California Expands Definition Of Domestic Partners To Include Opposite Sex Couples

October 2019
Number 63

In California, registered domestic partners have “the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under the law” as spouses. (Fam. Code § 297.5, subd. (a).) Existing law limits domestic partnerships, among other requirements, to two groups of individuals: (1) couples of the same sex or (2) couples of the opposite sex, one or both of whom are over the age of 62 and eligible for social security benefits. On July 30, 2019, Governor Newsom signed Senate Bill (SB) 30 which eliminates these criteria for registering as domestic partners. As of January 1, 2020, any couple over the age of 18 (or under 18 with a court order), regardless of gender, can enter into a domestic partnership. This expansion has significant legal implications for California employers, including public entity employers.

Policy and Review of Collective Bargaining Agreements

To the extent an employer has policies, negotiated collective bargaining agreements, or employee handbooks that address domestic partnerships, it is important for employers to review such documents to ensure compliance with SB 30.

Health Benefits and Other Considerations

In light of SB 30, employers may have more employees eligible and interested in enrolling their domestic partner in an employer-sponsored healthcare plan. If such plan, whether self-insured or otherwise, offers health benefits to spouses then it must afford the same health benefits to registered domestic partners, under the same terms and conditions. Employers may, but are not required to, offer healthcare benefits to unregistered domestic partners as well. Employers should review the terms and conditions of their insurance policies/healthcare plans to ensure compliance with SB 30.

Because healthcare benefits are generally included as part of an employee’s wage for tax purposes, absent an exception, there may be related tax implications that employers should be aware of.

For more information about SB 30 and its implications for employers, or to discuss any other labor or employment questions, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Gabriela D. Flowers

Partner

Carolyn L. Gemma

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

PERB Articulates Duties Of Employer When Faced With Internal Union Strife

October 2019
Number 56

In City of Arcadia (2019) PERB Dec. No. 2648-M, the Public Employment Relations Board (PERB) grappled with a variety of issues surrounding a public employer’s duties in the face of warring factions within one of its unions, as well as the propriety of “exploding” offers-an offer or proposal that expires on a given date-in the context of labor negotiations.

PERB held that the City unlawfully interfered with internal union affairs when its police chief encouraged a union representative to oust its president, and violated its duty to meet and confer in good faith when it unilaterally set ground rules in advance of negotiations, invited a non-leadership union member to a pre-negotiations meeting without notifying the union’s official representatives, and made an exploding offer without adequate justification.

An Employer Interferes with Internal Union Affairs by Offering an Incentive for a Change in Union Leadership

Bargaining units have a right to choose their leaders without employer interference. In this case, after receiving reports of unprofessional conduct by the union president, the Chief of Police informed the vice president of the Arcadia Police Civilian Employees Association (Association) that he was cancelling the regular labor-management meetings between the City and the Association until the president no longer held that position.

PERB held that this encouragement to remove the union president constituted interference under the Meyers-Milias-Brown Act (MMBA). Suspending the labor-management meeting until a change in union leadership constituted an incentive for the union to oust its president. A reasonable employee would have viewed his comments as inserting the employer into internal union affairs and/or favoring one faction over another, and as promising a benefit if members took a particular action with respect to their leadership.

An Employer Does Not Engage in Interference by Temporarily Recognizing and Bargaining with a Newly Elected Board

An employer must maintain strict neutrality between bargaining units, as well as between competing factions within the same unit. At the same time, the employer remains obligated to deal with the union regardless of internal strife, and may have little choice but to recognize one faction on an interim basis, pending resolution of the internal union dispute. Here, members of the Association voted out existing leadership and replaced them with different members. The new leaders informed the City Manager of the election results and provided supporting documentation. The ousted president informed the City Manager that she disputed the results of the election, but the City Manager stated that he would negotiate with the newly elected Board.

While an employer may violate the MMBA if it favors one internal faction over another in a manner that materially strays from a good faith effort to comply with its duty to deal with the union’s chosen representatives, here PERB held that the City properly maintained its neutrality and complied with its good faith duty to bargain when it temporarily recognized one faction over the other.

An Employer Commits a Per Se Violation of its Duty to Bargain in Good Faith by Unilaterally Imposing Negotiations Ground Rules

It is a per se violation of the employer’s duty to bargain in good faith if it unilaterally imposes ground rules in advance of negotiations. Here, the City Manager informed the bargaining units that negotiations would commence much earlier than anticipated, that the early start date would be paired with an “accelerated” approach capped by a specific deadline and, in the absence of a deal by the deadline, there would be a “cooling off” period during which there would be no negotiations. PERB held that this constituted a per se violation of the duty to negotiate in good faith.

PERB Held that the City Violated its Duty to Bargain in Good Faith Based on Totality of Circumstances

PERB also held that under the totality of circumstances, the City acted in bad faith in its bargaining conduct with the Association. PERB based its holding on three indicia:

  1. The City’s unilateral imposition of ground rules, discussed above;
  2. The City’s undermining of the Association’s selection of itsrepresentatives; and
  3. The City’s “exploding” offer.

PERB held that the City undermined the Association’s selection of its representatives when it invited a former Association Board member who had resigned from her position years earlier, to a pre-negotiations meeting. That employee attended the meeting-which was reserved for union representatives-without the City notifying the union leadership. This act undermined the Association’s selection of representatives by giving the unauthorized member detailed information about negotiations, elevating her at the expense of the designated representatives.

PERB also held that an “exploding” offer (an offer or proposal that expires on a given date), without an adequate explanation for its termination date, indicates bad faith bargaining. Such an offer is a form of regressive bargaining-making proposals that are less generous to the other party than prior offers. These tactics are indicative of bad faith unless supported by adequate explanation of a legitimate purpose for the expiration, such as changed economic conditions or other changed circumstances.

Here, the City indicated to the Association that a “signing bonus” would not be on the table if the Association and City did not strike a deal by the end of November. The City explained that the deadline was necessary because of the City Council election in the spring, and the new Council could have different budgetary goals. PERB rejected this explanation, because there were several months between the deadline and the election, and it was speculative whether the election would lead to a new Council with goals so different as to change the City’s bargaining position.

Takeaways

Public agency employers’ obligations to bargain in good faith do not change when there is internal union strife. In such circumstances, employers should ensure they continue to engage in good faith negotiations, which may require temporary recognition of one faction over another until the internal union disputes are resolved. Employers should also be wary of presenting exploding offers, as such proposals are only lawful if the employer can demonstrate changed economic conditions or other changed circumstances to support its position. It is crucial to note that PERB’s assessment of the lawfulness of employer behavior in the face of internal union strife is very fact specific, so it is important that all employer bargaining team members understand their obligations under such circumstances.

If you have questions regarding this PERB decision, or to discuss any employee bargaining matter or labor in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Gabriela D. Flowers

Partner

Angela J. Okamura

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Department Of Labor Opinion Says Family Medical Leave Allowed For Parental Attendance At IEP Meetings At School

October 2019
Number 50

On August 8, 2019, the U.S. Department of Labor issued an opinion letter (Opinion Letter) stating that the Family Medical Leave Act (FMLA) covers intermittent leave to attend a child’s Individual Education Program (IEP) meeting, so long as the child suffers from a qualifying “serious health condition” under the FMLA. Special education IEP meetings are convened to develop, review, and revise the written document created and implemented to meet the educational needs of a child with a disability.

Under the FMLA, an eligible employee of a covered employer is allowed to take up to twelve weeks of job-protected, unpaid leave each year to “care for a family member with a serious health condition.” “Serious health condition” means an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment and care for a family member. Leave may be intermittent, and can be used to cover both psychical and psychological care, as well as making arrangements for changes in that case. The Opinion Letter informs employers that parental attendance at a qualifying child’s IEP meeting may constitute “care of a family member with a serious health condition” under the FMLA.

The Opinion Letter notes that attendance at an IEP meeting is “essential to [the parent’s] ability to provide appropriate physical or psychological care” for a child. According to the Department of Labor, parents help participants make medical decisions, discuss their child’s well-being and progress with the providers of services, and “ensure the school environment is suitable to their medical, social, and academic needs.” Such contributions constitute “arrangements for changes in care” within the scope of intermittent leave under the FMLA. Notably, a change in care for a family member does not have to involve a facility that provides medical treatment. (Wegelin v. Reading Hosp. & Med. Ctr., 909 F. Supp. 2d 421, 429-30 (E.D. Pa. 2012).)

While a child’s physician does not need to be present at an IEP meeting in order for a parent’s leave to qualify as intermittent FMLA leave, employers can continue to require employees to timely provide a copy of a certification issued by their child’s health care provider that meets the criteria to support the request for leave. It is possible that not every student with an IEP will have a serious medical condition under the FMLA. Therefore, it is important to verify that the FMLA eligibility requirements are met when a request for such leave is made.

Public agency employers should take steps to ensure that supervisors and human resource professionals are informed of this permissible use of intermittent FMLA leave and associated verification parameters. Public agencies should review employee handbooks, policies, and collective bargaining agreements regarding qualifying leave under the FMLA to determine whether any updates are necessary.

If you would like to discuss the Opinion Letter, how to handle requests for FMLA leave, whether your policies need updating, or if you have any other questions as to what constitutes “care for a family member with a serious health condition” under the FMLA, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Gabriela D. Flowers

Partner

Michelle N. Silwa

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

More Time For Paid Family Leave Is Now Available For State Employees

September 2019
Number 39

Governor Gavin Newsom recently signed Senate Bill (SB) 83. SB 83 affects employees who are eligible for and pay into State Disability Insurance (SDI). SDI allows employees to receive income replacement for up to six weeks while disabled and off work. SB 83 extends the wage replacement benefits under SDI from six weeks to eight weeks effective July 1, 2020. In addition, SB 83 expands the uses for California’s SDI to include:

  • care for a seriously ill child, spouse, parents, grandparent, grandchild, sibling, or domestic partner; or
  • bond with a minor child within one year of the birth or placement of the child through foster care or adoption.

SB 83 further requires the Governor, by November 2019, following recommendations from a task force, to present a plan to the legislature for the further expansion of paid family leave from six weeks to six months for parents to care for and bond with their newborn or newly adopted child.

Public agency employers with employees who pay into SDI should review existing leave benefits and policies and be prepared for the increase in benefits, including the increase starting July 2020, and the potential increase by 2022 pending the Governor’s November 2019 proposal.

For further information regarding SB 83, paid family leave, or employment issues in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Dulcinea Grantham

Partner

Marina L. Ramirez

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

New Law Clarifies Anti-Discrimination Laws Include Hair Discrimination

August 2019
Number 38

The California Legislature recently passed Senate Bill (SB) 188, known as the CROWN Act, which amends the definition of “race” contained in state anti-discrimination laws under both the Fair Employment and Housing Act and the Education Code to include “hair texture and protective hairstyles.” The new law does not mean that public agencies have to change their dress codes unless specific hair texture and hairstyles are specified in their policy. Rather, the new law clarifies that dress codes may be considered discriminatory if they explicitly or implicitly affect individuals who have their hair textured or styled in a manner historically associated with their race. For example, a public agency could not have a policy restricting Black workers or students from wearing dreadlocks, twists, or braids. Further, a public agency could not enforce a policy demanding “professional” or “clean and tidy” hair that effectively limits workers or students from wearing dreadlocks, twists, or braids.

Courts and administrative agencies have routinely and clearly established that public agencies have a management prerogative to impose non-discriminatory employee dress code policies. Indeed, in the K-12 school context, there is a heightened importance associated with standards for professional appearance because employees’ behavior is often imitated or modeled by students. Similarly, courts have held that school districts may impose viewpoint neutral and content neutral dress code policies for students as long as they are implemented in a consistent and equal manner among all students.

The California Legislature passed the CROWN Act to provide clarity in light of recent federal case law declining to extend anti-discrimination protections based on hairstyles or textures commonly associated with a protected class. Because hair can be changed (i.e., is mutable), federal courts have refused to equate hairstyle with race, with a limited exception for afros, and thus limited Title VII race discrimination claims to only protect against “immutable characteristics.” In contrast, the legislative analysis for SB 188 notes that discrimination is often not based on the immutable nature of a trait but is instead based on the trait’s connection with an identity associated with a protected characteristic.

Importantly, the new law reaffirms a public agency’s control over dress code policies for employees and students. These dress code policies will be lawful so long as they are imposed in a valid and non-discriminatory manner with no disparate impact on individuals based on their dress and appearance’s association with a protected characteristic. Public agencies should review their existing dress code enforcement practices to ensure compliance with SB 188. In addition, public agencies may consider conducting implicit bias training and refocus practices to ensure inclusivity and compliance with this new law.

For more information about SB 188 or about public agency dress code policies in general, whether directed at employees or students, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Gabriela D. Flowers

Partner

Joshua Whiteside

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Supreme Court Curtails Availability Of Defense To Employers In Employment Discrimination Cases

July 2019
Number 36

In Fort Bend County, Texas v. Davis, the United States Supreme Court held that the requirement to file an administrative charge with the Equal Employment Opportunity Commission (“EEOC”) prior to filing a discrimination lawsuit, which is set forth in Title VII of the Civil Rights Act of 1964 (Title VII), is not a “jurisdictional” requirement and is thus subject to waiver. This means that if an employer fails to promptly raise an objection based on an employee’s failure to file an administrative charge, courts may nonetheless have jurisdiction to preside over the case.

Background

Title VII prohibits discrimination in employment on the basis of race, color, religion, sex, or national origin. Before a complainant may file a Title VII action in civil court, a complainant must file a charge with the EEOC within 180 days of the alleged unlawful employment action. Upon receiving the charge, the EEOC notifies the employer and investigates the claim. In some instances, the EEOC may choose to bring a civil action against the employer; however, in most cases, the EEOC will issue a complainant a right-to-sue notice. Within 90 days of receipt of the right-to-sue notice, the complainant is entitled to commence a civil action against the employer. This process is often referred to as the “exhaustion of administrative remedies.”

Fort Bend County, Texas v. Davis

Attempting to seek redress for alleged harassment and retaliation for reporting sexual harassment to her employer, Fort Bend County, plaintiff Lois M. Davis submitted an intake questionnaire to the EEOC in February 2011 followed by a charge in March 2011. While her charge was pending with the EEOC, Davis was fired for failing to report to work on a Sunday when she attended church instead. Davis later attempted to supplement her charge by handwriting “religion” on the EEOC intake questionnaire she previously filled out, but she made no change to the formal EEOC charge documents. A few months later, she received a right-to-sue notice.

In January 2012, Davis filed a civil suit alleging discrimination based on religion and retaliation for reporting sexual harassment. Years into the litigation, during an appeal of an earlier motion for summary judgment, Fort Bend County moved to dismiss the case and asserted for the first time that the court lacked jurisdiction to decide Davis’s religion-based discrimination claim because she had not included the claim in her EEOC charge. The District Court held that Davis did not satisfy the charge-filing requirement with respect to the religion-based discrimination claim and that the requirement was “jurisdictional,” and could thus not be forfeited or waived by her employer. A jurisdictional bar to a claim precludes the court from considering the issue in controversy. The District Court therefore dismissed the religion-based discrimination claim because Davis never filed an administrative charge with the EEOC with respect to the religion-based discrimination claim.

The Fifth Circuit reversed the District Court’s decision and held that the charge-filing requirement is not jurisdictional and that Fort Bend County had waived the defense since it was not timely raised.

On review, the Supreme Court held that while Title VII’s charge-filing requirement is a mandatory claim processing rule, it is not a jurisdictional requirement affecting the authority of the courts. That is, a court may still have jurisdiction to consider a claim despite a complainant’s failure to satisfy the charge-filing requirement.

Notably, although the Supreme Court held that “[y]ears into litigation” was too late to raise an objection to the charge-filing requirement, the Supreme Court’s decision does not specify the appropriate time frame in which an employer must raise an objection to the charge-filing requirement before forfeiture. After this case, it is more important than ever that employers raise a failure to exhaust administrative remedies defense at the earliest possible stage of litigation.

Impact on California

Many discrimination claims filed in California arise under the Fair Employment Housing Act (FEHA) rather than Title VII. Like Title VII, FEHA prescribes specific charge-filing requirements that a complainant must satisfy before filing a civil lawsuit. WhileFort Bend County, Texas v. Davis specifically analyzes only the charge-filing requirement under Title VII, California courts analyze FEHA claims in a similar manner, with California case law suggesting that an employer waives a defense of the charge-filing requirement if not timely raised. (See Mokler v. County of Orange, (2007) 157 Cal.App.4th 121.)

Takeaways

This case serves as a cautionary tale to employers. Employers should be vigilant about confirming whether complainants have met Title VII or FEHA’s charge-filing requirement as soon as a lawsuit is filed, and if applicable, promptly raising an objection based on the failure to comply with the charge-filing requirement, or else risk forfeiting a potentially dispositive defense.

If you would like more information about this case, or have any questions related to employment claims arising under Title VII or FEHA, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Michelle L. Cannon

Partner

Courtney de Groof

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Court Reaffirms Absences To Attend Medical Appointments May Be Evidence Of A Disability

July 2019
Number 34

In Ross v. County of Riverside, decided on June 20, 2019, the California Court of Appeal for the Fourth Appellate District reaffirmed that repeated or extended absences from work for the purpose of attending doctor’s appointments amount to a limitation on a major life activity, thus physical impairments which cause such repeated or extended absences may meet the definition of a physical disability.

Christopher Ross, a County of Riverside employee, brought a lawsuit against his former employer for multiple claims including violations of the Fair Employment and Housing Act (FEHA). The trial court had granted the County of Riverside’s summary judgment motion, stating that Mr. Ross could not establish his FEHA disability-related claims. The Court of Appeal reversed, holding that although Mr. Ross had not provided any medical documentation to his employer stating restrictions or limitations on his ability to perform his job duties, the evidence presented could establish a temporary physical impairment that was actually disabling or perceived as disabling, and was enough to demonstrate there is a triable issue to allow the case to proceed in court.

Background

Mr. Ross worked for the County as a deputy district attorney. In 2013, Mr. Ross began exhibiting symptoms that required medical evaluation and testing to determine whether he had a serious medical condition.

A few months later, Mr. Ross informed his supervisors that he was receiving testing from an out-of-state clinic and that the doctors had informed him he could not have any stress at work as it was causing many of his symptoms. However, a formal diagnosis of Mr. Ross’ condition had not been made.

Shortly after notifying his supervisors of the testing, Mr. Ross requested an assignment “without stress, no quotas, no deadlines, no pressure.” At that time, the County requested a doctor’s note indicating Mr. Ross’ work restrictions or limitations. Mr. Ross did not provide medical documentation outlining any restrictions or limitations on his ability to perform his work duties, and even admitted that none of his physicians at the out-of-state clinic suggested any restrictions on his work, other than advising him to reduce his stress.

From June 2013 through November 2013, Mr. Ross missed approximately three weeks of work to attend medical appointments. The County placed Mr. Ross on a paid leave of absence pending a fitness for duty examination, but Mr. Ross never returned to work with the County.

In July 2014, Mr. Ross sued the County for multiple violations of law, including violations of FEHA’s disability-related provisions. The trial court granted the County’s motion for summary judgment as to Mr. Ross’ claims for disability discrimination, failure to reasonably accommodate and failure to engage in the interactive process, on the grounds that Mr. Ross could not establish he was disabled. The Court of Appeal reversed, finding that the trial court had erred in granting the motion as there was sufficient evidence presented by Mr. Ross to demonstrate an issue as to whether Mr. Ross had a disability under the FEHA that the trial court should consider.

“Disability” Within the Meaning of the FEHA

Both the federal Americans with Disabilities Act (ADA) and the FEHA under California law, prohibit discrimination on the basis of disability. Employers must take part in a good faith interactive process and provide reasonable accommodations to qualified individuals with disabilities, unless to do so would cause an undue hardship.

“Physical disability” is defined to include any physical impairment that affects one or more body systems-including the neurological and immunological systems, and limits a major life activity. Working is considered to be a major life activity, and a physical impairment is considered limiting if it makes the achievement of the major life activity difficult. The appellate court pointed to repeated or extended absences from work for medical appointments as constituting a limitation on the major life activity of working, therefore supporting Mr. Ross’ claim of having a “disability.”

Further, physical disabilities can be temporary or short term and include not only those physical impairments that are actually disabling, but include those which are potentially disabling or are perceived to be potentially disabling. Therefore, even in cases where an employee does not have a current disability, if by the employer’s actions it is apparent that the employer perceives the employee could be disabled in the future, this would be considered a physical disability under FEHA. The Court of Appeal found that the County’s actions in transferring Mr. Ross to another unit, requests for medical documentation, and placing him on a paid leave of absence pending a fitness-for-duty exam, potentially show that Mr. Ross had a disability or should have been perceived by the County as being disabled and therefore protected under the FEHA.

Takeaways

While the court did not decide the merits of this case, the opinion does provide many different types of evidence, including absences for medical appointments, which can establish a disability or a potential disability thereby triggering an employer’s duty to engage in the interactive process with and accommodate an employee. The decision in Ross highlights the fact-specific nature of all disability cases, and further reminds employers that their obligation to their employees may go beyond what is included in an employee’s doctor’s note.

If you have any questions about this case or labor and employment matters in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Dulcinea Grantham

Partner

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.