LABOR AND EMPLOYMENT LAW UPDATE FOR MAY 2016 LEAGUE OF CALIFORNIA CITIES CONFERENCE. Timothy L. Davis. Burke, Williams & Sorensen, LLP

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1 LABOR AND EMPLOYMENT LAW UPDATE FOR MAY 2016 LEAGUE OF CALIFORNIA CITIES CONFERENCE Timothy L. Davis Burke, Williams & Sorensen, LLP

2 OVERVIEW FOR 2016 UPDATE Labor Law Court Decisions Employment Law Court Decisions New Legislation

3 2016 Labor Law Decisions

4 Meyers-Milias-Brown Act 4 th District Court of Appeals issues two decisions on March 30, 2016 on MMBA s factfinding San Diego Housing Commission v. Public Employment Relations Board County of Riverside v. Public Employment Relations Board Holding: Factfinding impasse process applies to single issue bargaining disputes and not just impasse arising in contract negotiations.

5 Meyers-Milias-Brown Act Keys to Decisions No limiting language in the MMBA on factfinging to contract negotiations. PERB consistently has applied analogous provisions in EERA and HEERA to all impasses. Consistent with duty to bargain and furthers purpose of MMBA Home Rule argument rejected because factfinding panel s decision is advisory.

6 Friedrichs v. California Teachers Association (Mar ) Plaintiff s argued that their free speech and associational rights under First Amendment were violated by having to support the activities of public unions which are inherently political. 4-4 vote by US Supreme Court affirmed lower court decision rejecting the Plaintiff s arguments.

7 Friedrichs v. California Teachers Association (Mar ) Abood v. Detroit Board of Education, 431 U.S. 209 (1977) remains good law and held: Fees are necessary to avoid non-members from acting as free loaders by securing the benefits of union representation without paying their fair share.

8 Employment Law Court Decisions

9 Mayo v. PCC Structurals, Inc 765 F.3d 941 (9 th Cir. 2015) The employer terminated Mayo who had been employed for 11 years based on threats made to coworkers about his supervisors. Mayo contended that his statements about his supervisors were symptoms of his disability and medical condition and sued for wrongful termination in violation of the ADA.

10 Mayo v. PCC Structurals, Inc 765 F.3d 941 (9 th Cir. 2015) Mayo s threats about his supervisors were reported to management by his coworkers and the employer conducted an investigation. Mayo then went on medical leave and returned to work after he was medically cleared by his medical providers. His employer terminated him immediately upon his return from medical leave.

11 Mayo v. PCC Structurals, Inc, 765 F.3d 941 (9 th Cir. 2015) Court of Appeal upheld summary judgment on the grounds that Mayo was no longer a qualified individual with a protected disability once he made the threats about his supervisors. Recall last year s decision Weaving v. City of Hillsboro 763 F. 3d. 110 (9 th Cir. 2014) where Ninth Circuit narrowed scope of the ADA based on plaintiff s inability to get along with coworkers.

12 France v. Johnson, 795 F.3d 1170, (9 th Cir. 2015) A 54 year older border patrol agent applied for a promotion and was denied. He brought claim for age discrimination under Age Discrimination in Employment Act. 23 other eligible candidates applied and a promotional assessment test reduced the list to 12 for a panel interview. Plaintiff was one of the 12 interviewed but he was not selected among a group of six for final consideration District Court granted summary judgment on the grounds there was a legitimate business reason for the denial of the promotion.

13 McDonnell Douglas Burden Shifting Standard Employee s prima facia case of age discrimination. Member of protected class (over 40) Qualified for the position (confirmed by test) Suffered an adverse employment action (denied for the position) Promotion given to substantially younger person (key issue in the case) Burden shifts to employer to provide legitimate business reason for employment action. Employee must show employer s stated legitimate business reason is a pretext.

14 France v. Johnson 795 F.3d 1170, (9 th Cir. 2015) Employer argued that because 4 of the 6 interviewed were less than eight years younger than the France, he could not meet the 4 th prong of the test. Split of authority among circuits on less than ten years of age difference rule. 9 th circuit adopts standard that less than 10 years of age difference creates rebuttal presumption of a legitimate business reason.

15 France v. Johnson 795 F.3d 1170, (9 th Cir. 2015) Court of Appeal overturns the summary judgment motion. Court holds that McDonnel Douglas burden shifting analysis does not apply when direct evidence of discrimination is offered. Here, employee was able to provide evidence that one the panel members made statements in the workplace about his preference to promote younger people.

16 Jumaane v. City of Los Angeles, 241 Cal.App.4 th 1390 (2015) Plaintiff was an African American firefighter who filed a suit alleging racial discrimination, harassment, and retaliation under the FEHA. He alleged that because of his opposition to discriminatory practices in the Fire Department he received two adverse employment actions (10 day suspension in 1999 and 15 day suspension on April 16, 2001).

17 Jumaane v. City of Los Angeles, 241 Cal.App.4 th 1390 (2015) Plaintiff filed his complaint with the DEFH on April 16, After a second trial on the matter, the jury returned a verdict in favor of the Plaintiff. City moved for a judgment notwithstanding the verdict on the grounds that Plaintiff s claims were time barred because he did not file his DFEH discrimination complaint within the one year statute of limitation.

18 Jumaane v. City of Los Angeles, 241 Cal.App.4 th 1390 (2015) The Trial Court denied the motion and the City appealed. Court of Appeal in deciding the matter analyzed the continuing violation doctrine which is an exception to the one year statute of limitation. When a defendant asserts the statute of limitations defense, burden shifts to plaintiff to prove timeliness of the claim.

19 Jumaane v. City of Los Angeles, 241 Cal.App.4 th 1390 (2015) For continuing violation doctrine to apply all three elements must be met. Conduct was similar or related to the conduct that occurred earlier Conduct was reasonably frequent Conduct had not yet become permanent. The Court further held that because most of the conduct presented to the jury was time barred, there was insufficient evidence to support the verdict.

20 EEOC v. McLane Co. Inc. 804 F.3d 1051, (9 th Cir. 2015) EEOC conducted investigation of a charge of sex discrimination in violation of Title VII of Civil Rights Act. Charge alleged that after returning from maternity leave employee was inappropriately required to take a strength test and was terminated after she failed it 3 times. Employer provided information to EEOC related to employees who were required to take test where charging party worked, including gender, reason for test, and result (pass or fail).

21 EEOC v. McLane Co. Inc. 804 F.3d 1051, (9 th Cir. 2015) Employer objected on relevance grounds to EEOC s request for information which contained test taker s name, social security number, telephone number and last known address. District court refused to enforce the EEOC s subpoena for these items on the grounds of relevance.

22 EEOC v. McLane Co. Inc. 804 F.3d 1051, (9 th Cir. 2015) Court of Appeal overturned decision Held: In administrative investigations, there is a lower standard of relevance than during trial. Information is relevant if it helps the EEOC determine whether there is reasonable cause to prove if the underlying charge of discrimination is true.

23 EEOC v. McLane Co. Inc. 804 F.3d 1051, (9 th Cir. 2015) Holding (cont) Information would assist EEOC with contacting other employees regarding their experience with the strenght test. Keep in mind new rules that allow charging party to obtain employer s response filed with the EEOC.

24 Poole v. Orange County Fire Authority, 61 Cal.4 th 1378 (2015) Fire captain maintained informal daily logs containing notes on his subordinates for his use to draft their annual performance evaluations. Mr. Poole was not provided a copy of the notes nor made aware they were being taken. Mr. Poole was given annual evaluation and placed on a Performance Improvement Plan.

25 Poole v. Orange County Fire Authority, 61 Cal.4 th 1378 (2015) Issue in the case was whether supervisor s log would constitute a file used for personnel purposes and subject to the requirements of FFBOR (disclosure to employee and right to comment). Mr. Poole and his union requested that the OCFA remove all adverse comments in his personnel file located at the station house.

26 Poole v. Orange County Fire Authority, 61 Cal.4 th 1378 (2015) The OCFA denied the request on the grounds that the notes were never entered into any file as required by FFBOR. Employer argued that adverse comments from daily log were provided in personnel file via the evaluation and Mr. Poole had the opportunity to review the evaluation and respond to any adverse comments at that time.

27 Poole v. Orange County Fire Authority, 61 Cal.4 th 1378 (2015) California Supreme Court overturned the Court of Appeal. Decision turned on the fact that the supervisor s log was not shared with or available to anyone else so not a personnel file. Court also provided lessons on statutory construction 3 provisions of FFBOR reviewed to provide meaning

28 Poole v. Orange County Fire Authority, 61 Cal.4 th 1378 (2015) Maintaining logs for individual supervisor use will not trigger FFBOR. (POBR has similar provisions) Documents which will trigger protections Index cards Background investigations Citizen s complaints Discrimination complaints Watch logs questionable after Poole

29 New Laws Effective In 2016

30 SB 538 California Fair Pay Act Goes into effect on January 1, Labor Code Section Existing law prohibited employers from paying wage rates less than the rate paid to employee of the opposite sex for equal work comparing equal skill, effort and responsibility, and performed under similar working conditions.

31 SB 358 California Fair Pay Act Eliminates equal work on jobs that require equal skill, effort and responsibility and shifts standard to substantially similar work. Places burden on employer. Prohibits discrimination and retaliation against employees Increases recordkeeping requirements from two to three years.

32 SB 358 California Fair Pay Act Burdon on Employer Wage differential based on one or more specified factors; Each factor was relied upon reasonably; and One or more factors accounts for entire wage differential such as 1)seniority system, 2)merit system, 3) a system that measures earning by quality or 4) a bona fide factor other sex such as education, training or experience.

33 AB No. 987 Fair Employment and Housing Act Effective January 1, 2016 Government Code Request for accommodation of a person s disability or religious beliefs is protected activity. Anti-retaliation provision Overturned: Rope v. Auto-Chlor Syst. of Washington, Cal. App. 4th 635 (2013) which held request without more is not protected activity under FEHA.

34 AB 1509 EXPANSION OF WHISTELBLOWER PROTECTIONS Labor Code Sections: 98.6, , & 6310 Expands the whistleblower and anti-retaliation protections to family member who engages in protected activity such as complaining about unsafe working conditions or violations of the law.

35 Questions?

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