employment action?  What if the employer places the employee on paid administrative leave but allows the employee to take a promotional examination when the opportunity arises?  What if the employer agrees to set a practice where employees on paid administrative leave will receive holiday pay while on leave?  What if the employer calls the time off a “paid suspension” instead of paid administrative leave?

If paid administrative leave can be an adverse employment action, then employees placed on paid administrative leave who file a discrimination or retaliation lawsuit against an employer have added leverage in proving their case or negotiating a settlement.  This creates tricky situations for employers who must now assess the risk in placing an employee on paid administrative leave.

Example 1: A Police Department suspects that a police officer violated a direct order from a sergeant to stay out of the downtown area during his shift and not get involved with a particular group of suspected gang members.  The Department wants to conduct an internal affairs investigation and place him on paid administrative leave during the investigation.  Should the Department place the police officer on paid administrative leave?

Most likely yes.  It is fairly standard for an employee to be placed on paid administrative leave during an investigation.  If the Department regularly places officers on paid administrative leave during pending investigations, particularly investigations into insubordination, then the Department can do so in this case.  In this example, there appears to be no evidence that the officer engaged in protected activity.  However, if the officer has engaged in protected activity, then the Department must consider whether placing the officer on paid administrative leave would likely deter employees from engaging in that protected activity.

Example 2: An IT Analyst submits a letter of resignation to the County on Monday stating that he is resigning effective Friday.  On that same Monday, the IT Analyst provides a statement to an investigator regarding an investigation involving another employee.  The County suspects that the IT Analyst is sharing information with the other employee in a manner that harms the integrity of the investigation.  The County does not want the IT Analyst in the workplace for the remainder of the week as the investigation is taking place.  Should the County place the IT Analyst on paid administrative leave until the effective date of his resignation?

Probably not.  The biggest risk the County has to consider is that the employee likely engaged in protected activity by making statements to the investigator.  If the County places the IT Analyst on paid administrative leave, it might be construed as an adverse employment action in retaliation following his protected activity.  The risk increases if the County has no history of ever placing an employee who has resigned on paid administrative leave.  An alternative to paid administrative leave is for the County to offer the IT Analyst the option of taking time off with pay leading up to his last day on Friday.  If the IT Analyst chooses to voluntarily take this offer, the IT Analyst will remain away from the workplace and cannot allege that the County took adverse employment action against him.

Example 3: A water district employee has expressed genuine concerns to her supervisor about the efficacy of the district’s current lead testing protocols on a few occasions.  Each time, the supervisor told the employee that she was handling the issue.  In fact, the district was adequately and properly addressing the issue and working on updating the lead testing protocols.  Concerned that her supervisor was not adequately addressing the issue, the employee brings her concern and documentation of a recent lead test report to the Department of Drinking Water. Individuals at the district learn of the employee’s revelation of district information to the Department and conduct an investigation.  Should the district place this employee on paid administrative leave while conducting the investigation?

Most likely no.  Should the employee file a complaint under the whistleblower statute, the court may conclude that paid administrative leave constitutes retaliation, and thus an adverse employment action.  Instead, the agency should first conduct an investigation into the allegation and impose discipline based on the results of the investigation.

Due Process Disciplinary Rights

Another question that remains: if paid administrative leave can be an adverse employment action, then must employers provide pre-disciplinary and post-disciplinary due process rights to an employee prior to placing them on paid administrative leave?  In Skelly v. State Personnel Board (1975) 15 Cal.3d 194, the California Supreme Court held that a permanent public employee’s property rights (i.e., their vested right to continued employment) cannot be taken away by an employer without first being affording certain procedural safeguards. Where “significant punitive action” is imposed, an employee is entitled to notice of the proposed disciplinary action, a statement of the reasons for the proposed disciplinary action, a copy of the charges and materials on which the proposed discipline is based, and the right to respond, either orally or in writing, to the authority initially proposing the action.  Generally, discharges, suspensions, demotions, and disciplinary reductions in pay are considered “significant” punitive action.  Warnings and reprimands are not considered “significant” punitive actions.  If paid administrative leave may constitute an adverse employment action, then it is not clear whether paid administrative leave could also constitute a significant punitive action depending on the circumstances.

For police officers, the lingering question is whether paid administrative leave can be considered punitive action?  The Public Safety Officers Procedural Bill of Rights Act (“POBR”) provides police officers with the right to administratively appeal punitive actions.  The POBR defines “punitive action” as any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.  There is currently no case law holding that paid administrative leave constitutes punitive action for purposes of entitling an officer to the right to appeal a paid administrative leave decision.

Factors to Consider When Making a Paid Administrative Leave Decision

In light of Whitehall, Dahlia and Horsford, agencies in California should remain aware that the relationship between paid administrative leave and an adverse employment action is not so clear anymore.  Below is a checklist of the factors agencies should consider when making a decision to place an employee on paid administrative and conducting a risk assessment into such decision.  Courts will determine whether paid administrative leave constitutes an adverse employment action by looking at the totality of the circumstances.  These factors balance the various factors a court may consider.

  • Will the employee continue to receive full pay and benefits?

To help keep paid administrative leave out of the realm of an adverse employment action, the employee must continue to receive full pay and benefits.  This means the employee must continue to receive any and all health, dental, vision, and life insurance.  The employee must continue to accrue vacation, sick leave, and personal time off just as he/she would be entitled to accrue if he/she was not on leave.  Under Dahlia, receipt of full pay may mean that in addition to the employee’s regular wages, the employee should continue to receive some types of specialty pay.  The employer should provide employees on paid administrative leave with the same specialty pay it provides employees on other types of paid leave, such as vacation and paid sick leave.  This could include educational pay, shooting pay, longevity pay, special assignment pay, and/or acting pay.  Other types of specialty pay may require the employee to actually perform the work necessary to receive the pay, such as on-call pay and standby pay.

  • Has the employee engaged in protected activity?

If the employee has engaged in protected activity, then placing an employee on paid administrative leave immediately following such protected activity may appear retaliatory.  Protected activity includes but is not limited to free speech, whistleblowing, opposition to harassment, discrimination, and retaliation, concerted activity, participation in a discrimination proceeding, and requesting a reasonable accommodation based on religion or disability.  If the decision has no connection to the employee’s protected activity, the employer must nevertheless be prepared to defend its decision to place an employee on paid administrative leave so close in temporal proximity to the protected activity.  The employer can offer evidence that the action was taken for a legitimate, nondiscriminatory reason, but the better option may be to consider alternatives before placing the employee on paid administrative leave in the first place.

  • Is the leave likely to deter employees from engaging in protected activity?

The Ninth Circuit in Dahlia held that the proper inquiry in determining whether paid administrative leave constitutes an adverse employment action is: whether the action is reasonably likely to deter employees from engaging in protected activity?  If employee activity is reasonably likely to be chilled due to the fear of being placed on paid administrative leave, then it may constitute an adverse employment action.

  • Are any of the secondary effects of the leave likely to deter employees from engaging in protected activity?

In addition to the paid administrative leave itself, if any secondary effects that come as a natural result of the employee being away from the workplace are likely to deter employees from engaging in protected activity, then the leave may constitute an adverse employment action.  Examples of secondary effects include loss of specialty pay, loss of opportunities for promotion, and loss of opportunities to gain experience.

  • What has the employer done in similar situations in the past?

Employers should consider past practices.  If the employer regularly places suspect employees on paid administrative leave pending harassment, discrimination, and retaliation investigations, then it has a strong reason to continue that practice.  By establishing that it has placed similarly situated employees on paid administrative leave in the past, the employer can demonstrate that it has not singled out a particular employee.  Such past practice will also help the employer prove it had a legitimate, nondiscriminatory reason to place the employee on paid administrative leave.

  • Will the paid administrative leave hinder an employee’s opportunity for promotion or advancement?

If paid administrative leave will prevent an employee from applying for a promotion or taking a test for advancement, then he/she may claim that the leave constitutes an adverse employment action.  Since employees are frequently told to remain available during working hours during paid administrative leave, employers may want to consider allowing an employee on leave the chance to apply for promotional opportunities to the same extent the employee could have applied if his/she was not on leave.

  • Will the employee encounter stigma in the workplace for being placed on paid administrative leave?

The Ninth Circuit held that if Dahlia could prove the general stigma from being put on administrative leave deterred employees from engaging in protected activity, he could prove the leave constituted an adverse employment action.  Whenever an employee is placed on paid administrative leave, his/her coworkers are bound to notice his/her absence but that alone likely does not create stigma.  However, if an employee can prove that employees refrain from engaging in protected activity because they fear being placed on paid administrative leave will alienate them, cause harm to their relationships with coworkers, or create some other stigmatizing effect, then a court may find the leave to be an adverse employment action.

  • Are there any alternatives to placing this employee on paid administrative leave?

On a case by case basis, the employer should consider whether there are any alternatives to placing an employee on paid administrative leave.  Thinking back to the purpose of paid administrative leave, can the employer address the situation without removing the employee from the workplace?  Can the employer request that the employee take voluntary paid leave?  Can the employer place the employee in a different work location on a temporary basis pending the conclusion of an investigation?  Can the employer require the employee to telework?  These alternatives may achieve the employer’s goal without raising adverse employment action questions.

If you have any questions about this issue, please contact our Los Angeles, San Francisco, Fresno, Sacramento, or San Diego office.

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[1] Taswell v. Regents of University of California (2018) 23 Cal.App.5th 343, 365 (placement on paid leave pending investigation and, that same day, informed contract would not be renewed constitute adverse employment actions); United States ex rel. Herman v. Coloplast Corp. (D. Mass. 2018) 295 F. Supp. 3d 37, 43 (a jury could find that paid administrative leave with full benefits, salary, and commission was materially adverse where plaintiff could not grow herself professionally and lost the opportunity to earn commissions above the 100% quota).

[2] Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054-1055.

[3] Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1455.

[4] See United States ex rel. Herman v. Coloplast Corp. (D. Mass. 2018) 295 F. Supp. 3d 37, 43.

[5] See Joseph v. Leavitt (2d Cir. 2006) 465 F.3d 87; Jones v. Southeastern Pennsylvania Transportation Authority (3rd Cir. 2015) 796 F.3d 323; Breaux v. City of Garland (5th Cir. 2000) 205 F.3d 150; Stewart v. Miss. Transp. Comm’n (5th Cir. 2009) 586 F.3d 321, 332; Peltier v. United States (6th Cir. 2004) 388 F.3d 984; Nicols v. Southern Illinois University-Edwardsville (7th Cir. 2007) 510 F.3d 772; Singletary v. Missouri Dep’t of Corr. (8th Cir. 2005) 423 F.3d 886; Benavides v. City of Oklahoma City (10th Cir. 2013) 508 Fed.Appx. 720; Lincoln v. Maketa (10th Cir. 2018) 880 F.3d 533, 542.

[6] McCoy v. City of Shreveport (5th Cir. 2007) 492 F.3d 551, 561 (it is a close question whether paid administrative leave constituted an adverse employment action); Michael v. Caterpillar Fin. Servs. (6th Cir. 2007) 496 F.3d 584, 596 (placement on paid administrative leave for four days, coupled with placement on a 90–day performance plan, was an adverse employment action).

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Some important news for litigants in writ proceedings who seek to appeal – on July 29, 2024, the California Supreme Court in Meinhardt v. City of Sunnyvale established the rule for when the time clock for an appeal begins to run in a petition for writ of administrative mandate case.  It does not begin until after the trial court enters a document formally titled “judgment,” and not earlier, as some courts had held.  Some courts had taken the position that the time began to run before a formal judgment was entered, when the trial court issued an order finally resolving all the issues in the case and leaving nothing further for the trial court to determine.  This earlier start time could result in parties missing the deadline to appeal, and the California Supreme Court’s July 29 ruling in Meinhardt sought to establish a rule that more clearly signals for the parties what is the deadline for starting an appeal.

Background – Notices of Appeal and Time to File

Once a trial court case concludes, the parties have a limited time to appeal.  A party files a document called a “notice of appeal” in the trial court to begin the appeal.  Thereafter, the notice is communicated to the Court of Appeal and proceedings in that court begin.

This notice of appeal is due generally 60 days after service of notice of entry of the judgment or appealable order in the case (either the parties, their lawyer, or the court can send out the notice of entry of judgment).  The time limit represents a serious concern – if a party misses the deadline to file this notice, then the Court of Appeal lacks jurisdiction to consider the appeal.  This means that if the notice is late, the Court of Appeal cannot exercise discretion or apply principles of fairness to save the appeal.  Even well-meaning litigants, who miss the deadline purely by accident, lose the ability to have the Court of Appeal hear their case.  

Meinhardt involved a particular type of appeal, one from the trial court’s decision on a petition for writ of administrative mandate.  These proceedings, governed by California Civil Procedure Code section 1094.5, serve as a means for parties to seek to overturn administrative hearing outcomes in many contexts, including environmental, licensing, and others.  Local government agencies have to litigate these types of petitions in the employment context when one side seeks to challenge the results of an administrative hearing concerning discipline – either the employee or the agency can file a petition in the trial court for an order directing the hearing officer to change the outcome.  Once the trial court decides whether to grant or deny the petition (or comes to a different conclusion), the losing party can file a notice of appeal to require the Court of Appeal to review the trial court’s decision. 

The Meinhardt Trial Court and Court of Appeal Proceedings

In the Meinhardt case, a police officer challenged his 44-hour suspension in a proceeding before a personnel board and the board upheld the discipline.  The officer sought review of this outcome by filing a petition for writ of administrative mandate in the trial court, but the trial court denied his petition.  The officer appealed, but did so in a way that the Court of Appeal determined to be untimely.  The Court of Appeal held that the time to file a notice of appeal ran from the trial court’s order finally determining the proceedings, in other words, finally determining who won the writ proceeding and leaving nothing further to be decided.  The Court of Appeal observed that it was at this point that either party could appeal the decision.  (They could not appeal sooner, under the well-established final judgment rule, allowing appeals only at the conclusion of the case.)  The Court of Appeal held that even though the trial court later entered a document titled “judgment,” the true determining document, i.e., the real “judgment” for purposes of the action, was that earlier order.  Since the notice of appeal was not timely as to that earlier order, the appeal had to be dismissed.

The California Supreme Court’s Decision in Meinhardt

The California Supreme Court decided to review the Court of Appeal’s decision, and determine whether to continue to support its rule concerning timeliness.  The Supreme Court ultimately opted for a much more streamlined rule.  It rejected the rule that an order that disposed of all the issues in the case should be considered the event that could start the appellate time clock running.  Instead, the rule should be simpler – a document at the case’s conclusion that is actually denominated a “judgment” should be required to start the clock.

The Supreme Court, at the very beginning of its opinion, concisely set forth its reasoning, and the rule it decided to put into effect in California:

We granted review in this case to resolve uncertainty about when the time to appeal starts to run in writ of administrative mandate proceedings pursuant to section 1094.5 of the Code of Civil Procedure.  Some Courts of Appeal, including that in this case which dismissed the appeal as untimely, hold that the time starts to run with the filing of an “order” that disposes of all issues in the case and contemplates no further action, not with subsequent entry of a “judgment.”  Other Courts of Appeal hold that the time starts to run with the entry of a “judgment,” not with the filing of a prior “order.”

[California courts in the past have described:] “The time of appealability, having jurisdictional consequences, should above all be clear.” “[B]right lines are essential in this area, to avoid both inadvertent forfeiture of the right to appeal and excessive protective appeals by parties afraid they might suffer such a forfeiture.” “‘Neither parties nor appellate courts should be required to speculate about jurisdictional time limits.’”

Given these considerations, and for the reasons set forth below, we adopt a “bright line[]” rule that the time to appeal in administrative mandate proceedings starts to run with entry of “judgment” or service of notice of entry of “judgment,” rather than with the filing of, or service of notice of the filing of, an “order,” minute order, or other ruling.


(Footnotes and citations omitted.)  The Court rested its decision not just on the policy considerations described above but its interpretations of applicable statutes and case precedent.

Liebert Cassidy Whitmore had the honor of representing the City of Sunnyvale in this matter throughout the appellate process, and this author argued this case before the California Supreme Court on behalf of the City.  We presented legal and practical policy arguments to support the more strict rule applied by the Court of Appeal in its decision, but the Supreme Court chose a different course described above.  The briefing materials of the parties are available here.

Conclusion

The Supreme Court put into place a rule that makes it more straightforward to identify the deadline to file a notice of appeal in petition for writ of mandate proceedings under section 1094.5.  Nevertheless, application of the rules of appellate procedure remains a complex area of the law.  Trusted legal counsel should be alerted to any issues in-house attorneys or agency representatives see that could affect the timing for commencing an appeal.

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In California, non-employee representatives of employee organizations generally have the right to access employee non-work areas, and to solicit for union membership or activity and distribute literature to employees in such areas on the employees’ non-work time. 

The California Public Employment Relations Board (PERB) has recognized that employers have a legitimate interest in maintaining security and operational efficiency. However, this interest must be balanced against employees’ rights to communicate with their union representatives.

Areas of Union Access

Union access to workspaces is generally limited to non-work areas and non-work times.  However, if an employer permits non-business activity in a work area during work hours, the employer cannot prohibit employees from engaging in a similar level of activity merely because it involves employee organization activities. (Regents of the University of California (Irvine) (2018) PERB Decision No. 2593-M.)

Lunch and Break Rooms – Lunch and break rooms are considered non-work areas where employees typically congregate during non-work time. PERB has consistently held that non-employee representatives of employee organizations have the right to access these non-work areas on the employees’ non-work time, provided it does not disrupt operations. (Regents of the University of California (1983) PERB Decision No. 366-H; County of Riverside (2012) PERB Decision No. 2233-M.)

Employers can restrict this access, but the restrictions must be reasonable. For example, employers can enforce non-discriminatory rules limiting solicitation during working times or require union representatives to identify themselves upon arrival. (San Ramon Valley Unified School District (1982) PERB Decision No. 230.) However, a rule requiring a union representative to secure advance permission to meet with employees on their non-work time in non-work areas would be too overbroad and unreasonable. (Id.)

Email and Digital Communication – Employees have the right to use their employer’s email during non-work time for union-related activities, such as discussions relating to work hours, wages, and other terms and conditions of employment. (Napa Valley Community College District (2018) PERB Decision No. 2563.)

Employers can implement reasonable restrictions on non-work-related email use, such as prohibiting non-work email use during work hours, to maintain order and prevent abuse. (City of Sacramento (2013) PERB Decision No. 2351-M.) 

New Employee Orientation – As discussed in a prior LCW Client Update, public employers are required to give a recognized exclusive union representative access to its new employee orientations, with at least ten days advance notice in most cases, and with the details to be determined by mutual agreement. Where a public employer has not conducted an in-person new employee orientation within thirty days of a newly hired employee’s start date, and the new employee is working in person, the exclusive representative has a right to schedule an in-person meeting at the worksite during working hours.

Can employers restrict access?

An employer can restrict a union representative’s access as long as the restriction is reasonable. To be reasonable the regulation must be 1) necessary for the efficient operation of the employer’s business, and 2) narrowly drawn to avoid overbroad and unnecessary interference.

Additionally, these restrictions must be nondiscriminatory in scope and application.

  1. Necessary for the Efficient Operation of the Employer’s Business

To show a regulation is necessary for the efficient operation of the business, an employer must show that access would be disruptive to its services.

  1. Narrowly Drawn

An employer’s rule must be narrowly drawn to avoid overbroad, unnecessary interference with the union’s rights.

Union access to secure places within public sector workplaces involves a delicate balance between employee rights and employer operational needs. As the workplace, technology, and legal landscape continue to evolve in this area, it is vital as a public employer to ensure your policies and practices are legally compliant and incorporate reasonable restrictions that protect your interests as an employer.

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In California, temporary military leave gives certain rights to employees of public agencies who take time away from work to serve in the reserves, the National Guard, or the Naval Militia. While this leave may be less common than sick leave, vacation, or maternity and paternity leave, it’s important to know how to handle requests from employees who serve.

What is ‘temporary military leave’?

First, some basics to know about temporary military leave. “Temporary military leave”, which is the kind of military leave discussed in this post, is a military leave for a period of up to 180 days and which covers employees of public agencies who are ordered to duty in “active military training, inactive duty training, encampment, naval cruises, special exercises or like activity.” (California Military and Veterans’ Code § 395).

The “temporary military leave” covered by section 395 of the California Military and Veterans Code is most commonly used for employees who are in the reserves and need to take time off to fulfill their annual training or duty requirements. Importantly, this leave is protected regardless of whether the employee serves voluntarily or involuntarily; even if an employee chooses to enlist in the reserves when they are already an employee of the agency, they are still entitled to this protected leave.

Federal law (the Uniformed Services Employment and Reemployment Rights Act (“USERRA”)) and state law (the California Military and Veterans Code) provide other and additional re-employment rights for employees on longer deployments or during armed conflict. Employers must follow both the USERRA and the California Military and Veterans Code, but with respect to temporary military leave, California law is more specific than the USERRA. This means that employers who follow the requirements of California law with respect to temporary military leave will be in compliance with the USERRA as well.

How does temporary military leave affect compensation and benefits?

One of the most common questions regarding temporary military leave is: What kind of compensation and benefits should we give employees who take this leave?

With respect to compensation, California law provides for thirty (30) days’ of compensation per fiscal year for employees who take this leave. This is the compensation that an employee could typically expect to earn within a 30-day period (not 30 full days’ worth of compensation). So, for example, a full-time employee typically works 21.5 days within a month, or 172 hours. That full-time employee would be entitled to 172 hours of compensation each fiscal year.

To be entitled to this compensation, however, an employee needs to have been in service with the public agency for one year. An employee who looks to take temporary military leave before their first anniversary is still protected while taking this leave, but they would not be entitled to compensation during their absence. It’s important to note that the statute specifically says that time in the service counts toward the one-year requirement. This means that, if an employee takes a month of leave to serve during their first year of employment, their year of service will not be interrupted, and they will be entitled to compensation if they take leave after their first anniversary.

As far as healthcare benefits are concerned, employees who take fewer than 31 days of temporary military leave within the fiscal year cannot be required to pay more than their share of their healthcare premiums. Employees who take fewer than 31 days of temporary leave, even though they are not actively working during that period, cannot be required to cover the employer’s share (if any) of their healthcare premiums.

If the employee takes more than 31 days of leave, the agency must allow the employee to elect to continue coverage for up to twenty-four (24) months. During this time, the employee cannot be required to pay more than 102 percent of their full premium.

Calculating vacation, sick, and holiday leave for employees on temporary military leave is simple: They continue to accrue at the same rate for up to 180 days, as long as they have been employed for a year. Public employers cannot require that employees use their vacation, sick, or holiday time while on temporary military leave, but employees can elect that option to receive compensation while on leave.

Taking temporary military leave also does not create a break in service for retirement calculations. An employee who is on temporary military leave is entitled to continue accruing benefits, to the extent they make payments to their plan while out on leave.

Can employers ask for documentation of temporary military leave?

A public agency cannot condition an employee’s right to take leave on them producing paperwork supporting the need for leave. In simpler terms, the employee does not need to show any documentation to take their protected leave, as long as they aren’t seeking compensation or won’t be absent for more than thirty days. However, if an employee wants to receive compensation or seeks to return to work after more than thirty days, the employer can request that the employee provide documentation supporting the need for leave.

It’s also important to note that, if the employer has concerns about the timing, frequency, or duration of an employee’s request for temporary military leave, the employer can reach out to the employee’s commander or supervisor to discuss those issues. This does not mean that the employer is required to reach out to the commander or supervisor every time an employee requests military leave; but if an agency does have concerns about an employee’s request for leave, it can take the initiative to confirm details with the employee’s service branch.

What else do you need to know?

It’s important to handle requests for temporary military leave with care and common sense. Here are some things to think about if you get a request for temporary military leave from an employee:

  • Employers should read the protections for temporary military leave broadly. California has repeatedly recognized a strong public policy behind the provisions of the Military and Veterans Code of encouraging enlistment in the armed forces and allowing enlistees to return to work smoothly. Clopton v. Scharrenberg (1951) 106 Cal.App.2d 430, 434. This means that, if you are going back and forth on whether an employee’s request for leave to serve is covered by these provisions, it’s safer to read the provisions broadly to encourage the taking of leave and to do what you can to facilitate the employee’s military service.
  • Read the MOU. If an employee is represented in a collective bargaining unit, there may be terms in the applicable memorandum of understanding (“MOU”) relating to an employee’s rights while taking temporary military leave. For example, the MOU may require documentation or specify additional requirements for an employee to receive pay. Before making a final decision relating to an employee’s request for pay, benefits, or other issues with military leave, check whether the MOU has any provisions that relate to temporary military leave.
  • This applies to charter cities! Charter cities generally have control over the compensation of their employees, meaning they don’t have to follow state statutes on the subject, unless a statewide concern predominates. Courts have explicitly recognized that the California Military and Veterans Code provisions has a statewide purpose of encouraging membership in military reserve organizations – so charter cities must follow its provisions about compensation for employees. Bowers v. City of San Buenaventura (1977) 75 Cal.App. 3d 65, 70.
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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.