December 2023
Fire Watch
Table Of Contents 03
12
Firm Victory
Did You Know?
07
13
FLSA
Consortium Call Of The Month
08
Labor Relations
10
14
On The Blog
Looking Ahead
Contributors: Cynthia O’Neill Partner | San Francisco Ashley Sykora Associate | Los Angeles
Nathan Price Associate | Los Angeles Ronni Cuccia Law Clerk | Los Angeles
Connect With Us! Copyright © 2023 Requests for permission to reproduce all or part of this publication should be addressed to Cynthia Weldon, Director of Marketing and Training at 310.981.2000. Cover Photo: Attributed to pexels.com
Fire Watch is published monthly for the benefit of the clients of Liebert Cassidy Whitmore. The information in Fire Watch should not be acted on without professional advice. To contact us, please call 310.981.2000, 415.512.3000, 559.256.7800, 916.584.7000 or 619.481.5900 or e-mail info@lcwlegal.com.
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• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •
LCW Partner Jennifer Rosner And Associate Christopher Frederick Convince Hearing Officer To Uphold Deputy Sheriff’s Termination.
A Deputy Sheriff began employment with the County in 2002. In 2007, the Deputy had a stroke. He was hospitalized for one week. He was placed on restrictive duty for two months. He then returned to work without restrictions. In July 2018, the Deputy filed for Industrial Disability Retirement (IDR) claiming heart issues and hypertension, memory loss, bladder issues, and psychological issues. The County denied his application, and the Deputy appealed. A few weeks before the appeal hearing in June 2019, the Deputy withdrew his appeal and stated that he would like to return to work. The County sent numerous "Notice of Leave Approval" letters to the Deputy between August 2019 and September 2020. Those notices informed him that he had the option to return to work with reasonable accommodations, if needed, and if he was not medically able to return to work, he needed to apply for an “Official Leave of Absence”. The notices also stated that a failure to comply with the directives could result in discipline. Rather than comply with the options, the Deputy filed another IDR application in June 2020 that listed the hypertension and bladder issues again, as well as a new third health condition- erectile dysfunction. CalPERS refused to consider the first two since they had already been denied in the first IDR application and the Deputy had voluntarily withdrawn his appeal. The County denied the IDR on the third issue, and the denial was upheld on appeal. Further, a medical examiner found that the Deputy’s health conditions did not substantially
December 2023
firm victory
incapacitate him from performing his duties as Sheriff, nor were any accommodations needed. The County then sent a “Return to Work” letter to the Deputy. Once again, the Deputy did not return to work. Instead, he filed a third IDR application, which CalPERS canceled because the exact same health conditions were listed on this application as on his first IDR application. Between November 2021 and May 2022, the Deputy received and ignored three additional "Return to Work" letters. The County subsequently initiated an investigation into the Deputy’s conduct and terminated him based on the findings that he deliberately disobeyed orders of his superior, was absent without approved leave, and neglected his duties. On appeal of his termination, the Deputy claimed his conditions rendered him unable to return to work and that he qualified for full medical disability. He further claimed the County’s letters constituted discrimination against him because of his disabilities. The Hearing Officer agreed with the County and the Sheriff ’s Department. The Deputy had received at least eight "Notice of Leave Approval" letters outlining his required next steps, including the opportunity to apply for official leave if he felt that he was not medically able to return to work. Instead, the Deputy ignored them along with all subsequent "Return to Work" letters that he received over the intervening years. The Hearing Officer found that the County had provided the Deputy with ample opportunity to participate in an interactive process over his alleged disability, and there was no question that the Deputy had committed the misconduct that led to his termination.
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Join us at LCW’s 2024 Public Sector Employment Law Conference! We're thrilled to announce that registration is now open for the 25th Annual LCW Conference taking place February 8-9, 2024, in San Francisco! The LCW Conference is California's premier public sector employment and labor relations educational event. Our speakers are California labor relations and employment law attorneys who have dedicated their careers to representing and supporting California's cities, counties, special districts, public safety agencies and public educational institutions.
When: February 8 -9, 2024 Where: Hyatt Regency San Francisco Five Embarcadero Center San Francisco, CA 94111 2024 LCW Conference attendees will gain access to:
• Top-notch Employment and Labor Relations Presentations. As always, the LCW Conference will offer the best and most timely information on California employment and labor relations topics available presented by our expert speakers. • MCLE, HRCI and POST Credit. Do you need MCLE, HRCI, or POST credit? Don't worry, we've got you covered! • Fun Activities. It wouldn't be the LCW Conference with some fun activities mixed in! We're creating exciting ways for attendees to decompress and have some fun. Stay tuned!
REGISTER HERE. 4
• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •
December 2023
We are also excited to announce three Optional Add-on Sessions! Wednesday, February 7 9:00 a.m. - 4:00 p.m. * Please note that you must register for an optional add-on session separately from the LCW Conference.
Option 1: Costing Labor Contracts The keys to successful negotiations include planning and costing. Just like planning a vacation, the amount of time and effort you put into planning and costing can determine the success of the trip. Costing contract proposals is similar to costing excursions on a vacation - they all sound like a good idea but can we afford them? Join us at this workshop to learn the importance of costing and the methods you can use to make costing easy. Participants will not only be provided with the tools to cost proposals, but will engage in interactive exercises where they set up an MOU Master Spreadsheet and proposals to cost. Bring your laptop and your Excel skills. This workshop is also part of our Labor Relations Certificate Program.
Option 2: Investigations and Discipline in Critical Incidents
The legal and political environment in which decisions about use of force investigations and discipline must be made is very different than it was just a few years ago. Civil liability is not necessarily the predominant concern anymore. This seminar will examine issues related to the investigation of critical incidents involving officers. More specifically, this seminar discusses the issues surrounding criminal, civil and administrative investigations of these matters, particularly the administrative investigative issues. In this training, you’ll hear from experienced public safety attorneys examine best administrative practices that your agency should follow and how to evaluate issues ranging from the implications of SB 2 to SB 16 to potential criminal prosecution of officers.
Option 3: Training Academy for Workplace Investigators
The Civil Rights Department (CRD) guidelines recommends that all investigators receive a full day of investigation instruction that covers information about the law shaping investigations, recommended practices, and skillbuilding exercises. This preconference session meets these CRD guidelines and recommended best practices. Presented by two leading workplace investigators, this session includes: • When to investigate • Standards for conducting a legally compliant investigation • Investigator qualifications • What to investigate • How to investigate • Core investigative skills • Skill-building exercises
Registration:
Click here to register for the Conference AND one of the optional add-on sessions. Click here if you are ONLY interested in attending a one day optional session.
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new to the Firm! Jacqueline “Jackie” Lee, an Associate in the Los Angeles office, provides advice and counsel on all employment law and litigation related matters.
Belinda Tommarello, an Associate in the Los Angeles office, provides litigation expertise in labor and employment law matters.
Duncan H. Dohmen, an Associate in the Los Angeles office, provides litigation expertise and employment law advice and counsel on all public agency related matters.
Phil N. Bui, an Associate in the San Francisco office, provides litigation expertise to our public agency clients.
Madeline Cline, an Associate in the San Francisco office, specializes in employment law, labor relations and litigation matters pertaining to public agencies and educational institutions.
Allison Ferraro, an Associate in the San Francisco office, provides employment and labor law expertise to our public agency clients.
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• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •
December 2023
FLSA
Employer Properly Excluded The Value Of Hotel Rooms From The Regular Rate Of Pay. Karen Harstein worked for Hyatt Corporation. She, and a certified class of employees who were laid off in March 2020, sued Hyatt. Among other things, they alleged that Hyatt violated the Fair Labor Standards Act (FLSA) by failing to include the value of the free hotel rooms they received each year in their regular rate of pay. The FLSA “regular rate of pay” is used to calculate the amount of overtime pay and includes many forms of remuneration. Courts liberally construe the FLSA in favor of employees and require employers to bear the burden of proving that a particular form of remuneration is not included in the FLSA regular rate of pay. The employees argued that the value of the free hotel room benefit they received should have been included in the regular rate of pay. Hyatt argued that the value of the rooms were “gifts” which could be excluded from the regular rate of pay. The district court agreed with Hyatt. That court reasoned that the value of the rooms were gifts that could be excluded from the regular rate. According to that court, the rooms were a reward for service that was not related to hours worked, production, or efficiency. The employees appealed. The Ninth Circuit Court of Appeals found that the rooms were not gifts, but that Hyatt could still exclude their value from the FLSA regular rate of pay as “other similar payments” under the FLSA at 29 USC Section 207(e)(2) and under the FLSA regulation codified at 29 CFR Section 778.224. The Ninth Circuit determined that the “other similar payment” exception applied to the rooms because the regulation listed “[d]iscounts on employer-provided retail goods and services” as an example of an “other similar payment.” The Ninth Circuit affirmed the district court’s grant of summary judgment as to this issue. Hartstein v. Hyatt Corp., 82 F.4th 825 (9th Cir. 2023). Key Takeaway: The value of an employer-paid hotel room may be excluded from the FLSA regular rate of pay under the “other similar payment” exception as a discount on an employer-provided retail good or service.
Liebert Cassidy Whitmore Named 2024 Best Law Firms® By Best Lawyers! • www.lcwlegal.com •
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r s n o b o i t a
a l el r
Prohibiting Union-Related Insignia On University Vehicles Was Unlawful.
Even though Teamster’s unfair practice charge did not allege discrimination, PERB mentioned that the University’s selective enforcement of its vehicle insignia policy was discriminatory.
The University of California maintained a policy that prohibited decals, stickers, or signs on all University vehicles. Eduardo Rosales was an electrician who drove an assigned University truck. The Teamsters represented employees in the skilled trades, including Rosales. Rosales put a Teamsters magnet on the bumper of his University truck. The magnet had the union insignia and the message “We are Teamster Strong!”
Teamsters Local 2010 v. Regents Of The University Of California, PERB Decision No. 2880-H (October 24, 2023).
Government Code Section 3565 of the labor relations statute that applies to higher education employees, gives them the right to participate in Union activities. Yet, the University forced Rosales to remove the magnet even though other skilled workers at the University did not have to remove stickers or signs on their trucks that did not reference Teamsters. Teamsters filed an unfair practice charge that alleged that the University interfered with Rosales’ protected rights by implementing a policy prohibiting a skilled trades employee from placing a union insignia magnet on a University vehicle. The administrative law judge dismissed the allegation, finding the policy did not interfere with employee protected rights. PERB disagreed. PERB found that the Teamsters showed that the University interfered with union/employee rights because the University’s ban on union magnets contradicted years of PERB precedent. In addition, the University did not show that the magnet negatively affected its operations.
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Key Takeaway: An employer cannot lawfully target union insignia for differential treatment.
Emergency Did Not Relieve County of Duty To Give Notice And An Opportunity To Bargain. During the COVID-19 pandemic, the County of Santa Clara (County) ordered nurses and other County employees to change their place of work. The County assigned nurses to facilities that had staffing shortages without notifying the Registered Nurses Professional Association (RNPA). The County also assigned two employees to prepare a motel for use by unhoused people without training the employees or notifying their union, SEIU, Local 521. Without notice to or approval from the RNPA or the SEIU, the County also modified the County’s policy on the duties of disaster service workers (DSW). One modification stated that an employee who was the sole parent of a child could refuse a DSW assignment, but an employee living with a medically vulnerable family member might not be able to refuse. Both the RNPA and the SEIU (collectively, the Unions) requested to bargain with the County before the employees were impacted by the County’s decisions,
• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •
December 2023
but the County refused. The County argued that the pandemic suspended its duty to give notice and an opportunity to bargain regarding emergency measures. The Unions disagreed.
the Unions would typically have allowed at least a preliminary bargaining session before employees were notified. Finally, PERB noted that even had the parties been unable to reach agreements, earlier notice would have made it clear the County was doing all it could to bargain, leading to more harmonious labor relations in a difficult period.
PERB concluded that: 1) the County could take necessary measures to save lives without first reaching an impasse or agreement, though it had a duty to afford the Unions notice and an opportunity to bargain in good Registered Nurses Professional Association, And Service Employees International Union Local 521 v. County Of Santa faith to the extent practicable under the circumstances; Clara, PERB Decision No. 2876-M (October 17, 2023; judicial and 2) the County failed to comply with that duty. appeal pending).
PERB opined that the County could have provided the Unions notice when the County was still considering these emergency measures. PERB felt that in some instances, the notice would have allowed negotiations to begin before a decision was finalized. Even when that was not possible, PERB thought that notice to
Key Takeaway: The California Court of Appeal has yet to weigh in on this PERB decision, but until it does, be aware that emergency conditions do not relieve a public employer from giving a union notice and an opportunity to meet and confer.
The LCW Labor Relations Certification Program is designed for labor relations and human resources professionals who work in public sector agencies. It is designed for both those new to the field as well as experienced practitioners seeking to hone their skills. Participants may take one or all of the classes, in any order. Take all of the classes to earn your certificate and receive 6 hours of HRCI credit per course!
Join our upcoming HRCI Certified - Labor Relations Certification Program Workshops: 1. December 7 & 14, 2023 - Trends & Topics at the Table 2. January 4 & 11, 2024 - Bargaining Over Benefits 3. February 7, 2024 - Costing Labor Contracts
Visit our website: www.lcwlegal.com/lrcp • www.lcwlegal.com •
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looking ahead... New Laws In Effect January 1, 2024.
The start of the new year brings with it new legislation. Here are some key laws that take effect January 1, 2024 that every public safety employer should be aware of: • SB 616 - This amendment to California’s paid sick leave law, raises the amount of paid sick leave and carryover of that leave in each year of employment. The “full amount of leave” will be five days or 40 hours, instead of the current three days or 24 hours. • SB 848 - Employees will be entitled to “Reproductive Loss Leave ” Eligible employees are entitled to five days of unpaid leave following a reproductive loss event, which includes miscarriage, failed surrogacy, stillbirth, unsuccessful assisted reproduction, or failed adoption. • AB 2188 - This law prohibits discrimination against an employee on the basis of that employee’s off-the-job marijuana use. Employers must ensure their employment-related drug tests do not screen for non-psychoactive cannabis metabolites.
Don't Miss Our Upcoming Webinar!
New Employer Obligations for Temporary Employees Under Assembly Bill 1484 Tuesday, December 19, 2023 10:00 a.m. - 11:30 a.m. 10
Register here.
• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •
Brian Walter
Jennifer Rosner
• www.lcwlegal.com •
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December 2023
Congratulations to LCW Partners Brian Walter and Jennifer Rosner for being chosen as Los Angeles Business Journal’s Leaders of Influence: Labor & Employment Attorneys 2023!
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. • Lassen Volcano National Park, which fell victim to the Dixie Fire of 2021- the largest single blaze in California’s history- is recovering well from the aftermath. The area is now exploding in new growth and the ecosystem is recovering. • Chemical engineers in California have designed a fuel that ignites only with the application of electric current. In practice, it could prevent accidental fires that ignite from storage or transportation of fuel. • The Collaborative of Native Nations for Climate Transformation and Stewardship (CNNCTS), a cohort of academics and indigenous fire stewards, received $7.1 million in funding to study how cultural fire can build a more fire-resilient landscape in an effort to preserve California’s ecosystem.
Kudos to Attorney Yesenia Z. Carrillo for being named on Business Street's
40 Under 40 list! 12
• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •
For more information on our consortiums, visit our website.
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 to disability accommodations, labor relations issues 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:
Do Firefighters Bill of Rights (FBOR) protections, including the right to representation, apply to a Fire Chief who is under investigation?
Yes. FBOR protections do apply in investigations of Fire Chiefs. Though they may not have a union, they would still be entitled to have some representative.
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December 2023
Consortium Call Of The Month
On The Blog AB 1484 Adopts Enhanced Representational Rights For Temporary Employees. By: Kelly Tuffo Assembly Bill 1484, which enhances the representational rights of temporary employees of California local government agencies, was recently signed into law by Governor Newsom. While the Meyers Milias Brown Act (MMBA) (Government Code Section 3500 et seq.) currently gives temporary employees of public sector agencies the right to form, join, and be represented by an employee organization, AB 1484 enhances those rights and imposes new duties on local agencies. The intent of the legislation is to ensure that temporary employees are protected by state laws, and to ensure that the increasing use of temporary employees does not undermine public employee labor relations. AB 1484 takes effect January 1, 2024 and adds Government Code Section 3507.7 to the MMBA. It obligates local government agencies to do the following with respect to temporary employees who have been hired to perform the same or similar type of work that is performed by permanent employees who are represented by a recognized employee organization: 1. Upon request of a recognized employee organization, add temporary employees to the same bargaining unit as permanent employees who perform the same or similar type of work. 2. Once temporary employees are added to a bargaining unit in response to a labor organization’s request, promptly participate in bargaining with the labor organization over wages, hours, and terms and conditions of employment for temporary employees. 3. The employer must provide temporary employees, upon hire, with a copy of their job description, wage rates, eligibility for benefits, anticipated length of employment, and procedures to apply for open, permanent positions. This information must also be provided to the recognized employee organization within five days of hire. Although not explicitly clear, the law appears to require the information to be provided to the recognized employee organization regardless of whether the employee organization has requested that temporary employees be added to a bargaining unit. 4. Along with the list of new employee information provided to an employee organization under Government Code Section 3558, the employer must also provide the anticipated end date of employment for each temporary employee, or actual end date if the temporary employee has been released from service since the last list was
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• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •
December 2023
provided. This appears to require that employers provide the personal contact information of temporary employees to the recognized employee organization regardless of whether the employee organization has requested that temporary employees be added to a bargaining unit. Employers are reminded that Government Code Section 3558 permits employers to meet and confer over procedures to give employees notice and the opportunity to opt out of having their home addresses, personal telephone numbers, and personal email addresses provided to a labor organization, consistent with County of Los Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 905. Agencies are not required to make changes to existing bargaining units unless a labor organization requests that temporary employees be added. Some labor organizations may choose not to add temporary employees to existing units based on the preferences of existing members and current temporary employees. If temporary employees are added to a bargaining unit pursuant to such a request, they are not automatically entitled to the same terms and conditions of employment as their permanent employee counterparts. Rather, the parties are required to bargain over terms and conditions for temporary employees. The bill specifically notes that the issue of whether a temporary employee should receive seniority or credit for their time in temporary employment upon obtaining permanent employment is a matter within the scope of representation. Initially, an agreement over temporary employee terms can be an addendum to the existing memorandum of understanding. Thereafter, if the labor organization so requests, the terms and conditions of employment for permanent and temporary employees must be included in the same memorandum of understanding. “Temporary employee” per AB 1484 means a temporary employee, casual employee, seasonal employee, periodic employee, extra-help employee, relief employee, limited-term employee, per diem employee, and any other public employee who has not been hired for a permanent position. This can also include a retired annuitant who meets the definition of temporary employee. It does not include an employee employed by a temporary services employer as defined in Section 201.3 of the Labor Code.1 The bill does not apply to temporary employees hired pursuant to a written agreement between a public employer and a labor organization that primarily represents employees in the building and construction trades. The bill does not apply to independent contractors. The legislation specifies that it does not supersede or provide any exemption to the restrictions or requirements related to individuals working after retirement from a public retirement system. Complaints alleging violations of the new Government Code Section 3507.7 shall be processed as unfair practice charges at the Public Employment Relations Board pursuant to Government Code Section 3509. There will undoubtedly be numerous questions about AB 1484 that are not clearly answered by the bill. You should prepare for the implementation of AB 1484. Trusted legal counsel can help you with your questions as well as strategize with you over the unique issues you will face in implementing AB 1484 at your agency.
View the full blog here.
1 Labor Code section 201.3 defines a temporary services employer as “an employing unit that contracts with clients or customers to supply workers to perform services for the clients or customers and that performs all of the following functions: (A) Negotiates with clients and customers for matters such as the time and place where the services are to be provided, the type of work, the working conditions, and the quality and price of the services. (B) Determines assignments or reassignments of workers, even if workers retain the right to refuse specific assignments. (C) Retains the authority to assign or reassign a worker to another client or customer when the worker is determined unacceptable by a specific client or customer. (D) Assigns or reassigns workers to perform services for clients or customers. (E) Sets the rate of pay of workers, whether or not through negotiation. (F) Pays workers from its own account or accounts. (G) Retains the right to hire and terminate workers.
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