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.

mmacy@lozanosmith.com

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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jvanbindsbergen@lozanosmith.com

Overview

Practical Application of

Firefighter Procedural

Bill of Rights

New Laws 2018

Employee Free Speech

and Social Media

1. Open your browser on your cell phone

2. Go to: pollev.com/lozanosmith

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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Disclaimer: These materials and all discussions of these materials are for instructional purposes only and do not constitute legal advice. If you need

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 clientservices@lozanosmith.com or call (559) 431-5600.

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