Briefing Room: June 2024

Briefing Room

firm victories

LCW Partner J. Scott Tiedemann And Associate Alex Wong

Convince Court Of Appeal To Uphold Police Officer’s Termination.

A city terminated a police officer based on allegations that he purchased and facilitated the sale of a controlled substance, and did not tell the truth during the administrative investigation into his misconduct. The officer denied the allegations and appealed the dismissal to the city manager.

The city manager followed the memorandum of understanding (MOU) between the city and the exclusive representative, and appointed a hearing officer to: oversee an administrative appeal hearing; and issue a recommend decision. The hearing officer ruled that the city did not prove the charges and recommended the officer’s reinstatement. The city manager declined this recommendation, and issued her own decision to sustain the charges and the termination.

The former officer asked the superior court to review the city manager’s decision. He claimed that the MOU required the city manager to defer to the hearing officer’s determinations regarding the facts and witness credibility. The trial court ruled that the city manager acted within her power under the terms of the MOU. The former officer appealed.

The California Court of Appeal upheld the city manager’s decision. LCW convinced the Court of Appeal that the city manager was well within her authority as the ultimate decision maker, and that there was no due process violation. The Court of Appeal agreed, finding that the MOU gives: the hearing officer the authority to create the record; and the city manager the discretion how to interpret the appeal hearing record and reach a final decision.

LCW Partner Geoff Sheldon, Senior Counsel Dave Urban, And Associate Kelsey Ridenhour Win Dismissal Of Union Dues Deduction Case.

The U.S. Supreme Court determined in its 2018 opinion in Janus v. AFSCME that the payment of union dues is a form of political speech, which triggers the First Amendment of the U.S. Constitution.

Based on Janus, a court reporter sued her union, the State of California, the superior court, and a county for violating her First and Fourteenth Amendment rights to free speech and due process. The court reporter claimed that the superior court and the county continued to collect union dues from her paycheck after she had terminated her union membership and had rescinded her dues-deduction authorization. She also alleged that the union forged her signature on the authorization form and misrepresented to the superior court and the county that the deductions should continue.

LCW represented the county, which processed payroll for the superior court employees. LCW defended the county in both the District Court and in the Ninth Circuit Court of Appeals. At each level, the courts agreed with LCW’s arguments and dismissed the court reporter’s claims.

As to the Fourteenth Amendment procedural due process claim, the county had no reason to doubt the union’s representations that the court reporter had authorized the dues deductions. The courts also agreed that the county had no duty to verify the validity of the authorizations.

As to the First Amendment free speech claims, the courts agreed that the county was not the proximate

cause of the unauthorized dues deduction. The county could not have foreseen the court reporter’s First Amendment injury because the county had: 1) no duty to ensure that the dues authorization forms were genuine; and 2) no notice that the court reporter had contested the dues deductions from her paycheck.

LCW Partner Alex Volberding And Associate Jackie Lee Prevail On Termination Appeal.

A long-term county employee’s job duties gave him access to safety-sensitive information and a county vehicle to travel to various work locations. By chance, the county discovered the employee’s potential multi-year violations of the county’s policies concerning vehicle use and timesheet fraud. After careful consideration of: the findings of an administrative investigation; a Skelly meeting; the employee’s prior work performance; and the employee’s access to sensitive information, the county terminated the employee.

At the termination appeal hearing, the county provided direct witness testimony and documentary evidence of the employee’s misuse of the county vehicle and timesheet fraud. The county also brought evidence that the employee was untruthful during the administrative investigation. The arbitrator found that the county established by a preponderance of evidence that the employee’s violations of the county’s policies and untruthfulness were sufficient grounds for his termination.

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October 24, 2024

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Wage&Hour

Pretrial Detainees Who Work At County Jails Are Not Entitled To CA Minimum Wage And Overtime Law.

Some pretrial or non-convicted detainees work in a kitchen in the Santa Rita Jail in Alameda County. They prepare meals for the county’s jail population and staff under a contract between the county and a private contractor. They are not paid for their labor. A group of them sued the county and the private contractor in federal court for failing to pay minimum wage and overtime.

The federal district court dismissed the state law claims for overtime wages on grounds that government entities are exempt from state overtime laws. The district court denied the County’s motion to dismiss the state minimum wage claims.

After the County’s interlocutory appeal, the U.S. Court of Appeals for the Ninth Circuit, certified the following state law question to California Supreme Court: “Do non-convicted incarcerated individuals performing services in a county jail for a for-profit company to supply meals within the county jails … have a claim for minimum wage and overtime under . . . the California Labor Code in the absence of any local ordinance [addressing the issue]?”

The California Supreme Court held that non-convicted incarcerated individuals performing services in county jails for a for-profit company to supply meals within the county’s custody facilities do not have claims for minimum wage or overtime under the California Labor

Code, even in the absence of any local ordinance that provides or prohibits the payment of wages.

Ruelas v. County of Alameda, 15 Cal.5th 968 (2024).

Pennsylvania Court Upholds University Police Officer’s Firing Over Social Media Posts.

A police officer working for a Pennsylvania university was fired after several of his social media posts were published. The university investigated and found posts that were racist, homophobic, and discriminatory, and that the officer’s social media identified himself as a university police officer.

Particularly troubling were the officer’s disparaging posts and posts pertaining to police officer excessive force. In one post about police shootings, the officer wrote, “If you don’t listen to a police officer’s orders, what happens to you is your fault.” In another post that referred to people of color, the officer wrote, “You rob us, car jack us, and shoot at us. But when a white police officer shoots a black gang member or beats up a black drug dealer running from the law and posing a threat to society, you call him a racist.”

The university fired the officer, citing the disruption caused by his social media posts, that the posts eroded the officer’s credibility and trusted place in the community, and that the university lost confidence in him.

The officer challenged his termination. In the arbitration, the officer argued that he was not aware of a university policy prohibiting him from stating

his opinion. The arbitrator sustained the grievance and ordered that the officer be reinstated with backpay. The arbitrator stressed that the university did not have a specific social media policy, so the officer lacked notice that some off-duty posts could result in discipline.

A Pennsylvania court overturned the arbitrator’s decision, holding that the award undermined the public policy in Pennsylvania that prohibits discrimination. The court also noted that case law interpreting the First Amendment makes clear that a public employee’s expressive rights are not absolute. While this case does not apply to California peace officers, it does illustrate the risks involved in social media posts.

In assessing whether a California public employee’s speech is protected by the First Amendment, federal courts within the Ninth Circuit must determine, among other things, whether: 1) the employee spoke on a matter of public concern; 2) the employee spoke as a private citizen or public employee; and 3) the public employer had an adequate justification for treating the employee differently from other members of the general public.

Speech involves a matter of public concern when it can fairly be considered to relate to any matter of political, social, or other concern to the community. The fundamental question is whether the speech addresses “public” as opposed to “personal” interests. Speech animated by a “grudge” or “private interest” and only marginally related to issues of public concern may not protected.

But an employee’s speech is not automatically protected simply because it relates to a matter of public concern. Rather, courts will conduct a balancing test assessing the extent to which an employer’s action in response to the speech is necessary for the efficient and effective operation of the agency. The Ninth Circuit has recognized that the government’s interest in avoiding disruption is magnified when the employee serves in a public contact role and when close working relationships are essential to fulfilling public responsibilities.

Pennsylvania State System of Higher Education v. PASSHE Officers Association, (May 1, 2024), not reported.

Key Takeaway:

While the First Amendment analysis is fact-specific, peace officers should be aware that statements of a discriminatory nature made on social media may not be protected by the First Amendment and may subject the officer to disciplinary action.

LCW In The News

To view these articles and the most recent attorney-authored articles, please visit: www.lcwlegal.com/news

• Featured in both The Recorder and Bloomberg Law, LCW Partner Alexander Volberding and Senior Counsel Brett Overby discuss California's new workplace violence prevention law, highlighting its role in setting a national standard for worker safety. Mandating comprehensive prevention plans, employee training, incident logging, and compliance records by July 1, 2024, the law urges swift action from employers. Inspired by a tragic mass shooting, it will be enforced by the Division of Occupational Safety and Health (DOSH) without a grace period. Volberding and Overby emphasize the need for customized plans, hazard assessments, and thorough training, advising employers to use templates, consult professionals, and leverage available resources to ensure effective compliance.

retaliation

FEHA Mixed-Motive Standard Does Not Apply To Whistleblower Retaliation Cases.

Donald Ververka worked for the California Department of Veterans Affairs (CalVet) as the administrator of the veterans’ home in Yountville, CA. Ververka sued his employer for allegedly terminating him in retaliation for his reporting of health and safety issues about the home to an independent state agency and to his supervisor. Days after Ververka reported his safety concerns, his supervisor recommended Ververka’s removal due to poor management of the home.

At trial, the jury found that Ververka’s disclosures were protected and “contributing factors” to CalVet’s decision to terminate him for purposes of his Labor Code section 1102.5 whistle blower claim. But the jury still found in favor of CalVet because CalVet had proven by clear and convincing evidence that it would have made the same decision for “legitimate, independent reasons” as specified in Labor Code section 1102.6.

At the California Court of Appeal, Ververka argued that because the jury found his protected activities were a contributing factor in his termination, he was entitled to declaratory relief, injunctive relief, reasonable attorney’s fees, and costs based on the California Supreme Court’s opinion in Harris v. City of Santa Monica. That opinion held in part that employees are entitled to that relief in “mixed-motive” Fair Employment and Housing Act (FEHA) employment discrimination cases if: the employee proves a discriminatory motive was a substantial motivating factor in an employer’s decision; and the employer proves it would have made the same decision for non-discriminatory reasons.

The court disagreed. The court concluded that the analysis in Harris was specific to the language in the FEHA and did not extend to Labor Code section 1102.5 whistleblower claims, which must be evaluated under the procedures described in Labor Code section 1102.6.

Ververka v. Department of Veterans Affairs, 2024 Cal.App. LEXIS 334.

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City’s Authorization To Issue Bonds To Address Unfunded Pension Liability Was Lawful.

The City Council of the City of San Jose authorized the sale of bonds to address an unfunded liability in the City’s pension plans. The Howard Jarvis Taxpayers Association and others (collectively, HJTA) claimed the City had no authority to issue bonds because the City had not obtained approval of two-thirds of the voters as required by the California Constitution’s debt limitation clause. The constitutional debt limitation prohibits cities from incurring any indebtedness or liability exceeding the income and revenue provided for a given year without the assent of two-thirds of the voters.

The trial court upheld the City's actions, ruling that the bond issuance fell under the “obligation imposed by law” exception to the debt limitation clause. The HJTA appealed.

The California Court of Appeal affirmed the judgment on different grounds. First, the Court determined that the City did not violate the debt limitation clause. The City did not seek to increase pension benefits but instead to issue bonds to provide an income stream for a pension liability it had already incurred. Thus, the City's actions to sell bonds did not trigger the constitutional debt limitation.

Second, the City has the authority to issue the bonds. Government Code section 53583 permits a city to issue bonds for the purpose of refunding any revenue bonds. Bonds are defined in Government Code section 53570 as “warrants, notes, or other evidence of indebtedness.” The Court concluded that “evidence of indebtedness,” includes unfunded liability. Thus, the Court found the City had authority to issue the bonds as well.

City of San Jose v. Howard Jarvis Taxpayers Association, et al, 101 Cal.App.5th 777 (2024).

Key Takeaway:

This case provides a helpful summary of a public entity’s pension-related obligations.

For more information on some of our upcoming events and trainings, click on the icons:

Did You Know?

Whether you are looking to impress your colleagues or just want to learn more about the law, LCW has your back! Use and share these fun legal facts about various topics in public safety.

• SB 1264, which would remove sworn law enforcement positions from recently enacted protections for offduty marijuana use, has passed by a vote of 31-3 in the California Senate. The bill will now head to the California Assembly for consideration. The bill has been amended to exempt sworn officers involved in the following functions and activities: 1) apprehension, incarceration or correction of criminal offenders; 2) civil enforcement matters; 3) evidence gathering and processing; 4) law enforcement records; and 5) coroner functions.

• On May 28, 2024, the annual Law Enforcement Torch Run fundraiser for the Special Olympics of Southern California kicked off in Chula Vista, CA. The Torch Run will span two weeks, 11 counties, 200 communities, and 900 miles, and will feature officers from local, county, state, federal, and military agencies. The run will conclude on June 8th at Cal State Long Beach, with the lighting of the cauldron at the Special Olympics of Southern California’s Summer Games.

• Law enforcement agencies have seized roughly 5.8 million fentanyl pills across California from January to April 2024 – including more than 2.3 million in the month of April alone, according to the Governor’s Office. For information about opioid prevention, treatment, and what the state is doing to hold drug traffickers and pharmaceutical companies accountable, visit opioids.ca.gov

With the enactment of Senate Bill 553, the legislature amended Labor Code section 6401.7 and added Labor Code section 6401.9, requiring employers to adopt and implement a Workplace Violence Prevention Plan (WVPP) and corresponding training for their employees by July 1, 2024. LCW has developed a number of resources to help employers develop a WVPP for their worksites and training for their employees in order to comply with these new obligations.

Train the Trainer Program

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California Law requires employers to provide harassment prevention training to all employees. Every two years, supervisors must participate in a 2-hour course, and non-supervisors must participate in a 1-hour course.

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To learn more about our program, please visit our website below or contact Anna Sanzone-Ortiz 310.981.2051 or asanzone-ortiz@lcwlegal.com.

Consortium Call Of The Month

Members of Liebert Cassidy Whitmore’s employment relations consortiums may speak directly to an LCW attorney free of charge regarding questions that are not related to ongoing legal matters that LCW is handling for the agency, or that do not require in-depth research, document review, or written opinions. Consortium call questions run the gamut of topics, from leaves of absence to employment applications, disciplinary concerns and more. This feature describes an interesting consortium call and how the question was answered. We will protect the confidentiality of client communications with LCW attorneys by changing or omitting details.

Answer:

Employees are entitled to paid military leave for some, but not all, training.

Question:

Are public employees entitled to paid military leave for military training?

Under Military and Veterans Code (MVC) section 395.01(a), a public employee who has been employed for at least one year by the public agency from which leave is sought is entitled to receive his or her salary or compensation for the first 30 days of a temporary military leave of absence for “military duty ordered for the purposes of active military training, inactive duty training, encampment, naval cruises, special exercises, or like activity, not to exceed 180 days.”

Despite “inactive duty training” being included in subsection (a), MVC section 395.01(b) provides that local public agencies may, but are not required, to pay an employee during a period of inactive duty training.

On The Blog

Compensatory Time Off: Navigate The Vacation Rush For Smooth Sailing

By: Anthony Co

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

What is CTO?

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

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

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

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

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

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

Save the Date

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

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

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

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

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

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

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

View the full blog here.

Liebert Cassidy Whitmore