Public Sector Employment Law Update

Transcription

1 6033 WEST CENTURY BOULEVARD, SUITE 500 LOS ANGELES, CALIFORNIA T: (310) F: (310) TOWNSEND STREET, SUITE 520 SAN FRANCISCO, CALIFORNIA T: (415) F: (415) NORTH PALM AVE., SUITE 310 FRESNO, CA T: (559) F: (559) WEST C STREET, SUITE 620 SAN DIEGO, CALIFORNIA T: (619) F: (619) WESTERN REGION INTERGOVERNMENTAL PERSONNEL ASSESSMENT COUNCIL MEETING Public Sector Employment Law Update 9/28/2012 PRESENTED BY: Peter J. Brown

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3 Western Region Intergovernmental Personnel Assessment Council Meeting September 28, 2012 Presented by: Peter J. Brown Public Sector Employment Law Update Western Region Intergovernmental Personnel Assessment Council Meeting September 28, 2012 Presented By: Peter J. Brown Contracting Out General Law Cities Cannot Contract Out For Non-Special Services. Costa Mesa City Employees Association v. City of Costa Mesa (2012) Cal.Rptr.3d [2012 WL ]. 2 Discipline Terminated Peace Officer Had No Right Under The POBRA To Production Of His Personnel And Internal Affairs Files. Barber v. California Department of Corrections and Rehabilitation (2012) 203 Cal.App.4th 638 [137 Cal.Rptr.3d 727], review den All Rights Reserved 1

4 Western Region Intergovernmental Personnel Assessment Council Meeting September 28, 2012 Presented by: Peter J. Brown Discipline/First Amendment Employee s Subpoenaed Testimony Was Protected Speech. Karl v. City of Mountlake Terrace (9th Cir. 2012) 678 F.3d Labor Relations City s Hard Bargaining Was Consistent With Its MMBA Duty To Meet And Confer In Good Faith. Glendale City Employees Assn. v. City of Glendale (2012) PERB Decision 2251-M [35 PERC ]. 5 Labor Relations Imposing Last, Best, and Final Offer After Parties Could Not Agree on Factfinding Timing and Protocols Violated the Meyers-Milias-Brown Act. Davis City Employees Ass n. v. City of Davis (2012) PERB Dec. No M [ PERC ] All Rights Reserved 2

5 Western Region Intergovernmental Personnel Assessment Council Meeting September 28, 2012 Presented by: Peter J. Brown Labor Relations Manager Did Not Interfere with Employee s Union Rights When He Counseled an Employee. Jones v. County of Santa Clara (2012) PERB Dec No M [ PERC ]. 7 Hiring U.S. EEOC Issues Guidance On The Use Of Arrest And Conviction Records in Hiring. 8 Governmental Immunity A Private Individual Temporarily Retained By The Government to Carry Out Its Work Is Entitled To Seek Qualified Immunity From Suit. Filarsky v. Delia (2012) 132 S.Ct. 1657, on remand to (9th Cir ) F.3d [2012 WL ] All Rights Reserved 3

6 Western Region Intergovernmental Personnel Assessment Council Meeting September 28, 2012 Presented by: Peter J. Brown Public Records Act Names of Police Officers Involved in Shooting Are Public Records. Long Beach Police Officers Ass n v. City of Long Beach (2012) 136 Cal.Rptr.3d 868, review granted and opinion superseded by 140 Cal.Rptr.3d Retirement With AB 1028, The Legislature Clarifies The Limits On Post-Retirement Work Opportunities For PERS Retirees. 11 Retirement AB 340 Public Employees Pension Reform Act All Rights Reserved 4

7 Western Region Intergovernmental Personnel Assessment Council Meeting September 28, 2012 Presented by: Peter J. Brown Retirement Employee With Psychiatric Condition Could Not Establish That His Job Duty To Interact With Angry Clients Substantially Caused His Disability. Valero v. Board of Retirement of Tulare County Employees Retirement Ass n (2012) 205 Cal.App.4th 960 [141 Cal.Rptr.3d 103]. 13 Retirement Employer Could Not Reduce Contributions Toward Retiree Health Premiums In Violation Of Collective Bargaining Agreements. Alday v. Raytheon Co. (9th Cir. 2012) F.3d [2012 WL ]. 14 Sex Discrimination/Retirement Facially Neutral Pension Plan Did Not Support A Sex Discrimination Claim Despite A Potential Disparate Impact. Wood v. City of San Diego (9th Cir. 2012) 678 F.3d All Rights Reserved 5

8 Western Region Intergovernmental Personnel Assessment Council Meeting September 28, 2012 Presented by: Peter J. Brown Fair Labor Standards Act Firefighters Not Entitled to Pay For Travel For the Firefighters Convenience Only. Balestrieri, et al v. Menlo Park Fire Protection District (N.D. 2010) CV SBA. 16 Thank You Questions? Peter J. Brown Partner Los Angeles Office All Rights Reserved 6

9 TABLE OF CONTENTS CONTRACTING OUT...1 DISCIPLINE...1 DISCIPLINE/FIRST AMENDMENT...2 LABOR RELATIONS...4 HIRING...8 GOVERNMENTAL IMMUNITY...9 PUBLIC RECORDS ACT...11 RETIREMENT...12 SEX DISCRIMINATION/RETIREMENT...15 FAIR LABOR STANDARDS ACT...16 i

10 CONTRACTING OUT General Law Cities Cannot Contract Out For Non-Special Services. City s issuance of layoff notices, although contingent on certain events that might or might not subsequently occur, caused workers sufficient injury to qualify as irreparable for purposes of preliminary injunction. Trial court did not abuse its discretion in determining equities favored the implementation of a preliminary injunction permitting city to go ahead with planning aspects of its outsourcing plan, but prohibiting actual laying off of employees or the contracting out of work they would otherwise be performing, pending determination of whether outsourcing was a mandatory subject of bargaining under parties labor agreement. Statutes generally prohibit a general law city from contracting with a private entity for nonspecial services. While plaintiff union did not show that the statutes necessarily prohibited all of the outsourcing city sought to do, it did show there was some possibility it would prevail on both contract and statutory claims, and that the relative harm to the parties favored preliminary relief. Costa Mesa City Employees Association v. City of Costa Mesa (2012) Cal.Rptr.3d [2012 WL ]. DISCIPLINE Terminated Peace Officer Had No Right Under The POBRA To Production Of His Personnel And Internal Affairs Files. The California Department of Corrections and Rehabilitation (CDCR) terminated Patrick Barber, a parole agent with the Division of Juvenile Justice (DJJ), and Barber filed an appeal of his termination with the State Personnel Board (SPB). While Barber s appeal was pending, the California Attorney General filed a Pitchess motion for production of Barber s personnel records in a pending criminal case. The trial court granted the Pitchess motion, which resulted in Barber s personnel records for 1999 to 2004 being disclosed. After the Pitchess motion was granted, and more than six months after his termination, Barber requested copies of his personnel records from 2005 to 2009 from CDCR. Barber specifically requested copies of all internal affairs investigations, adverse actions, requests for adverse actions, citizen complaints, and records containing requested records from four specific Office of Internal Investigations from 2005 and The CDCR denied Barber s records request. Barber filed a writ petition, and asserted that he was entitled to the requested records pursuant to Government Code section Government Code section states: (a) Every employer shall, at reasonable times and at reasonable intervals, upon the request of a public safety officer, during usual business hours, with no loss of compensation to the officer, permit that officer to inspect personnel files that are used or have been used to determine that officer s qualifications 1

11 for employment, promotion, additional compensation, or termination or other disciplinary action. (b) Each employer shall keep each public safety officer s personnel file or a true and correct copy thereof, and shall make the file or copy thereof available within a reasonable period of time after a request therefore by the officer. At the trial on the writ petition, Barber admitted that the writ petition was prompted by the ruling on the Pitchess motion, and not his termination. Barber asserted that based on the documents disclosed in response to the Pitchess motion, he believed CDCR was deliberately withholding documents that were relevant to the pending appeal of his termination before SPB. Barber further argued that the documents disclosed pursuant to the Pitchess motion should have been produced to him in 2004 as part of his challenge to two prior terminations, in which he was ultimately reinstated in both instances. Barber further asserted that the CDCR had a history of concealing and destroying his records. The trial court denied Barber s writ petition, and concluded that Barber was not entitled to Public Safety Officers Procedural Bill of Rights Act (POBRA) protection or rights after termination of his employment. In an issue of first impression, the Court of Appeal affirmed. The Court held that Barber had no employment relationship with CDCR at the time he requested his personnel records, and as such he had no rights under POBRA to make a broad request for his personnel and internal affairs records. Reviewing the legislative intent of Government Code section , and case law interpreting the statute, the Court held that the purpose of the statute was to facilitate an officer s ability to respond to adverse comments potentially affecting the officer s employment status, and to correct any misstatements discovered in his or her records in the event erroneous, derogatory information might result in adverse impact on the officer employment. The Court also held that the statutory language only pertains to currently employed officers. The Court concluded that up until the effective date of termination, an officer has the right pursuant to section to review his or her employment records, but this right ends after the effective date of termination. Barber v. California Department of Corrections and Rehabilitation (2012) 203 Cal.App.4th 638 [137 Cal.Rptr.3d 727], review den. DISCIPLINE/FIRST AMENDMENT Employee s Subpoenaed Testimony Was Protected Speech. Martha Karl worked as the confidential administrative assistant to a City s Chief of Police. Her job duties were primarily clerical, and included processing time cards, taking minutes at meetings, and answering the phone. In 2008, Karl was subpoenaed to give deposition testimony in a First Amendment retaliation lawsuit that former Police Department employee Sergeant Jonathan Wender filed against the City. 2

12 During her deposition, Karl testified that Wender was outspoken about his views on the need for drug policy reform; that the Chief of Police Scott Smith and the Assistant Chief Charles Caw disapproved of his comments; and that Caw urged Smith to terminate Wender because other local police agencies were watching to see whether Smith would take a strong stance on drug law enforcement. Karl also testified that Wender had a reputation for honesty, while Smith had a reputation for being dishonest, and Caw had a reputation as a smooth talker. After Karl s deposition, Caw was overheard commenting that Karl s testimony really hurt the City, that she could not be trusted anymore, and that the Police Department would have to find a way to get rid of her. In late 2008, Greg Wilson replaced Smith as Chief of Police. Caw told Wilson that he had concerns about Karl s work performance. Shortly thereafter, Karl was involuntarily transferred to a part-time records position where she was subject to a probationary period and was placed under Caw s direct supervision. Karl allegedly received unreasonable discipline and criticism. Caw and Wilson recommended that Karl be terminated; the City Manager did so. Karl sued the City and Caw for First Amendment retaliation under 42 U.S.C. Section The district court denied Defendants motion for summary judgment and Caw s claim to qualified immunity. The Ninth Circuit Court of Appeals affirmed. A public official is entitled to qualified immunity unless: (1) the facts alleged show that the official s conduct violated a constitutional right; and (2) the right at issue was clearly established at the time of the alleged conduct. To establish a First Amendment retaliation claim, a plaintiff must show, among other things, that the plaintiff: (1) spoke on a matter of public concern, (2) spoke as a private citizen and not within the scope of her official duties as a public employee, and (3) received an adverse employment action, for which the protected speech was a substantial or motivating factor. The Court found that Karl s deposition testimony was protected speech because it addressed a matter of public concern. The testimony was offered in the course of a Section 1983 lawsuit alleging that the City and Chief of Police violated an employee s constitutional rights. Although Karl s testimony was not made in a public forum, it was part of a case involving a matter of public concern and had the potential to bring to light potential wrongdoing by the City and/or public officials. The Court held that Karl s testimony was protected speech and not made as a public employee. Although she was paid for her time, her testimony was the product of a subpoena and not commissioned or created by the City. Finally, Caw was not entitled to qualified immunity because a reasonably competent official would have known that a public employee s subpoenaed deposition testimony addresses a matter of public concern when it is given in connection with a judicial or administrative proceeding involving allegations of significant government misconduct. 3

13 Karl v. City of Mountlake Terrace (9th Cir. 2012) 678 F.3d Note: Although the employee s speech in this case was based on information acquired during the scope of employment, the court found that she was speaking as a private citizen, and not as part of her job duties, because her job involved clerical duties only. Had the employee s speech been part of her job duties, it would not have qualified for First Amendment protection. LABOR RELATIONS City s Hard Bargaining Was Consistent With Its MMBA Duty To Meet And Confer In Good Faith. The Glendale Employees Association filed an unfair practice charge that alleged that the City of Glendale violated its duty under the Meyers-Milias-Brown Act (MMBA) to meet and confer in good faith. Specifically, the Association alleged that the City: 1) was guilty of surface bargaining as to a successor memorandum of understanding; and 2) impermissibly negotiated to impasse on a permissive subject of bargaining. The PERB Board adopted the warning and dismissal letters of the Board s agent, and dismissed the charge as the decision of the Board. Adrianna Guzman of our Los Angeles office handled this case. The Association alleged that the City was guilty of surface bargaining because of the City s take-it-or-leave-it attitude on a cost sharing provision. PERB reviews whether a local agency violated the duty to bargain in good faith based on a review of the totality of the circumstances. The duty to bargain in good faith does not require either party to make concessions. Insistence on a firm position is not necessarily evidence of bad faith because the law merely requires the parties to maintain a sincere interest in reaching an agreement, even if the reasons for a particular position are questionable. The duty to bargain in good faith requires the parties to explain the reasons for their positions with sufficient detail to allow for mutual understanding. In this case, there was no evidence of surface bargaining because the parties did agree to two of the three major issues and the City fully explained the need for its proposals. The City also explored the alternatives that the Association offered. PERB also found that the Association failed to state a prima facie case of violation of the duty to meet and confer by bargaining to impasse on a permissive subject of bargaining. Although the parties are free to negotiate over non-mandatory subjects of bargaining, a local agency employer may not insist on negotiating non-mandatory subjects if the union clearly and expressly refuses to do so. In this case, PERB did not decide whether the cost-sharing provision was a nonmandatory subject of bargaining. Instead, PERB decided that regardless, there were no facts to show that the Association raised any objection to the City s request to modify the cost-sharing provision. Moreover, because the cost-sharing agreement was contained in the prior MOU, the 4

14 Association was bound by the provision until it expires or is modified. Therefore the City could seek to negotiate modifications to the cost-sharing provision. Glendale City Employees Assn. v. City of Glendale (2012) PERB Decision 2251-M [35 PERC ]. Note: This case illustrates the boundaries of lawful hard bargaining. A critical element of lawful hard bargaining is to fully explain the need for a proposal and to listen to and fully consider the other party s proposals. Imposing Last, Best, and Final Offer After Parties Could Not Agree on Factfinding Timing and Protocols Violated the Meyers-Milias-Brown Act. The City of Davis declared impasse in December 2009, after eight months of negotiations for a successor agreement to the memorandum of understanding that expired on June 30, The City s employer-employee relations resolution (EERR) contained impasse procedures which required the parties to submit the dispute to mediation and, if unsuccessful, to fact-finding. The fact-finder would provide recommendations to the parties and, if the dispute was still not resolved, to the City Council. After mediation was unsuccessful, in February 2010, the City suggested the parties bypass the fact-finding process and submit the matter directly to the Council. The Union declined and demanded fact-finding. The Union provided a list of proposed arbitrators. On March 24, 2010, the City notified the Union that Joe Henderson, one of the proposed arbitrators, was available three days in late April 2010, and asked if those dates were acceptable to the Union. The Union agreed to use Henderson but objected to the proposed dates. The Union wanted to first obtain the arbitrator s availability before committing to dates, while the City wanted to obtain the first available dates from the arbitrator. The Union also believed that the fact-finding required more time and formality than the City believed to be appropriate. On May 10, the City advised the Union that the arbitrator and the City were available on five specific dates in June and July. The City believed that one day of hearing was sufficient, but that it would be willing to schedule two days. On May 13, the Union responded that the dates of July 19 and 20 were acceptable, but that the Union believed additional days of fact-finding would be required, along with a court reporter. On May 14, the City objected to the Union s proposed level of formality, accused the Union of delaying the process, and asserted that the Union had effectively rejected fact-finding. The City unilaterally decided to take the matter directly to the Council. On May 25, the Council adopted a resolution imposing the City s last, best and final offer (LBFO) which included 12 furlough days. The Union filed an unfair practice charge with PERB alleging that the City s failure to exhaust the impasse procedures violated the Meyers-Milias-Brown Act (MMBA). The administrative law judge (ALJ) agreed with the Union. On appeal, the PERB Board adopted the ALJ s decision. 5

15 The MMBA requires parties to follow any reasonable impasse procedures in an agency s local rules. The parties must exhaust impasse procedures before the agency can implement its LBFO. Here PERB found that the City failed to exhaust the impasse procedures, specifically the factfinding process. PERB concluded that the City had two options other than canceling the factfinding. The City could have deferred to the arbitrator as to how the fact-finding was to be conducted, or the City could have insisted that the fact-finding be conducted in an informal manner in a two-day hearing. If the City had insisted on an informal process and the Union had failed to appear, then the fact-finding procedure would arguably be exhausted by the Union s non-appearance. The City s chosen self-help remedy of canceling the agreed upon factfinding dates was inappropriate. The City asserted that it had a business necessity for passing its resolution implementing the LBFO because of the City s projected budget shortfall. The Board found, however, that the City had reserves sufficient to face its projected shortfall with the Union and the City s financial situation did not constitute a fiscal emergency. The Board ordered the City to rescind its resolution implementing the LBFO and to reinstate the terms and conditions of employment that existed prior to the unilateral implementation, with interest. Davis City Employees Ass n. v. City of Davis (2012) PERB Dec. No M [ PERC ]. Note: This case is not about AB 646, the 2012 state law regarding fact-finding for MMBA agencies. This case arose from the factfinding process in the City's own EERR. Note that although the PERB Board indicated that the City could have insisted that the fact-finding be a two-day informal process, the Board expressly declined to decide whether that hypothetical option would have violated the City s own EERR fact-finding process. Manager Did Not Interfere with Employee s Union Rights When He Counseled an Employee. The County of Santa Clara hired Melvin Jones as a Laundry Worker II in the Probation Department. Shortly after starting his employment, Jones filed two informal grievances with his supervisor, Jerry Stodulka. Unsatisfied with Stodulka s responses, Jones contacted the County s human resources operations manager who referred him to the Probation Department s human relations section. Subsequently, Jones s manager, Kevin Cooper, approached Jones to talk. Jones provided the following account of their discussion: Jones asked Cooper for his union representative, but Cooper refused. Cooper allegedly said that Jones was making trouble for the department and he should have come to Cooper first if he was unsatisfied with his supervisor s response to his complaints. He told Jones to just shut up and do his job. Jones asked if Cooper was telling him he could not file a grievance. Cooper responded, Put it like this, who do you work for You 6

16 work for the Probation Department. And so if you re going to be a team player then you be a team player. But if you re going to go off and file a grievance left and right, well, I m telling you, go through the proper chain of command. Cooper also talked to Jones about not degrading supervisors and co-workers to his colleagues. Cooper s version of the discussion was radically different. Both parties agreed that Cooper then provided Jones with an already completed form entitled Employee Counseling. Jones later complained about nosebleeds. On April 9, Jones submitted a doctor s note verifying that Jones was ill and un-able to work from through April 10, and was cleared for return on April 11 without restrictions. Jones was subsequently absent several additional days without a physician s verification as required by the County s rules. The County consequently released him from his probationary employment. Jones filed an unfair practice charge alleging retaliation, denial of his Weingarten right to representation, and interference with his right to engage in protected activity. The ALJ found in favor of the County, and the PERB Board adopted the ALJ s decision. To establish an interference claim, an employee must show that the employer took action which tends to interfere with, re-strain or coerce employees in the exercise of protected activities, and the employer s conduct was not justified by legitimate business reasons. The Board found that Cooper testified credibly and that Jones did not. The Board believed that Cooper did not object to Jones s filing of grievances, but rather that he counseled Jones to go through the chain of command and not make behind-the-back criticisms of coworkers. Cooper s statements did not rise to the level of an unlawful threat when considered in that context. It was appropriate for Cooper to discourage Jones from gossiping and disparaging co-workers. Moreover, Cooper s concern that Jones had not provided supervisory staff an opportunity to mediate the concerns was legitimate. Close proximity in time between protected activity and an adverse action must be combined with other evidence of animus to support a retaliation claim. Here there was insufficient evidence of retaliation. Jones testified that his super-visor gave him a look of disapproval when he was talking with a union steward, but the Board found that this testimony was insufficient to evidence anti-union animus. Jones v. County of Santa Clara (2012) PERB Dec No M [ PERC ]. 7

17 HIRING U.S. EEOC Issues Guidance On The Use Of Arrest And Conviction Records In Hiring. When was the last time your agency reviewed its policy regarding the use of arrest and conviction records in hiring? If the answer to this question does not readily come to mind, it may be a good time to audit your hiring policy and job application. Earlier this year Pepsi agreed to pay a $3.13 million settlement to resolve a race discrimination charge filed by the U.S. Equal Employment Opportunity Commission ( EEOC ). According to the EEOC, Pepsi s criminal background check policy barred applicants from being hired into permanent positions if they had been arrested. These applicants were screened out even if they had never been prosecuted or convicted of any offense. The EEOC determined that Pepsi s policy disproportionately excluded African-American applicants from permanent employment with the company and was, therefore, in violation of Title VII of the Civil Rights Act of The EEOC estimated that approximately 300 African-American applicants were adversely affected by Pepsi s policy. The EEOC also worked with Pepsi to adopt a new criminal background check policy. Under California Law, employers may not ask a job applicant to disclose information concerning an arrest or detention that did not result in a conviction. California employers are also prohibited from making hiring decisions based on an arrest that did not result in a conviction. It is permissible for employers to ask employees if they have ever been convicted and, if so, they may ask about the offense. However, conviction records cannot be an absolute bar to employment because it disproportionately excludes certain racial groups. According to the EEOC, the reasoning behind this is that Blacks and Hispanics are convicted in numbers which are disproportionate to Whites and that barring people from employment based on their conviction records will therefore disproportionately exclude those groups. Therefore, such records should not be used to immediately screen an applicant out unless there is a business need for it. In order to determine if there is a legitimate business reason for screening out an applicant based solely on a criminal conviction, the following three factors are among those that should be considered: (1) the nature of the job, (2) the nature and seriousness of the offense, and (3) the length of time since the conviction. Employers should also consider the relationship between the nature of the conviction and the duties of the position. These factors focus on the applicant s conduct, as opposed to the conviction itself, in determining whether an applicant is fit to perform the job. Employers also may not ask a job applicant to disclose marijuana convictions that are over two years told. Clear language must be included in the job application that notifies the applicant that the employer is not seeking the disclosure of such information. The language must also be placed in a location that will attract the reader s attention. 8

18 Finally, it is important to note that these rules do not apply to peace officer applicants. When recruiting peace officers, every peace officer, other than reserve peace officers, employed by a department must be selected in conformance with the following requirements: Employment of convicted felons is prohibited. Fingerprinting and search of local, state, and national files to reveal any criminal records is required prior to employment. Peace officers must be determined to be of moral character as determined by a thorough background investigation. Please contact our Los Angeles, San Francisco, Fresno, or San Diego office for any assistance in reviewing hiring policies or job applications. In addition, LCW s workbook Personnel Issues: Hiring, Reference Checks and Personnel Records and Files also contains hiring guidelines and sample job applications. This article first appeared on the firm's California Public Agency Labor and Employment Blog. To view other blog posts, please visit GOVERNMENTAL IMMUNITY A Private Individual Temporarily Retained By The Government to Carry Out Its Work Is Entitled To Seek Qualified Immunity From Suit. Nicholas Delia, a firefighter employed by the City of Rialto missed work after becoming ill on the job. Suspicious of Delia s extended absence, the City hired a private investigation firm to conduct surveillance on him. After Delia was seen buying fiberglass insulation and other building supplies, the City initiated an internal affairs investigation and hired Filarsky, a private attorney, to interview Delia. At the interview attended by Delia s attorney, Delia acknowledged buying the supplies, but denied having done any work on his home. To verify this claim, Filarsky asked Delia to allow a fire department official to enter his home and view the unused materials. When Delia refused, Filarsky ordered Delia to bring the materials outside his home for the official to see. Officials then followed Delia to his home, where he produced the materials. Delia brought an action in federal court against the City, the Fire Department, Filarsky, and others, alleging that the order to produce the building materials violated his Fourth and Fourteenth Amendment rights. The District Court granted summary judgment to the individual defendants on the basis of qualified immunity. The Ninth Circuit Court of Appeals affirmed with respect to all individual defendants except Filarsky, concluding that he was not entitled to seek qualified immunity because he was a private attorney, not a City employee. 9

19 The Supreme Court reversed the Ninth Circuit's decision with respect to Filarsky. The Court held that common law principles of immunity were incorporated into 42 U.S.C and should not be abrogated in the absence of clear legislative intent. As a result, it concluded: Immunity under Section 1983 therefore should not vary depending on whether an individual working for the government does so as a permanent or full-time employee, or on some other basis. The Court identified four primary reasons for its decision to recognize immunity under 1983 as it is recognized under common law: First, immunity protect[s] government s ability to perform its traditional functions. It does so by helping to avoid unwarranted timidity in performance of public duties. Second, affording immunity not only to public employees but also to others acting on behalf of the government similarly serves to ensure that talented candidates [are] not deterred by the threat of damages suits from entering public service. The government's need to attract talented individuals is not limited to full-time public employees. Indeed, it is often when there is a particular need for specialized knowledge or expertise that the government must look outside its permanent work force to secure the services of private individuals. Because those individuals are free to choose other work that would not expose them to liability for gov-ernment actions, the most talented candidates might decline public engagements if they did not receive the same immunity enjoyed by their public employee counterparts. Third, the public interest in ensuring performance of government duties free from the distractions that can accompany lawsuits is implicated whether those duties are discharged by private individuals or permanent government employees. Finally, distinguishing among those who carry out the public's business based on their particular relationship with the government creates significant line-drawing problems and can deprive state actors of the ability to "reasonably anticipate when their conduct may give rise to liability for damages." The Court reasoned that, [a]n uncertain immunity is little better than no immunity at all. Filarsky v. Delia (2012) 132 S.Ct. 1657, on remand to (9th Cir ) F.3d [2012 WL ]. Note: The Filarsky decision is an important one because it extends qualified immunity protections to individuals, such as private investigators hired by public entities pursuant to a contract for services, who are not actual employees of a government entity. Qualified immunity is an important protection public employees assert when sued for alleged civil rights violations under 42 U.S.C However, it is important to keep in mind that qualified immunity is qualified and not absolute. It will immunize an individual from suit unless it can be shown that the individual violated a clearly established constitutional right. In the Filarsky case, 10

20 the trial court will still have to consider whether Filarsky s conduct of requiring Delia to go into his house and pull out the building materials violated clearly established constitutional law, such as the prohibition against warrantless searches. Accordingly, while the Filarsky decision allows a private investigator to use the defense of qualified immunity; it does not guarantee that the defense will be appropriate if the investigator violated clearly established constitutional law. PUBLIC RECORDS ACT Names of Police Officers Involved in Shooting Are Public Records. In December 2010, Long Beach police officers were involved in a shooting which resulted in a citizen s death. The Los Angeles Times made a Public Records Act (PRA) request for the names of the involved officers, along with the names of officers who were involved in shootings over the preceding five years. The police officers association sued to stop the City from complying with the request. The trial court denied the request for an injunction because the officers names were not subject to any PRA exemption and consequently had to be disclosed. The California Court of Appeal affirmed. The PRA gives the public the right to inspect public records upon request. One category of records that is exempt from the right of inspection, however, is personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy. The Court decided that an officer s name is not covered by this exemption category because the California Supreme Court has previously held that officer names, employing departments, and employment dates are public records under the PRA. Another PRA exemption category applies to records that the law makes private. Penal Code sections and make peace officer personnel records and the information in those records confidential. This information includes personal data, such as the officer s marital status, family members, and home addresses. The Court here held that the term personal referred to something not generally known to the public. Peace officer names do not meet that definition because peace officers wear badges with their names on them, and identify themselves by name to the public. Moreover, although the Penal Code makes complaints or investigations of complaints confidential, the newspaper s request here was not for complaints against officers. The PRA also has a catch-all exemption that applies only if the public interest served by keeping the record confidential clearly outweighs the public interest served by disclosing the record. The Court found that the public interest in peace officer conduct is substantial and outweighs an officer s privacy interest in maintaining the confidentiality of his or her name, unless there is evidence that disclosing a particular officer s identity would jeopardize that officer s safety or efficacy. 11

21 The Court upheld the trial court s ruling that the City would have to disclose the officers names absent evidence that any particular officer would be subjected to harm as a result. Long Beach Police Officers Assn. v. City of Long Beach (2012) 136 Cal.Rptr.3d 868, review granted and opinion superseded by 140 Cal.Rptr.3d 112. Note: This case demonstrates that unless a public entity can show that a record comes squarely within an exception, the agency must generally disclose the record. This is another in a line of recent cases that narrow the scope of the exceptions to the Public Records Act. RETIREMENT With AB 1028, The Legislature Clarifies The Limits On Post-Retirement Work Opportunities For PERS Retirees. As of January 1, 2012, PERS retirees will have additional restrictions on their ability to work for PERS agencies. While AB 1028 affects several different Government Code sections, it is garnering the greatest attention for its changes to Government Code sections 21221(h) and 21224; the two statutes that address post-retirement work opportunities and restrictions for PERS service retirees with PERS agencies. There is no doubt that AB 1028's changes in this area are important and must be followed, but they do not mark any monumental shift in philosophy. In fact, they are more a clarification of the current law rather than a drastic change in the law. Government Code section 21221(h) is the section used when the retiree is to be appointed by the agency's governing body. It currently allows PERS retirees to be appointed for a limited duration to a position deemed by that governing body as requiring specialized skills or during an emergency to prevent stoppage of public business. A retiree can be appointed for a term not to exceed one year, AND may not work more than 960 hours in a fiscal year (July 1- June 30). There is an ability to exceed 960 hours in a fiscal year if a request is made to PERS before the 960 hour limit is exceeded and PERS does not deny the request. There is no mechanism to request that the one year term be exceeded. Section 21221(h) has generally been used to fill high level vacancies for positions that are appointed by the governing body, such as City Manager, Police Chief, Fire Chief, etc., with a retiree who is willing to work for a short period of time. This arrangement helps the agency fill that position while a permanent replacement is sought. However, section 21221(h) has not always been used solely for this purpose and the current statutory language does not explicitly limit it to that arrangement. AB1028 simply takes the standard scenario described above and makes it the sole basis for postretirement employment under the statute. Moreover, if there was any question about whether the 12

22 one year limitation on post-retirement employment could be circumvented by simply reappointing the retiree to another one year term, AB 1028 explicitly prohibits subsequent appointments. Lastly, AB 1028 limits the retiree's compensation to the maximum published pay schedule for the vacant position. Changes to Government Code section are even more modest. This section does not require appointment by the governing body, but it does require that appointments be for a limited term. Currently, these appointments implicitly required specialized skills for the post-retirement appointment to be lawful. AB 1028 adds the special skills requirement in the actual statutory language. It also reinforces the limited term restriction by adding that the appointments shall be temporary. It made no other changes to that statute. AB 1028 does not affect any of the other limitations on post-retirement work, such as those applicable to retirees who retired before reaching normal retirement age or the limitations applicable to retirees who recently received unemployment insurance. AB 340 Public Employees Pension Reform Act See the Special Bulletin attached. Employee With Psychiatric Condition Could Not Establish That His Job Duty To Interact With Angry Clients Substantially Caused His Disability. Joe Valero worked as an office assistant for the County of Tulare Health and Human Services Agency. In that position, he interacted with the public, sometimes in stressful situations. In 2007, he submitted a disability retirement application to the Board of the County Employees Retirement Association (Board). He explained that he had a disabling psychiatric condition a panic disorder which was caused by his interaction with angry clients at work in December The Board denied Valero s application on the basis that his disability was not service-related. During an informal hearing, four medical opinions were reviewed. The hearing officer found that Valero failed to meet his burden to show that his County employment was a substantial factor in bringing about his psychiatric disability. The Board voted to deny Valero s application for a service-connected disability retirement. Valero filed a writ petition challenging the Board s decision. The trial court upheld the decision and the California Court of Appeal affirmed. Under the County Employees Retirement Law, a member may be eligible for service-connected disability retirement if the member s employment contributed substantially to, or was a real and measurable part of, the employee s permanent disability. The Court of Appeal found that the trial court properly disregarded or discounted the four doctors reports because they were based upon Valero s undocumented and uncorroborated selfreporting about the cause of his panic attacks, and because Valero s self-reports were not 13

23 credible. Although Valero made more than 30 visits to the emergency room for his panic attacks, only five of the visits occurred on or before his last day on the job in January At least two of these five occurred on days when Valero did not work at all. The remaining visits took place after he stopped working. Moreover, Valero s medical records from his December 2004 and January 2005 doctor and emergency room visits did not contain any mention of any attack by any angry client. In 2004, Valero even noted that the disability was not caused by his job. Finally, Valero also testified that during his five years of working with the County he regularly dealt with clients and he had been yelled at before. Valero v. Board of Retirement of Tulare County Employees Retirement Assn. (2012) 205 Cal.App.4th 960 [141 Cal.Rptr.3d 103]. Note: This case shows how important it is to review medical reports that are provided in support of a disability retirement application. Employer Could Not Reduce Contributions Toward Retiree Health Premiums In Violation Of Collective Bargaining Agreements. Since 1972, Raytheon and its predecessor paid insurance premiums for healthcare coverage for qualifying early retirees until age 65 under a series of collective bargaining agreements (CBAs) with the union. In 2003, the Company negotiated a new CBA that allowed the Company to pay for only a portion of the entire retiree health premium. The Company applied this provision retroactively and started lowering its monthly payments for retiree healthcare coverage in The retirees sued the Company under the Labor Management Relations Act for violating the CBAs. The federal district court granted summary judgment for the retirees, and the Ninth Circuit Court of Appeals affirmed. Generally, contractual obligations will cease upon termination of the bargaining agreements. But rights which accrued or vested under the agreement will, as a general rule, survive termination of the agreement. Most of the provisions in the CBA were limited to the life of the agreement. The retiree medical provision, however, was the only group coverage with a specified duration until the retiree attains age 65. Therefore, the Court found that the retiree health care provision survived the expiration of the CBAs. The Company could establish the specific benefits of medical insurance coverage in the plans, but it could not terminate its agreement to pay the health premiums it had obligated itself to pay. Alday v. Raytheon Co. (9th Cir. 2012) F.3d [2012 WL ]. Note: An employer may negotiate a second tier so new hires will have lesser benefits upon retirement than previously hired employees or current retirees, but an employer cannot 14

24 negotiate to retroactively change retiree benefits to adversely affect vested retirees. This case also highlights the impact of identifying the duration of a benefit in a MOU provision. SEX DISCRIMINATION/RETIREMENT Facially Neutral Pension Plan Did Not Support A Sex Discrimination Claim Despite A Potential Disparate Impact. City of San Diego employees contribute a percentage of their salary to fund survivor benefits and their pensions. The retirement system allows a retiring employee to choose among several options for allocating the employee s pension benefit and the survivor benefit. If a City employee is married (or has a registered domestic partner) at the time of retirement and chooses the surviving spouse benefit, the employee will receive her full monthly pension benefit until her death. At that time, if the employee s spouse or registered domestic partner survives her, the spouse or partner will receive a monthly allowance equal to half of the employee s monthly pension benefit. If a City employee is single at the time of retirement and has chosen the surviving spouse benefit, the City either refunds the employee her contributions to the survivor benefit (plus interest) as a lump sum, or treats the employee s survivor contributions as voluntary additional contributions made to provide a larger monthly pension benefit. Janet Wood was single when she retired and had chosen the surviving spouse benefit. She elected to have her survivor contributions treated as additional voluntary contributions, adding to her monthly benefit. Wood filed a class action lawsuit against the City alleging that the surviving spouse benefit violates Title VII and the Fair Employment and Housing Act. Wood s theory was that the City pays a larger amount of money to the married retirees who select the surviving spouse benefits than it does to single retirees who do the same, and because male retirees are more likely to be married, the surviving spouse benefit is lower for female retirees. It was undisputed that, in the aggregate, it costs more to fund surviving spouse benefits for married retirees than it does to refund the survivor contributions made by single retirees. The district court dismissed Wood s case. The Ninth Circuit Court of Appeals affirmed. Disparate treatment occurs where an employer has treated a particular person less favorably than others because of a protected trait. In order to successfully challenge a facially neutral policy on a disparate treatment theory, the plaintiff must prove that the employer had a discriminatory intent. The Court found that Wood could not allege that the City had any discriminatory animus. In addition, the U.S. Supreme Court previously held that a facially neutral pension plan will inevitably have a disparate impact on some protected groups. These claims are not actionable under Title VII because the difference in benefits is based on the potential life spans of men and 15

25 women and is not based upon their sex. Consequently, here, the Court upheld the dismissal without leave to amend. Wood v. City of San Diego (9th Cir. 2012) 678 F.3d Note: The U.S. Equal Pay Act, upon which the disparate impact part of this case relies, authorizes pay differentials based on any factor other than sex. The fact that pension benefits are based on the different life spans of men and women was the factor other than sex in this case. FAIR LABOR STANDARDS ACT Firefighters Not Entitled to Pay For Travel For the Firefighters Convenience Only. A group of firefighters who worked at the Menlo Park Fire Protection District s seven fire stations sued the District alleging that the Fair Labor Standards Act (FLSA) entitled them to pay for the time they spent traveling from one fire station to another in order to pick up or drop off their turnout gear, before or after working a shift. Turnout gear is the protective safety clothing worn when fighting fires. The District does not require firefighters to store their turnout gear at a particular station and provides firefighters with two sets of turnout gear. The firefighters also alleged that the District improperly excluded the cash out amount of their annual leave banks from the FLSA regular rate of pay overtime calculation. In a case handled by Suzanne Solomon of our San Francisco office, the U.S. District Court for the Northern District of California granted summary judgment in favor of the Menlo Park Fire Protection District. The evidence showed that firefighters who traveled between fire stations to pick up or drop off gear did so solely as a result of their own choice to not bring the gear home with them the last time they worked a shift. For that reason, the Court ruled the firefighters failed to establish that their traveling between fire stations served the District. Therefore, the time did not constitute compensable work. As for the regular rate of pay issue, the firefighters claimed that the unused annual leave was akin to unused sick leave, which must be included in the regular rate. The Court found that based on the characteristics of the District s annual leave plan, the unused leave was not akin to sick leave and did not have to be included in the regular rate used to calculate over-time. Balestrieri, et al v. Menlo Park Fire Protection District (N.D. 2010) CV SBA. 16