Briefing Room: December 2023 by lcwlegal

December 2023

Briefing Room

Table Of Contents 03

Firm Victory

Looking Ahead

Public Records Act

Did You Know?

FLSA

Consortium Call Of The Month

First Amendment

On The Blog

Contributors: Cynthia O’Neill Partner | San Francisco Ashley Sykora Associate | Los Angeles

Nathan Price Associate | Los Angeles Ronni Cuccia Law Clerk | Los Angeles

Connect With Us! Copyright © 2023 Requests for permission to reproduce all or part of this publication should be addressed to Cynthia Weldon, Director of Marketing and Training at 310.981.2000. Cover Photo: Attributed to pexels.com

Briefing Room is published monthly for the benefit of the clients of Liebert Cassidy Whitmore. The information in Briefing Room should not be acted on without professional advice. To contact us, please call 310.981.2000, 415.512.3000, 559.256.7800, 916.584.7000 or 619.481.5900 or e-mail info@lcwlegal.com.

• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

LCW Partner Jennifer Rosner And Associate Christopher Frederick Convince Hearing Officer To Uphold Deputy Sheriff’s Termination.

A Deputy Sheriff began employment with the County in 2002. In 2007, the Deputy had a stroke. He was hospitalized for one week. He was placed on restrictive duty for two months. He then returned to work without restrictions. In July 2018, the Deputy filed for Industrial Disability Retirement (IDR) claiming heart issues and hypertension, memory loss, bladder issues, and psychological issues. The County denied his application, and the Deputy appealed. A few weeks before the appeal hearing in June 2019, the Deputy withdrew his appeal and stated that he would like to return to work. The County sent numerous “Notice of Leave Approval” letters to the Deputy between August 2019 and September 2020. Those notices informed him that he had the option to return to work with reasonable accommodations, if needed, and if he was not medically able to return to work, he needed to apply for an “Official Leave of Absence”. The notices also stated that a failure to comply with the directives could result in discipline. Rather than comply with the options, the Deputy filed another IDR application in June 2020 that listed the hypertension and bladder issues again, as well as a new third health condition- erectile dysfunction. CalPERS refused to consider the first two since they had already been denied in the first IDR application and the Deputy had voluntarily withdrawn his appeal. The County denied the IDR on the third issue, and the denial was upheld on appeal. Further, a medical examiner found that the Deputy’s health conditions did not substantially

December 2023

firm victory

incapacitate him from performing his duties as Sheriff, nor were any accommodations needed. The County then sent a “Return to Work” letter to the Deputy. Once again, the Deputy did not return to work. Instead, he filed a third IDR application, which CalPERS canceled because the exact same health conditions were listed on this application as on his first IDR application. Between November 2021 and May 2022, the Deputy received and ignored three additional “Return to Work” letters. The County subsequently initiated an investigation into the Deputy’s conduct and terminated him based on the findings that he deliberately disobeyed orders of his superior, was absent without approved leave, and neglected his duties. On appeal of his termination, the Deputy claimed his conditions rendered him unable to return to work and that he qualified for full medical disability. He further claimed the County’s letters constituted discrimination against him because of his disabilities. The Hearing Officer agreed with the County and the Sheriff ’s Department. The Deputy had received at least eight “Notice of Leave Approval” letters outlining his required next steps, including the opportunity to apply for official leave if he felt that he was not medically able to return to work. Instead, the Deputy ignored them along with all subsequent “Return to Work” letters that he received over the intervening years. The Hearing Officer found that the County had provided the Deputy with ample opportunity to participate in an interactive process over his alleged disability, and there was no question that the Deputy had committed the misconduct that led to his termination.

• www.lcwlegal.com •

Join us at LCW’s 2024 Public Sector Employment Law Conference! We're thrilled to announce that registration is now open for the 25th Annual LCW Conference taking place February 8-9, 2024, in San Francisco! The LCW Conference is California's premier public sector employment and labor relations educational event. Our speakers are California labor relations and employment law attorneys who have dedicated their careers to representing and supporting California's cities, counties, special districts, public safety agencies and public educational institutions.

When: February 8 -9, 2024 Where: Hyatt Regency San Francisco Five Embarcadero Center San Francisco, CA 94111

Public Safety Sessions at the Conference: Public Safety Legal Update Managing Public Safety Injury Leave Peace Officer Discipline After Reform Legislation

2024 LCW Conference attendees will gain access to:

• Top-notch Employment and Labor Relations Presentations. As always, the LCW Conference will offer the best and most timely information on California employment and labor relations topics available presented by our expert speakers. • MCLE, HRCI and POST Credit. Do you need MCLE, HRCI, or POST credit? Don't worry, we've got you covered! • Fun Activities. It wouldn't be the LCW Conference with some fun activities mixed in! We're creating exciting ways for attendees to decompress and have some fun. Stay tuned!

• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

December 2023

We are also excited to announce three Optional Add-on Sessions! Wednesday, February 7 9:00 a.m. - 4:00 p.m. * Please note that you must register for an optional add-on session separately from the LCW Conference.

Option 1: Costing Labor Contracts The keys to successful negotiations include planning and costing. Just like planning a vacation, the amount of time and effort you put into planning and costing can determine the success of the trip. Costing contract proposals is similar to costing excursions on a vacation - they all sound like a good idea but can we afford them? Join us at this workshop to learn the importance of costing and the methods you can use to make costing easy. Participants will not only be provided with the tools to cost proposals, but will engage in interactive exercises where they set up an MOU Master Spreadsheet and proposals to cost. Bring your laptop and your Excel skills. This workshop is also part of our Labor Relations Certificate Program.

Option 2: Investigations and Discipline in Critical Incidents

The legal and political environment in which decisions about use of force investigations and discipline must be made is very different than it was just a few years ago. Civil liability is not necessarily the predominant concern anymore. This seminar will examine issues related to the investigation of critical incidents involving officers. More specifically, this seminar discusses the issues surrounding criminal, civil and administrative investigations of these matters, particularly the administrative investigative issues. In this training, you’ll hear from experienced public safety attorneys examine best administrative practices that your agency should follow and how to evaluate issues ranging from the implications of SB 2 to SB 16 to potential criminal prosecution of officers.

Option 3: Training Academy for Workplace Investigators

The Civil Rights Department (CRD) guidelines recommends that all investigators receive a full day of investigation instruction that covers information about the law shaping investigations, recommended practices, and skillbuilding exercises. This preconference session meets these CRD guidelines and recommended best practices. Presented by two leading workplace investigators, this session includes: • When to investigate • Standards for conducting a legally compliant investigation • Investigator qualifications • What to investigate • How to investigate • Core investigative skills • Skill-building exercises

Registration:

Click here to register for the Conference AND one of the optional add-on sessions. Click here if you are ONLY interested in attending a one day optional session.

• www.lcwlegal.com •

new to the Firm! Jacqueline “Jackie” Lee, an Associate in the Los Angeles office, provides advice and counsel on all employment law and litigation related matters.

Belinda Tommarello, an Associate in the Los Angeles office, provides litigation expertise in labor and employment law matters.

Duncan H. Dohmen, an Associate in the Los Angeles office, provides litigation expertise and employment law advice and counsel on all public agency related matters.

Phil N. Bui, an Associate in the San Francisco office, provides litigation expertise to our public agency clients.

Madeline Cline, an Associate in the San Francisco office, specializes in employment law, labor relations and litigation matters pertaining to public agencies and educational institutions.

Allison Ferraro, an Associate in the San Francisco office, provides employment and labor law expertise to our public agency clients.

• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

public records Act

December 2023

City Improperly Redacted Peace Officer Records. Two Oakland journalists filed 29 public record requests for information regarding several Oakland police officers who had sex with the same minor. The Oakland Police Department provided the journalists a 252-page redacted report regarding the internal investigation of that incident. The journalists challenged the redactions in court via a writ of mandate. Specifically, they argued that: 1) the trial court erred in permitting certain redactions under Penal Code Sections 837.2(b)(4) and (b)(5); 2) police officers who witness misconduct may not have their names redacted under Penal Code Sections 837.2(b)(6)(B); and 3) former Government Code Section 6254(f) does not permit redaction. Regarding their first argument, the California Court of Appeal agreed that the trial court improperly permitted certain redactions, including the report’s: training and policy recommendations; witness statements containing general information about the minor and her social-media use; screenshots of the minor’s Facebook page; and large portions of the minor’s statements to investigators. That information did not qualify for redaction under Penal Code Section 832.7(b)(5). That section allows an agency to withhold a record, but not information within a record. Moreover, because the entire report was a single investigation, no part of it was a ‘record from a separate and prior investigation or assessment’ as exempted from disclosure under Penal Code Section 832.7(b)(4). The fact that the investigation included allegations of misconduct against multiple officers, or that it investigated multiple incidents of potential misconduct, “does not transform the report into a ‘compilation’ of records for the purposes of Penal Code Section 832.7(b)(4). Accordingly, all redactions based on these grounds were improper. As to the second argument, the Court of Appeal again agreed with the journalists that police officer witnesses to misconduct cannot have their names redacted under Penal Code Section 837.2(b)(6)(B), nor Government Code Section 6254(f). Penal Code Section 837.2(b)(6)(B) provides that an agency shall redact a record in order to preserve the anonymity of witnesses. In their disclosed report, the City redacted pages that listed numerous officers and discussed whether they were found to credible and whether their statements were consistent with the evidence. Similarly, officer interview summaries were also redacted, but the summaries did not contain anything that could be fairly described as one officer witnessing another’s misconduct. Accordingly, the redactions under these sections were also deemed improper. Finally, Government Code Section 6254(f), now recodified as Government Code Section 7923.600, exempts from disclosure “records of complaints to, or investigations conducted by… any state or local police agency.” But, Penal Code Section 832.7(b)(1) expressly states that, despite Gov. Code 7923.600(a), or any other law, certain peace officer personnel records shall not be confidential and shall be made available for public inspection. The Court agreed with the journalists that the information at issue in this case was covered under the records to be made available for public inspection, and the City did not oppose such arguments. Therefore, the Court concluded the redactions were improper under this basis as well. Bondgraham v. Superior Court (City of Oakland), 95 Cal. App. 5th 1006 (2023). Key Takeaway: This case is a primer as to permissible redactions to certain peace officer records that are subject to public disclosure.

• www.lcwlegal.com •

Don't Miss Our Upcoming Webinar!

New Employer Obligations for Temporary Employees Under Assembly Bill 1484 Tuesday, December 19, 2023 10:00 a.m. - 11:30 a.m. In this 90 minute training, we will discuss new employer obligations required under AB 1484, including the duty to provide information to temporary employees and labor organizations, and how to handle a request to add temporary employees to existing bargaining units. We will discuss who does and does not qualify as a temporary employee under the new law, as well as subjects of bargaining unique to temporary employees, best practices to avoid employer pitfalls and unfair practice charges, and the importance of establishing and enforcing employment limits on temporary employees.

Kudos to Attorney Yesenia Z. Carrillo for being named on Business Street's

40 Under 40 list! 8

• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

December 2023

FLSA

Employer Properly Excluded The Value Of Hotel Rooms From The Regular Rate Of Pay. Karen Harstein worked for Hyatt Corporation. She, and a certified class of employees who were laid off in March 2020, sued Hyatt. Among other things, they alleged that Hyatt violated the Fair Labor Standards Act (FLSA) by failing to include the value of the free hotel rooms they received each year in their regular rate of pay. The FLSA “regular rate of pay” is used to calculate the amount of overtime pay and includes many forms of remuneration. Courts liberally construe the FLSA in favor of employees and require employers to bear the burden of proving that a particular form of remuneration is not included in the FLSA regular rate of pay. The employees argued that the value of the free hotel room benefit they received should have been included in the regular rate of pay. Hyatt argued that the value of the rooms were “gifts” which could be excluded from the regular rate of pay. The district court agreed with Hyatt. That court reasoned that the value of the rooms were gifts that could be excluded from the regular rate. According to that court, the rooms were a reward for service that was not related to hours worked, production, or efficiency. The employees appealed. The Ninth Circuit Court of Appeals found that the rooms were not gifts, but that Hyatt could still exclude their value from the FLSA regular rate of pay as “other similar payments” under the FLSA at 29 USC Section 207(e)(2) and under the FLSA regulation codified at 29 CFR Section 778.224. The Ninth Circuit determined that the “other similar payment” exception applied to the rooms because the regulation listed “[d]iscounts on employer-provided retail goods and services” as an example of an “other similar payment.” The Ninth Circuit affirmed the district court’s grant of summary judgment as to this issue. Hartstein v. Hyatt Corp., 82 F.4th 825 (9th Cir. 2023). Key Takeaway: The value of an employer-paid hotel room may be excluded from the FLSA regular rate of pay under the “other similar payment” exception as a discount on an employer-provided retail good or service.

Liebert Cassidy Whitmore Named 2024 Best Law Firms® By Best Lawyers! • www.lcwlegal.com •

first

amendment Government-Owned Event Venue Lawfully Designated Free Expression Zones. Burt Camenzind visited the Hmong New Year Festival hoping to distribute religious tokens to attendees. The festival, a privately organized event, took place within the state-owned California Exposition and State Fair (Cal Expo) fairgrounds. The organizers had leased the fairgrounds for the event. Cal Expo police officers told Camenzind that he could distribute his tokens in designated zones, referred to as Free Speech Zones, outside the entry gates only. Camenzind nevertheless purchased a ticket, entered the festival, and began handing out the tokens before officers removed him. Camenzind sued, alleging that Cal Expo’s conduct violated the First Amendment of the U.S. Constitution and the Speech Clause of our California Constitution. The district court determined that the area outside of the fence—the parking lots and sidewalks leading up to the entry gates—constituted a public forum under the California Speech Clause. In addition, Cal Expo’s establishment of Free Expression Zones near the entry gates was a permissible regulation of the time, place, and manner of speech. Conversely, the enclosed area was not a public forum under either constitution. Finally, the court determined that the prohibition on “free speech activities” inside the enclosed area was reasonable and content-neutral, so Carmenzind’s rights were not violated. Carmenzind appealed. The Ninth Circuit Court of Appeals agreed with the district cout. The Ninth Circuit found that the enclosed portion of the fairgrounds was not a traditional public forum because: it was not a public

thorough fair; when Cal Expo leased the area, the public did not have free access to it; and patrons had to generally pass through a security checkpoint and purchase a ticket to gain entry. The fact that the boundaries of the space were clearly marked and surrounded by fencing signaled that the space was not intended for the exercise of First Amendment rights. While the Ninth Circuit found that the exterior, unticketed portion of the Cal Expo was a public forum under the California Speech Clause, Cal Expo’s designation of a part of the exterior area as a Free Speech Zone was a valid regulation of speech. In a public forum, a public entity “may impose reasonable restrictions on the time, place, or manner of protected speech.” Those restrictions must be content neutral, narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication. Cal Expo’s regulation was content-neutral because space in the zones was allocated on a first-come, first-served basis. And, the zones served a substantial government interest in public safety by preventing congestion. Finally, the zones did not “burden substantially more speech than [was] necessary” to achieve the government’s public-safety interest. Camenzind v. California Expo and State Fair, 84 F.4th 1102 (9th Cir. 2023). Key Takeaway: A public entity may be able to prevent its event spaces from becoming traditional public forums where all free speech is allowed by: enclosing the space; leasing it to groups; and designating a free speech zone outside of the ticketed area of the space.

• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

Brian Walter

Jennifer Rosner

• www.lcwlegal.com •

December 2023

Congratulations to LCW Partners Brian Walter and Jennifer Rosner for being chosen as Los Angeles Business Journal’s Leaders of Influence: Labor & Employment Attorneys 2023!

looking ahead... New Laws In Effect January 1, 2024.

The start of the new year brings with it new legislation. Here are some key laws that take effect January 1, 2024 that every public safety employer should be aware of: • SB 616 - This amendment to California’s paid sick leave law, raises the amount of paid sick leave and carryover of that leave in each year of employment. The “full amount of leave” will be five days or 40 hours, instead of the current three days or 24 hours. • SB 848 - Employees will be entitled to “Reproductive Loss Leave.” Eligible employees are entitled to five days of unpaid leave following a reproductive loss event, which includes miscarriage, failed surrogacy, stillbirth, unsuccessful assisted reproduction, or failed adoption. • AB 2188 - This law prohibits discrimination against an employee on the basis of that employee’s off-the-job marijuana use. Employers must ensure their employment-related drug tests do not screen for non-psychoactive cannabis metabolites.

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. • The Wake County Sheriff ’s Office in North Carolina welcomed a new K-9 therapy dog. ‘Jack” is a Giant Schnauzer who will work alongside the Peer Support Team to reduce stress for first responders and the public. • The Fresno Police Department, the Fresno County Sheriff ’s Office, and the California Highway Patrol are collaborating to ensure shoppers and retailers are safe as they complete their holiday shopping. This year marks the 26th annual “Operation Presence” in which officers increase uniform patrol in shopping areas to deter theft and related crimes. • Thanks to support from the non-profit organization Vested Interest, K-9 Deputies throughout the US are receiving body armor including bullet vests to protect them in the line of duty. • Operation Blue Christmas has kicked off by the Los Angeles Police Protective League. The annual toy drive aims to deliver presents to families in need over the holidays.

• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

For more information on our consortiums, visit our website.

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 to disability accommodations, labor relations issues 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: We made a conditional offer to a police officer trainee contingent on him passing the psychological and medical exams. He completed both exams but was unsuccessful on the psychological exam. We would like to rescind the conditional offer; do we need to inform the candidate why?

Answer:

The candidate gets to know what medical exam he did not pass for the following reasons. An employer must generally have completed all non-medical components of its application process before conditioning the results of an offer on a medical or psychological exam. (2 Cal.Code Regs Section 1101(b).) The purpose of making the medical and psychological exams the last condition is to ensure that the applicant can respond to the revocation of the offer based on those exams. Before rescinding a conditional offer for employment, employers must provide the applicant with an opportunity to submit independent medical opinions for consideration before a final determination is made. (2 Cal. Code Regs. Section 11071(b)(2).) The employer can only withdraw the offer of employment if it determines that the applicant cannot perform the job duties with or without reasonable accommodation, or if the applicant would be a danger to the health or safety of themselves or others. (2 Cal. Code Regs. Section 11071(c).) Also, POST Regulations specifically mention that candidates for peace officer positions have the right to submit an independent evaluation before a final determination of disqualification can be made. (11 Cal. Code Regs. Section 1955(g).) • www.lcwlegal.com •

December 2023

Consortium Call Of The Month

On The Blog AB 1484 Adopts Enhanced Representational Rights For Temporary Employees. By: Kelly Tuffo Assembly Bill 1484, which enhances the representational rights of temporary employees of California local government agencies, was recently signed into law by Governor Newsom. While the Meyers Milias Brown Act (MMBA) (Government Code Section 3500 et seq.) currently gives temporary employees of public sector agencies the right to form, join, and be represented by an employee organization, AB 1484 enhances those rights and imposes new duties on local agencies. The intent of the legislation is to ensure that temporary employees are protected by state laws, and to ensure that the increasing use of temporary employees does not undermine public employee labor relations. AB 1484 takes effect January 1, 2024 and adds Government Code Section 3507.7 to the MMBA. It obligates local government agencies to do the following with respect to temporary employees who have been hired to perform the same or similar type of work that is performed by permanent employees who are represented by a recognized employee organization: 1. Upon request of a recognized employee organization, add temporary employees to the same bargaining unit as permanent employees who perform the same or similar type of work. 2. Once temporary employees are added to a bargaining unit in response to a labor organization’s request, promptly participate in bargaining with the labor organization over wages, hours, and terms and conditions of employment for temporary employees. 3. The employer must provide temporary employees, upon hire, with a copy of their job description, wage rates, eligibility for benefits, anticipated length of employment, and procedures to apply for open, permanent positions. This information must also be provided to the recognized employee organization within five days of hire. Although not explicitly clear, the law appears to require the information to be provided to the recognized employee organization regardless of whether the employee organization has requested that temporary employees be added to a bargaining unit. 4. Along with the list of new employee information provided to an employee organization under Government Code Section 3558, the employer must also provide the anticipated end date of employment for each temporary employee, or actual end date if the temporary employee has been released from service since the last list was

• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

December 2023

provided. This appears to require that employers provide the personal contact information of temporary employees to the recognized employee organization regardless of whether the employee organization has requested that temporary employees be added to a bargaining unit. Employers are reminded that Government Code Section 3558 permits employers to meet and confer over procedures to give employees notice and the opportunity to opt out of having their home addresses, personal telephone numbers, and personal email addresses provided to a labor organization, consistent with County of Los Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 905. Agencies are not required to make changes to existing bargaining units unless a labor organization requests that temporary employees be added. Some labor organizations may choose not to add temporary employees to existing units based on the preferences of existing members and current temporary employees. If temporary employees are added to a bargaining unit pursuant to such a request, they are not automatically entitled to the same terms and conditions of employment as their permanent employee counterparts. Rather, the parties are required to bargain over terms and conditions for temporary employees. The bill specifically notes that the issue of whether a temporary employee should receive seniority or credit for their time in temporary employment upon obtaining permanent employment is a matter within the scope of representation. Initially, an agreement over temporary employee terms can be an addendum to the existing memorandum of understanding. Thereafter, if the labor organization so requests, the terms and conditions of employment for permanent and temporary employees must be included in the same memorandum of understanding. “Temporary employee” per AB 1484 means a temporary employee, casual employee, seasonal employee, periodic employee, extra-help employee, relief employee, limited-term employee, per diem employee, and any other public employee who has not been hired for a permanent position. This can also include a retired annuitant who meets the definition of temporary employee. It does not include an employee employed by a temporary services employer as defined in Section 201.3 of the Labor Code.1 The bill does not apply to temporary employees hired pursuant to a written agreement between a public employer and a labor organization that primarily represents employees in the building and construction trades. The bill does not apply to independent contractors. The legislation specifies that it does not supersede or provide any exemption to the restrictions or requirements related to individuals working after retirement from a public retirement system. Complaints alleging violations of the new Government Code Section 3507.7 shall be processed as unfair practice charges at the Public Employment Relations Board pursuant to Government Code Section 3509. There will undoubtedly be numerous questions about AB 1484 that are not clearly answered by the bill. You should prepare for the implementation of AB 1484. Trusted legal counsel can help you with your questions as well as strategize with you over the unique issues you will face in implementing AB 1484 at your agency.

View the full blog here.

1 Labor Code section 201.3 defines a temporary services employer as “an employing unit that contracts with clients or customers to supply workers to perform services for the clients or customers and that performs all of the following functions: (A) Negotiates with clients and customers for matters such as the time and place where the services are to be provided, the type of work, the working conditions, and the quality and price of the services. (B) Determines assignments or reassignments of workers, even if workers retain the right to refuse specific assignments. (C) Retains the authority to assign or reassign a worker to another client or customer when the worker is determined unacceptable by a specific client or customer. (D) Assigns or reassigns workers to perform services for clients or customers. (E) Sets the rate of pay of workers, whether or not through negotiation. (F) Pays workers from its own account or accounts. (G) Retains the right to hire and terminate workers.

• www.lcwlegal.com •

Liebert Cassidy Whitmore