Client Update: October 2022

Client Update

Table Of Contents

O’Neill

J. Lowe

Whitmore.

firm victories

LCW Successfully Upholds A Peace Officer’s Termination

For Dishonesty And Excessive Force.

LCW Partner Jennifer Rosner and Associate Attorney Danny Ivanov succeeded in upholding a county’s termination of a peace officer. The officer was accused of using excessive force during a pursuit, and subsequently lying about his actions in both his supplemental police report and investigative interview.

The case began on May 5, 2020, when a passenger in a vehicle involved in a pursuit fled the vehicle. After deputies apprehended the fleeing passenger-suspect, the officer kicked the suspect’s head and left side of his body. When the suspect turned his head, the officer then kicked him three more times in the face. The officer later placed his knee on the suspect’s head. When the suspect cried out in pain, the officer slapped him and said: “Shut up, shut your mouth.” The officer’s force caused bleeding and facial fractures that required medical attention. The officer filed a supplemental report that falsely indicated he kicked the suspect four to five times in the arm, shoulder, and upper torso, and not the head and face.

The arbitrator found that the preponderance of the evidence indicated that the officer’s use of force was inappropriate, unnecessary, and unreasonable. The kicks to the face and head were unreasonable because they were not applied to arrest, prevent escape, or overcome resistance. The arbitrator rejected the officer’s claims that he did not intend to kick the suspect in the face or head, and that he did not recall kneeling on the suspect’s head. The arbitrator cited to the U.S. Supreme Court’s decision in Graham v. Connor, 490 US 386 (1989), in deciding it was irrelevant whether the officer used force in good faith or maliciously. In Graham, the Court determined that an objective reasonableness standard

applied to a civilian’s claim that law enforcement officials used excessive force when making an arrest.

The arbitrator also found that the officer had acted dishonestly by not properly documenting his use of force and by omitting relevant information pertaining to where the officer applied the force on the suspect’s body. The arbitrator noted that regardless of the officer’s intentions, he still misrepresented and omitted information concerning the incident, which violated the department’s policy against dishonesty.

LCW Successfully Upholds The Removal Of An FTO Assignment For Delayed And Inadequate Response To A 911 Call.

LCW Partner Scott Tiedemann and Associate Attorney Alex Wong convinced the Superior Court to uphold a City Manager’s decision to remove a police officer from his premium-paid, Field Training Officer (FTO) assignment.

The case began on May 16, 2018, when the City’s police department received a 911 call from a teenager. She was home caring for her younger sibling while her neighbor was outside her house yelling that he had “f…ed up.” The call was logged into the CAD system, along with the information that the neighbor- subject had previously been convicted for substance abuse and involuntarily committed to a mental facility.

At approximately 4:43am, the FTO received the call from dispatch and responded he was “enroute to call.” The teenager’s home was 1.2 miles from the police station, and no more than a 5-minute drive. The FTO and his trainee did not arrive at the home until 15 minutes later because they took time at the station to “wrap up” lunch, re-organize chairs, set the alarm, and use the restroom.

The FTO had been to the subject-neighbor’s house because the subject had previously “barricaded” himself in his home and the officer had spent 45 minutes to coax the subject out. Once the FTO and his trainee arrived at the 911 caller’s home, only the trainee got out and inspected the location with a flashlight. When the trainee did not see anything, he returned to the car. The officers did not contact either the teenager who called in the complaint, or anyone at the neighbor’s residence. They marked the call “completed” four minutes after they arrived on scene.

After an investigation and an advisory hearing, the City Manager decided to permanently remove the officer from his FTO assignment. The officer appealed his reassignment to the California superior court.

The court reviewed whether the City Manager’s decision was a prejudicial abuse of his discretion. An abuse occurs if an administrative decision: was not reached in the manner required by law and the agency’s rules; was not supported by the findings at the hearing; or if the evidence at the hearing did not support the decision’s findings.

The court found that any errors in the decision-making process did not prejudicially affect the officer’s rights. The court found that the weight of the evidence supported the City Manager’s decision. First, the 15-minute delay was not justified because a minor had called 911 at 4:43 am to report that a tall, young man was outside her house ringing her doorbell and cursing. The CAD notes also indicated that the man had convictions for substance abuse, failure to appear and probation violations. Because the officer had not identified any good reason to delay the response, the evidence supported the finding that his 15-minute response was a neglect of duty.

Second, the court found that the weight of the evidence showed that the officer’s decision to remain in the car while the trainee searched the area also violated numerous Police Department policies. Most importantly, letting the trainee search alone in those circumstances was inconsistent with both officer safety and the need for an FTO to demonstrate the right way to do police work.

The court concluded that the City Manager’s decision to remove the officer from his FTO assignment and pay was within his discretion and consistent with good cause. The court noted that the FTO is an important assignment that is responsible for training new officers in Department policies and procedures. The officer’s misconduct reasonably supported the decision to remove the officer from his FTO assignment due to his failure to meet those high standards.

due

process

State Agency’s Skelly Letter Failed To Provide Employee Adequate Notice Of Discipline.

One summer evening in 2017, Sergeant Steven Rodgers, a Department of Corrections and Rehabilitation (CDCR) employee, was working an evening “contraband surveillance watch” shift at the Pelican Bay Security Housing Unit (SHU). Contraband surveillance watch is a procedure for monitoring inmates suspected of hiding drugs or weapons inside their body. The inmate is physically restrained and placed in a cell under constant observation until they excrete the contraband, or 72 hours has elapsed. The restraints prevent the inmate from accessing and re-ingesting the contraband before staff can retrieve it. Each watch is divided into shifts that a sergeant supervises. At least twice during the shift, the supervising sergeant is required to help the officer ensure the restraints are secure and comfortable. Pelican Bay’s policy states a preference that these checks occur at the beginning and end of every shift, though it is not mandatory.

At approximately 10:00 pm that night, correctional officers Angulo and Palafox began their shift and requested Rodgers to conduct the first restraint check. The officers’ testimony differs as to what happened next.

Angulo and Palafox said Rodgers allegedly told them he was “too busy” at the time. At approximately 10:30 pm, Palafox again asked Rodgers to do the check, to which Rodgers told Palafox to “pencil whip” (a military term that means to forge or falsify) the form to show the check as completed. Rodgers also allegedly said if anything happened, he’d “take the hit”. The officers then contacted another Sergeant, who contacted Rodger’s supervisor Lieutenant Vanderhoofven. The officers said they asked Rodgers again at 11:15 pm to conduct the restraint check, at which point he “became irritated” for repeatedly asking him. Around midnight,

approximately two hours into the shift, Rodgers conducted the restraint check and discovered one of the inmate’s leg cuffs were not double-locked.

At around 2:00 am, Lt. Vanderhoofven visited the facility to discuss proper procedures with Rodgers after hearing Rodgers was “refusing” to conduct the check. After the Lieutenant left, Rodgers allegedly returned to the watch area and angrily asked the officers, “Which one of you mother f…ers spoke to another sergeant about this?” The next morning, at approximately 5:30 am, Sergeant Reynoso arrived to take over as supervising sergeant and the officers asked him to do the check with them. When Rodgers arrived approximately 10 minutes later to do the final check and discovered it had already been completed, he became upset again and said, “What the hell, you trying to have another sergeant do my job?”

Rodger’s version of events is different. He states he never neglected his duty to perform the restraint checks, but that he simply was too busy to perform the checks at the times the officers repeatedly asked. Rodgers was angry the officers were falsely accusing him of neglecting the restraint checks when Rodgers was simply telling them that he would conduct the checks later.

In May 2018, CDCR served Rodgers with a Notice of Adverse Action (NOAA) stating that his salary would be reduced by 10 percent for two years, effective the end of that month. The NOAA alleged Rodgers: (i) neglected his duties by “refusing to perform” the inspection at the beginning of shift; (ii) treated his subordinates in a “discourteous and disrespectful” manner when he angrily, and with profane language, “confronted and intimidated” them about reporting his neglect of duty to another sergeant; and (iii) “misused [his] authority” when he directed the officers to “pencil whip” their inspection documentation, thereby “instructing them to fill in inaccurate information regarding the restraint inspections on official records.”

Rodgers requested a hearing. The hearing officer largely credited Rodgers’ testimony over the officers’ testimony. The hearing officer found the allegation that Rodgers had refused to perform a timely restraint check at the beginning of the shift was unsubstantiated. This is because Rodgers repeatedly said he would do the check later because he was tending to other duties. Palafox’s watch form corroborated Rodgers’ testimony that he performed the check approximately 45 minutes into the shift. The hearing officer concluded the document falsification allegation was unsubstantiated, because he credited Rodgers’ testimony to “pencil in” the form, not “pencil whip” it.

The only specific allegation the hearing officer upheld was the discourteous confrontation charge. The hearing officer found that Rodgers had been angry and used profanity, but for a different reason than what was alleged in his NOAA. He found Rodgers was angry because Rodgers believed the officers had falsely accused him for a neglect of duty he had not committed; Rodgers did not believe the officers had accurately reported any misconduct because Rodgers had indeed completed and/or was willing to complete the required restraint checks.

Despite upholding only the discourteous confrontation allegation, the hearing officer concluded the fullproposed salary reduction of -10% for the next two years was an appropriate penalty. The State Personnel Board (SPB) upheld the hearing officer’s findings, Rodgers timely challenged the decision in superior court. The superior court denied Rodgers’ challenge and Rodgers appealed.

The Court of Appeal agreed with Rodgers that the SPB decision violated his procedural due process right to notice of the basis for the disciplinary penalty. The Court found that Rodgers was not notified that he was to be disciplined with a 10% reduction in salary for two years based on a single allegation of misconduct. Because the hearing officer found Rogers engaged in only one of the several charges of misconduct listed in the NOAA, Rodgers lacked appropriate notice that only one charge could subject him to the full penalty proposed.

The Court rejected the SPB’s argument that the penalty should be upheld because the hearing officer found that Rodgers’ discourteous treatment of the officers was likely to recur and could chill the officers’ willingness

to report any future misconduct. The Court said the problem is not with the charge of discourteous treatment; the problem was with the NOAA’s description of the basis for that charge. The NOAA advised that the discourteous treatment charge was premised on an underlying neglect of duty; CDCR claimed Rodgers angrily confronted his subordinates for reporting a refusal to perform the beginning-of-shift inspection. But that is not what the hearing officer found. Instead, the hearing officer found that, having properly discharged his duty to perform the restraint inspection, Rodgers angrily confronted his subordinates because they’d wrongly accused him of shirking his duty.

The Court reiterated that it was not condoning Rodgers’ behavior or saying it was not punishable. The hearing officer did find that Rodger’s decision to confront his subordinates with anger and profanity was unprofessional, discourteous, and violated CDCR’s policy on treating other employees with respect. But the issue before the Court was not whether Rodgers committed any misconduct, it was whether he was on notice that his alleged actions could subject him to the proposed penalty. To answer that question, due process requires the Court to compare the facts alleged, to those found true after an evidentiary hearing. In the NOAA version, Rodgers engaged in grave misconduct, contributing to a culture of silence that fosters corruption. The hearing officer rejected that theory, however, and found Rodgers simply failed to keep his temper in check and treat his subordinates with respect when confronting them over a misunderstanding. Given the significant difference between the two kinds of misconduct, the Court concluded Rodgers lacked notice that his actions could subject him to the imposed penalty.

The Court reversed the judgment and directed the trial court to order the SPB to set aside its decision sustaining the disciplinary action.

Rodgers v. State Personnel Board (Department of Corrections), 83 Cal.App.5th 1 (2022).

NOTE:

This case underscores the need to prepare a Skelly notice with great care. The public agency must not only accurately state the basis for each charge, but be able to prove the basis for each charge. In addition, if the proposed penalty would be appropriate based on any one of several charges, then the Skelly notice must specifically say so.

S.

discrimination

Court Denied Employer’s Request To Change Venue In FEHA Case From The Employee’s Home Office To The Company’s Office.

In October 2018, Eleanor Malloy was hired by the parent company Comprehensive Print Group as an administrative assistant. During her first 18 months at the company, her supervisor, Spencer, made offensive and denigrating comments to her based on her gender and expressed an inappropriate interest in her personal life.

On March 17, 2020, the COVID-19 pandemic was underway. Malloy and other employees of the company began working remotely. That fall, Malloy became pregnant, and gave birth to her son the following March, 2021. In April 2021, Malloy’s supervisor requested her to work in person two-to-three times a week starting in May, 2021. Malloy replied she could not work in person for at least one month due to childcare needs. The company terminated Mallory for not returning to in-person work. Mallory filed a complaint for pregnancy and gender discrimination, sex- and gender- based harassment, interference with protected pregnancy leave, retaliation, and wrongful termination, among other claims. She filed her claim in Los Angeles County, where she lived.

On November 9, 2021, the company moved for a change of venue to Orange County, where Malloy’s employer-provided office was located. The company argued all the unlawful conduct alleged occurred in Orange County, all records were kept there, and Malloy’s employment was based there. Malloy opposed, arguing that Los Angeles County was the proper venue for her pregnancy discrimination interference and retaliation causes of action because she was working from home or otherwise at home on protected pregnancy leave when the unlawful conduct occurred.

The superior court agreed with the company, and granted the change of venue to Orange County. Malloy petitioned for a writ of mandate with the California Court of Appeal to challenge the venue change.

The Court of Appeal sided with Malloy. First, the Court noted that the Fair Employment and Housing Act (FEHA) authorizes an aggrieved party to file a FEHA action in the county in which the alleged unlawful employment practice was committed or in which the employee would have worked but for the unlawful practices. Second, the Court noted a California Supreme Court precedent that supported Mallory’s position. The Court noted that the Legislature’s decision to afford a wide choice of venue in FEHA cases “maximizes the ability of persons aggrieved by employment discrimination to seek relief from the courts….”

Based on these facts, the Court found venue in Los Angeles County to be proper.

Malloy v. Superior Court (Comprehensive Print Group), 2022 WL 4298371.

WCAB’s Denial Of Discrimination Claim Does Not Stop FEHA Discrimination Claim.

In 2013, Gurdip Kaur, an employee at Foster Poultry Farms LLC, slipped at work while wearing company-issued rubber boots and broke her wrist. After surgery, Kaur returned to work and, despite her work restrictions, Foster Farms forced her to perform her normal job duties. Kaur struggled to perform her normal job duties, but Foster Poultry denied her requests for an accommodation. She was terminated in late 2013 but was then reinstated after contesting her termination. In 2016, Foster Poultry restructured and gave her a new job she could not perform one-handed, so she was terminated again.

In 2016, Kaur filed a petition against Foster Poultry with the Workers’ Compensation Appeals Board (WCAB) alleging discrimination for filing her claim, in violation of Labor Code Section 132(a). Her claim was heard in an administrative hearing and was eventually denied.

In 2017, before her workers’ compensation claim was decided, Kaur also sued Foster Poultry under the Fair Employment and Housing Act (FEHA). Kaur’s five FEHA claims were centered around discrimination due to race/nationality and disability.

When Kaur’s worker’s compensation claim was denied, Foster Poultry asserted an affirmative defense to Kaur’s lawsuit, arguing that all of Kaur’s disability related claims were barred by the legal doctrines of res judicata and collateral estoppel. Simply put, these doctrines generally preclude a person from re-litigating issues that were argued and decided in prior proceedings, even if the second lawsuit raises different causes of action. Together, these doctrines can be referred to as “issue preclusion.”

The trial court granted summary judgment for Foster Poultry due to its affirmative defense. Kaur appealed. The primary issue on appeal was whether the trial court properly decided that the WCAB’s denial of Kaurs’ 132(a) claims precluded her FEHA claims. The California Court of Appeal held that Kaur’s FEHA claims were not precluded.

For an issue to be precluded, the issue must be identical to that decided in a former proceeding. The issue must also have been actually litigated and necessarily decided in the former proceeding. In addition, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding.

The Court of Appeal focused on the first prong of the above test; whether the issues were identical. In the WCAB claim, the issue was whether Kaur experienced discrimination on account of the industrial nature of her injury. On the other hand, Kaur’s FEHA claims

were broader, and centered on whether she experienced discrimination on account of her disability, and whether she was unlawfully discharged because of her disability. Moreover, Kaur’s other FEHA claims, such as her allegations that she was not provided a reasonable accommodation and was not engaged in a good faith interactive process, involved entirely different issues from the WCAB claim. The Court further found that, in deciding the WCAB issue, the administrative hearing judge ignored certain FEHA requirements because the issue was so distinct from FEHA and involved different considerations.

The Court of Appeal held that the denial of the WCAB claim did not preclude Kaur’s FEHA claims, and she could move forward with her lawsuit.

A concurring opinion cautioned that this decision should be interpreted narrowly, and that the decision did not mean that factual findings by an administrative hearing judge on a WCAB claim can never result in issue preclusion on a FEHA claim. Rather, one must look carefully at the underlying issues and findings of fact. A claim decided in a WCAB setting may indeed prevent a FEHA claim if the issues and inquiries are similar enough.

Kaur v. Foster Poultry Farms LLC, 2022 WL 4243090.

Note:

The underlying FEHA claims have not yet been decided in this case. However, agencies should always be cognizant of the many FEHA laws and regulations that require reasonable accommodation of both industrial and nonindustrial injuries.

unemployment

Employee Gets Benefits After “Leaving” Her Job For Good Cause And Not Permanently Abandoning Her Job.

The Unemployment Insurance Code provides individuals with unemployment benefits, except when they leave their most recent work voluntarily and without good cause. The California Employment Development Department (EDD) administers unemployment benefits.

In late October 2019, Reena Johar took an approved leave of absence from her job as a sales representative with Success Water Systems to care for her terminally-ill grandmother. She was gone for about a week and a half. Johar would receive job assignments from her supervisor in the form of sale appointments, which required her to travel to a customer and demonstrate the product. Upon her return from her leave of absence, she received no sale appointments for many weeks and was told business was slow. During those weeks, she was also issued a “final paycheck” and was asked to return some of her equipment. However, she continued to receive commission checks and was not told to stop communicating with prospective customers. Eventually, in February 2019, Johar applied for unemployment benefits and listed the reason for her loss of employment as a “temporary layoff.”

When EDD contacted Success Water Systems to request a written confirmation of this information, Johar’s supervisor checked the box for “voluntary quit.” This led EDD to investigate, and learn two competing accounts. Johar explained that she requested emergency family leave in October 2019, and that her supervisor advised that she could “return at any time she is able” to her job. Success Water Systems agreed that the leave of absence was approved, but stated that: the leave was not for an indefinite period; Johar failed to respond to repeated requests for a return date; and Johar was deemed absent without leave. The EDD ruled against Johar. The EDD held that Johar had indeed left on an approved leave of absence but then failed to preserve the employment relationship by communicating a date for her return.

Johar appealed this EDD decision to a full hearing before an administrative law judge. The administrative law judge decided against Johar again, stating not only that Johar’s absence was not approved, but that she also failed to preserve the employment relationship. Important in this conclusion was Success Water Systems’ assertion that their sales representatives must be licensed, and Johar had not rectified incomplete information in her licensing application.

Johar then appealed this decision to the California Unemployment Insurance Appeals Board (CUIAB). Johar entered new evidence that showed that Success Water Systems had unilaterally altered Johar’s address in her licensing application which prevented Johar from learning that her application was incomplete. The CUIAB again sided with Success Water Systems, stating that Johar voluntarily quit her job. The CUIAB did not allow the new evidence into the proceeding because the evidence had not been reviewed by EDD, the opposing party.

Johar appealed this outcome via a writ of administrative mandamus. The trial court denied her writ and dismissed her case. Johar made her last appeal to the California Court of Appeal.

The Court of Appeal narrowed the relevant issue down to whether Johar was entitled to unemployment benefits, or had been disqualified under section 1256 of the Unemployment Insurance Code because she left her most recent work voluntarily and without good cause. This issue is decided by determining who was the moving party in the separation. If the employer moves to cause the separation, the leaving was involuntary. If the employee moves, the leaving was voluntary. The Court of Appeal held that Johar had left her work voluntarily. She left work of her own volition to care for her grandmother. However, the Court of Appeal also held that this was for good cause, because leaving work for circumstances relating to the health, care or welfare of an employee’s family has been held to be a good cause. Success Water Systems had no formal leave of absence policy. Because Johar had received approval from her supervisor for the leave of absence, Johar affirmatively left her work voluntarily but with good cause.

However, even if an employee voluntarily leaves her work for good cause, if that same employee

manifests an intention to abandon her job while gone, she can be said to have been the moving party in terminating the employment relationship.

The test for manifesting an intent to abandon a job is whether the employee indicates “with the clearest terms of repudiation” that she will not be reporting to work. Here, Johar was silent in the face of certain communications, and at times indicated that she would respond to certain other communications “when the emergency ceases.” Johar was also never ordered to report to work, so she never had ignored any such order. Finally, the fact that Success Water Systems did not make its expectations clear about Johar’s return from leave, the Court of Appeal could not use those expectations to evaluate Johar’s intent to return.

The Court of Appeal therefore found that Johar did not clearly repudiate her willingness to return to work. Because Johar had left her work voluntarily for good cause, she was not disqualified from receiving unemployment benefits under the Unemployment Insurance Code.

Johar v. California Unemployment Ins. Appeals Bd.,2022 WL 4139848.

Note:

This case illustrates the importance for employers to have clear, pragmatic policies, especially in relation to leaves of absence. Expectations for employees who take leaves of absence must be communicated clearly.

new to the Firm!

We are pleased to announce that Ronnie M. DeCesare, has joined Liebert Cassidy Whitmore as our newest Executive Director. Ronnie has over 20 years of leadership experience in the legal industry with a proven record for strategic business successes. He remains a committed leader who believes in fostering internal collaboration that ultimately provides our clients with the best legal counsel and superior service levels.

James P. Bonnie, an associate in our Fresno office, uses his public agency experience to represent his clients in all employment and labor law aspects, including litigation, employee discipline, administrative hearings, and investigation.

Cindy Allen, an associate in our San Francisco office, has dedicated her career to providing top tier representation to public education agencies. Cindy specializes in special education, Title IX, and student discipline issues.

meyers-milias

A Hospital Unfairly Discouraged Employees From Striking By Barring Them From Returning To Work And Denoting Their Absences As Unauthorized.

In 2019, the San Joaquin County Hospital and the California Nurses Association (Nurses) were having protracted negotiations for a successor memorandum of understanding. The Hospital contracted for replacement nurses in the event of a strike. As part of that contract, the Hospital agreed to guarantee the replacement nurses five days of shifts.

In January 2020, the Hospital and the Nurses reached an impasse. The Nurses notified the Hospital that they would strike for two days.

One day before the strike, the Hospital CEO sent a memorandum to the Nurses stating that, because the Hospital was forced to guarantee five days of shifts for the replacement workers, and the Nurses were only

striking for two days, any Nurses who participated in the strike would not be able to work for an additional three days after the conclusion of the strike.

At the conclusion of the two-day strike, the Hospital barred the Nurses from returning for three additional days. The Hospital denied the Nurses the use of accrued leave for the three days and instead marked the leave as unauthorized.

The Nurses filed an unfair practice charge with the Public Employment Relations Board. The striking Nurses alleged that the Hospital had taken adverse action against them to discriminate and interfere with their protected conduct.

The Board concluded that threatening to disallow strikers from work for multiple days after the strike, and then doing so, was inherently destructive to protected striking activity.

The Hospital offered an affirmative defense. The defense stated that the Hospital had no choice but to: 1) hire the replacement nurses; and 2) acquiesce to the contract requirement that the replacement nurses be

guaranteed five days of work. The Hospital alleged that this was the only reason the Nurses were denied work after the strike.

The Board also found that the Hospital was not entitled to use that affirmative defense. The Board articulated the test for using this affirmative defense as follows: The public health care employer must prove that: “(1) it made a good faith effort in the marketplace to negotiate a strike replacement contract that would eliminate any minimum shift guarantee or shorten it to the greatest degree possible, but it ultimately needed to agree to the minimum shift guarantee in order to maintain critical health care services; (2) it barred employees from work only because such a contractual commitment temporarily reduced available work opportunities, and it filled all remaining opportunities without discriminating against employees based on whether they worked during the strike or engaged in any other actual or perceived protected activity; and (3) it provided the employees’ union with timely notice regarding any decision to guarantee replacement workers a minimum work period or to modify the terms

-brown Act

of such a guarantee, and, if requested, bargained in good faith over the potential effects on bargaining unit employees.”

The Board ordered that the Nurses be allowed to use paid leave for the period after the strike and in the future, if they were kept out of work by a minimum shift guarantee in a strike replacement contract. The Hospital appealed, but the Court of Appeal affirmed the Board’s decision.

The Hospital first argued that it was clearly erroneous for the Board to decide that the Hospital’s threat to disallow striking Nurses from working after a strike was inherently destructive to their protected striking activity. The Court of Appeal disagreed, because threatening to withhold work from a striking employee discourages that employee from participating in future strikes.

The Hospital argued that the test the Board used to deny its affirmative defense was both erroneously constructed and improperly applied. The Court of Appeal disagreed and found that the new test that the Board applied was not clearly erroneous.

The Court pointed to various factual findings that indicated that the Hospital failed to negotiate the length of the minimum shift guarantee, and failed to adequately collect bids from strike replacement companies. Thus, the Hospital failed prong one of the affirmative defense. The Hospital failed prong two of the defense because it kept non-striking Nurses in the remaining opportunities to the exclusion of striking Nurses. The Court of Appeal did not agree with the Hospital’s arguments related to the third prong regarding timely notice. Given that the Board’s new test for the affirmative defense was not erroneous, the Court did not consider the Hospital’s argument that it would have prevailed under a different test.

The Court of Appeal also held that the Board was correct in finding that prohibiting Nurses from using paid leave for the three days after the strike was inherently destructive to protected striking activity. The Court pointed to the evidence that the Hospital’s action to withhold work for over twice as long as the actual strike, would discourage employees from participating in future strikes, especially if they are then unpaid for those days.

Finally, the Court of Appeal held that the Board’s remedial action was proper. The Board has broad remedial power, including the powers to remedy employer violations and issue orders directing an offending party to stop unfair practices. Moreover, a remedial order must generally stand unless it is a “patent attempt to achieve ends other than those which can be fairly said to effectuate the policies of the [Meyers Millias Brown] Act.” Here, the order was tailored to stop the Hospital’s specific violations of the Act, and nothing more, so the remedial action was proper.

Cnty. of San Joaquin v. Pub. Emp. Rels. Bd., 82 Cal.App.5th 1053 (2022).

Note:

This case illustrates PERB’s expansive power to adjudicate unfair practice charges and order remedial action. Agencies must be very careful to ensure that the consequences of their strike preparations do not amount to an unfair practice.

retirement

CalPERS Must Include Cash Outs For Accrued Holiday Leave Credits

In Pension Calculations

For State Members.

Kenneth Hale and Robert Wolf were both firefighters with California’s Department of Forestry and Fire Protection (Cal Fire). For the last ten years of their careers, they served as executive officers for the union that represented firefighters and fire captains. In that position, they dealt with labor relations issues. Part of their duties involved taking calls and dealing with labor issues 24 hours a day, 7 days a week.

In lieu of normal holidays, Cal Fire firefighters would receive a floating holiday with pay which would accrue on the day of the pre-existing holiday, and they could cash out some of those holidays in certain circumstances. The labor agreement required that executive officers – like Hale and Wolf – could also cash out or pay some portion of unused holidays each year.

Upon Hale and Wolf’s retirement, the union asked the California Public Employees’ Retirement System (CalPERS) to include the money Hale and Wolf earned from the required cashouts in their pension calculations. CalPERS refused, stating that such cashouts were not “compensation earnable” and were not to be included. Hale and Wolf took the matter to an administrative hearing, and an administrative law judge sided with CalPERS. Hale and

Wolf appealed to the trial court and lost. The Court of Appeal then took up the case.

Under the Public Employees’ Retirement Law (PERL), CalPERS calculates an employee’s pension upon retirement with a formula that takes into account the employee’s age at retirement, number of years of service, and amount of final compensation.

The items of pay that constitute “compensation” are crucial to compute retirement benefits. “Compensation” is defined as the employee’s payrate and special compensation. The payrate is generally the normal monthly rate of pay for the employee.

Hale and Wolf were state members of CalPERS. For state members, special compensation specifically includes “compensation for performing normally required duties, such as holiday pay, bonuses (for duties performed on regular work shift),...” (emphasis added). Special compensation is limited to amounts received by similarly situated members of a group or class of employment.

A group or class of employees is defined as “a number of employees considered together because they share similarities in job duties, work location, collective bargaining unit, or other logical work-related grouping. A single employee is not a group or class.”

The Court of Appeal concluded that because Hale and Wolf received payments for cashing out their

holiday leave, and the payments were compensation for performing their normal duties, which required working on holidays, these payments met the definition of “special compensation.” As a result, the payments must be included in their pension calculations.

CalPERS argued that because the cash-outs were not available to all members of the union, these payments could not be special compensation, as special compensation is limited to payments received by similarly situated members of a group. The Court of Appeal explained that these two retirees were a class of two, because they had such different duties from other firefighters in the Unit. Because Hale and Wolf were a class of two, and were similarly situated, they were able to receive special compensation in the form of holiday cash-outs.

Hale v. California Pub. Employees’ Ret. Sys., 82 Cal.App.5th 764 (2022).

Note:

If it provides any solace to clients, the Court of Appeal noted in this case that it would not defer to CalPERS’ interpretation on a particular issue because the evidence showed that CalPERS failed to consistently evaluate that issue.

Employer Was Not Liable For Harm After Supplying Alcohol To An Employee, Nor For An Employee’s Actions Outside Of The Scope Of Employment.

In August 2015, Carmel Musgrove traveled to the Four Seasons Resort in Bora Bora, French Polynesia. She was among those whom producer Joel Silver had invited to accompany him in attending Jennifer Aniston’s wedding. Musgrove was Joel Silver’s executive assistant, but Musgrove was not required to attend this trip. Rather, she was invited to come along as a guest. If she accepted the invitation, she would receive her normal salary, have her expenses paid, and spend ten percent of her time coordinating recreational activities for the group.

The group ate lunches and dinners together, which were prepared by Silver’s personal chef, Martin Herold. Musgrove attended one of those dinners, during which wine was available. Musgrove then went to Silver’s family bungalow to watch a movie with his children. While watching the movie, Musgrove agreed via text message to meet up with Herold.

Over the next hour, Herold and Musgrove kissed and Musgrove drank more wine and ingested cocaine. After departing from her rendezvous with Herold, Musgrove climbed down the ladder of her private, overwater bungalow for a night swim, and drowned.

Musgrove’s family sued Silver for wrongful death, claiming that he was responsible for their daughter’s death.

In assessing whether Silver was directly or vicariously liable for Musgrove’s death, the Court of Appeal explained the test for direct liability, and the four tests for vicarious liability.

To show that Silver was directly liable, the family needed to establish that: 1) Silver placed Musgrove in peril and failed to protect her from that very same peril; or 2) Silver had a special relationship with Musgrove that otherwise obligated him to protect her.

Musgrove’s family alleged that Silver placed Musgrove in danger and then failed to protect her by giving her with an excessive amount of alcohol, drugs, and then not preventing her from swimming in the lagoon at night. The evidence indicated that Silver did not supply Musgrove with drugs. The Court of Appeal also stated that at most, Silver merely allowed Musgrove to drink the wine served at meal. Because case law indicates that no social host who furnishes alcoholic beverages can be held liable for injury to that person, the Court of Appeal explained that these allegations did not establish direct liability.

The Court of Appeal next examined whether Silver had a special relationship with Musgrove that obligated him to protect her, but concluded that he did not for three reasons. First, Silver did not employ Musgrove, Silver’s movie production company did. Second, the family sought to hold Silver liable for Silver’s own conduct in failing to protect her from the alcohol he furnished or subsidized, which as explained above, is not a viable theory of liability. Third, any special relationship between Musgrove and Silver would be limited to when Musgrove was at work. Musgrove was at her private bungalow and not involved in any work-related activities at the time of her death.

As a result, Silver could not be held directly liable for Musgrove’s death. The Court of Appeal next sought to determine if Silver could be held vicariously liable instead.

Generally, for an employer to be held vicariously liable for the actions of their employee, the person suing must show that the employee was both negligent and acting within the scope of employment. Here, the Musgroves alleged that Herold, as Silver’s personal chef, was Silver’s

employee, and that he was acting in the scope of his employment when he negligently caused Musgrove’s death. For purposes of the opinion, the Court of Appeal assumed it to be true that Herold was negligent when he supplied Musgrove with alcohol and cocaine while knowing that she enjoyed swimming at night in the lagoon. Thus, the next matter to be determined was whether Herold acted within the scope of his employment.

Herold had been Silver’s personal chef for over a decade, and would routinely travel with Silver and his family to prepare their meals. Silver paid Herold a salary and covered his expenses. Herold set his own hours and was simply expected to provide lunch and dinner.

To determine whether an employee acted within the scope of their employment, California has articulated four tests.

The first test asks if the employee’s conduct was required by, engendered by, or was an outgrowth of the employee’s job. Here, Herold’s conduct in meeting up with Musgrove was not at all related to his job as a personal chef for Silver. This test did not assign liability to Silver.

The second test asks if the employee’s conduct was a reasonably foreseeable result of his employment. Here, Musgrove’s death by accidental drowning after consuming cocaine and alcohol was not at all foreseeable from Herold’s job of preparing meals for Silver.

The third test asks whether the employee’s conduct: 1) conceivably benefited the employer; or 2) was a customary part of the employment relationship. Herold’s conduct, which resulted in the death of a beloved employee, did not benefit Silver. There was no evidence that Herold had supplied alcohol or cocaine to any of Silver’s employee’s before, so this was not a customary incident.

Finally, the fourth public policy tests asks whether it is fair to shift responsibility for the losses to the employer because the employer benefitted from the injuryproducing activity, and such losses are sure to occur

from the conduct of the employer’s enterprise. Here, Herold’s actions were simply too attenuated from his employment as a personal chef to fairly assign liability for the Musgroves’ loss of their daughter to Silver. As a result, no liability for Musgrove’s death was assigned to Silver.

Musgrove v. Silver, 82 Cal. App. 5th 694 (2022).

Note:

This tragic case illustrates the four principles of vicarious liability that can make employers liable for the conduct of their employees. Generally, an employer should advise employees that that personal recreational activities during conferences or work-related travel are voluntary and outside the scope of employment.

The 411 On Consortiums:

Consortium Call Of

The Month

For more information on our consortiums, visit our website.

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:

We recently received an application for an open position from a person with United Kingdom citizenship. We have never hired from outside the U.S. before, nor have we sponsored a visa. Are we able to do so?

Answer:

If the person already has a visa that allows them to work in the U.S., then the agency can hire the person consistent with the terms of the visa. However, if the person is looking for an employer to sponsor her visa, the agency would need to assist the person in obtaining the visa. Generally, an employersponsored visa falls within one of several different categories, each with its own individual requirements. If the agency choses to sponsor the visa, it is important to consult legal counsel to ensure compliance with all requirements.

benefits corner

By Stephanie J. Lowe

Lawsuits Address Discrimination In Employer-Sponsored Group Health Plans Based On Sexual Orientation And Gender Identity.

A number of recent court decisions address whether the nondiscrimination provisions of Title VII, the Affordable Care Act (ACA) Section 1557, the Equal Protection Clause of the Fourteenth Amendment, and the Federal Equal Pay Act apply to health plan claims alleging discrimination based on sexual orientation and gender identity.

In Doe v. Catholic Relief Services, a data analyst employee, John Doe, sued his employer Catholic Relief Services (CRS) when CRS terminated spousal health insurance benefits for Doe’s husband. CRS is a Catholic Church social services agency, which administers its employee benefits programs consistent with Catholic values. CRS hired Doe in June 2016 and Doe enrolled his husband through CRS’s spousal benefits enrollment system. CRS approved the enrollment but two months later, notified Doe that CRS had mistakenly approved the enrollment and CRS would be dropping coverage because CRS does not provide spousal health benefits to employees’ same-sex spouses. CRS eventually terminated Doe’s husband’s health insurance.

One of Doe’s claims is that CRS’s actions violated the Federal Equal Pay Act (EPA). The EPA prohibits discrimination on the basis of sex by paying wages to employees at a rate less than the rate paid to employees of the opposite sex for equal work. Under the EPA, the level of pay takes into account the failure to provide equal health insurance benefits. The court assessed that CRS provides spousal benefits for the male spouses of female employees who performed equal work as Doe, a

male employee with a male spouse. After finding that CRS did not challenge Doe’s EPA claims (instead CRS focused on defending the Title VII claim), the court awarded Doe summary judgment on his EPA claim.

Doe also brought a Title VII claim in his lawsuit. Title VII makes it an unlawful employment practice for an employer to discriminate against any individual with respect to his compensation, conditions, or privileges of employment because of the individual’s sex. In the lawsuit, there was no dispute that CRS terminated Doe’s husband’s health insurance because of Doe’s sex and because Doe was a man married to another man. CRS’s defense was that it was exempt from Title VII as a religious organization that was making a decision based on beliefs motivated by its religion. However, the court found that Title VII’s exemption allows religious entities to make employment decisions based on religion but not based on race, sex, or national origin. The court held that CRS was not exempt from Title VII and allowed Doe’s claim to move forward.

In two other lawsuits, Fain v. Crouch and Kadel v. Folwell, groups of covered individuals brought lawsuits against employer-provided health insurance plans challenging the exclusion of coverage for gender-conforming care. In Fain v. Crouch, the court granted summary judgment for the plaintiffs, finding that the West Virginia State Medicaid Program did not allow coverage for genderconforming surgical care as treatment for gender dysphoria but allowed similar surgical treatments for diagnoses unrelated to gender dysphoria. The court found the treatment was precluded based on one’s gender identity, which “invidiously discriminates” on the basis of sex and transgender status in violation of the Equal Protection Clause and Section 1557 of the ACA. This case has been appealed to the Fourth Circuit.

In Kadel v. Folwell, the court found that the North Carolina State Health Plan for Teachers and State Employees’s categorical exclusion of coverage for

treatments “leading to or in connection with sex changes or modifications” discriminated against transgender plan members on the basis of sex and transgender status. The court held that this health plan, which was offered to public employees, violated of the Equal Protection Clause.

Public agencies should be aware of their health plan’s enrollment requirements and coverage exclusions. Should any enrollment or coverage exclusions raise concerns about having a discriminatory impact on a protected class of employees or their dependents, the agency should assess the risk. These three recent lawsuits demonstrate an increase in discrimination claims made against employer-sponsored health insurance plans based on sexual orientation, sex, gender, and gender identity. Additionally, the Biden administration has stated that prohibiting discrimination in health care based on sexual orientation and gender identity is a priority of the administration. (See Executive Order 14075, dated June 15, 2022.)

Doe v. Catholic Relief Services, --- F.Supp.3d ---- (D. Md., Aug. 3, 2022), 2022 WL 3083439; Fain v. Crouch, --- F.Supp.3d ---(S.D.W. Va., Aug. 2, 2022), 2022 WL 3051015; Kadel v. Folwell, --- F.Supp.3d ---- (M.D.N.C., Aug. 10, 2022), 2022 WL 3226731.

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.

• The Occupational Safety and Health Standards Board is currently considering adopting a permanent COVID-19 regulation which would replace the current Emergency Temporary Standard that guides employers’ COVID-19 Prevention Programs.

• Governor Newsom has signed AB 152, which allows qualified employees to use any remaining California Supplemental Paid Sick Leave (Labor Code Section 248.6) through December 31, 2022. This benefit was originally set to expire on September 30, 2022.

• SB 278 generally requires local agencies to pay CalPERS the full cost of any overpayments made to the retiree on the disallowed compensation and pay a 20% penalty of the amount calculated as a lump sum.

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Employees Near and Far: Considerations for Telecommuting and Remote Personnel Management

By: Daniel Seitz

Telecommuting is a wonderful tool. Employees with compatible jobs can work from any location with an internet connection. They gain flexibility through ease of access. Telecommuting can reduce turnover and absenteeism, and modern technology has made remote work increasingly reliable. Yet, like any tool, telecommuting may cause issues if employers do not handle it competently. This blog post covers several topics related to remote work with the goals of informing an employer’s choice to offer telecommuting and providing some tips on effective management.

Get It In Writing

First things first, prepare a remote work policy. An employer with a written policy is more likely to manage remote work arrangements consistently. A written policy reduces the risk of confusion or misunderstandings. It is also important for counseling or disciplinary purposes if employees fail to meet requirements or expectations.

What employers include in their remote work policy will vary, depending on each employer’s operational needs, job compatibility with remote work, each employer’s technology resources, and a host of other factors. As employers write their remote work policies, they should check for consistency with existing policies. The following policies commonly overlap with telecommuting: social media use, employer-owned equipment or devices, confidentiality or privacy policies, internet use, and employee accommodations (disability, religious, etc.).

Employers may also use teleworking agreements. The contents will vary, but at the very least a teleworking agreement requires the individual employee to verify he or she has read and understood the teleworking policy and procedures.

Location, Location, Location

Left to their own discretion, employees may choose to work from anywhere. The remote location matters. Cities and counties have laws that may apply to employees working remotely within their geographic boundaries. The COVID-19 pandemic has spurred many cities and counties to adopt their own sick leave policies, for example. Even before COVID-19, some cities and counties also set their own minimum wage requirements. Thus, employees working remotely from another city or county may subject the employer to new legal requirements.

The question of applicable law becomes even more complicated when employees work from a different state. California has laws on protected leaves, workplace injuries, retirement plans, mandated reporting, discrimination and harassment prevention, work hours, overtime, employee representation, tax obligations, and so forth. The same may be true of the other states from which employees perform the work. Multi-state telecommuting may require an employer to consult with legal, tax, and other professionals in both jurisdictions. As a result, compliance becomes increasingly difficult.

Telecommuting Schedules

Remote work options can be customized in many ways, but they generally fall into two categories: hybrid and fully remote schedules.

A fully remote schedule involves the employee working remotely full-time with no time spent in-person. While this option may seem less flexible since it requires a position that is compatible with fully remote work, it remains a viable option. For instance, a fully remote schedule may serve as a reasonable accommodation. It may also be necessary on a temporary basis, as many employers discovered during the COVID-19 lockdowns. Even if an employer ultimately adopts a hybrid schedule, it is still worth considering fully remote schedules in case the employer must use them as a reasonable accommodation or in response to a temporary emergency.

A hybrid schedule involves some time spent in-person and some time spent telecommuting. Hybrid schedules offer a high degree of versatility. The employer can choose whether to require certain days to be in-person, let employees choose which days are remote, or use a mix of both options. The decision will depend on the employer’s operational needs, the needs of specific units or departments, and each job position’s compatibility with remote work. The arrangement may also rely upon specific types of remote work that are available. For example, an electrician may need to make field calls but may be able to handle certain tasks remotely while on a call.

Open Communication

Whether employers offer hybrid or fully remote schedules, it is critical to maintain open lines of communication. Telecommuting employees should know how and when they can reach their supervisors and vice versa. Employees should know which forms of communication to use: phone calls, emails, text messages, video calls, et cetera. If an employee or supervisor will be unavailable for a part of the day (e.g., in a meeting), the person should use out-of-office messages or update the team accordingly. Employees should know how to reach their coworkers and supervisors in the event of a sudden development or emergency.

Ideally, the open lines of communication should appear in the teleworking policies. This will allow employers to clarify expectations and resolve any confusion before employees begin working remotely. Including communication procedures in a teleworking policy helps employers to resort to discipline when necessary, because the policy will describe expectations and acceptable conduct.

Once an employer has open lines of communication, it should schedule regular check-ins. If the employer uses a hybrid schedule, days where employees report to work in-person may serve as meeting days. If check-ins occur remotely, employers should use video conference calls and encourage employees to turn on their video cameras. Employers should plan both group and individual check-ins. This is because individual employees may want to discuss certain things that they feel uncomfortable raising in a group setting.

Feedback and Review

Expectations should not change when an employee transitions to remote work. The employee should still provide the same quality and quantity of work product while working remotely. Regular performance reviews are effective communication tools that help maintain employee performance, whether in-person or remote.

In addition to regular performance reviews, supervisors and managers should plan less formal reviews and should create opportunities to give and receive feedback. For employees with hybrid schedules, review checks or feedback can occur on inperson workdays. Video conference calls serve for employees who work fully remote schedules.

Summing It Up

Telecommuting arrangements can take many forms. This blog post considers only a few of the subjects related to remote work. Employers’ approaches and experiences will vary. However, the more planning and preparation an employer can do beforehand, the better situated it will be to support telecommuting employees.

NOTE: This post uses terms like “telecommuting,” “telework,” and “remote work” interchangeably.

the full article on our blog!

Liebert Cassidy Whitmore