Fire Watch: March 2024

Fire Watch

discipline

Court Says Detention Officer’s Disciplinary Appeal Was Premature.

Nathan Jackson worked as a detention officer for the Los Angeles Police Department. The City served Jackson with a notice of intent to suspend him for 10 days. In the final notice, all charges were upheld and remained substantially the same as in the initial notice, except that the charge that Jackson reported “unfit for duty” was replaced with the charge that Jackson did not wear his official Department-approved uniform.

Following a hearing, the Board of Civil Service Commissioners upheld the suspension and sustained each count supporting it. Jackson then filed a petition for writ of administrative mandate in the superior court alleging Skelly violations and seeking to have his suspension set aside and backpay awarded. The superior court found that the evidence supported all but one of the charges. The court found the record was unclear regarding whether the standards of one of the charges was met. Also, the court was concerned with Skelly violations since one of the charges was changed in the final notice. Therefore, the court vacated the suspension and ordered the Board to reconsider its decision based on these concerns. Jackson appealed.

The California Court of Appeal dismissed the appeal, finding that it was premature. Because the trial court ordered the Board to reconsider its findings, further appeal rights would be triggered if the Board imposed different discipline, or declined to award Jackson any backpay. Also, Jackson could file a new or supplemental petition for writ of mandate based on the Board’s new decision, and if Jackson was still dissatisfied, he could appeal from that judgment. To allow the appeal to proceed now would result in an inefficient, piecemeal disposition.

The Court dismissed Jackson’s appeal as premature.

Jackson v. Board of Civil Service Commissioners of the City of Los Angeles (City of Los Angeles), 2024 Cal.App LEXIS 77.

new to the Firm!

Caroline Cohen is an Associate in our San Francisco office, where her extensive experience in employment law and litigation makes her a valuable asset to our clients.

Ashley Riser is an Associate in our Sacramento office, where she specializes in providing expert advice and counsel in labor and employment law matters.

Retaliation

Whistleblower Need Not Prove Employer’s Retaliatory Intent.

The whistleblower-protection provision of the Sarbanes-Oxley Act of 2002 prohibits covered employers from discharging, demoting, suspending, threatening, harassing, or in any other manner discriminating against an employee because of protected whistleblowing activity.

In 2011, Trevor Murray was a research strategist at securities firm UBS. Murray worked for UBS’s commercial mortgage-backed securities (CMBS) business. Murray reported on CMBS markets to current and future UBS customers. Federal Securities and Exchange Commission (SEC) regulations required him to certify that he independently produced his reports and his reports accurately reflected his own views.

Two leaders of the CMBS trading desk pressured Murray to skew his reports to be more supportive of their business strategies. They instructed Murray to clear his research articles with the trading desk before publishing them. Murray advised his direct supervisor, but the pressure from the trading desk only increased. Murray’s supervisor recommended to his own supervisor that Murray be removed from UBS’s head count, or alternatively, transferred to a trading desk position where he would not have SEC certification responsibilities. When the trading desk declined to accept his transfer, and despite a strong performance evaluation, Murray was fired.

Murray filed a complaint with the US Department of Labor (DOL) alleging that his termination violated §1514A of Sarbanes-Oxley Act because he was fired in response to his internal reporting about fraud on shareholders. When the DOL did not issue a final decision on his complaint within 180 days, Murray sued in US District Court. The jury found that Murray had established his §1514A claim and that UBS had failed to prove, by clear and convincing evidence, that it would have fired Murray even if he had not engaged in protected activity.

UBS appealed the decision, and Murray crossappealed for back pay, reinstatement, and attorney’s fees. A panel of the US Court of

Appeals for the Second Circuit vacated the jury’s verdict and remanded for a new trial. The appellate court concluded that the Sarbanes-Oxley Act’s anti-retaliation provision requires a whistlebloweremployee to prove “retaliatory intent”, and that the trial court failed to so instruct the jury. The US Supreme Court granted certiorari because the Fifth and Ninth Circuit Courts had rejected the retaliatory intent requirement. The USSC reversed to align with the Fifth and Ninth Circuits.

The Court held that when whistleblowers invoke the protections of the Sarbanes-Oxley Act, they bear the initial burden of showing that their protected activity was a contributing factor in the unfavorable personnel actions at issue. But the whistleblower need not prove that the employer acted with retaliatory intent. The burden then shifts to the employer to show that it “would have taken the same unfavorable personnel action absent the protected activity.”

The Court found that the term “discriminate” did not impose a requirement that a whistleblower prove the employer’s “retaliatory intent” or animus. The Court reasoned that burden-shifting frameworks have long provided a mechanism for getting at intent in employment discrimination cases, and the contributing-factor burden-shifting framework is meant to be more lenient than most. Finally, the Court rejected UBS’s argument that without a retaliatory intent requirement, innocent employers will face liability for legitimate, nonretaliatory personnel decisions. The Court stated that the employer may avoid liability by demonstrating by clear and convincing evidence that it would have taken the same personnel action in the absence of the protected behavior.

Murray v. UBS Securities, LLC., 217 L.Ed 2nd 343 (2024).

Note:

One of California’s whistleblower statutes also requires an employer to submit “clear and convincing” evidence that it would have taken the same unfavorable personnel action in the absence of the protected behavior. (Labor Code sections 1102.5- 1102.6.) The USSC gave this advice to employers to determine if this standard has been met: The right way to think about that kind of same-action causation analysis is to change one thing at a time and see if the outcome changes. The question is whether the employer would have retained an otherwise identical employee who had not engaged in the protected activity.

laborrelations

PERB Finds Retaliation But No Denial Of Right To Union Representation.

Sean Kane worked as a pharmacist for the State of California (California Correctional Health Care Services) (CCHCS) at California State Prison Corcoran (Corcoran). Kane was also an AFSCME, Local 2620 job steward. Kane reported to Michael Conner, the Pharmacist-In-Charge at Corcoran. Conner reported to CCHCS Chief Executive Officer Celia Bell.

Between January 2020 and November 2020, Conner repeatedly advised staff to wear a face mask and stay six feet away from other staff in accordance with COVID-19 restrictions.

Kane filed a grievance alleging that Conner had violated the parties collective bargaining agreement by discontinuing pharmacists’ standby assignments, thereby eliminating their ability to earn extra pay, and instead using voluntary callback procedures. Bell denied the grievance.

On November 4, 2020, Kane sent identical information requests in separate e-mails to Conner, Labor Relations Advocate Elane Jalil, and Personnel Specialist Helen Ybarra. In each e-mail, Kane identified himself as an AFSCME steward and asked if any Corcoran pharmacists had received standby pay since September 14.

After exchanging several emails on November 3 about Kane’s efforts to purchase a needed medication, Conner asked Kane to meet with him in his office on November 4. Kane arrived and remained standing in Conner’s doorway. As Conner attempted to discuss how to acquire

the needed medication, Kane interrupted and demanded responses to the e-mails Kane had sent in his capacity as an AFSCME steward regarding standby assignments. This back and forth continued, before Kane demanded union representation. Conner told Kane that their meeting was not disciplinary, and that no representative was necessary. Kane continued to talk over Conner and request representation, at which point Conner told Kane that his actions may constitute insubordination.

Kane, still in the doorway, called for another employee to join as a witness. Conner then stood up, walked to the doorway, and told the other employee to remain at her workstation. Kane turned back toward Conner, leaned forward and curled his fingers. Conner, noticing that Kane’s face mask was too low to cover his mouth and nose, asked Kane to step back and pull up his mask. Kane pulled up his mask but did not immediately step back. Conner then said that Kane should return to his workstation. Kane complied.

On November 5, Corcoran administrators convened a workplace violence committee meeting and decided that Kane would be temporarily reassigned. When Kane was being escorted to his new work location, Kane passed Conner’s office. Kane kicked the 100-pound steel office door, slamming the door shut and startling Conner.

Following an investigation, CCHCS issued Kane a Notice of Adverse Action (NOAA), dismissing him for allegedly violent conduct on November 4 and 5. Kane appealed to the State Personnel Board (SPB). The SPB ruled that Kane’s conduct, while inappropriate, was not violent as CCHCS alleged, and lowered the discipline to a onemonth suspension.

AFSCME filed an unfair practice charge against CCHCS, alleging that CCHCS unlawfully denied Kane’s request for union representation during the November 4 discussion at Conner’s office, and that CCHCS had terminated Kane in retaliation for his protected conduct. PERB’s Office of the General Counsel (OGC) issued a complaint. Following a hearing before an administrative law judge (ALJ), both parties filed exceptions.

PERB found that AFSCME failed to establish that Conner unlawfully denied AFSCME or Kane representational rights. PERB noted that Conner began the meeting with a discussion of routine work matters. If Conner and Kane had discussed the specifics of the pending information requests relevant to the grievance, that would have triggered representational rights. But nothing required Conner to discuss the information requests during a brief, work-related meeting Conner had called, and Conner declined to do so when Kane mentioned them. PERB also found that it was a closer question whether representational rights had been triggered when Conner told Kane that his actions may constitute insubordination—a comment that came after the employee first demanded union representation. Nevertheless, after Kane called the other employee to join the meeting, Conner told the employee to stay at her workstation, asked Kane to comply with COVID-19 protocols, and ended the meeting without any investigative questions or further mention of insubordination. None of these events triggered representational rights.

On Kane’s retaliation claim, PERB found Kane’s protected activity was at least a substantial or motivating cause of the decision to discipline. In support of that finding, PERB noted that Kane’s protected requests for information occurred within days before his discipline, and that management exaggerated the facts of the Kane’s misconduct.

PERB found insufficient record evidence to determine what level of discipline CCHCS would have imposed absent Kane’s protected activities. PERB was particularly interested in evidence regarding the disciplinary penalties for other employees, who had no previous adverse actions – like Kane.

PERB remanded the matter for mediation and, absent a settlement, for further proceedings to determine what level of discipline CCHCS would have imposed absent the employee’s protected activities.

State of California (California Correctional Health Care Services) (2024) PERB Dec. No. 2888-S.

Note:

This case also discusses the collateral estoppel effect of the State Personnel Board’s decision on the UPC.

first amendment

Prison Official Substantially Burdened Inmate’s Religious Freedom.

Inmate DeWitt Lamar Long, a practicing Muslim, is imprisoned at a correctional facility. Long was transferred to a high-security prison due to repeated conflicts with a Sergeant regarding meals that did not accommodate Long’s religious requirements. Soon after he was transferred, Ramadan began. During Ramadan, Long fasted throughout the day and could not break the fast until sundown, at approximately 7:30pm. Long’s evening meals were delivered to him each day at approximately 3:30pm. By the time Long could eat, the food was cold, congealed, and unsafe under prison food-safety guidelines. Long was sometimes unable to eat the meal at all.

Among other claims, Long filed a lawsuit that alleged that the timing of the delivery of his meal during Ramadan violated his First Amendment protections on the free exercise of religion. The district court granted the prison officials’ motion for summary judgment on Long’s free exercise claim, on the grounds that food “served cold, while unpleasant, does not amount to a constitutional deprivation.” Long appealed.

The Ninth Circuit Court of Appeals reversed and remanded. As a preliminary matter, the Court noted that the basis for the district court’s ruling was an Eighth Amendment case, and was not controlling on Long’s First Amendment claim. The Court then determined whether the timing of the meal delivery substantially burdened Long’s free exercise of his religion. A substantial burden exists when the state places “substantial pressure on an adherent to modify his behavior and to violate his beliefs.” A prison practice may impact religious exercise indirectly by encouraging an inmate to do that which he is religiously prohibited or discouraged from doing. Courts have consistently held that the failure to provide food consistent with a prisoner’s sincerely held religious beliefs meets the substantial burden standard.

The Court took judicial notice of the fact that some food is not safe to eat if it has been sitting at room temperature for hours. The timing of the meal delivery substantially burdened Long’s free exercise of religion. The Ninth Circuit remanded the case for further review.

Long v. Sugai, 91 F.4th 1331 (9th Cir. 2024).

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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.

• The Friends of the City of Santee Firefighters Association are proposing a November ballot measure for a temporary sales tax to bolster revenues to fund the Department.

• Last year, California firefighters conducted prescribed burns covering over 50,000 acres of Angeles National Forest, with the goal of reducing wildfires this fire season.

• Fire Departments throughout the state are developing plans to ensure uniforms and protective gear are suitable for female firefighters and avoid potential issues that ill-fitting gear can cause.

Consortium Call Of The Month

Members of Liebert Cassidy Whitmore’s employment relations consortiums may speak directly to an LCW attorney free of charge regarding questions that are not related to ongoing legal matters that LCW is handling for the agency, or that do not require in-depth research, document review, or written opinions. Consortium call questions run the gamut of topics, from leaves of absence to employment applications, disciplinary concerns and more. This feature describes an interesting consortium call and how the question was answered. We will protect the confidentiality of client communications with LCW attorneys by changing or omitting details.

Answer:

An employer of five or more employees has an obligation to provide reasonable accommodations to applicants and employees with disabilities. Under state and federal anti-discrimination laws, a disability is generally defined as a physical or mental condition that limits (CA law), or substantially limits (federal law), a major life activity.

Question:

After receiving a conditional offer, a firefighter applicant injured a wrist and is currently in a cast. Are we allowed to rescind their offer and hire someone who can begin immediately?

Although the federal Americans with Disabilities Act generally excludes disabilities of short duration with little or no long-term impact, the California Fair Employment and Housing Act (FEHA) does not completely exclude shortterm disabilities. Instead, the FEHA regulations state that “disability” does not include “conditions that are mild, which do not limit a major life activity, as determined on a case-by-case basis. These excluded conditions have little or no residual effects, such as the common cold; seasonal or common influenza; minor cuts, sprains, muscle aches, soreness, bruises, or abrasions; non-migraine headaches, and minor and non-chronic gastrointestinal disorders.” (2 Cal.Code Regs section 11065(d)(9)(B).)

Here, the city knows that the applicant who received the conditional offer is wearing a cast due to a wrist injury. The cast and the injury limit the applicant’s ability to move, and perhaps limit other major life activities. The city should initiate the interactive process with the applicant to determine if the city can reasonably accommodate the delay in allowing the wrist to heal. A second interactive process may be necessary even after the cast is removed if there is a residual injury that still limits a major life activity.

On The Blog

Looking Back (and Forward) at COVID-19 and the Interactive Process

By: Kelsey Ridenhour

Though it is tempting to move on from the pandemic and to try and forget the deadly illness that started it, COVID-19 looks like it is here to stay in one form or another. As updated on February 16, 2024, the California Department of Public Health reported a 7-day weekly average of 1,882 hospital admissions and 3.2% of deaths in the state attributable to COVID-19, with a COVID-19 test positivity rate of 7.1%. In comparison, influenza was at a 7-day weekly average of 433 hospital admissions, .2% of deaths, and a test positivity rate of 6.5%. Still, these numbers paint a rosy picture when compared to the height of the pandemic and for many, COVID-19 is now an afterthought as we return to offices, movie theaters, and our “normal” lives.

But as a new normal sets in, it is probably a good idea for employers to recognize and consider the following lasting effects of the COVID pandemic on their workforce.

Long COVID as a Disability

For some, living with Long COVID is the new normal. In a September 2023 Data Brief published by the Centers for Disease Control and Prevention (“CDC”), survey data from 2022 showed that 6.9% of adults in the nation have had Long COVID at least once and 3.4% of adults actively had Long COVID at the time of the survey. While these percentages seem small, it is important to remember that the workforce in 2022 was over 160 million strong. Extrapolating the CDC’s survey results to that figure means that about 5.44 million members of the workforce had Long COVID. Other gathered statistics have that figure as high as 16.3 million workers.

Long COVID symptoms can last weeks, months, or even years after contracting COVID-19. A non-exhaustive list of common symptoms includes tiredness and fatigue, difficulty thinking (referred to as “brain fog”), shortness of breath, headache, dizziness, heart palpitations, chest pain, cough, joint or muscle pain, depression or anxiety, fever, and loss of taste or smell. Some less common symptoms can include damage to organs, such as the heart, lungs, kidneys, skin, and brain, or autoimmune conditions. It is even possible to develop other health conditions such as diabetes, heart conditions, blood clots, or other neurological conditions following COVID-19.

In July 2021, the United States Department of Health and Human Services Office for Civil Rights recognized that the symptoms of Long COVID can, under qualifying circumstances, be considered a disability under the Americans with Disabilities Act (the “ADA”). To qualify as a disability under the ADA, Long COVID must cause a physical or mental impairment that substantially limits one or more major life activities, such as walking, seeing,

hearing, or speaking. As a result, Long COVID is not always considered a disability, and an individualized assessment is necessary to determine whether a symptom substantially limits a major life activity.

In California, the Fair Employment and Housing Act (the “FEHA”) provides an even broader definition of disability. Though the ADA’s definition of disability requires that it “substantially limits” a major life activity, the FEHA definition requires only that it “limits a major life activity.” See Cal. Gov. Code § 12926. With potentially millions of workers still suffering from the effects of Long COVID — which may or may not qualify as a disability based on the circumstances — it is a good time to review what the law requires of employers to avoid disability discrimination when requiring employees to come back to the office.

The Interactive Process and Telework as a Reasonable Accommodation

When asking employees with disabilities to return to the office, California employers need to remember that they have a continuing obligation to engage in a “timely, good faith, interactive process with the employee . . . to determine effective reasonable accommodations.” (Gov. Code, § 12940, subd. (n).) Whether by the employee’s request or when the employer has knowledge of an employee’s disability, an employer must engage in the interactive process. This is a “two-way” street that requires both the employer and the employee to participate. While the interactive process has several nuances, at its most basic level it requires the employer and employee to work together to: (1) analyze the job position’s functions to establish essential and nonessential tasks, (2) identify precise limitations of the position, (3) find possible accommodations and assess each, (4) consider the preference of the employee, and (5) implement the accommodation that is most appropriate for employee and employer, while giving primary consideration to the employee’s preference unless another equally effective accommodation may be used instead. Employers should document their efforts throughout.

Following the pandemic, one rising requested accommodation is telework. Our firm has discussed telework before, and readers are encouraged to read our past guidance, available here, here, and here. As early as 2003, the United States Equal Employment Opportunity Commission (“EEOC”) recognized telework as a possible reasonable accommodation. So while telework as a reasonable accommodation is hardly new, the pandemic brought it into renewed focus and tested its limits. For some, this meant suspending policies that restricted or forbade telework and building infrastructure to support remote workers; for others, it meant temporarily excusing certain essential functions to allow office closures. Some employees even parlayed their newfound telework freedom into out-of-state, or in the rare case out-of-county, work locations.

As a result, the interactive process factual landscape may have shifted significantly during the pandemic and employers should take care to reassess whether telework is a reasonable accommodation in light of what happened during pandemic conditions. Luckily, the EEOC has provided some guidance on COVID-19’s impact on the interactive process. Notable highlights include that telework is not an automatic reasonable accommodation just because the employer had authorized it in order to prevent the spread of COVID-19; that the temporary excusal of one or more job position essential functions to allow telework did not permanently eliminate those essential functions; and that telework may pose an undue hardship on the employer even where the employer previously allowed it. Similarly, employees may be able to point to telework allowed during the pandemic as “proof of concept” that telework does not impose an undue hardship on employers or that certain job functions are not truly essential. Central to each of these positions is that the interactive process is fact-specific.

So, if you are an employer who has had thoughts about requiring a return to office, I’d suggest you keep the requirements of the ADA and the FEHA in mind. Long COVID has affected a significant amount of the workforce and may continue to affect even more, so be on the lookout for any employees that may need a reasonable accommodation to counter that condition. And if you do learn an employee needs a reasonable accommodation, be prepared for new pandemic-related facts to play an increasing role in your interactive process analysis.

View the full blog here.

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