Fire Watch: April 2023

Fire Watch

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LCW Attorneys Win Early Dismissal Of Fire Captain’s Case For Retaliation And Age Discrimination.

LCW Partners Jennifer Rosner and Joung Yim and Associates Marek Pienkos and Cara Strike succeeded on a City’s motion for summary judgment against a fire captain.

A City fire captain voluntarily participated in the unpaid Search and Rescue program. His lawsuit claimed that after he reported that the fire chief and battalion chief had allegedly misused funds, the City “demoted him” from Search and Rescue Coordinator to Search and Rescue Program Advisor, and that his Coordinator position was given to a much younger person. He also alleged he received a substandard performance evaluation.

LCW convinced the court that the City had not taken any adverse employment action, and therefore the fire captain’s claims for retaliation and discrimination lacked merit. First, the position he was allegedly “demoted” from was a voluntary, unpaid position and had no bearing on his actual employment, salary, or benefits. Second, the fire captain did not receive a substandard performance rating. He had been rated as “Standard” in all but three categories, in which he was rated “Above Standard.” LCW further showed that a rating of “Standard” meant “meeting or exceeding expectations” and these ratings were consistent with the fire captain’s performance evaluations from the prior 10 years.

The court rejected the fire captain’s speculative argument that the “demotion” damaged his reputation and would result in future earnings loss. Because the fire captain offered no evidence to support this speculation, the court found no reasonable trier of fact could find that his future career prospects had been affected.

Therefore, the court dismissed all claims.

LCW In The News

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

• Recently published in Benefits Magazine, LCW Senior Counsel Stephanie Lowe writes about the types of paid and unpaid leave options that employees may use to cover parental leave and discusses how employers may help employees understand and access these options.

• LCW Partner Shelline Bennett discussed AB 2188, which prevents employers from penalizing or firing an employee who uses marijuana on their own time. “The current drug testing that employers use are primarily drug tests that test for non-psychoactive cannabis metabolites,” Bennett said, adding that the current drug tests most employers have are prohibited by this law. “You have to be able to test for current impairment- THC and that's still being fine-tuned by the pharmaceutical companies."

• Recently published in the California Special Districts Association March/April magazine, LCW Partner Elizabeth Arce and Senior Counsel Stephanie Lowe write on the pros and cons of a 9/80 work schedule. “The 9/80 is a two workweek schedule of eight 9-hour days, one 8-hour day, and one day off” Arce and Lowe state. “While the 9/80 has its benefits, there are also a number of pitfalls that can inadvertently trigger overtime liability.”

No Liability For Supervisor’s Off-Duty Sexting.

Hanin Atalla and Erik Lund met in fall of 2017, when Atalla shadowed Lund at Rite Aid during her pharmacy school rotations. When Atalla’s rotation at Rite Aid ended, she attended a celebratory dinner with Lund and his wife and the two kept in touch. Atalla later began work at Rite Aid as a graduate intern and then hourly staff pharmacist; Lund was her supervisor. Atalla and Lund became close friends, celebrated a Friendsgiving, joked regularly, and frequently went to lunch. They texted on their personal cell phones about a range of personal matters, including travel and vacations, exercise, food, weight loss, restaurants and getting together for meals, family and relatives, birthdays, fashion, drinking and alcohol, work issues, their respective spouses, pets, and social media. They also dined together as couples with their spouses, including once for Atalla’s birthday.

Approximately one month after Atalla’s birthday, while Atalla was at home and Lund was at a hotel for personal business, Lund began texting Atalla on their personal cell phones about the alcohol he was preparing to drink at the hotel. Shortly thereafter, Lund texted her a “Live Photo” of him masturbating, followed by a text that said, “I am so drunk right now.” He then texted, “Meant to send to wifey,” to which Atalla responded, “It’s ok, I deleted it before I end up in a divorce.” Lund then sent several more texts stating, “Both of us” and “Race to the bottom” accompanied by a photo of his penis. Atalla texted, “Erik, stop please,” to which he replied, “You are right.” The exchange ended.

Rite Aid promptly fired Lund and Atalla said she would not be returning to work. She filed a claim for violation of the Fair Employment and Housing Act (FEHA) for sexual harassment, failure to prevent sexual harassment, and hostile work environment, among other things. The trial court granted Rite Aid’s motion for summary judgment, and Atalla appealed.

The California Court of Appeal affirmed the trial court because Atalla had not raised a triable issue of material fact that Lund was acting in the capacity of a supervisor in during the text exchange. Rather, the Court agreed with the trial court and Rite Aid that Lund and Atalla had an extensive texting relationship that predated her employment, the exchange occurred outside the workplace and outside of work hours, and the exchange arose from their friendship (yet also ended it). Moreover, Atalla admitted that she and Lund were friends before she worked at Rite Aid and their friendship was not connected to her work at Rite Aid.

Because Atalla could not make the fundamental showing that Lund was acting in a supervisorial capacity, the Court affirmed the trial court’s ruling and dismissed the case against.

Atalla v. Rite Aid, 2023 WL 2521909 (Cal. Ct. Appeal).

Note:

Texting and drinking do not mix. This supervisor lost both his job and a friend. In addition, he could have been personally liable for damages had he been texting in his capacity as a supervisor.

Congratulations To Our Labor Relations Certificate Program Recipients!

The following received their certificates at the LCW Conference earlier this month:

Nicholle Collins

Dawud Brewer

Omar Castro

Karen Gish

Monique Goetz

Cora Hall

Carrie Hanes

Emily Milne

Hayley Schwartzkopf

Miguel Serna

Jennifer Sommers

JoAnn Weberg

Denise Gonzalez

Cherie Johnson

Employee Defeats Summary Judgement Due To Evidence Of Discrimination In Lay Off Decision.

In June 1999 Kaiser Foundation Hospitals hired Suchin Lin as a data management associate. From 1999 to 2016, Lin was promoted or transferred several times and consistently received positive performance evaluations. In May 2017, Lin was transferred to another position. She received an overall rating of “successful performance” in her first year in that position. This was the same overall rating as her four, more experienced teammates in the same department. Later in 2018, Lin again received a positive performance evaluation. But Lin was placed on a lay-off list in December 2018, along with 30 others.

On January 7, 2019, Lin fell in her workplace and injured her left shoulder. That same day, a doctor placed Lin on modified duty through January 11. This modified duty was later extended through March 25. On January 19, 2019, Lin’s supervisor Sridhar Manne discussed Lin’s performance with human resources and specifically discussed that Lin’s slower performance was possibly due to modified duty.

While Lin was dealing with her injury, Manne, his supervisor Douglas Monroe, and department head Wilson Henriquez were attempting to figure out who to lay off. In Janaury 2019 Henriquez asked Manne to rate his five employees on a scale of one to four in five different categories. Manne gave Lin a cumulative score of nine out of 20. The rest of Lin’s teammates received a score of 16 or above.

In February 2019, Manne met with Lin to discuss her performance. Manne stated that Lin’s “unavailability” had forced her teammates to complete her tasks and that Lin needed to work faster in light of her absences due to physical therapy appointments. He also pressured her to work unpaid overtime. Soon thereafter, Lin was placed on medical

leave through May 19. On April 24, Lin was notified that she would be laid off effective June 23, along with 16 other employees. Lin promptly sued Kaiser for disability discrimination.

Courts review Fair Employment and Housing Act (FEHA) disability discrimination claims under the McDonnell Douglas test. This test requires that the employee establish a prima facie case of discrimination: 1) the employee was a member of a protected class; 2) she was performing competently in the position she held; 3) the employer took an adverse employment action such as termination; and 4) some other circumstance suggests the employer acted on a discriminatory motive. The burden then shifts to the employer to produce admissible evidence of one or more legitimate, nondiscriminatory reasons for its adverse employment action. Finally, the burden shifts back to the employee “to attack the employer’s proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive.”

Kaiser moved for summary judgment and focused on its burden to show legitimate, non-discriminatory reasons for the layoff. Kaiser claimed that because Henriquez had made the decision to eliminate Lin’s position in December 2018, before Lin became disabled, there was no discriminatory animus. Lin opposed this motion by alleging that the initial decision to lay her off was not a final decision, as evidenced by the fact that the lay off list was gradually reduced from 31 employees to 17. She also argued that her ultimate termination was a result of Manne’s ratings, which only became negative after her disability and her request for accommodations.

The trial court agreed with Kaiser, and granted summary judgment. Lin appealed to the California Court of Appeal. The appellate court examined whether: 1) Kaiser’s December 2018 selection of Lin for the layoff list was tentative, or final; and 2) Kaiser’s ultimate decision to keep Lin on the layoff list and to terminate her employment was based, at least in substantial part, on Lin’s disability.

The Court of Appeal found that Kaiser’s initial list was tentative because of its changing nature. In addition, despite that Henriquez did not display any discriminatory animus, he relied upon Manne’s evaluations, which did carry discriminatory animus as shown by Manne’s conversation with human resources and the timing of the negative evaluations. The Court concluded that a reasonable jury could find that the negative evaluations Lin had received and her ultimate termination were substantially motivated by her disability. The Court of Appeal overturned the grant of summary judgment and allowed the case to go to trial.

Lin v. Kaiser Foundation Hospitals, 88 Cal.App.5th 712 (2023).

Note:

This case illustrates: 1) how a supervisor’s resentment toward an employee’s need for accommodation provided evidence of disability discrimination; and 2) that a higher-level manager must ensure a lower-level manager’s evaluations are legitimate and non-discriminatory in making a layoff decision. All supervisors must be trained that the law requires good faith in both the disability accommodation process and in the implementation of accommodations.

new to the Firm!

Jenai Howard, an associate in the San Francisco office, advises clients on education, labor and employment matters. Prior to joining LCW, Jenai worked as a Research Assistant for two Professors at Santa Clara University School of Law where she conducted various kinds of legal research and co-authored a Criminal Law casebook.

Kimberly Horiuchi, an associate in the Sacramento office, works primarily in the Firm’s Litigation practice group where she represents clients in employment litigation matters. She also focuses on providing trusted advice and counsel to organizations throughout the State and has extensive experience in conducting workplace investigations.

Wage&Hour

Time Employees Spent Undergoing Security Screenings Was Not Compensable Work Time.

Lindsey Buero worked in an Amazon warehouse. The warehouse had a secured area that contained merchandise. As a theft-prevention measure, employees had to undergo a security screening before exiting this area. Buero filed a class action against Amazon alleging that its failure to compensate employees for time spent waiting for and passing through the security screenings before and after work shifts and breaks violated Oregon’s wage and hour laws.

Amazon argued that this practice did not violate Oregon’s wage laws, which mirrored the Fair Labor Standards Act (FLSA) on the definition of “compensable” work time. Under the FLSA, travel to and from the place of work, and activities which are preliminary or postliminary to the principal work that occurs before or after the workday, are not compensable work time. The only exceptions are: if the activities are either an integral and indispensable part of the employees’ principal activities; or compensable as a matter of contract, custom, or practice. Amazon argued that Oregon’s wage

laws fell squarely under these same federal rules. The Oregon Supreme Court agreed with Amazon that the time was not compensable. Buero then appealed to the Ninth District Court of Appeals.

The Ninth Court affirmed the Oregon Supreme Court. The Supreme Court had analyzed the legislative history of Oregon’s various wage laws and determined that the legislators often based their decisions on the corresponding federal laws. For example, when the legislature defined “Hours Worked”, it explicitly mirrored the FLSA language noted above. Based on that foundation, the Court found that Buero had not shown that passing through the mandatory security screenings fell under one of the enumerated exceptions, and therefore the time was not compensable.

Labor Commissioner Cannot Issue A Deposition Subpoena For An Informal Hearing.

Nor-Cal Venture Group, Inc. (NorCal) operates fast food restaurants in the Sacramento area. In 2017, a former employee accused Nor-Cal of wrongfully denying overtime pay. As part of the investigation into those allegations, a deputy of the California Labor Commissioner issued subpoenas to Nor-Cal seeking business records. Nor-Cal produced the relevant documents, and the deputy labor commissioner ultimately issued a wage citation for unpaid overtime wages and $900,000 in penalties. Nor-Cal requested an “informal hearing” to contest the citation.

Prior to the informal hearing, the Labor Commissioner issued a deposition subpoena to Nor-Cal’s “Person Most Knowledgeable” on multiple topics related to the issues at the informal hearing. Nor-Cal, however, argued the deposition subpoena was improper. The hearing officer granted the Commissioner’s request to postpone the informal hearing to allow the parties to litigate the validity of the deposition

Buero v. Amazon.com Services, 61 F.4th 1031 (9th Cir. 2023).

subpoena, and issued a petition to compel Nor-Cal to comply with the subpoena. Nor-Cal opposed, arguing that it was an improper use of the Commissioner’s investigatory power because the investigation into Nor-Cal’s business practices ended, and a wage citation had already been issued. The trial court ruled in the Commissioner’s favor, and Nor-Cal appealed.

The California Court of Appeal reversed. The law does not grant the Commissioner the power to issue deposition subpoenas for an informal hearing. Instead, the statute explicitly limits subpoena power for informal hearings to documents only. The Court remanded the case with instructions to deny the Commissioner’s petition to compel a deposition.

Garcia-Brower v. Nor-Cal Venture Group, 2023 WL 2421824 (Cal. Court of Appeal).

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!

Benefits of Certification to the Participant:

• Increase knowledge in all areas of Labor Relations

• Increase your value to your agency

• Increase respect and recognition in the field

• Increase opportunity for upward mobility

• Increase marketability and ability to compete in the job market

• Increase professional credibility

Benefits of Certification to the Agency:

• Increase the level of competency of the individual

• Encourage and improve job performance

• Acknowledge an individual who has developed a high level of professionalism

• Use as an aid for retention and recruitment

Join our upcoming HRCI CertifiedLabor Relations Certification Program Workshops:

1. April 20 & 27, 2023 - Nuts & Bolts of Negotiations

2. May 18 & 25, 2023 - The Public Employment Relations Board (PERB) Academy

3. June 15 & 22, 2023 - Trends & Topics at the Table

INTERESTED?

Visit our website: www.lcwlegal.com/lrcp

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

ON-DEMAND TRAINING

Offering A Brand New On-Demand Class!

Public Service: Understanding the Roles and Responsibilities of Public Employees

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

• The difference between public vs. private sector employment

• The responsibilities and role of a public employee

• Common labor laws for public employees

• Ethical obligations of public servants

• Efficient use of public resources

• Providing customer service

• Creating and maintaining a work environment of respect, dignity, and integrity for the citizens we serve

Who Should Attend?

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

For more information, visit our website here!

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 public safety.

• A preliminary study examining the impact of smoke on solar panels during California’s 2020’s megafires found that there was minimal impact. Despite the haze, sufficient indirect sunlight could still be captured on the panels.

• Through a partnership with the U.S. Forest Service, Yurok and Karuk tribal nations are using traditional land-management techniques including controlled burns to prevent larger wildfires.

• Cal Fire launched its website redesign which is intended to be more user-friendly and provide nearsimultaneous updates during wildfires. The website will also feature an improved search engine and a “main incident map” on the homepage.

• AB 68 was introduced in the California Legislature which seeks to prevent large, master-planned communities in regions at high-risk for fires and floods. It is intended to limit further sprawl into geographic areas at risk.

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

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:

A Battalion Chief was responsible for a car accident while driving the district’s vehicle. The accident caused injuries to another driver and totaled the district vehicle. Because drugs and alcohol were not involved, is it still necessary to do a formal investigation before issuing discipline?

Answer:

It is recommended that the Department conduct an investigation to ensure it has sufficient evidence to support any discipline the Department may choose to make.

On The Blog

2023 Legislative Session: Employment Bills to Watch

By: Megan Lewis

The 2023 legislative session is well underway, and a number of bills have been introduced that could significantly impact California employers if they become law.

However, we anticipate that at least some of these bills will undergo substantial amendment as they work their way through the Legislature, meaning that, if these bills pass, the new laws may have very different provisions than those discussed below.

Assembly Bill 524 – FEHA Protection for Family Caregivers

Assembly Bill (“AB”) would add “family caregiver status” to the list of protected classifications enumerated in the Fair Employment and Housing Act (“FEHA”), which also includes race, sex, sexual orientation, and others.

Specifically, AB 524 would amend the FEHA to prohibit discrimination and harassment against an employee on the basis of their “family caregiver status” meaning their status as “a person who is a contributor to the care of one more family members.”

The bill defines the term “family member” broadly to include an employee’s spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or “any other individual related by blood or whose association with the employee is the equivalent of a family relationship.”

You can read the full text of AB 524 here.

Assembly Bill 518 – Expansion of Paid Family Leave

Currently, employees who pay into the Unemployment Compensation Disability Fund may receive up to 8 weeks of wage replacement benefits in order to take time off work to care for a seriously ill family member, meaning the employee’s child, spouse, parent, grandparent, grandchild, sibling, or domestic partner.

AB 518 would amend the Unemployment Insurance Code to expand the definition of “family member” to include any “individual related by blood or whose association with the employee is the equivalent of a family relationship.”

You can read the full text of AB 518 here

This bill follows recent legislation, which took effect on January 1, 2023, that expanded the California Family Rights Act to allow eligible employees to take leave to care for a “designated person” meaning “any individual related by

blood or whose association with the employee is the equivalent of a family relationship.” The same legislation also allows employees to take paid sick leave pursuant to the California Paid Sick Leave Law to care for a “designated person,” which means a person identified by the employee at the time the employee requests paid sick days. Click here to read more about this legislation.

Assembly Bill 1100 – Four-Day Workweek

AB 1100 states only, “It is the intent of the Legislature to subsequently amend this measure to include provisions that would establish a four-day workweek.” It is unclear how the four-day workweek will be defined once the bill is amended. However, a previous iteration of the bill provided that employees would be entitled to be compensated at an overtime rate (1.5 times the employee’s regular pay rate) for all hours worked beyond 32 in a given workweek.

You can read the full text of AB 1100 here.

Senate Bill 616 – Paid Sick Leave Increase

Senate Bill (“SB”) 616 would amend the Labor Code to increase the amount of paid sick leave employees are entitled to accrue, use, and carry over for use in subsequent years.

Currently, employers must provide employees with, and allow them to use, no fewer than 24 hours (or 3 days) of paid sick leave per year (subject to the accrual cap discussed below). SB 616 would increase that amount to not fewer than 56 hours (or 7 days) and would also allow eligible employees to carry over 56 hours (or 7 days) of paid sick leave into the next year of employment (whereas employees may currently carry over 24 hours or (3 days).

Finally, existing law allows employers to cap employees’ accrual of paid sick leave at 48 hours (or 6 days), meaning that, if an employee has accrued 48 hours (or 6 days) of paid sick leave, the employee will not accrue more paid sick leave until they use some that has already accrued. SB 616 would raise this accrual cap to 112 hours (or 14 days).

You can read the full text of SB 616 here.

Senate Bill 731 – Remote Work as a Reasonable Accommodation

SB 731 would amend the FEHA to authorize an employee with a qualifying disability to initiate a renewed reasonable accommodation request to perform their work remotely if certain requirements are met.

Under SB 731, a “qualifying disability” means “an employee’s medical provider has determined that the employee has a disability that significantly impacts the employee’s ability to work outside their home.” If an employee who has such a qualifying disability renews a previous request to work remotely, the employer would be required to grant that request if all of the following requirements are satisfied: (1) the employee requested and was denied remote work as a reasonable accommodation before March 1, 2020; (2) the employee performed the essential functions of their job remotely for at least 6 of the 24 months preceding the renewed request; and (3) the employee’s essential job functions have not changed since the employee performed their work remotely. However, the employer is not required to provide remote work as a reasonable accommodation if the employee can no longer perform all of their essential job functions remotely.

SB 731, if enacted, would be a significant departure from the standard interactive process in which employers engage with employees seeking a reasonable accommodation. Employers are currently not obligated to choose any particular accommodation or the accommodation preferred by the employee.

You can read the full text of SB 731 here.

We will continue to monitor these bills as they make their way through the Legislature and potentially to the Governor’s desk. Please check LCW’s blog for updates, which we will provide as soon as they become available.

View the full blog here.

Liebert Cassidy Whitmore