Legal Update Fire Agencies Insurance Risk Authority (FAIRA)

Legal Update Fire Agencies Insurance Risk Authority (FAIRA)

Legal Update Fire Agencies Insurance Risk Authority (FAIRA) | June 17, 2019 Presented By: Morin I. Jacob California Legislature Responds to #MeToo Movement. 2 AB 2770 Privileged Communications for

Employee Sexual Harassment Complaints Civil Code 47 provides employers defense to defamation for factual information provided for current and former employees to prospective employers AB 2770 expands this privilege as follows: Complaints of sexual harassment made by an employee without malice to an employer based on credible evidence Communications without malice between an employer and interested persons regarding sexual harassment complaint, and/or whether employer would rehire based on determination of employee engaged in sexual harassment

3 New Laws to Impact Settlement Agreement Confidentiality AB 3109 Prohibits contract or settlement agreement entered into after January 1, 2019 from limiting or waiving right to testify concerning alleged criminal conduct or sexual harassment SB 820

Prohibits settlement agreements entered into after January 1, 2019 from containing confidentiality provisions related to allegations of sexual harassment SB 1300 Prohibits confidentiality agreement or non-disparagement agreement as condition of employment. Also prohibits waiver of FEHA claims unless voluntarily negotiated 4 SB 1300 Multiple Changes to FEHA

Discrimination/Harassment Laws Amends FEHA discrimination/harassment laws Severe or pervasive legal standard rejected and single incident of harassment can create liability No variance in liability for harassment based on work environment Establishes legislatures intent that harassment claims are rarely appropriate for summary judgment Limits employers ability to recover attorneys fees Option for employers to provide bystander intervention training

5 SB 1343 Expansion of Harassment Training to Nonsupervisory Employees Expands harassment training requirements to nonsupervisory employees by January 1, 2020: Requires one (1) hour of harassment training for nonsupervisory employees every two (2) years Trainings must be provided to nonsupervisory employees within six (6) months of hire

Seasonal/temporary employees (hired to work less than six (6) months) beginning January 1, 2020: Requires one (1) hour of harassment training within 30 calendar days of hire or first 100 hours worked, whichever comes first 6 AB 2282 Clarification of New Salary History Prohibitions (AB 168)

Labor Code Section 432.3 (AB 168) prohibits employers from using prior salary history information in employment decisions AB 2282 clarifies law (Effective January 1, 2019): Clarifies a pay scale means a salary or hourly wage range. Clarifies a reasonable request for a pay scale can be made after an applicant has an initial interview Permits employer to ask applicant for salary expectation for job position Current employee who applies for new position at same employer is not an applicant Clarifies that employer can make compensation decision based on

current employees existing salary so long as decision is in compliance with permissible factors under law 7 CPRA Requests Permits a public agency employer to recover, from the requestor of public records, the actual costs to the agency of redacting information from electronic records in response to a request for electronically stored public records.

National Lawyers Guild v. City of Hayward (2018) 27 Cal.App.5th 937 (Review granted by California Supreme Court, but case remains published in interim.) 8 CPRA Requests Right to access privately held records does not establish Constructive Possession for a CPRA request.

Anderson-Barker v. Superior Court (City of Los Angeles) (2019) 31 Cal.App.5th 528. 9 Personnel - Discipline A probationary police officer has a constitutional right of privacy that could preclude discipline for an extra-marital affair with a fellow officer. Perez v. City of Roseville (2018 9th Cir.) 2018

WL 797453. Withdrawn and superseded on May 21, 2019 10 Personnel - Discipline Office of Inspector Generals interviews of correctional officers did not trigger POBR right to representation. Blue v. California Office of the Inspector General (2018) 23 Cal.App.5th 138.

11 Personnel - Discipline Probationary employee did not hold property interest in employment. Palm v. Los Angeles Department of Water and Power (9th Cir. 2018) 889 F.3d 1081. 12

Personnel - Discipline Last Chance Agreement violated public employees free speech rights as a private citizen speaking on matters of public concern. Barone v. City of Springfield, Oregon (9th Cir. 2018) 902 F.3d 1091. 13 Personnel Gag Orders PERB holds that Countys standard gag

order, contained in notice of administrative leave, violated employees rights. County of Santa Clara, PERB Decision No. 2613-M (2018). 14 Qualified Immunity Individual Liability for Constitutional Violations Qualified Immunity attaches when an officials

conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Qualified Immunity protects all but the plainly incompetent or knowing violators. Supreme Court has instructed courts not to define clearly established law at a high level of generality Kisela v. Hughes (2018) 138 S. CT. 1148. 15

Personnel Retaliation Paid administrative leave may constitute adverse employment action. Whitehall v. County of San Bernardino (2017) 17 Cal.App.5th 352. 16 Discrimination - Harassment Employers must provide employees notice of the workplace rights of victims of

domestic violence, sexual assault, or stalking. Labor Code Section 230.1. 17 Discrimination - Gender Sexual orientation claim survives summary judgment because of comments about personal appearance. Husman v. Toyota (2017) 12 Cal.App.5th 1168.

18 Discrimination - Disability Employer defeats disability claims after employee could not show link between his post-discipline sleep apnea diagnosis and his failure to respond to 10 calls to work. Alamillo v. BNSF Railway Company (9th Cir. 2017) 869 F.3d 916.

19 Thank You! Morin I. Jacob Office Managing Partner | San Francisco Phone: 415.512.3036 | [email protected] 20

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