![Page 1: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/1.jpg)
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
![Page 2: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/2.jpg)
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
![Page 3: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/3.jpg)
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.
3
![Page 4: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/4.jpg)
Overview
Practical Application of
Firefighter Procedural
Bill of Rights
New Laws 2018
Employee Free Speech
and Social Media
![Page 5: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/5.jpg)
1. Open your browser on your cell phone
2. Go to: pollev.com/lozanosmith
Interactive Presentation!
![Page 6: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/6.jpg)
PHONES
UP
![Page 7: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/7.jpg)
7
![Page 8: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/8.jpg)
PHONES
DOWN
![Page 9: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/9.jpg)
FIREFIGHTERS PROCEDURAL
BILL OF RIGHTS
![Page 10: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/10.jpg)
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
10
![Page 11: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/11.jpg)
PHONES
UP
![Page 12: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/12.jpg)
12
![Page 13: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/13.jpg)
PHONES
DOWN
![Page 14: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/14.jpg)
Why Evaluate?
![Page 15: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/15.jpg)
15
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.
![Page 16: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/16.jpg)
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.”
16
![Page 17: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/17.jpg)
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.)
17
![Page 18: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/18.jpg)
What About the
“Personnel File”?
18
![Page 19: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/19.jpg)
PHONES
UP
![Page 20: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/20.jpg)
20
![Page 21: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/21.jpg)
PHONES
DOWN
![Page 22: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/22.jpg)
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.
22
![Page 23: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/23.jpg)
NEW LAWS 2018
![Page 24: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/24.jpg)
AB 168 – Salary Information
![Page 25: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/25.jpg)
Salary History
• Prohibits:
–an employer from
asking an applicant
about prior salary
– using salary as a
basis for deciding
whether to offer the
job
25
![Page 26: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/26.jpg)
Salary History
• Requires:
– employer to provide a
wage scale upon
demand
• Allows:
– Applicant to disclose
salary history information
– Review of public salary
information
26
![Page 27: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/27.jpg)
AB 1008 – Ban the Box
![Page 28: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/28.jpg)
PHONES
UP
![Page 29: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/29.jpg)
29
![Page 30: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/30.jpg)
PHONES
DOWN
![Page 31: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/31.jpg)
“Ban the Box”
31
• 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
![Page 32: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/32.jpg)
SB 396 – New Sexual Harassment
Training Requirements
![Page 33: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/33.jpg)
Sexual Harassment Training
• Sexual harassment training must now
address:
33
Gender Identity
Sexual Orientation
Gender Expression
![Page 34: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/34.jpg)
Sexual Harassment Training
34
• Employers are now required to display a poster
on transgender rights
• Poster can be found on DFEH website
![Page 35: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/35.jpg)
SB 179– Gender Recognition Act
![Page 36: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/36.jpg)
“Nonbinary” Gender Option
36
• 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
![Page 37: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/37.jpg)
AB 2337 – Notice of Domestic
Violence Rights
![Page 38: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/38.jpg)
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
38
![Page 39: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/39.jpg)
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
39
![Page 40: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/40.jpg)
SB 63 – New Parent Leave Act
![Page 41: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/41.jpg)
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
41
![Page 42: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/42.jpg)
AB 46 – Fair Pay Act
![Page 43: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/43.jpg)
PHONES
UP
![Page 44: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/44.jpg)
44
![Page 45: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/45.jpg)
PHONES
DOWN
![Page 46: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/46.jpg)
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
46
![Page 47: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/47.jpg)
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”
47
![Page 48: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/48.jpg)
AB 119 – Union Access to New
Employee Orientations
![Page 49: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/49.jpg)
PHONES
UP
![Page 50: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/50.jpg)
50
![Page 51: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/51.jpg)
PHONES
DOWN
![Page 52: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/52.jpg)
Union Access to New Employee Orientations
52
• 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
![Page 53: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/53.jpg)
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
53
![Page 54: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/54.jpg)
Union Access to New Employee Orientations
54
• Review current
employee orientation
procedures to ensure
compliance
• Consider feasible
options for providing
union access
![Page 55: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/55.jpg)
AB 512– Public Employees
Retirement Law
![Page 56: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/56.jpg)
Disability Retirement
56
• Extends ability to
apply for Industrial
Disability
Retirement for
public safety
employees to
January 1, 2023.
![Page 57: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/57.jpg)
Retiree Work Limit
![Page 58: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/58.jpg)
960 Hour Requirement
58
• Suspends 960
hour requirement
for retired
annuitants who
assist California
counties battling
fires and
mudslides.
![Page 59: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/59.jpg)
EMPLOYEE FREE SPEECH AND
SOCIAL MEDIA
![Page 60: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/60.jpg)
Is it free
speech?
Or is employee
conduct subject
to discipline?
60
![Page 61: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/61.jpg)
Employee Free Speech: The Legal Foundation
61
Public employees:
First Amendment free
speech rights to
comment on matters
of “public interest” or
“public concern”
![Page 62: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/62.jpg)
Balancing Test
62
Balance government
workplace interests vs.
employee speech as a
citizen.
If balance tips in favor of
the Employer, the
Employer may regulate the
speech.
![Page 63: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/63.jpg)
Electronic Conduct
63
• 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
![Page 64: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/64.jpg)
![Page 65: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/65.jpg)
Is it okay to use social media while on duty?
Fire station is “home”
while on duty
65
![Page 66: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/66.jpg)
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?
66
![Page 67: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/67.jpg)
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
67
![Page 68: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/68.jpg)
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
68
![Page 69: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/69.jpg)
Take-Aways
![Page 70: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/70.jpg)
Take-Aways
• Update notices
• Review procedures
• Be aware of employee rights
• Consult your legal counsel if your unsure
70
![Page 71: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/71.jpg)
Questions
71
![Page 72: Protecting Your Own: Implementing the Latest Go to ...€¦ · advising clients on the Brown Act, Public Records Act, conflict of interest issues and development of governing board](https://reader033.vdocument.in/reader033/viewer/2022042313/5edbf0b9ad6a402d666663ad/html5/thumbnails/72.jpg)
72
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 [email protected] or call (559) 431-5600.
Copyright © 2018 Lozano Smith
All rights reserved. No portion of this work may be copied, distributed, sold or used for any commercial advantage or private gain, nor any derivative
work prepared therefrom, nor shall any sub-license be granted, without the express prior written permission of Lozano Smith through its Managing
Partner. The Managing Partner of Lozano Smith hereby grants permission to any client of Lozano Smith to whom Lozano Smith provides a copy to use
such copy intact and solely for the internal purposes of such client. By accepting this product, recipient agrees it shall not use the work except
consistent with the terms of this limited license.