Presented by:

Peter Brown

Public Sector Employment Law

UpdateWestern Region Intergovernmental Personnel

Assessment Council / May 6, 2010

Discrimination - DisabilityDiscrimination - Disability

An employee returning from ADA An employee returning from ADA disability leave may be asked about disability leave may be asked about her ability to perform job duties but her ability to perform job duties but cannot subjected to a medical exam.cannot subjected to a medical exam.

Indergard v. Georgia-Pacific CorpIndergard v. Georgia-Pacific Corp. (9th Cir. 2009) . (9th Cir. 2009) 582 F.3d 1049 582 F.3d 1049, on remand to , on remand to 2010 WL 331774 2010 WL 331774

(Jan 2010). (Jan 2010).

Discrimination – ReligionDiscrimination – Religion

A police department could discipline A police department could discipline a Muslim employee for refusing to a Muslim employee for refusing to remove a head scarf.remove a head scarf.

Webb v. City of PhiladelphiaWebb v. City of Philadelphia (3rd Cir. 2009) 562 (3rd Cir. 2009) 562 F.3d 256.F.3d 256.

Discrimination – Race Discrimination – Race

Disparate impact on minorities, by Disparate impact on minorities, by itself, is not enough to permit setting itself, is not enough to permit setting aside an otherwise apparently valid aside an otherwise apparently valid promotional exam.promotional exam.

Ricci v. DeStefanoRicci v. DeStefano (2009) 129 S.Ct. 2658. (2009) 129 S.Ct. 2658.

Discrimination – GenderDiscrimination – Gender

A female officer who repeatedly A female officer who repeatedly finishes higher on eligibility lists than finishes higher on eligibility lists than the male officers who are promoted the male officers who are promoted may sue for gender discrimination.may sue for gender discrimination.

Risch v. Royal Oak Police DepartmentRisch v. Royal Oak Police Department (6th Cir. (6th Cir. 2009) 581 F.3d 383, 2009) 581 F.3d 383, rehearing and rehearing en rehearing and rehearing en

banc deniedbanc denied..

PrivacyPrivacy

Covert video surveillance of Covert video surveillance of employees in an office may not be a employees in an office may not be a violation of their privacy rights since violation of their privacy rights since it would not have been highly it would not have been highly offensive to a reasonable person.offensive to a reasonable person.

Hernandez v. Hillsides, IncHernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272 . (2009) 47 Cal.4th 272 [97 Cal.Rptr.3d 274]. [97 Cal.Rptr.3d 274].

PrivacyPrivacy

A provision in a county employee’s A provision in a county employee’s resignation agreement prohibiting resignation agreement prohibiting the parties from disclosing facts and the parties from disclosing facts and reasons for the resignation was valid reasons for the resignation was valid and enforceable.and enforceable.

Sanchez v. County of San BernardinoSanchez v. County of San Bernardino (2009) (2009) 176 Cal.App.4th 516 [98 Cal.Rptr.3d 96], 176 Cal.App.4th 516 [98 Cal.Rptr.3d 96],

review denied.review denied.

First AmendmentFirst Amendment

The standards for deciding between The standards for deciding between citizen speech and employee speech citizen speech and employee speech are the same under the California are the same under the California constitution as under the federal constitution as under the federal constitution.constitution.

Kaye v. Board of Trustees of San Diego County Kaye v. Board of Trustees of San Diego County Public Law Library (2009) 179 Cal.App.4th 48 Public Law Library (2009) 179 Cal.App.4th 48 [101 Cal.Rptr.3d 456], rehearing and review [101 Cal.Rptr.3d 456], rehearing and review

denied.denied.

Family Sick LeaveFamily Sick Leave

California statutory requirements for California statutory requirements for use of paid sick leave to attend to ill use of paid sick leave to attend to ill family members only applies if the family members only applies if the employer’s policy provides for employer’s policy provides for accrued, banked sick leave hours.accrued, banked sick leave hours.

McCarther v. Pacific Telesis GroupMcCarther v. Pacific Telesis Group (2010) 48 (2010) 48 Cal.4th 104 [105 Cal.Rptr.3d 404].Cal.4th 104 [105 Cal.Rptr.3d 404].

Employer LiabilityEmployer Liability

A city is not liable to a female citizen A city is not liable to a female citizen who is allegedly sexually assaulted in who is allegedly sexually assaulted in a fire truck by city fire fighters.a fire truck by city fire fighters.

M.P. v. City of SacramentoM.P. v. City of Sacramento (2009) 177 Cal.App.4th (2009) 177 Cal.App.4th 121 [98 Cal.Rptr.3d 812], 121 [98 Cal.Rptr.3d 812], review deniedreview denied..

Brown ActBrown Act

Labor-management committees Labor-management committees established through bargaining are established through bargaining are not subject to the Brown Act.not subject to the Brown Act.

Attorney General Opinion No. 08-806Attorney General Opinion No. 08-806 (2009) 92 (2009) 92 Ops.Cal.Atty.Gen. 102.Ops.Cal.Atty.Gen. 102.

Brown ActBrown Act

A closed session of elected officials A closed session of elected officials with a mediator to discuss with a mediator to discuss settlement of a dispute is a violation settlement of a dispute is a violation of the Brown Act.of the Brown Act.

Page v. MiraCosta Community College DistrictPage v. MiraCosta Community College District (2009) 180 Cal.App.4th 471 [102 Cal.Rptr.3d (2009) 180 Cal.App.4th 471 [102 Cal.Rptr.3d

902], 902], rehearing denied, review filedrehearing denied, review filed..

BenefitsBenefits

An employer may deny vacation An employer may deny vacation accrual and vesting for the first six accrual and vesting for the first six months of employment.months of employment.

Owen v. Macy's, IncOwen v. Macy's, Inc. (2009) 175 Cal.App.4th 462 . (2009) 175 Cal.App.4th 462 [96 Cal.Rptr.3d 70], [96 Cal.Rptr.3d 70], review deniedreview denied..

Rights of Laid Off Rights of Laid Off Classified EmployeesClassified Employees

Court holds that laid off classified Court holds that laid off classified employee has reemployment rights employee has reemployment rights to positions outside the class from to positions outside the class from which he was laid off. which he was laid off.

Tucker v. Grossmont Union High School Dist. Tucker v. Grossmont Union High School Dist. ((2008) 168 Cal.App.4th 640 [85 Cal.Rptr.3d 527].2008) 168 Cal.App.4th 640 [85 Cal.Rptr.3d 527].

Wage and Hour LawWage and Hour Law

California public agencies are not California public agencies are not subject to Labor Code provisions subject to Labor Code provisions regarding overtime, meal breaks or regarding overtime, meal breaks or immediate payment of wages upon immediate payment of wages upon separation.separation.

Johnson v. Arvin-Edison Water Storage DistrictJohnson v. Arvin-Edison Water Storage District (2009) 174 Cal.App.4th 729 [95 Cal.Rptr.3d 53].(2009) 174 Cal.App.4th 729 [95 Cal.Rptr.3d 53].

Fair Labor Standard ActFair Labor Standard Act

Ninth Circuit finally speaks on the Ninth Circuit finally speaks on the issue of compensability of donning issue of compensability of donning and doffing uniforms and safety gear.and doffing uniforms and safety gear.

Bamonte v. City of MesaBamonte v. City of Mesa (9th Cir. 2010)  ___ F.3d ___  (9th Cir. 2010)  ___ F.3d ___

[2010 WL 1131492].[2010 WL 1131492].

Labor RelationsLabor Relations

Teacher's complaint regarding the Teacher's complaint regarding the reduction in his own workload was reduction in his own workload was not protected activity because not protected activity because individual complaints are protected individual complaints are protected only when they are a continuation of only when they are a continuation of a group activity.a group activity.

Stott v. San Joaquin Delta Community College Stott v. San Joaquin Delta Community College DistrictDistrict (2010) PERB Dec. No. 2091 [34 PERC 38]. (2010) PERB Dec. No. 2091 [34 PERC 38].

Labor RelationsLabor Relations

A city may reduce retiree health A city may reduce retiree health benefits for current employees since benefits for current employees since such benefits are not vested.such benefits are not vested.

San Diego Police Officers' Ass’n v. San Diego City San Diego Police Officers' Ass’n v. San Diego City Employees' Retirement SystemEmployees' Retirement System (9th Cir. 2009) (9th Cir. 2009)

568 F.3d 725. 568 F.3d 725.

Labor RelationsLabor Relations

An employee must affirmatively An employee must affirmatively request representation at an request representation at an investigatory interview before there investigatory interview before there can be a violation of his right to can be a violation of his right to representation.representation.

Shelton v. San Bernardino County Public DefenderShelton v. San Bernardino County Public Defender (2009) PERB Dec. No. 2058M [33 PERC 148].(2009) PERB Dec. No. 2058M [33 PERC 148].

Monetary SettlementMonetary Settlement

Monetary settlement for Monetary settlement for discrimination plaintiff's emotional discrimination plaintiff's emotional distress was taxable as income.distress was taxable as income.

Wells v. Commissioner of Internal RevenueWells v. Commissioner of Internal Revenue (2010) (2010) T.C. Memo. 2010-5, 2010 WL 23333. T.C. Memo. 2010-5, 2010 WL 23333.

Thank you.Thank you.

Peter BrownPeter Brown

pbrown@lcwelgal.compbrown@lcwelgal.com