Vergara v. State of California Exposes Constitutional Flaws In Public Teacher Tenure Laws

A  Los Angeles County Superior Court Judge ruled Tuesday in Vergara v. State of California that teacher tenure laws in California are unconstitutional because they deprive students of their right to an education under the State’s Constitution.  The judge also ruled that the laws governing teacher dismissal and layoff (last-in and first-out) were also unconstitutional.  Continue reading

Ninth Circuit Finds That The Garcetti “Official Duties” Rule Does Not Apply To Public University Employee Academic Speech

 The Ninth Circuit, in Demers v. Austin, 729 F.3d 1011 (9th Cir. 2013), has boldly gone — where other federal circuit courts have heretofore been reluctant to venture — in declaring that applying Garcetti to academic speech would conflict with the First Amendment.  This unequivocal decision paves the way to potential Supreme Court review of the question expressly left open in the landmark Garcetti v. Ceballos, 547 U.S. 410 (2006) decision:  whether speech on academic matters by a public university professor is protected against employer discipline by the First Amendment.

Garcetti, the pivotal free speech case involving a deputy district attorney and not an academic, held that when public employees make statements pursuant to their “official duties,” the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.  The Supreme Court reversed the Ninth Circuit in so holding.  While Garcetti transformed free speech analysis for public employees in general, the court expressly left open the potential for an exception to the “official duties” rule:  “speech related to scholarship or teaching.”  This potential exception is now the rule in the Ninth Circuit.

The Demers Case

David Demers, a now former tenured professor at Washington State University’s Edward R. Murrow College of Communication, claimed that over a three-year period, he went from being a popular teacher and scholar with high evaluations to being a target for termination.  According to Demers, this was because he distributed a pamphlet called “The 7-Step Plan” and a draft from an in-progress book he was writing entitled, “The Ivory Tower of Babel.”  During the time he distributed the 7-Step Plan and draft portions of his in-progress book, Demers served on the Morrow School’s Structure Committee, which was actively debating the faculty structure at the school following its separation from the University’s College of Liberal Arts.  The 7-Step Plan advocated separating the Morrow School’s two faculties and giving a more prominent role to the faculty with a professional, rather than an academic, focus.

In addition to his employment with the University, Demers owned and operated an independent publishing company named Marquette Books.  As the publisher of Marquette Books, he sent the 7-Step Plan to various University administrators; the pamphlet also stated that it was prepared by Marquette Books L.L.C.  Additionally, Demers offered on behalf of Marquette Books to make substantial monetary contributions to the University’s unrestricted funds if the 7-Step Plan was adopted.  Demers also sent the 7-Step Plan to members of the print and broadcast media in Washington, University administrators, and some colleagues, but did not send the pamphlet to the Structure Committee.  With respect to the in-progress book, Demers described it as containing information that was critical of the academy, including some events at the University.  He attached draft copies of chapters of his book to his application for sabbatical, and described the book in his self-prepared Faculty Annual Reports.

Demers claimed that certain University administrators violated his First Amendment rights by retaliating against him for circulating the 7-Step Plan pamphlet and drafts of his book.  The alleged retaliation included:  knowingly using incorrect information to lower his performance review scores, spying on his classes, preventing Demers from serving on certain committees, preventing Demers from teaching basic Communications courses, instigating two internal audits, sending him an official disciplinary warning, and excluding him from heading the Communications sequence at the Morrow School.  Defendant administrators responded that the evaluations and investigations were warranted based on Demers’ performance.  They also asserted that distribution of the pamphlet was not protected speech because it was written and circulated pursuant to Demers’ official duties and, in any event, it did not address a matter of public concern.

The Ninth Circuit found that it was impossible, as a practical matter, to separate Demers’ position as a member of the faculty and as a member of the Structure Committee, from his preparation and distribution of the 7-Step Plan pamphlet.  Therefore, the court concluded that Demers was acting sufficiently within his capacity as a professor in distributing the pamphlet such that he was acting “pursuant to his official duties” within the meaning of Garcetti.  Notwithstanding this fact, the Ninth Circuit – noting the Supreme Court’s long history of upholding the expansive freedoms of speech and thought associated with the university environment – concluded that Garcetti does not apply to teaching and academic writing that is performed pursuant to the official duties of the professor.  Rather, the Ninth Circuit held that the extent to which such writing and teaching is speech protected by the First Amendment is instead governed by the balancing test set forth in Pickering v. Bd. Of Ed. Of Twp. High Sch. Dist., 391 U.S. 563 (1968).

Under Pickering – a case involving a public high school teacher who wrote a letter to a local newspaper complaining about budgetary decisions made by the school district – the interests of the public employee as a citizen in speaking on matters of public concern are balanced against the interests of the government employer in promoting the efficiency of the public services it performs through its employees.  The Ninth Circuit cautioned in Demers that Pickering balancing in cases involving academic speech is likely to be particularly subtle and “difficult.”  In explaining the difficulty attendant to assessing the nature and strength of the public interest in academic speech, the Ninth Circuit explained that judges should hesitate before concluding that academic disagreements about what may appear to be esoteric topics are mere squabbles over jobs, turf, or ego (i.e., not speech on matters of public concern).  Likewise, the Ninth Circuit noted that the nature and strength of the interest of an employing academic institution will also be difficult to assess, and cautioned judges to also hesitate before concluding that they know better than the institution itself the nature and strength of its legitimate interests.  In this regard, by way of example, the court observed that while ordinarily content-based judgment is anathema to the First Amendment, the evaluation of a professor’s writing for purposes of tenure or promotion involves judgment by the employing university about the quality of what has been written that is both necessary and appropriate.

The Ninth Circuit stated, however, that not all speech by a teacher or professor addresses a matter of public concern, and that the First Amendment does not protect speech that is essentially a private grievance.  Significantly, though, the Ninth Circuit took a broad view of what could qualify as protected academic speech.  In this regard, the court noted that protected academic writing is not confined to scholarship; academics in the course of their academic duties also write memoranda, reports and other documents addressing topics such as budgets, curriculum, departmental structure and faculty hiring.  Such writing, depending on its scope and character, may address a matter of public concern under Pickering.

In Demers’ case, the Ninth Circuit concluded that his 7-Step Plan addressed a matter of public concern under Pickering because it contained serious suggestions about the future course of an important department of the University, at a time which the Morrow School itself was debating some of the recommendations.  Because the District Court had reached a contrary conclusion, the case was remanded to address the Pickering balancing questions, as appropriate.

While the broad language used by the Ninth Circuit in the Demers case could be construed as extending the reach of its Garcetti exception for academic speech beyond professors at public post-secondary institutions, and into the primary and secondary school context, it is doubtful that such a broad application is intended.  This is because the Ninth Circuit has already stated its belief that the Garcetti carve-out for academic freedom applies only to teachers at public colleges and universities, and not to public primary and secondary school teachers.  (Johnson v. Poway Unified School Dist., 658 F.3d 954, n. 12 (9th Cir. 2011).)

            A Circuit Split Beckons Supreme Court Review

The Ninth Circuit is the first federal circuit court to hold squarely that Garcetti does not apply to academic speech at the college and university level.  Other federal circuit courts that have had the chance to weigh in on the issue have been less boldly definitive.

With Demers, the Ninth Circuit takes its place alongside the Fourth Circuit, which previously declined to apply Garcetti in Adams v. Trustees of Univ. of N. Carolina-Wilmington, 640 F.3d 550 (4th Cir. 2011).  Adams involved claims by an associate professor that the university did not promote him to full professor following his religious conversion because of his outspoken Christian and conservative beliefs.  Adams became increasingly vocal following his conversion about various political and social issues within and outside of the university, became a regular columnist for, and appeared on radio and television broadcasts as a commentator.  Adams’ columns addressed topics such as academic freedom, civil rights, campus culture, sex, feminism, abortion, homosexuality, religion and morality.  He also continued to receive strong teaching reviews from students and faculty.  The Fourth Circuit – concluding that Adams’ speech reflected the appropriate aspect of scholarship and teaching – declined to apply Garcetti based on the facts of Adams’ case.  Although the Fourth Circuit acknowledged the Supreme Court’s reservation of whether the Garcetti “official duties” rule applied when the speech in question was academic scholarship and teaching, the court noted that there may be instances when a public university faculty member’s assigned duties include a specific role in declaring or administering university policy, as opposed to scholarship or teaching, and that Garcetti may apply to the specific instance of a faculty member’s speech in carrying out those duties.

On the other side of the fence, the Third, Sixth and Seventh Circuits have declined to apply an exception to Garcetti for speech in the public college and university context.  Two years after Garcetti, the Seventh Circuit decided Renken v. Gregory, 541 F.3d 769 (7th Cir. 2008).  Renken was an associate professor at the University of Wisconsin-Milwaukee, who had obtained a grant from the National Science Foundation to establish a thermal engineering laboratory that required the university to share the cost.  Although the university agreed to share the cost, Renken disagreed with the university’s proposed use of the grant money and believed that the proposed use would violate federal law.  Renken therefore filed several complaints with various university committees, and ultimately filed suit claiming that he had been retaliated against (the university allegedly refused to pay his student assistants and proposed a reduction in his compensation) for his speech, in violation of the First Amendment.  The Seventh Circuit concluded that administering the grant fell within Renken’s teaching and service duties that he was employed to perform.  Applying Garcetti without any discussion of the Supreme Court’s mention of a possible academic exception, the Seventh Circuit found that Renken’s speech was not protected by the First Amendment because it was made pursuant to his official duties as a faculty employee, and not as a private citizen.

The following year, the Third Circuit in Gorum v. Sessoms, 561 F.3d 179 (3rd Cir. 2009), applied Garcetti’s “official duties” rule to determine that a former Delaware State University professor’s advising a student athlete in a disciplinary appeal, and involvement in rescinding an invitation to the University President to speak at a fraternity event, was not protected speech under the First Amendment.  The Third Circuit, unlike the Seventh Circuit, directly addressed the Supreme Court’s statement in Garcetti regarding “speech related to scholarship or teaching.”  The court voiced its accord with the Supreme Court that there is some argument that “expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by … customary employee-speech jurisprudence.”  However, the court noted that the “full implications” of the Supreme Court’s statements were “not clear,” and that as a result, federal circuit courts “differed over whether (and, if so, when) to apply Garcetti’s official duty test to instructors.”  Ultimately, the Third Circuit dodged the issue by determining that applying the Garcetti official duties test to the professor in the case before it did not imperil First Amendment protection of academic freedom in public colleges and universities because Gorum’s actions “so clearly were not ‘speech related to scholarship or teaching.’”

More recently, in Savage v. Gee, 665 F.3d 732 (6th Cir. 2012), the Sixth Circuit applied Garcetti’s official duties test to find that the Head of Reference and Library Instruction at Ohio State University’s speech as a committee member commenting on book recommendations was made pursuant to his official duties, and was therefore not protected speech.  While acknowledging the Supreme Court’s dicta in Garcetti, the Sixth Circuit determined that the speech commenting on a book recommendation was not related to classroom instruction and “was only loosely, if at all, related to academic scholarship.”  The Sixth Circuit reasoned:  “Thus, even assuming Garcetti may apply differently, or not at all, in some academic settings, we find that Savage’s speech does not fall within the realm of speech that might fall outside of Garcetti’s reach.”

* * *

Only time will tell whether the Supreme Court provides clarity on whether, and if so, when, to apply Garcetti or Pickering to public college and university employee academic speech.  However, for the time being in the Ninth Circuit, there is no equivocating about the existence of an exception to the Garcetti official duties rule for academic speech at the college level.

- Jayne Benz Chipman

Public Sector Requests For Workplace Investigation Information: You Can’t Always Get What You Want

We are frequently asked by public employers to help them navigate requests from their employees and unions for information pertaining to the employer’s internal investigations.  While the law in this arena from the courts and PERB continues to evolve, there is a general legal framework that public employers should keep in mind when determining who gets what, when and in what form.

So, how do you determine who gets what, when, and in what form?  The answer is the classic lawyers’ answer:  “it depends on the facts.”  Nevertheless, the following checklist can guide public employers in their assessment:

•  Determine Which Rules Apply To The Type Of Investigation

While this crucial first step should be self-evident, it is surprising how often agencies do not assess up front which rules apply.  The rights of employees and their representatives to investigation information depend, fundamentally, on what rules apply.  Therefore, it is critical from the beginning of an investigation to identify the applicable rules, and rule out the ones that do not apply.  Particularly in the public sector, applicable rules can come in many forms:  statutes, administrative regulations, personnel rules, collective bargaining agreements.  Oftentimes, multiple sets of rules will apply to the same investigation.  If multiple rules apply, the agency will need to determine which rules take precedence over others in the event of a conflict.  Legal counsel should be consulted to assist in determining how to proceed in the event of a conflict.

  •  Identify Who Is Making The Request For Information

The identity of the individual or group requesting the information determines their rights, plain and simple.  For example, public safety officers generally have greater rights than other employees to certain information while an investigation is pending.

 Assess The Basis For The Request

Additionally, the basis for the request also determines the response.  If the basis for the request is not clear, the party requesting the information should be asked to specify the basis in writing so that the agency can respond.  As discussed above, statutes, regulations, personnel rules and/or collective bargaining agreements may determine the rights in any particular case.  Therefore, it is critical to pin down the basis for the request from the outset so that the agency can determine the appropriate response.

  •  Ascertain The Status Of The Investigation

The status of the investigation determines, in part, what (if any) information must be provided at any particular point in time.  As a general rule, more information may be available to more individuals and/or their representative following completion of an investigation.

•  Determine Whether Any Privileges Apply

All or a portion of an investigation report or supporting documentation may be privileged.  Particularly where the investigation has been conducted by, or in conjunction with an attorney, it will be important to carefully review each document within the request to determine whether it is protected by the attorney-client privilege or attorney work product doctrine.  Additionally, individual rights of privacy may also apply.  In such cases where potential privileges apply, legal counsel should be consulted in determining the appropriate response.

•  Determine The Form Of Any Required Response

If disclosure is appropriate, blanket disclosure may not necessarily be required.  Where issues of privacy and confidentiality are concerned, particularly for third parties, or individuals who are not managers or supervisors, redaction of names and identifying information may be appropriate.  In such circumstances, it may be possible to reach agreement with the requesting party on a form of disclosure that protects the employer’s concerns for privacy and confidentiality while providing the information that must be disclosed.

 •  Make Sure The Response Is Documented In Writing

Memories fail and stories change.  The agency should – after analyzing the facts and determining the appropriate response – make sure that its response and the reasons for the conclusion are adequately documented in writing with sufficient facts, and provided to the requesting party.  This should diminish discrepancies at a future date regarding the basis for the agency’s decision.  It will also assist the agency in proving its response, should questions arise at some future point in time as to the timing, content, or existence of a response.

- Carmen Plaza de Jennings and Jayne Chipman


U.S. Supreme Court Punts On Public Sector Age Discrimination Case

On October 15, the Supreme Court dismissed the writ of certiorari it granted in Madigan v. Levin as improvidently granted.  We had mixed feelings about the case, as it had the potential to limit the relief available under Section 1983 and the U.S. Constitution for state and local government employees complaining of age discrimination or to open the floodgates to a litany of new claims.

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California Supreme Court Finds That Unions Are Entitled To Public Employee Personal Contact Information

In County of Los Angeles v. Los Angeles County Employee Relations Commission, the California Supreme Court recently addressed an important issue involving employee privacy in public sector union representation.  The Court found that a public-sector union’s duty to represent all employees in a bargaining unit trumps their right to keep their contact information private.           

During labor negotiations with the County of Los Angeles, SEIU proposed amending its Memorandum of Understanding (MOU) to require the County to provide SEIU on an annual basis with the names and home addresses of all employees – including nonmembers – for the purpose of communicating with employees about union activities and events, sending Hudson notices (to nonmember “fair share fee payers” explaining membership options, applicable fees, and the reasons for the fees), as well as for recruitment purposes and investigation of grievances.  The County rejected SEIU’s proposal on the ground that the contact information was not relevant to any collective bargaining issue and such disclosure would violate nonmembers’ privacy rights.  The County proposed that the then-current arrangement be retained, or that the parties negotiate a procedure for employees to release their own personal information to SEIU.  SEIU withdrew its proposal and filed an unfair labor practice charge.

Ultimately, the case made its way to the California Supreme Court, where the Court addressed two issues in its decision: (1) whether the MMBA and/or labor law precedent required the County to provide the addresses and telephone numbers to SEIU, and (2) whether such disclosure violated the employees’ constitutional right to privacy.  In addressing the first issue, the Court conducted a lengthy review of legal precedent under the MMBA, PERB decisions regarding the California labor relations statutes it administers, and federal labor relations precedent under the National Labor Relations Act (NLRA).  The Court concluded that SEIU’s request for home addresses and phone numbers of County employees it represented – including nonmembers within the bargaining unit – asked for information that was presumptively relevant to the union’s representation of its employees.  Presumptively relevant information must be disclosed to the union unless the employer proves a lack of relevance or gives adequate reasons why the information cannot be supplied.  Additionally, the Court noted, that a union’s ability to obtain relevant information may be tempered by measures to accommodate privacy concerns.   

The Court then reviewed the employee privacy interests raised by the County in refusing to provide the nonmember employee home addresses and phone numbers.  While agreeing that County employees had a legally protected privacy interest in their home addresses and phone numbers, the Court concluded that the reasonableness of the employees’ expectations, however, were somewhat reduced in light of what the Court viewed as a common practice of other public employers giving unions this information.  Ultimately, the Court determined that the union’s interest in obtaining residential contact information for all employees it represents was both legitimate and important, and favored disclosure.  In this regard, the Court focused on the fact that a union’s duty of fair representation to employees includes the duty to keep employees informed about the status of negotiations or changes in contractual terms, and that the union was required to send employees the annual Hudson notice.  The Court noted that other means of union communication (bulletin boards, union meetings, worksite visits) were often inadequate.  In response to the concern that nonmember employees’ privacy would be subjected to increased contact with the union by mail and “other means,” the Court explained that if harassment is a concern, employers may bargain for procedures that allow nonmember employees to opt out and prevent disclosure of their contact information.

Finally, in finding that the court of appeal had overstepped its authority in imposing an opt-out procedure on the parties, the Court advised that employers remain free to bargain for notice and opt-out procedures in negotiating collective bargaining agreements, and can also draft employment contracts that will notify employees that their home contact information is subject to disclosure to the union and permit employees to request nondisclosure.  The Court also left open the option for PERB to adopt notice and opt-out procedures.

Significance:  This case has made clear that unions representing public employees are entitled to employee personal contact information and that employees in positions within a bargaining unit (including employees who are non-union members) should not expect their personal contact information to remain private when the employer is faced with a union’s request for information.

Carmen Plaza de Jennings and Jayne Benz Chipman

PERB’s Recent Decision In Rio Hondo Community College District Re-Ups The Ante On A Public Employer’s Obligation To Bargain Over Reasonably Foreseeable Effects

In mid-April 2009, the Rio Hondo Community College District advised the California School Employees Association (CSEA or Union) of its intent to install surveillance cameras in its new Learning Resource Center.  Thereafter, the College expanded its plans to include the placement of such cameras in its parking lots.  The cameras would show CSEA bargaining unit members while coming and going, entering and leaving a break room, cleaning public areas of the building and maintaining outdoor areas of the campus.

A couple of months after being advised of the installation of the cameras, CSEA requested to negotiate over the decision and effects of the decision to install the surveillance cameras. CSEA’s request stated that the installation of the cameras in members’ work areas impacted the working conditions of its members, including performance evaluations and potential discipline, both matters within the scope of bargaining.  The District denied CSEA’s request to negotiate.  CSEA seeking to convince the College to negotiate, again reiterated its request and provided a copy of a memorandum of understanding with another district that addressed the use of video cameras.  Unconvinced, the College reiterated its refusal to bargain.

The College in refusing to bargain with CSEA contended that to implicate an employer’s bargaining duty, a union’s effects bargaining demand must clearly identify areas of impact and absent such identification the employer has no duty to bargain.

The Administrative Law Judge concluded that the College’s denial of the Union’s request to negotiate over the decision’s effects violated EERA.  The ALJ also concluded that the College’s decision to install security surveillance cameras did have reasonably foreseeable negotiable effects.

PERB adopted the ALJ’s conclusions of law, but took the opportunity to resurrect prior PERB decisions.  In reviewing the College’s claim that the Union had failed to clearly identify negotiable effects, PERB backed away from more recent decisions relied upon by the College which had appeared to solidly establish that to implicate an employer’s bargaining duty, a union’s effects bargaining demand must clearly identify areas of impact and absent such identification the employer has no duty to bargain.  Relying on decisions primarily from the 1980s PERB noted that an employer must provide a union with notice and a reasonable opportunity to negotiate before taking action that impacts matters within the scope of representation.  This, according to PERB, includes the duty to seek clarification of what is proposed for bargaining and whether what is proposed falls within the scope of representation.  PERB noted that upon receiving a union’s demand, the employer has three options: (1) accede to the demand and address the union’s concerns in negotiations; (2) ask the union for its justification, viz., seek clarification of (a) the areas of impact proposed for negotiation and (b) whether these areas of impact are within the scope of representation; or (3) refuse the union’s demand.  In choosing the third option, the employer does so at its peril if its refusal is determined unjustified.    

Henceforth, a public employer’s faced with a vague or unspecified request for effects bargaining should seek clarification from the union before refusing to bargain.  Failure to take this step puts the employer at substantial legal risk and can result in an adverse finding against the employer by PERB.

Carmen Plaza de Jennings

U.S. Supreme Court To Decide Whether Section 1983 Suits Are Precluded By The ADEA

The U. S. Supreme Court has granted certiorari in an important public sector employment case.  Specifically, the Supreme Court will decide whether an employee of a state or local government can bring suit for age discrimination under 42 U.S.C. §1983 (Section 1983) to enforce the Equal Protection Clause of the Fourteenth Amendment  or whether such suits are precluded by the Age Discrimination in Employment Act (ADEA). 

The decision will be significant to public sector employers for at least five reasons:

(1)  State employees cannot recover damages against their employer under the ADEA because such claims are barred by sovereign immunity, but there is no such bar under Section 1983.

(2)  The ADEA does not allow for suit against individual defendants, but Section 1983 does.

(3) The ADEA expressly limits or exempts claims by certain individuals, including elected officials and certain members of their staff, appointees, law enforcement officers, and firefighters, but Section 1983 contains no such limitation.

 (4)  The ADEA requires employees to file an administrative charge of discrimination with the EEOC and holds aggrieved employees to strict statutes of limitation, but Section 1983 allows employees direct access to courts without those hurdles; and

 (5) Section 1983 allows for potentially unlimited damages whereas suits under the ADEA are subject to a damages cap.

Simply, Section 1983 opens a huge can of worms for public sector employers.

For you history buffs out there, Section 1983 was enacted during Reconstruction by providing a remedy to individuals denied constitutional rights by states or “under color of state law.”  The purpose of Section 1983 was to provide a remedy for individuals aggrieved by a state where none previously existed.

Before last August, every federal appellate court to address the issue, including the Ninth Circuit, had found that the ADEA precluded a claim for age discrimination under Section 1983.  Generally speaking, when a statute allows for a “comprehensive remedial device,” claims under Section 1983 are precluded.  All of the appellate courts to have considered this issue had found that the ADEA offered a comprehensive remedy to aggrieved state employees and thus refused to allow claims under Section 1983.

Last August, however, in Levin v. Madigan, the U.S. Court of Appeals for the Seventh Circuit became the first appellate court in the country to find that the ADEA did not preclude a claim for age discrimination under Section 1983.  Although it acknowledged that it was a “close call,” the Seventh Circuit found that the ADEA did not preclude a claim to enforce a constitutional provision, but rather only precluded a claim arising out of a statute.

The Supreme Court does not tip its hand as to why it took up a case or how it is leaning, but to be sure, it took this case to resolve the split between the circuit courts.  The Supreme Court has a mixed record on Section 1983 preclusion cases, but recently it has found claims to be precluded in a variety of contexts,.  But, it recently found that Title IX of the Education Amendments of 1972, which prohibits discrimination by educational institutions, did not preclude a claim for damages under Section 1983 claim despite Title IX’s broad remedial scheme.  The case should be decided in the Fall Term of 2013 and we will keep you posted with any updates. 

 - Dan Handman

New Employment Laws for 2013

In addition to the new laws relating to religious accommodation and social media (reported in our recent eAlerts), Governor Brown recently signed into law the following bills affecting employers.  Unless otherwise noted below, these laws will come into effect on January 1, 2013:

New Laws Affecting All Employers

Itemized Wage Statements (AB 1744)

  • Amends Labor Code section 226 to define what is an “injury” for purposes of violating the itemized wage statement statute.  Specifically, an employee suffers an injury if either no wage statement is provided or if the employer fails to provide accurate and complete information and the employee cannot promptly and easily determine from the wage statement the following: (1) amount of gross or net wages paid to the employee during the pay period; (2) total hours worked; (3) piece rate units earned and rate; (4) deductions; (5) pay period; (6) hourly rates and corresponding hours worked at each rate; (7) name and address of the employer or legal entity that secured the employer’s services; and (8) name of the employee and only the last four digits of the employee’s social security number or identification number.
  • Clarifies that an itemized wage statement “copy,” which employers are required to keep on file for at least 3 years, can include a computer-generated record instead of an actual duplicate copy.
  • Beginning July 1, 2013, temporary services employers are required to include the rate of pay and total hours worked for each temporary services assignment.  Additionally, effective January 1, 2013, temporary services employers must include in the mandatory Wage Theft Notice provided to new employees the name, physical address of the main office, mailing address (if different from physical address) and phone number of the legal entity for whom the employee will perform work.

Wage Garnishment (AB 1775)

  • Increases the amount of wages protected from garnishment.  Under existing law, the maximum amount of wages exempt from garnishment was the lesser of 25% of an individual’s weekly disposable earnings or 30 times the federal minimum hourly wage (i.e. 30 x $7.25).  Under the new law, the maximum amount of wages exempt from garnishment will be the lesser of 25% of an individual’s weekly disposable earnings or 40 times the California minimum wage (40 x $8.00).

Warehouse Contractors And Sufficient Funds (AB 1855)

  • Adds warehouse contractors to a list of labor services contractors (construction, farm labor, garment, janitorial, security guard) with whom companies are prohibited from entering into contracts where the company knows or should know that the contract does not provide sufficient funds to allow the contactor to comply with state and federal wage and hour laws.

Compensation Agreements (AB 2103)

  • Overturns existing appellate case law by specifying that payment of a fixed salary to a nonexempt employee provides compensation only for the employee’s regular, non-overtime hours, notwithstanding any “explicit mutual wage agreement” or other private agreement to the contrary.

Breastfeeding (AB 2386)

  • Amends the Fair Employment and Housing Act to provide that the term “sex” includes breastfeeding or medical conditions related to breastfeeding.

Inspection And Copying Of Employee Personnel Records (AB 2674)

  • Requires employers to make current or former employees’ personnel records available for inspection or provide a copy if the employee requests within 30 calendar days of the employer’s receipt of the employee’s written request.  The request must be in writing but may be on an employer-provided form.  The employer may designate the person to whom a request must be made.  The parties may agree in writing to a date longer than 30 days but not to exceed 35 days from the employer’s receipt of the request.  The employer may redact the names of any nonsupervisory employees contained in the records prior to inspection or copying.
  • The employer must make the records available for inspection or copying to current employees at the place where the employee reports to work or another mutually agreed upon location.
  • The employer must make the records available for inspection or copying to former employees where the employer stores the records, unless mutually agreed upon in writing.
  • The employee may receive a copy by mail if he or she reimburses the employer for postal expenses.  If the employee was terminated for violation of law or an employment-related policy involving harassment or workplace violence, the employer may make the records available at a location a reasonable driving distance from the former employee’s residence or may mail the records.
  • Employers are only required to comply with one request for inspection or copying per year by a former employee.  An employee representative cannot request more than 50 records (i.e. of 50 different employees) per calendar month.
  • Employers are required to retain personnel files for three years after the employee’s termination of employment.
  • These provisions do not apply to an employee covered by a valid collective bargaining agreement that provides for a procedure for copying and inspection of personnel records.

Exempting Certain Payments From Written Agreement Requirement (AB 2675)

  • Legislation passed last year mandates that effective January 1, 2013, employment contracts involving commissions as a method of payment must (1) be in writing; (2) set forth the method by which the commissions are required to be computed and paid; and (3) contain a singed receipt for the contract from each employee.  AB 2675 clarifies that the term “commissions” does not include short-term productivity bonuses, temporary variable incentive payments that increase but do not decrease payment under the written contract, or bonus and profit-sharing plans, unless the employer has offered to pay a fixed percentage of sales or profits as compensation for work to be performed.

Prevailing Wages (AB 2677)

  • Increased employer payment contributions that result in a lower hourly straight time or overtime wage is not a violation of the applicable prevailing wage determination as long as certain specified conditions are met.

New Laws Affecting Public Sector Employers

Paid Leaves Of Absences For Unelected Members (AB 1203)

  • Requires a school district or a community college district to provide a paid leave of absence to a classified employee who is an unelected member of a school district public employee organization or community college district public employee organization for activities the member is authorized by the organization to attend and would require the employee organization to reimburse the school district or community college district on behalf of an unelected member who receives a paid leave of absence.  It also requires an employee organization to provide reasonable notification to the employer requesting a leave of absence without loss of compensation for any of the above-described activities.

On September 30, 2012, Governor Brown vetoed bills that:  (1) governed the working conditions of domestic employees; (2) prohibited an employer from refusing to hire an individual who was unemployed; and (3) governed the working conditions of agricultural workers.  Those bills may resurface in the future.

In light of these upcoming changes to the law, employers should focus on the following highlights:

  • Ensure that their itemized wage statements comply with the new requirements of Labor Code section 226;
  • Ensure that as of January 1, 2013, that garnishment of employees’ wages comports with California’s new wage garnishment law and be aware that they may receive garnishment orders in 2013 that are out of date;
  • Familiarize themselves with the new rules and deadlines regarding inspection and copying of current and former employees’ personnel files;
  • Ensure that compliant commission agreements are executed by employees by January 1, 2013; and
  • Update all handbooks and employment policies regarding breastfeeding, religious dress and grooming and social media protection.

- Amy Durgan (San Francisco)