Retiree Work Hour Limitation Suspended for Fire and Mudslide Response Work

February 2018
Number 4

Governor Jerry Brown has suspended the 960-hour per year work hour limit for retired annuitants who assist California counties battling fires and mudslides. CalPERS announced Brown’s suspension of the rule in a January 29 Circular Letter.

Governor Brown issued a pair of executive orders lifting the work hour limit and other rules in an effort to expedite hiring of emergency workers and to streamline the recovery of communities devastated by the disasters. In addition to suspending the work hour limitation for retired annuitants who assist in disaster response and recovery in the affected counties, the emergency orders exempt retired annuitants hired to expedite disaster recovery from separation and break in service requirements and also, limits on the duration of emergency appointments, the Circular Letter says.

Generally, CalPERS retirees may only work 960 hours per year. Retirees who have reached normal retirement age may only be employed with such an employer after their first 180 days of retirement have passed and only during an emergency to prevent stoppage of public business or because they have skills needed to perform work of limited duration, unless an exception applies.

Retirees who have not reached normal retirement age must have a bona fide separation in service. Normal retirement age is defined by CalPERS as the benefit formula age for a position, i.e. age 55 for the 2% at 55 retirement formula. For a bona fide separation to have taken place, the employee must have a 60-day separation from employment and there must not be a pre-determined agreement between employer and employee to work after retirement.

The suspension applies to hours worked to expedite disaster response and recovery in the affected counties beginning on the date a state of emergency was declared and remaining in place until the declaration is lifted. The Governor issued state of emergency declarations on the following dates:

  • Napa, Sonoma, Yuba, Butte, Lake, Mendocino, Nevada and Orange counties: October 9, 2017
  • Solano County: October 10, 2017
  • Ventura County: December 5, 2017
  • Santa Barbara County: December 7, 2017

Per the Circular Letter, all other provisions related to working after retirement will continue to apply, including the requirement that local government agencies continue to enroll and report retired annuitants to CalPERS, the limits on hourly compensation rates and the prohibitions on other forms of compensation in addition to the hourly pay rate, including any benefit, incentive, or compensation in lieu of benefits.

Any agency employing a retired annuitant pursuant to the waivers must notify the director of the California Department of Human Resources. Notification may be sent via email to wildfirerecovery2017@calhr.ca.gov.

In its letter, CalPERS said it will continue to monitor work hours for retired annuitants covered by the Governor’s executive orders and will communicate to confirm when a violation of the work order limitation is found and if it is accepted under the exception in the executive orders. Anyone with questions about the waivers may contact CalPERS’ Customer Contact Center at (888) 225-7377.

For more information about the impact of the Governor’s executive orders or about pensions in general, please contact an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Thomas R. Manniello

Partner

Michele Ellson

Paralegal

©2017 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.

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Opioid Testing Now Required for Employees in Safety-Sensitive Transportation Positions

December 2017
Number 86

Effective January 1, 2018, the federal Department of Transportation (DOT) will require safety-sensitive transportation employees, such as county, city, and school district bus drivers, to be tested for prescription opioids in an effort to tackle opioid abuse. The DOT’s final rule, which was published on November 13, 2017, amends the Code of Federal Regulations.

Under the new rule, the DOT will require safety-sensitive transportation employees to be tested for the following four “semi-synthetic opioids”: hydrocodone, oxycodone, hydromorphone, and oxymorphone. These opioids are commonly known as OxyContin, Percodan, Percocet, Vicodin, Lortab, Norco, Dilaudid and Exalgo. The employees will continue to be tested for other drugs, including marijuana, cocaine, and methamphetamine.

Six federal agencies, including the Federal Motor Carrier Safety Administration (FMCSA) and Federal Transit Administration (FTA), define safety-sensitive positions. Under the FMSCA, safety-sensitive positions include operators of commercial motor vehicles. The FTA provides that employees in safety-sensitive positions include those who operate, control, and/or maintain a revenue service vehicle; operate a vehicle that requires a commercial driver’s license; and those who carry a firearm for security purposes.

Under current law, an employee in a safety-sensitive position can only use prescription pain medications if a medical practitioner familiar with the employee’s medical history and job duties has advised the employee that the medication will not “adversely affect” his or her ability to safely perform their job duties. However, not all employees ask their medical practitioners if their medications will impact their ability to work or ask their employers whether they can continue working while using these pain medications.

The DOT’s new rule will increase the regulation of employees’ use of prescription pain medications. If employees test positive for these medications, they will still have an opportunity to provide a “legitimate medical explanation” to medical review officers, the independent physicians responsible for receiving and reviewing results from a drug test. According to the DOT’s new rule, a “legally valid prescription” can constitute a legitimate medical explanation, but a medical review officer is still required to interview the employee and review his or her medical records before deciding whether his or her result from a drug test is negative. Even if the result is ultimately negative, the medical review officer may have a responsibility to raise fitness-for-duty considerations with an employer.

The DOT’s new rule provides employers another opportunity to inform employees in safety-sensitive positions about the effect prescription pain medications may have on their ability to safely perform their job duties. For more information about the DOT’s new rule or drug and alcohol testing 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 visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Dulcinea A. Grantham

Partner

Ameet K. Nagra

Associate

©2017 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.

When is Paid Administrative Leave an Adverse Employment Action?

December 2017
Number 84

According to a recent court decision, “it depends.”

On November 15, 2017, a California appellate court held inWhitehall v. County of San Bernardino that paid administrative leave can constitute an adverse employment action in certain circumstances. Even though the plaintiff employee was placed on paid administrative leave during the pendency of an investigation into her alleged wrongdoing, the court found that under the particular facts presented, the leave was an adverse employment action.

Background

Mary Anna Whitehall was a social worker for San Bernardino County. Whitehall was involved in a dependency case in which she was directed to withhold evidence and to submit altered evidence to the court. Whitehall believed these actions could endanger children and, through her own legal counsel, filed a motion to inform the court of the suspected fraud.

Six days after the motion was filed, Whitehall was placed on paid administrative leave for a two-month period. According to the county, Whitehall was placed on leave to facilitate an investigation of her alleged violation of the county’s rules against disclosing confidential information to unauthorized individuals. The county concluded that Whitehall violated the policy and acted to terminate her, but Whitehall resigned in lieu of termination.

Whitehall then sued the county, alleging it retaliated against her for her whistleblower activities. The trial court ruled in Whitehall’s favor and the appellate court upheld the trial court’s ruling. The Court of Appeal held that placing Whitehall on administrative leave and terminating her employment were acts of retaliation by the county. While administrative leave is not always an adverse action, the court said that it is an adverse action when it “materially affects the terms, conditions, or privileges of employment.”

The court acknowledged that “[r]etaliation claims are inherently fact-specific, and the impact of an employer’s action in a particular case must be evaluated in context.” Citing a previous appellate decision, the court noted that a lateral transfer to a position with equal pay could be an adverse action if it was “reasonably likely to impair [an employee’s] job performance” or likelihood of success. The court said that Whitehall’s administrative leave was an adverse action because she was placed on leave in the context of the county’s disciplinary investigation rather than as a reward or accommodation or at her request, and her leave coincided with the termination of the original social worker involved in the case. The court also noted that the county’s own evidence confirmed its intention to terminate Whitehall for disclosing the county’s attempt to manipulate evidence to the juvenile court.

Takeaways

Paid administrative leave is an important tool that allows an employer to temporarily remove an employee from the workplace in certain situations. Paid administrative leave should not be used as a punitive measure and, if used properly, will not constitute an adverse employment action. Employers must thoroughly evaluate the reasons for the administrative leave and assess the decision on a case-by-case basis.

This is especially important when paid leave is being considered for an employee who may have engaged in a protected activity (e.g., whistleblowing, union activism, filing of a grievance or claim) from which a retaliation claim could be alleged. Some questions employers should consider before using administrative leave in these cases include:

  • What articulable problems are likely to arise if the employee is not removed from the workplace?
  • Are there other ways to address the situation without placing the employee on leave?
  • Is placement on administrative leave a routine course of conduct in this situation?
  • What steps can the employer take to minimize the time spent on administrative leave?
  • Can the administrative leave be construed as a response to any protected activities conducted by the employee?
  • What benefits and/or opportunities will the employee lose out on while on leave, and can the employer mitigate the lost benefits or opportunities?

For more information on the impact of the Whitehall case or on the use of administrative leave 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 visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Darren C. Kameya

Partner

Mayrn J. Oyoung

Associate

©2017 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.

Asking Job Applicants about Criminal Conviction History: What You Need to Know about Assembly Bill 1008

December 2017
Number 80

Effective January 1, 2018, Assembly Bill (AB) 1008 amends the Fair Employment and Housing Act (FEHA) to restrict an employer’s ability to make hiring decisions based on a job applicant’s criminal conviction history.

Background

AB 1008 prohibits an employer from asking about criminal conviction history until the applicant has received a conditional offer of employment. After a conditional offer of employment has been made, an employer may conduct a
criminal conviction history background check. If the background check reveals that the applicant has one or more criminal convictions, then the employer must make an individualized assessment of whether the applicant’s criminal convictions have a direct and adverse relationship with the specific duties of the job the applicant is applying for.

If an employer wishes to rescind the conditional offer based solely or in part on the applicant’s criminal conviction history, the employer must inform the applicant of its preliminary decision in writing and allow the applicant an opportunity to respond. An employer must consider the applicant’s response when making its final hiring decision. If an employer ultimately decides to rescind the conditional offer, the employer must inform the applicant of its decision in writing and inform the applicant of the right to appeal its decision and the process for doing so.

While there are limitations on the reach of AB 1008, it creates significant liability implications for employers covered by the bill as it allows applicants denied employment to sue under the FEHA and also, to recover the broad range of damages available under the FEHA, including compensatory damages, attorney’s fees, and costs.

Below is a brief FAQ that explains how the new law will be applied to public agencies.

Does AB 1008 Apply to K-12 School Districts, Charter Schools and Community College Districts?

No, it does not. Newly created Government Code section 12952 contains two important exceptions. Specifically, the new law does not apply to:

  • “[A] position for which a state or local agency is otherwise required by law to conduct a conviction history background check” (Gov. Code, § 12952 (d)(1)); or
  • “[A] position where an employer or agent thereof is required by any state, federal or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history.” (Gov. Code, § 12952 (d)(4)).

The Education Code provides that applicants for all positions at a K-12 school district, charter school or community college district must undergo a criminal conviction history background check. The Education Code also restricts school employment based on criminal history. The applicable statutes support a conclusion that the new requirements imposed on employers by AB 1008 do not apply to K-12 school districts, charter schools or community college districts.

Does AB 1008 Apply to Local Government Agencies Such as Cities and Special Districts?

Yes, unless an exception covers the particular position the applicant is seeking. AB 1008 will generally apply to other local government agencies except in those cases where the agency is required to conduct a criminal conviction history background check or to restrict employment based on criminal history. For example, public safety and some health profession positions, which require criminal conviction history background checks, will be exempt from AB 1008. Local government employers should carefully assess which positions AB 1008 applies to and tailor their application materials for the individual requirements of each position.

Takeaways

Employers are not legally required to ask for criminal conviction history information on application materials. Rather, they are only legally required, in some circumstances, to conduct a criminal conviction history background check and/or to restrict employment prior to hiring an applicant. Employers that are covered by AB 1008 should remove questions regarding criminal conviction history from their applications, while those that are not may voluntarily choose to remove questions regarding criminal conviction history from their application materials.

Employers may be concerned that screening applicants for criminal convictions, even minor crimes and crimes from many years ago, may result in a discriminatory impact on minority groups such as African-American and Latino men. Therefore, employers not covered by AB 1008 that ask for criminal conviction history information on application materials may wish to make individualized assessments of an applicant’s prior convictions in order to ensure that the questions do not disproportionately screen out minority applicants.

For more information on AB 1008 or on job applicant screening 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 visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Thomas E. Gauthier

Partner

Carolyn L. Gemma

Associate

©2017 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 Laws Impact Employers’ CalPERS Obligations

December 2017
Number 79

Governor Jerry Brown has signed three bills that significantly impact local agency obligations to the California Public Employees’ Retirement System (CalPERS) and impose penalties on employers running afoul of the law. Each of these bills will take effect on January 1, 2018.

Assembly Bill 1309: CalPERS May Fine Employers for Failing to Report Hiring and Payroll Data when Employing Retired Annuitants

Under Assembly Bill (AB) 1309, CalPERS may now fine employers for failure to report hiring and payroll information for CalPERS members working in retirement.

Existing law allows retired CalPERS members to return to employment with a CalPERS employer under certain limited conditions, without reinstatement from retirement. Generally, a retired member must wait 180 days following retirement before returning to work and may not accrue service credit or make contributions to CalPERS during post-retirement employment. Critically, a retired member must not work more than 960 hours per year, or their retirement allowance may be suspended and the member returned to active service.

AB 1309 adds teeth to current law requiring employers to timely enroll and report retired annuitant hiring and payroll data to CalPERS. Under AB 1309, CalPERS may assess employers a fee of $200 per month, per retired member, for failure to enroll a retired annuitant in the CalPERS administrative system within 30 days of hire. AB 1309 authorizes a separate fine of $200 per month, per retired member, for failure to report monthly payroll data-including pay rate and number of hours worked-for retired members.

AB 1309 makes clear that employers must timely enroll and report data for CalPERS members employed during retirement. Employers may wish to consult legal counsel when considering employment of a retired annuitant, as law in this area is nuanced and small missteps may prove costly.

Assembly Bill 1487: New Limits on Out-of-Class Appointments

Local public agency and school employers sometimes bump an employee to a higher classification on a temporary basis to fill a vacant position while seeking a permanent replacement. AB 1487 places new limits on these temporary out-of-class appointments. Under AB 1487, employers may not place an employee in an upgraded position or higher classification for more than 960 hours in one fiscal year before filling a temporarily vacant position. Employers must also track and annually report to CalPERS the hours worked by all employees in such out-of-class positions. Employers violating these rules may incur stiff penalties including administrative fees and fines equivalent to three times the amount of both the employer and employee contributions on the difference between the compensation paid for the out-of-class appointment and the compensation paid and reported to the system for the member’s permanent position. The law prohibits the employer from passing any of the fees or penalties on to the employee.

Under current law, employers may retain employees in out-of-class appointments indefinitely. With AB 1487, the Legislature increases pressure on employers to timely and permanently fill vacancies, while curbing perceived abuses by some employers who use temporary out-of-class appointments as a mechanism to avoid higher pension liability. AB 1487 does not apply to vacancies created by employee leaves of absence.

Senate Bill 525: CalPERS Performs Annual Housekeeping

With Senate Bill (SB) 525, CalPERS makes a series of clarifying changes to the law. Although most of the bill’s provisions are technical housekeeping amendments, two changes are significant for employers. First, SB 525 authorizes CalPERS members who are school employees performing creditable service as defined by the Education Code, and who should have been enrolled by their employers in the State Teachers Retirement System (CalSTRS), to continue accruing service in CalPERS or make a one-time election to transfer to CalSTRS. These provisions allowing a transfer of accumulated service credit to CalSTRS may be particularly important to employers that mistakenly enrolled employees into CalPERS when those employees should have been enrolled into CalSTRS. In particular, school districts may want to review the retirement system enrollment of their employees in their preschool and early childhood education programs. Any election to transfer service from CalPERS to CalSTRS must be made prior to June 30, 2018.

Second, SB 525 clarifies that public employers must report special compensation separately from an employee’s pay rate. Existing law defines “compensation earnable” by a member, excluding new members subject to the California Public Employees’ Pension Reform Act (PEPRA), to mean the pay rate and special compensation, as defined, of the member. Special compensation includes a payment received for special skills, knowledge, abilities, work assignment, workdays or hours, or other work conditions. The law requires special compensation to be for services rendered during normal working hours, and the employer, when reporting this information to CalPERS, is required to identify the pay period in which the special compensation was earned. SB 525 requires the employer, when reporting special compensation to the board, to identify each item of special compensation and the category under which that item is listed, as described in regulations promulgated by CalPERS, and to report each item of special compensation separately from pay rate.

For more information on these new laws or on pension laws 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 visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Thomas R. Manniello

Partner

Erin M. Hamor

Associate

©2017 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.

Part-Time Playground Positions to Join Classified Service

November 2017
Number 76

School districts’ part-time playground positions will join the classified service when Assembly Bill (AB) 670 becomes effective on January 1, 2018.

Under the new law, part-time playground positions, including noon-duty aides, yard aides, noon-time assistants, and playground aides, will no longer be exempt from the classified service. The law will only apply to school districts that have not incorporated a merit system.

AB 670 provides employees in part-time playground positions the following rights:

  • Status: Playground employees will no longer be considered “at-will,” but instead will have a probationary employment period and gain permanency like other classified employees.
  • Termination: These employees are now entitled to due process in termination proceedings consistent with the Education Code and school district policy.
  • Seniority: Employers will need to determine the date to be considered the first day in probationary status and to properly establish seniority dates for these employees.
  • Layoff and Reemployment Rights: Employees will be entitled to all statutory rights related to layoff and reemployment.
  • Leave Rights: Employees are entitled to all rights of classified service as provided by law including leaves, vacation pay and holidays.

The inclusion of part-time playground positions in classified service does not automatically result in these positions becoming part of a classified bargaining unit. A union may need to seek a unit modification to include these positions with the bargaining unit depending on the existing language of the school district’s classified collective bargaining agreement. The unit modification process will provide school district employers with the opportunity to negotiate the conditions of employment for these positions. School districts should review the language of their collective bargaining agreements to determine the status of part-time playground positions in the bargaining unit.

School districts should analyze the impact of these changes on health benefits and the applicable rights to these benefits by law and any applicable collective bargaining agreement. Districts should also examine what additional rights employees will be entitled to under the collective bargaining agreement to anticipate whether there are any items to be negotiated specific to these positions.

For more information on AB 670 or its impacts on classified service, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Megan Macy

Partner

Janae D Lopes

Associate

©2017 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 Requirements for Placing Community College Employees on Paid Leave

November 2017
Number 73

Assembly Bill (AB) 1651 adds a new hurdle community college districts must clear before placing an academic employee on paid administrative leave. AB 1651 specifies new requirements for placing academic employees on paid administrative leave, including two days’ advance notice of such a placement unless an exception applies. The bill becomes effective January 1, 2018.

Academic employees are individuals employed by a community college district in academic positions that require minimum qualifications.

Under existing law, community college districts generally have discretion to place an academic employee on paid administrative leave without advance notice. AB 1651 adds Education Code section 87623, which requires community college districts to notify academic employees in writing about the general nature of the allegations of misconduct at least two business days before placing them on paid administrative leave. This requirement will not apply if there is a “serious risk of physical danger or other necessity arising from the specific allegations.” If this limited exception applies, then the employer may immediately place the employee on paid administrative leave. Within five business days of placing an academic employee on paid administrative leave without advance notice, the community college district must notify the employee of the general nature of the allegations made against him or her.

This new law also addresses time limits for completing an investigation into alleged misconduct and for initiating disciplinary proceedings. AB 1651 provides that a community college district should complete its investigation and initiate disciplinary proceedings or reinstate the employee within 90 days of placing the employee on paid administrative leave. Because the statute uses the word “should” instead of “shall,” this appears to be a recommendation as opposed to a mandatory time limit. However, AB 1651 allows the California Community Colleges’ Board of Governors to specify by regulation a required amount of time in which a community college district is expected to comply with investigating and initiating disciplinary proceedings. This means that a required time limit for complying with this portion may be forthcoming.

AB 1651 also makes clear that its requirements do not supersede the rights of labor organizations or employees under the Educational Employment Relations Act.

If you have any questions about AB 1651 or its impact on the paid administrative leave process, please contact the authors of this Client News Brief or an attorney in our Technology and Innovation Practice Groupor at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Michelle J. Cannon

Partner

Aria Link

Associate

©2017 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.