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[VIDEO] BB&K Webinar: Annual Labor & Employment Update 2016

08 Dec 2016 00:00:00 -0800

BB&K Labor and Employment attorneys discussed new legislation and case law impacting California employers - private and public.

What was discussed:

New legislation
Wage and hour update
Harassment, discrimination and retaliation
Disability discrimination and medical leaves
Benefits update including discussion of the Affordable Care Act and the Flores case
Marijuana in the workplace
Public agency cases and updates

This activity has been approved for minimum continuing legal education by the State Bar of California in the amount of two (2) hours of General Participatory credit. Best Best & Krieger LLP certifies that this activity conforms to the standards of approved educational activities prescribed by the rules and regulations of the State Bar of California governing minimum continuing legal education. Best Best & Krieger LLP is a State Bar of California Approved Provider, #1035.

When:
Thursday, Dec. 8
9:30 - 11:30 a.m. PT

Click here for questions.

Materials
Annual Labor & Employment Law Update
New Legislation and Case Summaries

To view a recording of the webinar, click here.

PIHRA 2016 Legal Year in Review

10 Nov 2016 00:00:00 -0800

Best Best & Krieger LLP Partner Joseph Ortiz will present “2016 Legal Year in Review,” for the Professionals In Human Resources Association. This presentation focuses on the laws that the savvy HR practitioner should know about, and the significant changes that occurred in Human Resources in 2016. The presentation will include a roll call of the most recent employment-related laws passed by the California Legislature, as well as a "best of" summary of the five biggest legal changes that occurred in 2016. Included will be a discussion of the status of the new white collar exemption salary requirements, new gender protection issues, and much, much more.

When
Thursday, Nov. 10
11:30 a.m. - 1:30 p.m.

Where
Best Best Krieger
3390 University Ave.
5th Floor
Riverside, CA 92501

For more information or to register, click here.

Play hard. Play fair. Play together.

01 Nov 2016 00:00:00 -0800

Join Best Best & Krieger LLP at the 2016 CALPELRA 41st Annual Training Conference in Monterey, Calif.

BB&K Speakers:

Isabel Safie and Katrina Veldkamp
"ACA Implementation: What Comes Next?"
Although it seems that the ACA is finally in full effect, the IRS continues to publish new guidance, and aspects of the ACA are in flux or have not yet been implemented. For example, the Cadillac tax – although it has been delayed until plan years beginning on or after Jan. 1, 2020, it is moving forward – in this session you’ll learn about its application and how it will impact your health benefit programs. This session will also focus on recent IRS guidance regarding ACA implementation, including new limitations on health reimbursement arrangement coverage and the effect of cash-in-lieu/opt-out programs on affordability calculations. In this session, you’ll also learn what the presenters have learned from the first year of employer reporting and what employers should change in 2017.
Wednesday, Nov. 2
1:30 - 3 p.m.

Alison Alpert and Joseph Sanchez
"You Can't Say That! Free Speech Issues In Public Employment"
Public employees’ right to free speech is more limited than that of the general public. Whether or not a public employer may take disciplinary action against an employee for speech-related conduct, however, is based on a developing body of case law that provides certain balancing tests and guidelines to determine if the speech is protected under the First Amendment. In this session, you’ll learn how you can legally address employee speech that impairs your agency's mission. The session will also highlight issues involving free speech in cyberspace, union speech, and special rules involving high-level policymakers.
Wednesday, Nov. 2
3:30 - 5 p.m.

Arlene Prater
"Severance and Last Chance Agreements: How to Negotiate and Draft Agreements That Comply With the Law and Protect Your Agency"
Drafting an agreement that best protects your agency, is acceptable to employees’ representatives, and complies with current legal standards can be a challenge. This session starts with an introduction to the benefits of using these agreements and then covers specific provisions and standards, such as complying with recent EEOC and NLRB enforcement actions, restrictions on employment and employee behavior, Public Records Act and Brown Act requirements, waiving due process rights, and use for creative resolutions of discipline and layoff disputes.
Thursday, Nov. 3
10:30 a.m. - Noon

Alison Alpert
"When an Employee Says, 'I’ve Got My Medical Marijuana Card,' What Can an Employer Do?"
Medical marijuana is in the news. As many states, including California, pass laws for the legal use of medical marijuana, employers are left questioning their drug use policies. Explore this important issue in light of federal and state law and existing employer policies. You’ll learn whether an employer can discipline an employee for off-hours and off-site use or influence, when it is pursuant to a valid prescription, or for off-hours and off-site recreational use, whether employers can still lawfully implement zero-tolerance drug use policies, and whether medical marijuana use must be accommodated. You’ll also learn how employers might accommodate medical marijuana use, if they choose. Learn what should be included in your policies to ensure that any discipline will be upheld on appeal, and leave this session feeling relaxed, knowing you’ve learned how to comply with the law.
Thursday, Nov. 3
3:30 - 5 p.m.

When
Tuesday, Nov. 1 - Friday, Nov. 4

Where
Portola Hotel & Spa at Monterey Bay
Two Portola Plaza
Monterey, CA 93940

and

Monterey Marriott
350 Calle Principal
Monterey, CA 93940

For more information or to register, click here.

Demotion Based on Mistaken Belief Deprives Public Employee of Constitutional Rights

02 May 2016 00:00:00 -0800

A government agency violated the constitutional rights of an employee who was demoted based on the mistaken belief that he violated the agency’s policy, the U.S. Supreme Court held. In a 6-2 decision last week, the Court overturned a lower court ruling and found in favor of the employee, who was accused of engaging in political campaigning.

In Heffernan v. City of Paterson, Heffernan brought a civil rights claim against the City for violating his First Amendment Rights. At the time, Heffernan was employed by the Office of the Chief of the Police. The chief was appointed by the mayor, who was up for reelection against Heffernan’s friend. Heffernan alleged that he was demoted after his supervisor heard that Heffernan was carrying campaign signs and talking to the campaign manager outside his friend’s campaign office. Heffernan argued that his supervisor was mistaken, that he had not been involved in any political activity, and that he was merely picking up a campaign sign for his mother because she had asked for one.

The trial court ruled against Heffernan finding that he had not engaged in any First Amendment conduct and the appellate court affirmed, emphasizing that a civil rights claim would only be actionable if the demotion was prompted by Heffernan’s actual, rather than perceived, exercise of constitutional rights.

The Supreme Court overturned the appellate court, concluding that the employer’s motive for demoting Heffernan was the dispositive factor. Although the demotion was based on a perceived exercise of a protected right, the employer was not protected merely because the perception turned out to be mistaken.

Interestingly, the majority did not address the constitutionality of the Department’s policy prohibiting overt involvement in a political campaign and remanded the matter to the appellate court. That is, the Court’s opinion rests solely on the decision to demote the employee.

In the dissent, Justice Clarence Thomas, joined by Justice Samuel Alito, took issue with allowing an employee to recover for a violation of his rights that he conceded he did not exercise — reasoning that if he did not exercise his First Amendment rights, then his First Amendment rights could not be violated.

The implications of this case remain unclear, but it appears to expand the scope of liability for employers because factual mistakes are not a defense. Adverse actions, whether based in factual truth or mistaken beliefs, can now form the basis of a civil rights claim against employers.

This case serves as a reminder that there are circumstances where public employers need to be mindful of their employees’ expressive activities.

If you have questions about the opinion or how it might impact your agency, contact the authors of this Legal Alert listed at the right in the firm’s Labor & Employment practice group, or your BB&K attorney.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @BBKlaw.

Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

Labor & Employment Law Update

09 Feb 2016 00:00:00 -0800

Best Best & Krieger LLP partners Alison Alpert and Arlene Prater will provide a labor and employment law update during the Association of Legal Administrators San Diego Chapter's "Annual Labor & Employment Law Update & Legal Resource Fair." Alison and Arlene's presentation will focus on hot topics including:

New Legislation and Court Cases
California Wage and Hour Issues
How to Handle Unemployment Claims
Transgender Cultural Competency.

When
Tuesday, Feb. 9
1:30 - 3:30 p.m.

Where
Doubletree by Hilton Mission Valley
7450 Hazard Center Dr.
San Diego, CA 92108

For more information or to register email Kathy Culver at kculver@ssvwlaw.com.

Workplace: Law Calls for “Anti-Abusive Conduct” Workplace Training

17 Jun 2015 00:00:00 -0800

By Richard K. DeAtley

One of the recent additions to California workplace laws requires addition of the prevention training for “abusive conduct” – bullying – to mandatory sexual harassment avoidance training.

The law, AB2053, defines abusive conduct as that which “a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.”

…

And there are no benchmarks in the law for the prevention training it requires, meaning attorneys and human resource experts who provide advice to businesses have been left to look at the law’s definitions of bullying to cipher their advice for best practices.

Despite the missing pieces, AB2053 has “made employers more aware of this issue,” said Alison Alpert , a partner for Best Best & Krieger law firm and chair of its labor and employee practice group.

“I have been talking to businesses about bullying,” she said. “It’s a big problem in the workplace.”

She said one area of advice to clients has been to review existing company rules regarding office conduct.

While those rules may not be as explicit as the law’s description of bullying, “they have some conduct guidelines about disrespectful treatment of co-workers or threatening or abusive conduct.”

And even if those actions are not actionable in court, Alpert said, their existence in company policy means workers and supervisors can be subject to discipline for violations.

There also are concerns that the law can be used to cite bullying in cases of progressive discipline or performance improvement programs.

“What one person may perceive as bullying is actually a legitimate employee disciplinary action,” Alpert said. “It should not stop employers from taking reasonable action in the workplace.”

To read the full article, published in the Press-Enterprise on June 17, 2015, click here

Understanding Nonunion Workers' Rights

20 Apr 2014 00:00:00 -0800

By Roger K. Crawford

The National Labor Relations Act manages relations between unions and private workplace management. Recently, the National Labor Relations Board has been imposing the NLRA more frequently on private non-union employers on behalf of nonunion, private sector employees.

This is most likely to happen after the employer has terminated or otherwise disciplined an employee for conduct that could be considered concerted and protected. The NLRB's increased attention to the nonunionized sector may be the result of significantly declining union membership in the United States. Ignoring this trend can lead to substantial penalties and expense for a private, nonunion employer.

Section 7 of the NLRA protects traditional union organizing, but it also protects any time nonunion (as well as union) employees participate in "concerted activity," such as having discussions with fellow employees about pay or complaining about working conditions.

Concerted is defined as two or more employees working together or "in concert," and this broad interpretation gives nonunion employers the most trouble when it comes to NLRA claims. For a concerted activity to be protected under the NLRA, it generally must center on a controversy involving the terms and conditions of employment. Therefore, if employees take action as a group to complain about company policies, their actions may be protected. Additionally, if an employee acts alone, his conduct may be considered concerted activity, protected by the NLRA, if he is acting on behalf of other employees.

The labor board scrutinizes all types of company policies at nonunion workplaces resulting from claims, including confidentiality, fraternization, statements of conduct, off-duty access, apparel and appearance, disloyalty, civility, media contact and employment-at-will.

Pay policies also can be the basis for NLRA claims. Since wage issues are a frequent objective of employee organizing, rules prohibiting wage discussions have been interpreted to be unlawful interference with the right of employees to engage in concerted activity.

With the pervasiveness of technology in society, many employers now have social media policies in their handbooks and this has resulted in NLRA claims. The mere monitoring of employee use of social media could be deemed a violation of the NLRA if it can be construed as the unlawful surveillance of an employee's exercise of her concerted and protected rights. The board will, however, support an employer's social media policies that clarify and limit their scope by including examples of clearly illegal or unprotected conduct.

Not all employee activities, of course, are protected under the NLRA, including intermittent strikes and work slowdowns; comments to third parties that are critical of the employer but make no reference to any labor controversy or term and condition of employment; concerns about customer satisfaction or product quality; and social issues that have no more than a tangential relationship to work.

Employees who complain about their own personal employment problems (as opposed to voicing concerns about how policies affect the workforce) generally are not covered under the NLRA's protections either.

How can nonunion employers avoid violations of the Labor Act?

Start by reviewing and revising your current policies and handbook provisions to make them compliant. When it comes to disciplining employees, consider whether their conduct constitutes protected concerted activity. Train your supervisors, managers and other decision makers on the issue of protected concerted activity. Adopt a lawful disclaimer in the company handbook that specifically addresses protected concerted activity.

Think about conducting periodic reviews of personnel rules to establish compliance with the most recent NLRB rulings and other changes to legal requirements.

* This article first appeared in The Press-Enterprise on Apr. 19, 2014. Republished with permission.

Supreme Court Ruling Allows Audit of Text Messages Made on Government-Issued Device

21 Jun 2010 00:00:00 -0800

The United States Supreme Court addressed a public employee’s claim of Fourth Amendment (to be free from unreasonable searches) violations by his employer auditing text messages made on his government-issued device. In City of Ontario v. Quon, the Supreme Court ruled last week that the public employer’s audit of the employee’s text messages was reasonable and allowable. The Court refused, however, to rule on whether public employees generally have an expectation of privacy in workplace text messages.

In Quon, the City of Ontario gave pagers capable of sending and receiving text messages to police department employees. The City’s plan had a monthly limit on the number of text messages, resulting in fees for additional messages. City employees paid the overages. When Quon and other employees began to routinely exceed their monthly text limit, the Chief of Police sought to determine whether the City’s plan limit was too low. Upon request, the service provider gave the Chief transcripts of Quon’s messages. The Chief discovered that many of Quon’s messages were personal and some were sexually explicit. The Chief turned the transcripts over to internal affairs, which determined that few of Quon’s on-duty messages were related to work. Quon was disciplined. In response, Quon and other department employees (who had exchanged messages with Quon) sued, arguing that the City had violated their Fourth Amendment right and the Federal Stored Communications Act.

At the trial court level, the judge concluded that Quon had a “reasonable expectation of privacy” in his text messages because of the City’s informal practice allowing him to pay for some personal use. The judge, however, concluded that the City was entitled to audit those messages if it had a legitimate purpose in doing so. The trial court granted judgment in favor of the City after a jury determined that the Chief’s purpose was legitimate. On appeal, the Ninth Circuit reversed the lower court’s decision, concluding that the search was not reasonable as a matter of law because there were less-intrusive means that the Chief could have used to determine whether the City’s plan limits were too low.

In overturning the appellate court decision, the Supreme Court stated that the audit was allowable where (1) the public employer had a legitimate work-related purpose and (2) the audit was reasonably related to that purpose. Where a public employee has a legitimate expectation of privacy, an employer’s intrusion “for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances.”

The Supreme Court concluded it did not need to determine whether Quon had a reasonable expectation of privacy in his text message because, even if he did, the City’s audit was reasonably related to the City’s legitimate work-related purpose given the facts. In addition, the Court considered the fact that the audit would have been “regarded as reasonable and normal in the private-employer context.”

It is important to note that the Supreme Court’s decision emphasized that the ruling was narrowly tailored to Quon’s facts.

BB&K’s Labor & Employment practice group assists its employer clients in developing and administering employment policies designed to avoid liability in the workplace and set appropriate employee expectations. For more information on this case and it potential impact on your organization’s policies, please contact your BB&K attorney or an attorney in the firm’s Labor & Employment practice group.

Disclaimer: BB&K e-Bulletins are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

Alison Alpert & Joseph Sanchez Discussed Off-duty Misconduct at CALPELRA Conference

05 Nov 2009 00:00:00 -0800

November 3-6, 2009 - Monterey, CA

BB&K attorneys Alison Alpert and Joseph Sanchez presented "I Still Know What You Did Last Night" at the California Public Employers Labor Relations Association Annual Training Conference.

The session revisited off-duty misconduct and investigations into criminal activity in the workplace in light of Spielbauer and other recent cases. Session topics included due process issues, investigations, use of criminal convictions in discipline, and privacy issues including search of employee work areas, lockers and computer/email files.

For more information on the conference, visit the CALPELRA website.

Public Employers Need Not Provide Immunity Before Asking Employees Potentially Incriminating Questions

11 Feb 2009 00:00:00 -0800

In the recent decision of Spielbauer v. County of Santa Clara (S150402, Feb. 9, 2009), the California Supreme Court reviewed the issue of whether a public employer must offer immunity from any criminal use of an employee’s statement before it can dismiss the employee for refusal to answer questions when the employee has invoked his or her Fifth Amendment right against self-incrimination.

The Supreme Court held that a public employer can discipline, even dismiss, a public employee who refuses to answer job-related questions based on the constitutional privileges against self-incrimination, so long as the employee is specifically advised that he or she retains those rights. However, an employee cannot be compelled to answer questions about the employee’s job performance, if to do so would require the employee, on pain of dismissal, to waive the constitutional protection against criminal use of those answers.

Where an investigation into public employee misconduct may require an employee to disclose potentially self-incriminating information, a public employer should direct the employee to answer such questions; inform the employee that his or her failure to do so will constitute insubordination justifying discipline, even termination; and specifically advise the employee that his or her answers cannot be used against him or her in a criminal proceeding.

Even with this decision, various California statutes may require public employers to provide some form of formal immunity to certain public employees before they can compel the employees to answer incriminating questions. For example, the Firefighters Procedural Bill of Rights Act (Gov. Code, § 3253, subd. (e)(1)) provides that firefighters must receive a formal written offer of criminal transactional immunity before being required to answer employer’s incriminating questions.

In Spielbauer, a deputy public defender was investigated by his employer for allegedly making deceptive statements to the court while representing a criminal defendant. The employer, the County of Santa Clara, made several attempts to interview the employee regarding the matter but each time the employee invoked the privilege against compelled self-incrimination and refused to answer any questions. Each time the employer directed the employee to answer the questions, informed him his failure to do so would constitute insubordination justifying discipline, including termination, and advised the employee that his answers could not be used against him in a criminal proceeding. The employer ultimately terminated the employee based, in part, on his refusal to answer any questions.

The employee instituted a legal action to obtain reinstatement alleging that he could not be compelled, on pain of termination, to answer potentially incriminating questions unless he first received a formal grant of immunity from any use of his answers in any criminal proceeding. The Court of Appeal agreed with the employee and held that, having invoked his constitutional rights against self-incrimination, the employee could not be compelled, by threat of job discipline, to answer his employer’s questions unless he had received a formal grant of criminal use immunity. Hence, the Court of Appeal held that the employer’s mere advisements and assurances that the employee’s statements could not be used in a criminal proceeding were insufficient to compel answers. The California Supreme Court disagreed.

As indicated, while the employee had been ordered to answer his employer’s questions, he was also truthfully told that no criminal use could be made of any compelled answers. The Supreme Court determined that the employee had not been ordered to choose between his constitutional rights and his job and thus the employee had not been required to waive his constitutional rights. Thus, the employee’s termination, to the extent it was based on disobedience of the employer’s orders to answer questions, was constitutionally valid.