Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act,...
Transcript of Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act,...
Protecting Your Own:
Implementing the Latest
Employment Legal
Updates
April 12, 2018
Presented by:
Megan E. Macy
Jenell Van Bindsbergen
Interactive
Presentation
Go to:
pollev.com/
lozanosmith
Megan E. MacyPartner
Megan Macy is the Managing Partner of Lozano Smith's Sacramento office and an active member of the
Facilities and Business, Labor and Employment and Charter Schools Practice Groups. Ms. Macy provides
general counsel to school districts and special districts with a focus on fire protection districts, routinely
advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of
governing board policies. Her primary goal is to assist educational agencies in maximizing their limited
resources through risk management, preventative legal services and effective planning. Ms. Macy utilizes
her litigation background to counsel clients on effective risk management strategies in the facilities and
business arena, including public bidding issues, real property transactions and negotiation of school
facilities agreements related to new residential development. Ms. Macy is an expert in charter school law,
having advised school districts on the full array of charter school issues, including petition review, denial and
appeal, Prop. 39 requests and other facilities use issues, charter school formation and revocation.
Presenter
Presenter
Jenell Van Bindsbergen
Partner
Jenell Van Bindsbergen is a Partner in Lozano Smith's Fresno office and co-chair of the
firm's Local Government Practice Group. In addition to local government and labor and
employment issues, she is also experienced with matters relating to the Americans with
Disabilities Act, Family and Medical Leave Act, Pitchess motions, OSHA matters, code
enforcement, harassment, and discrimination issues, layoffs, administrative and court
trials for certificated, civil service and classified dismissals, public safety and grievance
issues.
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Overview
Practical Application of
Firefighter Procedural
Bill of Rights
New Laws 2018
Employee Free Speech
and Social Media
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Interactive Presentation!
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FIREFIGHTERS PROCEDURAL
BILL OF RIGHTS
Firefighters Procedural Bill of Rights (FBOR)
• Covered Employees
– Individual that provides firefighting services, but
not probationary or inmate (Ca. Gov. Code 3251)
• Applies to:
– Discipline
– Investigations
– Interrogation
– Personnel Files
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Why Evaluate?
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The “Change” Pyramid
Helping things go right
Dealing with things that are going wrong
Source: The Anatomy of Peace: Resolving the Heart of Conflict.
San Francisco, CA: Berrett-Koehler, 2006.
Government Code § 3254
Punitive Action (Administrative Appeal)
• Punitive action or denial of promotion on
grounds other than merit shall not be
undertaken against any non-probationary
firefighter without providing the firefighter
with an opportunity for administrative
appeal.
– E.g. Orange County Employees Association v. County of
Orange (1988) 205 Cal.App.3d 1289 – No appeal from
transfer for “deficiency in performance.”
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Government Code § 3251
“Punitive Action”
• “Punitive Action” means any action that may lead to
dismissal, demotion, suspension, reduction in salary,
written reprimand, or transfer for purposes of
punishment.
– Turturici v. City of Redwood City (1987) 190 Cal.App.3d 1447 –
Routine negative evaluations are not punitive action.
• Key language -- “The Object was not to impose
punishment but to assist the employee in avoiding it.
That [the Lieutenant] fulfilled that purpose and
focused plaintiff’s attention on areas needing
improvement does not render the evaluation ‘punitive
action.’” (Turturici at 1451.)
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What About the
“Personnel File”?
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Government Code § 3255
Personnel Files (Adverse Comments)
• A firefighter shall not have any adverse comments
entered in a personnel file (or any other file used
for personnel purposes), without the firefighter
having first read and signed the instrument
containing the adverse comment indicating he or
she is aware of the comment. If the firefighter has
read the instrument and refuses to sign it, that fact
shall be noted on the document, signed or initialed
by the firefighter, and then the entry may be made.
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NEW LAWS 2018
AB 168 – Salary Information
Salary History
• Prohibits:
–an employer from
asking an applicant
about prior salary
– using salary as a
basis for deciding
whether to offer the
job
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Salary History
• Requires:
– employer to provide a
wage scale upon
demand
• Allows:
– Applicant to disclose
salary history information
– Review of public salary
information
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AB 1008 – Ban the Box
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“Ban the Box”
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• Prohibits employers from asking
about an applicant’s criminal history
until after a conditional offer is made
• Any question that
seeks disclosure of
applicant’s conviction
history will be an
unlawful employment
practice under FEHA
SB 396 – New Sexual Harassment
Training Requirements
Sexual Harassment Training
• Sexual harassment training must now
address:
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Gender Identity
Sexual Orientation
Gender Expression
Sexual Harassment Training
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• Employers are now required to display a poster
on transgender rights
• Poster can be found on DFEH website
SB 179– Gender Recognition Act
“Nonbinary” Gender Option
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• Effective September 1,
2018
• Allows individual to
petition to Court to
recognize gender as
nonbinary
• New birth certificate
reflecting “gender identity”
• Need to look at
applications/documents
AB 2337 – Notice of Domestic
Violence Rights
Notice of Domestic Violence Rights
• Employees have rights to take
protected leave for domestic
violence, sexual assault, or
stalking
• Employers required to
accommodate employee
• As of July 2017, employers
must provide written notice of
such rights
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Notice of Domestic Violence Rights
• California Division of
Labor Standards
Enforcement
published new written
notice to provide to
employees
• Update new employee
orientation packet to
include the notice
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SB 63 – New Parent Leave Act
New Parental Leave Act
• Extends baby-bonding leave
to employer with 20 or more
employee
• Provides up to 12 weeks of
job-protected bonding leave
to employees
– Must have worked at least
1250 hours for at least 12
months
– Must continue to pay for
medical coverage during this
time
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AB 46 – Fair Pay Act
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Fair Pay Act
• The “Fair Pay Act” requires equal pay protection for gender,
race, and ethnicity based on “substantially similar” work
• AB 46 expressly extends the wage discrimination
prohibitions to public employers
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Fair Pay Act
• Employer must be able to show that specific non-
discriminatory and reasonably-applied factors
account for the difference in pay
• These factors include:
– seniority or merit systems
– measurements of quality
or quantity of production
– another “bona fide factor”
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AB 119 – Union Access to New
Employee Orientations
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Union Access to New Employee Orientations
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• Public employers must now
provide union
representatives with
access to new employee
orientations
• Employers must give their
unions at least 10 days’
notice of a new employee
orientation session
Union Access to New Employee Orientations
• Public employers must provide unions with names,
job and contact information for new employees
• The same information must be provided about all
bargaining unit members every 120 days
• Employers and unions may negotiate the timing
and content provided
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Union Access to New Employee Orientations
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• Review current
employee orientation
procedures to ensure
compliance
• Consider feasible
options for providing
union access
AB 512– Public Employees
Retirement Law
Disability Retirement
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• Extends ability to
apply for Industrial
Disability
Retirement for
public safety
employees to
January 1, 2023.
Retiree Work Limit
960 Hour Requirement
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• Suspends 960
hour requirement
for retired
annuitants who
assist California
counties battling
fires and
mudslides.
EMPLOYEE FREE SPEECH AND
SOCIAL MEDIA
Is it free
speech?
Or is employee
conduct subject
to discipline?
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Employee Free Speech: The Legal Foundation
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Public employees:
First Amendment free
speech rights to
comment on matters
of “public interest” or
“public concern”
Balancing Test
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Balance government
workplace interests vs.
employee speech as a
citizen.
If balance tips in favor of
the Employer, the
Employer may regulate the
speech.
Electronic Conduct
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• Employer must establish a nexus between the
conduct and the employee’s position within the fire
department.
• Nexus can be established when the employee’s
conduct:
– Undermines the employer’s mission, purpose, or
credibility
– Violates employer rules or policies, e.g., constitutes
harassment of other employees
– Discloses proprietary information
Is it okay to use social media while on duty?
Fire station is “home”
while on duty
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Red Flag Issues
Issues to look out for:
• Does the internet
communication call for
concerted action among
employees?
• Does the communication pertain
to overall working conditions?
• Is the communication a matter
of board public concern?
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Federal Labor Law – Online Speech Protection
• Protected – Employees’ social media
postings with each other about the terms
and conditions of employment
– Generally, protected speech seeks to induce
group action or is the result of group concerns
• Not Protected – Posts that are not work
related or that express individual gripes
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Federal Labor Law – Case Examples
• Protected
–Employee posted on Facebook seeking
assistance from coworkers before a
meeting with management
–Employee criticized his employer’s
handling of a department fundraising
event on his Facebook page
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Take-Aways
Take-Aways
• Update notices
• Review procedures
• Be aware of employee rights
• Consult your legal counsel if your unsure
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Questions
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legal advice, you should contact your local counsel or an attorney at Lozano Smith. If you are interested in having other in-service programs presented,
please contact [email protected] or call (559) 431-5600.
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