Labor and Employment

California Supreme Court Clarifies That Pitchess Procedure May Be Used In Administrative Officer Discipline Proceedings

The well-established Pitchess motion procedure, codified in sections 1040-1047 of the Evidence Code, governs the manner in which peace officer personnel records may be produced to others.  Peace officer personnel records are subject to strong confidentiality protections, but are sometimes relevant to issues in criminal and civil court proceedings.  Those same records can also have relevance in peace officer discipline proceedings, but those proceedings are administrative and do not occur in the courts.

Third Time Is The Charm: CalPERS May Appeal City Of San Bernardino’s Bankruptcy Eligibility To Ninth Circuit

A federal judge has ruled that CalPERS may appeal to the Ninth Circuit a bankruptcy judge’s decision allowing the City of San Bernardino’s petition for Chapter 9 bankruptcy.  As we previously reported here, U.S. Bankruptcy Judge Meredith Jury ruled in August that San Bernardino is eligible for Chapter 9 bankruptcy protection.

Ninth Circuit Upholds Plaintiff Attorneys’ Fee Award Over 25 Times the Jury Award in Discrimination Case

In a recent decision, the Ninth Circuit held that the district court did not abuse its discretion in awarding the prevailing plaintiff $697,971.80 in attorneys’ fees where the jury awarded her only $27,280 in damages.  The clear message from the decision is that even relatively modest legal transgressions under the Fair Employment and Housing Act (“FEHA”) can result in a significant damage award against an employer.

Judge Rejects CalPERS’ Second Attempt to Appeal San Bernardino’s Bankruptcy Eligibility To Ninth Circuit

CalPERS is the City of San Bernardino’s largest creditor, with the City owing the pension fund $17 million, plus growing interest, late fees and penalties. In August, U.S. Bankruptcy Judge Meredith Jury ruled that San Bernardino is eligible for Chapter 9 bankruptcy protection.  In November, Judge Jury denied without prejudice CalPERS first attempt to take a direct appeal from Judge Jury’s ruling. On Friday, November 15, 2013, Judge Jury rejected a second CalPERS motion for leave to file a direct appeal to the Ninth Circuit. Under the Federal Rules of Bankruptcy Procedure, a party must seek leave to appeal an interlocutory eligibility determination to a federal appeals court. See FRBP 8001(b). Judge Jury’s decision isn’t the end of the road for CalPERS; it can still ask a U.S. District Court judge to review the bankruptcy court’s eligibility ruling, which the Sacramento Bee reports it has already done.

Pension Reform Litigation & Legislation Roundup

New developments include a key ruling in cases challenging California's pension anti-"spiking" law (AB 197); the passage of a San Francisco measure aimed at reforming that jurisdiction's retiree health care trust fund plan; and arguments before the U.S. Court of Appeals for the Ninth Circuit in a closely watched matter that will provide important federal precedent regarding how the legal standard for vested rights should be applied in practice. Read our full analysis.

Governor Brown Signs and Vetoes Important Employment Bills

In October, Governor Jerry Brown capped off this year's legislative session by signing or vetoing the remaining bills on his desk.  The following is a brief summary of the most notable labor and employment related bills from the past session relevant to public agencies:

Federal Government Might Be Catching Up to California In Protecting Against LGBT Employment Discrimination

In a procedural vote, the U.S. Senate has advanced the Employment Non-Discrimination Act to a full floor vote, which is expected to take place in the coming days. The Act would prohibit all employers (including public agencies) from using sexual orientation or gender identity as a basis for employment decisions.  Federal law already prohibits discrimination based on race, gender, religion, national origin, age and disability. The bill is far from certain to become law, as the Republican majority in the House continues to be skeptical about the bill, concerned it will spur unnecessary litigation and result in costs for small businesses.

IRS Revises Rules to Allow for Carryover of FSA Funds

The IRS has announced new rules that give employers the option of allowing employees to carry over up to $500 worth of unused contributions remaining in their health flexible spending accounts (FSAs) at the end of each year.  The change is significant because previously, employees were prohibited from carrying over any leftover amounts---with the exception that employers could allow a grace period of up to two and a half months during which employees could use leftover funds. 

Governor Taps Pension Reform Advocate For High Level Post

The Sacramento Bee reports here that Gov. Jerry Brown has named Stuart Drown to serve as deputy secretary at the new California Government Operations Agency. Mr. Drown is leaving his post as executive director of the Little Hoover Commission, where he has been an advocate for pension reform. The Bee story notes that the 12-member Little Hoover panel issued a report in February 2011 that San Jose Mayor Chuck Reed now cites as inspiration for the public pension reform initiative he (along with San Bernardino Mayor Patrick Morris, Pacific Grove Mayor William Kampe, and Anaheim Mayor Tom Tait) is trying to put on the November 2014 statewide ballot (details in our recent pension reform roundup).

High Court Rejects Age Bias Case; 9th Circuit Standard Holds

Good news for California public employers out of the U.S. Supreme Court today: the high court officially kicked the age bias case of Madigan v. Levin to the curb, dismissing the matter in a per curiam decision as improvidently granted. The bottom line for California public employers is that the rule in the U.S. Court of Appeals for the Ninth Circuit under Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051, 1057 (9th Cir. 2009) remains in effect: the Age Discrimination in Employment Act (ADEA) is the exclusive remedy in federal courts for age discrimination claims against state and municipal employers, precluding equal protection claims under 42 U.S.C. § 1983.

It’s on the Name Tag: Name and Rank of Peace Officers in Investigative Report Not Confidential

On July 23, 2013, the First District of the California Court of Appeal held that police officer identities and ranks in investigative reports unrelated to discipline or personnel actions are discoverable under the Public Records Act. 

In Federated University Police Officers Association v. Superior Court, several news outlets sought to discover an investigative report authored by a consultant to the University of California regarding the use of pepper spray by campus police during student protests at UC Davis in 2011.  14 officers were ordered by their chief to participate in interviews for the report, and were advised that information provided to the consultant would not be used in any disciplinary proceeding.  No officers who were the target of citizen complaints or internal affairs investigations were interviewed.  The report did not recommend discipline of any officer, and was directed at UC Davis administration-level decision-making.  A related task force report concluded that several officers performed improperly, but did not recommend discipline.  These reports were ultimately released to the news outlets with name and rank of involved officers redacted.

California Supreme Court Orders Disclosure by Public Agencies of Employee Home Addresses and Telephone Numbers to Representative Labor Unions

County of Los Angeles v. Los Angeles Employee Relations Commission;
Service Employees International Union, Local 721, Real Party in Interest
Supreme Court No. S191944 (May 30, 2013)

In a unanimous decision authored by Justice Corrigan, the California Supreme Court ruled that Los Angeles County must disclose home phone numbers, and home addresses, of employees who are not union members.  The Court rejected the court of appeal’s imposition of an opt out procedure designed to give non-members an avenue to object and elect not to have their personal information disclosed.

Appellate Court Holds that Due Process Prevents Partners From the Same Law Firm From Serving as Adviser and Advocate on Contested Hearings

Attorney Authors: 

The Second District Court of Appeal, in Sabey v. City of Pomona (B239916), remanded a decision related to discipline of a police officer on the basis that his due process rights were violated  when one partner from a law firm represented the Police Department in the officer's arbitration matter, and a different partner from the same firm represented the city council in the officer's appeal of his termination.  Even though there was no evidence of bias, the court believed the risk of bias, when two partners from the same firm were involved in different levels of the contested hearing, "too high to be acceptable under constitutional principles."  As explained by the court, "[t]he rule we announce is simple.  Agencies are barred from using a partner in a law firm as an advocate in a contested matter and another partner from the same law firm as an advisor to the decision maker in the same matter."

Due process requires impartiality in administrative hearings, and prevents an attorney from performing dual roles in contested quasi-judicial hearings such as administrative, disciplinary or code enforcement hearings.  Based on that principle, agencies have used one attorney to represent the agency in an administrative hearing, while allowing another attorney to represent the board that reviews the  decision stemming from that hearing.  This approach was permissible as long as there existed "assurances that the adviser for the decision maker is screened from any inappropriate contact with the advocate."  (Howitt v. Superior Court (1992) 3 Cal.App.4th 1575.)  "Ethical walls" were set up by law firms in order to comply with Howitt and to ensure an attorney did not communicate about the matter or access the files of the other attorney participating in the matter.

Major League Baseball May Throw Non-Uniformed Employees Out of the Pension Game

In a climate where many employers are strongly considering pension reform, Major League Baseball’s owners may eliminate defined benefit pension plans for non-uniform wearing personnel (all employees besides players and coaches).  The move is being proposed, and apparently supported by the majority of owners, despite the fact that the league brings in billions of dollars in annual revenues.  This proposed change serves as a reminder that profitability alone will not guarantee the continuation of defined benefit plans for an entity’s employees.

For more on MLB’s plans, go here.

Ninth Circuit Permits Plaintiffs One More Chance to Amend Retiree Healthcare Lawsuit

The Ninth Circuit has reversed the District Court's dismissal of a lawsuit brought by retired employees against their former employer seeking to avoid the reduction of retiree healthcare benefits.

In Sonoma County Ass'n of Retired Employees v. Sonoma County, No. 10-17873 (9th Cir. Feb. 25, 2013), the Ninth Circuit cited and relied on the California Supreme Court's recent holding that a public agency may form a contract with implied terms with its employees under specified circumstances.  (See Retired Employees Ass'n of Orange Cnty., Inc. v. Cnty. of Orange (REAOC II), 52 Cal. 4th 1171, 1176 (2011).)

U.S. Supreme Court to Determine the Meaning of "Changing Clothes"

Attorney Authors: 

The U.S. Supreme Court has agreed to hear a private sector "donning and doffing" case. In Sandifer v. United States Steel, the plaintiff steel factory employees assert that the FLSA requires they be paid for time spent changing into and out of protective gear, specifically "flame retardant pants and jacket, work gloves, metatarsal boots, a hard hat, safety glasses, ear plugs, and a snood." (678 F.3d 590 (2012).) Section 203(o) of the FLSA (found at 29 U.S.C. § 203(o)) specifically provides that an employer is not required to compensate employees for time spent "changing clothes or washing at the beginning or end of each workday" unless required by the "express terms or by custom or practice" under a collective bargaining agreement. The issue is whether the type of protective gear at issue in the case constitutes clothing under Section 203(o). Although Sandifer does not involve police officers or other public sector workers, the Court’s decision could modify the state of the law in regards to all employees, including those in the public sector.

Court Approves Pregnancy Discrimination Action Under FEHA Even After Exhaustion of Required PDLL Leave

In a case of first impression, the Court of Appeal (Second District) found that an employee who has exhausted all permissible leave available under the Pregnancy Disability Leave Law (PDLL), may nevertheless state a cause of action for discrimination under the California Fair Employment and Housing Act (FEHA).  (Sanchez v. Swissport, Inc., 2013 Cal. App. LEXIS 131 (Cal. Ct. App. 2d Dist. Feb. 21, 2013).)

Plaintiff Ana Sanchez was diagnosed early in her first trimester with a high-risk pregnancy, requiring bedrest through her delivery date.  Sanchez requested and was granted a temporary leave of absence.  Sanchez proceeded to exhaust all of her vacation time in addition to the time provided under the PDLL (for a total of more than 19 weeks of leave).  When that leave ran out, however, she still had more than three months before her scheduled delivery date.  Because she was unable to return to work when she ran out of leave, Swissport fired her.

Transit Unions Seek Exemption from PEPRA

California public transit unions are supporting Assembly Bill 160 which would exempt their members from the recently-adopted Public Employees’ Pension Reform Act (PEPRA). Under the bill, introduced by Assemblyman Luis Alejo on January 22nd,  thousands of transit employees would be exempt from the PEPRA.  PEPRA became law in September 2012.  It requires increased cost-sharing of pension contributions and reduced pension benefit formulas for new members hired on or after January 1, 2013 (and provides for some changes for existing members, which are not scheduled to take effect  until 2018).

CalPERS Seeks to Prevent City of San Bernardino From Using Bankruptcy to Avoid Meeting Pension Payment Obligations

Attorney Authors: 

The California Public Employees’ Retirement System (CalPERS) is seeking to sue the bankrupt City of San Bernardino to require the City to meet its pension obligations.   The City entered Chapter 9 bankruptcy proceedings in August 2012, in part due to an unfunded pension liability of upwards of $140 million. 

In In re San Bernardino, Case No. 12-28006 (U.S. Bankruptcy Court, Cent. Dist. Cal.), CalPERS argued that it should be placed ahead of other creditors because the City’s debts to CalPERS are statutory liens, required to be paid by state law.  CalPERS asserts that since the City declared bankruptcy, the City has failed to make almost $7 million in required payment to CalPERS.  Accordingly, CalPERS asked the court for permission to sue the City to require the City to make all missed payments and to make the necessary future payments going forward; or alternatively for the City to be kicked out of bankruptcy court altogether.

Whistleblowers Beware: Violations of a Charter City's Municipal Law Are Not Violations of State Law For Purposes of Labor Code Section 1102.5(c)

The California Labor Code protects whistleblowers by prohibiting employers from retaliating against an employee "for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation."  Cal. Labor Code § 1102.5(c).

In Edgerly v. City of Oakland (Alameda Super. Ct. No. RG09461220), the former City Administrator of Oakland, Deborah Edgerly, asserted she was wrongfully terminated as a whistleblower for her refusal to violate the City's Charter, Municipal Code, and civil service rules and resolutions.  Edgerly allegedly questioned and sometimes denied numerous requests that came to her from the Mayor's office, including requests for reimbursement, and to approve contracts in excess of the Mayor's authority. She alleged that she was terminated by the Mayor as a result.

District Court Grants Summary Judgment Again for Orange County in its Retiree Medical Litigation

REAOC vs. County of Orange, SACV-01-1301 AG

On Tuesday, August 14, 2012, the United States District Court granted summary judgment on behalf of Orange County in longstanding litigation stemming from the County’s decision to “de-pool” retiree and active health care rates.

EEOC Issues Guidance Regarding The Consideration Of Criminal Records In Employment Decisions

Attorney Authors: 

On April 25, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued an Enforcement Guidance on employer use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964 (Title VII).  The Enforcement Guidance clarifies and updates the EEOC's longstanding policy that a categorical exclusion from employment of individuals with a criminal record raises disparate impact concerns. 

State Law Forbids Employers From Requesting Social Media Passwords From Job Applicants

This month, Maryland became the first state to pass a law that prohibits an employer from requesting or requiring job applicants to hand over username and passwords for social media websites, such as Facebook and Twitter.

Maryland passed Senate Bill 433 and House Bill 964, which forbid employers from 1) requesting or requiring a job applicant to disclose user names or passwords for a personal electronic service; 2) refusing to hire an applicant for not providing access to such information; and 3) terminating or disciplining an employee for refusing to provide this information. However, the law also protects employers by prohibiting employees from downloading employer proprietary information to personal accounts and allowing employers to require that employees provide password and login information for company email accounts.

The law takes effect October 1, 2012, and may be found here.

Court of Appeal Holds that Personnel Investigation Report is Subject to Disclosure

Attorney Authors: 

On January 24, 2012, the Court of Appeal ruled that a report of a personnel investigation was subject to public disclosure. In Marken, the Court ruled that, under the California Public Records Act (CPRA), public interest in disclosure of a report of a personnel investigation finding a teacher had violated his employer's sexual harassment policy outweighed the teacher's privacy interests. 

California Supreme Court Holds Counties May be Bound by Implied Contracts to Provide Health Benefits to Retired Employees

In Retired Employees Association of Orange County, Inc. v. County of Orange (“REAOC”), the California Supreme Court addressed a question posed to it by the Ninth Circuit: “Whether, as a matter of California law, a California county and its employees can form an implied contract that confers vested rights to health benefits on retired county employees.”  REAOC, No. S184059, at *1 (Cal., filed Nov. 21, 2011). 

In REAOC, retired employees challenged the County’s 2007 decision to split active employees and retirees into separate pools for purposes of calculating health insurance premiums.  REAOC argued that the County’s decision constituted an impairment of contract, and that the long-standing practice of pooling had created an implied contractual right to a continuation of a single unified pool for retirees and actives. 

The California Supreme Court held “that a county may be bound by an implied contract under California law if there is no legislative prohibition against such arrangements, such as a statute or ordinance.”  REAOC, at *1.  The Court did not address the question of whether an implied vested right existed for Orange County retirees.  Accordingly, the case now returns to the Ninth Circuit for that determination.

For further analysis, click here.  To read the Court’s full decision in REAOC v. County of Orange, click here

Take Advantage of the Opportunity to Provide PERB with Feedback Regarding AB 646

Attorney Authors: 

Signed by Governor Brown on October 9, 2011, AB 646 amends the collective bargaining process for local public agencies by requiring the parties to proceed to fact finding after mediation and before a local public agency may unilaterally implement its last, best, and final offer.  Several commentators have pointed out ambiguities with respect to the scope and application of the fact finding process.  On November 8, 2011, the California Public Employment Relations Board ("PERB") held the first of two meetings to introduce drafts of proposed emergency regulations for implementing AB 646 and to seek feedback regarding issues that might require regulatory action by PERB in advance of January 1, 2012, when the legislation takes effect. 

The meeting was attended by attorneys and employees representing both labor and management for public agencies throughout the state.  Multiple issues were discussed during the meeting, including: (1) whether local public agencies are allowed to adopt reasonable local rules to tackle issues that were not addressed by the legislation; (2) whether peace officers and managers are covered by AB 646; (3) what process is going to be used by PERB for appointing fact finders; (4) whether mediation after impasse is now mandatory; (5) whether fact finding is required if the parties do not proceed to mediation; and (6) how long the fact finding process typically takes.  While PERB representatives did not provide much feedback or insight regarding these issues and questions, they did introduce proposed emergency regulations that they hope to adopt before January 1 and invited general feedback regarding issues that might require regulatory action.

To view the current drafts of PERB's proposed emergency regulations click here.  PERB has asked that feedback be sent by email to Division Chief Les Chisholm ( or General Counsel Suzanne Murphy ( by no later than November 18, 2011.  Mr. Chisholm indicated that all comments may be posted publicly on PERB's website, so please keep that in mind if you decide to provide feedback.  We would urge all public agency representatives to take advantage of this opportunity to provide feedback to PERB on this very important issue.  To read a detailed explanation of AB 646 and some of the substantial ambiguities that exist within the legislation click here

San Francisco Voters Pass Pension Reform Measure Developed Jointly by City Officials and Labor Unions

The November 8 ballot presented San Francisco voters with two competing pension reform measures. Proposition C, developed by Mayor Ed Lee in collaboration with City labor unions, passed with (as of this writing) approximately 68% approval from voters, according to the San Francisco Chronicle. Proposition D—now the second failed pension reform effort of Public Defender Jeff Adachi, defeated after receiving only 34% approval—would have required higher worker contributions and was estimated to save more money.

Prop C is estimated to save between approximately $1 billion and $1.3 billion over the next decade. The measure will require workers to contribute 7.5% of their salaries to the pension fund, though that percentage would rise and fall depending on the economic climate and financial condition of the City. The measure also modifies retirement ages for future retirees by increasing the minimum retirement age for non-safety retirees from 50 to 53 (for partial benefits), and from 60 to 65 (for full benefits). Safety employees may still retire at 50 for partial benefits, but the retirement age for those wishing to obtain full benefits will increase from 55 to 58.

Prop C has been closely watched by California cities that are similarly in need of pension reform in order to reduce unfunded liabilities. Its passage could spur local public officials and labor unions across the state to work together to support similar measures in an effort to avoid potentially more controversial unilateral solutions.

Pension Reform Group’s Proposals Could Galvanize Support for Governor Brown’s Plan

Attorney Authors: 

Two new proposals for fixing the state’s pension system were filed yesterday with the Attorney General’s Office by the pension reform group, Californians for Pension Reform.  The group will apparently decide in January which of the two proposals will be circulated in an attempt to place it on the November 2012 ballot.  The two potential measures include drastic changes to pensions for public employees, including requiring employees with underfunded pension plans to contribute towards resolving the unfunded liabilities that continue to grow throughout the state.  The San Jose Mercury News reports the prospect of seeing one of these proposals on the November 2012 ballot could serve to bolster support for Governor Jerry Brown’s recent pension reform proposal, which was initially met with an unenthusiastic—if not outright hostile—reception by many Democrats and labor unions.  It is unclear how or to what extent these proposals would affect local public agencies. 

For more information about the two recent proposals, click here.

Governor Brown Releases Twelve-Point Pension Reform Plan

Attorney Authors: 

On October 27, 2011, Governor Brown released a twelve-point plan to reform public pensions that he wants placed on the November 2012 ballot.  Significant components of the plan include requiring new and current employees to transition to a contribution level of at least fifty percent of the cost of their pension benefits, creating a hybrid risk sharing system for new employees where they will participate in a defined benefit pension plan and defined contribution plan similar to a 401(k) plan, and setting the retirement age for most new non-public safety employees at the Social Security retirement age, which is presently 67.  While the plan says it will apply to all California state, local, school and other public employers "as legally permissible," the plan does not provide any specific details about the extent to which it will apply to such agencies if it is approved. 

To read a copy of the Governor's plan click here.

Santa Suited Manager and His Bad Elves Did Not Create an Unlawful Hostile Work Environment

Attorney Authors: 

In a lawsuit alleging hostile work environment harassment based on gender, a jury found that a former female employee at an advertising agency was subjected to unlawful harassment in violation of the California Fair Employment and Housing Act ("FEHA"). The plaintiff's hostile work environment claim was based on an email from an agency manager that referred to the size of her breasts, a different manager asking her about her personal and sex life, observing a management employee asking female co-workers to sit on his lap while dressed in a Santa Claus outfit at a Christmas party, and learning about alleged inappropriate comments directed towards other female employees that the plaintiff did not personally observe. The majority of these acts took place over the four year period before plaintiff resigned, and there was some evidence presented at trial that the plaintiff had used profanity at work and sent emails containing sexual references.

After the jury rendered a verdict in favor of the plaintiff on her hostile work environment claim, the Trial Court overturned the verdict. A California Court of Appeal affirmed, holding that the evidence presented by the plaintiff failed to support a claim of unlawful hostile work environment based on her gender. In so ruling the Court of Appeal noted that hostile work environment harassment is only unlawful when the harassing behavior is sufficiently severe or pervasive, and that the plaintiff failed to meet her burden because harassment that is occasional, isolated, sporadic or trivial is not actionable.

This decision is a helpful reminder of the high threshold that is necessary to prove an unlawful hostile work environment under the FEHA, as well as the fact that Courts will consider the specific circumstances in determining whether alleged acts of harassment are unlawful. To read the Court's decision in Brennan v. Townsend & O'Leary, Enterprises, Inc. 2011 Cal.App. Lexis 1309, click here.

Governor Brown Signs AB 646 - Fact Finding Now Required Before Imposing Last, Best and Final Offer

Attorney Authors: 

Governor Brown signed AB 646 - which amends the Meyers-Milias-Brown Act ("MMBA") to require fact finding before an agency may unilaterally implement its last, best and final offer.

The bill prohibits a public agency from implementing its last, best and final offer until at least 10 days after the "fact finders" (a tri-partite panel with one "neutral" selected by the parties) submit written findings of fact and recommend terms of settlement.

Ninth Circuit Re-Affirms March 2011 Decision Holding Employer's Rule Against Hiring Job Applicants Who Have Previously Tested Positive for Drug or Alcohol Use Does Not Violate ADA or FEHA   

Attorney Authors: 

In Lopez v. Pacific Maritime Association, __ F.3d __ (9th Cir. 2011), the Ninth Circuit U.S. Court of Appeals approved an employer's rule against hiring job applicants who have previously tested positive for drug and alcohol use.  The court's initial ruling was released in March 2011, but on September 21, 2011, the court denied the job applicant's petitions for rehearing.

Court of Appeal Approves Public Employee Termination for Posting Craigslist Sex Ad While Off-Duty

In San Diego Unified School District v. Commission on Professional Competence (Lampedusa), --- Cal. Rptr. 3d ---, 2011 WL 1234686 (ordered published May 3, 2011), the California Court of Appeal upheld a school district's dismissal of a schoolteacher who was terminated for posting a sexually explicit ad and photos of himself on Craigslist while off duty. The ad neither identified the school nor that he was a teacher. Nevertheless, the Court found the dismissal was justified based on the teacher's "evident unfitness" to serve as a teacher and that he had engaged in "immoral conduct" in posting the ad.

In reversing the decision of the Superior Court (which upheld the Commission's finding of no cause for dismissal), the Court of Appeal affirmed the principal that "[t]here are certain professions which impose . . . responsibilities and limitations on freedom of action which do not exist in regard to other callings. Public officials such as judges, policemen and schoolteachers fall into such a category."

The Court's decision relied in part on the United States Supreme Court's ruling in City of San Diego v. Roe, 543 U.S. 77 (2004). In Roe, the Court upheld the termination of a police officer discharged for selling homemade pornographic videos on an online auction site. Notably, the Court held that although the police officer's activities occurred outside of work and were purportedly unrelated to his employment, they were nonetheless "detrimental to the mission and functions of the employer." Accordingly, the City of San Diego was justified in disciplining the officer for his conduct.

The Court of Appeal in Lampedusa applied this same principal to find that "the disciplinary action taken by the District did not have an adverse impact or chilling effect on Lampedusa's constitutional rights." The decision thus supports the idea that, despite the substantial limitation on an agency's ability to discipline public employees for off-duty conduct, courts will uphold discipline for off-duty conduct when there is a sufficient nexus to the workplace, and are more likely to find that nexus with particular job classifications such as public safety.

PRACTICE TIP: A public employer considering discipline for off-duty conduct should carefully scrutinize the conduct at issue and surrounding circumstances in evaluating whether there is a sufficient nexus to the workplace to justify the discipline. As noted in the Lampedusa and Roe decisions, a public employee's position and job responsibilities can factor into that analysis.

The Second Appellate District Provides Guidance Regarding an Employer’s Reasonable-Accommodation Duty

The Second Appellate District's recent case of Cuiellette v. City of Los Angeles (2011) __ Cal.Rptr.3d ___, 2011 WL 1522390, highlights two critical issues that employers must consider when conducting a reasonable-accommodation analysis under the Fair Employment and Housing Act ("FEHA").

First, employers should not refuse to accommodate an injured worker based solely on a 100% permanent total disability rating in a related workers' compensation proceeding. Instead, employers must undertake an independent analysis of an employee's medical restrictions before concluding that an employee cannot be accommodated.

Second, employers must consider their informal policies when determining whether an injured employer can be accommodated. To the extent an employer has an established practice of maintaining permanent light duty positions for disabled employees, the employer must consider whether an injured employee is qualified for those light duty positions.

In Cuiellette v. Los Angeles, the City of Los Angeles sent an injured police officer home after learning that the officer received a 100% permanent disability rating in his workers' compensation proceeding. The officer subsequently filed a FEHA lawsuit and, after a jury trial, was awarded a $1.5 million judgment against the City.

Go here to read more about this case.

Ninth Circuit Panel Makes it More Difficult for Public Agencies to Recover Attorneys Fees Expended in Defending Unmeritorious Civil Rights and Employment Discrimination Lawsuits

A three judge panel of the Ninth Circuit Court of Appeals issued an opinion which will make it more difficult for local governments to recover attorneys fees they expend defending against unmeritorious civil rights and employment discrimination lawsuits. The law has long been clear that while a plaintiff who prevails in such a lawsuit will almost always recover his or her attorneys fees, a prevailing defendant is only entitled to recover attorneys fees if the court finds the plaintiff’s claims were “unreasonable, frivolous, meritless or vexatious.” The new case, Fabbrini v. City of Dunsmuir, 2011 slip. op. 2317 (9th Cir 2011) addresses a defendant’s right to recover fees when a complaint contains both claims for which attorneys fees are available and non-frivolous claims for which fees are not recoverable.

In an earlier case, Tutor-Saliba Corp. v. City of Hailey 452 F.3d 1055 (9th Cir 2006), the Ninth Circuit had rejected an argument that the mere presence of some non-frivolous claims barred a defendant from recovering fees expended in defending the frivolous claims at least where there is a clear basis to determine what work was performed for what claims. However, the court left open the question of what to do “where frivolous claims are combined with non-frivolous claims and the claims are not sufficiently distinct.” Id. at 1064, fn. 4. In Fabbrini, the court appears to have held that those fees are not recoverable.

In Fabbrini, the plaintiff pursued state and federal law civil rights claims all of which were eventually dismissed. Even though the federal claims were dismissed, there was no finding that they were frivolous. The district court awarded the defendant the attorneys fees it incurred in prosecuting an anti-SLAPP motion to dismiss the state law based claims. In addition to those fees, the district court had also awarded approximately $ 8,000.00 for work that was performed that was related to the arguably non-frivolous federal claims but was also “inextricably intertwined with” the work that was performed defending the state law claims for which fees were available. The district court was following a long line of decisions holding that a plaintiff who prevails on claim for which fees are available can also recover fees for work preformed on claims where fees are not available if the claims are sufficiently intertwined such that “the time spent on the claims could not reasonably be divided” See, Armstrong v. Davis, 318 F.3d 965, 975 (9th Cir. 2003). Thus, for example, if a plaintiff were to pursue four civil rights claims but only prevail as to one, he or she could still recover fees for all of the time spent conducting discovery that would be relevant to all four claims. In Fabbrini, the court held this principle does not work in reverse.

In rejecting the award of the additional fees, the court adopted a per se rule that where there are non-frivolous federal civil rights claims present, attorneys fees cannot be awarded to a prevailing defendant unless the fees are “exclusively attributable” to the claims for which fees are available. For example, if a plaintiff includes four clearly frivolous claims with one arguably non-frivolous claim, Fabrinni gives rise to an argument that any discovery, investigative work or motion practice incurred defending against the frivolous claims is not recoverable if the work can also be related to the one non-frivolous claim. Thus the presence of a single non-frivolous claim can be used to defeat or severely limit a fees motion brought by a prevailing defendant even where the majority of the plaintiff’s case is clearly frivolous.

Title VII Anti-Retaliation Provisions Are Held Applicable to Complaining Employee's Fiancée

Eric L. Thompson v. North American Stainless, LP

United States Supreme Court

In Thompson v. North American Stainless LP, the United States Supreme Court unanimously held that the anti-retaliation provisions in Title VII of the Civil Rights Act of 1964 ("Title VII") protected an individual from being terminated in retaliation for his fiancée's prior complaint of discrimination to the Equal Employment Opportunity Commission ("EEOC"). The Supreme Court's decision overturned a Sixth Circuit Court of Appeals' ruling that a retaliation claim could not be brought by an individual who did not engage in the underlying protected activity. While this decision opens the door to third-party retaliation claims under Title VII, the Supreme Court was reluctant to provide a bright-line rule regarding the kinds of relationships and circumstances that support third-party retaliation claims under Title VII.

Eric Thompson and his fiancée, Miriam Regaldo, were both employees of North American Stainless ("NAS") in 2003. In February 2003, the EEOC notified NAS that Regaldo had filed a charge alleging sex discrimination. NAS terminated Thompson three weeks after NAS learned about Regaldo's sex discrimination complaint.

Thompson believed that NAS terminated him in order to retaliate against Regaldo for filing her complaint with the EEOC. Accordingly, Thompson filed a lawsuit against NAS alleging that NAS violated Title VII's anti-retaliation provisions. The District Court granted summary judgment to NAS, concluding that Title VII "does not permit third party retaliation claims." After a panel of the Sixth Circuit reversed the District Court's decision, the Sixth Circuit granted rehearing en banc and affirmed the District Court's earlier decision granting summary judgment. Notably, the Court reasoned that because Thompson did not engage in any statutorily protected activity, Thompson was not in the class of persons entitled to bring a retaliation claim under Title VII.

The Supreme Court disagreed, and held that Thompson fit within the class of persons entitled to bring a retaliation claim based on the protected activity of Regaldo. The Court reasoned that if Thompson was terminated based on the protected activity of his fiancée, that injuring Thompson was the employer's intended means of harming his fiancée. Under those circumstances, the Court held that Thompson's claim was well within the zone of interests protected by Title VII, and determined that Thompson had standing to bring a retaliation claim against NAS.

While the Supreme Court's decision in Thompson opened the door to third-party retaliation claims, it declined to identify a fixed class of relationships for which third-party reprisals are unlawful. Rather, it provided the following minimal guidance regarding the circumstances that may support such a claim: "firing of a close family members will almost always meet the . . . standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so . . "

For more information about this case or other labor and employment matters, contact Jesse Lad at 800.464.3559.

California Supreme Court Confirms Longstanding Rule Concerning Employee Layoffs

IAFF, Local 188 vs. Public Employment Relations Board
City of Richmond (Real Party in Interest)
California Supreme Court No. S172377

On Monday, January 24, 2011, the California Supreme Court issued an opinion regarding an employer's duty to bargain under the Meyers-Milias-Brown Act ("MMBA") in connection with layoffs. The opinion was authored by Acting Chief Justice Kennard, with a concurring and dissenting opinion filed by Justice Baxter.

The Bottom Line: The Supreme Court simply affirmed a longstanding rule - that there is no duty to bargain over an employer's decision to layoff, but there is a duty to bargain over the implementation and effects of the decision. This has been the ongoing advice of labor attorneys for years. There is no new law in this decision that should cause public employers to change their practices.

Discussion: Since approximately 1974, it has been the rule in California that public employers need not negotiate with labor unions about the decision to initiate layoffs. However, public employers must negotiate concerning the effects or impacts of the layoffs. The City of Richmond observed this advice in connection with firefighter layoffs, and the Fire Union claimed that the failure to negotiate constituted an unfair practice under the MMBA.

This case affirms the rule. The Court expressly states: "We now reaffirm this rule. Under the MMBA, a local public entity that is faced with a decline in revenues or other financial adversity may unilaterally decide to lay off some of its employees to reduce its labor costs. In this situation, a public employer must, however, give its employees an opportunity to bargain over the implementation of the decision, including the number of employees to be laid off, and the timing of the layoffs, as well as the effects of the layoffs on the workload and safety of the remaining employees." (Op. at 19.)

One additional aspect of the opinion is to define the criteria for permitting review of a decision by the Public Employment Relations Board ("PERB"). The Court agreed with the court of appeal that when PERB refuses to issue a complaint under the MMBA, a superior court may review the decision by mandamus. The review is limited to determining "whether PERB's decision violates a constitutional right, exceeds a specific grant of authority, or is based on an erroneous statutory construction." Justice Baxter dissented from this portion of the opinion.

For more information about this case or other labor and employment matters, contact Art Hartinger at 800.464.3559.

Court Finds Statutes Favoring Speech Related To Labor Disputes Unconstitutional

Given the California appellate court's recent ruling in Ralphs Grocery Company v. United Food and Commercial Workers Union Local 8 (January 19, 2010) 2010 DJDAR 11199, police departments may now receive increased requests to remove peaceful picketers in labor disputes from private property. While this case may provide authority for police officers to remove such picketers from private property, cities should seek individualized legal advice on this issue when altering current policies and procedures. The California appellate court specifically found that a Ralphs-owned grocery store was a private forum not subject to heightened First Amendment scrutiny, concluding that labor union picketers were trespassing on private property when they violated Ralphs's protest restrictions. In reaching this decision, the appellate court ruled that statutes that protect or favor labor union speech over other forms of speech violated the First and Fourteenth Amendments of the Constitution.

The Court started with a public forum evaluation under Pruneyard and later case law. Even though the Ralphs-owned store is part of a larger shopping center, the entrance and apron were not "designed and presented to the public as public meeting places," nor did these areas "act as the functional equivalent of a traditional public forum." The court found that the setting of the store within a shopping center with a number of other retailers and restaurants, some of which provide outdoor seating, was similar to other appellate court decisions holding that the entrance areas and aprons to stand-alone stores in shopping centers are private fora. Significantly, the court also explained that as a private forum, Ralphs could limit or prohibit certain speech even if they selectively allowed other groups to collect signatures or donations for other causes.

The trial court's refusal to grant injunctive relief was grounded in the Moscone Act (Code of Civil Procedure § 527.3) and Labor Code § 1138.1, which limits a court's ability to grant injunctive relief in cases involving labor disputes. Sacramento police officers were unwilling to remove the peaceful picketers from Ralph's private property presumably because of the Moscone Act and Labor Code § 1138.1. Relying on Supreme Court precedent that found preferential treatment of speech regarding labor disputes to be unconstitutional content-based discrimination under the First and Fourteenth Amendments, the appellate court declared both the Moscone Act and Labor Code § 1138.1 unconstitutional.

This case highlights the fact specific inquiry required to determine whether retailers within a private shopping center qualify as a public forum. The case notably explains that if the forum is private, the private entity may selectively enforce its no solicitation policies. Additionally, and quite significantly, the case holds that parties seeking injunctive or other equitable relief from labor union demonstrations will no longer be required to meet the heightened requirements of the Moscone Act and Labor Code § 1138.1. The impact of this ruling is likely to be that police departments will receive more frequent calls to remove peaceful picketers in labor disputes from private property. Given, however, the many nuances of First Amendment jurisprudence and that this decision is an appellate court decision, (subject to being disagreed with by a different appellate court on the same issue in a different case or subject to being overruled by the California Supreme Court ) police departments would be wise to seek specific legal advice on this issue before changing current policies regarding the removal of peaceful picketers in labor disputes from private property.

Public Agencies Must Usually Seek Relief From PERB And Not The Courts When A Threatened Strike Will Endanger Public Welfare

Last week, in City of San Jose v. Operating Engineers Local Union No. 3, the California Supreme Court held that a public employer must generally first seek relief from the Public Employment Relations Board (PERB) before asking a superior court for injunctive relief when the employer believes that a threatened strike may endanger the public welfare. The Court noted that the Legislature expressly vested initial jurisdiction over claims of unfair labor practices arising under the Meyers-Milias-Brown Act (MMBA) with PERB. Because the Court felt that a public entity's claim that a threatened employee strike is illegal will generally constitute an unfair labor practice claim, PERB would have initial jurisdiction.

The Court explained that PERB has initial jurisdiction over a claim by a public entity that a strike by its employees is illegal, and thus the public entity must exhaust its administrative remedies with PERB prior to seeking judicial relief unless one of the recognized exceptions to the exhaustion doctrine applied. The Court set forth some of these exceptions, including inadequate remedy, too slow an administrative procedure to be effective, irreparable harm would result by requiring exhaustion and pursuing administrative remedies would be futile. The Court held that none of these exceptions applied in this particular case.

The California Supreme Court concluded that labor disputes asserting unfair labor practices under the MMBA should, whenever possible, be submitted first to PERB rather than to a court. And, if an agency claims an exception to the doctrine of exhaustion of remedies in connection with a public employee strike, the trial court should afford due deference to PERB and issue injunctive relief only when it is clearly shown that PERB's remedy would be inadequate.

Go here to read the full analysis of City of San Jose v. Operating Engineers Local Union No. 3.

Definition of "Son or Daughter" in FMLA Expanded by Department of Labor Opinion Letter

The U.S. Department of Labor issued an Opinion Letter clarifying that an employee who has day-to-day responsibilities to either care for or financially support a child qualifies for leave under the Family and Medical Leave Act (FMLA), even if the employee has no biological or legal relationship with the child. Furthermore, leave may be granted to an employee who stands in place of a parent even where a child has one biological parent in the home, or has both a mother and father.

This interpretation of the FMLA comports with Congress' legislative intent for a liberal construction of "son or daughter," which was meant to cover employees from families other than those where two biological or legal parents primarily care for a child. Employees from these so-called "non-traditional families" may now take FMLA leave to care for a child as their "son or daughter" so long as they can provide reasonable documentation or a statement of the family relationship at the employer's request. The employee's statement need only assert that the requisite family relationship exists.

While all "non-traditional families" stand to benefit, this Opinion Letter has the most significance for employees from the lesbian, gay, bisexual, and transgender community, which the Secretary of Labor identified as disproportionately impacted by the FMLA's earlier ambiguity in this particular area of the law.

Go here to read the full analysis of the Department of Labor's Opinion Letter.

California Supreme Court Takes a Bite Out of the Finality of Arbitration Awards

A recent California Supreme Court decision has created an air of less certainty surrounding the finality of arbitration awards. Arbitration awards have been typically viewed as being final – not subject to court review unless there is evidence of fraud or corruption. But the California Supreme Court, in Pearson Dental Supplies v. Superior Court, carved out an exception for when a trial court would be permitted to vacate an arbitration award. The Court held that when an arbitrator’s ruling is based on a clear error of law which deprives an employee of a hearing on the merits of an unwaivable statutory employment claim, the arbitrator’s ruling may be vacated. Read more here.

Court of Appeals Gives Deputy Coroners An Unkind Cut

The California Court of Appeal recently held that a deputy coroner’s principal duties and functions do not fall within the scope of “active law enforcement” under Government Code section 20436(a). As a result of this determination, deputy coroners are not entitled to be classified as “local safety members”, a classification that would substantially enhance their retirement benefits.

In the case, Riverside Sheriffs' Association v. Board of Administration of the California Public Employees' Retirement System, the Riverside Sheriffs’ Association (“RSA”), as representative of current and retired Riverside County deputy coroners, appealed a decision by PERB refusing to change the status of the deputy coroners to a classification that would have significantly increased their retirement benefits.

The central issue in this case was the determination of the principal duties and functions performed by the deputy coroners. Government Code section 20436(a) grants peace officer status to employees of a county sheriff’s department only if their principal functions “clearly come within the scope of active law enforcement service,” notwithstanding that they may occasionally be engaged in active law enforcement functions. The Court of Appeal found that the deputy coroners’ primary function is to investigate causes of death in unusual cases, not to engage in activities that involve direct contact with criminal suspects or the prevention of crime. Consequently, the Court of Appeal held that the Riverside County deputy coroners could not be classified as local safety members, and were thus not entitled to the enhanced retirement benefits.

This case is a reminder to review classifications carefully, not only for proper job descriptions, functions and duties, but also for the less obvious, and perhaps more costly issue – how much does a county, municipality, or town using the services of a County Sheriff’s department pay into public retirement funds?

Police Officers Who "Don and Doff" at Home Are Not Engaged in FLSA Compensable Work

The Ninth Circuit has held that the donning and doffing of uniforms and accompanying safety gear by police officers is not compensable work under the Fair Labor Standards Act (FLSA) if officers may don and doff at home. Thus, any police or sheriff's department that permits its officers or sheriffs to don and doff their uniforms and gear at home is not legally required to pay for that time.

Click here to read the latest, or review more history on the topic through our previous summary of this issue from February 2009.

Pension Reform Group Pursuing California Ballot Initiative that Would Alter Many Public Employer Pension Benefits

Attorney Authors: 

The Contra Costa Times has reported that the California Foundation for Fiscal Responsibility hopes to qualify a ballot initiative for the November 2010 election that would substantially alter many public employer pensions for new hires. The proposed changes include setting a uniform retirement benefit across California cities, fire districts, counties and other public agencies, restrictions on returning to work if an individual is receiving a pension benefit, and measures that are designed to avoid potential "spiking" of pension payments. To read an article describing the proposed ballot initiative click here.

Court of Appeal Finds Binding Interest Arbitration Statute Unconstitutional

On April 24, 2009, the First Appellate District ruled in Sonoma County v. Superior Court (Sonoma County Law Enforcement Association) that SB440, a labor negotiations interest arbitration statute applicable to public safety unions, violated both Article XI, Section 1(b) and Article XI, Section 11(a) of the California Constitution. This was the first Court of Appeal decision to rule on the constitutionality of SB440 and is an important decision regarding how California public agencies may resolve negotiation impasses with their public safety unions.

CalPERS Issues Circular Letter About Furloughs

Attorney Authors: 

In response to numerous inquiries CalPERS has received regarding the implementation of furloughs, CalPERS has issued a circular letter providing covered employers with information about the impacts of furloughs on employee benefits, contributions and other related issues. To read a copy of the three page circular letter please click here.

Public Agency Can Unilaterally Decide to Lay Off Employees

On March 18, 2009, the California Court of Appeal held that the City of Richmond's decision to lay off its firefighters was not subject to collective bargaining, but that the effects of that layoff decision, such as the workload and safety of remaining employees, were subject to the meet and confer requirements of the Meyers-Milias-Brown Act (MMBA). The court emphasized that the union's attempt to re-characterize the layoff decision as a change in shift staffing did not transform it into a mandatory subject of collective bargaining. Click here to read more.

No Pay for Alleged Pre-Shift Tasks by Police Officers

On February 13, 2009, a federal jury in the Southern District of California unanimously decided that the time that eight San Diego police officers spent performing tasks prior to their shifts was not compensable under the Fair Labor Standards Act. Specifically, the jury determined that the officers had not performed uncompensated work that was "controlled or required by the employer, and pursued necessarily and primarily for the benefit of the employer and its business." The officers contended that department policy requiring them to be ready at roll call meant they had to perform routine tasks, such as loading equipment into their squad cars and checking e-mails and voicemails, before their shifts began. The officers argued that the "police department's culture" and "unspoken policy" discouraged officers from putting in for overtime for these and other tasks. The City maintained that officers were not required to perform these tasks prior to their shifts and that officers were provided time during their shifts to perform the tasks. Indeed testimony reflected that officers performed the tasks early for other reasons, such as claiming a newer squad car. Click here to read more.

CalPERS Portfolio Has Lost Over Thirty Percent of Its Value

Attorney Authors: 

The San Francisco Chronicle recently reported that the investment portfolio for CalPERS has lost 31.1% of its value since peaking last fall. The article indicates that employer contributions may increase if the stock market slump continues.

To read the article in the Chronicle regarding this matter click here.

California Supreme Court Clarifies POBRA Provision Regarding Notification of Discipline

Attorney Authors: 

The California Public Safety Officers Procedural Bill of Rights Act ("POBRA") provides a limitations period specifying that punitive action may not be taken against a public safety officer unless the public agency completes its investigation and notifies the officer of the proposed disciplinary action within one year of discovering the alleged misconduct. In May v. City of Los Angeles, the California Supreme Court held that this provision does not require an employer to provide notice of the specific proposed discipline within the limitations period, and noted that the fundamental purpose of the POBRA provision at issue was to place a one-year limitation on investigations of officer misconduct. Employers are still required to notify the officer that discipline may be imposed for the identified misconduct within the limitations period. To read the Supreme Court's decision click here.

Ninth Circuit Holds Pre-employment Drug-Test Requirement for Part-time Library Employee Invalid

Attorney Authors: 

In Lanier v. City of Woodburn, the Ninth Circuit Court of Appeals was faced with the issue of whether the City of Woodburn could require an applicant for a part-time library page to pass a pre-employment drug test as a condition of an offer of employment. While the Court did not hold the City's policy that required applicants to submit to such a drug test to be unconstitutional per se, the Ninth Circuit did hold that the policy was unconstitutional as applied to the applicant because the City failed to show a special need to screen the applicant for drugs. To read the Court's decision click here.

California Supreme Court Holds that Supervisors are not Personally Liable for Retaliation

Attorney Authors: 

In Reno v. Baird, 18 Cal.4th. 640 (1998), the California Supreme Court held that while an employer may be held personally liable for discrimination under the California Fair Employment & Housing Act ("FEHA"), nonemployer individuals are not personally liable for that discrimination. The Supreme Court has now echoed that statement with respect to retaliation claims under the FEHA, holding that nonemployer individuals also can not be held personally liable for FEHA-based retaliation. To read the Supreme Court's decision in Jones v. The Lodge at Torrey Pines Partnership regarding personal liability for retaliation claims click here.

California Supreme Court Rules that Employees can be Terminated for using Medical Marijuana

Attorney Authors: 

In a 5-2 decision, the California Supreme Court held that an employee could be terminated for using medical marijuana. To read an article describing the Supreme Court's decision click here.

Racial Harassement Claims are on the Rise

Attorney Authors: 

The EEOC has reported that racial harassment cases have nearly doubled since the 1990s, hitting an all-time high in 2007. To read an article describing the rise in racial harassment cases filed with the EEOC click here.

Three New Family Leave Bills Being Considered

Attorney Authors: 

Three new California family leave bills are currently on the Governor's desk. AB 537 would expand the scope of people for whom California workers could use their 12 weeks of unpaid leave. Specifically, workers would be allowed to use their unpaid leave to care for seriously ill siblings, parents in-law, adult non-dependent children, grandparents or grandchildren. SB 727 would allow employees to use their six weeks of paid leave to care for  seriously ill siblings, parents in-law, grandparents or grandchildren. Finally, SB 836 would prohibit discrimination against a family caregiver. To read more about the potential new laws click here.

California Supreme Court Issues a Ruling Regarding the Scope of Arbitration Agreements

Attorney Authors: 

The San Francisco Chronicle recently reported about a California Supreme Court decision that placed limitations on an employer's ability to restrict class action lawsuits in an arbitration agreement. To read the article click here.

Kaiser is Fined for Complaint Processing Procedure

Attorney Authors: 

The California Department of Managed Health Care recently fined Kaiser Permanente $3 million dollars for the way complaints about medical care were handled. To read an article about the fine click here.

Online Dating Service Sued for Failing to Provide Same-Sex Dating Matches

Attorney Authors: 

A proposed class-action lawsuit was recently filed against online dating service e-harmony alleging that the failure to provide same-sex dating options constitutes discrimination based on sexual orientation in violation of California law. To read an article generally describing the lawsuit click here.

Supreme Court Grants Review of Spielbauer Decision

Attorney Authors: 

On May 9, 2007, the California Supreme Court granted review of the recent Appellate Court decision that declined to follow previous case law holding that a public employer can require its employees to waive their fifth amendment right against self-incrimination in administrative investigations in exchange for immunizing those statements from use in a criminal proceeding.

Click here to read an article describing this case in further detail.

Impacts of Obesity in the Workplace Reviewed in Study

Attorney Authors: 

The San Francisco Chronicle recently ran an article describing the results of a study that reviewed the impacts of obesity in the workplace. Among other things the article asserts that employees classified as obese use more sick days and file more workers' compensation claims than employees that are not characterized as obese.

California Cities Publishes Legal Advocacy Report

The League of California Cities published its litigation update on April 18, 2007. The report summarizes the cases reviewed by the legal advocacy committee, which engages in advocacy on behalf of California cities in the courts and in the legislature. Click on this link to review the full report: Litigation Update

For more information, please contact Ben Reyes or Steve Meyers

Court of Appeal Holds that Public Agency Decision to Hire Retirees to Remedy Short-Term Staffing Shortage is Not an MMBA Meet and Confer Issue

Attorney Authors: 

Sacramento Police Officers Association v. City of Sacramento

The Sacramento County Superior Court issued a writ of mandate at the behest of the Sacramento Police Officers Association ("POA") directing the City and County of Sacramento Police Department to meet and confer with the POA regarding the implementation of a policy to hire retirees as temporary employees. This policy was designed to remedy a short-term staffing shortage in the Police Department. The Superior Court's ruling was based on the language in the Meyers-Milias Brown Act which requires covered public agencies to negotiate in good faith with employee organizations before challenging the status quo regarding terms and conditions of employment that fall within the "scope of representation."

The Court of Appeal overturned the Superior Court's ruling, and held that the proposal to hire retirees in response to an "abrupt shortage in the staffing of the police force" was a fundamental management policy decision designed to maintain the existing level of public safety in the community. This determination was based in part on evidence which indicated that the staffing shortage could not be remedied through the ordinary process of recruiting and hiring.

Nurse Files Lawsuit Alleging Employer Discrimination Based on Military Service

Attorney Authors: 

A military nurse recently filed a lawsuit alleging that her former employer, Sutter Health, Violated the Uniformed Services Employment and Reemployment Rights Act when the nurse was terminated for informing her former supervisor that she was being deployed to military service in Iraq. In her complaint in Federal Court, the plaintiff nurse also alleges that her former supervisor expressed frustration at her past military deployments. The plaintiff nurse worked at Sutter from 2002 until she was terminated in 2006.

Click here to read an article about this lawsuit.

Complaint Sufficiently States a Claim for Retaliation

Attorney Authors: 

Taylor v. City of Los Angeles Department of Water and Power

An engineer sued his municipal employer and supervisor for retaliation because he allegedly opposed discrimination against a subordinate. The Trial Court dismissed the action after sustaining a demurrer without leave to amend. The Court of Appeal reversed the decision of the Trial Court, holding that the engineer sufficiently stated a cause of action for retaliation under both the state and federal tests for retaliation.

The alleged wrongful conduct that the engineer used as a basis for his complaint included, without limitation, that his employer took away his supervisory position, threatened to take away his alternate work schedule and barred him from completing his supervisory certification courses.

To read the entire opinion click here.

California Attorney General Issues Opinion Regarding Spousal Privilege During Peace Officer Investigations

Attorney Authors: 

In an opinion dated October 12, 2006, California Attorney General Bill Lockyer held:

1)  The privilege for confidential marital communications does not apply when a married peace officer is being interrogated during a law enforcement agency's internal affairs investigation of alleged police misconduct by the peace officer's spouse;

2)  If a married peace officer asserts the privilege for confidential marital communications during an internal affairs interrogation and refuses a direct order to answer the investigator's questions, the law enforcement agency may take disciplinary action against the officer after informing him or her that a failure to answer may result in punitive action; and

3) I f a peace officer has disclosed confidential marital communications during an internal affairs investigation in order to avoid disciplinary action, and use of the marital communications in the investigation results in disciplinary action against the peace officer's spouse, who thereafter challenges the agency's action in an administrative or court proceeding wherein the peace officer witness asserts the privilege not to testify against the spouse, the law enforcement agency may introduce the previously disclosed marital communications to support its disciplinary action in the subsequent proceeding.

Compulsory Binding Arbitration Held Unconstitional by Tulare County Superior Court

Attorney Authors: 

Tulare County Superior Court Judge Melinda Reed refused to order the County of Tulare to arbitration pursuant to SB 440 for a bargaining impasse between the County and its Deputy Sherrifs Association. Judge Reed ruled that SB 440 did not cure the constitutional deficiencies in its predecessor legislation, SB 402.

To read an article describing the decision click here.

Court of Appeal Upholds Dismissal of CFRA Claim

Attorney Authors: 

Neisendorf v. Levi & Strauss Co.

Following 14 weeks of medical leave, appellant Barbara Neisendorf's at-will employment with Levi Strauss & Co. was terminated. Neisendorf filed a lawsuit in California state court claiming that the termination violated the California Family Rights Act ("CFRA"), which contains reinstatement rights for employee out on leave for certain personal or family medical conditions, including "care for their children, parents or spouses or to recover from their own serious health condition."

In this case, Neisendorf went out on CFRA leave for her own alleged medical problems which occurred after her former employer identified various performance deficiencies during a mid-year performance review. Shortly after her leave of absence, Neisendorf was terminated from her employment for failing to commit to improving the areas of concern noted in her performance review. While Neisendorf claimed she was terminated in retaliation for asserting her CFRA rights, the jury rejected this claim, instead noting that she had well-documented performance issues that were being addressed by her former employer prior to Neisendorf's leave of absence.

In affirming the trial court's decision, the court of appeal noted that an employee who requests CFRA leave "has no greater right to reinstatement or to other benefits and conditions of employment" than an employee who remains at work. To read the entire opinion click here.

California Law Forbidding Employers who Receive State Grants from Deterring Union Organizing Upheld

Attorney Authors: 

California Government Code sections 16645.2 and 16645.7 bar recipients of a grant of state funds from "us[ing] the funds to assist, promote, or deter union organizing."  Various employer groups brought an action for injunctive and declaratory relief alleging that the statute violated federal labor law and was unconstitutional. On September 21, 2006, the Ninth Circuit Court of Appeals held that the restrictions imposed by Government Code sections 16645.2 and 16645.7 do not undermine federal labor policy and do not violate the First Amendment. Consequently, the Court upheld the validity of these sections, which also require employers receiving a grant of state funds who make expenditures to assist, promote or deter union organizing to maintain records sufficient to show that the state funds have not been used for those expenditures.

To read the full opinion click here.

Ninth Circuit Court of Appeals Holds that Waiver of ADEA claims was Insufficient

Attorney Authors: 

Syverson v. International Business Machines Corp.

Under the Older Workers Protection Act, employees may not waive rights or claims arising under the Federal Age Discrimination in Employment Act ("ADEA") unless the waiver is voluntary and knowing. In connection with a severance package, International Business Machines Corporation had various laid off employees sign a release agreement that stated that the employees were waiving their right to file "claims arising from the [ADEA]."  The last sentence of the waiver also said that "[t]his release does not preclude filing a charge with the U.S. Equal Opportunity Commission."

Numerous former employees field a lawsuit alleging a violation of the ADEA. These former employees alleged that the last sentence of the waiver gave them the impression that they could still obtain individual relief for any ADEA claims. The Court agreed, holding that the waiver did not constitute a knowing and voluntary waiver of ADEA claims.

To read the opinion click here.

IRS Revenue Ruling Specifies Actions Required for a Government Employer to Pick Up Employee Retirement Contributions

Attorney Authors: 

IRS Revenue Ruling 2006-43

The IRS recently issued a revenue ruling that discusses the actions that a governmental agency is required to undertake in order to "pick up" employee retirement contributions so that they can be treated as employer contributions pursuant to Section 414(h)(2) of the IRS Code. According to the ruling, a government employer is now required to take formal written action (i.e. ordinance, resolution or minutes of an authorized meeting) re-characterizing the employee contributions as employer contributions.

To read the ruling click here.

The revenue ruling also discusses a period of relief for employers who fail to meet the requirements by August 28, 2006, which is the effective date of the ruling. In order to qualify for the transition relief, the government employer must satisfy specific criteria listed in the ruling.

Court of Appeal Holds that Correctional Supervisors are not Entitled to the Same Raise as their Subordinates

Attorney Authors: 

Wirth v. State

A California Court of Appeal upheld a Trial Court's determination that State correctional officers were not entitled to the same percentage raise as the employees that they supervise. The correctional supervisors based their claim on the language in Government Code section 19849.18 which provides that correctional officers are entitled to salary and benefit changes that are at least generally equivalent to changes granted to their rank and file subordinates. The Court held that the State did not violate that statute by granting the supervisors smaller percentage salary increases supplemented with other benefit increases.

To read the entire opinion click here.

Supreme Court Rules on Controversy Regarding Meet and Confer Requirements Pursuant to the MMBA

In 2002, the City of Claremont instituted a study designed at gathering information regarding the identity of individuals stopped by the City's police department. The purpose of the study was to determine whether individuals were being stopped based upon their race and/or ethnicity.

Pursuant to the study, police officers were required to fill out a form that gathered information about the officers' perception of the race and ethnicity of drivers prior to stopping their vehicles. Because the City did not meet and confer with the Police Association prior to implementing the requirement that officers fill out the forms, the Association filed a lawsuit alleging that the City violated the MMBA.

The Supreme Court held that the City was not required to meet and confer with the Association prior to implementing the study. The Supreme Court emphasized that it was not deciding whether a meet and confer duty would have existed if issues regarding officer discipline or privacy arose from the results of the study (because those questions were not before the Court). Based on this caveat, it is unclear what siginificance this ruling will have.

To read this decision click here.

At Will Language Upheld by California Supreme Court Despite Failing to Say that Employee Could be Fired Without Cause

Dore v. Arnold Worldwide Inc., 06 C.D.O.S. 7078

The Supreme Court has recently held that a letter of employment that defined at-will employment as the ability to terminate the employment relationship at "any time" was a valid at-will employment agreement even though it failed to affirmatively state that the employer has the ability to terminate an employee "without cause."

To read the Supreme Court's opinion click here.

This ruling is considered to be a huge victory for employers. Despite this ruling, employers are still urged to thoroughly and appropriately define at-will employment relationships.

Jury Awards Over $17 Million in Defamation Case Against Union

A California state court jury awarded $17.3 million to a chain of hospitals in a defamation lawsuit based on a union sending postcards to potential patients of the hospitals claiming that that there was no assurance that linens at the hospitals were free from blood, feces and harmful pathogens.

To read more click here.

PERB Updates Regulations

The California Public Employment Relations Board ("PERB") has recently amended its regulations which implement the provisions of the EERA, Dills Act, HEERA, MMBA, TEERA, Trial Court Act and Court Interpreter Act. One notable change to the regulations is that PERB no longer has a separate procedure to review petitions for decertification or unit modification for local public agencies governed by the MMBA. Rather, these issues must now be raised through PERB's unfair labor practice procedure.

To review a summary of the amendements to PERB regulations, click here.

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