Fire Watch
firm victories
Partner James Oldendorph and Associate Victor Gonzalez Prevail
Over Fire Prevention Specialist’s Disability and Age Discrimination Claims.
In December 2019, at 64 years of age, a fire department employee retired from his city employment with approximately 27 years of service credit, having worked the last 19 of those years as a fire prevention specialist (FPS) for the fire department (Department). A little over a year later, he filed an administrative complaint with the Department of Fair Employment and Housing (DFEH, now Department of Civil Rights) alleging city had failed to accommodate his knee disability and constructively discharged him because his workload had been increased to the point he was “eventually . . . unable to keep up with” it.
The FPS contended that he was constructively discharged based on evidence that: 1) he was assigned 600 annual inspections in 2017, 2018, and 2019, which he asserted were excessive as compared to other employees; 2) his supervisor made comments about retirement and said that the FPS job was for young people; and 3) other employees frequently asked him about retirement.
After receiving a right to sue letter, the FPS sued the city, asserting claims under the California Fair Employment and Housing Act (FEHA) for discrimination on the bases of age and physical disability, and for failure to accommodate a physical disability.
The trial court granted the city’s summary judgment motion. The court rejected the discrimination claims because there was no triable issue as to whether the FPS had been constructively discharged or had incurred any other type of adverse employment action. The court found the FPS’s failure to accommodate claim was time-barred because he missed the deadline to file his
administrative complaint for his 2017 knee injury. The FPS appealed.
On appeal, the FPS contended that there were triable issues as to his constructive discharge theory. The California Court of Appeal disagreed. The Court found the FPS failed to produce evidence that his work conditions were intolerable. For example, the FPS had admitted he was able to handle his workload and there was no evidence he was ever threatened with discipline for failing to complete his inspections. The court stated that no reasonable jury could find the comments about his retirement created an intolerable working condition.
The FPS also contended that his reasonable accommodation claim should go to trial because the city failed to accommodate him. The Court again disagreed. When the FPS returned to work following knee surgery in April 2017, he denied any need for accommodation, and did not seek or need any accommodation thereafter. The Court stated that the reasonable accommodation claim also failed because the FPS did not timely file his administrative complaint. The California Court of Appeal affirmed the trial court’s decision in favor of the city.
Fire Prevention Specialist v. City (June 28, 2024, California Court of Appeal).
Partner Geoffrey Sheldon and Associate Alex Wong Convinced Appellate Court to Uphold City’s Summary Judgment Motion In Police Officer’s FEHA Case.
A probationary police officer was injured while investigating a traffic collision. He was off work for two weeks. He returned with discomfort in his spine and leg, and various work restrictions, including: no standing, walking, sitting, or bending at the waist for more than
20 cumulative minutes; no lifting, carrying, pushing or pulling anything more than five pounds; and lying down for 20 minutes each hour. The officer was using crutches at the onset of his injury. The City could not reasonably accommodate the work restrictions and placed the officer on temporary total disability leave.
While the officer was on leave, the city received information that the officer might be playing in a basketball league. The City investigated the officer for possible fraud. The investigator found that the officer was walking without his crutches, carrying heavy items while walking back and forth, and was climbing a chain link fence. When the officer sought to return to work, the City notified him that he was being released from his probationary position because he participated in activities that were inconsistent with his work restrictions.
The officer then sued the City for violating the Fair Employment and Housing Act (FEHA). The officer alleged the city terminated him because of his disability, and in retaliation for his request for reasonable accommodation. He further alleged the City failed to: accommodate him; engage in the interactive process; and prevent discrimination and retaliation.
The City moved for summary judgment arguing that it had a legitimate reason to fire the officer due to the results of the fraud investigation. The City further argued the officer could not prove at least one element of each of his causes of action. The trial court granted the City’s motion.
On appeal, the officer argued that several triable issues of material fact existed that should have prevented the trial court from granting the City’s motion. The California Court of Appeal sided with the City, concluding that the trial court correctly dismissed the case.
The appellate court concluded that the officer did not raise a triable issue as to his causes of action for discrimination, retaliation, or failure to prevent discrimination or retaliation because he did not have evidence that his disability played a motivating role in his termination. Also, the officer did not demonstrate a triable issue that the City’s reasons for his termination were pretextual.
The officer relied on a case that did not apply to his situation on his failure to accommodate claim. The officer could not raise a triable issue as to his cause of action for failure to participate in the interactive process because city provided the officer with leave as an accommodation.
Finally, the officer did not identify any other reasonable accommodations that should have been provided to him.
Police Officer v. City (June 28, 2024, California Court of Appeal).
Associate Attorney Tony G. Carvalho Wins Arbitration Ruling Upholding Police Officer’s Termination.
In 2021, a police officer was dispatched to a domestic disturbance call. Upon arrival, the police officer encountered the parents of a young woman who was intoxicated and experiencing a mental health crisis. The officer offered resources but did not believe her to be a danger to herself or others and so declined to take her to a mental health facility. The officer waited until the woman departed her parents’ home with a ride from an acquaintance.
The next day the officer located the young woman on social media and contacted her. That contact led to a flurry of communications that quickly became sexually provocative, and persisted over several months. Eventually the two met one night and had sex after the young woman had consumed several drinks of alcohol. When the young woman’s parents discovered this, they called the department and an IA investigation followed. The DA conducted a criminal investigation for potential rape charges but declined to prosecute.
The IA investigation report sustained findings of violations of department policy and recommended termination. The officer appealed the termination and the matter went before an arbitrator.
The family felt discouraged by the DA’s refusal to prosecute. Attorney Carvalho worked tirelessly to cultivate trust with the young woman and her family and they eventually testified at the arbitration hearing. The arbitrator found that a preponderance of the evidence showed that the officer violated multiple department policies, the applicable MOU, and committed a “sexual assault” according to Senate Bill 2’s proscriptions of “serious misconduct.” The arbitrator upheld the department’s decision to terminate.
Senior Counsel Megan Atkinson Persuades Commission to Uphold Police Officer’s Termination for Insubordination.
A city terminated a police officer for insubordination after the officer intentionally failed to appear for an interrogation regarding alleged workers’ compensation fraud. A hearing officer recommended reducing the discipline to a 10-day suspension, explaining that the officer’s repeated failure to appear was equivalent to missing a meeting. Following oral argument, the civil service commission determined that termination was warranted.
Senior Counsel Atkinson made several successful arguments. First, the hearing officer had found that all of the allegations in the termination notice were true. The department had issued several lawful orders to the officer to appear, the officer knowingly failed to obey, and was therefore insubordinate.
Second, the hearing officer’s recommendation to reduce the discipline undermined the department’s ability to investigate officer misconduct. California law enforcement agencies have the right to order officers to appear for an interview and to discipline them for failing to comply. If a department could not investigate its own officers, it would erode the public’s trust in law enforcement.
Third, intentionally failing to appear for an administrative interview regarding workers’ compensation fraud is a significant offense. The California legislature determined that workers’ compensation fraud was so important that it is excluded from the statute of limitations in the Police Officer’s Procedural Bill of Rights.
Finally, Senior Counsel Atkinson argued that missing a meeting was completely different from the intentional insubordination in this case. An employee who oversleeps and fails to report for duty is not akin to one who intentionally refuses to appear for an administrative interview.
The commission agreed and upheld the officer’s termination.
wage and hour
Public Entities Are Exempt
From California Meal - Rest Break Laws, and PAGA Penalties.
Alameda Health Systems (“AHS”) is a public agency established to provide health services. AHS was established under California Health and Safety Code Section 101850, as a “hospital authority” – a government entity separate and apart from the County.
In March 2021, two AHS employees brought a class and Private Attorney’s General Act (“PAGA”) representative action against AHS. They asserted violations of the California Labor Code on behalf of themselves and others for: 1) failures to provide off-duty meal and rest periods, keep accurate payroll records, provide accurate itemized wage statements, pay wages, timely pay wages; and 2) civil penalties under PAGA.
In the trial court, AHS moved to dismiss the employees’ complaint, arguing under Johnson v. Arvin-Edison Water Storage District (2009) 174 Cal.App.4th 729, 736, that absent express words to the contrary, public agencies are not covered by California Labor Code’s provisions. AHS also argued that as a public agency, it was not subject to PAGA penalties because it was not an “employer” and because PAGA damages are akin to punitive damages, which cannot be awarded against public agencies. The trial court agreed. The employees appealed.
The California Court of Appeal reversed most of the lower court’s decision, thus permitting most of the employees’ claims to go forward. AHS filed a petition for review in the California Supreme Court.
The California Supreme Court reversed the Court of Appeal’s decision, holding that the employees’ meal/rest break, PAGA, and other Labor Code claims were inapplicable to AHS and other public agencies. The Court first clarified that California meal and rest break laws do not apply to public agencies, because the statutory language, context and history show that the legislature intended to exclude public
employers. The Court also wrote that if the legislature intended meal and rest break laws to apply to government employers, it would have expressly stated so in the statute.
The PAGA statute defines “employer” as any “person” as defined in Labor Code section 18. Labor Code section 18 defines “person” as “any person, association, organization, partnership, business trust, limited liability company, or corporation.” Because public entities are not listed in that definition, the Court concluded that public employers are not subject to PAGA, and that no PAGA penalties may be pursued against public employers. The Court found that PAGA penalties are akin to punitive damages and that the costs public entities could incur if subject to PAGA suits would be an unjustified “drain on public funds.”
Finally, the Court clarified that Labor Code section 220(b) exempts local government employers from the requirements of some wage payment laws. The Supreme Court rejected the lower court’s reasoning that AHS was not a municipal corporation under Labor Code 220(b). The Supreme Court held that “municipal corporation” should be read broadly to encompass all government employers (except the State, which is covered by section 220(a)).
Stone v. Alameda Health System, 2024 Lexis 4425 (Cal Supreme Court (2024).
Note:
This decision reinforces the principle that public entities are not subject to Labor Code provisions unless the Labor Code provisions expressly reference public entities. The phrase “municipal corporation” should be read broadly to apply to all local governmental entities.
Pilots Found Exempt From FLSA Overtime Pay As “Highly Compensated Employees”.
Five pilots for the Las Vegas Sands Corporation unsuccessfully appealed a district court’s ruling that they were exempt from the Fair Labor Standards Act’s (FLSA’s) overtime pay requirements.
The FLSA generally requires that covered employees receive overtime pay when they work more than 40 hours per week. Employees are exempt from FLSA overtime rules as Highly-Compensated Employees (HCE’s), however, if they earn total annual compensation of at least $107,432 (increased to $132,964 effective 7/2024), and customarily and regularly perform any of the exempt duties or responsibilities of an executive, administrative, or professional employee. The HCE exemption applies only to employees whose primary duty includes performing office or non-manual work.
The five pilots’ primary duties included ensuring the safety of passengers, crew, and aircraft, which involved complex decision-making and discretionary actions. The pilots were also required to be on call for pop-up flights, typically scheduled 24 hours in advance, and had to respond to emails regarding flight notifications within 30 minutes. While on call, they participated in various personal activities and secondary employment. Rarely did the pilots get a call for a pop-up flight.
The pilots referred to a 2018 U.S. Department of Labor (DOL) opinion letter that found that helicopter pilots
were not qualified for any overtime exemption because flying a helicopter was manual work.
The district court ruled in favor of Sands. The Ninth Circuit of the U.S. Court of Appeals agreed. The pilots were HCE’s who were exempt from the FLSA overtime because they made over $107,432 per year and performed primarily non-manual labor. The Court was not persuaded by the 2018 DOL opinion letter because: 1) the conclusions in the DOL letter were not supported by facts; and 2) the Sands pilots made complex, discretionary decisions focused on ensuring the safety of the passengers, crew, and the airplane.
Even if the pilots had not qualified for the HCE exemption, the Court found that the pilots’ on call time was not work time because the pilots could and did participate in personal activities. If a pilot said they were unavailable for a pop-up flight, the scheduler moved to the next pilot on the list. The pilots did not receive compensation for the on call time, which also indicated that the time was not work. The Ninth Circuit affirmed the district court and dismissed the case.
Kennedy v. Las Vegas Sands Corp., 2024 US App Lexis 19122 (9th Cir. 2024).
Note:
Although few public employees work as pilots, this case is still instructive on two areas of high FLSA liability: 1) whether an employee is exempt from overtime; and 2) when on call time is compensable work time. The fact that the Ninth Circuit did not give any deference to a DOL opinion letter means that public agencies should be wary of relying on them.
FRSA’s “Clear and Convincing” Standard Requires Employer to Prove It Would Have Terminated An
Employee Regardless Of Protected Activity.
An employee of BNSF Railway Company (BNSF) sued his employer to challenge his termination under the antiretaliation provision of the Federal Railroad Safety Act (FRSA).
The employee claimed that he was fired for performing an air-brake safety test. The district court noted that BNSF had conceded that the employee’s refusal to stop performing the air-brake test contributed to its decision to discharge him. The court nonetheless concluded that BNSF was entitled to an affirmative defense by showing that the air-brake test “contributed very little” to BNSF’s decision. The employee appealed.
The U.S. Court of Appeals for the Ninth Circuit concluded that the district court failed to follow the text of the FRSA, which prohibits the discriminatory discharge of an employee due even “in part” to the employee’s refusal to violate, or assist in violating, a railroad safety law, rule, or regulation. The Ninth Circuit also concluded that the district court’s decision was inconsistent with relevant case law.
In the FRSA, the final stage of burden-shifting framework allows an employer to defeat a claim for unlawful retaliation if the employer proves, by clear
and convincing evidence, that it would have taken the same unfavorable personnel action absent the protected activity.
The Ninth Circuit found that the proper inquiry under the FRSA is not whether the protected activity “contributed very little” to the firing; the proper inquiry is whether BNSF would have fired the employee regardless of whether he had conducted an airbrake test.
The Ninth Circuit said that the clear and convincing standard requires the employer to prove what it “would have done,” not merely what it could have done. The Ninth Circuit further explained that meeting this standard is a “steep burden,” particularly when the employer concedes that the protected activity contributed to the decision to terminate the employee.
The Ninth Circuit vacated and remanded the case to the district court.
Parker v. BNSF Railway Company, 2024 US App Lexis 20049 (9th Cir. 2024).
Note:
The FRSA does not apply to public employers, but California Labor Code section 1102.5 has a similar “clear and convincing” standard for whistleblower retaliation cases. When deciding whether it is lawful to terminate an employee who committed misconduct, but who also participated in protected activity, public employers should assess whether they have clear evidence not merely that they could have fired the employee absent the employee’s protected activity, but rather that they would have fired the employee.
discrimination
California Supreme Court Finds:
A Coworkers’ Single Racial Epithet May Support Harassment; An Employer’s Deficient Response To Complaints May Support Retaliation.
Twanda Bailey worked at the San Francisco District Attorney’s Office since 2001. In 2011, Bailey worked with Saras Larkin in the records room. Bailey is black. Larkin is Fijian/East Indian.
On January 22, 2015, Larkin told Bailey that she saw a mouse run under Bailey’s desk. Bailey jumped out of her chair. Larkin then used the most severe racial slur in reference to Bailey.
Bailey told three coworkers what Larkin had said. Bailey was crying and upset. Bailey did not immediately complain to the Department of Human Resources (DHR) because she feared harassment and retaliation. Larkin was best friends with the personnel officer.
Bailey eventually met with a manager and the personnel officer to complain. Larkin did not admit to making the slur. The manager counseled Larkin and warned that the use of the alleged language was “unacceptable.” The manager documented the meetings with Bailey and Larkin and provided a written summary to the personnel officer. The personnel officer was the HR representative charged with reporting incidents of harassment to DHR, but she did not file a complaint as City policy required.
On March 23, Bailey asked the personnel officer for a copy of the complaint regarding the January 22 incident. The personnel officer said no complaint existed. When Bailey requested that a complaint be filed, the personnel officer refused. The personnel officer stated that Bailey should not have told her coworkers about the incident with Larkin, adding that, by doing so, Bailey could cause a hostile work environment for Larkin.
After the March 23 meeting, Bailey noticed a shift in the personnel officer’s behavior toward her, including mocking Bailey’s workers’ compensation claim. Bailey testified that this conduct was
ongoing and occurred daily, although she did not believe it was racially motivated. In April, DHR received a report regarding Bailey’s allegations against Larkin, and in May, Bailey formally reported that Larkin harassed her based on race. She also claimed that the personnel officer retaliated against her after their March 23 meeting.
Bailey’s performance review in July rated her as “Met Expectations,” similar to previous years. The review noted areas for improvement in attendance and responsiveness to supervisors. Bailey disagreed with this assessment, stating that her absences and challenges stemmed from the stress caused by her interactions with Larkin and fear of being accused of creating a hostile work environment. In July, DHR informed Bailey that her complaints did not meet the threshold for harassment or retaliation, and the department would not investigate further. The personnel officer received a memorandum that admonished her to accept, document and report all EEO complaints to the DHR within five days.
In August, Bailey reported a new incident involving the personnel officer outside the office. Bailey felt increasingly intimidated by the personnel officer’s behavior. Bailey’s psychiatrist confirmed treatment for severe anxiety and depression due to workplace stress. DHR investigated Bailey’s allegations against the personnel officer but found the evidence inconclusive, though the personnel officer was disciplined for a separate incident.
In December, Bailey filed a FEHA lawsuit against the City for racial discrimination, harassment, and retaliation. The court granted the City’s motion for summary judgment. In an unpublished opinion, the Court of Appeal affirmed the trial court’s grant of summary judgment. The California Supreme Court granted Bailey’s request for review.
The Court overturned the grant of the City’s summary judgment motion, and allowed Bailey to proceed with her claims. The Court addressed two issues: 1) whether a coworker’s single use of a racial slur can be severe enough to support a harassment claim; and 2) whether an employer’s course of conduct that prevents an employee from reporting harassment is an adverse action that can support a retaliation claim.
First, as to Bailey’s harassment claim, the City argued that a coworker’s single use of a racial slur did not meet the standard of severe or pervasive harassment. Bailey disagreed, arguing that courts have found that even a single use of a racial slur can support a harassment claim. The Court held that that an isolated act of harassment may be actionable if it is sufficiently severe in light of the totality of the circumstances.
Moreover, the Court held that the fact that a coworker used the slur, and not a supervisor, could be sufficient to support a harassment claim. The Court said that a coworker’s influence or the nature of workplace relationships can still create an abusive environment, even without direct managerial authority.
The Supreme Court also considered whether the City could be held liable for the harassment Bailey experienced. If a supervisor is involved in the harassment, the employer is strictly liable. However, if the harasser is a nonsupervisory employee, the employer’s liability hinges on whether it took immediate and appropriate corrective action upon knowing about the harassment. The Court remanded the case to reassess the City’s liability, taking into account the potential undermining effect of the personnel officer’s actions on the City’s remedial efforts.
Second, as to Bailey’s retaliation claim, the City had argued that no adverse action had occurred as a result of the personnel officer’s conduct or the 2015 evaluation. The Court found that a course of conduct that effectively seeks to withdraw an employee’s means of reporting and addressing racial harassment may be an adverse action that can support a claim of retaliation. The Supreme Court remanded the case for further evaluation.
Twanda Bailey v. San Francisco District Attorney’s Office, et al., 16 Cal.5th 611 (2024).
Social Media Posts Can Create A
Sexually-Hostile Work Environment.
Lindsay Okonowsky is a psychologist who worked at a federal prison in Lompoc, California. She was responsible for the psychology department in the Special Housing Unit (SHU). Steven Hellman was a corrections Lieutenant who supervised SHU’s custody staff and was responsible for the safety of inmates and staff. Hellman and Okonowsky were peers. Hellman and Okonowsky disagreed over how to manage “difficult inmates”.
Hellman believed that Okonowsky made it “impossible” for he and other officers to do their jobs.
In January 2020, Hellman created an Instagram page titled “8_and_hitthe_gate.” The page did not identify its creator. In February 2020, Okonowsky became aware of the page when Instagram suggested it to her. The page contained hundreds of posts-- many of which were overtly sexist, racist, anti-Semitic, homophobic-- and transphobic memes that explicitly or impliedly referred to the Bureau of Prisons, and Lompoc staff and inmates. More than 100 Lompoc employees, including the Human Resources Manager, the Union President, and a member of the prison’s Special Investigative Services followed the page.
Posts or comments on the page referred to interactions at the SHU, and indicated that the person who ran the page worked in the SHU. Certain posts referred to Oknowsky specifically, including posts containing derogatory images resembling her likeness. Some of the posts were graphic, suggestive of rape and physical harassment, and depicted scenes of violence against women in general, but also against “the SHU psychologist” in particular.
Okonowsky forwarded images from the page to her supervisor, Chief Psychologist Carl Clegg. Okonowsky also messaged the prison’s Acting Safety Manager to express her concern that he was following the page, and “liking” posts. The Manager responded that the posts were funny, that he was “Sorry, not sorry,” and that she needed to toughen up or get a sense of humor.
The following day, on February 18, 2020, Okonowsky met with Clegg to discuss the page. Clegg suggested that Okonowsky transfer to a different facility within Lompoc. She agreed and was reassigned to Lompoc’s low security facility. Okonowsky also met with the prison’s Acting Complex Warden, James Engleman. The Warden said he would direct Special Investigative Agent Victor Gonzales to investigate the issue and refer the matter to the Bureau’s Office of Internal Affairs.
Later that day, a post appeared on the “8_and_hitthe_ gate” page threatening Okonowsky, sexually debasing her, and denigrating a well-known woman in public leadership. The post included a sexually obscene hashtag referring to someone who could not take a joke. Someone had alerted Hellman to Okonowsky’s complaint.
Okonowsky no longer felt safe at work. She decided not to go to work the next day, sent the Warden a copy of the
menacing post, and asked the Warden for a phone call. The Warden never responded. Instead, he forwarded her email to Special Investigative Agent Gonzales. Gonzales called Okonowsky that day to set up an initial meeting. During their phone conversation, Gonzales told Okonowsky that he had reviewed the page and didn’t “really see anything that’s a problem” with it.
Okonowsky returned to work and as time passed, Okonowsky felt less safe at work. Hellman continued to post disturbing content, including multiple posts to intimidate Okonowsky for reporting Hellman to prison management. The Human Resources Manager, who actively followed the page, told Okonowsky that he thought the memes were “funny.”
Okonowsky felt ostracized and concerned that she could be in danger. Her productivity declined. She emailed the Warden to ask for an update on the investigation and to state she was increasingly more uncomfortable. In March 2020, Okonowsky and her supervisor, Clegg, met with Associate Warden Gutierrez to discuss Hellman’s conduct. Clegg expressed his concern for Okonowsky’s safety and suggested that the prison convene a workplace violence Threat Assessment Team, but the Warden decided that a Threat Assessment was not warranted.
Hellman continued to post sexually explicit language that suggested sexual relations with or violence against women co-workers, which many Lompoc employees continued to “like.” In March 2020, Hellman posted an image referring to Okonowsky’s likeness accompanied by a sexually vulgar and profanity-ridden diatribe against “the one staff member” for “relentlessly tell[ing] on staff.” Several Lompoc employees, including the prison’s Safety Manager, “liked” the post.
In April 2020, a new warden arrived at Lompoc who convened a six-member Threat Assessment Team to investigate Okonowsky’s complaint. Members of the Team advised Okonowsky not to look at the page anymore, but also directed Okonowsky to inform the prison’s leadership if the posts continued.
In its report, the Threat Assessment Team concluded that numerous Lompoc employees appear to be well aware that Hellman owned the page, and that Hellman’s denial that he directed any posts at Okonowsky was unconvincing. The Team concluded that Hellman’s conduct constituted impermissible “harassing conduct” and likely violated Bureau standards of conduct. The Team recommended that management take a variety of
responsive actions, including maintaining the separation of Hellman and Okonowsky, and issuing a letter to Hellman ordering him to cease posting.
On April 16, 2020, the prison issued Hellman a letter stating that his posts appeared to have violated the Bureau’s Anti-Harassment Policy. The letter ordered Hellman to cease such conduct immediately and stated that any failure to comply would not be tolerated and could result in removal. But, for at least three weeks after receiving the letter, Hellman continued to make near daily posts, including posts mocking the prison psychology department and the Threat Assessment Team, and posts suggesting sexual relations and behavior with female coworkers.
Okonowsky alerted prison management to Hellman’s continued conduct in a letter on April 27, 2020. The prison never responded, and Hellman’s conduct continued. He made an additional three posts mocking the Threat Assessment Team. And he posted sexually overt posts targeting female co-workers. On January 24, 2021, Okonowsky transferred to a BOP facility in Texas.
Okonowsky filed suit in 2021, asserting a single claim under Title VII of the Civil Rights Act of 1964 for discrimination on the basis of sex. The district court granted the Government’s Motion for Summary Judgment, but it limited its consideration of the evidence to just five posts that, in the court’s view targeted Okonowsky specifically because of her sex. The district court concluded that those posts “occurred entirely outside of the workplace” because they: were made on a staff member’s personal Instagram page; and were never sent to Okonowsky, displayed in the workplace, shown to Okonowsky in the workplace, or discussed with Okonowsky in the workplace without her consent. Okonowsky appealed.
The Ninth Circuit reversed and allowed Okonowsky to proceed with her case. The Ninth Circuit remanded for the district court to look to: 1) whether Okonowsky was subjected to verbal or physical conduct of a sexual nature; 2) whether the conduct was unwelcome; and 3) whether the conduct was “sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.” As to the third factor, the Court held that conduct that occurs outside of the workplace must be considered. The Court rejected the notion that only conduct that occurred inside the physical workplace can be actionable, especially in light of the ubiquity of social media and its use to harass and bully both inside and outside of the workplace.
Okonowsky produced ample evidence that Hellman’s conduct made it more difficult for her to do her job. The Court found that the Bureau’s lackluster response to the complaint “reinforced rather than remediated” Hellman’s sexually harassing conduct, and cemented the discriminatory effect of his behavior within the workplace. Finally, the Court found that the Bureau’s remedial efforts were wholly inadequate and that a reasonable juror could conclude that the prison failed to take prompt and effective remedial action to address the hostile work environment.
Lindsay Okonowsky v. Merrick B. Garland, 109 F.4th 1166 (2024).
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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.
Question: Answer:
Our agency gave a fire fighter negative, but constructive feedback in their annual performance evaluation three months ago. The fire fighter signed the evaluation form then. The fire fighter is now requesting to enter a response to the feedback. Are we required to allow this?
Government Code section 3256 gives a firefighter 30 days to respond to any adverse comment entered into his personnel file. If the agency has a practice of allowing for a longer period of time, or if there is an agreement to do so under an MOU, then the agency should follow those policies. Otherwise, the agency is not required to allow the firefighter to enter a response to the feedback after the 30 days has passed.
Liebert Cassidy Whitmore
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Become a Certified Harassment Prevention Trainer
LCW Train the Trainer sessions will provide you with the necessary training tools to conduct the mandatory AB 1825, SB 1343, AB 2053, and AB 1661 training at your organization.
California Law requires employers to provide harassment prevention training to all employees. Every two years, supervisors must participate in a 2-hour course, and non-supervisors must participate in a 1-hour course.
QUICK FACTS:
Trainers will become certified to train both supervisors and nonsupervisors at/for their organization.
Attendees receive updated training materials for 2 years.
Pricing: $2,000 per person. ($1,800 for ERC members).
To learn more about our program, please visit our website below or contact Anna Sanzone-Ortiz 310.981.2051 or asanzone-ortiz@lcwlegal.com.
www.lcwlegal.com/train-the-trainer
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 FOBR prohibits an agency from compelling a fire fighter to take a lie detector test as part of an administrative investigation of the fire fighter.
• California is the first state in the nation to own, operate and deploy a C-130 Hercules air tanker to fight wildfires and protect communities.
• At this Month’s International Association of Fire Chief’s Fire-Rescue Conference, the Southern Marin Fire Protection District was recognized as one of the top 15 fire service leaders from across North America and the globe. Congratulations Southern Marin FPD!
On The Blog
Navigating Union Access: Understanding Rights in California Public Workplaces
By: Ashlyn Marquez
In California, non-employee representatives of employee organizations generally have the right to access employee non-work areas, and to solicit for union membership or activity and distribute literature to employees in such areas on the employees’ non-work time.
The California Public Employment Relations Board (PERB) has recognized that employers have a legitimate interest in maintaining security and operational efficiency. However, this interest must be balanced against employees’ rights to communicate with their union representatives.
Areas of Union Access
Union access to workspaces is generally limited to non-work areas and non-work times. However, if an employer permits non-business activity in a work area during work hours, the employer cannot prohibit employees from engaging in a similar level of activity merely because it involves employee organization activities. (Regents of the University of California (Irvine) (2018) PERB Decision No. 2593-M.)
Lunch and Break Rooms – Lunch and break rooms are considered non-work areas where employees typically congregate during non-work time. PERB has consistently held that non-employee representatives of employee organizations have the right to access these non-work areas on the employees’ non-work time, provided it does not disrupt operations. (Regents of the University of California (1983) PERB Decision No. 366-H; County of Riverside (2012) PERB Decision No. 2233-M.)
Employers can restrict this access, but the restrictions must be reasonable. For example, employers can enforce non-discriminatory rules limiting solicitation during working times or require union representatives to identify themselves upon arrival. (San Ramon Valley Unified School District (1982) PERB Decision No. 230.) However, a rule requiring a union representative to secure advance permission to meet with employees on their non-work time in non-work areas would be too overbroad and unreasonable. (Id.)
Email and Digital Communication – Employees have the right to use their employer’s email during non-work time for union-related activities, such as discussions relating to work hours, wages, and other terms and conditions of employment. (Napa Valley Community College District (2018) PERB Decision No. 2563.)
Employers can implement reasonable restrictions on non-work-related email use, such as prohibiting non-work email use during work hours, to maintain order and prevent abuse. (City of Sacramento (2013) PERB Decision No. 2351-M.)
New Employee Orientation – As discussed in a prior LCW Client Update, public employers are required to give a recognized exclusive union representative access to its new employee orientations, with at least ten days advance notice in most cases, and with the details to be determined by mutual agreement. Where a public employer has not conducted an in-person new employee orientation within thirty days of a newly hired employee’s start date, and the new employee is working in person, the exclusive representative has a right to schedule an in-person meeting at the worksite during working hours.
Can employers restrict access?
An employer can restrict a union representative’s access as long as the restriction is reasonable. To be reasonable the regulation must be 1) necessary for the efficient operation of the employer’s business, and 2) narrowly drawn to avoid overbroad and unnecessary interference.
Additionally, these restrictions must be nondiscriminatory in scope and application.
1. Necessary for the Efficient Operation of the Employer’s Business
To show a regulation is necessary for the efficient operation of the business, an employer must show that access would be disruptive to its services.
2. Narrowly Drawn
An employer’s rule must be narrowly drawn to avoid overbroad, unnecessary interference with the union’s rights.
Union access to secure places within public sector workplaces involves a delicate balance between employee rights and employer operational needs. As the workplace, technology, and legal landscape continue to evolve in this area, it is vital as a public employer to ensure your policies and practices are legally compliant and incorporate reasonable restrictions that protect your interests as an employer.
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Liebert Cassidy Whitmore