Client Update: January 2023

Client Update

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.

firm victories

Parde V. SEIU -- LCW Wins Dismissal Of A First Amendment Claim Regarding Union Dues.

LCW Partner Geoff Sheldon, Senior Counsel Dave Urban, and Associate Daniel Seitz convinced the U.S. District Court to grant a motion to dismiss without leave to amend on behalf of the County of Los Angeles. Typically, when a court grants a motion to dismiss, it provides the entity or person who filed the lawsuit with leave to amend to write a better lawsuit. In this instance, LCW Attorneys presented arguments that persuaded the judge to dismiss the case against Los Angeles County outright, without giving Parde a second chance.

Parde contended that the defendants, including Los Angeles County, violated her First Amendment rights, procedural due process rights, and substantive due process rights by: 1) causing dues deductions from Parde’s pay pursuant to her allegedly forged signature to ensure she stayed a union member despite her resignation from the union; and 2) continuing to deduct union dues from her paycheck following her resignation.

Parde had argued that Los Angeles County, which had contracted with Parde’s employer to handle payroll, was complicit in the withholding the dues without proper authorization. The County generally deducts union dues from employees’ paychecks automatically, so long as the County has a signed authorization.

LCW argued that Los Angeles County was never aware of, and could not have been aware of, any alleged forgery because Parde had never notified the County of any dispute as to the veracity of the signature. Because Parde could not show that Los Angeles County knew or should have known of this alleged malfeasance, the court dismissed her case.

LCW Wins Dismissal Of A First Amendment Retaliation Lawsuit.

LCW Partner Morin Jacob led a team to win the dismissal of a lawsuit against a county before the U.S. Court of Appeals for the Ninth Circuit. In this case, a variety of county employees were disciplined after speaking ill of certain supervisors and co-workers. These employees, once disciplined, alleged that they were being retaliated against for exercising their First Amendment rights. LCW had already won the dismissal of the suit at the trial court level, but the employees appealed the ruling to the Ninth Circuit.

The employees had: 1) disparaged other employees at a training the county had run; 2) disparaged their supervisors at various meetings; and 3) refused to amend a performance review in defiance of their supervisor’s order. It is important to note that the employees’ speech related, to, and occurred because of, their official duties as county employees. The employees “spoke” as public employees, so their speech did not have First Amendment protection.

This victory showcases LCW’s work at the appellate level of the U.S. judicial system and provides a useful reminder of the framework for analyzing First Amendment claims. If employees’ speech is related to or occurred because of their official duties as public employees, then the speech is not protected by the First Amendment.

Upholds Termination

LCW Partner Jesse Maddox and Associate Attorney Sue Renfro secured the termination of a police officer for

LCW

Of Police Officer Who Used The City Credit Card For Unauthorized Expenses And Lied About It.

dishonesty. The City’s Chief of Police had coordinated for the officer to attend a multi-day Basic Traffic Collision Investigation course. The officer asked whether her mileage would be reimbursed if she drove her personal vehicle to attend the training. She was informed that the City did not reimburse mileage on personal vehicles if a training vehicle was available. Instead of pursuing the availability of a training vehicle, the officer drove her personal vehicle to the training and used the City credit card for fuel.

Because fuel expenses needed to be charged to a specific training vehicle unit number, the officer was later asked what unit number to include on the receipts. Instead of answering ‘none’ because she had taken her personal vehicle, the officer mislead her superiors in several conversations in an attempt to have them endorse her actions.

The IA investigation found the officer falsely told her supervisors she had sent emails attempting to obtain a training vehicle but received no response, when in fact she had not sent any emails to that effect. The officer also falsely told both her supervisors that no training vehicles had been available, a statement which she later denied making during her IA interview. Moreover, the investigator found the officer never had any intention to take a training vehicle, which contradicted her earlier statements about attempting to obtain a training vehicle.

On appeal, the hearing officer found the officer made numerous dishonest and misleading statements. The hearing officer also rejected her argument that “There is no harm to the public in this case.” Instead, the hearing officer emphasized that dishonesty goes to the heart of public trust, and "[i]n an age where police officers are heavily scrutinized, and their behavior tracked, filmed, and dissected, public trust is of utmost importance.” The hearing officer upheld the termination as appropriate

LCW In The News

by relying on citations to several public safety cases emphasizing the importance of public trust, honesty, and credibility to a police officer’s duties.

LCW Wins Firefighter’s Legal Challenge

To His Suspension.

LCW Partner Geoff Sheldon and Associate Brian Dierzé defeated a firefighter’s legal challenge to his 15-day suspension. This victory showcases LCW’s expertise in dealing with public employee disciplinary appeals in our state courts.

In this matter, a firefighter was late to his scheduled shift. Because this was not his first instance of tardiness, his commander verbally reprimanded him. Instead of apologizing and moving on, the firefighter lied about why he was late and contested whether there was an actual record of his late arrival. This led to an investigation, which found an instance of dishonesty as well as performance issues. Because the investigation uncovered dishonesty, the firefighter could have been terminated. However, he was simply suspended for 15 days.

The firefighter appealed this discipline via a writ of administrative mandamus. That type of writ is a request to a state civil court to review a decision by an administrative body, such as a public employer’s governing body, to determine whether: 1) the decision was lawful; and 2) the punishment was justified.

In this instance, LCW successfully argued that the public entity correctly determined the facts, and that the punishment of a 15-day suspension was within the entity’s discretion. The trial court ruled in favor of the public employer.

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

• Recently published in the California Special Districts Association New Law Series, LCW Law Clerk Larissa Alvarez speaks on cannabis compliance. She notes that "AB 2188 makes it unlawful for an employer to discriminate against a person upon the person’s use of cannabis while away from the workplace. AB 2188 was signed into law by Governor Gavin Newsom which expands safeguards for employees to include protections for off the job cannabis use."

• LCW Partner Lisa S. Charbonneau was quoted in Law360's recent article "Worker Organizing At UC, Private Schools Faces Distinct Tests."

• In a recent KNX News segment, LCW Partner Mark Meyerhoff discussed First Amendment rights for public safety officers in California noting that “when public employees take to social media to express their views, it can lead to First Amendment issues and potentially litigation.” Meyerhoff explains that public agencies also need to review any social media policies to ensure they are legally compliant and don’t interfere with an employee’s First Amendment rights.

Coming This January!

What’s New with SB 2: Peace Officer Employment in 2023

Tuesday, January 10, 2023

10:00 am - 11:00am

Recent years have brought seismic changes to the law enforcement profession in California. In particular, Senate Bill 2, enacted in 2021, dramatically transformed and expanded the role of the Commission on Peace Officer Standards and Training (POST), which is now effectively a peace officer licensing board with the ability to decertify officers, disqualifying them from employment as a peace officer anywhere in the state (and many other states too). It also creates new internal bodies within POST with the power to review agencies’ internal affairs investigations – or conduct new investigations – and to make recommendations to the Commission regarding suspension or decertification of officers. And the bill imposes new mandates and restrictions on individual state and local law enforcement agencies.

Most of the mandates and processes set forth in SB 2 are scheduled to take effect as of January 1, 2023, and POST is currently in the process of adopting regulations to implement the new law. Experienced public safety attorney Paul Knothe will lead an informative discussion focusing on the practical steps that agencies can or must take in light of the change in the law, from the hiring process through the end of the employment relationship, and beyond.

Who Should Attend?

Police Chiefs, Public Safety Management, Captains, Internal Affairs Personnel, Public Safety Human Resources Management, Public Safety Deans, and Public Safety Attorneys.

Presented By: Paul Knothe Register here.

labor relations

When Must An Employer Bargain A Managerial Decision? PERB

“Harmonizes” Its Test With

California

Of Appeal’s Direction In County Of Sonoma

.

The City of San Francisco’s Health Officer issued an order in Summer 2021 requiring employees of businesses and governmental entities who regularly work in high-risk settings to be fully vaccinated against COVID-19 within 10 weeks of the U.S. Food and Drug Administration’s approval of a vaccine.

In addition, the City created its own vaccination and face covering policy (Policy) which required all employees to disclose their vaccination status and provide proof of vaccination or proof of eligibility for an exemption. Those exempted were required to submit to COVID-19 testing at least once a week.

SEIU filed an unfair practice charge against the City with the Public Employment Relations Board (PERB) regarding the Policy.

PERB’s Office of the General Counsel (OGC) analyzed SEIU’s charge and allowed SEIU to proceed with only some of its allegations. The allegations the OGC allowed SEIU to pursue included that the City violated the MeyersMilias-Brown Act (MMBA) by: failing to bargain the negotiable effects of the Policy; requiring employees to sign a form consenting to discipline for failure to comply with the Policy; adding a COVID-19 vaccination requirement to the minimum qualifications in job descriptions without bargaining; unilaterally changing its policy on the religious exemptions to vaccination requirements; and failing to inform SEIU about employees’ applications for exemptions to the Policy.

The OGC dismissed several other of SEIU’s allegations, including that the City violated the MMBA by: 1) unilaterally deciding to adopt the mandatory vaccination Policy; 2) requiring employees to disclose their vaccination status; and 3) refusing to allow employees to submit SEIU-created vaccination forms in lieu of

the City’s forms. The OGC determined that the City’s decision to adopt the Policy was a managerial decision that was outside the scope of representation under PERB’s 2021 decision in Regents of UC, and therefore not subject to bargaining. SEIU appealed the OGC’s partial dismissal. PERB took up the matter.

The key question before PERB was whether the City’s adoption of the Policy was a management decision outside the scope of representation. The MMBA defines the scope of representation as: “[A]ll matters relating to employment conditions and employer-employee relations, including, but not limited to, wages, hours, and other terms and conditions of employment, except, however, that the scope of representation shall not include consideration of the merits, necessity, or organization of any service or activity provided by law or executive order.”

PERB proceeded carefully in its analysis because the California Court of Appeal had determined only months earlier in County of Sonoma v. PERB (2022) 80 Cal.App. 5th 167, that PERB had applied the wrong test to evaluate whether a management decision was subject to bargaining.

PERB reviewed several California Supreme Court precedents and harmonized PERB’s method of analysis with the California Court of Appeal’s analysis in Sonoma. First, PERB's test categorizes the type of management decision at issue into one of the following: 1) decisions that have only an indirect and attenuated impact on the employment relationship are not mandatory subjects of bargaining, such as advertising, product design, and financing; 2) decisions directly defining the employment relationship, such as wages, workplace rules, and the order of succession of layoffs and recalls are always mandatory subjects of bargaining; and 3) decisions that directly affect employment, such as eliminating jobs, may not be mandatory subjects of bargaining if they involve a change in the scope and direction of the enterprise or the employer’s retained freedom to manage its affairs.

Second, if the decision falls within the third category, PERB's test analyzes whether the implementation of the fundamental managerial or policy decision has a “significant and adverse effect on the wages, hours, or working conditions of the bargaining-unit employees.” If so, then

The

Court

PERB determines whether “the employer’s need for unencumbered decision making in managing its operations is outweighed by the benefit to employer-employee relations of bargaining about the action in question.”

Using its test, PERB then distinguished its 2021 decision in Regents of the University of California (2021) PERB Decision No. 2783-H, which held that a mandatory influenza vaccine policy was a managerial decision outside the scope of bargaining. PERB said the OGC had improperly relied upon Regents to determine that City’s Policy was a managerial decision because SEIU might be able to overcome the holding in Regents. PERB directed the OGC to allow SEIU to proceed on the decisional bargaining allegations.

PERB next examined the OGC’s decision to dismiss SEIU’s allegation that required employees to disclose “their vaccination status under penalty of perjury” The OGC had dismissed this allegation on the grounds that: PERB does not enforce laws governing employees’ privacy; and questions about employees’ vaccination status do not implicate employees’ MMBA rights. PERB agreed with SEIU that the OGC should have reviewed this allegation as a unilateral change. Because the City had never required employees to disclose their vaccination status until after the Policy was implemented, PERB found the Policy fell within the “newly created policy” category of unlawful unilateral change.

Finally, PERB analyzed SEIU’s claim that the City’s decision to require employees to disclose their vaccination status constituted unlawful direct dealing with employees. In general, an employer violates the duty to bargain in good faith if it directly approaches employees to effect a change in terms or conditions of employment within the scope of representation. Further, an employer may not communicate directly with employees to undermine a union’s exclusive authority to represent unit members. PERB held that SEIU’s charge did not contain any allegations regarding direct dealing, and upheld the OGC’s dismissal of that claim.

PERB remanded the case to the OGC to issue an amended complaint that was consistent with its decision.

SEIU Local 1021 v. City and County of San Francisco (2002) PERB Decision 2846-M.

Note:

Public employers should follow the test that PERB has outlined in this case for determining whether to bargain a managerial decision and/or its effects. This case also shows that employers cannot rely on the Regents case to insulate all vaccine policy decisions from bargaining.

Join us at LCW’s 2023 In-Person Public Sector Employment Law Conference!

We're thrilled to announce that registration is now open for the 24th Annual LCW Conference taking place March 16 - 17, 2023. After a couple of years of Zoom meetings and virtual hangouts, we're looking forward to seeing you in-person for the 2023 LCW Conference in San Diego!

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: March 16 - 17, 2023 Where: Hilton San Diego 1 Park Boulevard San Diego, CA 92101

2023 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!

REGISTER HERE.

We are also excited to announce two Pre-Conference Sessions!*

* Please note that you must register for a pre-conference session separately from the LCW Conference.

Costing Labor Contracts

March 15, 2023

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 our LCW Conference Pre-Conference session and is also part of our Labor Relations Certificate program.

We’ve added Bonus Content, since it is also our pre-conference session: CompensationSurveys&CollectiveBargaining!

As a bonus to this year’s pre-conference workshop, additional information on the development, impact, and usefulness of compensation surveys in collective bargaining will be highlighted and shared with attendees!

Register on our website here.

Human Resources Bootcamp

March 15, 2023

Whether you are new to public sector labor and employment relations, or an experienced practitioner, this pre-conference session ensures that you are up to date on the most significant legal updates and fundamental issues facing public sector Human Resource professionals, including:

Legal Tune up Leaves Disability Discipline Performance Management and Discipline

We hope you will join us for this informative, interactive day designed to help you learn and hone your knowledge and skills so that you can operate at peak efficiency in tackling the HR challenges ahead.

Register on our website here.

Wage&Hour

Federal Agency’s Decision To Preempt California’s Meal And Rest Break Rules

Barred Truck Drivers’ Lawsuits.

In 2018, the Federal Motor Carrier Safety Administration (FMCSA) decided to preempt California’s meal and rest break rules (MRB rules) for truck drivers who are subject to federal regulations. The U.S. Court of Appeals for the Ninth Circuit ruled that the FMCSA’s decision was a lawful exercise of its power.

Johel Valiente and Ashraf Aiad were hourly truck drivers for Swift Transportation Company. They and other drivers filed a class action lawsuit against Swift alleging violations of California’s MRB rules and derivative state-law claims.

Thereafter, the FMCSA decided to preempt California’s MRB rules. A U.S. district court then granted summary judgment and dismissed the drivers’ lawsuit on the grounds that the court no longer had the authority to enforce the preempted regulations, even though the lawsuit was filed

before the FMCSA’s preemption decision. The drivers appealed to the Ninth Circuit.

The Ninth Circuit identified a tension between two general legal rules: 1) a court is to apply the law in effect at the time it renders its decision; and 2) retroactivity is not favored in the law. The tension between those two rules was paramount in this case because the court: 1) could no longer apply the preempted law that the truckers had relied upon; and 2) could not decide a case retroactively on the new FMCSA decision, due to concerns of fair notice, reasonable reliance, and settled expectations.

The test federal courts use to reconcile this tension is known as the Landgraf framework. First, a court must determine “whether Congress has expressly prescribed the statute’s proper reach”. If the relevant change in law is the result of an agency action, courts must find both: 1) congressional authorization for the agency to impose retroactive rules; and 2) agency intent for the rules in question to apply retroactively. If this is so, then the new rules apply retroactively.

If no such intent is clear, then the court must assess whether the action would have an impermissible retroactive effect, that is, whether a retroactive ruling would impair rights under existing laws or create new obligations or duties in respect to past transactions. If this is so, courts must then only apply the new laws prospectively to new cases.

Here, the Ninth Circuit found that, because of the phrasing of the federal legislation that created the FMCSA, Congress intended for the FMCSA to have the power to halt enforcement of state laws. Moreover, the Ninth Circuit found that because the FMCSA expressly intended for its preemption decision to apply to pending lawsuits, the preemption of California’s MRB rules meant that the drivers’ case could not go forward.

Valiente v. Swift Transportation Co. of Arizona, LLC (9th Cir. 2022) 54 F.4th 581, 583.

Note:

This case illustrates the interaction of federal and California law. Knowing whether a federal law may apply is critical to properly managing a workforce.

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.

• Effective January 1, 2024, most employers cannot discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon any of the following:

◦ The person’s use of cannabis off the job and away from the workplace; or

◦ An employer-required drug-screening test has found the person to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.

• Effective January 1, 2023, SB 523 amends the Fair Employment and Housing Act (FEHA) to include “reproductive health decisionmaking” as a protected category. This law prohibits discrimination on the basis of reproductive health decisionmaking. This amendment also makes it unlawful for an employer to require, as a condition of employment, continued employment, or a benefit of employment, the disclosure of information relating to an applicant’s or employee’s reproductive health decisionmaking.

◦ Under this new law, “reproductive health decisionmaking” includes, but is not limited to, “a decision to use or access a particular drug, device, product, or medical service for reproductive health.”

• The Political Reform Act establishes rules that public employees and officials must follow relating to the receipt of gifts. Notably, gifts of a certain value are disallowed or must be disclosed. The value limitations and disclosure requirements are also dependent on the source of the gift. For example, gifts from family members and close relatives, including from former spouses, step-children and former or current in-laws are exempt from the Act’s value limitation and disclosure requirements.

The 411 On Consortiums:

Consortium Call Of The Month

LCW has 30+ consortiums across the State! Consortium members enjoy access to quality training throughout the year, discounts on other LCW products and events, and unlimited, complimentary telephone consultation with an LCW attorney on matters relating to employment and labor law questions (including questions involving COVID-19, supervisory skills, and negotiation matters!). We’ve outlined a recent consortium call and the provided answer below. Client confidentiality is paramount to us; we change and omit details in the ERC Call of the Month.

Question:

I heard that Cal/OSHA has eliminated the COVID-19 Emergency Temporary Standards and replaced them with a Permanent Standard. Should I be making adjustments to my COVID-19 Prevention Program?

Answer:

You are correct, and yes, updates to an entity’s COVID-19 Prevention Program will be necessary for most employers. For an overview of the changes and related obligations, please consult this Special Bulletin.

On The Blog

What Employers Should Know About California’s Contraceptive Equity Act of 2022

By: Brett A. Overby

This year, the California Legislature passed and the Governor approved the Contraceptive Equity Act of 2022 (Senate Bill 523 or SB 523), a piece of legislation intended to increase the ability of Californians to exercise full control over their reproductive decisions and to expand coverage and decrease access barriers to reproductive health services.

Among other things, Senate Bill 523 makes changes to the Fair Employment and Housing Act (FEHA) that take effect on January 1, 2023. Generally, the FEHA’s protections apply to all public employers.

SB 523 expands the FEHA to include “reproductive health decision-making” in the list of classifications protected by the FEHA. Reproductive health decision-making means, without limitation, “a decision to use or access a particular drug, device, product, or medical service for reproductive health.” As a result, beginning January 1, 2023, the FEHA will prohibit employment-related discrimination, harassment, and retaliation based on employees’ reproductive health decision-making. SB 523 also makes it unlawful for an employer to require, as a condition of employment, continued employment, or a benefit of employment, the disclosure of information relating to an applicant’s or employee’s reproductive health decision-making.

SB 523 makes clear that the protected classification “sex” may also include reproductive health decisionmaking and the two classifications may overlap. “Sex” also includes things such as (1) pregnancy or medical conditions related to pregnancy; (2) childbirth or medical conditions related to childbirth; (3) breastfeeding or medical conditions related to breastfeeding; and (4) gender, gender identity, and gender expression.

To prepare for these changes to the FEHA that take effect on January 1, 2023, we recommend that employers revise their discrimination, harassment, and retaliation policies and other relevant policies to incorporate the new protections for reproductive health decision-making, including in the list of protected classifications these policies set forth. Employers should also advise supervisors and managers of the changes in the law, and keep in mind that these changes should be incorporated into the mandatory nonsupervisory and supervisory harassment training.

The Contraceptive Equity Act of 2022 also makes various changes to the law governing health care service plans and health insurance policies intended to improve equitable access to preventive contraceptive care, which apply to health care service plan contracts and health insurance policies issued, amended, renewed, or delivered on and after January 1, 2024.

Liebert

Liebert Cassidy Whitmore