the californiapublic sector employer · 2020. 1. 13. · ing your position in any case. ... sexual...

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• Document the search and the results, for example, by printing any relevant information found. Documentation is essential to defend- ing your position in any case. Have a nondecision-maker conduct the search and filter out any protected-characteristic information found. This will help maintain a taint-free selection process. • Allow the applicant to explain any negative information found. Do not assume all informa- tion on the Internet is reliable. It may have been posted by someone other than the appli- cant. Once negative or unflattering information on a candidate has been found, evaluate whether it is relevant to successful performance of the posi- tion in question. Some positions, such as police officer or teacher, involve an especially high degree of public trust. Employers have substan- tial latitude to disqualify applicants for these positions for unsavory behavior. Consider the case of the Florida sheriff’s deputy who, in 2006, was released on probation due to the content of his MySpace page. The deputy had posted a pic- ture of himself in uniform and listed among his “favorite things”: female breasts, swimming naked, and drinking heavily and often. None of this behavior was illegal, but was deemed to bring discredit on his employer and considered contrary to the high degree of propriety and credibility needed to maintain the public’s trust in the police department. If the same information was posted about an applicant for a less high-profile position, a main- tenance worker, for example, the prospective employer still might have a basis to disqualify the applicant. Posting certain information may be considered poor judgment for an applicant for any position in a diverse workplace. Such postings may indicate the applicant has issues with respect for women in the workplace or the ability to safely operate the employer’s vehicles I n a growing trend, employers have been using Internet search engines and social networking sites to screen job applicants. A wealth of information that individuals have posted about themselves is available on the Internet. Some of this information is very unflattering and may reflect that a candidate is not qualified for employment. As recounted in a 2006 New York Times article, for example, one employer described researching a promising intern candi- date online. 1 The employer found the candi- date’s Facebook page wherein he described his interests as “smokin’ blunts [cigars hollowed out and stuffed with marijuana], shooting people, and obsessive sex.” While the statements might have been exaggerations, the employer decided the candidate lacked the professionalism and judgment needed for the position being consid- ered. Avoid Exposure to Discrimination Claims While Googling an applicant can reveal informa- tion relevant to a hiring decision, it can also expose an employer to a discrimination claim. Facebook and MySpace pages often contain a person’s photos, hobbies, political views, and likes and dislikes. This information may reveal protected personal characteristics, such as age, race, religion, political ideology, sexual orienta- tion, marital status, pregnancy, or other factors that should not be considered in a hiring deci- sion. How do you prove that the candidate was reject- ed for legitimate reasons and that protected information was not a factor? One way is to adopt a hiring procedure that minimizes this risk. Here are some suggestions: Consider using the Internet as a screening tool for the final applicant pool. This will limit the number of hiring decisions that may need to be explained if the process is challenged. • Conduct searches consistently and not spo- radically. Consistent treatment of candidates is essential to defeating any discrimination claim. To Google or Not To Google: Tips for Screening Job Applicants on the Internet The California Public Sector Employer Spring 2010 In This Issue: To Google or Not To Google: Tips for Screening Job Applicants on the Internet Beware! Are You Settling a Claim or Gifting Public Funds? Economic Woes: Are Volunteers a Solution? The Kvetching Employee: Are Complaints About Supervisors Protected Speech? The Win Column: Court Dismisses School Teacher’s Failure-to- Accommodate Claim Case Briefs Coming Events 1 2 3 4 5 6 8 1 California Offices Los Angeles (213) 689-0404 Orange County (949) 885-1360 Sacramento (916) 341-0404 San Diego (619) 573-4900 San Francisco (415) 394-9400 www.jacksonlewis.com

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Page 1: The CaliforniaPublic Sector Employer · 2020. 1. 13. · ing your position in any case. ... sexual orienta-tion, marital status, pregnancy, or other factors that should not be considered

• Document the search and the results, forexample, by printing any relevant informationfound. Documentation is essential to defend-ing your position in any case.

• Have a nondecision-maker conduct the searchand filter out any protected-characteristicinformation found. This will help maintain ataint-free selection process.

• Allow the applicant to explain any negativeinformation found. Do not assume all informa-tion on the Internet is reliable. It may havebeen posted by someone other than the appli-cant.

Once negative or unflattering information on acandidate has been found, evaluate whether it isrelevant to successful performance of the posi-tion in question. Some positions, such as policeofficer or teacher, involve an especially highdegree of public trust. Employers have substan-tial latitude to disqualify applicants for thesepositions for unsavory behavior. Consider thecase of the Florida sheriff’s deputy who, in 2006,was released on probation due to the content ofhis MySpace page. The deputy had posted a pic-ture of himself in uniform and listed among his“favorite things”: female breasts, swimmingnaked, and drinking heavily and often. None ofthis behavior was illegal, but was deemed tobring discredit on his employer and consideredcontrary to the high degree of propriety andcredibility needed to maintain the public’s trustin the police department.

If the same information was posted about anapplicant for a less high-profile position, a main-tenance worker, for example, the prospectiveemployer still might have a basis to disqualifythe applicant. Posting certain information maybe considered poor judgment for an applicantfor any position in a diverse workplace. Suchpostings may indicate the applicant has issueswith respect for women in the workplace or theability to safely operate the employer’s vehicles

In a growing trend, employers have been usingInternet search engines and social networkingsites to screen job applicants. A wealth of

information that individuals have posted aboutthemselves is available on the Internet. Some ofthis information is very unflattering and mayreflect that a candidate is not qualified foremployment. As recounted in a 2006 New YorkTimes article, for example, one employerdescribed researching a promising intern candi-date online.1 The employer found the candi-date’s Facebook page wherein he described hisinterests as “smokin’ blunts [cigars hollowed outand stuffed with marijuana], shooting people,and obsessive sex.” While the statements mighthave been exaggerations, the employer decidedthe candidate lacked the professionalism andjudgment needed for the position being consid-ered.

Avoid Exposure to Discrimination ClaimsWhile Googling an applicant can reveal informa-tion relevant to a hiring decision, it can alsoexpose an employer to a discrimination claim.Facebook and MySpace pages often contain aperson’s photos, hobbies, political views, andlikes and dislikes. This information may revealprotected personal characteristics, such as age,race, religion, political ideology, sexual orienta-tion, marital status, pregnancy, or other factorsthat should not be considered in a hiring deci-sion.

How do you prove that the candidate was reject-ed for legitimate reasons and that protectedinformation was not a factor? One way is toadopt a hiring procedure that minimizes thisrisk. Here are some suggestions:

• Consider using the Internet as a screening toolfor the final applicant pool. This will limit thenumber of hiring decisions that may need tobe explained if the process is challenged.

• Conduct searches consistently and not spo-radically. Consistent treatment of candidatesis essential to defeating any discriminationclaim.

To Google or Not To Google: Tips forScreening Job Applicants on the Internet

The California Public Sector Employer Spring 2010

In This Issue:

To Google or Not To Google: Tips for Screening Job Applicants on the Internet

Beware! Are YouSettling a Claim orGifting Public Funds?

Economic Woes: Are Volunteers a Solution?

The KvetchingEmployee: Are Complaints About Supervisors Protected Speech?

The Win Column:Court DismissesSchool Teacher’sFailure-to-Accommodate Claim

Case Briefs

Coming Events

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2

3

4

5

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California Offices

Los Angeles(213) 689-0404

Orange County(949) 885-1360

Sacramento(916) 341-0404

San Diego(619) 573-4900

San Francisco(415) 394-9400 www.jacksonlewis.com

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The California Public Sector Employer

www.jacksonlewis.com

cant’s web page, such as creating a fictitiousFacebook profile and seeking to “friend” theapplicant. An employer should not ask a thirdperson with access to an applicant’s web page toprovide the employer access. This form of cir-cumvention can subject the employer to liabilityunder the federal Stored Communications Act.Finally, the employer should not violate any“terms of use” on the web page. For example, aweb page may contain a pop-up screen that pro-hibits certain people or groups of people fromentering the site and require the user to agree tothe “terms of use.” If these terms cover aprospective employer, the site should not beviewed.

While some social media users are using privacytools, it is amazing how many are not and post-ing unflattering information about themselveson public sites. This is likely to continue. Socialnetworks are growing exponentially, and not justbecause of teenagers. Recent studies show thatthe largest growth in social network use is by 25-to 54-year-olds. These are your job applicants!Investigate them – lawfully.

1 Alan Finder, “For Some, Online Persona Undermines aResume,” N.Y. Times, June 11, 2006.

(drinking heavily and often). At a minimum, fur-ther inquiry by the prospective employer wouldbe indicated to ascertain that the applicant doesnot present a foreseeable risk of harm to others.

Avoid Privacy ClaimsWebsites, blogs, and social networking pagesproved such useful tools in screening applicantsfor the City of Bozeman, Montana, that it askedall applicants not only to identify their socialmedia accounts but also to provide user namesand passwords so the City could see what appli-cants were not making available to the public.When word of this got out last summer, the Cityreceived much negative attention from nationalmedia and privacy advocates. It quickly aban-doned the request for user names and pass-words. The City’s request clearly went too far; itwas akin to asking to see the applicant’s familyphoto albums and diary, which no prospectiveemployer would ever do.

When conducting Internet searches on job appli-cants, it is essential to avoid methods whichintrude on personal privacy. If an applicant hasutilized the privacy tools offered by their socialmedia provider, those tools must not be circum-vented. This means that an employer should notuse false identities to gain access to an appli-

The agreement called for Richart to step down 11days after execution of the agreement, to serveas a consultant for 18 months thereafter, and torelease all claims against the District. Inexchange, the District would pay Richart’s regu-lar salary and benefits for 18 months. Richart’sannual salary was roughly $227,200 at the time.Additionally, the District promised to pay her$43,500 in attorney’s fees and $650,000 in“damages.” A local taxpayer, Leon Page, afterlearning of the agreement, filed a lawsuit chal-lenging it. The trial court dismissed Page’sclaims, but they were revived on appeal.

The appellate court concluded that the settle-ment exceeded the cash and noncash amountpermitted by California’s restriction on theamount an employee may receive upon termina-tion (the Ralph M. Brown Act, sections 53620and 53621 of the California Government Code).

Public agencies recently have become morevulnerable to claims that settlement orseverance agreements are unlawful gifts of

public funds. In November 2009, a CaliforniaCourt of Appeal ruled that the MiracostaCommunity College District crossed the line byagreeing to pay roughly $1.6 million to theDistrict’s college president, Victoria Richart, inexchange for her resignation and release of allclaims.

After three of the District’s seven Board mem-bers became vocal critics of Richart’s manageri-al style, Richart’s attorney wrote a letter to theDistrict seeking to resolve potential claims stem-ming from Board members’ actions. Richart didnot file a government tort claim. Nonetheless,the District struck a settlement agreement withher.

Beware! Are You Settling a Claim orGifting Public Funds?

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hibit making gifts of public funds. The Districthas asked the California Supreme Court toreview the decision.

One potential effect of this decision is that pub-lic employees may be encouraged to file formaltort claims instead of pursuing informal paths toresolve employment disputes. Indeed, if this rul-ing stands, the lesson for public agencies is thatthey must keep the settlement limitations of theRalph M. Brown Act in mind when negotiating anemployee’s departure, at least in the absence ofa colorable and formal tort claim. The case isPage v. Miracosta Community College Districtet al. (2009) 180 Cal. App. 4th 471.

The law restricts the maximum cash settlementto an amount equal to the monthly salary of theemployee multiplied by the number of monthsleft on the unexpired term of the individual’semployment contract, but not to exceed 18months’ compensation. The law also mandatesthat such settlements may not include any othernoncash items, except health benefits.

The decision turned on the fact that Richart hadnot filed a formal tort claim. The courtexplained, “[T]he settlement of a good faith dis-pute between the state and a private party is anappropriate use of public funds and not a gift.”However, the court found paying to resolve “awholly invalid claim” violates the laws that pro-

3The California Public Sector Employer

work as a reserve officer for free at the sameagency which he or she is employed without run-ning afoul of the FLSA. He or she may work as areserve at another agency, however.

EEO Laws. Generally, as long as volunteers donot receive any form of remuneration, they donot enjoy the same benefits as your employeesunder the equal opportunity laws, such as TitleVII of the Civil Rights Act of 1964. However, sub-stantial indirect compensation, such as healthinsurance, vacation or sick pay, or other benefitsare indicia of employment status, and, if offered,could render a volunteer subject to Title VII.

Things are a bit different under California’s FairEmployment and Housing Act. Through its reg-ulations, “the FEHA confers employee status onthose individuals who have been appointed, whoare hired under express or implied contract, orwho serve as apprentices.” Thus, if a volunteerhas been “appointed” to his or her positionthrough an agency’s ordinances, municipalcode, or other employment rules, he or she maybe deemed an employee for FEHA purposes.However, at least one court has held that in addi-tion to being “appointed,” the volunteer mustreceive some type of remuneration or indirectcompensation, similar to what is required underTitle VII, in order to be considered an “employee”under FEHA.

Additionally, Government Code § 3119.5 pro-vides that any state or local agency that choos-es to use volunteers must not exclude from vol-unteer service anyone over the age of 60 if theperson is physically, mentally, and professionallycapable of performing the services.

You may be preparing your upcoming budg-et and, after wiping the tears away, decidethe answer to maintaining the current level

of public services is to increase your use of vol-unteers. Their use, where practicable, may notonly save money and resources, but maystrengthen community involvement and citizeninitiative. We provide here a brief overview ofissues to consider in bettering your prospectsthat the people you engage truly are volunteersand will not beset the employer with unanticipat-ed demands for wage and other employee bene-fits.

FLSA. The good news is the Fair LaborStandards Act does not apply to volunteers.“Volunteer” means just what you think – a per-son who performs services for civic, charitable,or humanitarian reasons, without promise,expectation, or receipt of compensation. Ofcourse, a volunteer must offer his or her servic-es freely and without coercion. A volunteer willnot lose his or her volunteer status under theFLSA merely because an agency pays expenses,such as for uniforms, meals, transportation, rea-sonable benefits, or a nominal fee or stipend. A“nominal” fee is unconnected to productivityand not intended to substitute for compensa-tion. However, if a fee or stipend is hourly,exceeds the minimum wage, or is otherwisedeemed more than “nominal,” a volunteer maylose his or her volunteer status under the FLSA,thereby becoming entitled to all of its protec-tions. Moreover, volunteers must not providefree services to their own employers that are ofthe same type for which they are paid. For exam-ple, a police officer cannot donate his time and

Economic Woes: Are Volunteers a Solution?

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The California Public Sector Employerpublic entity to liability for his or her “act oromission” if it is “within the scope of employ-ment” to the same extent as an employee. Anyimmunity from liability available to an employeealso would be available to a volunteer. This alsomeans that the public agency must provideindemnification and defense to the volunteer if aclaim is brought based on such an “act or omis-sion” just as it would be required to do for itsemployee. In this sense, training volunteers canbe just as important as training employees toprevent injury, damage, and costly mistakes.

With planning and training, the use of volunteerscan and should be beneficial to your organiza-tion. Before offering some type of nominalstipend or other incentive to encourageincreased volunteerism, you should consult withexperienced employment counsel.

Workers’ Compensation. As with the otherlaws mentioned, lack of compensation is the keyto avoiding workers’ compensation coverage forvolunteers. Labor Code § 3352(i) excludes pub-lic agency volunteers from workers’ compensa-tion coverage as long as they receive no remu-neration for services, “other than meals, trans-portation, lodging, or reimbursement for inci-dental expense.” However, if a volunteer suffersan injury on the job, be aware that the agencymay be liable for the injury if it was negligent.

Tort Claims Act. Public entities are not so luckyunder the Tort Claims Act. The definition of“employee” under this part of the GovernmentCode “includes an officer, judicial officer . . . ,employee, or servant, whether or not compen-sated, but does not include an independent con-tractor.” This means a volunteer can subject a

holding the complaints about their supervisor’smanagement style were matters of private inter-est, and thus not protected. The Court clarifiedthat matters of public interest require widersocietal implications than those resulting frompoor interpersonal relationships inside a govern-ment office.

In some circumstances, a public employer mayeven be able to discipline an employee for com-plaining about supervisory conflicts without run-ning afoul of free speech guarantees. In Kaye v.Board of Trustees of San Diego County PublicLaw Library (2009) 179 Cal. App. 4th 28, a lawlibrarian was discharged after he sent his super-visor and co-workers a scathing e-mail criticizinghis superior and library administration. Similarto the accusations raised by the officers inDesrochers, the supervisor was accused of hav-ing an autocratic command structure manage-ment style and of humiliating the librarian. Theday after the librarian sent the e-mail, he wasplaced on administrative leave. Two weeks later,he was discharged for insubordination and seri-ous misconduct. The Court held that theemployee’s discharge did not violate theCalifornia Constitution’s free speech clausebecause statements made concerning theemployees’ official duties are not made for FirstAmendment purposes, and so the Constitutiondoes not insulate the employee from employer

Personality conflicts between employeesand supervisors are inevitable. Those whocomplain about a personality dispute may

not find protection behind the First Amendment.The free speech clauses of both the FirstAmendment and the California Constitutioninvests public employees with the right, as citi-zens, to participate in discussions concerningpublic affairs, without fear of retaliation by theirpublic employer. Workplace squabbles betweenan employee and supervisor, however, generallydo not rise to a constitutional level. To do sowould “trivialize the great principles of freeexpression the First Amendment embodies,” asthe U.S. Supreme Court clarified in Garcetti v.Ceballos (2006) 547 U.S. 410.

Public employee speech is constitutionally-pro-tected only if it addresses matters of public,rather than private, interest. In Desrochers v.City of San Bernardino (9th Cir. 2009) 572 F.3d703, two police officers filed grievances againsttheir supervisor for autocratic leadership, bully-ing and micro-managing. After their formalgrievance was denied, and for reasons unrelatedto their filing the grievance, the City transferredone and suspended the other. The employeesbrought suit under the First Amendment, claim-ing their transfer and suspension amounted toretaliation for protected speech. The NinthCircuit granted summary judgment to the City,

The Kvetching Employee: Are ComplaintsAbout Supervisors Protected Speech?

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5The California Public Sector Employer

mined that a public employee’s criticism of hersupervisor during a city council meeting was amatter of public concern and, thus, protectedspeech. The Court distinguished speech moti-vated by personal differences and circulated to afew colleagues from speech before a city councilon a matter in the public eye.

To avoid inadvertently violating the free speechrights of your organization’s employees, keep inmind the foregoing examples before acting inresponse to an employee’s disruptive speech.

discipline flowing from the statements (citingGarcetti v. Ceballos (2006) 547 U.S. 410).

Although these cases are favorable to publicemployers, each case is fact-specific in deter-mining whether the particular form of speech isprotected. The Court in Desrochers warned thatthe specific facts that supported its ruling were:1) the employees’ statement was made becauseof a private grudge against their supervisor, and2) the statement was made to co-workers ratherthan to the press. These facts were distin-guished from those in Lambert v. Richard (9thCir. 1995) 59 F. 3d 134, where the Court deter-

work environment was stressful and he did notknow what, in particular, made it stressful. Hesimply felt it would be more beneficial for herborderline hypertension and history of cancer(in remission for 20 years) if she avoided stressaltogether.

The superior court granted the District’s motionand dismissed the case, finding insufficient evi-dence of a disability or a failure to accommo-date. With regard to a disability, there was noevidence that the plaintiff’s borderline hyperten-sion limited any one of her major life activitiesand was disabling. Further, the court held, “Jobrelated stress, caused by subjectively unpleas-ant working conditions, is not a disability.”Likewise, it found no failure to accommodate.“Before an employer is required to provide rea-sonable accommodation, the employee mustprovide medical documentation of her conditionand the limitations it imposes.” Here, the plain-tiff failed to produce a list of medical restrictionsand information to enable the District to assessif reassignment was necessary. In such a cir-cumstance, the employer must press diligentlyfor more specific medical information, as theDistrict did, in order to justify denial of a ques-tionable accommodation request. San Franciscopartners Christine Maloney and Kathleen Maylinhandled the case.

Jackson Lewis’ public sector team recentlywon summary judgment for an employer ina failure-to-accommodate case. The plain-

tiff, a middle-school teacher, claimed she wasdisabled by high blood pressure and “stress,”requiring reassignment to a less stressful posi-tion as a reasonable accommodation. Shedescribed a less stressful position as an elemen-tary school position in a more affluent area ofthe District where the children had less “socio-economic baggage.”

To support her request for accommodation, theplaintiff procured notes from her treating doctorthat identified her medical conditions and gen-erally recommended reassignment to a school ina different location. The notes did not identifyany specific limitations caused by her medicalconditions and did not permit the District todetermine if she could be reasonably accommo-dated in her middle-school position before con-sidering reassignment. The District asked theplaintiff to supply more specific informationabout her physical limitations, but she never did.Thus, the District denied the reassignmentrequest.

The plaintiff sued for failure to accommodateher alleged disabilities. The treating doctor tes-tified that the plaintiff’s “high blood pressure”was really just borderline hypertension in the“marginally acceptable” range. The conditionwas asymptomatic and did not impose any limi-tations on her daily functioning. With respect tostress, the treating physician said he acceptedthe plaintiff’s subjective report that her current

The Win Column: Court Dismisses SchoolTeacher’s Failure-to-Accommodate Claim

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The California Public Sector Employer

basis to anticipate a larger damage award whenthe case was filed or as it progressed. In thiscase, the fee request was denied because theplaintiff produced very little evidence of dam-ages at trial, focusing almost exclusively on lia-bility. The one claim on which he was successfulinvolved a negligible amount of economic andemotional harm. According to the trial court, hisattorney should have realized, well before theaction proceeded to trial, that the plaintiff’sinjury was too slight to support a recovery inexcess of $25,000. Chavez v. City of LosAngeles (2010) 47 Cal.4th 970.

No Leniency for Employer whereAccommodation Fails Once A grocery checker returned to work from med-ical leave to treat larynx cancer. Her treatmentleft her with dry mouth, which required that shedrink water constantly and urinate frequently, asoften as every 45 minutes. Her employer accom-modated her needs by modifying its rule aboutno beverages at checkstands. The employeralso relieved her with another employee, uponrequest, whenever she needed a restroombreak. This worked for more than a year, until anew manager was hired. The manager wasunaware of the checker’s medical needs. Duringa shift, the checker asked the new manager torelieve her so she could use the restroom. Thenew manager told the employee to wait until shewas finished unloading merchandise. Unable towait, the checker soiled herself while standing atthe checkstand. She was humiliated andbecame suicidal. Eventually, she returned towork and continued to be accommodated.Nevertheless, she sued over the single failure-to-accommodate incident. A jury awarded her$200,000. The Court of Appeal affirmed theverdict, finding that even a single failure toaccommodate against a backdrop of a largerpattern of successful accommodation may vio-late the law. Employers take note! If an employ-ee is receiving an accommodation and thesupervisor is responsible in any way for adminis-tering that accommodation, do not fail to com-municate the employee’s needs to any new,replacement or temporary supervisor. A.M. v.Albertsons, LLC (2009) 178 Cal.App.4th 455.

Police Officers Not Entitled to Pay ForGetting DressedThe Ninth Circuit Court of Appeals has weighedin finally on the controversial subject of whetherpolice officers are entitled to pay for “donningand doffing,” that is, putting on and taking off apolice uniform and protective gear. After a seriesof conflicting district court decisions fromPhoenix to San Francisco, the Ninth Circuit hasruled that such activities are not compensableunder the Fair Labor Standards Act where theemployer does not require officers to dress atthe workplace and they have the option and abil-ity to dress at home. In such circumstances, theputting on and taking off a uniform and protec-tive gear are not “integral and indispensableactivities,” which must be compensated underthe FLSA. If the officer has the option and abili-ty to dress at home but chooses not to for per-sonal reasons (e.g., discomfort while commut-ing, being identified as an officer while off-duty,risk of theft of a uniform, or access to gear bythird persons), then getting dressed at work isnot done for the benefit of the employer. In theabsence of a rule, law, regulation, or practicallimitation mandating on-premises donning anddoffing, getting dressed will not be viewed by theCourt as a compensable activity. The case isBamonte v. City of Mesa (9th Cir.) (Mar. 25,2010).

Attorneys’ Fees Not Automatic for FEHA Plaintiff with Small RecoveryA police officer sued his employer under FEHAfor disability discrimination and retaliation, andthe jury awarded him $11,500 on his retaliationclaim. He then filed a motion seeking nearly$900,000 in attorneys’ fees. The fee requestreached the California Supreme Court. TheCourt held that when a FEHA plaintiff recoversless than $25,000, the trial court has discretionto deny an award of fees if the case should havebeen filed as a “limited civil case,” i.e., one wherethe amount in controversy is $25,000 or less. Ifa FEHA plaintiff chooses not to file a small-dam-ages case as a “limited civil case,” then he or sherisks recovering no attorneys’ fees at all if theultimate recovery is not greater than $25,000. Akey factor in any such determination will bewhether the plaintiff’s attorney had a reasonable

Case Briefs

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7The California Public Sector Employer

Evidence Inadmissible in Criminal CaseMay Be Admitted in Disciplinary AppealA Department of Transportation employee madeverbal threats to his supervisor. “The way youtalk to me, I could knock you out,” he said. Thepolice were summoned. The employee wasarrested by the CHP for making criminal threats.His car and person were searched, turning up afirearm, ammunition, and a vial of crystal meth.His employment was terminated. When the CHPsearch was declared unlawful and the criminalcharges dismissed, the employee also tried toexclude evidence of the illegally seized weaponand drugs from his disciplinary appeal beforethe State Personnel Board. The Board excludedthe evidence, but the courts reversed that deci-sion. In criminal proceedings, the exclusionaryrule operates to deter police from making illegalsearches and seizures by suppressing the“fruits” of an invalid arrest. The Court of Appealheld the exclusionary rule did not apply in thisadministrative proceeding because the searchhad not been conducted by the employer or atits direction. Exclusion of the evidence wouldnot deter the employer, the court reasoned,because it had not collected the evidence in thefirst place. Therefore, the evidence should havebeen admitted in the administrative hearing.Department of Transp. v. State Personnel Bd.(2009) 178 Cal.App.4th 568.

Retirement Causes Aggrieved Employeeto Lose Access to Forum for AppealMargaret Latham, an assistant nursing directorfor L.A. County, was terminated for disciplinaryreasons. She appealed her termination to thecounty’s civil service commission. While herappeal was pending, and after testimony hadbeen received, Latham retired. The Commissionsubsequently decided in Latham’s favor, reduc-ing her discipline to a demotion. The employingdepartment challenged the Commission’s juris-diction to issue a decision once Latham retired.The courts agreed with the employer. The Courtof Appeal held that, under the county’s ordi-nance, an employee who retires is no longer amember of the civil service and, therefore, theCommission lacks jurisdiction to act with regardto that employee. This is so even if theCommission had jurisdiction when the matterwas initially filed. Thus, when a civil serviceappellant retires during the appeal process,employers should examine their own rules anddetermine whether, like L.A. County, the civilcommission has jurisdiction to continue. L.A.Dep’t of Health Services v. Civil Service Comm’n(2009) 180 Cal.App.4th 371.

Jackson Lewis e-Subscription ServicesSign up now to receive Jackson Lewis e-mail updates on workplace law developments

by going to myupdates.jacksonlewis.com and completing the electronic form.

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The California Public Sector Employer

Editorial Board

C. Christine [email protected]

Kathleen [email protected]

The articles in this Update are designed to give generaland timely information on the subjects covered. Theyare not intended as advice or assistance with respect toindividual problems. This Update is provided with theunderstanding that the publisher, editor or authors arenot engaged in rendering legal or other professionalservices. Readers should consult competent counsel orother professional services of their own choosing as tohow the matters discussed relate to their own affairs orto resolve specific problems or questions. This Updatemay be considered attorney advertising in some states.Furthermore, prior results do not guarantee a similaroutcome. © 2010 Jackson Lewis LLP

Public Sector Contacts

Los Angeles:Mindy Novick(213) [email protected]

Orange County:Jared Bryan(949) [email protected]

San Francisco:Kathleen Maylin(415) [email protected]

C. Christine Maloney(415) [email protected]

Sacramento:Michael Christian(916) [email protected]

Issue contributing authors:

Brendan Begley (Sacramento); Susan Groff (Los Angeles); CarmenRuda (San Francisco); Adam Siegel and Sherry Swieca (Los Angeles).

UPCOMING EVENTS

Sexual Harrassment PreventionCalifornia Assembly Bill 1825

2010 Compliance Training May 6 and November 10, 2010

This popular two-hour course for supervisors will be offered in five Jackson Lewis locations: Los Angeles, Orange County, Sacramento, San Diego, and San Francisco

California Workplace Law Update 2010:What Happened in 2010 and What You Need

to Know to Be Prepared in 2011Place and Date:

Ontario: December 8, 2010 Los Angeles: December 9, 2010 San Diego: December 9, 2010

Orange County: December 16, 2010 Sacramento: December 16, 2010

San Francisco: December 16, 2010