Client Update: May 2023

Client Update

firm victories

LCW Partner Jennifer Rosner And Associate Jack Begley Convince Superior Court To Uphold Police Officer’s Termination.

A city terminated a police officer for repeatedly accessing confidential law enforcement information data to obtain personal information for friends. The officer claimed that the information was public, so it was permissible for him to pass the information to his friends. This was false, and the officer had to verify each time he signed in to the database that the information he was retrieving was for a legitimate law enforcement purpose.

After the city terminated the officer’s employment, the officer asked the superior court to review the city’s decision. The officer also claimed that the city failed to give him both the proper notice of investigation and the investigation materials that the city had relied upon as required by the Public Safety Officer’s Procedural Bill of Rights Act (POBR).

LCW was able to show that the officer received sufficient notice of investigation and all the investigation materials that the city relied upon. LCW convinced the judge that city had sufficient cause to terminate the officer’s employment and that the penalty of termination was within the city’s discretion.

LCW Partner Adrianna Guzman And Associate Anni Safarloo Win Dismissal Of Time-Barred UPC Regarding Paid Release Time.

A union had asked a city employer, with one day’s notice, for paid release for several employees to attend an informal conference on an unfair practice charge (UPC) at the Public Employment Relations Board (PERB). The city granted the paid release time, but only to the designated employee representative to attend the informal conference, as required by the Meyers-MiliasBrown Act (MMBA). The city allowed the remaining employees to use their own paid leave to cover the time off.

The union filed an unfair practice charge, alleging that the city violated the MMBA by denying paid release time to all the employees who attended the informal conference. LCW argued on the city’s behalf that: 1) the UPC was not filed within six months after the union knew of the city’s paid release time decision; and 2) the MMBA only allows the designated representative to have paid release time in connection with PERB proceedings.

The union filed an amended UPC, alleging that the non-payment of the release time occurred within the six-month limitations period. LCW convinced the PERB agent to dismiss the charge as untimely because the six-month limitations period began at the earlier time when the city communicated it would only grant paid release time to the designated representative. The PERB agent did not address LCW’s argument regarding the “one designated representative” limit on paid release time for PERB proceedings as stated in Government Code Section 3505.3.

LCW Partner Jesse Maddox, Associates Nathan Jackson And Lars Reed Defeat Police Officer’s Untimely Request For Arbitration.

In 2021, the city terminated a police officer for cause. Per the Memorandum of Understanding between the city and the police union, the officer had 20 work days to request arbitration. The officer’s attorney and the city confirmed the exact deadline for the officer to request arbitration. The officer informed his attorney of his desire to seek arbitration, but neither of them informed the city until a month after the agreed upon deadline. The city proceeded to deny the officer’s untimely request to arbitrate.

The terminated police officer then filed a lawsuit seeking to be relieved from his attorney’s negligence and to force the city to arbitrate. LCW successfully defended the city against this lawsuit at the trial court level, at the earliest opportunity, by prevailing on a demurrer without a leave to amend.

The terminated police officer then appealed, arguing that he was entitled to statutory relief from forfeiture, and the city was obligated to submit to arbitration. LCW successfully argued before the California Court of Appeal that the statute the police officer had cited was inapplicable. The Court of Appeal agreed and affirmed the judgment for the city.

LCW Partner Geoff Sheldon And Associate Alex Wong Win Dismissal Of Police Officer’s Disability Discrimination Claims.

A probationary police officer sued for disability discrimination, retaliation, and failure to accommodate. The case arose after the officer was injured while responding to a call for service. The officer’s doctor initially prescribed work restrictions that included, among other things, no standing, walking, or sitting more than 20 cumulative minutes per hour, and no lifting more than five pounds. The officer also needed to lay down a minimum of 20 minutes per hour. If those

accommodations could not be provided, he was deemed temporarily totally disabled. The city granted his requests for temporary total disability leave. The officer filed a worker’s compensation claim as well.

Later, the city discovered that the officer was quite physically active even while “temporarily totally disabled,” and the city reported this information to its third-party administrator. An investigation conducted by the third-party administrator included sub rosa video which showed that the officer was carrying several heavy items, lifting and carrying tables, walking without using crutches, entering and exiting vehicles without hesitation, providing support for a person above his shoulders so that person could reach a basketball rim, and even scaling a fence four separate times to hang a sign.

The officer was eventually cleared to return to modified work with no contact with the public. The city determined that it could not accommodate the restriction of no contact with the public and advised the officer. The officer then returned to his doctor for reevaluation and was cleared for work as a police officer without any restrictions.

The chief released the officer from probation after reviewing the evidence of suspected worker’s compensation fraud. The officer responded by filing the claims noted above in the California Superior Court.

The court granted the city’s motion for summary judgment on all counts. First, with respect to disability discrimination and retaliation, the court found that the city had a legitimate business reason for releasing the officer from probation. Second, because the officer’s claims of discrimination and retaliation failed, his claims for failure to prevent discrimination and retaliation also failed.

Finally, the court found that the city appropriately accommodated the officer through a good faith interactive process. The city initially granted the officer paid temporary disability leave, and later reviewed available desk assignments for positions that complied with his work restrictions. Because an employer has no affirmative duty to create a new position to accommodate a disabled employee, the court dismissed this claim as well.

new to the Firm!

Olga Y. Bryan, an associate in the San Diego office, advises clients on labor, employment, and wage and hour matters. She has defended employers in litigation claims for a variety of issues including discrimination, retaliation, harassment, wrongful termination, and wage and hour class violations.

Don't Miss Our Upcoming Webinar!

May 10, 2023

10:00 am - 11:00am

Understanding the Additional CalPERS Requirements for Industrial Disability Retirements

This workshop will assist public safety employers in making disability retirement determinations by reviewing the new requirements from CalPERS for making these determinations. CalPERS now requires employers provide additional information and documentation regarding a member’s job duties and the frequency with which they perform various physical activities as well as medical documentation related to the member’s substantial incapacity. The workshop will provide valuable resources, guidance and forms to enable employers to make the IDR determination and submit the appropriate documentation to CalPERS in support of that determination.

Who Should Attend: Risk Managers, Human Resources, Supervisors, and Managers. This webinar will focus on Safety CalPERS agencies.

Register here!

disability retirement

CalPERS Increases Scrutiny Of Agency Decisions On Local Safety Members’ Disability Retirements.

CalPERS issued Circular Letter 200-014-23 in March 2023 to add new requirements that contracting agencies must follow when determining whether local safety members qualify for a disability retirement. CalPERS now requires agencies to submit additional documentation and information, including completing several new CalPERS forms, when certifying an application for disability retirement, industrial disability retirement, and re-evaluation for continuous eligibility for disability retirement. As a result of the new requirements, local agencies may not be able to rely solely on workers’ compensation reports to the extent that those reports contain presumptions or prophylactic work restrictions that are not applicable in the CalPERS setting.

To view this Special Bulletin in its entirety, please click here or copy and paste this URL: https://bit.ly/3LcUVCp

Public Safety Seminars

Liebert Cassidy Whitmore's public safety experts understand the unique challenges, both legal and societal, that law enforcement agencies face, and we use that understanding when handling or advising on the entire scope of personnel issues that law enforcement executives will encounter, from recruiting and hiring through separation and retirement of both sworn and civilian personnel.  LCW attorneys not only provide advice, counseling and representation services, but we also train agency personnel on a host of subjects. See below for all of our upcoming public safety seminars!

2023 Peace Officer Employment Legislative Update: The New Landscape

Southern California: September 6, 2023 | Buena Park, CA

Recent years have brought seismic changes to the law enforcement profession in California.  Multiple Legislative actions have significantly altered the law governing peace officer employment, and agencies and officers will have to adjust accordingly.  Experienced public safety attorney Paul Knothe will lead a thoughtful discussion of the new laws, focusing on the practical steps that agencies can take to avoid fault lines, from the hiring stage to the end of the employment relationship.

Best Practices for Conducting Fair and Legally Compliant Public Safety Administrative Investigations

Northern California: May 23 & 24, 2023 | San Ramon, CA

Southern California: October 25 & 26, 2023 | Buena Park, CA

A public safety administrative investigation is a key element in whether an agency will be successful in imposing discipline. What do decision-makers, hearing lawyers and courts look for in an investigation report? This two-day course will unlock the difference between a public safety administrative investigation that supports discipline versus those that undermine it.

Investigations and Discipline in Critical Incidents

Southern California: August 2, 2023 | Buena Park, CA

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 Brady to potential criminal prosecution of officers.

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Probationary Employee Was Properly Released Despite His Protected Union Activity But

Board Member’s Comments Constituted Interference.

By March 2020 the COVID-19 pandemic began to overwhelm hospitals nationwide. One hospital within the Alameda Health System (AHS), Highland Hospital, quickly experienced a shortage of personal protective equipment (PPE). A supervisor at Highland Hospital began to worry that supplies of PPE would be exhausted and directed nurses to wear cloth gowns when tending to non-COVID-19 patients instead of the fluid-resistant gowns normally worn.

Many of the nurses, who are represented by the Service Employees International Union, Local 1021 (SEIU) felt uncomfortable about this change. Saber Alaoui was a probationary nurse in March 2020. During one of his shifts, Alaoui cut holes in a garbage bag and wore it as a makeshift fluid-resistant gown over his cloth gown.

At some point, an SEIU employee representative approached Alaoui and asked if he would share the picture of himself wearing the modefied garbage bag. Alaoui agreed because SEIU was advocating about PPE issues, and seeking to improve access to isolation gowns. SEIU representatives put a version of Alaoui’s picture on Facebook, Instagram, and Twitter.

The post gained traction online and an article appeared in a local newspaper. Part of a Board of Trustees meeting focused on AHS’s response to the pandemic. The Board discussed media reports of the nurse who wore a garbage bag as PPE. A Board member asked the AHS CEO if staff were being denied necessary PPE, and the CEO responded that they were not. The Board member then asked, “for the purpose of political theater, have you required staff to wear garbage bags?” The CEO responded, “no,” and said that he happened to be visiting Highland Hospital when the nurse reported wearing a garbage bag. The CEO characterized the incident as an “unfortunate episode” and said that isolation gowns were available later in the day. The Board member responded, “that kind of political theater is not acceptable [in] a time of

crisis and we need to keep our heads level and . . . our eyes on the . . . real problem.”

Shortly thereafter, Alaoui’s supervisors began discussing whether to release Alaoui from probation for performance reasons. Alaoui had failed to administer medication as required by the patient’s treatment plan, and had improperly pulled medications for more than one patient at the same time. When counseled about these mistakes, Alaoui was recalcitrant and argumentative. AHS released Alaoui from his probationary employment.

SEIU filed an unfair practice charge (UPC) with the Public Employee Relations Board (PERB) against AHS, alleging that both Alaoui’s release and the Board member’s statement were improper interference with protected union activity under the MeyersMilias Brown Act (MMBA) the state law that governs local public agency labor relations.

To establish a prima facie interference case, a charging party must show that an employer’s conduct tends to or does result in some harm to protected union and/or employee rights. A charging party need not

relations

prove an employer acted because of an unlawful motive. If the union establishes a prima facie case, the burden shifts to the employer. The degree of harm triggers the weight of the employer’s burden. If the harm is “inherently destructive” of protected rights, the employer must show that the interference resulted from circumstances beyond its control, and that no alternative course of action was available. For conduct that is not inherently destructive, the employer must show that it narrowly tailored its conduct based on an important operational necessity.

PERB found that Alaoui’s release from probation was for legitimate business reasons, namely, poor performance, and was not inherently destructive.

PERB found that the photo of Alaoui wearing the garbage bag gown was protected activity because it drew attention to employee safety concerns. Releasing Alaoui from probation shortly afterwards tended to harm protected rights. But, PERB held that the harm caused by releasing Alaoui from probation shortly after the protected activity was outweighed by AHS’s right to release an employee from probation for serious work performance issues. PERB dismissed this part of the charge.

PERB next examined the claim of interference based on the Board member’s statement that “political theater is not acceptable.”

In an interference case involving employer speech, PERB looks at the circumstances to determine if an employee or union representative had an objective reason to feel that the employer’s communication coerces, restrains, or otherwise interferes with protected rights. Generally, an employer has a safe harbor from an interference violation if it expresses its views, arguments, or opinions on employment matters, unless its expression contains a threat of reprisal or force, or a promise of benefit. This safe harbor for employer speech does not apply, however, “to … urging employees to participate or refrain from participation in protected conduct, statements that disparage the collective bargaining process itself, implied threats, brinkmanship, or deliberate exaggerations.”

PERB first decided that the actions the Board member described as “political theater,” in context, were protected activities because the statement occurred amidst union and employee actions around safety and PPE shortages. But, PERB further held that an employee listening to

the statements could reasonably infer a threat because a reasonable employee would understand “not acceptable” to mean “prohibited.”

PERB concluded that the Board member’s comments that “that kind of political theater is not acceptable” constituted interference in violation of the MMBA.

Note:

This case illustrates how careful management must be with any communications that relate in any way to protected activity. On the other hand, PERB does respect an employer’s ability to release low-performing employees even if they have engaged in protected activity, so long as that release is based on operational necessity.

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

• Recently published in the Fresno Business Journal, OC Register, The Mercury News, LA Daily News, San Gabriel Valley Tribune, and on SiliconValley.com, LCW Partner Shelline Bennett speaks on Assembly Bill 2188, which will go into effect on January 1, 2024. This legislation makes it unlawful for employers to discriminate against a person in hiring, terminating, or placing any term or condition of employment based upon the use of cannabis off the job and outside the workplace.

SEIU v. Alameda Health System, PERB Dec. No. 2856-M 3/23/23.

• Effective January 1, 2023, SB 523 amended FEHA to include “reproductive health decision making” as a protected category. “Reproductive health decision making” includes, but is not limited to, “a decision to use or access a particular drug, device, product, or medical service for reproductive health.”

• Effective January 1, 2023, peace officers can no longer stop a pedestrian for a traffic infraction unless there is an immediate danger of collision.

• As of July 1, 2022, SB 270 authorizes public employee unions to file a special form of unfair practice charge for an employer’s failure to provide the names and home addresses of newly hired employees, as well as their job titles, departments, work locations, telephone numbers, and personal email addresses, within 30 days of hire or by the first pay period of the month following hire.

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.

ON-DEMAND TRAINING

Offering A Brand New On-Demand Class!

Public Service: Understanding the Roles and Responsibilities of Public Employees

This three-hour presentation is designed to provide an overview of what it means to be a public employee, the important role of a public servant and how to succeed in public service. The presentation will cover the following issues:

• The difference between public vs. private sector employment

• The responsibilities and role of a public employee

• Common labor laws for public employees

• Ethical obligations of public servants

• Efficient use of public resources

• Providing customer service

• Creating and maintaining a work environment of respect, dignity, and integrity

the citizens we serve

Who Should Attend?

for

Any and all public employees, including entry-level employees, general and lead workers, supervisors and managers. This workshop is also encouraged for any level of employee who is new to the public sector or who would benefit from a refresher workshop.

For more information, visit our website here!

benefits Corner

Texas Federal Court Ends Enforcement Of ACA’s Preventative Care Requirements.

By: Stephanie J. Lowe

Six individuals and two businesses filed a lawsuit against the federal government challenging the legality of the Affordable Care Act’s (ACA) preventative care mandates. The ACA requires private health insurance companies cover preventative care services with no cost sharing (meaning at no additional payment beyond the premium).

Each plaintiff objected to the preventative care mandate for religious or personal reasons, or both. Specifically, plaintiffs want the option to purchase health insurance that excludes preventative care coverage for preexposure prophylaxis (PrEP) drugs for HIV prevention, contraception, the HPV vaccine, and screenings and behavioral counseling for STDs and drug use. They claimed they do not require such preventative care and that it violates their religious beliefs to provide such insurance coverage because it makes them “complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman.”

Previously at issue in this lawsuit was the ACA’s delegation to the U.S. Preventative Services Task Force (PSTF) to determine what types of preventative care services health plans must cover. The U.S. District Court for the Northern District of Texas determined that the PSTF’s recommendations violated the Appointments Clause of the U.S. Constitution because the Task Force members were not appointed through a Presidential nomination with consent by the Senate. Therefore, the Court ruled that any actions taken based on PSTF’s recommendations were vacated.

In the Court’s most recent ruling on March 30, 2023, it determined that the PrEP coverage mandate violates the Religious Freedom Restoration Act (RFRA). The RFRA generally prohibits the government from substantially burdening an individual’s exercise of religion. The Court determined that the PrEP coverage mandate substantially burdens the plaintiffs’ religious exercise due to their belief that purchasing PrEP drugs makes them complicit in behaviors condemned by the Bible. The Court agreed with plaintiffs’ argument that the ACA forces them to choose between purchasing health insurance that violates their religious beliefs and foregoing conventional health insurance altogether. The Court did not find that the federal government had a compelling government interest to require the coverage or that the PrEP coverage mandate was the least restrictive means of furthering the government’s interest.

As a result of the decisions, the Court declared any governmental action taken to implement or enforce PSTF’s recommendations for preventative care was unlawful. Therefore, the plaintiffs were not required to obtain or provide coverage with preventative care services. Since the Court found more specifically that the PrEP coverage mandate violates the RFRA, individuals and employers are not required to obtain or provide PrEP coverage as a type of preventative care.

Should this decision be applied by other district courts, courts of appeal, or nationwide, the broader implication of this lawsuit is that preventative care coverage without cost sharing will become an option and not a requirement. Health insurance plans and employers will have the discretion to determine what preventative services, if any, will be covered and whether they will charge additional amounts for the coverage.

Braidwood Mgmt. Inc. v. Becerra, 2023 WL 2703229 (N.D. Tex. 2023).

Health Flexible Spending Accounts Can Cover Certain Nutrition, Wellness, And General Health Expenses.

The IRS recently issued FAQs providing information about what costs for nutrition, wellness, and general health qualify as medical expenses that can be paid for or reimbursed under a health flexible spending account (FSA), health savings account (HSA), or health reimbursement account (HRA). Internal Revenue Code section 213 generally allows a tax deduction for medical expenses. Medical expenses are also allowed to be paid for or reimbursed tax-free by a health FSA, HSA, or HRA. Medical expenses are the costs of diagnosis, cure, mitigation, treatment, or prevention of disease, and for the purpose of affecting any part or function of the body. Medical expenses do not include costs for services that are merely beneficial to general health.

Many of the FAQs explain that a cost can be paid or reimbursed by a health FSA, HSA, or HRA when it treats a disease. The following costs are considered medical expenses that may be paid or reimbursed on a non-taxable basis:

• Drug and alcohol treatment programs because the programs treat a disease (substance use disorder and alcohol use disorder).

• Smoking cessation program because it treats a disease (tobacco use disorder).

• Therapy that is treatment for a disease, such as therapy to treat a diagnosed mental illness.

• Nutritional counseling and weight loss programs if they treat a specific disease diagnosed by a physician, such as obesity or diabetes.

• Gym membership only if it was purchased for the sole purpose of affecting a structure or function of the body, such as physical therapy to treat an injury, or the sole purpose of treating a specific disease.

• Food or beverages purchased for weight loss or other health reasons, but only if it does not satisfy normal nutritional needs, alleviates or treats an illness, and a physician substantiates the need.

• Over-the-counter drugs and menstrual care products.

The FAQs specify that marital counseling and exercise for the improvement of general health cannot be reimbursed by a health FSA, HSA, or HRA.

For more information, see the IRS FAQs: https://www. irs.gov/individuals/frequently-asked-questions-aboutmedical-expenses-related-to-nutrition-wellness-andgeneral-health

ACA Compliance Question: Counting Hours Of Service For Full-Time Status.

Question: Do paid leave hours count as “hours of service” when an employer is determining whether an employee qualifies for full-time status for Affordable Care Act purposes?

Answer: Yes, paid leave hours count as “hours of service.” An “hour of service” is defined as “each hour for which an employee is paid, or entitled to payment, for the performance of duties for the employer, and each hour for which an employee is paid, or entitled to payment by the employer for a period of time during which no duties are performed due to vacation, holiday, illness, incapacity (including disability), layoff, jury duty, military duty or leave of absence.” 26 C.F.R. § 54.4980H-1(a)(24).

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.

May

• Consider whether the agency wants to revise its Section 125 cafeteria plan document. Prepare for any changes to ensure their timely adoption by December 31, before the next calendar year.

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:

Our small public agency is considering allowing some of our part-time employees to work hours beyond the current 20 hours per week. Are there any legal issues with this idea?

Answer:

This proposed change triggers several laws. First, if the part-time employees are represented, the agency must not implement this change in working conditions without first providing the union written notice and the opportunity to meet and confer. Second, both the state and federal family and medical leave acts require employees to provide protected leaves to employees if they have worked for at least 12 months and have worked 1,250 hours within the employer’s designated 12-month period. Therefore, by allowing the part-time employees to work more hours, the employees would be more likely to qualify for a protected leave.

Finally, allowing part-time workers to work more than 20 hours a week, may affect whether they qualify for CalPERS retirement benefits because of the 1,000 hour rule and part-time rule.

On The Blog

Hiring Minors 101

By: Gabriella Kamran

The weather is getting warmer and the sun is getting brighter, and you know what that means–employers everywhere are calling their lawyers to ask how they can put teenagers on payroll this summer! Many employers that operate summer programming seek to hire minors as recreational leaders, day camp counselors, and the like, but find themselves mystified by the legal restrictions and requirements for hiring employees under the age of 18. The following primer addresses some frequently asked questions about the law and best practices regarding hiring minors.

Work Permits and Age Certification

The California Education and Labor Codes require that prior to employing a minor under age 18 in California, an employer must obtain a work permit issued by the minor’s school. The process for obtaining a work permit is as follows: After a minor receives an offer of employment, the minor obtains a “Statement of Intent to Employ a Minor and Request for a Work Permit – Certificate of Age” (California Department of Education (CDE) Form B1-1) from their school. The form contains sections for the minor, their parent/guardian, the prospective employer, and the school to complete. After the minor returns the form to their school, if all requirements are satisfied, the school will issue the minor a work permit (CDE Form B1-4). The Labor Code requires employers to retain a minor employee’s work permit until the beginning of the fourth year after the work permit was issued.

However, many public agencies don’t realize that both the Department of Labor Standards Enforcement (DLSE) and the California Department of Education take the position that state and local agencies are exempt from the work permit requirement. The basis for this exemption is the general rule of statutory interpretation that unless Labor Code provisions are expressly made applicable to public employers, they only apply to private sector employers. (Johnson v. Arvin-Edison Water Storage Dist.) Public agency employers should be sure to check the applicable local policies, though–some cities and counties require public agency employers to obtain work permits despite the exemption from state law.

Because public agencies are subject to the federal Fair Labor Standards Act (FLSA), they still need to obtain a Certificate of Age establishing that the minor is above the “oppressive child labor age” applicable to the occupation in which the minor will be employed. Therefore, public agencies seeking to employ minors should still require the minor to obtain a signed and completed CDE Form B1-1 from their school. The agency must keep each minor’s Certificate of Age on file while they are employed, then return the Certificate of Age to the minor when their employment concludes.

Wage, Hour, and Occupational Restrictions

Public and private employers alike are subject to the FLSA, which establishes different restrictions on the hours and types of work a minor may perform depending on the minor’s age:

• With limited exceptions, employers generally may not hire minors under the age of 14.

• Minors age 14-15 may not work more than 8 hours per day and 40 hours per week when school is not in session. The

FLSA also enumerates an exhaustive list of the jobs that 14-15-year-olds may perform, including tutoring, office work, and lifeguarding.

• Minors age 16 and over are prohibited from performing work that the FLSA deems hazardous, including driving a vehicle.

While minors age 16 and over are not subject to work hour restrictions under the FLSA, the California Labor Code limits their hours to 8 hours per day, 48 hours per week. Like the work permit requirement, this provision of the Labor Code does not apply to public agency employers.

All California employers, both public and private, must pay minor employees at least the minimum wage and applicable overtime rates established by the California Industrial Welfare Commission.

Fingerprinting and TB Testing

According to the California Education Code, employers must require fingerprinting for each employee and volunteer for a public recreation program who will have “direct contact with minors.” Similarly, the California Public Resources Code requires parks and recreation employers to fingerprint prospective employees and volunteers who will have “supervisory or disciplinary authority over a minor.” In addition, the same code requires a tuberculosis (TB) screening for all employees of parks and recreation facilities who will have direct contact with children. The positions in which employers seek to employ minors often entail direct contact with or supervision of other minors in the context of a recreational program–for example, a coach for a youth sports program or a counselor for a day camp. For such positions in parks and recreation programs, public agency employers must require both fingerprinting and TB screening for minor employee hires.

Beyond the field of parks and recreation, the Education and Health & Safety Codes require a TB risk assessment for employees of a public or private school. The Education Code also directs private school employers to require fingerprinting for any applicant to a position involving contact with minor students. Public school employers must require fingerprints for applicants as well (but note that the Education Code exempts from this requirement any K-12 school district seeking to employ a high school student within its own jurisdiction).

One important consideration sets minor employees apart from their adult counterparts in this context: we strongly advise that employers obtain a parent or guardian’s consent before requiring a minor to submit to fingerprinting or TB testing, in light of the confidential nature of the information.

Fitness for Duty Exams and Drug & Alcohol Testing

Some employers require post-offer fitness for duty exams, often for positions that involve physical fitness such as coaching. Under the ADA and California law, an employer may require a post-offer medical examination, including fitness for duty exams, if (1) it requires all applicants for the position to take the examination and (2) the examination is job related and consistent with business necessity. Therefore, employers should require minor applicants to a position to undergo medical examinations to the same extent as adult applicants to that same position.

With regard to drug and alcohol testing, the Ninth Circuit Court of Appeals has held that employers may only require postoffer, pre-employment drug testing if there is a “special need” to do so–that is, if the position is “safety-sensitive” in that it involves danger to the public (Lanier v. City of Woodburn). The court held that supervision of minors alone does not make a position “safety-sensitive.” If an employer determines there is a special need for drug testing with regard to the position for which the minor has been hired, then as with fitness for duty exams, minors should be subject to the same drug testing to which adult applicants to the position are subject.

With limited exceptions, only the parent or guardian of a minor has the legal capacity to consent to medical care for the minor in California, including treatment and diagnosis. According to the EEOC, drug and alcohol tests and some types of fitness for duty exams are considered “medical examinations” under the ADA. Therefore, we advise that employers obtain the consent of a minor applicant’s parent or guardian before requiring the minor to undergo a fitness for duty exam and/or a drug or alcohol test.

If you’re considering hiring minors this summer, trusted legal counsel can help you sort through the legal requirements particular to your jurisdiction and draft parental consent forms before the school bell rings in summer break.

View the full blog here.

Liebert Cassidy Whitmore