Fire Watch: June 2024

Fire Watch

firm victories

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 multiyear 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.

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.

Upcoming Webinar! 2025 Public Agency Legislative Roundup

October 24, 2024 10:00 a.m. - 12:00 p.m.

laborrelations

PERB Says Prevailing Party Is Not Entitled To Attorney’s Fees Absent Special Circumstances.

SEIU, Local 521 and Santa Clara County were parties to a memorandum of agreement (MOA) regarding physician assistants (PAs). PAs were required to maintain certain professional certification standards.

In 2019, the County disciplined a PA for allegedly failing to maintain the professional certification that the County bylaws required. The PA filed a grievance and won. The County then substantially revised the certification bylaws.

SEIU filed a PERB unfair practice charge. SEIU claimed that the County unlawfully refused to bargain before its Board of Supervisors (BOS) approved the County’s bylaw revisions. Those revisions included new certification standards for SEIU-represented employees. PERB held that that the County violated its bargaining duties both with respect to the BOS’ decision and its effects, because the certification bylaws were within the scope of representation.

But PERB rejected SEIU’s request to include attorney's fees as a standard, make-whole remedy. PERB explained that, except in cases in which there is a statutory right to attorney's fees, a successful party cannot require the other party to pay its fees. A party in a PERB case seeking fees must normally show that its opponent pursued a claim, defense, or motion, or used a tactic without arguable merit and in bad faith.

PERB rejected the idea that, as a matter of course, a successful charging party should receive reimbursement of litigation expenses. PERB rejected SEIU’s request for attorney's fees in this case as the County did not assert a frivolous, or bad faith defense.

County of Santa Clara, PERB Dec. No. 2900-M (April 23, 2024), judicial appeal pending.

Key Takeaway:

The County vigorously argued several points of law and defenses in this case. PERB responded to each with the result that this case is a primer on many aspects of the duty to bargain. Note that a judicial appeal is pending.

Happy Summer! Please note that we will not have a July newsletter and will resume in August.

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

events and trainings, click on the icons:

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.

LCW In The News

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.

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.

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.

• A bill (AB 2408) has passed in the California Assembly that would prohibit firefighter protective equipment from containing chemicals alleged to cause cancer, often referred to as “PFAS” (polyfluoroalkyl substances). AB 2408 will now head to the California Senate for consideration.

• On May 24, Governor Gavin Newsome introduced a new website – ready.ca.gov – that aims to serve as a one-stop shop for Californians to prepare for emergencies and extreme weather and to connect communities with resources before, during, and after emergencies. The website includes information concerning power outages, wildfires, wildfire smoke, floods, severe storms, fast and cold water, extreme heat, and earthquakes.

• Fire Station 53 of the San Bernardino Fire Protection District is located in Baker, California. Station 53 has the only dedicated emergency services to cover a 93-mile span of Interstate 15 leading into Nevada, which is the route from Los Angeles to Las Vegas. The station also covers long distances along highways sprawling in other directions.

Train the Trainer Program

Become a Certified Harassment Prevention Trainer for your Organization!

LCW Train the Trainer sessions will provide you with the necessary training tools to conduct the mandatory AB 1825, SB 1343, AB 2053, and AB 1661 training at your organization.

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.

QUICK FACTS:

Trainers will become certified to train both supervisors and non-supervisors at/for their organization.

Attendees receive updated training materials for 2 years.

Pricing: $2,000 per person. ($1,800 for ERC members).

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

www.lcwlegal.com/train-the-trainer

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.

Question: Answer:

A firefighter who is injured and on 4850 leave has continued working a second desk job at a neighboring fire department while out on leave. Is that legal?

If the employment is pre-existing and compatible, an employer likely cannot take any offsets from income earned by an employee out of 4850 leave. The analysis may be different if the employee’s hours at the second job have increased and include hours for which the employee would normally be scheduled at the job for which the employee is out on leave.

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