Education Matters: April 2024

Education Matters

Title IX

U.S. Department Of Education Releases Final Title IX Regulations.

On April 19, 2024, the U.S. Department of Education released its final Title IX regulations. Title IX is the federal law protecting individuals against sex discrimination in education programs and activities supported by federal funding. The final regulations are effective on August 1, 2024, and apply to complaints of sex discrimination regarding alleged conduct that occurs on or after that date.

Background

The Department released proposed changes to the Title IX regulations in June 2022 after significant changes went into effect in August 2020. The federal rulemaking process requires a public comment period, which occurred in summer 2022. Since then, the Department has reviewed the more than 240,000 public comments received and addresses these comments in the final rule.

Resources

The unofficial version of the final regulations is available here. In addition, the Department has released a fact sheet, a summary of the major provisions of the final regulations, and a resource for drafting Title IX nondiscrimination policies, notices of nondiscrimination, and grievance procedures.

Next Steps

The final regulations go into effect on August 1, 2024. Until then, the regulations from 2020 remain in effect. An institution’s obligations to address sex- and gender-based harassment and discrimination stem from a variety of sources under federal and state law. To the extent state law and regulations do not conflict with the current Title IX regulations, an institution must follow both.

LCW has provided an in-depth special bulletin, and will host a webinar discussing the changes, as well as trainings, policies, procedures, and forms to assist our clients in complying with the new regulations. If your institution needs assistance in complying with federal and state laws protecting students and employees against sex discrimination and harassment, please contact one of our five offices statewide.

Employees

U.S. Supreme Court Rules That Title VII Prohibits Discriminatory Job Transfers Even If They Do Not Come With Significant Harm.

On April 17, 2024, the Supreme Court of the United States clarified the standard of harm an employee must demonstrate to support a discriminatory job transfer claim under Title VII of the Civil Rights Act.

In a unanimous decision, the Court held in Muldrow v. City of St. Louis that an employee challenging a job transfer under Title VII need not show that the allegedly discriminatory transfer produced a significant employment disadvantage. Rather, an employee need only show that the transfer brought some harm with respect to an identifiable term or condition of employment.

The Court’s decision overturned precedent in the Eighth Circuit, and other Circuits, mandating that employees challenging a transfer under Title VII must meet a heightened threshold of harm requirement, described as “significant,” “serious,” “materially adverse,” or by similar terms establishing a heightened bar. As the Court explained, to demand “significance” where the law does not require it inappropriately adds words to what Congress enacted. The language of the law only requires that employees show an allegedly discriminatory transfer brought about some “disadvantageous” change in employment terms or conditions.

The practical effect of Muldrow is that employees challenging a job transfer under Title VII will have an easier time establishing that the transfer produced some harm sufficient to support their claim. In his concurring opinion, Justice Alito speculated the ruling would not effectively alter how the statute is interpreted, explaining that lower courts may reach similar conclusions as before, just with careful wording of their decisions to comply with the terminology of the new Muldrow opinion.

Still, the ruling should allow a larger percentage of discriminatory transfer claims to survive to trial or settlement, and will likely result in more plaintiffs filing such claims. Employers should take care to ensure that they make job transfers and other employment decisions without discriminatory motive or impact.

Notably, the transfer in question in Muldrow involved a fairly significant change in assignment for a long-time, respected police sergeant.

Sergeant Jatonya Clayborn Muldrow worked as a plainclothes officer in the St. Louis Police Department’s specialized Intelligence Division for nearly ten years. In that role, she investigated public corruption and human trafficking cases, and oversaw the Gang Unit and Gun Crimes Unit. By virtue of her position, Sgt. Muldrow was also deputized as a Task Force Officer with the FBI, granting her FBI credentials, an unmarked take-home vehicle, and the authority to pursue investigations outside of St. Louis.

Sgt. Muldrow’s job performance was exceptional. In 2017, the outgoing commander of the Intelligence Division referred to her as a “workhorse” and considered her his most reliable sergeant. But the Intelligence Division commander told the Department that he wanted to replace Sgt. Muldrow with a male officer. The new commander –who often referred to Sgt. Muldrow as “Mrs.” rather than “Sergeant” – testified that a male officer seemed like a better fit for the Division’s dangerous work.

The Department approved the transfer and transferred Sgt. Muldrow to a uniformed position. While her rank and pay remained the same, her responsibilities, benefits, and schedule changed. Sgt. Muldrow no longer worked with high-ranking officials on priority matters in the Intelligence Division. Rather, her new duties involved supervising day-to-day activities of neighborhood patrol officers and handling various administrative matters. Sgt. Muldrow lost

her FBI status and vehicle, and her work week went from a traditional Monday-through-Friday week to a rotating schedule that included weekend shifts.

The Court found that Sgt. Muldrow’s allegations, if proven true, “left her worse off several times over,” and noted that it did not matter that her rank and pay remained the same or that she could still advance to other jobs. Title VII prohibits making a transfer based on sex with the consequences Sgt. Muldrow described.

Muldrow v. City of St. Louis (2024) ___U.S.___ [___L.Ed.2d___].

The EEOC Issues Final Regulations And Interpretive Guidance Regarding The Pregnant Workers Fairness Act.

On April 15, 2024, the Equal Employment Opportunity Commission (EEOC) issued final regulations regarding the federal Pregnant Workers Fairness Act (PWFA). The final regulations were published in the Federal Register on April 19, 2024 and will go into effect 60 days after publication, or June 8, 2024.

The PWFA took effect June 27, 2023 and applies to both public and private employers with 15 or more employees. The PWFA requires covered employers to provide “reasonable accommodations” to employees with “known limitations” that are “related to pregnancy, childbirth, or related medical conditions”.

Under the new regulations, “pregnancy, childbirth, and related medical conditions” refers to a wide range of conditions, including but are not limited to, current pregnancy, past pregnancy, potential or intended pregnancy (which can include infertility, fertility treatment, and the use of contraception); labor; childbirth; abortion; endometriosis; miscarriage; stillbirth; menstruation; lactation; infections and many other conditions.

The regulations state that in virtually all cases, the following accommodations will be considered reasonable:

1. Allowing an employee to carry or keep water near and drink, as needed;

2. Allowing an employee to take additional restroom breaks, as needed;

3. Allowing an employee whose work requires standing to sit and whose work requires sitting to stand, as needed; and

4. Allowing an employee to take breaks to eat and drink, as needed.

LCW published a Special Bulletin on the final PWFA regulations, which you can access here

LCW In The News

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

• Recently featured in The Recorder, LCW Senior Counsel David Urban and Attorney Gabriella Kamran authored an article which explores employee rights concerning political activity. They emphasize, "California is one of several states with laws that restrict private employers from interfering in the political activities of employees." Public employees have First Amendment protection, while California labor laws shield private employees. The scope of "political activity" is broad, safeguarding employees in social and political causes. Given complex legal issues, employers should seek legal counsel before acting.

Immunization

California Court Upholds Elimination Of Personal Belief Exemptions For Student Vaccine Requirements.

Four mothers with school-aged children brought suit against Rob Bonta, the California Attorney General, alleging that their religious beliefs forbid them from vaccinating their children. The mothers argued that their children are unable to enjoy the benefits of public and private education because California’s compulsory vaccination law requires all students up to grade 12 receive vaccines.

Prior to January 1, 2016, students could apply for medical and personal belief exemptions to the immunization requirement. Since January 1, 2016, personal belief exemptions have been prohibited and school authorities cannot unconditionally admit any child to preschool, kindergarten through sixth grade, or seventh grade, unless the child has been immunized or qualifies for other exemptions. Personal belief exemptions on file at a private or public schools are honored through each of the designated grade spans (i.e., birth to preschool; kindergarten and grades one to six; and grades seven to twelve). Once the unvaccinated child enrolls in the next grade span, they would need to be vaccinated.

There are exceptions. First, California’s immunization requirements do not apply to children in home-based private schools or to children enrolled in independent study programs. Second, children who qualify for an individualized education program (“IEP”) may access special education or related services regardless of vaccination status. Third, children may be medically exempt from immunization requirements if a licensed physician states in writing that the child has physical or medical conditions that would render vaccination unsafe.

On October 31, 2023, the four mothers filed a complaint for injunctive relief in federal district court, challenging the immunization law under the Free Exercise Clause of the First Amendment.

To merit protection under the Free Exercise Clause, a religious claim must be sincerely held, rooted in religious belief, and not purely secular. However, an individual is still required to comply with a valid and neutral law

of general applicability, even if it conflicts with their religion.

The court noted that the Supreme Court has long endorsed state and local government authority to impose mandatory student vaccinations to protect the health and safety of other students and the public at large.

The court concluded that while the mothers’ objections were rooted in sincerely held religious beliefs, the vaccination law was a neutral law. The Court found no hostility to religion; the law makes no reference to religion or religious practice, nor does it target or single out religion for harsher treatment. It requires all children in public and private schools to receive common childhood vaccinations.

The court also looked at the legislative history and found no evidence of anti-religious motivations in enacting the law. According to the legislative history, the law was introduced in response to the 2015 measles outbreak in California and reports from the Centers for Disease Control (“CDC”) that there were more measles outbreaks in January 2015 than in any one month in the twenty years prior. The legislative history also identified concerns that the significant rise in personal belief exemptions, a 337% increase between 2000 and 2012, placed communities at risk of preventable diseases.

Finally, the court concluded that the law was generally applicable because it did not selectively impose burdens only on conduct motivated by religious belief. Medical exemptions are framed in objective terms—a child is exempt if the parent files a written statement by a licensed physician with the governing authority. The state’s interest in enacting this law is to protect the health and safety of students and the public at large from the spread of infectious diseases. The court found that the risks posed by the law’s exemptions were not comparable to the personal belief exemption.

In light of these findings, the court found that the state has a legitimate interest in protecting the health and safety of students and the public at large and that the repeal of the personal belief exemption was rationally related to furthering that interest. The court granted the defendant’s motion to dismiss.

Note:

This case upholds the current law in California, which is that K-12 schools cannot unconditionally admit any student unless the student has been fully immunized. Schools are required to file a written report on the immunization status of new students to the school with the State Department of Public Health and the local health department on at least an annual basis at times and on forms prescribed by the State Department of Public Health.

Royce v. Bonta (S.D.Cal. Mar. 25, 2024) 2024 U.S.Dist.LEXIS 52973.

Labor Relations

Home Depot Violated NLRA By Requiring Employee To Remove BLM Letters From Apron.

Antonio Morales, who identifies as Hispanic, Mexican, and a person of color, using they/them pronouns, was employed at Home Depot as a sales specialist in the flooring department. From the outset of Morales’ employment, coworker Allison Gumm subjected customers and employees of color, including Morales, to racially discriminatory behavior. For example, Gumm erroneously attributed Morales’ difficulty in registering a customer’s credit card in the computer system to Morales’ entry of the relevant data in Spanish. A day later, Gumm advised Morales to watch a Black customer closely because, according to Gumm, people of Somali descent were more inclined to steal.

On numerous occasions, Morales discussed Gumm’s offensive conduct with coworkers in the flooring department. All agreed that Gumm exhibited racial bias towards customers and fellow employees, and that management should deal with her misconduct. The other flooring department employees even made a conscious effort to “intercept” customers of color so they would not be subject to Gumm’s bias.

Morales and coworkers repeatedly complained to managers about Gumm’s conduct. Unbeknownst to Morales and his coworkers, Home Depot held a documented verbal performance discussion with Gumm, and Gumm received disciplinary coaching and counseling in response to these complaints. The employees were not aware of these interventions, seeing only that Gumm persisted in her conduct with no apparent consequences.

A few months later, employees prepared materials for the observance of Black History Month at Home Depot’s request. Shortly thereafter, unidentified persons ripped up the displays on two separate occasions. Management emailed certain store employees and supervisors, advising them of the incident. Morales replied to the email and suggested a wider discussion of the serious underlying issues at Home Depot.

Later that day, Morales was called to meet with an assistant store manager and store manager about their email. The store manager told Morales that Home Depot was taking care of the vandalism incidents, and they should leave the problem to management. Then, the store manager began discussing the hand-drawn BLM insignia that Morales had added to their apron. This was the first time a manager or supervisor had said anything about the BLM marking, even though Morales had worn it continuously for the prior five (5) months, including during face-to-face meetings with supervisors.

The store manager said the BLM insignia was contrary to the dress code’s ban on displaying causes or political messages unrelated to workplace matters. The store manager said Morales could not return to work until he removed the BLM insignia. The store manager explained that if he allowed Morales to wear the BLM insignia, he would have to let other employees wear swastikas. Morales objected to that comparison. The store manager said that “All Lives Matter” was preferable as a slogan to “Black Lives Matter.”

Morales resigned from Home Depot due to the racial harassment and discrimination their coworkers had suffered, and noted that injustices, micro-aggressions, and blatant racism they experienced would not go unnoticed.

Seven days after Morales resigned, Home Depot fired Gumm. Home Depot also, for the first time, posted copies of the dress code and apron policy throughout the store and advised all employees that displaying BLM insignia was contrary to the policy.

Morales filed a complaint with the National Labor Relations Board (NLRB) against Home Depot. He did not argue that Home Depot violated the National Labor Relations Act (NLRA) by maintaining a nationwide dress code policy prohibiting employees from displaying “causes or political messages unrelated to workplace matters.” Rather, he argued that Home Depot violated Section 7 of the NLRA when it classified the BLM insignia as a dress code policy violation.

Section 7 of the NLRA protects employees when they engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection. To be protected under Section 7, the conduct must relate to collective bargaining, working conditions and hours, or other matters of mutual aid or protection of employees. For an action to be concerted, it must be engaged in with or on the authority of other employees, and not solely by an employee acting on behalf of himself.

An Administrative Law Judge (ALJ) heard the case and ruled in favor of Home Depot. The ALJ found that Home Depot’s application of its dress code to prohibit BLM messages did not interfere with employees’ protected concerted activity. The NLRB reviewed and overturned the ALJ’s decision.

The NLRB found that Morales’s refusal to remove the BLM marking from their work apron was protected concerted activity under the NLRA. Morales, along with two coworkers, wore the BLM markings on their aprons around the same time that the flooring department

employees were having conversations about Gumm’s behavior. The NLRB found that although there was no evidence that Morales discussed the BLM insignia with other employees before adding it to their apron, or that other employees expressed approval or support for it, it was clear that there was a group complaint about the working conditions. Morales was voicing group concerns about Home Depot’s response to discriminatory working conditions when they sent the email and met with the managers, and wearing the BLM marking was a logical outgrowth of their prior concerted activities.

The NLRB also found that Morales’s insistence on continuing to wear the BLM insignia was for mutual aid or protection. Morales stated that displaying the BLM marking was a way to show support for people of color or Black associates, and Morales said in the meeting that they refusal to remove the BLM because they wanted to lead by example. In other words, they were acting to improve the terms and conditions of their employment.

The NLRB found that Home Depot did not demonstrate any special circumstances to justify the prohibition of the BLM markings, such as concerns about employee safety, damage to machinery or products, interference with an established employer public image, or part of the employer’s business plan.

The NLRB found that Home Depot constructively discharged Morales by conditioning their return to work on removing the BLM insignia from their work apron. The NLRB ordered Home Depot to offer full reinstatement to Morales; provide Morales with any loss of earnings, including back pay; and compensate Morales for any direct and foreseeable monetary harm, such as search-for-work and interim employment expenses. The NLRB also ordered Home Depot to cease and desist from applying its dress code and apron policy to Section 7 activity.

Note:

Although the NLRA does not apply to public employers, the California Public Employment Relations Board (PERB) and the California courts can look to NLRA precedents. Both the EERA and the NLRA give employees the right to engage in concerted activities without employer interference. The topic or wearing BLM messaging has been coming up more frequently. In December, an administrative judge for the NLRB found that Whole Foods dress code forbidding BLM messaging was permissible because there was a lack of nexus between BLM messaging and employees’ rights to unionize. Here, the NLRB came to the opposite conclusion because the BLM messaging was in protest to the employees’ working conditions.

PERB Says Interest On Backpay Is Compounded On A Daily Basis Rather Than Annually.

The El Centro Regional Medical Center (ECRMC) challenged the proposed decision of an Administrative Law Judge (ALJ). The ALJ had concluded that the hospital violated the Meyers-Milias-Brown Act (MMBA) when it failed to pay its Laboratory Unit employees an annual raise. The ALJ determined that the hospital’s decision to not pay the wage increase was a unilateral change that also constituted discrimination and interference.

The ALJ’s proposed decision included a backpay award for all current and former Laboratory Unit employees who began employment before January 1, 2021, for an amount equal to two percent of any wages earned between July 4, 2021 and July 26, 2022, augmented by interest at a rate of seven percent per annum.

The Public Employment Relations Board (PERB) affirmed the ALJ’s determinations and proposed remedy, but made one modification to the remedy. PERB found that interest on the backpay would be compounded on a daily basis (rather than annually). PERB further stated that daily compounding interest applied retroactively to this case and in all pending cases in whatever stage, given the absence of manifest injustice in doing so.

PERB cited several policy reasons for moving away from the seven percent simple interest rate in favor of the daily compounding interest. One reason was that remedial delay harms employees, but directing the augmentation of monetary awards by daily compounding interest will reduce the harm by more accurately compensating employees for that delay. In addition, PERB said that awarding daily compounding interest would cause employers to comply with their legal obligations more carefully.

El Centro Regional Medical Center (2/21/2024) PERB Dec. No. 2890.

Union Can Request And Receive Disaggregated Race/Ethnicity Data Of Employees.

SEIU filed a class action grievance claiming the City and County of San Francisco discriminated against black employees by extending their probationary periods or releasing them from probation. SEIU also submitted a request for information to the City, seeking disaggregated

race/ethnicity data for employees who the City released from probation or who had their probation extended. The City refused to provide the data on privacy grounds.

After an Administrative Law Judge issued a proposed decision in SEIU’s favor, the City excepted as to liability, while SEIU’s exceptions sought attorneys’ fees. The Public Employment Relations Board (PERB) denied both parties’ exceptions.

Regarding the City’s exception, PERB held that while there was no PERB precedent regarding this information, the City did not prove that disclosing that information to SEIU would invade privacy in a manner that was serious in both its nature and scope, nor that those privacy concerns outweighed SEIU’s purpose in investigating potential discrimination.

PERB relied on PERB Decision No. 2483, in which a teachers’ union requested a list of teachers assigned to a program for district employees who were pending investigation for serious misconduct. PERB decided in that case that the teachers’ privacy interests did not outweigh the union’s need to communicate with teachers, assist them, and investigate potential discrimination or contract violations. Thus, PERB ordered that district to provide the union with the list.

The Board also relied on National Labor Relations Board precedent. In The Bendix Corp. (1979) 242 NLRB 62, the NLRB found that employees have little, if any, confidentiality right in disaggregated data on their race and sex, and that any such privacy right did not outweigh the requesting union’s need for the data.

Similarly, PERB concluded that the City’s showing of privacy invasion was small enough that there was no need to engage in balancing the harms of disclosing the data against the union’s request. The City’s privacy interest in their employees’ race/ethnicity was limited enough that it gave way to a union seeking to investigate, prevent, ameliorate, or remedy workplace discrimination.

PERB also directed SEIU to refrain from releasing disaggregated race/ethnicity information and to use such information only as needed to investigate or seek to prevent or remedy potential workplace discrimination, legal, or contractual violations.

Regarding the SEIU’s exceptions, PERB found no basis for attorneys’ fees.

City and County of San Francisco (2/27/2024) PERB Dec. No. 2891.

Brown Act

Attorney General Issues Opinion Regarding The Application Of The Brown Act To An Annual Breakfast.

The California Attorney General issued an opinion on three questions related to the Brown Act. The Brown Act applies to District meetings of the Board of Trustees, certain subcommittees meetings, and senate meetings.

The Ventura Chamber of Commerce hosted an annual breakfast at which the mayor, who is a city council member, delivered a “State of the City” address. Members of the public could attend the event, but they would have to purchase a ticket. There was no other way for the public to watch the address in real time. The Ventura County District Attorney submitted the following three questions to the Attorney General regarding how the Brown Act applied to this event:

1. If a majority of the members of the city council were to attend the event described above, would that event constitute a “meeting” of the city council within the scope of the Brown Act under Government Code section 54952.2(a)?

2. Would the Brown Act exception for conferences or similar gatherings set forth in Government Code section 54952.2(c)(2) apply to such an event?

3. Would the Brown Act’s exception for “community meetings” set forth in Government Code section 54952.2(c) (3) apply to such an event?

The Attorney General provided the following answers:

1. Yes. If a majority of the members of the city council were to attend the event described above, that event would constitute a congregation of a majority of the councilmembers at the same time and location to hear—and potentially discuss—an item within their subject matter jurisdiction. As such, the event would constitute a “meeting” of the city council within the meaning of Government Code section 54952.2(a), and the meeting would have to comply with the open-meeting requirements of the Brown Act, unless a statutory exception applies.

2. No. The event as described consisted of a single speech by a single official regarding the state of a single city. As such, it would not satisfy the Brown Act exception for conferences and similar gatherings set forth in Government Code section 54952.2(c)(2) because that exception involves a discussion of issues of general interest to the public or to public agencies of the type represented by the city council.

3. No. The Brown Act exception for community meetings set forth in Government Code section 54952.2(c)(3) requires, among other things, that the event must be open to the public. The event in question would not satisfy that element because members of the public could only attend by purchasing a ticket from the chamber of commerce.

The full published opinion can be found here.

Did You Know? LCW has four community college district 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 public education attorney on matters relating to employment and education law questions (including questions involving governance, business, facilities, and student matters!). We’ve outlined a recent consortium call and the provided answer on page 19. Client confidentiality is paramount to us; we change and omit details in the ERC Call of the Month.

Workplace Violence Prevention

Newly Issued DOSH FAQs Confirm All Employees Must Be Trained On New Workplace Violence Prevention Obligations By July 1, 2024.

On March 27, 2024, the Division of Occupational Safety and Health (“DOSH”) published Frequently Asked Questions about Workplace Violence Prevention in General Industry (Non-Health Care Settings) (“FAQs”), which provide responses to a number of questions related to the Workplace Violence Prevention Plan (“WVPP”), including implementation, customization, training, and recordkeeping.

The FAQs clarified that all of the new requirements, including training employees on the employer’s WVPP, must be completed by July 1, 2024. There is no grace period, meaning that DOSH enforcement will start immediately on that date.

As the effective date for these statutory requirements rapidly approaches, LCW has developed several resources to help employers develop and implement a WVPP and training for their employees. You can read LCW’s Special Bulletin on this issue here. LCW offers resources, including an annotated model WVPP, template WVPP training materials, and detailed instructions and guidance on how to customize the materials. You can find more information about those resources here.

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

Litigation

Court Dismissed Case After Circumstantial Evidence Showed That Employee Deleted Relevant Texts.

Alyssa Jones worked as a waitress at a Scottsdale bar. In 2017, Jones sued the bar’s owner-operator and his company, Riot Hospitality Group (collectively “Riot”), alleging Tile VII violations (among other claims).

During discovery, Riot obtained text messages between Jones, her friends, and co-workers between 2015 and 2018. But, among the texts were instances when Jones abruptly stopped texting with people she had been messaging almost daily. In response to a subpoena, an imaging vendor produced a spreadsheet showing that messages between Jones and her co-workers had been deleted from Jones’ mobile phone.

In subsequent depositions, two of the co-workers, both of whom Jones had identified as prospective trial witnesses, testified that they had exchanged text messages with Jones about the case since 2018. After Jones failed to comply with an order to produce those messages, the court ordered the parties to jointly retain a forensic search specialist to review the phones of Jones and three prospective witnesses.

The forensic specialist extracted messages and sent them to Jones’ counsel, Philip Nathanson, but the lawyer failed to forward any texts to Riot, despite multiple court orders that he do so and several deadline extensions. The court then ordered the forensic specialist to send all non-privileged messages directly to Riot and assessed $69,576 in fees and costs against Jones and her counsel Nathanson.

After receiving the text messages, Riot moved for terminating sanctions under Federal Rule of Civil Procedure 37(e)(2), a rule that deals with situations where one party purposely tries to deny the other party of access to electronically stored information. Rule 37(e)(2) allows the court to presume the information was unfavorable to the party that failed to preserve it or to dismiss the action or enter a default judgment. Riot submitted an expert report from the forensic specialist, who concluded, after comparing the volume

of messages sent and received between phone pairs, that “an orchestrated effort to delete and/or hide evidence subject to the Court’s order has occurred.” The district court dismissed the case with prejudice, finding that Jones deleted text messages and cooperated in the deletion of messages by her witnesses so that Riot could not have them.

Jones and Nathanson appealed to the Ninth Circuit. On appeal, Jones argued that the court abused its discretion by dismissing her case because her conduct was not willful.

The Ninth Circuit disagreed. To dismiss a case under Rule 37(e)(2), a district court need only find that: 1) electronically stored information (“ESI”) that should have been preserved is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery; 2) that the spoliating party acted with the intent; and 3) lesser sanctions are insufficient.

While the Rule does not define “intent,” the Ninth Circuit said the context of the Rule showed that the word involves the willful destruction of evidence with the purpose of avoiding its discovery. A district court may consider circumstantial evidence of intent, such as: the timing of the destruction; affirmative steps taken to delete evidence; and selective preservation.

The Ninth Circuit found ample that Jones intentionally destroyed a significant number of text messages and collaborated with others to do so. For example, Jones could not explain why messages to other employees were selectively deleted in 2017 and 2018. As to the 2019 and 2020 messages, a screenshot of a message sent by a witness to Jones but missing from Jones’ phone, showed that Jones deleted at least one relevant message. Moreover, Jones and one of the witnesses obtained new phones shortly after they were ordered to hand over their devices for imaging. Neither Jones nor the witnesses produced the earlier phones for imaging, thereby preventing discovery of deleted messages.

The Ninth Circuit rejected Jones’ arguments that her production of thousands of texts negated her bad intent. The Court found that production of some evidence does

not excuse destruction of other relevant evidence, and the evidence from the imaging vendor suggested that she deleted some messages.

The Ninth Circuit also rejected Jones’ argument that the District Court abused its discretion by considering the forensic specialist’s report, and by awarding attorneys’ fees and costs. The Court found that the district court’s discovery orders instructing Jones and others to hand over their phones to a forensic search specialist were proper.

Jones v. Riot Hospitality Group LLC, No. 22-16465 (9th Cir. 2024).

Note:

This case shows that destroying evidence or preventing evidence from being discovered can result in dismissal of a case, and an order to pay the other sides attorneys’ fees and costs.

Jury verdict

Of the month

Jury Awards $7.2 Million To Police Officer For Alleged Racial Discrimination.

A former officer sued his employer, claiming he was illegally fired because he is Black. The officer alleged that his race was a “substantial motivating reason” for his termination.

After nearly five years of litigation, a jury voted unanimously in favor of the officer after three hours of deliberation. The jury awarded the officer $7.2 million in damages, including $5.2 million in economic damages and $2 million in noneconomic damages.

The officer had been recruited to the public safety agency because of his proven leadership abilities. The officer had served almost three decades without any discipline at his former public safety agency. His firing resulted from an internal affairs investigation initiated after a dispute between the officer and a subordinate regarding the subordinate’s handling of a case. A manager outside of the public safety department hired an external investigator and oversaw the investigation. The agency ultimately fired the officer for raising his voice and using profanity with a subordinate officer on one or more occasions.

The former officer criticized the investigation, alleging that the sustained findings against him were supported largely by the testimony of a subordinate who had a racial animus toward him. The former officer alleged that the subordinate was routinely insubordinate.

The officer also alleged that the manager’s role in overseeing the investigation was contrary to the public safety department’s practice of using its Chief in that role. The former officer alleged that terminating him for raising his voice and using profanity at insubordinate officers, while merely reprimanding a white subordinate who was found to have been dishonest, reflected racial bias.

Employer Who Failed To Update Terminated Employee’s Address Did Not Ensure Receipt Of COBRA Notice.

Damion Schinnerer was the Assistant Vice President of Biomedical Engineering at Wellstar, a Medicare/Medicaid certified hospital facility. Wellstar placed Schinnerer on administrative leave on May 18, 2021 and then terminated his employment on October 1, 2021. Wellstar asserts Schinnerer was terminated because he mistreated other employees by being disrespectful and abrasive towards them.

Wellstar used a third-party company called WageWorks to send Schinnerer a notice for continued health insurance coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA). WageWorks sent Schinnerer’s COBRA notice to a home address in Marietta, Georgia. However, Schinnerer moved sometime between the start of his administrative leave in May 2021 and termination on October 1, 2021. He sold his house in Marietta, Georgia and had all his mail forward to his parent’s address in Forth Worth, Texas. Since he was on administrative leave at the time of his move, Schinnerer was unable to change his listed address in Wellstar’s system. He did, however, call Wellstar’s Human Resources to provide his new address around the end of August 2021. Since WageWorks had sent the COBRA notice to Schinnerer’s former address, he did not receive it until months after his termination.

Schinnerer filed a lawsuit against Wellstar, which included claims of retaliation for engaging in protected activity and failure to timely notify him of his COBRA rights. COBRA requires plan administrators to use “measures reasonably calculated to ensure actual receipt” of the

COBRA notice. (29 C.F.R. section 2520.104b-1(b)(1).)

Wellstar’s position was that it complied with the COBRA notice requirement because Wellstar timely mailed the COBRA notice through first-class mail. The district court found that regardless of the way the COBRA notice was mailed, it was mailed to the wrong address. There was no dispute that Schinnerer had notified Human Resources of his new address by phone. The district court could not find that Wellstar used measures reasonable calculated to ensure actual receipt of the COBRA notice. The district court denied Wellstar’s motion for summary judgment on the COBRA notice claim, therefore allowing Schinnerer to proceed with that claim in his lawsuit.

Schinnerer v. Wellstar Health, Inc., 2024 WL 476960 (N.D. Ga. 2024).

Note:

Districts are advised to have procedures in place for obtaining the most current residential address information of employees, including employees on leave. If an employee notifies the district of a new residential address, the district should prioritize updating the information in its personnel system, particularly for employees who may be terminated or otherwise separate from employment.

Beware Of Companies Misrepresenting Nutrition And Wellness Costs As Pre-Tax Medical Expenses.

Every once in a while, the IRS issues a reminder for employers and individuals to be cautious of what expenses can be reimbursed pre-tax as a medical expense. On March 6, 2024, the IRS issued an alert warning people to beware of companies misrepresenting nutrition, wellness, and general health expenses as eligible for pre-

tax reimbursements under a health flexible spending arrangement (health FSA), health savings account (HSA), health reimbursement arrangement (HRA), or medical savings account.

According to the IRS alert, some companies claim that a simple doctor’s note based merely on self-reported health information can substantiate a non-medical food, wellness, or exercise expense into a pre-tax medical expense. The IRS debunks these claims by explaining that such doctor’s note would not meet the requirement that the expense be related to a “targeted diagnosisspecific activity or treatment.” In previous IRS guidance, the IRS has explained that these types of expenses only qualify as medical expenses when prescribed or recommended by a physician or medical practitioner as treatment for a specific medical condition diagnosed by a physician. (See IRS Frequently Asked Questions About Medical Expenses Related to Nutrition, Wellness, and General Health.)

The IRS alert provides the following example of a food expenses that would not qualify as a medical expense:

For example: A diabetic, in his attempts to control his blood sugar, decides to eat foods that are lower in carbohydrates. He sees an advertisement from a company stating that he can use pre-tax dollars from his FSA to purchase healthy food if he contacts that company. He contacts the company, who tells him that for a fee, the company will provide him with a ‘doctor’s note’ that he can submit to his FSA to be reimbursed for the cost of food purchased in his attempt to eat healthier. However, when he submits the expense with the 'doctor's note', the claim is denied because food is not a medical expense and plan administrators are wary of claims that could invalidate their plans.

The IRS also cautions employers and individuals that if a health FSA, HSA, HRA, or medical savings account provides a pre-tax reimbursement for a non-medical expense, it is not a qualified plan. If a plan is not qualified, all payments made to taxpayers under the plan, including reimbursements that were for actual medical expenses, are taxable and includable in income.

For more information, see IRS News Release IR-2024-65 (March 6, 2024).

Internal Revenue Code Compliance Question:

Question: Can a health flexible spending account (health FSA), health savings account (HSA), or health reimbursement arrangement (HRA) provide reimbursements for medical care expenses that an employee resells or plans to resell to someone else?

Answer: No. Health FSAs, HSAs, and HRAs cannot provide reimbursements for medical care expenses that an employee resells or plans to resell to someone for two reasons. First, health FSAs, HSAs, and HRAs cannot reimburse expenses incurred by anyone other than the employee, their spouse, or their dependent. Second, IRC section 213(a) specifically limits tax deductions to expenses “not compensated for by insurance or otherwise.” If an employee were to resell an item that a health FSA, HSA, or HRA has reimbursed, then the item would be compensated for by “otherwise” since it is paid for by the resale buyer.

Workplace Violence Prevention Plan

Deadlines Approaching!

With the enactment of Senate Bill 553, the legislature amended Labor Code section 6401.7 and added Labor Code section 6401.9, requiring employers to adopt and implement a Workplace Violence Prevention Plan (WVPP) and corresponding training for their employees by July 1, 2024. As the effective date for these statutory requirements rapidly approaches, LCW has developed a number of resources to help employers develop a WVPP for their worksites and training for their employees in order to comply with these new obligations. (See here for additional information about LCW offerings and here for a special bulletin on the same topic).

Option 1:

Comprehensive package including LCW’s model WVPP and template training materials along with instructions with valuable insight and explanation as to how to customize the WVPP for your unique workplace specific issues as well as how to implement and maintain an effective WVPP moving forward. This training will also provide detailed guidance regarding the customization of LCW’s training materials to effectively train your employees on issues specific to your workplace(s).

Option 1 Purchase Includes:

• Model Workplace Violence Prevention Plan (with notes on how to customize for your organization)*.

• Checklist of plan/training requirements.

• Slides you can customize and use to train your workforce.

• Three-month access to the two hour webinar recording which provides instructions on how to customize both the Plan and the training (recording length: two hours).

Option 2:

Model Workplace Violence Prevention Plan annotated on how to update for your agency.

Option 2 Purchase Includes:

• Model Workplace Violence Prevention Plan (with notes on how to customize for your organization)*.

The Department of Industrial Relations (DIR) has recently updated their guidance on these requirements. LCW’s WVPP complies with these guidelines.

Premium Perks on Liebert

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.

April

• If the IRS rejects your agency’s Form 1094-C or 1095-C e-filing, immediately troubleshoot to correct the error and refile.

• Check the 2025 Penalty A and Penalty B amounts for the ACA Employer Shared Responsibility Payment (see LCW’s March Client Update).

Lia Maria Fulgaro, an Associate in our Los Angeles office, specializes in labor and employment law matters. With a wealth of experience in the legal field, Lia’s expertise encompasses a wide range of areas, including complex wage and hour class action defense and representation of clients in single-plaintiff employment claims.

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

Join our upcoming HRCI Certified - Labor Relations Certification Program Workshops:

1. May 16 & 23, 2024 - Nuts and Bolts of Negotiations

2. June 13 & 20, 2024 - The Public Employment Relations Board (PERB) Academy

The use of this official seal confirms that this Activity has met HR Certification Institute’s® (HRCI®) criteria for recertification credit pre-approval.

Visit our website: www.lcwlegal.com/lrcp

Consortium Call Of The Month

Members of Liebert Cassidy Whitmore’s consortiums are able to speak directly to an LCW attorney free of charge to answer direct questions not requiring in-depth research, document review, written opinions or ongoing legal matters. Consortium calls run the full gamut of topics, from leaves of absence to employment applications, student concerns to disability accommodations, construction and facilities issues and more. Each month, we will feature a Consortium Call of the Month in our newsletter, describing an interesting call and how the issue was resolved. All identifiable details will be changed or omitted.

Question: Answer:

A Community College District client had a probationary classified employee who requested a 6-week unpaid leave to deal with a domestic violence situation. The CCD wanted to allow the employee to take the unpaid leave, but their CBA specified that only permanent classified employees could take unpaid leave with Board approval. The CCD asked whether LCW advised allowing the employee to take the unpaid leave. If they did allow it, they wanted to know whether they should enter into a side letter/agreement with the employee and union to document the situation and confirm it was not precedent setting.

The attorney advised the client that according to the Labor Code, the CCD must allow all victims of domestic violence to take unpaid leave to ensure their health, safety, and welfare, including temporary or permanent relocation. The employee is required to give the District advance notice of the need to take the leave, or provide documentation for the need to take an unscheduled leave. Additionally, the employer must allow the employee to use their accrued vacation, personal leave, compensatory time off, or sick leave to receive compensation during the leave. Since the right to take leave to seek relief from domestic violence is statutory, and expressly supersedes CBAs, the CCD can likely grant the employee’s leave request despite the CBA. The CCD would likely not need to enter into a side letter agreement because the right to take domestic violence leave exists unless and until the statutes are repealed.

Liebert Cassidy Whitmore