Client Update: December 2023 by lcwlegal

December 2023

Client Update

Table Of Contents 03

Firm Victory

Consortium Call Of The Month

First Amendment

Benefits Corner

Public Records Act

Did You Know?

FLSA

On The Blog

Labor Relations

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

Stephanie J. Lowe Senior Counsel | San Diego 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

Client Update is published monthly for the benefit of the clients of Liebert Cassidy Whitmore. The information in Client Update 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.

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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.

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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 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!

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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.

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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 •

December 2023

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 court. 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.

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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.

Liebert Cassidy Whitmore Named 2024 Best Law Firms® By Best Lawyers! 8

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public records Act

Key Takeaway: The CPRA does not require a public agency to preserve or retain records.

The California Public Records Act (CPRA) gives the public access to government records. Law Foundation of Silicon Valley (Foundation) is a nonprofit legal services organization. The Foundation made CPRA requests to the City of Gilroy as part of the Foundation’s investigation into the City’s cleanups of homeless encampments. The City responded by claiming various categories of requested records were exempt from disclosure, including body camera footage, some of which had been erased pursuant to the department’s policies. The City did, however, produce about one hour of footage, and withheld only 10 minutes as exempt.

Pretrial Discovery Cannot Be Used To Produce the Very Documents Sought In The Underlying CPRA Request.

Dissatisfied with City’s responses, the Foundation filed: a petition for writ of mandate to get more records; and a complaint for declaratory relief alleging that the City had violated the CPRA by failing to preserve responsive records it claimed were exempt. The trial court denied the writ of mandate but granted declaratory relief for the Foundation. Both parties then sued to reverse those results. The California Court of Appeal overruled the trial court. It found that the Foundation was not entitled to a declaration that the City violated the CPRA by failing to preserve records the City claimed were exempt. The CPRA provides no remedy other than to determine whether a particular record or class of records must be disclosed. And, the trial court had already found the City properly withheld the 10 minutes of bodycam footage. In addition, the Court of Appeal held that the CPRA is not a records retention statute. The CPRA does not require public agencies to keep records or preserve records once a public records request has been made. The City’s record retention schedule for bodycam videos was consistent with another provision of California’s law. The CPRA also does not require public agencies to retain records that are potentially responsive to a public records request. City of Gilroy v. The Superior Court of Santa Clara Cnty., 96 Cal. App. 5th 818 (2023), as modified.

December 2023

The CPRA Is Not A Records Retention Statute.

In May 2021, Western Resources Legal Center (Western) submitted a public records request to San Benito County for records “about or related to” the Strada Verde Project. In August 2021, the County told Western it had produced all nonprivileged records. In October 2021, Western submitted a second CPRA request relating to the County’s alleged “burying” of a report regarding a site adjacent to the Strada Verde Project. The County responded that it anticipated responding on a “rolling basis” beginning November 19, 2021. Western sued, alleging the County had not provided responsive records to its second request, nor conducted a reasonable or adequate search for the records. Western alleged the County was withholding responsive records and delaying public access to information. Within a month of commencing its CPRA litigation, Western sent multiple discovery requests to the County, including requesting all documents responsive to its CPRA request. Western also issued an interrogatory asking the County to explain in detail what action, if any, was taken to investigate certain allegations of misconduct and, if no action was taken, to explain “why not.” Following a motion to compel, the trial court ordered the County to produce the requested documents. The County appealed the adverse ruling on the motion to compel. The California Court of Appeal disagreed with the trial court. The Court concluded that a discovery request cannot be used for production of the same documents sought by the underlying CPRA request. The Court also found that the interrogatories seeking a narrative justification for the County’s past decisions were also improper.

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With respect to those issues, the Court of Appeal overturned the trial court’s ruling on the motion to compel. County of San Benito v. Superior Court (Western Resources Legal Center), 96 Cal. App. 5th 243 (2023). Key Takeaway: If your agency is sued for alleged violations of the CPRA, make sure to object to any discovery request for the same documents that were the subject of the CPRA request.

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

Under

40 list!

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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.

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

Consortium

Seminars

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Webinars 11

r s n o b o i t a

a l el r

Prohibiting Union-Related Insignia On University Vehicles Was Unlawful.

Even though Teamster’s unfair practice charge did not allege discrimination, PERB mentioned that the University’s selective enforcement of its vehicle insignia policy was discriminatory.

The University of California maintained a policy that prohibited decals, stickers, or signs on all University vehicles. Eduardo Rosales was an electrician who drove an assigned University truck. The Teamsters represented employees in the skilled trades, including Rosales. Rosales put a Teamsters magnet on the bumper of his University truck. The magnet had the union insignia and the message “We are Teamster Strong!”

Teamsters Local 2010 v. Regents Of The University Of California, PERB Decision No. 2880-H (October 24, 2023).

Government Code Section 3565 of the labor relations statute that applies to higher education employees, gives them the right to participate in Union activities. Yet, the University forced Rosales to remove the magnet even though other skilled workers at the University did not have to remove stickers or signs on their trucks that did not reference Teamsters. Teamsters filed an unfair practice charge that alleged that the University interfered with Rosales’ protected rights by implementing a policy prohibiting a skilled trades employee from placing a union insignia magnet on a University vehicle. The administrative law judge dismissed the allegation, finding the policy did not interfere with employee protected rights. PERB disagreed. PERB found that the Teamsters showed that the University interfered with union/employee rights because the University’s ban on union magnets contradicted years of PERB precedent. In addition, the University did not show that the magnet negatively affected its operations.

Key Takeaway: An employer cannot lawfully target union insignia for differential treatment.

Emergency Did Not Relieve County of Duty To Give Notice And An Opportunity To Bargain. During the COVID-19 pandemic, the County of Santa Clara (County) ordered nurses and other County employees to change their place of work. The County assigned nurses to facilities that had staffing shortages without notifying the Registered Nurses Professional Association (RNPA). The County also assigned two employees to prepare a motel for use by unhoused people without training the employees or notifying their union, SEIU, Local 521. Without notice to or approval from the RNPA or the SEIU, the County also modified the County’s policy on the duties of disaster service workers (DSW). One modification stated that an employee who was the sole parent of a child could refuse a DSW assignment, but an employee living with a medically vulnerable family member might not be able to refuse. Both the RNPA and the SEIU (collectively, the Unions) requested to bargain with the County before the employees were impacted by the County’s decisions,

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December 2023

but the County refused. The County argued that the pandemic suspended its duty to give notice and an opportunity to bargain regarding emergency measures. The Unions disagreed.

the Unions would typically have allowed at least a preliminary bargaining session before employees were notified. Finally, PERB noted that even had the parties been unable to reach agreements, earlier notice would have made it clear the County was doing all it could to bargain, leading to more harmonious labor relations in a difficult period.

PERB concluded that: 1) the County could take necessary measures to save lives without first reaching an impasse or agreement, though it had a duty to afford the Unions notice and an opportunity to bargain in good Registered Nurses Professional Association, And Service Employees International Union Local 521 v. County Of Santa faith to the extent practicable under the circumstances; Clara, PERB Decision No. 2876-M (October 17, 2023; judicial and 2) the County failed to comply with that duty. appeal pending).

PERB opined that the County could have provided the Unions notice when the County was still considering these emergency measures. PERB felt that in some instances, the notice would have allowed negotiations to begin before a decision was finalized. Even when that was not possible, PERB thought that notice to

Key Takeaway: The California Court of Appeal has yet to weigh in on this PERB decision, but until it does, be aware that emergency conditions do not relieve a public employer from giving a union notice and an opportunity to meet and confer.

The LCW Labor Relations Certification Program is designed for labor relations and human resources professionals who work in public sector agencies. It is designed for both those new to the field as well as experienced practitioners seeking to hone their skills. Participants may take one or all of the classes, in any order. Take all of the classes to earn your certificate and receive 6 hours of HRCI credit per course!

Join our upcoming HRCI Certified - Labor Relations Certification Program Workshops: 1. December 7 & 14, 2023 - Trends & Topics at the Table 2. January 4 & 11, 2024 - Bargaining Over Benefits 3. February 7, 2024 - Costing Labor Contracts

Visit our website: www.lcwlegal.com/lrcp • www.lcwlegal.com •

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!

Brian Walter

Jennifer Rosner

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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.

This consortium question was answered by Monica M. Espejo, Senior Counsel in LCW’s Sacramento office. She can be reached at 916.584.7000 and mespejo@lcwlegal.com.

Question:

Answer:

A newer supervisor rated a subordinate employee as “substantially exceeds” in a performance evaluation category that requires a factual justification. The supervisor cannot articulate a justification for the rating. The department head, who reviews and approves this evaluation, believes the rating should be lowered to “exceeds.” The department head has asked the supervisor to reconsider. May the department head order the supervisor to lower the rating?

Absent any discriminatory or retaliatory motive or local agency policy, the department head could lawfully order the supervisor to lower the rating based on objective facts. But, there are other options to consider. First, the department head could meet with the supervisor to discuss the specific justifications for the rating, and to ask the supervisor to compare the performance of other employees to determine whether this employee’s performance truly “substantially exceeds” the others. Second, the department head could use this opportunity to explain how providing factual support makes each evaluation rating more accurate. Or, the department head could approve the evaluation and provide the supervisor feedback in this key performance area on the supervisor’s evaluation.

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December 2023

Consortium Call Of The Month

benefits Corner By: Stephanie J. Lowe

Get Ready For ACA Reporting In 2024. The IRS has released the final Affordable Care Act (ACA) reporting forms (Forms 1094-C and 1095-C) for filing next year to cover tax year 2023. Applicable Large Employers, as defined by the Affordable Care Act, are required to file Forms 1094-C and 1095-C to provide the IRS with information about health care offered to employees. The instructions for the forms are similar to past years but there have been recent changes to the deadline to furnish forms to employees and to the electronic filing (e-filing) requirements. Employers who fail furnish or file statements by the deadlines may be subject to penalties, which is why preparation is key. The Deadline to Furnish Form 1095-C to Employees is March 1, 2024 The deadline for employers to furnish Form 1095-C to employees is March 1, 2024. (See 87 Fed. Reg. 76569, December 15, 2022.) Taking into account 2024 is a leap year, the furnishing deadline is 30 days from January 31, which is March 1 in 2024 (and not March 2 like it is for non-leap years). Be Prepared to E-File Returns Earlier this year, the Department of the Treasury and the Internal Revenue Service issued final regulations amending the rules for filing IRS returns electronically. The final regulations set a new, lower threshold that requires employers to electronically file Forms 1094-C and 1095-C when they are filing ten (10) or more returns

(the threshold used to be 250 returns). The new final regulations combine all types of returns when counting whether the employer meets the 10-return threshold. An employer must count the total number of all types of returns it files in a tax year, which include, but is not limited to, the number of Form 1094-C, Form 1095-C, Form W-2, Form 1099, Form 940, and Form 945. As a result, nearly all public agencies will need to file returns electronically with the IRS. The IRS has increased the penalty for failing to file electronically to $310 per return, not to exceed $3,783,000. The deadline to e-file Forms 1094-C and 1095-C is April 1, 2024. Employers that would like an automatic 30-day extension to file Forms 1094-C and 1095-C must submit Form 8809 on or before the due date of the returns.

Health FSA Compliance Question: Question: As we reach the end of 2023 and employees have unused health flexible spending account (health FSA) funds, what are some “lesser known” goods and services that qualify as “medical care” expenses for a health FSA reimbursement? Answer: Health FSAs are only allowed to reimburse eligible medical care expenses, as defined by Internal Revenue Code Section 213(d). Section 213(d) defines “medical care” as amounts paid for: (1) the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body; (2) transportation essential to medical care; (3) qualified long-term care services; (4) insurance covering medical care or for any qualified long-term care insurance contract; and (5) lodging while away from home primarily for medical care. Some lesser known but frequently purchased goods and services that may be reimbursed by a health FSA include: first aid kits, charges

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December 2023

for medical records, menstrual products, motion sickness wristbands, rehydration solutions, sunscreen with SPF 15 or higher, baby rash ointment, and anti-itch and insect bite creams.

LCW BENEFITS BEST PRACTICES TIMELINE Each month, LCW presents a monthly benefits timeline of best practices. This timeline is intended to apply to agencies that are applicable large employers for Affordable Care Act purposes. December • Assess whether the 2024 ACA affordability percentage of 8.39% will affect whether your agency offers affordable health coverage to employees. (See October 2023 Client Update) • Notify employees who participate in a flexible spending account (health FSA, DCAP, or adoption assistance) of any deadline to withdraw funds before the end of the plan year. Notice shall be by two different forms, one of which may be electronic. (Lab. Code, Section 2810.7.) • Ensure any changes to a Section 125 cafeteria plan document or any other plan document are adopted by the end of the year to be effective next calendar year. • For agencies with cash-out election procedures for leave that avoid the constructive receipt doctrine, ensure employees make irrevocable elections before December 31, 2023 to cash out vacation and sick leave that will be earned in 2024.

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 labor and employment law.

• CalPERS Circular Letter 200-014-23 added new requirements that contracting agencies must follow when determining whether local safety members are substantially incapacitated from performing their usual duties for purpose of disability retirement. • Starting on January 1, 2024, Government Code Section 3507.7 (AB 1484) will give public employers new responsibilities to add certain temporary, seasonal, and extra help employees, who perform “the same or similar” type of work that is performed by represented permanent employees, to the permanent employee’s bargaining unit. Now is the time to ascertain if your agency uses temporary employees to perform the same or similar work as represented permanent employees. • Starting on January 1, 2024, California employers are generally prohibited from requiring a drug screening test that reveals non-psychoactive cannabis metabolites. Be sure that the drug screening provider your agency uses is capable of testing in compliance with this law.

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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

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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.

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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.

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Liebert Cassidy Whitmore