Pocket Guide to Workplace Rights of Public Employees

Prepared by Bonnie G. Bogue, Carol Vendrillo, and Liz Joffe

Updated by Michael A. McGill

July 2017

(Fifth edition)

California Public Employee Relations Program

Institute for Research on Labor and Employment

University of California

Berkeley, CA 94720-5555

510-643-7093

http://cper.berkeley.edu

© Copyright 2017, by the Regents of the University of California

The Pocket Guide to Workplace Rights of Public Sector Employees is designed for individual employees, supervisors, shop stewards, personnel officers, employee relations representatives, managers, union officers, elected officials, attorneys, or anyone who needs a quick and handy reference to the constitutional and statutory rights and protections afforded to public employees. The California Public Employee Relations Program (CPER), established in 1969, is a community service of the Institute for Research on Labor and Employment, UC Berkeley. Its purpose is to provide neutral, accurate information to those involved in employment relations at all levels of California government. A list of Pocket Guide titles appears on the back cover of this guide.

About the authors. Bonnie Bogue is a retired labor lawyer, arbitrator, and former director of the CPER Program. Carol Vendrillo is an arbitrator and former CPER director. Labor lawyer Liz Joffe is a founding partner of McKanna Bishop Joffe & Arms, Portland, Oregon.

This edition of the Pocket Guide was updated by Michael A. McGill, an attorney with Adams, Ferrone & Ferrone, the largest law firm in Southern California representing exclusively public safety unions and their members in labor, disciplinary and employment matters. McGill has spent his career litigating workplace rights for public sector employees, and has taken two cases from inception to the United States Supreme Court, dealing with the parameters of privacy and constitutional rights of public employees. The following individuals and organizations contributed to various chapters of prior editions: Bruce Barsook, partner, Liebert Cassidy Whitmore, Los Angeles office; Phil Horowitz, Law Offices of Phil Horowitz, San Francisco; The Employment Law Center of the Legal Aid Society of San Francisco; Diane Marchant, attorney in private practice, Los Angeles (retired); Julia Mass and the American Civil Liberties Union, San Francisco Chapter; Patti Roberts, attorney in private practice, Oakland (deceased); Wendy Rouder, of counsel Renne Sloan Holtzman Sakai LLP, San Francisco; Emi Uyehara, Liebert Cassidy Whitmore (retired).

Contents

Preface

Part I: Individual Rights

Introduction

1. Wrongful Termination or Discipline

2. Due Process

3. Employment Discrimination and Harassment

4. Privacy and Drug Testing

5. Personnel Files

6. Public Safety Bill of Rights Acts

7. First Amendment

8. Whistleblower Protection

9. Disability Rights

10. Family and Medical Care Leave

11. Layoffs and Reductions in Force

Part II: Employee Representation Rights

Introduction

12. Protected Activities

13. Right to Union Representation

14. Self-Representation

15. Duty of Fair Representation

16. Organizational Security Arrangements

17. Table of Cases

18. Index of Terms

Preface

Workplace rights of public employees are many and varied. This two-part Pocket Guide provides an overview of the primary rights that individual employees possess under the United States and California Constitutions, as well as a variety of state and federal statutes.

Part I covers personal rights that public employees enjoy, such as free speech, equal protection, due process, privacy, and protections against discrimination and wrongful discipline and termination. Part II explains the rights of individual employees who work in jobs covered by collective bargaining statutes, and involve the right to participate (or not to participate) in a union as well as the union’s duty to fairly represent all employees, regardless of union membership, political activity, race, gender, or other protected status.

This booklet covers the rights afforded public employees in California — state, local government, and school employees, as well as federal employees. Employees in other states have the same federal statutory and constitutional protections discussed here, but should refer to their own state statutes to determine if they have rights similar to those granted to state and local public employees by California legislation.

The purpose of the Pocket Guide is to provide a thumbnail sketch of each area of the law. Both individual employees and their employers will benefit from understanding the nature and extent of workplace rights. References are provided to other, more comprehensive sources of information. Determining whether employees actually have had their rights violated, and the correct procedures on how best to enforce these rights, can be complex and time sensitive. Employees who believe one of the rights outlined here has been violated should seek the advice of an experienced representative — whether it is an employee organization or attorney — to gain a full understanding of the law, decide whether there is a legal cause of action, and determine the best way to seek a remedy.

The focus here is on individual rights. Employees should be aware that there are many additional statutory employment protections that are beyond the scope of this Pocket Guide, such as unemployment benefits, workers’ compensation, occupational safety, and overtime pay.

Part I:
Individual Rights Introduction

The chapters in Part I of this Pocket Guide focus on the personal workplace rights of public employees, rights that are created by the United States and California Constitutions and by various statutes. (Part II deals with rights of employees that arise in the context of collective bargaining and union representation.)

Only the general principles are outlined here. Many more court cases and, in some areas, administrative decisions and rules also govern how these basic rights apply in particular fact situations.

There are different ways of enforcing individual rights, which can include seeking an informal voluntary correction of the wrong by speaking with the employer’s human resources department, filing a formal grievance under a collective bargaining agreement or other employer policy, filing a complaint with an administrative agency, such as the Department of Fair Employment and Housing or the Equal Employment Opportunity Commission, or bringing a lawsuit. Determining which remedy is available and most effective in a particular case requires an evaluation of the statute, case law, rules, ordinances, or collective bargaining agreement that might apply.

Consulting an employee organization or an attorney specializing in employment law will help an individual employee decide what action, if any, should be taken. Likewise, the supervisor or manager may seek advice from an employee relations professional or attorney to evaluate the dispute and determine the appropriate employer response.

1. Wrongful Termination or Discipline

A. Overview

“Wrongful” termination or discipline occurs when an employee is discharged from a job or is subjected to discipline (such as demotion or suspension) for unlawful reasons.

Public sector employees are generally protected from wrongful termination or discipline in three primary ways: (1) civil service or merit system protections; (2) collective bargaining agreements that govern discipline; and (3) legal principles allowing suits for damages. Public employees who believe they have been wrongfully terminated or disciplined must carefully consider which protections apply to their particular employment situation. Generally, an employee must decide whether his or her recourse is available under a civil service or merit system or a collective bargaining agreement, or whether he or she may seek recourse in a civil court through a “wrongful termination” lawsuit.

Employees may have more than one option from which to choose to challenge the wrongful termination or discipline and usually must make an election. In some situations, an employee may be required to exhaust an available administrative remedy before proceeding with a “wrongful termination” lawsuit. Choosing one option over another will likely impact the other options. For instance, an administrative decision upholding discipline after an evidentiary hearing may ultimately bar the employee from pursuing a suit for damages. Thus, the relative chances of success in utilizing the appeal procedures available to the employee must be carefully considered. In addition, in most cases, the period of time in which an employee must initiate an appeal through either a civil service process or a disciplinary process under a collective bargaining agreement, and therefore make his or her election, is relatively short and can be as little as a few days.

1. Civil service or personnel rules, generally

Under the due process guarantees of the Constitution of the United States and the Constitution of the State of California, a public employee is entitled to due process when either “property” or “liberty” interests are implicated. These “property” or “liberty” interests are created by civil service or merit system principles, which most public agencies have adopted. Generally, these principles provide that personnel decisions, such as hiring, firing, promotion, and other employment decisions, be based exclusively on an employee’s merit. When it comes to discipline, these principles ensure that there must be just cause supporting any disciplinary action. Once an employer establishes a civil service or merit system, with these principles, the employer has created a vested “property right” such that the employer must afford due process when making decisions that impact that “property right.”

Civil service systems covering federal, state, and local public employees are typically found in statutes, local government charters or ordinances, or personnel rules of the public agency. The statutes or local provisions establish specific guidelines for determining whether and how to impose discipline or take “adverse action” against an employee. The statutes or local provisions may set out administrative procedures under which employees may appeal or grieve a disciplinary action they believe is not warranted or is inconsistent with the administrative procedures.

In addition, whether or not a public employee possesses a “property” or “liberty” interest depends on his or her status as a permanent or probationary employee. Typically, civil service or personnel rules provide that their protections apply only to those employees who have passed probation and are considered permanent employees. Those who have not successfully completed their probationary period established by the statute or local provisions have limited protections against dismissal or discipline. Because probationary employees have not yet become vested in a “property right,” they do not yet have a “property” interest, but instead have only a “liberty” interest. The rights afforded to probationary or permanent employees and the distinction between “property” and “liberty” interests are discussed further in Chapter 2(A)(1) and (4) of this guide.

State civil service employees. The state merit system is established by the California Constitution1 and codified in the Government Code, which provides disciplinary procedures for state civil service employees.2

Certain categories of employees, like temporary or managerial employees, are expressly made exempt from the civil service system. These employees serve “at the will” of the employer and may be discharged without “cause,” as long as the discipline does not violate other laws, such as anti-discrimination statutes.

Causes for discipline include inefficiency, insubordination, dishonesty, on-duty drug or alcohol use, unexcused absenteeism, discrimination, and other misconduct.3

Before the discipline takes effect, the state employer must notify the employee, in writing, as to the nature of the disciplinary action, the effective date, the reasons for the discipline, and what the employee must do to appeal the action. The employee has the right to inspect the employer’s documents and may interview other employees. (These statutory requirements incorporate the employee’s due process rights, which are discussed fully in Chapter 2.)

If the employee elects to appeal the discipline to the State Personnel Board (SPB), a formal appeal must be filed within the time allowed or the adverse action will become final.

An SPB administrative law judge (ALJ) usually hears the appeal and renders an advisory decision. The SPB will then review the ALJ’s advisory decision and may adopt or amend it, or reach its own decision. The SPB can provide “make whole remedies,” that is, order reinstatement of a wrongfully terminated employee and award lost back pay and benefits. If the discipline is upheld, an employee may ask the SPB for a rehearing or may file a petition for writ of mandate in the superior court to have the SPB decision reviewed.

Local government employees. Cities, counties, and other local agencies often have merit or civil service systems that mirror the state system in principle, although specific procedures will vary. These procedures can be set forth in personnel rules and regulations adopted by the employer, or negotiated and established in collective bargaining agreements.

Some local agencies have a civil service or personnel commission, which is to be independent of the governing body and serve the same function as the SPB does for state employees. However, members of the civil service or personnel commission are usually appointed by the governing body and are therefore accountable to the governing body. Their independence and neutrality are therefore inherently suspect. Most local agencies provide for a neutral hearing officer which usually consists of an agreed upon arbitrator who oversees the appeal and renders a decision. In some agencies, this decision is final and binding. However, in other agencies, this decision is advisory only and subject to final review by the chief administrator, such as the city manager, or the elected governing body, such as the city council. Thus, in many local agencies, the ultimate decision as to whether a disciplinary matter is substantiated or unfounded is made by the governing body, and not by a neutral and independent body. This reality must be a primary consideration when deciding whether to appeal administrative discipline.

Procedures for a particular agency must be determined by examining the personnel rules or employment provisions in the local charter or ordinances. The agency’s personnel office must provide this information to employees on request.

School and college employees. Merit systems in public schools, including the disciplinary procedures that local districts must follow, are governed by the Education Code as well as agreed upon collective bargaining agreements.4 The statutes delineate the grounds on which discipline may be imposed and the procedures for appeals. Local personnel commissions may adopt rules to implement the statutory provisions.

Some districts have not adopted a merit system. Employees of such districts are subject to rules enacted by the school board rather than by a personnel commission. State law specifies that employees of a non-merit school district can be discharged only for cause.5

Employees of the California State University system are covered by separate disciplinary provisions in the Education Code and the University’s personnel rules that implement the statute.6 These statutory procedures may not be superseded by a collective bargaining agreement.

The University of California operates under independent authority granted by the state Constitution, rather than under the Education Code. It has authority to provide its own disciplinary procedures, either through personnel rules or collective bargaining agreements.7

Federal employees. There are two primary types of discipline under federal civil service law. The first is commonly referred to as an action brought under “Chapter 75” for alleged misconduct.8 The second is commonly referred to as an action brought under “Chapter 43” for alleged poor performance.9

Under Chapter 75, an agency must conduct an investigation into allegations of misconduct and the employee must cooperate in the investigation. The employee is entitled to union representation when being interrogated by the agency and during the course of the investigation.10 The employee must cooperate in the investigation. The agency must give the employee 30 days advance written notice of any charges that are being brought as a result of the investigation, as well as the reasons for any decision to implement an adverse action. An adverse action includes removal from service, lengthy suspensions, pay or grade reductions, and furloughs. After receiving the adverse action, the employee has the right to review the material relied on by the agency and to respond to the charges, either orally or in writing. An employee may appeal the agency’s final decision to the Merit Systems Protection Board (MSPB), which may set aside, modify agency decisions, or uphold the decision altogether. Most non-probationary employees in federal civil service are subject to the rules and protections found in Chapter 75.

Under Chapter 43, an agency may utilize a different procedure to take corrective action against an employee for poor performance. In some instances, an agency may have the option of pursuing either Chapter 75 or Chapter 43 for the same underlying conduct. An agency may bring an action under Chapter 43 when a critical element of the employee’s performance fails to meet established standards. Employees first must be given notice of unacceptable performance, supervisory assistance to improve, and an opportunity to demonstrate acceptable performance. If unsuccessful, the employee must be given 30 days advance written notice and an opportunity to respond. The agency’s action may be appealed to the MSPB. The MSPB’s website contains a comprehensive breakdown of the key differences between actions brought under Chapter 75 and Chapter 43.11

In addition to MSPB appeals of actions brought under Chapters 75 and 43, an employee may seek review by the Office of the Special Counsel (OSC) for actions amounting to “prohibited personnel practice” (such as violations of whistleblower protections and employment discrimination laws). The OSC may require the agency to correct its actions and may discipline the officials responsible.

2. Collective bargaining agreements and “just cause”

Public employees covered by a collective bargaining agreement may use the agreement’s disciplinary appeal procedure to challenge the employer’s imposition of discipline, if such an appeal procedure exists. Separate from the disciplinary appeal procedure, most collective bargaining agreements will also have a grievance procedure, which typically provides an appeal process for an employee when there is an alleged violation of the terms of the collective bargaining agreement. Although in most cases the disciplinary appeal procedure is separate and distinct from the grievance procedure, some employers combine them and require that a disciplinary appeal proceed through the grievance procedure. In any case, the employee should look to the specific provisions of the grievance and disciplinary appeal procedures to determine which appeal procedure applies to the challenged action. In some instances, a disciplinary appeal procedure in a collective bargaining agreement may only apply to certain levels of discipline, such as a suspension, demotion or dismissal. In that instance, lesser forms of discipline, such as a written reprimand, would not be subject to the appeal procedure outlined in the collective bargaining agreement.

Some agreements may not permit grievances over termination or other discipline because a civil service system governs discipline. For example, agreements governing state civil service employees do not address termination because the civil service system has exclusive jurisdiction over discipline. The Education Code generally prohibits collective bargaining agreements from covering discipline for school and State University employees.

Collective bargaining agreements sometimes provide employees with the choice of pursuing either civil service remedies or the contractual grievance arbitration procedure outlined in the agreement, but they usually do not permit an employee to use both procedures. For public employees not granted civil service protection, the contractual grievance procedure may provide the sole remedy for disciplinary appeals.

Employees who use a negotiated appeal procedure must check the agreement to determine procedural requirements and must follow those requirements precisely. In some agreements, the employee must involve the employee organization in order to submit an appeal to arbitration. If the union declines to pursue the appeal, the employee may have the option of appealing under the civil service rules instead.

Grievance procedures, involving alleged violations of the collective bargaining agreement, normally involve a multi-step process, each with specific deadlines, with the last step usually culminating in arbitration by a neutral, outside arbitrator. The arbitrator’s decision may be either final and binding or merely advisory, with the agency’s administrator or governing board having the final say. The agreement will indicate whether the arbitrator’s decision is final and binding or advisory.

With respect to disciplinary appeals, the standard used in arbitration for upholding discipline is “just cause” — that is, the discipline is wrongful if the employer did not have good or just cause for the adverse action. Many arbitrators use a seven-part test for determining whether the just cause standard has been met:

(1) The employee must have advance notice — either express or implied (in cases of commonly recognized misconduct) — of what behavior is prohibited and of the probable consequences of poor performance or misconduct;

(2) The employer’s policies, practices, and performance rules must be reasonable and job-related;

(3) Before discipline is imposed, the employer must fairly investigate the suspected violation;

(4) The employee must be given an opportunity to respond to the allegation to a management official not directly involved in the accusation;

(5) There must be evidence that the employee was guilty of poor performance or misconduct;

(6) Rules must be applied evenhandedly in comparable circumstances; and

(7) The degree of discipline must be reasonable in light of the seriousness of the offense, the type of employment involved, and the employee’s record.

Not all arbitrators will use this traditional test, nor will they necessarily set aside discipline because the employer failed to satisfy every element; rather, just cause is dependent on the totality of circumstances in each case.

To remedy a wrongful termination or improper discipline, arbitrators may order the employee “made whole” (i.e., reinstatement and back pay) or may modify an excessive level of discipline, such as reducing a discharge to an unpaid suspension. Arbitrators rarely, but occasionally, award “punitive damages” or attorneys’ fees in excess of the employee’s out-of-pocket losses.12

3. Court remedies for wrongful termination or discipline

In private sector employment, most employees not covered by collective bargaining agreements are considered to be “at will” and serve at the will of the employer. This means they can be fired without “cause.”13 This generally means that the “at will” employee can be fired for any reason, or even no reason, as long as it does not violate some other protection afforded the employee, such as anti-discrimination laws.

However, the courts have permitted employees to sue the employer under a narrow exception for “wrongful termination,” claiming that dismissal either violated an individual employment contract or violated public policy in some way. This is commonly referred to as a “Tameny claim,” after the case Tameny v. Atlantic Richfield Co., and is discussed further below.14 This is primarily a claim available to private employees as such employees do not have the protections afforded through a merit or personnel system, or a collective bargaining agreement. However, public employees not covered by civil service protections (including employees in probationary, temporary, or managerial classifications) or by collective bargaining agreements may be able to pursue one of these remedies in a lawsuit.

Most wrongful termination lawsuits are of two basic types: (1) a suit for money damages based on a claim that the employer breached an express or “implied-in-fact” contract that employment will be terminated only for good cause; and (2) a suit for damages claiming the employer violated a public policy that is expressed in constitutional or statutory protections. Strict time limits, as well as requirements that the employee first pursue all administrative remedies (such as an appeal to a civil service board, a grievance, or a state agency that oversees and enforces the statutory authority), apply to all such suits.15 Suing an employer for wrongful termination or discipline will involve strict time limits and a keen observation of the required preliminary administrative remedies that are available. The failure to properly follow the appropriate steps may invalidate the suit. Since navigating the appeal and litigation process can be complex, an employee should seek the assistance of experienced counsel.

Breach of contract actions. Employees may sue for violation of an employment contract, alleging an express or implied promise that they would be discharged only for good cause, provided they can prove they had a reasonable expectation of continued employment. Employees without such a reasonable expectation are considered “at will” employees, meaning the employment relationship can be terminated at the will of the employer. The right to continued employment may be based on actions or communications by the employer, on personnel policies or practices, or the length of an employee’s service. Courts will generally look at the totality of the circumstances, relying on no one factor exclusively.

Contract-based suits generally are not available to public employees because the courts have held that public employment is based on statute or ordinance, not on individual employment contracts. However, contract-based actions may be available to those public employees whose employment is not governed by statute, such as those exempt from merit or personnel systems.

Remedies in contract-based cases generally are limited to lost pay; punitive damages in excess of out-of-pocket loss are not usually awarded by the court.

Actions for violation of public policy. As explained above, employees can sue for damages beyond back pay (punitive or compensatory damages) if they can show that the discharge violated a fundamental public policy. This so-called Tameny claim16 protects employees from being discharged for asserting rights that society has an interest in protecting. However, the public policy that forms the basis of the claim must be one that is identified in the state or federal Constitution or a state or federal statute.

For example, a public policy violation occurs when: (1) an employee is discharged for refusing to engage in illegal activity, or for opposing or reporting the employer’s illegal activity; (2) the discharge violates a statute, such as retaliation for filing a workers’ compensation or discrimination claim; (3) an employee is discharged for exercising a right protected by a statute, such as the right to have a certain political affiliation; or (4) the employee is discharged because of sex, race, religion, or another constitutionally protected ground.

It generally is difficult for public employees to succeed in actions premised solely on public policy violations, mainly because most public employers enjoy governmental immunity from “tort” law suits for most normal governmental activity. (A “tort” is a wrongful action that is the basis for a damage suit.)17

B. Key Cases

Armendariz v. Foundation Health Psychcare Services (2000) 24 Cal.4th 83, 144 CPER 69. (Though claims may be arbitrable in some instances, arbitration agreements will be struck down if one contains so many unconscionable provisions that it is not possible to make the agreement enforceable by severing the offending provisions. Pre-dispute arbitration clauses should require [1] a neutral arbitrator; [2] adequate discovery procedures; [3] a written decision; [4] limitation on the cost of arbitration for the employee; [5] full recovery of damages; and [6] bilaterality.)

Asmus v. Pacific Bell (2000) 23 Cal.4th 1. (Employer may unilaterally end a written employment policy if the policy was one of indefinite period, and the employer provides reasonable notice and does not interfere with employees’ vested benefits.)

Circuit City Stores, Inc. v. Ahmed (9th Cir. 2002) 283 F.3d 1198. (An arbitration agreement containing an opt-out provision that provides a meaningful opportunity to opt out of arbitration, precludes procedural unconscionability and therefore is enforceable.)

City of Moorpark v. Superior Court (1998) 18 Cal.4th 1134, 132 CPER 20. (Labor Code section 132a, which prohibits discrimination against employees seeking worker’s compensation, is not an exclusive remedy, and therefore remedies under the Fair Employment and Housing Act’s anti-discrimination sections and the common law are available to employees for discrimination based on disability created by a workplace injury.)

Cleary v. American Airlines (1980) 111 Cal.App.3d 443. (Sets standard for wrongful termination in violation of covenant of good faith and fair dealing. Longevity of employee’s service, together with employer’s express policy providing specific procedures for adjudicating disputes, precluded plaintiff’s discharge without good cause.)

Cotran v. Rollins Hudig Hall Intl., Inc. (1998) 17 Cal.4th 93, 128 CPER 11. (Where good cause for discharge rests on an implied contract, an employer must conduct reasonable investigation and have objective good-faith belief that an employee has engaged in sex harassment, not that misconduct actually occurred. Application of the decision to just cause provisions in collective bargaining agreements is uncertain.)

Douglas v. Veterans Administration (1981) 6 MSPB 313. (Merit Systems Protection Board must consider certain established factors in judging the appropriateness of disciplinary action imposed by federal agencies.)

Escalante v. Wilson’s Art Studio, Inc. (2003) 109 Cal.App.4th 692. (No public policy was violated by discharge of an employee who chose to fight rather than retreat when attacked by a coworker.)

Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 79X CPER 5. (Sets out three types of court actions for wrongful termination. Damages for breach of covenant of good faith and fair dealing are limited to contractual remedies, rather than compensatory or punitive tort damages.)

Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 93 CPER 42. (Wrongful termination for violation of public policy defined; requires a basis in Constitution or statute; the employer violated public policy when an employee was constructively discharged in retaliation for refusing to comply with the employer’s pressure to contravene a state agency’s investigation into a coworker’s sexual harassment claim; worker’s compensation does not provide the exclusive remedy for wrongful termination.)

Grant-Buron v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361. (Labor Code section 232, which bars employers from requiring employees to refrain from discussion of the amount of his or her wages, or from retaliating against employees who disclose the amount of wages, is a proper basis for a claim for tortuous wrongful termination. Regardless of whether employees are members of a collective bargaining unit, their concerted activity in participating in a group discussion about the fairness of compensation is protected under the National Labor Relations Act, 29 USC sections 151-169, and California Labor Code section 923, which declares the public policy of California to protect labor negotiations.)

Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66. (Wrongful termination for violation of public policy encompasses a violation of a regulation, as distinct from statutory policy, as long as the regulation adopted is within the scope of authority set forth by statute.)

Kemmerer v. County of Fresno (1988) 200 Cal.App.3d 1426, 77 CPER 28. (Permanent civil service employees may not seek judicial remedy for wrongful discharge under theory of implied covenant of good faith and fair dealing because the terms and conditions of civil service employment are fixed by statute, not contract.)

Kraslawsky v. Upper Deck Co. (1997) 56 Cal.App.4th 179. (Wrongful termination based on claim that right to privacy was violated when employer required employee to submit to drug test was without reasonable cause.)

Leisek v. Brightwood Corp. (2002) 278 F.3d 895. (Decision interpreting the federal Uniformed Services Employment and Reemployment Rights Act of 1994 [“USERRA”], 38 USC sections 4301-4333, which prohibits discrimination against employees based on their past, present, or future application for, or service in, the U.S. Armed Forces, Public Health Service, National Guard, and Reservists. Here, the court ruled that issues of material fact existed where the employee, a member of the National Guard, was terminated for abandoning his job after taking an unexcused absence. The employer had denied the employee’s request for a leave of absence to attend events for the National Guard, stating that the absence would be a hardship due to the employee’s specialized position.)

McAllister v. Los Angeles Unified School Dist. (2013) 216 Cal.App.4th 1198. (Because a public entity is liable for its acts or omissions only as provided by statute [Government Code section 815(a)], a Tameny claim that is based on non-statutory public policy generally does not lie against a public entity.)

Pettus v. Cole (1996) 49 Cal.App.4th 402. (Claim for wrongful termination in breach of public policy includes invasion of privacy allegations.)

Pugh v. See’s Candies (1981) 116 Cal.App.3d 311. (Implied promise to terminate employee only for good cause may be based on duration of employment, commendations and promotions, lack of criticism, assurances of continued employment, and employer’s acknowledged policies.)

Rojo v. Kliger (1990) 52 Cal.3d 65, 86X CPER 11. (Sexual harassment violates fundamental public policy against sex discrimination.)

Stevenson v. Huntington Memorial Hospital (1997) 16 Cal.4th 880, 126 CPER 7. (Age discrimination violates a fundamental public policy actionable as a wrongful discharge tort.)

Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167. (Establishes a claim of wrongful termination against an employer when that termination is arbitrary or irrational, and violates fundamental public policy. Also, held that the discharge of an employee who refuses to participate in an illegal activity violates public policy, giving rise to a wrongful termination lawsuit.)

Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238. (Constructive termination occurs when an employer compels an employee to resign due to “working conditions so intolerable or aggravated...that a reasonable person in the employee’s position would be compelled to resign” and the employee can prove a statutory violation, tort, or breach of contract.)

Walker v. Northern San Diego Co. Hospital Dist. (1982) 135 Cal.App.3d 896, 55 CPER 54. (Non-civil service nurse, fired under at-will statute, is allowed to sue for breach of implied contract; status as a public employee hired under statutory authority does not bar an implied contract based on personnel handbooks and policies, as long as contract does not contradict terms of employment fixed by law.)

C. Resources

Bogue, Bonnie, and Katherine Thomson. Pocket Guide to Just Cause: Discipline and Discharge Arbitration, 1st edition. Berkeley, CA: CPER, University of California (2015), http://cper.berkeley.edu.

Bornstein, Tim; Gosline, Ann; and Greenbaum, Marc D., eds., Labor and Employment Arbitration, Chaps. 47-51. New York: Matthew Bender, looseleaf with annual updates.

Brodsky, Dale. Pocket Guide to Dismissal Procedures Affecting Permanent, Certificated Employees, 1st edition. Berkeley, CA: CPER, University of California (2015), http://cper.berkeley.edu.

Silver, Frank, and Bonnie G. Bogue. Pocket Guide to Public Sector Arbitration: California, 4th edition. Berkeley, CA: CPER, University of California (2015). http://cper.berkeley.edu.

State Personnel Board precedential decisions at http://www.spb.ca.gov.

Uyehara, Emi (updated by Margot Rosenberg and Kate Wallward). Pocket Guide to Due Process in Public Employment, 4th edition. Berkeley, CA: CPER, University of California (2016), http://cper.berkeley.edu.

Vaughn, Robert G. Merit Systems Protection Board: Rights and Remedies, New York: Law Journal Seminars-Press, 1995, with updates.

Wilcox, M. Kirby. California Employment Law, Chapters 60-63. New York: Matthew Bender, looseleaf with annual supplements.

Zerger, Kirsten L., et al., eds. California Public Sector Labor Relations, Chapter 16. New York: Matthew Bender, looseleaf with annual supplements.

1Aråt. VII.

22Gov. Code sections 19570 et seq.

3Gov. Code section 19572.

4Discipline of classified school employees is governed by Ed. Code sections 45113, 45302 et seq.; teachers and other “certificated” school employees by sections 44932 et seq.; and community college employees by sections 87670 et seq. See Pocket Guide to Layoff Rules Affecting Certificated Employees, by Dale Brodsky. (Berkeley: CPER, Univ. of California, 2015), http://cper.berkeley.edu.

5Ed. Code section 45113 (school districts); section 88013 (college districts).

6Ed. Code sections 89535 et seq.; implementing regulations are codified in Cal. Code of Regulations sections 43520 et seq. Academic employees are covered by rules adopted pursuant to Ed. Code section 89542.5.

7The university has adopted personnel rules for staff and for academic employees, which may be superseded by collective bargaining agreements. Tenured faculty discipline is governed by special rules of the regents.

85 U.S. Code sections 7313 et seq.

95 U.S. Code sections 4303 et seq.

10The right to union representation is discussed in detail in Chapter 13, below.

11https://www.mspb.gov/studies/adverse_action_report/4_Performance-Based%20Actions.htm.

12See Pocket Guide to Public Sector Arbitration: California, Frank Silver and Bonnie G. Bogue, 4th edition (2015) (Berkeley, CA: CPER, UC), for discussion of arbitration procedures and standards. See Pocket Guide to Just Cause: Discipline and Discharge Arbitration, Bonnie G. Bogue and Katherine Thomson, 1st edition (2010) (Berkeley, CA: CPER, UC) for discussion of just cause. Guides can be purchased at http://cper.berkeley.edu.

13See Labor Code section 2922.

14(1980) 27 Cal.3d 167, 172.

15A third type, claiming that the employer violated a “covenant of good faith and fair dealing,” can be joined with a contract-based claim.

16Referring to the case of Tameny v. Atlantic Richfield Co., supra, 27 Cal.3d 167.

17See McAllister v. Los Angeles Unified School Dist. (2013) 216 Cal.App.4th 1198.

2. Due Process

A. Overview

Public employees, who attain permanent or tenured status, are entitled to certain procedures before they can be terminated, suspended, demoted or otherwise disciplined. This protection is commonly referred to as the right to “due process.” Its sources are found in the due process clauses of the U.S. Constitution (5th and 14th Amendments) and the California Constitution (Article 1, section 7[a]), which declare that a person may not be deprived of “life, liberty, or property, without due process of law.”18 As explained in Chapter 1(A)(1) of this guide, public employees attain these “property” or “liberty” interests, and the corresponding due process rights, through civil service or merit system principles. Once an employer establishes a civil service or merit system, the employer has created that vested right, such that the employer must afford due process when making decisions that impact that right. Put another way, a right to due process is established when a law or rule provides that an employee may not be terminated or disciplined without good or just cause. This creates a reasonable expectation of continued employment, which cannot be defeated without affording due process.

In California, the Supreme Court held that due process requires that an employer who desires to take action that impacts an employee’s “property right,” i.e., employment, must afford the employee both a pre-disciplinary appeal hearing and a post-disciplinary appeal hearing. The pre-disciplinary hearing is commonly referred to as a “Skelly” hearing after the landmark ruling in 1975.19 Likewise, the U.S. Supreme Court has determined that the 14th Amendment provides similar protection,20 so that pre-disciplinary due process generally is recognized as a right guaranteed to all public employees with a property interest in their jobs.

1. Property interest in job

In order to have a constitutionally-protected interest in continued employment, the expectation that a job is permanent cannot be based on an employee’s subjective opinion. It must be based on a statute, ordinance, personnel rule, or collective bargaining or other employment agreement that gives the employee “permanent” status and provides that the employee can be discharged only “for cause.”21

Not all employees are vested by their employer with a property interest in continued employment. Employees who are not given “for cause” rights by the employer’s personnel rules or the negotiated agreement, such as probationary or temporary employees or those appointed to serve at the will or pleasure of a public official, are not entitled to due process. These employees have no due process right to either a Skelly pre-disciplinary hearing or an appeal hearing after the adverse action is imposed.

Further, when an employer has established a property right, it typically involves the right to be disciplined only for just cause. An employee may not have a property interest in a certain assignment, or a certain benefit, as the employer may never have established that such a benefit would only be removed for just cause. However, the employee may have an appeal under some other statute or the collective bargaining agreement that may afford protection against the removal of that benefit.

2. Pre-disciplinary procedures

Before imposing discipline on a permanent or tenured public employee, the employer must provide a pre-disciplinary appeal, or Skelly hearing. Under Skelly, the employer must provide the employee with notice of the proposed disciplinary action, the reasons for the adverse action, a copy of the charges and materials on which the action is based,22 and the right to respond orally or in writing to the authority imposing the discipline.

This right to a Skelly notice and hearing is generally required before disciplinary action, such as suspension, demotion, or dismissal can be imposed. However, in Gilbert v. Homar,23 the U.S. Supreme Court determined that permanent employees “who occupy positions of great public trust and high public visibility, such as police officers” and who are charged criminally with a narcotics felony, could be suspended without pay prior to, and without, a pre-suspension hearing since the employee was entitled to a post-suspension hearing that could provide him with back pay should he prevail. Since due process is a flexible concept, employers may be able impose discipline without providing for a Skelly hearing if the charges against the employee are significant and involve allegations of felony criminal conduct. The courts have justified this exception to the general rule given the employee would still be entitled to a post-disciplinary appeal hearing, and if he or she prevailed, would be entitled to back pay for that lost time.

The Skelly hearing usually is not a full evidentiary hearing with witnesses sworn in and providing testimony. Instead, the Skelly hearing is an informal process where the employee is given an opportunity to respond to an individual authorized to impose or effectively recommend discipline. Since due process protects a permanent employee’s property interest in continued employment, employers must provide permanent employees with a Skelly hearing anytime it desires to impose discipline.

Employees are generally not entitled to notice and an opportunity to respond before reassignments or transfers or other non-disciplinary personnel decisions, since employees generally do not have a constitutional right or “property interest” in a particular position. Non-disciplinary actions such as layoffs due to lack of funds, entitle an employee to limited due process rights, namely, notice of the layoff and compliance with the layoff procedures governing the employer.24 However, a negotiated union contract or a state law may provide certain procedural protections.25

In addition, employees subject to a “constructive discharge” rule, calling for automatic termination for absences without leave (AWOL), are entitled to pre-termination notice and an opportunity to be heard by a neutral decisionmaker.26 Strikers, terminated for being AWOL because they are participating in an illegal strike, are still entitled to a pre-discharge Skelly notice and an informal hearing.27

3. Evidentiary hearing

The due process right requires that an employee have the opportunity for a full evidentiary hearing before a neutral decisionmaker, usually after the hearing and after discipline has been imposed. At the evidentiary hearing, the employer bears the burden of proof to substantiate that the proposed discipline is appropriate under the circumstances. Even though it is said that the hearing is before a “neutral decisionmaker,” the results of the evidentiary hearing may be either binding or advisory to the employer. Thus, in many cases, the employer ultimately retains the right to disregard the recommended decision of the “neutral decisionmaker” and impose the discipline it initially proposed. Although inherently unfair, it is said that this one-sided process comports with due process requirements. This must be taken into consideration when deciding whether to use the appeal procedure at the outset.

4. Liberty interest

Independent of the “property right,” all public employees possess a “liberty interest” in their employment. This right also stems from the due process clause of the U.S. Constitution and it arises where there is a deprival of the “liberty” guaranteed all persons by the due process clause. Therefore, when a non-permanent employee, such as a probationary employee or at-will employee, is terminated based on allegations that might stigmatize his or her reputation, or “seriously impair” his or her opportunity to earn a living, this is said to impact the employee’s “liberty interest,” and the employee may be entitled to limited procedural protection. A liberty interest is implicated where: (1) there is a stigmatizing charge; (2) the employee denies the charge or contests its accuracy; and (3) there is public disclosure of the charge.28 Because the due process clause also protects liberty interests, an employee so affected has a constitutional right to a hearing to clear his or her name. Thus, the key distinction between a “property right,” where the employee is entitled to full due process appeal rights, and a “liberty interest,” where the employee has very limited appeal rights, is that the latter involves non-vested employees, usually released from employment while on probation.

Not all charges or terminations entitle an employee to a “name clearing” or “liberty interest” hearing. No liberty interest is triggered by the mere fact of discharge,29 failure to pass probation,30 or charge of incompetence.31 There must be some additional allegation of poor performance or misconduct that stigmatizes the employee’s reputation.

The sole purpose of the hearing is for the employee to create a record rebutting the allegations made against the employee. The hearing required to clear one’s name under his or her liberty interest is much different than the evidentiary hearing that one would receive to challenge a decision impacting the employee’s property interest, in that the liberty interest hearing is not a full evidentiary hearing. It is generally only an opportunity to speak with the employer and inform them of the employee’s version of the events; the employer is under no obligation to reinstate the employee.

Reinstatement or back pay generally is not available, however, because such remedies are dependent on the employee having lost an actual “property interest.”32 The employee may, however, pursue any available other legal remedies based on a violation of his or her constitutional or statutory rights.

B. Enforcement

The employer’s personnel or civil service rules or the collective bargaining agreement may provide disciplinary procedures that fulfill the constitutional requirements. If those procedures are not followed, then the employee may appeal through a civil service proceeding or file a grievance claiming violation of the agreement. Courts usually require that these administrative remedies be exhausted before allowing a suit for violation of constitutional rights.

With respect to the costs associated with a disciplinary appeal procedure, many collective bargaining agreements or other local rules will require the involved employee to share equally in the costs of the arbitrator. Depending on the number of allegations against the employee and the number of witnesses, these costs can easily reach thousands of dollars. In Florio v. City of Ontario,33 an appellate court held that public employees, who have attained permanent status and possess a protected property interest in continued employment, cannot be forced to pay half the costs of an arbitrator to appeal their discipline. Despite this mandate, many employers have not modified their procedures to comply with Florio.

A so-called Skelly violation occurs when the employer fails to follow the mandate of the Skelly decision. The most common violations are (1) the employer did not provide the employee with all documents relied upon in rendering the discipline; and (2) the employer did not provide sufficient detail in the notice of intent to discipline of all the charges that have been alleged to have been violated. Both violations, and generally any Skelly violation for that matter, are predicated on the employee not receiving adequate due process in the disciplinary process. However, the remedy for failing to provide these pre-disciplinary procedures is not reinstatement or the disciplinary action being set aside; rather, the remedy is usually back pay from the time discipline was imposed until the time some form of corrective measure of the violation was provided. That remedy for the due process violation is available even if the grievance or civil service hearing results in a finding on the merits that the discipline was for just cause. An employee disciplined without being provided these pre-disciplinary procedures may file a lawsuit for damages claiming a violation of his or her civil rights.

C. Key Cases

Arnett v. Kennedy (1974) 416 U.S. 134, 21 CPER 60. (Statute conferring on federal employees a right not to be discharged except “for cause” created a property interest in employment protected by the due process clause of the Fifth Amendment. Due process is satisfied by the requirement that employees be provided with notice of proposed discipline; a copy of the charges; a reasonable time to file a written answer; a written decision; and an opportunity for a post-termination, trial-type hearing. No pre-termination, trial-type hearing is required.)

Board of Regents v. Roth (1972) 408 U.S. 564, 20 CPER 71. (A public employee has a constitutionally protected property interest in the job if there is a legitimate claim to, not just a unilateral expectation of, continued employment.)

Bostean v. Los Angeles Unified School Dist. (1998) 63 Cal.App.4th 95, 130 CPER 66. (School district violated employee’s constitutional right to due process by placing employee on involuntary sick leave which was tantamount to a suspension without pay.)

Cleveland v. Loudermill (1985) 470 U.S. 532, 64X CPER 2. (A public employee is entitled to a pre-termination opportunity to respond, which is something less than a full evidentiary hearing, where the employer must present the reasons for the proposed discipline and provide an opportunity for the employee to explain his or her conduct.)

Coleman v. State Personnel Board (1991) 52 Cal.3d 1102, 88X CPER 6. (Due process requires that the employer provide the employee with notice and an opportunity to respond to a neutral decisionmaker before invoking an automatic resignation or AWOL provision; however, no post-termination evidentiary hearing is required.)

Cotran v. Rollins Hudig Hall Intl., Inc. (1998) 17 Cal.4th 93, 128 CPER 11. (Employer must conduct reasonable investigation into alleged employee misconduct before initiating discharge for just cause.)

Flippin v. Los Angeles City Board of Civil Service Commissioners (2007) 148 Cal.App.4th 272. (A public employee’s due process rights were not violated when the same individual who investigated and instituted discipline against the employee also served as the hearing officer at the Skelly hearing. The court held that the employee had the opportunity to respond to the charges and that final decision was subject to review by a neutral decisionmaker and that this met the safeguards required under due process.

Florio v. City of Ontario (2005) 130 Cal.App.4th 1462, review denied Oct. 26, 2005. (Union contract that required disciplined employee to pay half the cost of the due process appeal hearing was unconstitutional.)

Gilbert v. Homar (1997) 520 U.S. 924, 125 CPER 19. (U.S. Constitution does not convey a right to pre-suspension due process hearing.)

Holmes v. Hallinan (1998) 68 Cal.App.4th 1523, 134 CPER 34. (While at-will public employee is entitled to liberty interest hearing, due process was met by notice of the charges and the right to present his version of events. This right did not include the right to present live witnesses or to cross-examine the employer’s witnesses.)

Katzberg v. Regents of the University of California (2002) 29 Cal.App.4th 300, 158 CPER 64. (Public employee whose liberty interests have been violated is not entitled to damages.)

LaChance v. Erickson (1998) 522 U.S. 262, 128 CPER 57. (Government may take adverse action against a public employee who makes false statements to investigators. “Meaningful opportunity to be heard” does not include right to make false statements regarding alleged misconduct.)

Lubey v. City and Co. of San Francisco (1979) 98 Cal.App.3d 340, 44 CPER 51. (An employee’s liberty interest is implicated if the discipline or discharge is based on charges that stigmatize his or her reputation, seriously impair his or her opportunity to earn a living, or might seriously damage his or her standing or association in the community. The employee is entitled to a hearing to clear his or her name even if he or she has no property interest in continued employment.)

Mathews v. Eldridge (1976) 42 U.S. 319. (To determine whether procedures afford due process, courts balance [1] the private interest affected by the official action; [2] the risk of erroneous deprivation using the established procedures and the probable value, if any, of additional or substitute procedural safeguards; and [3] the government’s interest in taking the action.)

Menge v. Reed (2000) 84 Cal.App.4th 1134. (Department of Motor Vehicles’ revocation without a hearing of bus certificate of individual who submitted adulterated urine specimen was in violation of due process.)

Parker v. City of Fountain Valley (1981) 127 Cal.App.3d 99. (In disciplinary administrative proceedings, the burden of proving the charges rests upon the party making the charges.)

Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 27 CPER 37. (Pre-removal safeguards for an employee with a property interest in the job must include notice of the proposed action; the reasons therefore; materials on which the action is based; and the right to respond, either orally or in writing, to the authority initially imposing discipline.)

Townsell v. San Diego Metropolitan Transit Development Board (1998) 65 Cal.App.4th 940 (Supreme Ct. rev. den.), 132 CPER 71. (Permanent public employee who is discharged for cause has a right to a evidentiary hearing. In this case, the pre-termination hearing did not give the employee the opportunity to challenge the factual basis underlying the termination.)

D. Resources

Uyehara, Emi R., updated by Margot Rosenberg and Kate Hallward, Pocket Guide to Due Process in Public Employment, 4th edition. Berkeley, CA: CPER, University of California (2016).

Zerger, Kirsten L., et al., eds. California Public Sector Labor Relations, Chapter 16. New York: Matthew Bender, looseleaf with annual supplements.

18Federal employees’ due process rights are granted by the 5th Amendment; state and local public employees’ rights stem from the 14th Amendment. The rationale for the procedural protections is the same; however, all of the cases discussed here are based on state and local employees’ rights.

19Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 27 CPER 37.

20Cleveland v. Loudermill (1985) 470 U.S. 532, 64X CPER 2.

21Board of Regents v. Roth (1972) 408 U.S. 564, 20 CPER 71.

22Skelly is a procedural right, not a rule of evidence. (“It is clear that due process does not require the state to provide the employee with a full evidentiary hearing prior to the initial taking of punitive action.”) (Skelly, supra at 215.) (See, e.g., Cockburn v. Santa Monica Community College Dist. Personnel Com. [1984] 161 Cal.App.3d 734.)

23Gilbert v. Homar (1977) 520 U.S. 924, 117 S.Ct. 1807, 125 CPER 19. (Similarly, employees working for public school and community college districts are subject to pre-deprivation suspensions without pay if charged with certain narcotics or sex offenses or murder or attempted murder. See Ed. Code sections 44940, 44940.5, 45304, and 87736. In order to receive pay during their suspension, employees must post a suitable bond. If the district pursues dismissal of the employee, he or she is entitled to back pay if acquitted of the charges.)

24Duncan v. Department of Personnel Administration (2000) 77 Cal.App.4th 1166, 141 CPER 51. (While permanent employee had property interest in continued employment, employee subject to voluntary demotion in lieu of layoff was not entitled to a pre-demotion hearing.)

25The Public Safety Officers Procedural Bill of Rights Act, Gov. Code section 3304(b), entitles California peace officers to an administrative appeal of any reassignment that results in a reduction in salary or transfer for purposes of punishment.

26Coleman v. State Personnel Board (1991) 52 Cal.3d 1102, 88X CPER 6.

27International Brotherhood of Electrical Workers v. City of Gridley (1983) 34 Cal.3d 191, CPER Special Reporting Series No. 25. See Chapter 12 for discussion of protections for employees participating in protected activities.

28Lubey v. City and Co. of San Francisco (1978) 98 Cal.App.3d 340, 44 CPER 51. (In Lubey, two probationary employees were entitled to reinstatement because their termination for misconduct without due process was in violation of the city charter. After reinstatement as probationary employees, the city could still terminate them if they failed to perform satisfactorily.)

29Enomoto v. Brown (1981) 117 Cal.App.3d 408, 49 CPER 48.

30Swift v. County of Placer (1984) 153 Cal.App.3d 209, 61 CPER 29.

31Williams v. Dept. of Water and Power (1981) 130 Cal.App.3d 677, 53 CPER 38.

32Lubey v. City and Co. of San Francisco, supra.

33(2005) 130 Cal.App.4th 1462, review denied October 25, 2006.

3. Employment Discrimination and Harassment

A. Employment Discrimination Principles

Various statutes — both federal and state — prevent unlawful employment discrimination, harassment, and retaliation. Discrimination generally occurs when an employee is subjected to an adverse employment action due to being a member of a protected class or is perceived to be a member of a protected class or associates with a member of a protected class. Retaliation generally occurs when an employee is subjected to an adverse action due to engaging in a protected activity.

Protected classes include race, color, religion (including religious dress and grooming practices), national origin, ancestry, physical or mental disability, medical condition, genetic information, marital status, sex, gender identity, gender expression, sexual orientation, military and veteran status, pregnancy, childbirth, breastfeeding or related medical conditions of any female employee, or age (40 years and older). Protected activities generally include submitting a charge of discrimination, testifying or assisting or participating in any manner in proceedings or hearings related to a discrimination charge, or opposing any actions that are unlawful under the discrimination statutes.

To prove unlawful discrimination, an employee must prove that his or her membership in a protected class was a “substantial motivating reason” behind the adverse employment action taken against the employee. Discrimination usually refers to bias in the exercise of personnel actions taken by an employer. Personnel actions include decisions such as hiring, promotion, compensation, transfer, or termination. Similarly, to prove unlawful retaliation, an employee must prove that his or her protected activity was a “substantial motivating reason” behind the adverse employment action taken against the employee.

If the action is intentionally discriminatory in that the employer had the intent to discriminate, it is often referred to as “disparate treatment” discrimination. If the operation of the employer’s system had an unintentionally discriminatory effect, it is said to have a “disparate impact.” In general, both disparate treatment and disparate impact discrimination are unlawful.

In order to prove unlawful discrimination, employees may rely on evidence of discriminatory treatment from their own personal experience and/or statistics that clearly demonstrate discrimination against a whole class of persons.

Even if the employee’s evidence is sufficient to show discrimination, an employer may be able to justify its action by proving that there was a business necessity for it or that a legitimate job qualification required consideration of a factor that had an unintentional discriminatory effect.

In order to prove unlawful discrimination in a case where the employer has offered a legitimate, non-discriminatory reason for its action, the employee bears the burden of showing that discrimination, not the employer’s justification, was the true reason for the action.

In addition, various statutes — both federal and state — prevent unlawful employment harassment. While discrimination involves formal personnel actions taken against an employee for unlawful reasons, harassment involves subjecting an employee, due to his or her membership in a protected class, to “severe or pervasive” working conditions that do not rise to the level of an actual personnel action. Harassment often does not involve any formal personnel action, but rather, involves “bias that is expressed or communicated through interpersonal relations in the workplace.”34 For example, unlawful sexual harassment occurs when submission to unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature is made a condition of employment (“quid pro quo” sexual harassment). Conduct that unreasonably interferes with an individual’s work performance or creates an intimidating, hostile, or offensive work environment also is unlawful (hostile work environment sexual harassment).

Several laws prohibit employment discrimination, harassment, and retaliation, and more than one often will apply to a particular case. Both the state statutes and federal laws are described below. In addition to these statutory and constitutional protections, collective bargaining agreements and civil service rules may contain anti-discrimination provisions. This chapter focuses on the most commonly used protections: (1) Title VII of the federal Civil Rights Act of 1964; (2) the Fourteenth Amendment to the U.S. Constitution; (3) the California Fair Employment and Housing Act; and (4) other federal and state laws, including the age and disability discrimination acts that have expanded Title VII-type protections to other kinds of discrimination.

Under both federal and state laws, employers are required to display posters distributed by the agencies that administer these laws, describing and explaining the illegality of various forms of discrimination and the steps employees should take if they believe their rights have been violated. Employers also are required under some of these laws to distribute to each employee written material with more specific information.35

Employees who believe they have suffered discrimination, harassment or retaliation should consider all of these possible avenues of relief because employees may have to choose among available protections. Some may provide for quicker relief, others may offer more extensive remedies, and filing deadlines for the various remedies differ.

Caution: Employees whose employment is subject to a mandatory arbitration agreement contained in a collective bargaining agreement or otherwise, may be barred from having their claims heard in court. The enforceability of the arbitration agreement may depend upon the language used and/or the circumstances under which the employee’s waiver of his or her rights was obtained, among other considerations.36

B. California Discrimination, Harassment and Retaliation Laws

1. Fair Employment and Housing Act and Labor Code

California’s primary law prohibiting discrimination, harassment, and retaliation in employment is the Fair Employment and Housing Act (FEHA).37 The FEHA makes it illegal for private and public sector employers regularly employing five or more employees to discriminate and toretaliate against employees on the basis of race, color, religion (including religious dress and grooming practices), national origin, ancestry, physical or mental disability, medical condition, genetic information, marital status, sex (which includes pregnancy, childbirth, breastfeeding, or related medical conditions of any female employee), gender identity, gender expression, sexual orientation, military and veteran status, denial of Family and Medical Care Leave, or age (40 years and older). All employers with at least one employee are prohibited from harassing an employee based on these classifications.

Sexual harassment is unlawful under the FEHA regardless of the sex of the victim, including harassment against a person of the same gender.38 Employers may be automatically liable for harassment committed by supervisors and other management personnel, and they may be liable if they fail to prevent the harassment committed by coworkers, colleagues, and other third parties.

Employers covered by the FEHA are also required to reasonably accommodate qualified disabled individuals and those employees whose religious beliefs conflict with an aspect of the job. An employer is prohibited from retaliating or otherwise discriminating against any person for requesting an accommodation of an employee’s or applicant’s disability or religious belief, regardless of whether the accommodation was actually granted. The FEHA also requires that employees disabled by pregnancy be provided up to four months of unpaid pregnancy leave and reinstatement upon return, as well as reasonable accommodations for pregnancy-related conditions. See Chapter 9 for a full discussion of reasonable accommodation.

In addition, the FEHA protects employees from retaliation for opposing any action unlawful under the Act. In other words, employees who blow the whistle on any unlawful discrimination or harassment, or participate in any complaint of discrimination or harassment, are protected from retaliation.

Enforcement. Employees who believe they have been discriminated against under the FEHA must file a complaint with the local office of the state Department of Fair Employment and Housing (DFEH), either in person or online, before proceeding to court. Because most employees claiming discrimination will want to file complaints under both state and federal laws, they normally also will have the DFEH complaint cross-filed with the area office of the federal Equal Employment Opportunity Commission (EEOC), the agency that administers Title VII and other federal anti-discrimination laws. (See discussion of federal discrimination laws below.) The DFEH and EEOC have a joint filing procedure so a complaint filed in one office may be filed in the other. (See discussion of EEOC procedures, below.)

The DFEH (or the EEOC) may investigate the charge and attempt to resolve the problem with the employer. If unsuccessful, the DFEH usually will issue, on its own or at the employee’s request, a “right to sue” letter. That letter allows the employee to file a private lawsuit and seek a remedy in court, without the agency’s participation. Alternatively, the agency may file a suit on behalf of the employee if the matter cannot be resolved through mediation.39

Prior to filing suit, the DFEH may require all parties to undergo mandatory dispute resolution in its internal dispute resolution division, free of charge.

Employees who wish to file their own suit should consult an attorney about the steps to take, but must be sure they have exhausted their remedies with the DFEH and/or the EEOC; a private lawsuit can be brought only after a “right to sue” letter has been granted by either of those agencies. The failure to timely file these complaints with either the DFEH or EEOC and properly obtain the “right to sue” letter will bar any subsequent civil suit.

2. California Equal Pay Act

The California Equal Pay Act prohibits discrimination against employees on the basis of sex in the payment of wages.40 As of January 1, 2016, the effective date of an amendment to the law called The Fair Pay Act, an employer is prohibited from paying employees of the opposite sex lower wage rates for “substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.”41 Previously, the law was more limited. It prohibited employers from paying employees of the opposite sex in the same establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. The new amended law permits an employee to bring an unequal pay claim based on employee wage rates in any of the employer’s facilities and in other job categories as long as the work is substantially similar. In order to be exempted, an employer must show that the wage differential is entirely based upon a seniority system, a merit system, a system that measures earnings by quality or quantity of production, or “a bona fide factor other than sex, such as education, training, or experience,” as applied reasonably. The employer must maintain wage records for a period of three years.

The act prohibits retaliation or discrimination against employees who assert their rights under it, including disclosing the employee’s own wages, discussing the wages of others, inquiring about another employee’s wages, or aiding or encouraging any other employee to exercise his or her rights under this section.

Enforcement. Employees may enforce the act in two ways: (1) by filing a complaint with the Department of Industrial Relations, Division of Labor Standards Enforcement; or (2) by bringing a private lawsuit. Remedies may include lost wages, and interest, and an additional equal amount as liquidated damages, and attorneys’ fees and costs. There is no requirement that an employee exhaust administrative remedies prior to bringing suit.

3. Other California statutory protections

Particular groups of public employees have additional statutory protections under laws governing their employment conditions. For example, the Education Code adds various protections for teachers and classified school employees discriminated against on the basis of physical handicap, pregnancy, age, marital status, sex, race, and religion.42

The Government Code prohibits state employers and entities receiving state funding from discriminating including by setting age limits for most civil service exams, and denying employment on the basis of blindness.43 The Government Code also prohibits counties and cities from discriminating on the basis of age.44

Although California law does not expressly prohibit discrimination against domestic violence survivors, employees are entitled to take time off work for certain domestic violence-related reasons, such as going to court to obtain a restraining order, and employers may not retaliate against employees who exercise this right.45

4. Affirmative action

“Affirmative action” is the term used to describe a plan whereby an employer bases hiring and promotion decisions in part on gender, race, or ethnicity in order to overcome underrepresentation of an identified minority group or women. It may be imposed by a court order in a discrimination lawsuit to remedy prior discrimination. Some employers have in the past adopted voluntary affirmative action plans to overcome perceived underrepresentation of certain groups in particular occupations or job classifications.

In 1996, California voters enacted Proposition 209, a constitutional amendment that, among other things, prohibits “preferential treatment” based on race, sex, color, ethnicity, or national origin in public employment at the state and local government level. Federal courts have ruled that this affirmative action ban does not conflict with the Equal Protection Clause or with federal anti-discrimination statutes.

C. Federal Anti-Discrimination Laws

1. Title VII of the Civil Rights Act of 1964

Title VII46 is the federal statute that prohibits employers — public and private — from discriminating on the basis of race, color, religion, sex (including gender identity and sexual orientation), or national origin in the hiring, classification, promotion, compensation, termination, or any other benefit or condition of employment. Sexual harassment, including same-sex harassment and discrimination on the basis of pregnancy or childbirth, is sex discrimination prohibited by Title VII. Generally, California’s FEHA provides broader protections against discrimination than Title VII. For example, the FEHA prohibits discrimination based on marital status, and military and veteran status while Title VII does not. In addition, the FEHA reaches small employers not subject to Title VII. The FEHA applies to any employer with 5 or more employees, and all employers are subject to harassment claims under the FEHA. Title VII applies only where there are 15 or more employees.

Enforcement. State and local public employees may file a complaint of discrimination under the federal discrimination laws with the local office of the EEOC. (Under the joint filing procedures, discussed above, those employees normally also file complaints of discrimination under the state discrimination laws with the DFEH.) In pay discrimination claims, the time for filing an EEOC charge begins to run each time compensation is paid, regardless of when the original discriminatory decision was made.47

If the EEOC has completed its procedures and given the employee a “right to sue” letter, the employee may take the case to state or federal court (within 90 days), which may grant remedies that include “equitable relief,” such as reinstatement, promotion, and back pay. If the court finds that discrimination was intentional, Title VII allows it to award limited compensatory damages for emotional pain and suffering and inconvenience.

Federal employees also may file Title VII complaints, but under special procedures.48 First, they must contact an EEO counselor within 45 days of the alleged discrimination to file an “informal complaint.” If the problem is not resolved through conciliation, the counselor then must notify the employee of the right to file a formal complaint with the employing agency within 15 days.

The agency then must conduct an investigation and may attempt to settle the complaint. The employer then may request a hearing before a judge from the EEOC, whose findings are considered by the agency. The final agency decision may be appealed either directly to the federal court or to the EEOC. If the appeal is taken to the EEOC, that ruling also may be appealed in court.

In addition to these statutory remedies, employees covered by a collective bargaining agreement that prohibits discrimination may file a grievance, although the remedies are usually limited to reinstatement, promotion, and back pay, and do not include money damages.

Federal employees covered by a collective bargaining agreement that permits grievances based on discrimination must choose whether to pursue the complaint through the grievance procedure or the EEOC.49 However, private sector employees may pursue a discrimination grievance through grievance arbitration without giving up their right to file a lawsuit under Title VII, but may be barred from doing so if they knowingly waived their right to a judicial forum.50

However, employees should consult with appropriate counsel before instituting a grievance, as the outcome of that grievance may impact any subsequent civil suit on the same basis.

2. Equal Protection Clause of the Fourteenth Amendment

The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution provides additional protection against employment discrimination for public employees because the amendment prohibits discrimination by state and local governments in all areas, including how they treat their employees. Federal employees are similarly protected under the Fifth Amendment, which applies to federal government actions.

These constitutional provisions require that governmental classifications be reasonable so that similarly situated people are treated equally. Accordingly, a gender-based job classification will be found reasonable only if it is substantially related to achieving an important governmental objective.

However, race-based classifications must meet a higher standard of scrutiny — they must be necessary to promote a “compelling” government end. An employer’s rule or practice that has a discriminatory effect is not unconstitutional unless the public employer intended to discriminate (whereas under Title VII, a practice may be unlawful merely if it has an unintentionally discriminatory effect).

A related statutory protection against employment discrimination on the basis of race or ethnicity is found in Section 1981,51 which guarantees all persons the right to make and enforce contracts, including employment contracts, without regard to race. The right includes the performance and modification of the terms of the contract, including the enjoyment of all the benefits of the contractual relationship. Section 1981 applies, however, only where the discrimination is intentional; it does not apply in “disparate impact” cases.

Enforcement. Violations of the Fourteenth Amendment can be remedied by bringing a “Section 1983” suit.52 Such constitutional violations generally are raised as a second claim in a Title VII suit because different remedies are available under Section 1983 than under Title VII. A claim for violation of Section 1981 also may be included. Remedies vary, depending on the nature of the discrimination, but generally include injunctive relief, such as reinstatement, hiring, or promotion, as well as compensatory and punitive damages.

Federal employees cannot use these civil rights statutes to enforce the Fifth Amendment’s Equal Protection Clause because the acts apply only to “state action,” not to federal government action. Thus, their remedies lie solely in Title VII.

3. Age Discrimination in Employment Act (ADEA)

The ADEA is a federal statute that protects individuals at least 40 years old from age discrimination.53 Employment conditions, including hiring, promotion, compensation, benefits, and retirement, are covered.

To prove age discrimination under the ADEA, a plaintiff must show that age alone was the determinative factor in the employment decision. The act does not prohibit employment decisions based on factors that merely correlate with advancing age, so long as they are not based on age alone or a “subterfuge” for age discrimination. However, mandatory retirement based on age is generally unlawful.

Enforcement. Employees must exhaust EEOC remedies before filing a private lawsuit; however, federal employees may take their ca ses directly to federal court, after providing the EEOC with advance notice.

4. Federal Equal Pay Act

The federal Equal Pay Act,54 like its California counterpart (see above), prohibits employers from maintaining sex-based wage differentials for substantially equal work that cannot be justified by seniority or merit systems or some other non-gender factor.

Enforcement. The act is enforced by the EEOC, although employees need not first file an EEOC complaint in order to bring a private suit alleging a violation of this act. Employees may combine complaints alleging violations of the Equal Pay Act and Title VII for the same conduct.

The EEOC may bring a suit to enforce payment of the wages that were illegally withheld and to secure an award of “liquidated damages” in an amount equal to the back pay owed. If the employee brings a private suit to enforce payment, the remedy also may include liquidated damages, attorneys’ fees, and court costs.

5. Disability statutes

In addition to the FEHA, two federal laws provide protection from employment discrimination on the basis of disability or medical condition: the Rehabilitation Act and the Americans with Disabilities Act (as amended in 2008). (See separate discussion in Chapter 9.)

6. Genetic Information Nondiscrimination Act

The Genetic Information Nondiscrimination Act of 2008 makes it unlawful for employers to use or acquire genetic information relating to employees in making employment decisions.55

D. Key Cases

Burlington Northern & Santa Fe Railway Co. v. White (2006) 548 U.S. 53. (To prove retaliation under Title VII, a plaintiff must show that a reasonable employee would have found the employer’s challenged action materially adverse, i.e., the action might well have dissuaded an employee from making or supporting a charge of discrimination.)

Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028. (The FEHA forbids discrimination against an employee based on a recognized disability of that employee or that employee’s association with another who has a disability. An employer who refused to adjust the employee’s work schedule to allow the employee to administer home dialysis to his disabled son violated the FEHA.)

Crawford v. Metropolitan Govt. of Nashville and Davidson County, Tenn. (2009) 129 S. Ct. 846. (Anti-retaliation provision of Title VII protects employee who speaks out about sexual harassment in answering questions during employer’s investigation of coworker’s complaint.)

Davis v. Farmers Ins. Exch. (2016) 245 Cal.App.4th 1302. (To prove a FEHA claim or a wrongful termination in violation of public policy claim, a plaintiff must show that the protected class or activity was a “substantial motivating factor” in the decision to implement the adverse employment action.)

EEOC v. Abercrombie & Fitch, Inc. (2015) 575 US __, 135 S.Ct. 2028. (A job applicant seeking to prove a Title VII disparate treatment claim need only show that the need for a religious accommodation was a motivating factor in the prospective employer’s adverse decision, and need not show that the employer actually knew that the applicant’s practice was a religious practice that required an accommodation.)

Green v. Par Pools, Inc. (2003) 111 Cal.App.4th 620. (An employee bringing a claim under California’s Equal Pay Act need not demonstrate that the employer intended to discriminate in the payment of wages due to gender.)

Griggs v. Duke Power (1971) 401 U.S. 424. (Employer’s use of high school equivalency as job pre-requisite violates Title VII because not related to job performance and operated to disproportionately disqualify blacks, creating an unlawful disparate impact.)

Gross v. FBL Financial Services, Inc. (2009) 129 S. Ct. 2343. (In an age discrimination case under the ADEA, a plaintiff must show that age was the “but for” cause of the employer decision; unlike Title VII, the ADEA has no “mixed-motives” provision.)

Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 103 CPER 10. (Test for unlawful sexual harassment is whether reasonable person would find gender-based conduct created hostile work environment; no need to establish physical or psychological harm.)

Lyle v. Warner Bros. Television Prod. (2006) 38 Cal.4th 264. (To establish a hostile work environment claim where plaintiff was not personally subjected to offensive comments and touching, plaintiff generally has the burden of proving that she witnessed harassment directed at others in her immediate work environment.)

McDonnell Douglas Corp. v. Green (1972) 411 U.S. 792. (Establishes three-part test for proving disparate treatment in Title VII cases.)

Mendoza v. Roman Catholic Archbishop of Los Angeles (9th Cir. 2016) 824 F.3d 1148. (In contrast to a Title VII claim, the ADA requires an employer’s knowledge of a known physical or mental limitation before a reasonable accommodation is required.)

Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 70 CPER 57. (Title VII violation may be premised on a claim of “hostile environment” without regard to whether the plaintiff suffered tangible or economic job detriment as a result of sexual harassment.)

Mogilefsky v. Superior Court (Silver Pictures) (1993) 20 Cal.App.4th 1409, 104 CPER 46. (Same-gender sexual harassment is unlawful discrimination on the basis of sex under the Fair Employment and Housing Act.)

Oncale v. Sundowner Offshore Services (1998) 520 U.S. 1263, 129 CPER 11. (Sex discrimination consisting of same-sex sexual harassment is actionable under Title VII.)

Opuku-Boateng v. State of California (9th Cir. 1996) 95 F.3d 1461, 120 CPER 79. (Department violated Title VII because the proposed schedule change to accommodate the employee’s religious beliefs did not impose undue hardship.)

Rissetto v. Plumbers and Steamfitters Loc. 343 (9th Cir. 1996) 94 F.3d 597, 120 CPER 90. (An employee who received workers’ compensation benefits for total temporary disability at the time she was terminated is barred from asserting an age discrimination claim.)

Roby v. McKesson Corp. (2009) 47 Cal.4th 686. (Personnel management actions may be relied upon as evidence in support of harassment claims under FEHA; $15 million punitive damages award exceeded federal constitutional limit under the facts of this case.)

Runyon v. McCrary (1976) 427 U.S. 160. (Civil Rights Act, section 1981, barring racial discrimination in making contracts, applies to public and private contracts.)

State Personnel Board v. Fair Employment and Housing Commission (1985) 39 Cal.3d 422, 67 CPER 20. (State civil service employees are covered by the Fair Employment and Housing Act.)

Steiner v. Showboat Operating Co. (9th Cir. 1994) 25 F.3d 1459. (Degrading conduct against men does not “cure” harassment against women; in evaluating harassing conduct the court must consider what is offensive to a reasonable woman.)

United Auto Workers v. Johnson Controls (1991) 499 U.S. 187, 89 CPER 58. (Employer is prohibited under Title VII from excluding fertile women employees from certain jobs that may pose fetal hazards.)

Washington v. Davis (1976) 426 U.S. 229. (Upheld facially neutral personnel test that excluded four times as many blacks as whites in its application under the Fourteenth Amendment, since there was no showing of discriminatory intent.)

E. Resources

Chin, Hon. Ming W., Hon. Rebecca A. Wiseman, Hon. Consuelo Maria Callahan and Alan B. Exelrod, California Practice Guide: Employment Litigation, Rutter Group Practice Guide, Ch. 7 & 10 (2009) with annual updates.

de Jennings, Carmen Plaza, and Jayne Benz Chipman, Pocket Guide to Workplace Investigations, 1st edition. Berkeley: CA, University of California (2016), http://cper.berkeley.edu.

EEOC “Enforcement Guidances and Related Documents,” http://www.eeoc.gov/.

Poturica, Melanie, Ed Reitkopp, and Jennifer Isenberg. “Conducting Harassment Investigations: The Right Way at the Right Time,” California Public Employee Relations, No. 129 (April 1998), pp. 4-10.

Stevens, Carol M. Pocket Guide to Disability Discrimination in the California Workplace, 3rd edition. Berkeley: CA, University of California (2015), http://cper.berkeley.edu.

Tracy, Teresa. “Discrimination & Harassment,” Advising California Employers and Employees, Regents of the University of CA, Vol. 2 Ch. 15, CEB: Continuing Education of the Bar – California, 2009, updated 2015.

Wilcox, M. Kirby, California Employment Law, Div. IV. New York: Matthew Bender; looseleaf with annual supplements.

34Roby v. McKesson Corp. (2009) 47 Cal.4th at 706-707.

35The California Fair Employment and Housing Act requires employers to develop a written harassment, discrimination and retaliation prevention policy and disseminate it to their employees. See 2 Cal. Code Regs. section 11023(b) (added effective April 1, 2016.) Further, employers in California with 50 or more employees are required to provide at least two hours of sexual harassment training to supervisory employees every two years. Cal. Gov. Code section 12950.1. The FEHA regulations set forth mandatory objectives of the training, qualification requirements for trainers and recordkeeping requirements for employers. 2 Cal. Code Regs. section 11024.

36Alexander v. Gardner-Denver (1974) 415 U.S. 36, 61 CPER 61. But see Gilmer v. Interstate/Johnson Lane Corp. (1991) 500 U.S. 20, 89 CPER 59, where the U.S. Supreme Court ruled that a securities broker was governed by a mandatory arbitration clause and was precluded from bringing suit under the Age Discrimination in Employment Act. In Prudential Insurance Co. v. Lai and Viernes (9th Cir. 1994) 42 F.3d 1299, 110 CPER 70, the Ninth Circuit Court of Appeals narrowly construed Gilmer, holding that an employee must knowingly waive her statutory rights in order to be limited to the arbitral forum. See also the Supreme Court’s decision in Wright v. Universal Maritime Service Corp. (1998) 525 U.S. 70, 129 CPER 75, holding that the collective bargaining agreement did not require the employee to use the arbitration procedure for alleged violation of the Americans With Disabilities Act because the waiver of the employee’s right to a judicial forum was not clear and unmistakable. In 14 Penn Plaza LLC v. Pyett (2009) 556 U.S. 247, the Supreme Court held that union members were required to arbitrate their ADEA age discrimination claims and were barred from bringing them to court because of the terms of the collective bargaining agreement. Regarding state claims, Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83 sets out the minimum requirements for compelling arbitration claims under the FEHA. See Ortega v. Contra Costa Community College Dist. (2007) 156 Cal.4th 1073, Dental Supplies, Inc. v Superior Court (2010) 48 Cal.4th 665; Volpei v. County of Ventura (2013) 221 Cal.App.4th 391. This is a rapidly developing area of the law and employees should consult with counsel if their employment is subject to an arbitration provision.

37Gov. Code sections 12900 et seq. Federal employees are not covered. The FEHA also prohibits discrimination in housing and places of public accommodation.

38Mogilefsky v. Superior Court (Silver Pictures) (1993) 20 Cal.App.4th 1409, 104 CPER 46.

39Punitive damages are available under both the FEHA and Title VII. However, punitive damages may not be awarded against a governmental entity. (Gov. Code section 818; 42 U.S.C. 1981a). See discussion below.

40Labor Code section 1197.5.

41SB 358.

42Ed. Code sections 44337 (disability), 44338 (disability), 44858 (age and marital status), 45023.5 (sex), 45193 (pregnancy), 45293 (prohibiting inquiry into political or religious opinions or affiliations, race, color, national origin or ancestry, sex, and marital status.)

43Gov. Code sections 11135 (government funding), 18932 (age), 19701 (blindness), 19702 (retaliation), 19704 (prohibiting inquiries into race, color, religion, sex, or marital status of any person for purposes of hiring or promoting), 19706 (prohibiting inquiries on state civil service applications where the age of applicant may be obtained.)

44Gov. Code sections 31005, 31006, 45050, 45051.

45See Labor Code sections 230(c), 230.1.

4642 U.S.C. sections 2000e et seq.

47See, “Lilly Ledbetter Fair Pay Act of 2009,” 42 U.S.C. section 2000e-5(e)(3)(A). Note: Exhaustion of administrative remedies is not required under this act.

4829 CFR sections 1614 et seq. Federal employees are not protected by state statutes, such as the FEHA.

4929 CFR section 1614.301.

50Alexander v. Gardner-Denver (1974) 415 U.S. 36, 61 CPER 61. But see Gilmer v. Interstate/Johnson Lane Corp. (1991) 500 U.S. 20, 89 CPER 59, where the U.S. Supreme Court ruled that a securities broker was governed by a mandatory arbitration clause and was precluded from bringing suit under the Age Discrimination in Employment Act. In Prudential Insurance Co. v. Lai and Viernes (9th Cir. 1994) 42 F.3d 1299, 110 CPER 70, the Ninth Circuit Court of Appeals narrowly construed Gilmer, holding that an employee must knowingly waive her statutory rights in order to be limited to the arbitral forum. See also the Supreme Court’s decision in Wright v. Universal Maritime Service Corp. (1998) 525 U.S. 70, 129 CPER 75, holding that the collective bargaining agreement did not require the employee to use the arbitration procedure for alleged violation of the Americans With Disabilities Act because the waiver of the employee’s right to a judicial forum was not clear and unmistakable.

5142 USC section 1981, statute adopted in Civil Rights Act of 1866. The statute does not apply to sex discrimination or to federal employees.

5242 USC section 1983; this provision of the 1871 Civil Rights Act permits lawsuits to enforce the Fourteenth Amendment and other rights secured by the Constitution and federal laws.

5329 USC sections 621 et seq. An upper age limited of 70 was rescinded in 1986 for all employees except firefighters, law enforcement personnel, and tenured college faculty, meaning these classifications still could be subject to mandatory retirement at 70. That exemption expired at the end of 1993 and was not extended. However, in 1996, the act was amended to give states and local governments the option of setting mandatory retirement ages for public safety officers.

54729 USC section 206(d). The act is part of the Fair Labor Standards Act, 29 USC sections 201 et seq.

55See 42 USC sections 2000ff-1 et seq.

4. Privacy and Drug Testing

A. Overview

Like other constitutional rights, the right to privacy under the U.S. and California Constitutions applies to public employees in the workplace with limitations. A public employee’s right to privacy in the workplace may be violated if his or her employer unreasonably intrudes into the employee’s personal off-duty activities, searches an employee’s office, releases the employee’s personnel records, or compels an employee to submit to personal searches, such as drug or polygraph (lie detector) tests. This particular area of the law is quickly developing with the rapid growth in technology, including personal communication devices which are now commonplace and have the capacity to store large amounts of personal information. These communication devices, along with the advent of social networking websites, present a whole new set of evolving dynamics to consider when examining an employee’s workplace privacy.

B. Physical Searches

In O’Connor v. Ortega,56 the United States Supreme Court held that searches of a public employee’s office or desk are to be judged by the standard of “reasonableness under the circumstances.” An employer may violate the privacy rights of its employee if the employee possesses a reasonable expectation of privacy in the item seized or the area searched and if the search was not justified or reasonable in scope.

In determining whether an employee has a reasonable expectation of privacy, courts look to the degree of openness in an employee’s work area. In addition, employer policies regarding use of workspace for personal business may affect the degree of privacy the employee may reasonably expect, and therefore, the existence of a privacy right. For example, where an employer has a rule against personal Internet or email use that states the employer will conduct audits of the employees’ Internet and email activity, employees do not have a reasonable expectation of privacy over their email and Internet history.57 Most employers now have such policies.

Assuming an expectation of privacy exists, a search might be justified if there are reasonable grounds for suspecting the search will turn up evidence that the employee has engaged in work-related misconduct or that the search is necessary for a work-related purpose such as to retrieve a much-needed file or other material. Assuming the search was justified, it also must be reasonable in scope — the means must be reasonably related to the objectives of the search and not excessively intrusive in light of the nature of the misconduct or work-related need at issue.

The test outlined in O’Connor v. Ortega, which originally dealt with searches of physical office spaces, will also be applied to electronic and digital spaces. In City of Ontario v. Quon,58 the United States Supreme Court had occasion to apply the test to text messages sent from and between police officers using department issued equipment. The Court found that, although the officers had a reasonable expectation in the contents of their communications since their employer expressly notified them that their messages would not be reviewed, the audit of those messages was constitutional as it was reasonable as part of a search for a work-related purpose, i.e., to determine why employees were texting with such frequency. In addition, many employers are instituting workplace policies that state that employees possess no privacy rights with respect to workplace communications, whether it be through email or usage of company internet servers. The Quon decision, along with these policies, are rapidly undercutting the reasonable expectations of privacy of employees in the workplace. In addition, under California’s Public Records Act, many documents are subject to disclosure upon request if they relate to the operation of the public agency. While there are exceptions to what must be disclosed, those exceptions are few. Employees should be cautious with using personal communication devices while at work, and should consult with their appropriate bargaining unit to ensure that they are inadvertently subjecting their personal information to potential disclosure.

C. Privacy in Personal Information

The right to privacy also includes the right to avoid the disclosure of personal matters, as well as the right to make independent choices regarding important issues. Before intruding on an employee’s privacy rights, the employer must show that the employee’s private, off-duty, personal activities impact an employee’s on-the-job performance. In addition, an employer’s interference with these rights must be narrowly tailored to a legitimate interest. For instance, an employer may not question an employee about whether the employee had an affair unless the affair impacts on-the-job performance.

D. Drug Testing

With respect to drug testing, generally, a public employer must have reasonable suspicion in order to test an employee. However, courts have held that certain types of positions create a “special need” which justifies random drug testing of employees in those positions. For example, where there is a high level of care required to avoid health and safety hazards, such as in the railroad industry, drug testing may be constitutionally permissible. In addition, positions that are “sensitive” with respect to governmental security and law enforcement, such as those in which employees are required to handle classified material, carry firearms or interdict narcotics, may justify drug testing of employees without individualized suspicion.

Some factors considered by the courts include: (1) whether the employee has a “diminished expectation of privacy” due to the highly regulated nature of the job or industry and/or existence of drug testing policy; (2) whether there is a demonstrated need for drug testing due to evidence of drug abuse among the workforce; (3) whether the test was “triggered” by some event such as an accident or application for promotion; and (4) the intrusiveness of the drug testing procedure used.

In California, with the passing of Proposition 64 in 2016, also known as the “Adult Use of Marijuana Act,” recreational use of marijuana for adults age 21 years or older is now legal. In addition, possession of up to one ounce of marijuana or up to eight grams of concentrated cannabis for adults age 21 or over is also legal. The impacts of Proposition 64 on employee privacy rights, as well as rights under the FEHA, remain unclear. Proposition 64 does “allow public and private employers to enact and enforce workplace policies pertaining to marijuana.” Conventional wisdom suggests that employees will be entitled to maintain zero-tolerance policies, despite the passage of Proposition 64. However, how those policies conflict with FEHA’s reasonable accommodation requirements will be litigated in future years.

E. State Privacy Laws

Statutes and court decisions also provide protection against particular types of invasions of employee privacy. California public employees are protected against employer use of polygraph tests.59 The California Public Records Act (CPRA), which allows public access to government documents, permits “nondisclosure” of various types of personal information, including personnel files.60 However, in City of San Jose v. Superior Court of Santa Clara County,61 the California Supreme Court held that public documents could not be shielded from disclosure under the California Public Records Act simply because the document was sent or received on a personal communication device. The Court stated “[c]onsistent with the Legislature’s purpose in enacting CPRA, and our constitutional mandate to interpret the Act broadly in favor of public access, we hold that a city employee’s writings about public business are not excluded from CPRA simply because they have been sent, received, or stored in a personal account.”

Also, the federal Privacy Act prohibits disclosure of personal information about federal employees.62 (See also Chapter 5 “Personnel Files,” and Chapter 6 “Public Safety Bill of Rights Acts” for further discussion of protections against disclosure of information.)

Civil service or personnel rules and collective bargaining agreements may provide protections that are similar to those provided by statute, such as rules regarding how and when drug and alcohol tests may be administered.

F. Enforcement

As with all constitutional rights, an employee’s recourse for violation of the right of privacy is through a lawsuit, either seeking a court order to prohibit the conduct or compensation for any damage the employee may have suffered because of the privacy invasion.

Statutory protections also may be enforced through litigation, whereas personnel rule violations may be remedied through appeal procedures contained in civil service rules, with a determination made by an independent commission or board.

If a collective bargaining contract right has been adversely affected (such as, if discipline was imposed or a promotional opportunity lost as a result of an improper infringement), the privacy issue may be raised in a grievance. Many grievance procedures provide for a binding determination by a neutral arbitrator.

G. Key Cases

American Federation of Labor and Congress of Industrial Organizations v. California Unemployment Insurance Appeals Board (1994) 23 Cal.App.4th 51; modified (1994) 23 Cal.App.4th 1306D, 105 CPER 62. (Employer’s interest in workplace safety on off-shore oil rig justified drug test of housekeeper, even though the job was not itself “safety sensitive”; no violation of state constitutional right of privacy.)

Board of Education of Independent School Dist. No. 93 of Pottawaromie County v. Earls (2002) 536 U.S. 822, 155 CPER 17. (Suspicionless drug testing of students as a condition for participation in extracurricular activities upheld.)

City of San Jose v. Superior Court of Santa Clara County (2017) 2 Cal.5th 608. (When a city employee uses a personal account to communicate about the conduct of public business, the writings may be subject to disclosure under the California Public Records Act.)

Chandler v. Miller (1997) 20 U.S. 305. (Drug testing not a permissible requirement for candidacy for state office, despite government argument that it was justified to set a good example in the general struggle against drug use.)

Edgerton v. State Personnel Board (2000) 83 Cal.App.4th 1350. (Public employees had a reasonable expectation of privacy that they would not be subject to off-duty drug testing on personal time because policy allowed testing only while on-duty.)

Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 105 CPER 20. (Right of privacy under Art. I, section 1, of state Constitution requires showing of reasonable expectation of privacy, based on social norms; privacy invasion may be justified by legitimate, competing interests; athletic association’s interest in promoting safety and fair competition justified closely monitored urinalysis drug tests of college athletes, whose expectation of privacy was reduced by physical examination requirements and other factors.)

Loder v. City of Glendale (1997) 14 Cal.4th 846, 122 CPER 19. (City’s drug and alcohol testing program applied to all job applicants is permissible under federal and state Constitutions. Testing of every promotional candidate, without suspicion of drug use and regardless of job duties, violates Fourth Amendment right against unreasonable searches and seizures.)

Long Beach City Employees Assn. v. City of Long Beach (1986) 41 Cal.3d 937, 69X CPER 1. (Polygraph tests infringe on public employees’ privacy rights and exceed an employer’s need to interrogate employees; since statutes prohibit polygraph tests of peace officers and private sector employees, government denied other public employees equal protection of the law by permitting them to be tested.)

Long Beach Police Officer’s Assn. v. City of Long Beach (2014) 59 Cal.4th 59 (The name and badge number of peace officers are generally public information, including those officers involved in on-duty shootings, absent particular circumstances where an officer may demonstrate evidence of a “particularized” threat of harm.

Luck v. Southern Pacific Transportation Co. (1990) 218 Cal.App.3d 1, 86 CPER 2. (Employer did not have compelling interest in imposing random drug testing on computer programmer because job entailed no safety threat; employee’s state constitutional privacy right was violated when fired for refusing test.)

National Treasury Employees Union v. Von Raab (1989) 489 U.S. 656, 81 CPER 16. (Fourth Amendment does not require a warrant or probable cause or individualized suspicion of impairment before blood or urine testing of employees; public safety interest outweighs employees’ privacy rights infringed by testing of customs service employees involved in drug interdiction or carrying of firearms because of employees’ reduced expectation of privacy.)

O’Connor v. Ortega (1987) 480 U.S. 709, 73 CPER 73. (Public employees do not lose constitutional rights by accepting government jobs; their expectation of privacy in private offices, desks, and files is protected against unreasonable search by the Fourth Amendment; employer need not obtain a warrant or establish probable cause for search, but must reasonably expect to find evidence of work-related misconduct; noninvestigatory, work-related intrusion not prevented by Fourth Amendment.)

Quon v. City of Ontario et al. (9th Cir. 2008) 529 F.3d 892. (Employees maintained expectation of privacy in department-issued text message pagers due to informal policy guaranteeing privacy if the employees paid for any overage charges; department’s decision to audit text messages for legitimate administrative purpose was not reasonable in scope.)

Skinner v. Railway Labor Executives Assn. (1989) 489 U.S. 602, 81 CPER 16. (Fourth Amendment protections against unreasonable search and seizure extend to blood, breath, and urine tests; government’s compelling interest in railway safety outweighed workers’ privacy rights; expectations of privacy reduced because of highly regulated industry; requirements valid for drug and alcohol tests of all employees in specified sensitive positions following a “major” accident, without individualized suspicion of impairment; and tests if a reasonable suspicion existed that employee was impaired or contributed to a “reportable” accident.)

Smith v. Fresno Irrigation Dist. (1999) 72 Cal.App.4th 147, 136 CPER 39. (Position requiring occupationally hazardous crew work was a safety-sensitive position justifying random drug testing.)

Thorne v. City of El Segundo (9th Cir. 1983) 726 F.2d 459, 60 CPER 71, cert. denied, (1984) 469 U.S. 979. (Polygraph exam questions about sexual activities of applicant for police position violated right of privacy because inquiry not narrowly tailored to meet city’s legitimate concerns about activity that could affect job performance.)

United States v. Gonzales (9th Cir. 2002) 300 F.3d 1048. (Practice of randomly searching closed containers belonging to employees was justified by government employer store’s legitimate interest in preventing theft and was reasonable where employee had advance notice.)

United States v. Jones (9th Cir. 2002) 286 F.3d 1146. (Federal law enforcement search of a city employee’s office for criminal prosecution that was not related to a city agency’s work required probable cause.)

United States v. Simons (4th Cir. 2000) 206 F.3d 392. (Search of computer hard drive did not violate employee’s constitutional rights where employees were informed that computer policy prohibited personal Internet and email use, and that occasional audits would be conducted.)

Warren v. State Personnel Board (1979) 94 Cal.App.3d 95. (While lawful sexual activity in privacy of home does not indicate unfitness for employment and thus may not be basis for discharge, termination of law enforcement officer was justified by public sexual activity.)

Wilkinson v. Times Mirror Corp. (1989) 215 Cal.App.3d 1034, 83X CPER 6. (Pre-employment drug tests did not violate job applicants’ state constitutional right of privacy because applicants have a reduced expectation of privacy since statutes permit preemployment physicals; test standards protected privacy by assuring confidentiality and providing for test challenges; tests not coercive and less intrusive on privacy, since no threat of discharge because not applied to employees.)

56(1987) 480 U.S. 709.

57United States v. Simons (4th Cir. 2000) 206 F.3d 392.

58 (2010) 560 U.S. 756.

59Labor Code section 432.2 prohibits polygraph tests of private sector employees; Public Safety Officers Procedural Bill of Rights Act, Gov. Code section 3307, prohibits tests of law enforcement officers and prohibits discipline of officers who refuse a test. (But, see the discussion of polygraph tests in Chapter 6 of this Pocket Guide.) The state Supreme Court held that equal protection principles require that the same protections apply to other public employees. (Long Beach City Employees Assn. v. City of Long Beach [1986] 41 Cal.3d 937, 69X CPER 1.) The federal Employee Polygraph Protection Act of 1988 does not apply to state and local public employees.

60Gov. Code section 6254.

61(2017) 2 Cal.5th 608.

625 U.S. Code sections 552a et seq.; this applies unless disclosure is required under the Freedom of Information Act, based on a balancing of the rights under the two statutes.

5. Personnel Files

A. Overview

A personnel file is a file maintained under the employee’s name by his or her employing agency, usually containing administrative paperwork, such as an employment application, post-hire records reflecting wage and benefit history, advancement, performance evaluations, disciplinary actions, and attendance. The employee’s medical information, workers’ compensation claims, and disciplinary investigations may be kept in a separate file. However denominated, most files maintained under the employee’s name containing such types of information fit the definition of “personnel file.” Citizen complaints against peace officers may be kept in the officer’s general personnel file or in a separate file. However, complaints that are deemed to be frivolous, unfounded, or where the officer has been exonerated may not be kept in the peace officer’s general personnel file and may not be used against the officer for personnel purposes.63 Pre-hire background investigations are usually maintained in a separate file.

In Poole v. Orange County Fire Authority,64 the California Supreme Court had occasion to distinguish between a personnel file and notes personally made and kept by a supervisor memorializing observations of subordinates. The Supreme Court drew the line stating that the personal notes did not constitute a personnel file, as they weren’t created or maintained by the employer or pursuant to any policy or practice. Because the notes themselves couldn’t be used for any personnel purpose, and were simply a “memory aid” for the supervisor, they did not constitute a personnel file.

B. Contents

As noted, a personnel file (or files) may contain a variety of records and documents. However, there is some information that should never be found in a personnel file and some information that must be kept away from the employee’s line supervisors.

For example, Labor Code section 432.7 prohibits every employer, “whether a public agency or private individual or corporation,” from asking “an applicant for employment to disclose, through any written form or verbally, information concerning an arrest or detention that did not result in conviction…nor shall any employer seek from any source whatsoever, or utilize, as a factor in determining any condition of employment including hiring, promotion, termination,…any record of arrest or detention that did not result in conviction…..” Indeed, it is a misdemeanor for the employer to possess such information.65 However, an employer may receive information concerning the arrest of a person who is employed as a peace officer or who is applying for employment as a peace officer.66 An employer at a health facility may ask an applicant for employment in a position with regular access to patients to disclose any arrests for sex offenses, and may ask an applicant for employment in a position with access to drugs and medications to disclose any arrests for controlled substance offenses.67

Labor Code section 432.9 prohibits a state or local agency from asking about an applicant’s conviction history until the agency has determined the applicant meets the minimum employment qualifications. Exception: This does not apply to a position that requires a conviction history background check by law, or to any position within a criminal justice agency.

Unsubstantiated citizen complaints against peace officers may be kept in a personnel file, but not a general personnel file, and may not be kept in the file that is used by management for punitive or promotional or personnel purposes.68 Comments adverse to a peace officer’s or to a firefighter’s interests may not be put in his or her personnel file unless they have first been shown to the employee, and the employee is given the opportunity to sign the document and prepare a rebuttal which must be attached.69 Likewise, “information of a derogatory nature” may not be put into a classified or certificated public school employee’s file or into a community college employee’s file until he or she is given notice and an opportunity to review and comment on that information.70

Employers may not obtain records related to an employee’s participation in a drug or alcohol rehabilitation program without the employee’s consent.71 Except as expressly authorized by the Confidentiality of Medical Information Act, an employer may not obtain detailed medical information about its employees from any health care provider.72 No health care information, beyond that describing the employee’s functional limitations to perform his or her job, may be in the general personnel file available to line supervisors without the express written authorization of the employee.73 Likewise, records relating to mental health care are confidential and can be provided to the employer only to the extent necessary to obtain payment from an insurance plan.74 In addition, as a part of the Health Insurance Portability and Accountability act of 1996 (HIPAA), very strict federal regulations went into effect on April 14, 2003, providing civil and criminal penalties for unauthorized release of protected health information by employers, unions, or others who administer group health plans.75 Letters of reprimand more than three years old must be removed from the personnel files of state civil service employees.76 Citizen complaints against peace officers and the resulting reports and findings may be destroyed after five years.77

1. Employee access to files

Labor Code section 1198.5 provides that current and former employees (or a representative), with some exceptions, have the right to inspect and receive a copy of the personnel files and records that relate to the employee’s performance or to any grievance concerning the employee.78 Labor Code section 1198.5 inspections must be allowed at reasonable times and intervals, but not later than 30 calendar days from the date the employer receives a written request. Employers are entitled to charge for only the actual cost of reproduction of the file.

Excluded from this provision are employees of agencies subject to Title 1.8 of the Information Practices Act of 1977 (commencing with Civil Code section 1798), employees who are subject to the Public Safety Officers Procedural Bill of Rights Act (commencing with Government Code section 3300), and employees who are subject to the Firefighters Procedural Bill of Rights Act (commencing with Government Code section 3250), whose rights are set forth in those separate statutes.79

State civil service employees in Bargaining Units 8, 12, and 13, have the further right to inspect any documents in the possession or control of the appointing power that are relevant to adverse action being taken against the employee.80 This disclosure requirement does not extend to records that are confidential.81

Access by peace officers to their personnel files is provided in Government Code section 3306.5. Access by firefighters to their personnel files is provided in Government Code section 3256.5. Peace officers even have the right to see background investigations conducted after they were hired as peace officers, notwithstanding that information provided by prior employers is made “confidential” by Government Code section 1031.1(e).82

Access to personnel files by University of California employees and employees of California State University is governed by Education Code sections 92612 and 89546, respectively.

County employees have the right to inspect and review every official record relating to their performance as an employee, with the possible exception of letters of reference.83

2. Access by others to employees’ personnel files

No state or local agency may post the home address and telephone number of elected officials, appointed officials, and public safety officials on the Internet without that official’s written permission.84 As to the other personnel information that may be contained in a personnel file, there are some limitations on access.

A person may obtain non-peace officer employment records under the California Public Records Act by demonstrating (a) that the disclosure would not constitute an unwarranted invasion of personal privacy and (b) that the records sought are not protected from disclosure by some other state or federal law.85 If the holder of the records refuses to disclose them, the party seeking disclosure may commence an action in the superior court to compel disclosure.86

Any medical report written as a result of employment-related health care services requested and paid for by the employer may be disclosed in an administrative or judicial proceeding to which the employer and the employee are parties and in which the employee has placed in issue his or her medical history, mental or physical condition or treatment.87

Except for certain investigations by a public prosecutor or grand jury, the exclusive means for obtaining discovery of peace officer personnel records is in the context or a civil or criminal proceeding, and then only pursuant to a Pitchess motion. Under this statutory procedure, the officer is given notice that his files are sought and may intervene to request protective orders.88

A civil litigant may obtain employment records from an employer by issuing a subpoena duces tecum, a copy of which must be served on the employee whose records are sought. The employee then has the right to file a motion to quash or modify the subpoena.89

Generally speaking, a plaintiff in a civil case is not entitled to examine the personnel records of the coworker he is suing in the hope that he will discover some evidence relevant to his or her case.90 Likewise, a plaintiff in a civil case is not entitled to examine the personnel records of a coworker where less intrusive means are available to yield the information sought.91 Employers may be required to provide the exclusive representative (union) “presumptively relevant” information regarding all employees, including nonmembers.92

3. Preventing disclosure of files

Even when the contents of public employees’ personnel files are protected from disclosure by statute, it is difficult, if not impossible, to prevent disclosure.

Because requests for such information usually are directed to the employer, the affected employee may not be aware of any disclosure until after the fact. If the disclosure is sufficiently egregious to constitute an invasion of the employee’s constitutional right to privacy, the only remedy may be a post-disclosure action for damages. But, see, footnotes 93 and 95.

4. Enforcement of rights

Enforcement of rights related to personnel files depends on whether the right arises from the collective bargaining agreement (and, by incorporation, from employer rules), from civil service rules, or from law. If the right sought to be enforced arises from the collective bargaining agreement, relief should be sought through grievance/arbitration. If the right is found in a civil service rule, relief should be sought from the civil service commission, whose decision subsequently may be reviewable in the Superior Court.93

If the source of the right sought to be enforced arises from statute, an action for declaratory and/or injunctive relief may be filed in the appropriate court. As part of that action, the prevailing employee may recover costs and attorney’s fees.94 A state employee denied access to, or correction of, records pertaining to him or her may bring a civil action against the employer for injunctive relief.95 If an employer fails to permit a current employee, former employee, or representative to inspect or copy personnel records pursuant to a request under Labor Code section 1198.5, a penalty of $750.00 may be assessed.96

If there has been a disclosure of personal/confidential information that is so egregious as to amount to a violation of the constitutional right to privacy, an action for damages may lie.97

State employees may sue persons who intentionally disclose personal information maintained by the employer so long as the defendants themselves are not state employees acting in the course and scope of their employment.98

Caution: Damage claims for invasion of privacy may be subject to immediate dismissal under California’s “anti-SLAPP” laws and should be carefully analyzed to avoid liability for the other party’s attorney fees.99

C. Key Cases

Aguilar v. Johnson (1988) 202 Cal.App.3d 241, 78 CPER 41. (Citizen’s complaint is considered an “adverse comment” that requires compliance with the Public Safety Officers Procedural Bill of Rights Act, even where the document is placed in a file separate from the regular personnel file.)

Berkeley Police Assn. v. City of Berkeley (2008) 167 Cal.App.4th 385. (Records and findings created by a city commission, established to investigate complaints by citizens involving city police officers, are confidential under Penal Code section 832.7(a) and cannot be disclosed to the public.)

Board of Trustees of Leland Stanford Jr. University v. Superior Court of Santa Clara Co. (Dong) (1981) 119 Cal.App.3d 516. (Employee is entitled to discovery of her personnel file, including letters of reference, but employer may delete any information that would identify the person who gave reference.)

Cimarusti v. Superior Court (2000) 79 Cal.App.4th 799. (Correctional officers dismissed by Department of Youth Authority did not have prehearing discovery right to confidential juvenile court records.)

Commission on Peace Officer Standards and Training v. Superior Court (2007) 42 Cal.4th 278. (Peace officers’ names, employing agency, and employment dates were not confidential “peace officer personnel records” protected by statute, and it did not constitute an invasion of privacy to disclose the information under the CPRA.)

Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272. (County records relating to a peace officer’s administrative appeal of a disciplinary matter are confidential and cannot be disclosed under the Public Records Act.)

County of Los Angeles v. Los Angeles County Employee Relations Commission (2013) 56 Cal.4th 905. (Employer must provide exclusive representative “presumptively relevant” information regarding all employees, in this case telephone numbers and addresses of all employees including nonmembers.)

County of Riverside v. Superior Court (Madrigal) (2002) 27 Cal.4th 793, 154 CPER 43. (Peace officers have the right to see background investigations conducted on them after being hired.)

El Dorado Savings and Loan Assn. v. Superior Court (1987) 190 Cal.App.3d 342. (Employee’s personnel file was protected by the California constitutional right to privacy, even though the Business Records Act does not prohibit disclosure of personnel records pursuant to a subpoena.)

Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 106 CPER 61. (Discusses actionable invasions of privacy.)

International Federation of Professional and Technical Engineers, Local 21, AFL–CIO v. Superior Court (2007) 42 Cal.4th 319. (The Public Records Act does not prohibit the release of names, job titles, and salaries of city employees, including peace officers.)

Johnson v. Winter (1982) 127 Cal.App.3d 435. (California public policy dictates that individuals have access to personal information compiled for the purpose of determining eligibility for employment, with limited exceptions and protection for confidential sources.)

Long Beach Police Officer’s Assn. v. City of Long Beach (2014) 59 Cal.4th 59. (The California Public Records Act (CPRA) requires a “particularized showing” of officer safety concerns to prevent disclosure of an officer’s name after an officer involved shooting.)

Operating Engineers Local 3 v. Johnson (2003) 110 Cal.App.4th 180, 161 CPER 35. (Probation officer wins damage award for disclosure of her discipline to other employees.)

Payton v. City of Santa Clara (1982) 132 Cal.App.3d 152, 54 CPER 39. (City employee’s right to privacy under the California Constitution violated where employer posted notice of termination and reasons therefor in a workroom.)

People v. The Superior Court of San Francisco County (2015) 61 Cal.4th 696. (California Evidence Code sections 1043 and 1045 permit access to peace officer personnel files utilizing a specific procedure, since these files are presumptively confidential. The Court requires that district attorneys must utilize this same procedure when accessing such files.)

Pettus v. Cole (1996) 49 Cal.App.4th 402, 121 CPER 68. (Employer may not release or rely on employee’s confidential medical information that goes beyond that necessary to accomplish legitimate objectives, such as assessing medical leave requests or benefits eligibility.)

Poole v. Orange County Fire Authority (2015) 61 Cal.4th 1378. (An employer’s daily log maintained by a fire captain was not a “personnel file” or a file “used for any personnel purposes by his or her employer” subject to the Firefighter Bill of Rights Act.)

Rosales v. City of Los Angeles (2000) 82 Cal.App.4th 419. (Violation of statutory procedure for disclosure of peace officer personnel records does not give rise to cause of action.)

D. Resources

Rosenfeld, David A., Miles E. Locker and Nina G. Fendel. California Workers’ Rights (5th edition). Berkeley, CA: Center for Labor Research and Education, University of California (2017), Chapter 12.

Wilcox, M. Kirby. California Employment Law, Chapter 51, New York: Matthew Bender, looseleaf with annual supplements.

63Penal Code section. 832.5(b); Aguilar v. Johnson (1988) 202 Cal.App.3d 241, 78 CPER 41.

64(2015) 61 Cal.4th 1378.

65Penal Code sections 11143 (State Summary Criminal History Information) and Penal Code section 13304 (Local Summary Criminal History Information) both state: “Any person,…who, knowing he is not authorized by law to receive a record or information obtained from a record, knowingly buys, receives, or possesses the record or information is guilty of a misdemeanor.” Moreover, anyone not acting in an official capacity who discloses such information may be sued. If successful, the victim of the disclosure may recover special damages, general damages, a minimum of $2,500 in exemplary damages, plus attorney fees and costs. Civil Code section 1798.53.

66Labor Code section 432.7(b); Penal Code section 13203; Gov. Code section 1029.

67Labor Code section 432.7(f).

68Penal Code section 832.5(c)(2).

69Gov. Code section 3305; Gov. Code section 3255.

70Ed. Code sections 44031 and 87031; Miller v. Chico Unified School District Board of Education (1979) 24 Cal.3d 703.

71Health and Safety Code section 11977. However, persons judged to be addicted or likely to become addicted to narcotics, convicted, and confined in a state institution are prohibited from employment as peace officers. Gov. Code section 1029(a)(7).

72Civil Code sections 56.10.

73Pettus v. Cole (1996) 49 Cal.App.4th 402, 121 CPER 68.

74Welfare and Institutions Code section 5328.

7542 USC sections 300gg.

76Gov. Code sections 19589.

77Penal Code sections 832.5(b). The systematic destruction of five-year-old sustained citizen complaints by an employing police agency does not violate the due process rights of unknown future criminal defendants against whom the officer may someday testify. City of Los Angeles v. Superior Court (Brandon) (2002) 27 Cal.4th 1.

78A violation of this provision by the employer is a misdemeanor under Labor Code section 1199.

79Civil Code sections 1798.30 et seq. set forth the rights of individuals to examine and correct records about themselves maintained by state agencies.

80Gov. Code sections 19574.1.

81Cimarusti v. Superior Court (2000) 79 Cal.App.4th 799. (Correctional officers dismissed by Department of Youth Authority did not have pre-hearing discovery right to confidential juvenile court records.)

82County of Riverside v. Superior Court (Madrigal) (2002) 27 Cal.4th 793, 154 CPER 43.

83Gov. Code section 31011; Johnson v. Winter (1982) 127 Cal.App.3d 435.

84Gov. Code section 6254.21 and 6254.24.

85Gov. Code section 6254(c) and (k). The names, job titles, and salaries of public employees, including peace officers, are subject to disclosure under the Public Records Act. International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Superior Court (Contra Costa Newspapers, Inc.) (2007) 42 Cal.4th 319 (citing strong public interest in knowing how the government spends its money). See also, Civil Code section 1798.4(g).

86Gov. Code section 6258.

87Civil Code section 56.10(c)(8)(A); Civil Code section 56.20(c)(2). A law enforcement agency may also review records in the possession of a retirement board to determine whether a former officer, retired for disability, should be permitted to carry a concealed weapon. Unland v. Block (1997) 59 Cal.App.4th 1537.

88Penal Code sections 832.7 and 832.8; Evidence Code sections 1043 through 1045. The names, employing departments, and hiring and termination dates of peace officers are not made confidential by the above sections and must be disclosed pursuant to a Public Records Act request. Commission on Peace Officer Standards and Training v. Superior Court (Los Angeles Times) (2007) 42 Cal.4th 278. However, the records of peace officer disciplinary appeals maintained by a Civil Service Commission are protected by the above statutes and may not be disclosed pursuant to a Public Records Act request. Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272.

89 Code of Civil Procedure section 1985.6.

90Board of Trustees of Leland Stanford Junior University v. Superior Court (1981) 119 Cal.App.3d 516.

91El Dorado Savings and Loan Assn. v. Superior Court (1987) 190 Cal.App.3d 344. (Female plaintiff sought male coworker’s personnel file to impeach employer in gender discrimination case.)

92 County of Los Angeles v. Los Angeles County Employee Relations Commission (2013) 56 Cal.4th 905.

93Code of Civil Procedure sections 1085 or 1094.5.

94Labor Code section 1198.5(I).

95Civil Code sections 1798.45 et seq.

96Labor Code section 1198.5(k).

97To be actionable, there must be a specific, legally protected privacy interest, a reasonable expectation of privacy on the plaintiff’s part, and the invasion must be sufficiently serious in nature, scope and impact. Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 105 CPER 20 (approving urine testing for college athletes); Loder v. City of Glendale (1997) 14 Cal.4th 846 (disapproving suspicionless drug testing for all promotional candidates regardless of job duties). See, Operating Engineers Local 3 v. Johnson (2003) 110 Cal.App.4th 180, 161 CPER 35 (probation officer wins damage award for disclosure of her discipline to other employees); but, see, Rosales v. City of Los Angeles (2000) 82 Cal.App.4th 419 (violation of statutory procedure for disclosure of peace officer personnel records does not give rise to private cause of action and does not constitute unwarranted invasion of privacy).

98Civil Code section 1798.53.

99Code of Civil Procedure section 425.16 was enacted in 1992 to dismiss at an early stage non-meritorious litigation meant to chill the valid exercise of the constitutional rights of freedom of speech and petition in connection with a public issue, including any written or oral statement made in a public place or forum in connection with an issue of public interest, or which is otherwise “privileged” under Civil Code section 47. See, Bradbury v. Superior Court (1996) 49 Cal.App.4th 1108 (deputy sheriff’s suit against district attorney who publicly questioned deputy’s veracity dismissed; deputy ordered to pay district attorney’s court costs and attorneys’ fees).

6. Public Safety Bill of Rights Acts

A. Covered Employees

The Legislature has created two separate Bill of Rights for public safety employees, police and fire.100 The Public Safety Officers Procedural Bill of Rights Act (PSOPBRA) applies only to individuals classified as peace officers under Penal Code sections 830.1, 830.2, 830.3, 830.31, 830.32, 830.33 (except subdivision [e]), 830.34, 830.35 (except subdivision [c]), 830.36, 830.37, 830.38, 830.4, and 830.5.Thus, it applies to deputy sheriffs, city police officers, district attorney investigators, highway patrol officers, university and school police officers, airport police and the like. But it does not apply to reserve police officers, who are denominated as peace officers under Penal Code section 830.6. The Firefighters Procedural Bill of Rights Act (FBOR) applies to any firefighter employed by a public agency, including, but not limited to, any firefighter who is a paramedic or emergency medical technician, irrespective of rank. The FBOR took effect in 2008 and is modeled after the PSOPBRA, which has been in effect since 1976. The acts are nearly identical with only a few key differences.

B. Rights Provided by the Act

The acts provide the following protections:

(1) secures an officer’s and firefighter’s right to engage in political activity, if they so desire, when off-duty and out of uniform, except as otherwise provided by law;101

(2) prescribes certain protections that must be afforded officers and firefighters during interrogations which could lead to punitive action against them,102 whether such questioning is done by a superior officer, by Internal Affairs, or by any other member of the department.103 In the case of firefighters, a special right exists under California Government Code section 3253(e)(1), which requires an employer to provide an employee with a formal grant of immunity from criminal prosecution, in writing, before the employee may be compelled to respond to incriminating questions in an interrogation.

(3) prohibits the employer from taking punitive action against,104 or, for reasons other than merit, denying a promotion to, a permanent officer or firefighter without providing the officer or firefighter with the opportunity for an administrative appeal;105

(4) with some enumerated exceptions, prohibits the employer from taking any punitive action or denying a promotion on grounds other than merit “for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within one year of the public agency’s discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct.”106 In addition, “[i]n the event that the public agency determines that discipline may be taken, it shall complete its investigation and notify the public safety officer or firefighter of its proposed discipline[.]”107 Exceptions to this one year statute of limitation include if the act, omission, or other allegation of misconduct is also the subject of a criminal investigation or criminal prosecution; if the public safety officer or firefighter waives the one-year time period in writing; if the investigation is a multi-jurisdictional investigation that requires a reasonable extension for coordination of the involved agencies; if the investigation involves more than one employee and requires a reasonable extension; if the investigation involves an employee who is incapacitated or otherwise unavailable; if the investigation involves a matter in civil litigation where the public safety officer or firefighter is named as a party defendant; if the investigation involves a matter in criminal litigation where the complainant is a criminal defendant; or if the investigation involves an allegation of workers’ compensation fraud on the part of the public safety officer or firefighter.108

(5) prohibits the employer from taking punitive action against an officer for wearing a pin or other item containing the American flag unless the employer cites a specific rule or collective bargaining agreement provision and advises the officer of his appeal rights;109

(6) gives officers and firefighters the right to review and respond in writing to adverse comments before they are entered in their personnel files;110

(7) gives officers and firefighters the right to inspect their personnel files and request that mistaken or unlawful portions be deleted or amended;111

(8) allows officers and firefighters to refuse to submit to a lie-detector test and prevents an employer from taking any adverse action or drawing any negative inference for that refusal;112

(9) allows an officer to request that his or her photograph or identity not be disclosed on the Internet if he or she reasonably believes that such disclosure may result in a threat, harassment, intimidation or harm to the officer or his or her family;113

(10) limits the circumstances in which officers or firefighters may be compelled to disclose their personal financial information;114

(11) prohibits warrantless searches of lockers without prior notification;115

(12) prohibits the employer from taking punitive action or denying promotion to an officer or firefighter, or threatening to do these things, because of the lawful exercise of the rights conferred by the Act, or because of the exercise of rights under any existing administrative grievance procedure;116

(13) allows the employer to order an officer or firefighter to cooperate with other agencies involved in criminal investigations; and,117

(14) in the case of peace officers, prevents the employer from taking an adverse action against an officer simply because that officer’s name appears on a “Brady list.” A Brady list means any system, index, list, or other record containing the names of peace officers whose personnel files are likely to contain evidence of dishonesty or bias, which is maintained by a prosecutorial agency or office in accordance with the holding in Brady v. Maryland.118

C. Enforcement

The superior court has initial jurisdiction over any alleged violations of the rights and protections afforded by the Acts.119 This means that an officer or firefighter is not required first to exhaust any administrative remedies he or she may have, such as filing a grievance.120 However, if an officer or firefighter has raised the alleged violations in the course of appealing his or her termination through arbitration, he or she may not seek redress from the superior court for those alleged violations until after he or she has successfully exhausted the administrative process.121

In the event the superior court finds that the employer has violated the acts, it may render appropriate injunctive or other extraordinary relief “to remedy the violation and to prevent future violations of a like or similar nature….”122 For example, the court may order the employer to exclude from any future disciplinary proceedings statements taken from the officer in violation of his or her rights under the Act.123

In the event the superior court finds that the violation was malicious, and done “with the intent to injure” the officer or firefighter, the court may award as much as $25,000 to the officer or firefighter, plus actual damages (if any), plus reasonable attorney’s fees.124

A petition for writ of mandate is one of the forms of litigation used to enforce provisions of the acts.125 Also used is a complaint for declaratory and/or injunctive relief.126

D. Key Cases

California Correctional Peace Officers Assn. v. State of California (2000) 82 Cal.App.4th 294. (The act authorizes a court to enjoin the employer from violating the Bill of Rights Act, but does not authorize an injunction against an outside criminal investigative agency.)

City of Los Angeles v. Superior Court (Labio) (1997) 57 Cal.App.4th 1506, 127 CPER 24. (Interrogation rights attach, not only during questioning conducted by Internal Affairs, but questioning conducted by a supervisor.)

Ellins v. City of Sierra Madre (2016) 244 Cal.App.4th 445. (A public safety officer must be informed of the “nature of the investigation” reasonably prior to any interrogation, and notice is reasonably prior to an interrogation if it grants the officer sufficient time to meaningfully consult with any representative he or she elects to have present during the interview. However, the employing department may postpone disclosure until the scheduled time of the interview, and briefly postpone the commencement of the interview to allow time for consultation, if it has reason to believe that earlier disclosure would jeopardize the safety of any interested parties or the integrity of evidence under the officer’s control.)

Gales v. Superior Court (1996) 47 Cal.App.4th 1596, 120 CPER 66. (Denying damages for violation of the PSOPBRA prior to amendment that allows for damages as a remedy.)

Gordon v. Horsley (2001) 86 Cal.App.4th 336. (Memo restricting deputy’s peace officer powers gives rise to the right to appeal.)

Haight v. City of San Diego (1991) 228 Cal.App.3d 413, 88X CPER 5. (Officer who resigned has right to see negative comments in “separation report” before they are put in his file, even though he has no right to appeal.)

Hanna v. City of Los Angeles (1989) 212 Cal.App.3d 363, 84 CPER 17. (Superior court may order evidence obtained in violation of the PSOPBRA suppressed from administrative proceedings if outcome might have been different if officer had been afforded his rights.)

Hughes v. County of San Bernardino (2016) 244 Cal.App.4th 542. (A deputy’s disability retirement did not divest the county civil service commission of jurisdiction to hear his administrative appeal of discipline.)

Los Angeles Police Protective League v. City of Los Angeles (2014) 232 Cal.App.4th 136. (The Public Safety Officers Procedural Bill of Rights Act does not afford officers the right to an administrative appeal of a transfer of assignment, which does not affect compensation or other specified rights, solely because the transfer may lead to negative employment consequences, or upon the officer’s belief to that effect.)

Los Angeles Police Protective League v. City of Los Angeles (1995) 35 Cal.App.4th 1535, 113 CPER 53. (section 3307’s prohibition of polygraph exams does not apply to cases in which a polygraph exam is used to screen applicants voluntarily seeking transfer to sensitive assignments in the police department.)

Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822, 67X CPER 1. (Officer may be questioned about misconduct, even conduct that also may be criminal, but may not be charged with insubordination for remaining silent unless warned that failure to cooperate may result in discipline and advised that his statements will not be used in criminal proceedings.)

Mounger v. Gates (1987) 193 Cal.App.3d 1248, 75X CPER 2. (Officer need not exhaust administrative remedies before suing for PSOPBRA violation.)

Otto v. Los Angeles Unified School Dist. (2001) 89 Cal.App.4th 985, 149 CPER 24. (Memorandum containing adverse comments that could lead to punitive action can, itself, constitute punitive action.)

Perez v. City of Westminster (2016) 5 Cal.App.5th 358. (Removal from a collateral assignment was not considered discipline under PSOPBRA, but was part of the chief of police’s “normal management of the department.” This is so because the removal did not result in a reduction of salary, and the loss of prestige or the loss of the ability to earn overtime pay is not sufficient to constitute punitive action.)

Sacramento Police Officers Assn. v. Venegas (2002) 101 Cal.App.4th 916, 156 CPER 41. (Petition for writ of mandate is appropriate action to enforce officer’s rights under PSOPBRA.)

San Diego Police Officers Assn. v. City of San Diego (2002) 98 Cal.App.4th 779, 155 CPER 29. (Officer entitled to receive investigative materials at conclusion of investigation.)

Turturici v. City of Redwood City (1987) 290 Cal.App.3d 1447, 73 CPER 32. (Negative comments in evaluation not “punitive action” requiring appeal opportunity.)

Williams v. City of Los Angeles (1988) 47 Cal.3d 195, 79 CPER 20. (Evidence obtained in violation of act not excluded from disciplinary hearing where the evidence would have been obtained in any event.)

Zazueta v. County of San Benito (1995) 38 Cal.App.4th 106, 114 CPER 69. (Officer who elects binding arbitration under MOU as vehicle to raise PSOPBRA violation may not later pursue same violation in superior court.)

E. Resources

Marr, Cecil, and Diane Marchant; updated by Chris Gaspard, Dieter Dammeier, and Richard Kreisler. Pocket Guide to the Public Safety Officers Procedural Bill of Rights Act, 16th edition. Berkeley, CA: CPER, University of California (2016), http://cper.berkeley.edu.

Tiedemann, Scott. Pocket Guide to the Firefighters Procedural Bill of Rights Act, 4th edition. Berkeley, CA: CPER, University of California (2017), http://cper.berkeley.edu.

Zerger, Kirsten L., et al., eds. California Public Sector Labor Relations, Chapter 16. New York: Matthew Bender, looseleaf with annual supplements.

100 Gov. Code sections 3301 et seq. 3250 et seq.

101Gov. Code sections 3302, 3252.

102Gov. Code sections 3303, 3253. These rights include the right to tape-record the interrogation, be represented during the interrogation, the right to listen to the tape of the first interview prior to any re-interview, and the right to be given Miranda warnings if the officer is suspected of criminal conduct. See, Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822, 67X CPER 1. Also included is the right, at the conclusion of an investigation, to receive copies of the investigators’ raw notes and tape-recorded interviews of witnesses, in addition to the final investigative report. San Diego Police Officers Assn. v. City of San Diego (2002) 98 Cal.App.4th 779, 155 CPER 29.

103City of Los Angeles v. Superior Court (Labio) (1997) 57 Cal.App.4th 1506, 127 CPER 24.

104Punitive action is defined as “dismissal, demotion, suspension, reduction in salary, written reprimand or transfer for purposes of punishment.” Gov. Code section 3303. Negative comments in a regularly scheduled performance evaluation are not “punitive action.” Turturici v. City of Redwood City (1987) 190 Cal.App.3d 1447, 73 CPER 32. However, an unscheduled “conference memorandum” containing adverse comments that may lead to future punitive action can, itself, be “punitive action” giving rise to the right of appeal. Otto v. Los Angeles Unified School Dist. (2001) 89 Cal.App.4th 985, 149 CPER 24. Likewise, a memo restricting a deputy’s peace officer powers also gives rise to the right of appeal. Gordon v. Horsley (2001) 86 Cal.App.4th 336.

105Gov. Code section 3304(b).

106 Gov. Code section 3304(d)(1).

107Ibid.

108Gov. Code section 3304(d)(2)(A)-(H).

109Gov. Code section 3312.

110Gov. Code sections 3305-3306. This right is afforded to both current officers and officers who have been discharged. Haight v. City of San Diego (1991) 228 Cal.App.3d 413.

111Gov. Code section 3306.5.

112Gov. Code section 3307. This section does not apply to cases in which a polygraph examination is used to screen applicants voluntarily seeking transfer to sensitive assignments within the police department. Los Angeles Police Protective League v. City of Los Angeles (1995) 35 Cal.App.4th 1535, 113 CPER 53.

113Gov. Code section 3307.5.

114Gov. Code section 3308.

115Gov. Code section 3309.

116Gov. Code section 3304(a).

117Gov. Code section 3304(a).

118(1963) 373 U.S. 83.

119Gov. Code section 3309.5.

120Gov. Code section 3309.5(c); Mounger v. Gates (1987) 193 Cal.App.3d 1248.

121Zazueta v. County of San Benito (1995) 38 Cal.App.4th 106, 114 CPER 69.

122Gov. Code section 3309.5(c)(1).

123Hanna v. City of Los Angeles (1989) 212 Cal.App.3d 363. 84 CPER 17. But, see, Williams v. City of Los Angeles (1988) 47 Cal.3d 195, 79 CPER 20, for a case in which “suppression” of evidence was found not to be an appropriate remedy.

124Gales v. Superior Court (1996) 47 Cal.App.4th 1596, 120 CPER 66, holding that damages are not available as a remedy, was decided before the Act was amended.

125See, for example, Sacramento Police Officers Assn. v. Venegas (2002) 101 Cal.App.4th 916, 156 CPER 41.

126California Correctional Peace Officers Assn. v. State of California (2000) 82 Cal.App.4th 294.

7. First Amendment

A. Overview

The First Amendment to the United States Constitution limits the government’s ability to interfere with the free exercise of speech, association, and religion.127 The First Amendment generally prohibits such interference with rights only against public employers. Public employees enjoy these constitutional protections because their employer is the government, whereas private sector employees do not have such protections in the workplace.

Four areas protected by the First Amendment are important in the public employment context: (1) the right to join, or advocate joining, a union, or to refuse to fund the union’s political speech; (2) the freedom of political association; (3) the right to speak out about work matters that concern the public; and (4) the right to exercise religion freely in the workplace.

Many of these protections also are addressed in statutes, such as employment relations statutes that protect employees from retaliation for joining or participating in union activity. In some cases, it may be easier and faster to remedy an employer’s illegal action by using those statutory protections than it is to sue by claiming a First Amendment violation.

1. Right to associate with a union

The U.S. Supreme Court has interpreted the free speech guarantee to include the “freedom of association,” which gives individuals the right to join with others for expressive purposes, such as participating in political organizations and labor unions.

Most public sector labor laws make it an unfair labor practice for an employer to discriminate against an employee for union activity; however, the constitutional freedom of association is an additional protection for the right to participate in a union and may be the only protection for employees not covered by other statutes.128

The constitutional right means that public employers may not be able to fire or discipline employees for joining or advocating the formation of a union. Neither can they threaten or intimidate employees for joining or being active in union affairs nor take actions that have a “chilling effect” on their right, such as issuing reprimands or giving less-desirable assignments to those who advocate in favor of union activities. Some union activities, even though expressive speech, may not be protected against public employer’s actions if the employer can show that the expressive speech caused such actual disruption that it inhibited the operation of the employer.

The right to associate with a union is not absolute; the employer can impose reasonable limitations in support of legitimate operational concerns. For example, a public employer may limit disruption of government operations by restricting the time and place that outside organizers may come to the workplace, even though it may not prohibit employees from discussing union business off the employer’s property, on their own time. The extent to which a public employer may impose such restrictions depends on balancing the government’s interest as an employer and the employee’s free speech rights as a citizen.

Employers also can establish reasonable rules for granting one organization the right to represent employees in a bargaining unit to the exclusion of other unions. The procedures and rules governing the process by which an organization is granted the exclusive right to represent certain employees is beyond the scope of this guide. However, such exclusive recognition does interfere with employees’ freedom to participate in another employee organization, although such a restriction is not unconstitutional. However, there have been recent attempts by employees who have opted out of their recognized bargaining unit, claiming that forcing them to pay dues to the recognized bargaining unit violates their First Amendment rights by requiring them to financially support a political endeavor.

A public employer cannot compel an employee to participate in an organization, as that also would violate the employee’s freedom of speech and association. However, the U.S. Supreme Court has previously held the First Amendment does not bar a public employer from negotiating an organizational security provision that compels employees to pay an agency shop or “fair share” fee to a union that has the obligation to represent those employees in a relationship with the employer. The fee can cover only the cost of bargaining and administering the collective bargaining agreement and not other union expenses supporting political or ideological activities, including lobbying that is not directly involved in ratification of the contract.129 However, it is anticipated that the U.S. Supreme Court will revisit this issue. (See Chapter 16 of this guide for more information.

2. Right to political association

The U.S. Supreme Court has held that the First Amendment generally prohibits public employers from dismissing employees (or making decisions affecting promotion, transfer, recall, or hiring) because of their political beliefs or affiliations. However, employees who hold policymaking or confidential positions (such as agency heads, supervisors who have input in government decisionmaking, personal secretaries, or speech writers) may be exempt from this protection. The exemption applies where the employer needs to select people for those positions who will support managers and elected officials in establishing policy and directing government programs.

Laws restricting public employees’ political activity, to prevent conflicts of interest or intrusion of partisan politics into the delivery of services, also are constitutional. The “Hatch Act,”130 the most prominent of these laws, prohibits federal civil service employees (as well as state and local employees in predominantly federally funded programs) from using their official authority to interfere with, or affect, elections; receiving political contributions, except in limited situations; running for partisan political office; or soliciting or discouraging the political action of certain other people.

California has enacted a “little Hatch Act,”131 which allows employers to place fewer restrictions on employees than its federal precursor. It only allows local governments to restrict their employees’ political activities during working hours.

3. Right to speak out about matters of public concern

The First Amendment protects public sector workers who speak out, whether in the workplace or in public, on matters of public concern.

One of the essential purposes of the First Amendment is to guarantee citizens the right to criticize the policies or practices of government. While a person does not lose that right merely by becoming a public employee, the right nonetheless is more limited than the general public’s right to comment about government.

There is a five-part test for determining if a public employee’s First Amendment rights have been violated: (1) the speech must involve a matter of “public concern”; (2) the speech cannot be made pursuant to one’s official job duties; (3) the speech was a “substantial or motivating” factor in the adverse action; (4) the employee’s First Amendment interest must outweigh the state’s legitimate interests; and (5) the employer would not have reached the same adverse employment action in the absence of the protected speech.132 In 2016, the United States Supreme Court held that the First Amendment protects government employees from adverse employment actions for exercising their free speech rights even if the employer’s action was prompted by a perceived rather than actual exercise of free speech rights.133

To be protected, the speech — which may take the form of a grievance, a speech at a public meeting, a conversation with coworkers, or a statement to the media — must involve a matter of public concern; for example, the issue already is the subject of public debate or a matter affecting the operation and efficiency of government services.134 In contrast, matters involving an employee’s purely personal grievances with the employer are not protected by the Constitution. In addition, the speech must not be part of the employee’s official job duties. The U.S. Supreme Court has held that speech that occurs simply because an employee is performing his or her job functions is not protected by the First Amendment. Thus, while the speech itself may relate to his or her employment, to be protected, it must not be made as part of a routine job function.

If the “public concern” requirement has been met and the speech is not made pursuant to one’s job duties, the court will balance the interest of the public employee in commenting on the issue against the interest of the government, as an employer, in promoting the efficiency of its operation. The employer’s legitimate interests include maintaining discipline, promoting harmony among coworkers, securing confidentiality, ensuring the proper and efficient performance of the agency’s public function, and maintaining relationships between supervisors and employees that call for personal loyalty and confidence. By contrast, public employers have no legitimate interest in stifling public comment about management and corruption.

Whether the employee’s First Amendment rights have been violated depends on which way the balance tips; each case must be considered on its own facts. For example, even where an issue clearly is of public concern, a disagreement that so disrupts an employee’s ability to get along with coworkers might not be protected, and the employer may dismiss or transfer the employee without impermissibly chilling the employee’s constitutional rights. Also, policymakers and advisors may not have the right to speak out. However, an employer may not speculate about potential disruption; rather, there must be substantial evidence that the protected speech actually caused disruption and disharmony in the workplace such that reasonable restrictions on such speech may be imposed.

Before disciplining an employee for making disruptive statements, the employer must form a reasonable, good faith belief that the remarks are not protected by the First Amendment. Employers are individually shielded from liability under the doctrine of qualified immunity if they can show that their actions did not violate clearly established constitutional laws.

Even if the balance tips in favor of an employee, that is, the speech was protected, a court still may uphold the discipline if the employer can show that it would have taken the same action in the absence of the speech based on other considerations. The employee can prevail only by overcoming that evidence and proving that the speech was the real cause for the discipline.

4. Religious expression in the workplace

The First Amendment has been interpreted to restrain disciplinary action based on a public employee’s religious beliefs or affiliations, such as refusal to work on a religious holiday. It may be unlawful to deny unemployment benefits to those discharged for such reasons, if denial unduly burdens an employee’s exercise of religious freedom. Article I, section 4, of the California Constitution likewise protects public employees from religious discrimination.

In addition to constitutional protections, public employees also are protected from religious discrimination by Title VII of the Civil Rights Act and the California Fair Employment and Housing Act (FEHA). Those acts provide more extensive remedies than are available in a suit claiming a constitutional violation, including a requirement that employers accommodate employees’ religious beliefs.135

B. Enforcement

Even where activities protected by the First Amendment are motivating factors in disciplinary action, the employee must show that the protected activity was the substantial or motivating cause of the discipline in order to succeed in court.

The First Amendment, itself, does not provide remedies for violation. But a federal statute136 allows anyone who is deprived, “under the color of state law,” of a constitutional right (such as an employee disciplined by a local government employer for exercising free speech) to sue for damages. The court also may grant an order halting the unconstitutional action or restoring lost benefits, such as ordering an employee reinstated. The ability to bring such a suit differs among federal, state, and local employees.

The California Constitution offers protections that parallel the First Amendment of the U.S. Constitution. Because state courts are free to interpret the state Constitution independent of the federal Constitution, state protection may be broader in some areas. Also, other U.S. statutes (like Title VII for religious discrimination or a labor relations statute for protected union activity) may provide more extensive and certain remedies. Therefore, the First Amendment usually is considered in conjunction with those other laws, rather than being the sole basis for challenging the employer’s action.

Federal employees may not have a remedy in court for a constitutional violation if they are covered by a statutory scheme that provides meaningful administrative remedies. Therefore, employees covered by the federal Civil Service Reform Act may be limited to the remedies provided, even though a First Amendment violation has occurred. Federal employees can raise constitutional defenses to personnel actions in review proceedings before the Merit Systems Protection Board.

Because of the complexity of these possible avenues of redress, public employees who believe they have a First Amendment claim should seek professional advice to determine which of these protections may provide the best remedy.

C. Key Cases

Abood v. Detroit Board of Education (1977) 431 U.S. 209, 34 CPER 2. (Agency shop provision requiring public employees to pay a representation fee to the exclusive bargaining representative does not violate First Amendment right to refrain from participating in political activity; however, fee may be assessed only for representation costs and not for political or ideological purposes unrelated to collective bargaining.)

Allen v. Iranon (9th Cir. 2002) 283 F.3d 1070. (Circumstantial evidence that prison retaliated for prison physician’s speech regarding prison abuse shifted burden to prison to show, under a “dual motive” analysis, that termination would have occurred even if physician had not spoken out.)

Arellanes v. Los Angeles Co. Civil Service Commission (1996) 41 Cal.App.4th 1208, 116 CPER 29. (Sheriff’s department prohibiting deputies from associating with persons with criminal record is not unconstitutional infringement on association right.)

Bauer v. Sampson (9th Cir. 2001) 361 F.3d 775, 151 CPER 45. (Professor’s writing in college underground newspaper was constitutionally protected since public college found, in reasonably good faith, that article was not disruptive to college, though disruption could have been reasonably inferred.)

Brandon v. Maricopa County (9th Cir. 2017) 849 F.3d 837. (Statements made by a county attorney to a newspaper, which involved a case the attorney was working on as a county employee and made during normal business hours on the attorney’s work phone, was within the attorney’s regular job duties and therefore was not speech protected by the First Amendment. As a result, the attorney’s termination by the county for making those statements did not violate the First Amendment.)

Brewster v. Board of Education of Lynwood Unified School Dist. (9th Cir. 1998) 149 F.3d 971, 131 CPER 46. (Public school teacher and union grievance representative’s statements to school superintendent were not protected, as speech was not of political, social, or other public concern to community.)

Bush v. Lucas (1983) 462 U.S. 367. (NASA engineer, disciplined for giving television interviews highly critical of his federal employer, was limited to administrative remedies and not allowed to bring a section 1983 suit to enforce the First Amendment.)

Civil Service Commission v. National Assn. of Letter Carriers (1973) 413 U.S. 548. (Hatch Act restrictions on federal employees’ political activities do not violate the First Amendment.)

Collins v. Bender (9th Cir. 1999) 195 F.3d 1076. (Drug Enforcement Agency’s search of terminated agent’s home was not “personnel action” under Civil Service Reform Act, and did not preclude judicial remedy, as Congress did not mean to shoehorn into Civil Service Reform Act every occurrence.)

Connick v. Myers (1983) 461 U.S. 138, CPER Special Reporting Series No. 22. (Employee’s questionnaire regarding personnel matters, distributed in office, did not involve matter of public concern, but only personal dissatisfaction with a job transfer; therefore, not protected by First Amendment.)

Dahlia v. Rodriguez (2013) 735 F.3d 1060. (Police officer who spoke out against wrongdoing in his department and was put on administrative leave may be protected by First Amendment. In determining whether his reporting was part of his official durites, it was not dispositive that it was a task listed in his job description or that it was made at work. Overruled Huppert v. City of Pittsburg (9th Cir. 2009) 574 F.3d 696.)

Department of Homeland Security v. MacLean (2015) 135 S.Ct. 913. (Speech by a federal air marshal who publicly disclosed that the TSA had decided to cut costs by removing air marshals from certain long-distance flights is entitled to protection under the federal whistleblower statute.)

Elrod v. Burns (1976) 427 U.S. 347, 30 CPER 45; Branti v. Finkel (1980) 445 U.S. 507. (Public employee dismissals generally may not be based on political belief; see also, Rutan v. Republican Party of Illinois [1990] 497 U.S. 62, 86 CPER 57, which extends the rule of Elrod and Branti to promotion, transfer, recall, and hiring decisions.)

Eng v. Cooley (9th Cir. 2009) 552 F.3d 1062. (Applied a five-step analysis to find that deputy district attorney was unlawfully retaliated against for exercising his First Amendment rights.)

Fresno County Superior Court (2017) PERB Dec. No. 2517-C (Judicial appeal pending.). (Absent special circumstances, an employer cannot prohibit union members from wearing union clothing, buttons, or pins in the workplace.)

Garcetti v. Ceballos (2006) 547 U.S. 410. (When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.)

Hafer v. Melo (1991) 502 U.S. 21, 91 CPER 63. (State officers may be personally liable for damages under section 1983 based on action taken in their official capacities.)

Heffernan v. City of Paterson, New Jersey (2016) 136 S.Ct. 1412. (The First Amendment protects government employees from adverse employment actions based upon an employer’s perception that the employee engaged in the protected speech, irrespective of whether they actually did.)

Hobbie v. Unemployment Appeals Commission (1987) 480 U.S. 1365. (Denial of unemployment benefits to Seventh Day Adventist, discharged for refusing work on Saturdays, did not burden her religious freedom.)

Kirchmann v. Lake Elsinore Unified School Dist. (1997) 57 Cal.App.4th 595, 126 CPER 29. (First Amendment protection afforded secretary’s speech regarding conflict of interest in bids for construction job.)

Lambert v. City of Santa Ana (9th Cir. 1995) 59 F.3d 134, 113 CPER 78. (Acting as union representative, employee’s speech before city council critical of library director involved a matter of public concern and was protected by First Amendment.)

Lehnert v. Ferris Faculty Assn. (1991) 500 U.S. 507, 89 CPER 12. (First Amendment violated if agency fees used for lobbying activities are not directly related to ratification or implementation of collective bargaining agreement.)

Mount Healthy City School Dist. v. Doyle (1977) 429 U.S. 274. (Employee’s comment to radio station was protected by First Amendment; but reinstatement not ordered, since employer showed it would have fired him regardless of the speech.)

Nunez v. Davis (9th Cir. 2002) 169 F.3d 1222. (Court employee’s action — allowing employees to attend seminar despite judge’s instruction that participation be limited to employees working on judge’s reelection campaign — was symbolic speech relevant to public’s evaluation of performance of public official and court system. It was relevant to the public’s evaluation of the government agency’s performance and not in furtherance of her own personal interest, and therefore was protected.)

Ostad v. Oregon Health Sciences Univ. (9th Cir. 2003) 327 F.3d 876. (Residents terminated for questioning of a doctor’s billing practices at a public hospital only need show that protected speech was a “significant factor” in termination.)

Pickering v. Board of Education (1968) 391 U.S. 563. (An employee has a First Amendment right to speak out on matters of public concern, which must be balanced against the employer’s interest in the efficiency of its services; discipline may be imposed only if the employer’s interest outweighs that of the employee.)

Rendish v. City of Tacoma (9th Cir. 1997) 123 F.3d 1216, 126 CPER 54. (Extrapolating from Pickering, First Amendment protects employee from retaliation for filing discrimination lawsuit against her employer only if litigation addresses a matter of public concern, not a personal grievance.)

Skaarup v. City of North Las Vegas (9th Cir. 2003) 320 F.3d 1040. (City fire marshal’s office conversation with other fire service employees, criticizing city manager’s decision to terminate another position, though of limited public concern, was not protected as it was outweighed by, inter alia, the need for a close working relationship that was essential to fulfilling public responsibilities.)

Ulrich v. City and County of San Francisco (9th Cir. 2002) 308 F.3d 968, 157 CPER 64. (Physician statement regarding city hospital’s layoff plan, where physician was not personally affected by plan, was protected speech regarding a matter of public concern.)

Waters v. Churchill (1994) 511 U.S. 661, 107 CPER 16. (An employer may dismiss an employee if, after a reasonable investigation, it believes, in good faith, the employee’s remarks are not protected by the First Amendment under the balancing test in Connick and Pickering — even though a court might determine otherwise using judicial rules of evidence.)

D. Resources

Barron, Jerome A. and C. Thomas Dienes. First Amendment Law in a Nutshell. St. Paul, MN: West Publishing Co., 2004.

Bogue, Bonnie G. “Freedom of Expression in the Public Sector Workplace,” California Public Employee Relations, No. 95 (August 1992), pp. 3-10.

Leibig, Michael T. and Wendy L. Kahn. Public Employee Organizing and the Law. Wash., D.C.: BNA, 1987.

Leichter, Helene Leckman. “A Fine Line: Employer Regulation and Public Employee Speech,” California Public Employee Relations, No. 118 (June 1996), pp. 12-19.

Rubin, David. Rights of Teachers: The Basic ACLU Guide to a Teacher’s Constitutional Rights. New York: Bantam, 1984.

Silver, Isidore. Public Employee Discharge and Discipline. New York: Aspen Publishers, 2001.

127The First Amendment also prohibits Congress from making any laws establishing religion and from interfering with the rights to peacefully assemble and petition the government for redress. Although the amendment initially applied only to the federal government, it was made applicable to state and local governments by the Fourteenth Amendment.

128California and federal statutes that protect public employees’ rights to join and participate in unions are discussed in Chapter 12, below.

129Abood v. Detroit Board of Education (1977) 431 U.S. 209, 34 CPER 2. See Chapter 16 of this Pocket Guide for a discussion of organizational security.

1305 U.S. Code sections 7321 et seq., as amended by the Hatch Act Reform Amendments, P.L. 103-94, October 6, 1993.

131Gov. Code sections 3201-3209.

132Eng v. Cooley (9th Cir. 2009) 552 F.3d 1062.

133Heffernan v. City of Paterson, New Jersey (2016) 136 S.Ct. 1412.

134“Whistleblowing” falls within this area of protected speech. For a more detailed description of whistleblower rights and protections under federal and state law, see Chapter 8 of this Pocket Guide.

135Actions under Title VII for religious discrimination are discussed in Chapter 3 of this Pocket Guide.

1362 U.S. Code section 1983, the Civil Rights Act of 1866, authorizes suits to enforce constitutional rights.

8. Whistleblower Protection

A. Definitions

“Whistleblowers” are employees who report to their employer or government officials purported illegal or wrongful activities of the employer or fellow employees, or who themselves affirmatively refuse to engage in such activities. Employers may not interfere with an employee’s right to report such wrongdoing and may not retaliate against whistleblowers, as long as the disclosure of information constitutes a protected activity and is not otherwise prohibited by law.

Various federal and state laws protect public employees’ whistleblowing rights by establishing procedures for reporting illegal or improper actions and by providing redress to employees who have been threatened, coerced, or subjected to reprisals for doing so. While the most obvious form of reprisal is termination, it also may include more subtle actions, such as failure to promote, poor performance evaluations, other disciplinary action, or a significant change in duties, responsibilities or pay.

The protections appear in different statutes, applying to different types of employees and for different types of whistleblowing activities. The primary sources of protection are described below.

1. California state employees

The California Whistleblower Protection Act137 protects the right of employees of the State of California, the University of California, and the California State University to make, in good faith, a “protected disclosure.” A “protected disclosure” is a good faith communication disclosing information that may evidence (a) an improper governmental activity or (b) a condition that may significantly threaten the health or safety of employees or the public if the disclosure was made for the purpose of remedying that condition.138 An “improper governmental activity” is an activity performed by a state agency or state employee within the scope of his or her employment that is (i) violative of any state or federal law or regulation; (ii) violative of state policy, procedure or executive order; or (iii) grossly negligent, incompetent or wasteful.139

Before filing a civil complaint for damages, the aggrieved employee must file a written complaint with the State Personnel Board within 12 months of the most recent act of reprisal.140 Once the State Personnel Board has issued its findings, the aggrieved employee need not take any further administrative actions before filing a civil complaint for damages. In addition, a determination by the State Personnel Board that no retaliation occurred does not have any negative impact on any subsequent civil complaint.

Any persons who intentionally interfere with or retaliate against an employee are subject to damage claims, a fine, suspension, and/or possible imprisonment.141 In addition, state civil service employees are subject to discipline for interfering with or retaliating against other employees for whistleblowing activity.142

2. Local public employees

Local government employees, such as those employed by a county, city, district, school district, community college district, municipal or public corporation, are granted similar protections by state law.143 Such employees, or applicants for employment, are protected from retaliation for reporting “gross mismanagement or a significant waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.” In order to be protected from retaliation, an employee or applicant for employment, must file a written complaint with the local public agency within 60 days from the date of the act or event that is the subject of the complaint. If the local agency has an applicable internal administrative procedure, such as a grievance procedure or complaint procedure, the employee first must attempt to seek redress through that procedure prior to submitting the written complaint. Failure to make a good faith attempt to exhaust this administrative procedure may negate an employee’s protection. In addition, in order to gain the protection under state law, the employee’s reporting must be made “under penalty of perjury.” Thus, any disclosure of misconduct referenced above does not insulate the employee from retaliation unless he or she certifies under oath to the disclosure.144

Public officials, managers, or other employees who are found guilty of taking illegal reprisals against whistleblowers are subject to disciplinary measures, fines, and/or imprisonment. An aggrieved local government employee also may bring suit for damages if the interference or retaliation was done with malicious intent.

3. Federal employees

The Civil Service Reform Act of 1978, strengthened by the Whistleblower Protection Act of 1989,145 establishes administrative procedures for federal civil service employees to disclose information that they reasonably believe demonstrates a violation of law, gross mismanagement, gross waste of funds, abuse of authority, or substantial danger to public health or safety. Such disclosures may be made to the Special Counsel of the Merit Systems Protection Board (MSPB),146 the Inspector General of an agency, or to the employee’s superiors.

Employees subjected to reprisals for making such disclosures may report the action to the MSPB. The board may stay any retaliatory action, reinstate a discharged employee, and take disciplinary action against the individuals responsible.

4. Other statutory protections

The California Labor Code’s broad protection of an employee’s right to report illegal or wrongful activities extends to state employees, as well as employees of any county, city, school district, the University of California, community college districts, and all public corporations.147 The Labor Code prohibits an employer, or any person acting on behalf of an employer, from retaliating against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.148 The Labor Code also prohibits employers from retaliating against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state or federal rule or regulation.149 Retaliation against an employee who is a family member of an employee who is, or is perceived to be, a whistleblower is also prohibited.150

Employees may report violations to a hotline number (to be posted at each worksite) established by the Attorney General, who must keep the caller’s identity confidential.151 Anyone who violates this anti-retaliation provision in the Labor Code is guilty of a misdemeanor, which is punishable by imprisonment in the county jail not to exceed one year or a fine not to exceed one thousand dollars ($1,000) or both.152

California’s False Claims Act153 establishes a cause of action for damages and penalties against persons who submit false claims for money, property or services to the State of California or political subdivisions of the state. An action may be brought by the Attorney General, the prosecuting authority of a political subdivision or, in specified cases, an individual.154 The Act also broadly prohibits retaliation against any employee, contractor or agent based on “lawful acts” done by that individual in furtherance of an action under the Act or efforts to stop conduct that violates the Act.155 The federal False Claims Reform Act of 1986156 also has a whistleblower protection clause that provides a civil remedy for discrimination against an employee for participating in a lawsuit alleging fraud against the federal government. The act also protects employees who participate in investigations or simply disclose information regarding false claims. Remedies include double damages, reinstatement, and attorneys’ fees.

In addition to these statutes that specifically protect whistleblowers, many environmental, workplace safety, public health, and civil rights statutes have provisions that protect employees who report violations of the statute or are retaliated against for raising claims that the employer has acted unlawfully. The remedies provided in these laws should be considered when disclosures fall within one of these categories.

5. Constitutional protection

Public employees disciplined for whistleblowing also may be protected by the First Amendment of the U.S. Constitution, which prevents a federal, state, or local government employer from interfering with public employees’ freedom of speech. Free speech protections should be considered if an employee is contesting an adverse action based on whistleblowing activity because the First Amendment restricts the employer’s right to discipline an employee for speaking out on a matter of public concern when engaging in such speech is not part of the employee’s job duties.157 This protection is discussed in greater detail in Chapter 7.

B. Remedies

In addition to any of the available administrative remedies outlined above, employees who suffer retaliation may be able to sue for violation of the statutes or of the First Amendment.

Remedies available in lawsuits are of two types: a court order to stop the retaliation and return the employee to his or her former position, or a grant of monetary damages. Some statutes have specific provisions authorizing damages awards.

Collective bargaining agreements may contain protections similar to those provided by statute. Such provisions are enforceable through the negotiated grievance procedure, which usually will provide for binding arbitration by a neutral arbitrator. Although arbitrators normally are not authorized to award damages, they are able to provide other relief, such as reinstatement and back pay.

C. Key Cases

Bjorndal v. Superior Court (2012) 211 Cal.App.4th 1100. (Once the State Personnel Board has issued its findings on a Whistle Blower Protection Act claim, the complainant is not required to take any further administrative action prior to filing suit, and the Board’s findings are not binding in a later judicial proceeding.)

Couch v. Morgan Stanley & Co., Inc. (ED CA 2014) 2014 WL 1577463. (An employee is not required to file a claim with the Labor Commissioner prior to bringing a civil suit under the anti-retaliation provision in Labor Code section 1102.5.)

Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 79X CPER 5. (Employee not protected under public policy doctrine in instance where he merely speculated that the supervisor was engaged in criminal activity; complaints were based on outside information, rather than personal knowledge that his supervisor had been investigated for embezzlement.)

Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 93 CPER 42. (Wrongful termination in violation of public policy occurred when employee was constructively discharged in retaliation for refusing to comply with employer’s pressure to contravene state agency’s investigation into coworker’s sexual harassment claim.)

Skillsky v. Lucky Stores (9th Cir. 1980) 893 F.2d 1088. (California public policy prevented second employer from discharging employee based on workplace safety complaint to first employer.)

Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167. (Public policy doctrine bars employer from discharging employee who refused to participate in price-fixing conspiracy.)

Wabakken v. California Department of Corrections and Rehabilitation (9th Cir. 2015) 801 F.3d 1143. (An employee may still pursue a civil action under the California Whistleblower Protection Act (Gov. Code section 8547) even after the State Personnel Board denies the claim and issues a negative ruling.)

137Gov. Code sections 8547 et seq.

138Gov. Code section 8547.2(e).

139Gov. Code section 8547.2(c).

140Gov. Code section 8547.2(a).

141Gov. Code sections 8547.3, 8547.8, 8547.11, 8547. 12, 19682, 87163; Penal Code section 6129.

142Gov. Code section 19572(x).

143Gov. Code sections 53296 et seq.

144Neveu v. City of Fresno (E.D. Cal. 2005) 392 F.Supp.2d 1159.

1455 U.S. Code sections 1201 et seq.

1465 U.S. Code sections 1201-1222. Publ. L. No. 101-12, 103 Stat. 16 (codified in scattered sections of 5 U.S. Code).

147Labor C ode sections 1102.5 et seq.

148Labor Code section 1102.7.

149Labor Code section 1102.5(c).

150Labor Code section 1102.5(h)

151Labor Code section 1103.

152Labor Code section 1102.7.

153Ibid.

154Gov. Code section 12650 et seq.

155Gov. Code sections 12651, 12652.

156 31 U.S. Code sections 3729-3733.

157See Chapter 7 of this Pocket Guide for discussion of First Amendment rights.

9. Disability Rights

A. Overview

Federal and state laws prohibit employers from discriminating against qualified persons in hiring, advancement, compensation, or other terms of employment because of their disabilities, or because they are perceived to have a disability. Employers may generally not use qualification standards, tests, or other selection criteria to screen out individuals with disabilities, unless there are legitimate business reasons to do so. In addition, employers must reasonably accommodate the needs of qualified disabled employees. Disabled employees may not be excluded because of an inability to perform non-essential job functions or because an employer fails to take reasonable measures to enable them to perform essential functions.

Three primary laws protect disabled workers in California: the federal Americans with Disabilities Act of 1990 (ADA), as amended in 2008,158 the federal Rehabilitation Act of 1973 (Rehab Act),159 and the state Fair Employment and Housing Act (FEHA).160 The two federal laws are designed exclusively to protect disabled persons, whereas the state law added disabilities to its general anti-discrimination scheme.

Congress enacted the Rehab Act to provide greater rights and opportunities to qualified individuals with disabilities and to ensure that the federal government “plays a leadership role in promoting the employment of individuals with disabilities.”161 The Rehab Act prohibits the federal government and those receiving federal financial assistance from discriminating against qualified individuals with disabilities.162

The ADA was enacted to expand the protections afforded under the Rehab Act to protect employment opportunities for qualified individuals with disabilities. It was made specifically applicable to employment and prohibits private sector employers and some public sector employers from discriminating against employees on the basis of disability.163 Because the ADA provides basically the same protections as the Rehabilitation Act, case law applying and interpreting that act can serve as a guide to interpretation and application of the ADA.

The California legislature enacted the FEHA to provide effective remedies to eliminate discrimination,164 including employment discrimination on the basis of “physical disability, mental disability (and) medical condition.…”165

1. Disabilities defined

Under both federal statutes, to have a protected “disability” means any physical or mental impairment that substantially limits one or more of the individual’s major life activities, such as walking, seeing, hearing, speaking, breathing, or performing manual tasks. The term also applies to individuals who have a record of an impairment or who are merely perceived as having an impairment.

The FEHA defines “physical disability” as having, previously having, or being regarded as having any physiological disease, disorder, condition, and so forth that affects a major body system and limits the ability to participate in a major life activity, or that may have such a disabling effect in the future. One of the key differences between the federal statutes and the FEHA is that under the federal statutes the physical or mental impairment must “substantially limit” a major life activity, whereas under the FEHA, the physical or mental disability must only “limit” a major life activity. This distinction is important as the FEHA protects lesser impairments than those of the federal statutes.

The FEHA specifically prohibits discrimination against persons who have, or have been cured of, cancer. It also expressly covers health impairments that require special education or services. The FEHA explicitly includes, for example, HIV/AIDS, hepatitis, epilepsy, seizure disorder, diabetes, clinical depression, bipolar disorder, multiple sclerosis, and heart disease.166 The list is not intended to be exhaustive, however, and the courts recognize many additional conditions as disabilities.

The courts generally have held that the FEHA’s broad definitions do not include obesity, unless caused by a medical condition.

ADA Amendments Act. Although the FEHA is generally more expansive than the ADA, the ADA Amendments Act of 2008 broadened the ADA significantly by, among other things, providing that the definition of disability includes impairments that are well controlled with medication or other mitigating measures.

Drug use and alcoholism. Under some circumstances, drug addiction and alcoholism are covered by the two federal statutes. Both encourage rehabilitation by protecting rehabilitated persons from discrimination based on their history of drug or alcohol abuse.

An individual currently using illegal drugs is expressly excluded from the term “qualified individual with a disability.” But an employer cannot discriminate against an individual who has successfully completed or is participating in a supervised drug rehabilitation program and no longer uses drugs. An employer cannot discriminate against someone for being alcoholic; however, employers may discipline alcoholic employees for inappropriate conduct even when the misconduct is the result of alcoholism.

The FEHA excludes from the definitions of protected physical and mental disability behaviors stemming from alcoholism or narcotics addiction. It also excludes the unlawful use of controlled substances. In addition, state Labor Code section 1025(a) requires private sector employers to accommodate employees who voluntarily enter alcohol or drug rehabilitation programs. Although no analogous provision applies to public employees, there may be an obligation on public employers under the FEHA to reasonably accommodate employees who seek treatment for alcoholism. In Ross v. Ragingwire Telecomm. Inc.,167 the California Supreme Court held that employers may require preemployment drug tests and take illegal drug use into account in making employment decisions.

HIV-related diseases. Persons with AIDS or with HIV-related impairments are protected under both federal and state laws. California courts have rejected employers’ arguments that safety considerations permit excluding affected employees based on the unsubstantiated fears of coworkers about contracting the disease. In addition, the ADA prohibits discrimination against an applicant or employee based on the disability of someone with whom that person lives or has a relationship.

2. Employer’s duty to accommodate

Federal laws prevent discrimination against a “qualified individual with a disability.” A qualified disabled individual is one who satisfies the position’s job-related requirements and can perform the essential job functions despite his or her disability or can do so with “reasonable accommodation.” The FEHA was amended to mirror the accommodation requirement in the ADA. Therefore, employers must make reasonable accommodations that do not impose an “undue hardship” on the employer, such as making facilities readily accessible and usable, restructuring jobs, modifying work schedules, acquiring or modifying equipment or devices, or providing readers or interpreters.

An “undue hardship” is imposed if the accommodation requires significant difficulty or expense in light of the financial resources of the employer, the number of employees, and the impact on the operation. An employer also may exclude individuals who pose a significant safety risk that cannot be eliminated by reasonable accommodation. The danger may be to the health and safety of others or to the disabled person. The assessment of the danger must be based on medical information.

The process used to determine whether a reasonable accommodation can be made is referred to as an interactive process, whereby the disabled employee requests an accommodation and the employer communicates with the employee in selecting an appropriate accommodation.168 The employer must engage in a “timely, good faith interactive process…in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.”169 In addition, an employer is prohibited from retaliating or otherwise discriminating against any person for requesting an accommodation for an applicant’s or employee’s disability, regardless of whether the accommodation was actually granted. Thus, a request for a reasonable accommodation on the basis of disability is a protected activity.170

B. Enforcement

The ADA provides for the same remedies for job discrimination as Title VII of the Civil Rights Act of 1964 and is likewise enforced by the Equal Employment Opportunity Commission (EEOC). Individuals who believe they have been discriminated against should file a complaint with the local EEOC office in California within 300 days of the discriminatory act. They also may request from the EEOC a “right to sue” letter that allows them to initiate a lawsuit within 90 days.171

The procedures to follow and the remedies available under the Rehabilitation Act depend on the nature of the employer. If it is a federal agency, the employee must file a complaint with the agency. If it is a government contractor, the complaint goes to the Office of Federal Contract Compliance (OFCC), which may withhold federal funds or terminate the contract until the discrimination is remedied. If the employer is merely receiving federal funds, such as a grant, the granting agency oversees compliance.

The state FEHA is enforced by the Department of Fair Employment and Housing (DFEH).172 Complaints must be filed at the local office of the DFEH within one year of the discriminatory act. Following its investigation, the DFEH may issue a right to sue letter to allow the employee to file a lawsuit within one year, or it may proceed to court itself if the matter cannot be mediated. The complainant may request issuance of a right to sue letter prior to completion of the investigation.

An individual wishing to pursue a discrimination complaint should be mindful of the various avenues of possible relief, determine the procedures that apply, and observe strict deadlines for filing complaints. It should be noted that the ADA limits the awardable amount to a prevailing employee of compensatory and punitive damages, whereas the FEHA has no damages cap in a civil action.

C. Key Cases

American National Insurance Company v. Fair Employment and Housing Commission (1982) 32 Cal.3d 603. (High blood pressure is a “protected physical handicap” under FEHA; unlawful to exclude all persons with high blood pressure; must assess individual’s ability to perform job duties.)

Atkins et al v. City of Los Angeles (2017) 8 Cal.App.5th 696. (An employer’s past practice or policy of providing accommodations to disabled employees supports a claim for failure to accommodate subsequent requests for accommodations.)

Brundage v. County of Los Angeles (1997) 57 Cal.App.4th 228, 126 CPER 50. (An employer with no knowledge of an employee’s mental disability does not discriminate on the basis of disability by refusing to reinstate an employee who abandons her job.)

Burdick v. Board of Retirement (1988) 200 Cal.App.3d 1248. (Requiring employee with controlled diabetes to waive disability retirement benefits as a condition of employment is impermissible discrimination under the FEHA.)

Cassista v. Community Foods (1993) 5 Cal.4th 1050, 102 CPER 43. (Obesity is not “disability” protected from employment discrimination by FEHA unless overweight caused by medical condition.)

Chalk v. U.S. District Court (9th Cir. 1988) 840 F.2d 701, 77 CPER 63. (Employer may not bar teacher with AIDS from classroom and reassign to job with same pay/benefits based only on the possibility that return to classroom would produce fear in parents and students of contracting disease.)

Colmenares v. Braemer Country Club, Inc. (2003) 29 Cal.4th 1019, 159 CPER 52. (Under the FEHA, the employee must show [1] that he or she had a physiological disease or condition affecting a body system, and [2] that the disease or condition limited [as opposed to substantially limited] the plaintiff’s ability to participate in major life activities.)

County of Fresno v. Fair Employment and Housing Commission (1991) 226 Cal.App.3d 1541, 88 CPER 52. (County failed to make reasonable accommodation by not providing smoke-free environment for employees sensitive to tobacco smoke; “good faith” efforts insufficient.)

Fisher v. Superior Court (1986) 177 Cal.App.3d 779. (Employers have duty to reasonably accommodate applicants and employees who have cancer-related medical conditions under FEHA.)

Green v. State of California (2007) 42 Cal.4th 254. (In a disability discrimination claim under the FEHA, a plaintiff bears the burden of proving his or her ability to perform the essential functions of the job, with or without reasonable accommodation.)

Harris v. City of Santa Monica (2013) 56 Cal.4th 203. (An employee claiming disability discrimination must prove his or her disability was a “substantial motivating reason” for the adverse actions.) 

Higgins-Williams v. Sutter Medical Fund (2015) 237 Cal.App.4th 78. (An employee’s inability to work for a particular supervisor due to anxiety and stress related to the supervisor’s standard oversight of the employee’s job performance does not constitute a mental disability under the FEHA.)

Holihan v. Lucky Stores, Inc. (9th Cir. 1996) 87 F.3d 362. (An employer who refers an employee to an employee assistance program perceived the employee as suffering from a disabling psychiatric condition and regarded him as substantially limited in working.)

Kennedy v. Applause, Inc. (9th Cir. 1996) 90 F.3d 1477, 120 CPER 83. (Employee who asserted total disability on her benefits application cannot bring ADA claim.)

Prilliman v. United Air Lines (1997) 53 Cal.App.4th 935, 124 CPER 68. (Under FEHA, employer has affirmative duty to inform employee with a disability of any available alternative positions for which employee is qualified.)

Raytheon v. California Fair Employment and Housing Commission (1989) 212 Cal.App.3d 1242, 82X CPER 10. (AIDS is physical handicap under FEHA; employer must reinstate employees with AIDS where no danger of disease transmission to coworkers.)

School Board of Nassau County, Florida, v. Arline (1987) 480 U.S. 273, 73 CPER 70. (Tuberculosis is handicap under Rehabilitation Act. To determine ability to perform the job, inquiry must extend to whether reasonable accommodation would enable disabled person to perform essential job functions; fact that contagious disease may pose a serious threat does not justify excluding all employees with disease.)

Sterling Transit Co. v. Fair Employment and Housing Commission (1988) 121 Cal.App.3d 791. (FEHA prohibits exclusion from employment merely based on membership in class of disabled individuals unless it can be shown that all or substantially all persons in that class cannot perform duties safely. Thus, employer cannot exclude all truck drivers with back deficiencies.)

Thompson v. Holy Family Hospital (9th Cir. 1997) 121 F.3d 537, 126 CPER 52. (Doctor’s restriction prohibiting employee from lifting more than 25 pounds is not a substantially limiting impairment.)

Yin v. State of California (9th Cir. 1996) 95 F.3d 864, 121 CPER 78. (Employer may require fitness-for-duty exam where employee’s health problems have had negative impact on job even if exam might disclose disability.)

Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109. (An employee claiming disability discrimination does not need to prove that the employer had animosity or ill will towards the employee, only that the disability was a “substantial motivating reason” for the employer’s decision to implement the adverse employment action.)

D. Resources

Chin, Hon. Ming W., Hon. Rebecca A. Wiseman, Hon. Consuelo Maria Callahan and Alan B. Exelrod, California Practice Guide: Employment Litigation, Rutter Group Practice Guide, Ch. 9 (2009, with annual supplements).

Mook, Jonathan, ed. Americans with Disabilities Act; Employee Rights and Employer Obligations. New York: Matthew Bender, looseleaf with annual supplements.

Stevens, M. Carol. Pocket Guide to Disability Discrimination in the California Workplace, 3rd edition Berkeley, CA: CPER, University of California (2015), http://cper.berkeley.edu.

Tucker, Bonnie P., and Bruce A. Goldstein. Legal Rights of Persons With Disabilities: An Analysis of Federal Law. Horsham, PA: LRP Publications, looseleaf with annual supplements.

Wilcox, M. Kirby, California Employment Law, Chapter 41. New York: Matthew Bender, looseleaf with annual supplements.

15842 U.S. Code sections 12101 et seq.

15929 U.S. Code sections 701 et seq.

160Gov. Code sections 12900 et seq.

16124 U.S. Code sections 701(b).

16229 U.S. Code sections 704(a).

16342 U.S. Code sections 12101-12213.

164Gov. Code section 12920.

165Gov. Code section 122940(a).

166 Gov. Code section 12926.

167(2008) 42 Cal.4th 920.

168Gov. Code section 12926.1(e).

169Gov. Code section 12940(n).

170Gov. Code se ctions 12940(l)(4), 12940(m)(2)

171See Chapter 3 of this Pocket Guide for EEOC procedures. Remedies for disability discrimination may include injunctions or court orders for accommodation, hiring, reinstatement, back pay, and attorneys’ fees, as well as compensatory damages for financial losses and pain and suffering.

172See Chapter 3 f or discussion of enforcement procedures through the Department of Fair Employment.

10. Family and Medical Care Leave

A. Overview

Various federal and state laws grant employees the right to take leave from work to care for a new child or an ill family member, or to be granted a leave because of the employee’s own health condition. The federal Family and Medical Leave Act of 1993 (FMLA)173 covers most public and private sector employees. The California Family Rights Act of 1991 (CFRA)174 was amended to conform with the federal act so that it provides essentially the same benefits and duties. In addition, the California Pregnancy Disability Leave Law (PDLL) grants employees the right to take leave specifically for pregnancy, childbirth and related medical conditions.

1. FMLA

The FMLA provides job security to an employee who is absent from work because of the employee’s own serious health condition or to care for specified family members with serious health conditions, as well as for the birth of a child and to care for a newborn child, or because of the placement for adoption or foster care of a child with the employee.175 The FMLA provides eligible employees employed by covered employers up to 12 workweeks of leave for specified reasons in a 12-month period.176 Family members of persons injured in military service may take up to 26 workweeks of unpaid “servicemember family leave” in a single 12-month period.177 FMLA leave is unpaid unless available paid time off is taken. An employer must maintain health plan benefits for an employee on FMLA leave on the same basis as if the employee were actively employed; and all benefits, including those that lapsed during the leave, must be restored immediately upon the employee’s return to work.

Only “eligible” employees who are employed by covered employers are entitled to rights under the FMLA. Public employers — federal, state, and local — are expressly covered by the FMLA.178

There are limitations on which employees are eligible for leave. An employer is not required to grant an employee leave if it has fewer than 50 employees within 75 miles of the same worksite. An employee is eligible only after working for the same employer for at least 1,250 hours in the 12 months preceding the leave. Temporary or part-time employees are not eligible for leave unless they have met that minimum. Also, both full- and part-time employees must have worked for the same employer for at least 12 months total, although the months do not have to be consecutive. The act and implementing regulations should be consulted to resolve any question of whether the employee has worked enough time to qualify.

The employer may require medical certification to justify the leave, and must allow at least 15 calendar days for the employee to return the verification. The certification must explain facts that will warrant leave under the act, such as that the employee is unable to perform the essential functions of the job if the leave is for the employee’s own serious medical condition, or that the employee is needed to care for a family member. If the employee is requesting intermittent leave or a reduced work schedule to accommodate ongoing medical treatment, the certification must indicate the dates and duration of the treatment. If such treatment is for a family member, the certification must state why the employee is needed to care for the person during treatment. The employer may obtain a “second opinion” at its own expense if it has reason to doubt the validity of the employee’s certification; however, in California, employers may not obtain a second opinion regarding a family member’s serious health condition.

The FMLA should be consulted to determine the options and limitations on scheduling leave that may apply to a particular situation. The act provides that leave may be taken in a single 12-week block, or it may be broken up and taken in smaller increments (e.g., one hour or one week at a time). Also, it may be taken by reducing the employee’s work schedule to part time. However, such options may depend on employer approval, unless such a plan is “medically necessary.” Employees may be required to transfer to an equivalent position in order to accommodate recurring periods of leave. Special provisions govern scheduling of medical care leave for school teachers, such as allowing the employer to require a leave to continue through the end of a term.

Except in cases of emergency or unforeseen events, the employer may require advance notice of the need for leave and may delay leave until 30 days after the employee’s request. In addition, employers may require medical certification of the existence of a “serious health condition.” The employer may not deny a request for leave on the basis of “undue hardship.”179

An employee may enforce FMLA protections by filing a complaint with the Department of Labor. Both the Department of Labor and the employee also have the right to file a civil actions for violations of the FMLA.

2. CFRA

The CFRA is part of the California Fair Employment and Housing Act (FEHA), discussed in preceding chapters.180 Like the FMLA, the CFRA provides for up to 12 workweeks of leave in a 12-month period also for the same reasons, including the birth of an employee’s child or for the placement with an employee of a child for adoption or foster care, to care for a child, spouse or parent with a serious health condition, or an employee’s own serious health condition.181 Although the CFRA duplicates many of the protections afforded under the FMLA, there are some key differences. Unlike the FMLA, the CFRA provides that an employee’s “serious health condition” does not include disabilities due to pregnancy, childbirth or related medical conditions.182 However, California’s Pregnancy Disability Leave Law183 does cover disabilities due to pregnancy, childbirth or related medical conditions.184 Unlike the FMLA, the CFRA allows an employee to take leave to care for a registered domestic partner with a “serious health condition.”185 FMLA leave and CFRA leave generally run concurrently; thus, employees will generally be entitled to a total of 12 months of leave.

Employees alleging violations of the CFRA must first file a charge of discrimination with the California Department of Fair Employment and Housing before bringing a private civil action.186

3. Pregnancy Disability Leave Law

Like the CFRA, the PDLL is also contained in the FEHA and requires covered employers to provide employees up to four months of leave for pregnancy, childbirth or related medical conditions.187 At the expiration of a PDLL leave, the employee must generally be reinstated to the same position previously held.188

PDLL leave does run concurrently with CFRA. Thus, an employee who utilizes four weeks of leave for a pregnancy disability under the PDLL, may still have 12 workweeks of CFRA leave available. PDLL leave is generally unpaid leave unless available accrued time off is taken (such as vacation or sick leave), or disability benefits are available, such as state disability, California Paid Family Leave (discussed below), or payments from a short-term or long-term disability pay plan.

As the PDLL is contained in the FEHA, the same procedures and remedies that apply in FEHA cases apply in PDLL cases. Prior to instituting legal action against an employer, an employee must first file a complaint with the California Department of Fair Employment and Housing.189

4. Pay and benefits

The statutes above generally do not entitle employees to paid leave. In most instances, family care leave is unpaid. However, effective 2004, in certain circumstances, eligible employees may elect to receive up to 55 percent of their pay for up to six weeks for leave taken to care for a family member’s serious health condition under California’s Paid Family Leave law.190 Under California’s “Protected Sick Leave” provisions (also referred to as “kin care”), employees who receive sick leave or paid time off are permitted to use up to one-half of his/her annual accrual of such sick leave/paid time off for any of the additional following reasons:

(1) The diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee.

(2) The diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee’s family member.\

(3) An employee who is a victim of domestic violence, sexual assault, or stalking.191

In 2016, the term “family member” was expanded to include parent, child, spouse, registered domestic partner, parent-in-law, grandparent, grandchild, and sibling. In addition, employers are prohibited from denying an employee the right to use one-half of their annual accrual of sick leave or paid time off to care for such covered family members and are prohibited from terminating, threatening to terminate, demoting, suspending, or in any manner discriminating against an employee for using, or attempting to exercise the right to use sick leave in such a manner.

If the employee has accrued sick leave, vacation, or other paid leave, however, the employee may be required, or may choose, to use such leave as part of the 12 weeks of statutory leave. In that case, the employee would receive pay while those leave banks are being exhausted.

Under the FMLA, an employer also may refuse to let an employee use accrued sick pay to care for a family member if benefit rules or the collective bargaining agreement preclude the use of sick leave for any purpose other than the employee’s own illness.

The employer must maintain an employee’s coverage under a group health plan as if the employee were employed throughout the period of the FMLA leave, including paying regular employer contributions to insurance premiums. If the employee chooses not to continue health coverage while on leave, the employer must reinstate the employee to the group plan after the leave ends.

5. Employment and reinstatement rights

At the end of the protected leave, the employee must be restored to the same position, or given another position that is equivalent in pay, benefits, and terms and conditions of employment. An employer can refuse to reinstate an employee only if it can prove that the job no longer exists because of legitimate business reasons. An employee who is no longer qualified for the position must be allowed to become qualified. If the employee was on leave owing to his or her own serious health condition, the employer may condition reinstatement on proof of fitness for duty, but only if the employer uniformly applies that policy to all employees. Terms of the Americans with Disabilities Act (as amended in 2008) and the California Fair Employment and Housing Act’s disability provisions also may govern the employer’s obligation to reasonably accommodate the employee’s condition.

In addition to these general provisions, special terms cover school employees, such as conditioning reinstatement to a particular job on school board policies or collective bargaining agreements.

Reinstatement rights of the highest-paid “key” employees (top 10 percent) are limited: the employer may deny reinstatement if necessary to prevent its own substantial economic injury.

Employees retain “employee” status while on leave, and the leave is not a “break in service” for purposes of seniority or benefits. Thus, an employee has the same seniority when returning from leave for purposes of layoff, job assignment, or other seniority-related benefits. An employer may allow an employee to accrue seniority while on leave but is not required to do so.

B. Enforcement

It is unlawful for an employer to deny any of the rights granted by the statutes or to retaliate or discriminate against an employee for exercising those rights.

The Department of Fair Employment and Housing (DFEH) has jurisdiction to investigate violations of the CFRA, the state act that mirrors the FMLA.192 An employee must file a complaint with the DFEH within one year of the violation to preserve the right to sue. In addition, the state act authorizes the DFEH to file a lawsuit if it finds sufficient evidence to establish a violation of the law.

The U.S. Department of Labor promulgates regulations implementing the federal statute;193 those regulations should be consulted to determine how the act is to be implemented and enforced. An employee may file a complaint with the U.S. Secretary of Labor under the regulations, or a lawsuit within two years (or three years if the violation is willful) in state or federal court charging violation of the FMLA. Employers who violate the federal statute may be liable for actual damages equivalent to 12 weeks of pay or for double damages, unless the employer can show that it reasonably believed its actions did not violate the law.

C. Key Cases

Avila v. Continental Airlines, Inc. (2008) 165 Cal. App. 4th 1237. (“Under CFRA and the implementing regulations, an employer should not be able to terminate for absences a worker known to be sick or injured without first determining if that employee qualifies for and wants leave.”)

Department of Fair Employment and Housing v. Verizon (2003) 108 Cal. App. 4th 160. (Employee’s claim that he was denied pay during his CFRA leave was preempted by section 301 of the Labor Management Relations Act; employee was covered by a collective bargaining agreement [CBA], and the determination of employee’s entitlement to pay could not be resolved without interpreting CBA.)

Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255. (Trial court erred in granting motion for judgment on the pleadings without leave to amend, since plaintiff could have amended complaint to state a cause of action against defendant for retaliation for taking medical leave, in violation of the CFRA.)

Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 879. (An employee need not specifically mention the CFRA or FMLA in requesting leave; however, she must give enough information to put the employer on notice that the leave is for a qualifying reason, such as medical treatment of the employee or a family member.)

Gibbs v. American Airlines (1999) 74 Cal.App.4th 1. (An employee who only informed employer of cold or flu symptoms did not provide enough information to put employer on notice that her leave was for a FMLA/CFRA qualifying reason.)

Lonicki v. Sutter Health (2008) 43 Cal.4th 201. (An employee’s ability to perform a part-time job with similar duties does not conclusively establish her ability to perform the original job; an employer’s failure to request third medical opinion did not estop it from challenging employee’s eligibility for leave)

Neisendorf v. Levi Strauss (2006) 143 Cal.App.4th 509. (An employee’s CFRA claim for failure to reinstate was barred because there was an unchallenged finding that the discharge was based on a legitimate, nondiscriminatory reason that had nothing to do with the employee’s leave.)

Nelson v. United Technologies (1999) 74 Cal.App.4th 597. (The public policy underlying CFRA is sufficient to support a claim for tortious wrongful discharge; however, an employee could not prevail on such a claim where he was terminated for spending part of his leave for his own serious health condition as a volunteer firefighter.)

Pang v. Beverly Hospital, Inc. (2000) 79 Cal.App.4th 998. (An employee’s claim was dismissed because helping an elderly parent move to a new home did not constitute caring for a parent under the CFRA.)

Stevens v. California Dept. of Corrections (2003) 107 Cal.App.4th 285. (An employee’s request for leave to spend the holiday with his ailing parents was insufficient to put his employer on notice of his need for CFRA leave.)

Tomlinson v. Qualcomm, Inc. (2002) 97 Cal.App.4th 934. (The CFRA guarantee of reinstatement provision does not preclude an employer from terminating the employee’s employment as part of a normal, lawful work force reduction.)

White v. County of Los Angeles (2014) 225 Cal.App.4th 690. (Employee returning from FMLA leave is entitled to be restored to employment upon certification from the employee’s health care provider. The employer cannot seek a second opinion prior to restoring the employee to work, but then may seek its own evaluation of the employee’s fitness for duty.)

2. Key federal cases

Bachelder v. America West Airline, Inc. (9th Cir. 2001) 259 F.3d 1112. (To prevail on claim that employer violated the FMLA when it fired her for poor attendance, employee was only required to prove that her taking of FMLA-protected leave constituted a negative factor in the decision to terminate her; former employer did not adequately inform its employees that it had chosen the retroactive rolling “leave year” method for calculating FMLA eligibility, so the option with the most beneficial outcome for employee had to be used to determine whether absences were covered by the FMLA)

Ely v. Wal Mart, Inc. (C.D. Cal. 1995) 875 F.Supp. 1422, 112 CPER 72. (California Family Rights Act supports claims of wrongful discharge in violation of public policy.)

Escriba v. Foster Poultry Farms, Inc. (9th Cir. 2014) 743 F.3d 1236. (An employee may affirmatively decline to designate his or her leave as FMLA-protected.)

Gambini v. Total Renal Care (9th Cir. 2007) 486 F.3d 1087. (In FMLA action against former employer by employee who suffered from bipolar disorder and was discharged after going on medical leave, any error by district court in instructing jury that employee had burden of proof as to whether leave was factor in termination was harmless, given unrefuted evidence that employee would have been fired regardless of such leave.)

Liu v. Amway (9th Cir. 2003) 347 F.3d 1125. (An employer’s denial of leave and mischaracterization of FMLA leave as “personal leave” constitutes unlawful interference in violation of the FMLA.)

Marchisheck v. San Mateo County (9th Cir. 1999) 199 F.3d 1068. (An employee was lawfully terminated after she took an unauthorized leave to move her son to a different country after he sustained beating injuries. The son’s mental and physical conditions did not qualify as a “serious health condition” because there was no evidence that he was unable to perform regular daily activities due to his behavioral problems; plaintiff’s actions were not “caring for” her son under FMLA/CFRA.)

Mora v. Chem-Tronics, Inc. (S.D. Cal. 1998) 16 F.Supp.2d 1192. (Employee’s notice to employer that his son was HIV-positive, had a very high fever, and could not be left alone, was sufficient to make the employer aware that the employee needed FMLA qualifying leave)

Moreau v. Air France (9th Cir. 2004) 356 F.3d 942. (Airline was not joint employer of contracted service workers, and thus was not eligible employer for FMLA/CFRA purposes.)

Nevada Department of Human Resources v. Hibbs (2003) 538 U.S. 721. (Employees of the State of Nevada may recover money damages from the State in the event of the State’s failure to comply with the family-care provision of the Family and Medical Leave Act of 1993.)

Scamihorn v. General Truck Drivers (9th Cir. 2002) 282 F.3d 1078. (District court erred in granting summary judgment in favor of employer where fact issues existed as to whether employee’s depressed father was incapacitated and whether employee cared for him within meaning of the FMLA.)

Sims v. Alameda-Contra Costa Transit Dist. (N.D. Cal. 1998) 2 F.Supp.2d 1253. (Employer who denied employee’s request for FMLA leave without utilizing the second and third medical opinion procedures could not, in a subsequent civil action, challenge the validity of his medical certification.)

D. Resources

Brown, Peter J. Pocket Guide to the Family and Medical Leave Acts (5th edition), Berkeley, CA: CPER, University of California (2015), http://cper.berkeley.edu.

Chin, Hon. Ming W., Hon. Rebecca A. Wiseman, Hon. Consuelo Maria Callahan and Alan B. Exelrod, California Practice Guide: Employment Litigation, Rutter Group Practice Guide, Ch. 12 (2009) with annual supplements.

Wilcox, M. Kirby, California Employment Law, Chapter 8. New York: Matthew Bender, 1989, looseleaf with annual supplements.

173H.R. 1, 1993; 29 U.S. Code sections 2611-2654.

174Gov. Code section 12945.2, as amended in 1993 to eliminate conflict with terms of the FMLA.

17529 USC sections 2601(b)(1), (2).

17629 USC sections 2612(a)(1).

17729 USC sections 2612(a)(3), (4).

178Private sector employers are covered only if they employ 50 or more employees for 20 weeks in a year, but public employers are covered regardless of the number of employees.

179The California Family Leave Act originally provided for an undue hardship defense but it was eliminated to conform to the federal statute.

180Gov. Code sections 12900 et seq.

181 Gov. Code sections 12945.2(a), (c)(3)

182Gov. Code sections 12942.2(c)(3)(C), Cal. Code of Regs. section 11087(o).

183Gov. Code sections 12945.

184Gov. Code sections 12945(a).

185Family Code sections 297.5(a).

186Gov. Code sections 12960.

187Gov. Code sections 12945(a).

1882 Cal. Code of Regulations section 11043(a).

189Gov. Code sections 12960.

190Cal. Unemp. Ins. Code sections 3300 et seq. Only employees who pay into the State Disability Insurance program may receive Paid Family Leave benefits; thus, many public employees are not eligible for this program.

191Labor Code sections 233-234, 245-249.

192See Chapter 3 of this Pocket Guide for a discussion of the agency’s enforcement procedures. See Cal. Admin. Code sections 7297.0-7297.9, for FEHC regulations implementing the act.

19329 CFR, Part 825.

11. Layoffs and Reductions in Force

A. Overview

Layoffs, furloughs (temporary layoff or reduction in work hours), or reductions in force (RIFs) are usually distinguished from disciplinary actions. Public employers may generally implement layoffs, furloughs, or RIFs due to lack of funds or lack of work, subject to any obligation of the employer to meet and confer over the topic with the recognized bargaining unit. However, such actions are usually not covered by wrongful termination provisions because the cause is not the employee’s conduct, but the employer’s decision to eliminate the job based on a legitimate business decision.

The decision to lay off is a management right. However, the procedures that are followed to implement a layoff, including how a particular employee may be selected, potential bumping rights, or the right to be recalled, are negotiable items and are often included in collective bargaining agreements and civil service systems.

The procedures usually provide a number of protections, such as requiring that layoff be by seniority; guaranteeing that a temporary or probationary position be eliminated before a permanent one; allowing for employee transfer to a vacant position, or demotion to a lower paid job to avoid layoff; giving recall and preferential rehire rights for a period of time; and providing for a hearing to assure the layoff is justified by economic or reorganization reasons and is not a pretext for discipline or discrimination.

1. State civil service employees

Layoffs of state employees are governed by the civil service statute, which permits layoffs necessitated by lack of funds or work, or whenever it is economically advisable to reduce staff.194

Civil service employees, both permanent and probationary, have various protections regarding how they are selected for layoff, and the statute generally requires that layoffs be made in accordance with relative seniority in the class of layoff.195 For example, employees must be selected by seniority within a designated geographic area or within a functional division of the particular state agency.

In lieu of layoff, employees may have “bumping rights,” which may enable them to elect to demote to a class with the same or lower salary or to bump an employee with lesser seniority in the same job classification. Laid-off employees are placed on a preferential rehire list for five years.

An employee has the right to appeal the layoff decision, both on the grounds that the layoff was not for a statutorily approved reason and that proper procedures were not followed. Appeals are heard by the Department of Personnel Administration, rather than by the State Personnel Board. The DPA may reinstate an employee if, after a hearing, it finds the layoff was not made in good faith.

Under the Dills Act,196 a recognized employee organization can demand to negotiate layoff procedures but not the decision to lay off, which is a reserved managerial right.197 The employer’s duty to negotiate, however, does not necessarily result in agreement to incorporate layoff procedures into the collective bargaining contract.

Accordingly, to determine which layoff procedures and protections apply, the collective bargaining agreement, as well as the civil service statute, should be consulted. Procedures in an agreement may supersede the statutory layoff provisions. Enforcement of negotiated procedures is through the agreement’s grievance procedure, instead of the civil service appeals procedure.

Layoffs of permanent trial court employees are governed by the Trial Court Employment Protection and Governance Act, which allows for layoffs (by seniority in classification) if caused by “organizational necessity.”198

2. Local government employees

Layoff procedures, similar to those provided in the state civil service system, often are contained in the local civil service charter, ordinance, or rules of a city, county, or other local government agency. Such provisions usually state that the agency has the authority to decide whether a layoff is necessary because of lack of work or funds or due to a reorganization.

Employers are not obligated by the Meyers-Milias-Brown Act199 to bargain over the decision to lay off, but a union can demand that the employer negotiate the procedures to be followed or any other effects of the layoff that impact terms and conditions of employment. Memoranda of understanding should be consulted, in addition to the civil service provisions, to determine a particular agency’s procedures.

Enforcement of local civil service rules usually occurs through the appeals procedures included in the rules themselves with a determination by a civil service or personnel commission. Compliance with local layoff rules may also be enforced by a grievance or writ of mandamus.200 Violations of layoff procedures contained in a negotiated memorandum of understanding may be remedied through the grievance procedure. In one case, the Ninth Circuit Court of Appeals held that a city employee with a protected property interest in continued employment had been deprived of his due process rights when he was not afforded a hearing to respond to the layoff decision.201

3. K-12 school district and community college employees

Layoffs of public K-12 school district and community college employees are largely governed by the Education Code.

A K-12 school district or community college governing board may lay off classified employees for lack of work or lack of funds. Classified employees have the right to advance notice, selection for layoff by length of service within a classification, voluntary demotion or reduction in hours in lieu of layoff, and reemployment for up to 39 months as positions become available. No administrative hearing is required by the statute.202

Teachers, community college faculty, and other “certificated” or “academic” employees are subject to a separate statutory scheme under the Education Code governing layoffs of probationary as well as permanent employees.203 The primary grounds for layoff of “certificated” or “academic” employees in both K-12 school districts and community colleges are a decline in average daily attendance (ADA), and a reduction in or discontinuance of a particular kind of service (“PKS”).204 Layoff is by seniority. However, in K-12 school districts, a junior employee possessing special training or experience not held by a more-senior teacher may be retained or “skipped.”205

Statutory procedures include a strict timetable for advance notice and hearing prior to the end of the school year. A statutory exception to the regular timing for K-12 school districts exists if the state budget necessitates the K-12 school district’s action in August. Failure to offer the hearing results in the employee being reemployed for the next school year.206 The hearing is conducted by a state administrative law judge, but the decision is not binding on the K-12 school district or community college district board. However, an employee whose layoff is upheld may seek court review.

Although the K-12 school district or community college district employer’s decision to lay off is not negotiable under the Educational Employment Relations Act (EERA),207 the impacts of the decision on working conditions are mandatory subjects of bargaining.208 Hence, negotiated agreements may contain provisions governing matters such as order of layoff, seniority, demotion and bumping rights, hours reduction in lieu of layoff, and reemployment, to the extent that they are not superseded by Education Code requirements. Such negotiated provisions may be enforced through the agreement’s grievance procedure.

Additionally, EERA requires a K-12 school district employer to negotiate procedures and criteria for certificated employees’ layoffs based on lack of funds, although that obligation does not mean that such procedures have been agreed to in every school district.209 If such an agreement is reached, the Education Code procedures may be incorporated into or modified by the collective bargaining agreement. Therefore, agreements should be consulted to determine whether a layoff is subject to a negotiated procedure or only the statute.

4. Higher education employees

Layoff procedures at the state’s two higher education systems differ. In general, layoff of California State University employees is governed by both the Education Code and the university’s own implementing rules, while layoff of University of California employees is governed solely by the university’s personnel policies or applicable negotiated agreement.

California State University. Layoffs within the CSU system are governed by the Education Code and the university’s own implementing rules, which cover selection, relocation, reemployment, and other rights affecting how employees are laid off.210 Notice is required, but no statutory appeals procedure is provided.

Although the layoff decision itself is not negotiable, unions have the right under the Higher Education Employer-Employee Relations Act (HEERA)211 to negotiate procedures for implementing layoffs. Accordingly, collective bargaining agreements should be consulted, along with the statute and rules, to determine the applicable procedures. If layoff procedures are contained in a collective bargaining agreement, they are likely subject to the applicable grievance procedure.

University of California. Layoffs in the U.C. system are governed solely by the university’s personnel policies or by negotiated agreement, since the U.C. system is not subject to the Education Code provisions that apply to the CSU system.

The personnel rules and collective bargaining agreements in the U.C. system generally provide for layoff procedures only because the U.C. system retains the management right to decide whether to lay off. The grievance procedures contained in the rules or applicable collective bargaining agreement typically allow employees to contest whether the procedures have been followed, including whether selection of the employee for layoff was justified by lack of work or funds and by proper application of the seniority or special skills criteria, and whether reemployment procedures have been followed. Grievances are usually heard by internal hearing officers or outside arbitrators.

5. Federal employees

Reduction in force (RIF) regulations apply whenever lack of work, shortage of funds, or reorganization requires a federal employee to be released from a civil service position, demoted, or furloughed for more than 30 calendar days (or more than 22 discontinuous work days) for non-performance reasons. Displacement of one employee because another employee is exercising bumping rights also is considered a RIF.212

Rules of the Office of Personnel Management (OPM) published in the Code of Federal Regulations set out the standards that govern RIFs and should be consulted in the event of a federal employee RIF. In general, in selecting a federal employee for RIF (layoff or furlough), the employing agency is required to consider the length of employment, type of appointment (career or probationary, fixed-term, or indefinite duration), veteran preference status, and efficiency and performance ratings. An employee is typically entitled to 60-days advance notice of the layoff, unless a shorter period of not less than 30 days is approved by OPM.213

Agencies anticipating layoffs must establish “retention registers” that place employees in groups based on the above criteria. Agencies also must establish geographic and occupational “competitive areas,” with separate retention registers for each area. Layoff priority is set according to employees’ standing in this register.214

An employee may seek reassignment to another position in lieu of separation but must meet the qualifications for that position. Under some circumstances, an employee may revert to a lower position from which he or she had been promoted.

Career and probationary employees are entitled to be placed on a reemployment list, with preferential rehire rights to jobs within reasonable commuting distance.

Claimed violations of RIF rules can be taken to the Merit Systems Protection Board (MSPB). The employee may contest whether the RIF was for legitimate reasons, but the MSPB will not rule beyond determining whether the agency’s reasons were legitimate. Employees covered by a collective bargaining agreement can only appeal a RIF if covered under the negotiated grievance procedure.

B. Enforcement

Employees facing layoff or furlough must consult the particular civil service or personnel rules governing their conditions of employment to determine what rights may be offered. As indicated in the discussion above, administrative procedures for appealing a layoff decision are provided in some, but not all, of the schemes. The particular statute or ordinance will reveal what enforcement procedures may be available. A union is not required to represent an employee in a civil service proceeding but may voluntarily do so.

Layoff rights and procedures in a collective bargaining agreement may be enforceable through the contract’s grievance procedure. Many grievance procedures call for disputes that are not resolved at a lower step in the process to proceed to final and binding arbitration by a neutral.

Generally, the union has the obligation to consider an individual employee’s claim that a contract right has been violated. The grievance procedure may provide that a grievance cannot be filed without the union’s consent or may permit an individual to file without the union. However, in most instances, the union has discretion to decide whether to pursue a grievance to arbitration, and an employee may not have the right to go to arbitration if the union does not agree to do so.

Layoff rights and procedures may also be enforceable by writ of mandamus.215

C. Resources

Bogue, Bonnie G., Carol Vendrillo, David Bowen, and Eric Borgerson. Pocket Guide to the Educational Employment Relations Act (9th edition). Berkeley, CA: CPER, University of California (2016), http://cper.berkeley.edu

Bogue, Bonnie G., Marla Taylor, Carol Vendrillo, and Eric Borgerson. Pocket Guide to the Meyers-Milias-Brown Act (16th edition). Berkeley, CA: CPER, University of California (2016), http://cper.berkeley.edu.

Brodsky, Dale. Pocket Guide to Dismissal Procedures Affecting Permanent, Certificated Employees. Berkeley, CA: CPER, University of California (2015), http://cper.berkeley.edu.

Brodsky, Dale. Pocket Guide to Layoff Rules Affecting Certificated Employees. Berkeley, CA: CPER, University of California (2015), http://cper.berkeley.edu.

Bussey, Ellen, ed. Federal Civil Service Law and Procedures: A Basic Guide, 2nd edition. Washington, D.C.: Bureau of National Affairs, 1990.

de Jennings, Carmen Plaza, and Jayne Benz Chipman. Pocket Guide to Layoff Rules Affecting Community College Faculty. Berkeley, CA: CPER, University of California (2015), http://cper.berkeley.edu.

D’Orazio, Fred, Kristin Rosi, Howard Schwartz. Pocket Guide to the Ralph C. Dills Act (3rd edition). Berkeley, CA: CPER, University of California (2013), http://cper.berkeley.edu.

Fecher, Gerald. Pocket Guide to Public Sector Mediation in California (2nd edition). Berkeley, CA: CPER, University of California (2015), http://cper.berkeley.edu.

Silver, Frank, and Bonnie G. Bogue. Pocket Guide to Public Sector Arbitration: California, 4th edition. Berkeley, CA: CPER, University of California (2015). http://cper.berkeley.edu.

Vendrillo, Carol, Ritu Ahuja, and Carolyn Leary. Pocket Guide to the Higher Education Employer-Employee Relations Act (1st edition). Berkeley, CA: CPER, University of California (2003), http://cper.berkeley.edu.

Whelan, Maureen. Pocket Guide to Layoff Rules Affecting Classified Employees. Berkeley, CA: CPER, University of California (2016), http://cper.berkeley.edu.

Zerger, Kirsten L., et al., eds. California Public Sector Labor Relations, Chapter 17. New York: Matthew Bender, looseleaf with annual supplements.

194Gov. Code sections 19997 et seq. Employees exempt from civil service do not enjoy the statutory protections outlined here.

195Gov. Code section 19997.3.

196Gov. Code sections 3512-3524, which govern collective bargaining for non-managerial state employees.

197Professional Engineers in California Government v. State of California (Dept. of Personnel Admin.) (1987) PERB Dec. No. 648-S, 75X CPER 6.

198Gov. Code section 71652.

199Gov. Code sections 3500 et seq., which govern collective bargaining for local government employees.

200 See Bogacki v. Board of Supervisors (1971) 5 Cal.3d 771.

201Levine v. City of Alameda (9th Cir. 2008) 525 F.3d 903.

202 Ed. Code sections 45308, 45101, 45298 (school districts) and sections 88127, 88001, 88117 (community colleges).

203Ed. Code sections 44949, 44955-44957 (school districts) and sections 87740, 87743-87745 (community colleges).

204Ed. Code sections 44955(b) (school districts) and section 87743 (community colleges).

205Ed. Code sections 44955(b), (d)(1).

206Ed. Code section 44955.5.

207Gov. Code sections 3540-3549, which govern collective bargaining for school and community college employees.

208San Mateo City School Dist . (1984) PERB Dec. No. 383, 61X CPER 14.

209Gov. Code section 3543.2(c).

210Ed. Code sections 89550 et seq.

211Gov. Code sections 3560-3599, which govern collective bargaining for higher education employees.

2125 CFR section 351.201; 5 CFR sections 351.701 et seq.

2135 CFR section 351.801.

2145 CFR sections 351.401 et seq.; 5 CFR sections 351.501 et seq.

215See Bogacki v. Board of Supervisors (1971) 5 Cal.3d 771.

Part II:
Employee Representation Rights Introduction

Part II of this Pocket Guide addresses the rights of individual public employees that arise from their membership in a recognized bargaining unit. They are rights created by the statutes that authorize collective bargaining and protect the employee’s right to be represented by an employee organization and the right of the organization to represent the employee in certain matters.

Each of the next five chapters is devoted to a particular employee right, as defined in the various employment relations statutes that cover public employees in California and the federal service.

This introduction provides an overview of the various statutes and a general discussion of how to enforce the individual rights created by these statutes. Only the principles are outlined; the acts and numerous cases interpreting them must be consulted to gain a full understanding. In-depth resources and leading cases are cited in each chapter to enhance the reader’s comprehension.

A. Public Sector Statutes

Public employees are not covered by the National Labor Relations Act (NLRA). The NLRA governs private-sector employees. Public employees are subject to various separate state statutes that govern various types of public employees. A particular employee’s rights depend on which statute governs that individual’s employment relationship. Each state has a variety of public employment statutes, applying to different types of state and local public employers, while federal employees are covered by a separate law.

California local government employees (cities, counties, municipal utility and other special districts) are governed by the Meyers-Milias-Brown Act (MMBA).216 Employees of public schools and community college districts are covered by the Educational Employment Relations Act (EERA).217 Most state employees are covered under the Dills Act,218 except for supervisory, managerial, and other employees excluded from that statute, who are subject to the Excluded Employees Bill of Rights Act (EEBRA).219 The state’s two public university systems come under the Higher Education Employer-Employee Relations Act (HEERA).220 Trial court employees are covered by the Trial Court Employment Protection and Governance Act (TCEPGA).221 Most trial court interpreters are covered by the Trial Court Interpreter Employment and Labor Relations Act (TCIELRA).222 Most public transit district employees are covered by the labor relations provisions that appear in the statute which governs each district’s operation.223 However, supervisory employees of the Los Angeles County Metropolitan Transportation Authority are governed by the Los Angeles County Metropolitan Transportation Authority Employer-Employee Relations Act (TEERA).224 The In-Home Supportive Services Employer-Employee Relations Act (IHSSEERA) governs labor relations between counties and IHSS providers.225

Labor relations for federal government employees are regulated by the Federal Service Labor-Management Relations Statute, also known as Title VII of the Civil Service Reform Act of 1978.226

B. Remedies for Rights Violations

The manner by which employees can enforce the rights outlined in the following chapters depends on which statute is involved and whether a collective bargaining agreement contains protections similar to those provided by statute.

1. State, school, court, university, local government and IHSS employees

The Public Employment Relations Board (PERB) is a state agency — with offices in Sacramento, Oakland, and Glendale — that has jurisdiction over EERA, HEERA, the Dills Act, MMBA,227 TCEPGA, TCIERCRA, TEERA, and IHSSEERA. It is an “unfair practice” to violate rights guaranteed by those statutes; therefore, such a claim must be filed as an unfair practice charge with PERB and cannot be taken directly to court in a lawsuit. However, PERB decisions may be appealed in court.

PERB has the authority to remedy statutory violations. For example, it can order an employer to reinstate an employee terminated in retaliation for the employee’s union activity. The board may order that an employee be “made whole” for any loss of pay or benefits caused by the unlawful action of the employer or employee organization, although it cannot award damages in addition to a make-whole remedy. For example, PERB can order back pay, front pay, a restoration of lost benefits (e.g., vacation), and interest. On rare occasions, PERB also has awarded attorneys’ fees and litigation costs.228 PERB generally issues both orders commanding the employer or employee organization to “cease and desist” the unlawful behavior and orders to post a notice informing all employees that it has violated the act and is taking corrective measures.

Local government employees. In July 2001, jurisdiction was conferred on PERB to adjudicate unfair practice charges for most local government employees under the MMBA. PERB generally has the same remedial authority over claims involving alleged violations of the MMBA as it has with respect to state, school, and university employees.229

PERB does not have jurisdiction over management employees, employees of the City of Los Angeles and the County of Los Angeles, as well as all local peace officers as defined by Penal Code section 830.1. However, PERB may assert jurisdiction over mixed bargaining units, or those that include peace officers as defined by Penal Code section 830.1 as well as other non-sworn classifications that otherwise would be subject to PERB’s jurisdiction. However, while PERB may assert jurisdiction over such mixed bargaining units, case law is unclear to what extent it may order remedies that impact peace officers in that unit who are otherwise outside of its jurisdiction. Notwithstanding this, management employees, employees of the City of Los Angeles and the County of Los Angeles, as well as all local peace officers must enforce their rights by filing suit in the superior court.230

In addition, for those employees excluded from PERB’s jurisdiction, most local government agencies have adopted employee relations ordinances or charter provisions that may provide employee rights similar to those in the MMBA. Some of the ordinances have an administrative procedure for enforcing those rights, such as a hearing before a local employment relations board or civil service commission. These employees may be required to exhaust such local administrative remedies before filing a court action claiming that their statutory rights have been violated. If dissatisfied by the outcome of the administrative procedure, they may ask the court to review the decision.231

2. Transit district employees

Most employees covered by the transit district labor relations acts, except those covered by TEERA, are not subject to PERB jurisdiction. Violations of rights guaranteed by those statutes for management employees can be enforced by filing suit in the superior court.232

3. Federal employees

Complaints that statutory rights have been violated are similarly termed “unfair labor practices” under the federal statute. Charges, filed with the regional office of the Federal Labor Relations Authority, are decided by the FLRA, which has similar authority to that of the state PERB (discussed above). Claims may not be taken to federal court directly, but FLRA decisions can be appealed to a U.S. Court of Appeals.233

4. Contracts and grievance procedures

Negotiated agreements may incorporate unfair practice protections similar to those contained in the statutes. Such provisions normally cover only employer unfair practices and do not make unfair practices by the union subject to the contract. Some grievance procedures require the union to be advised before a grievance can be filed, and most procedures allow only the union, not individual employees, to take a grievance to arbitration.

If rights are contained in the contract, they may be enforced through a grievance procedure rather than through an unfair practice charge or lawsuit. Grievance procedures usually provide for arbitration by a neutral arbitrator as a final step.

Arbitration awards that are final and binding generally may not be appealed; that is, courts ordinarily will not review an arbitrator’s ruling. Judges rarely refuse to enforce an award, and then only on very limited grounds, such as that the arbitrator exceeded his or her authority or the award was contrary to public policy.234

PERB will dismiss an unfair practice charge and defer the case to arbitration if the subject in dispute is covered by a negotiated agreement that provides for binding arbitration. PERB may review the arbitration decision to make sure it is not contrary to the law, but the board will not relitigate the same dispute as an unfair practice charge.235

Similarly, rights disputes of federal employees may be resolved through grievance arbitration, instead of filing an unfair labor practice charge. But employees must choose which remedy to pursue and cannot litigate the same dispute twice.236

6. Seeking a remedy

Although employees may represent themselves before agencies such as PERB, FLRA, and local employment relations commissions, and may file their own lawsuits and sometimes their own grievances, the decision about how to remedy a particular violation may best be made after consulting with an employee organization or attorney specializing in labor and employment law. PERB officials can provide information on board procedures, but cannot advise employees of their legal rights.

Regardless of which approach is chosen, employees should note that strict time limits govern the filing of unfair practice charges and grievances. Under EERA, the Dills Act, HEERA, MMBA, TCEPGA, TEERA, TCIELRA, IHSSEERA, and the federal act, an unfair practice charge must be filed within six months of the date the violation occurred or the charging party became aware of the violation. Grievance procedures often provide for a much-shorter time period. Failure to act before the deadline usually will result in the dismissal of the charge or grievance, regardless of the strength of the case.

C. Key Cases

Santa Clara County Correctional Peace Officers Assn. v. County of Santa Clara (2015) PERB Dec. No. 2431-M. (PERB will exercise jurisdiction over bargaining units comprised of both section 830.1 peace officers and other non-sworn classifications.)

216Gov. Code sections 3500 et seq.

217Gov. Code sections 3540 et seq.

218Gov. Code sections 3512 et seq.

219Gov. Code sections 3525 et seq.

220Gov. Code sections 3560 et seq.

221Gov. Code sections 71630 et seq. Trial courts are defined as superior courts. The act does not cover temporary employees, jurors, independent contractors or judges.

222Gov. Code sections 71800 et seq. TCIELRA excludes court interpreters in Solano and Ventura counties, and interpreters who have been continuously employed by a trial court in any county since prior to September 1, 2002, and who are covered by an MOU entered into pursuant to TCEPGA.

223Transit district enabling statutes are codified in the California Public Utilities Code. For example, the Bay Area Rapid Transit District is governed by PUC sections 28500 et seq., with labor provisions in sections 28850-28855.

224Gov. Code sections 99560 et seq.

225Gov. Code sections 110000 et seq.

226 5 USC sections 7101 et seq.

227The Excluded Employees Bill of Rights Act (EEBRA), covering supervisory and managerial state employees, is not subject to PERB jurisdiction; the rights it conveys must be enforced in court.

228California School Employees Assn. and its Hacienda La Puente Chapter 115 v. Hacienda La Puente Unified School Dist. (1998) PERB Dec. No. 1280, 132 CPER 79.

229Gov. Code section 3509.

230Code Civ. Proc. section 1085 governs filing petitions for “writs of mandate” to compel compliance with a statute.

231Code Civ. Proc. section 1094.5.

232Code Civ. Proc. section 1085.

2335 USC sections 7104, 7123.

234California Arbitration Act, Code Civ. Proc. sections 1286.2, 1286.6. See Pocket Guide to Public Sector Arbitration: California (4th edition), by Frank Silver and Bonnie G. Bogue (Berkeley, CA: CPER, Univ. of California, 2015).

235 EERA, Gov. Code section 3541.5; Dills Act, Gov. Code section 3514.5; HEERA, Gov. Code section 3563.2; PERB Reg. 32620. For discussion of unfair practices and how they are enforced under all of California’s employment relations statutes, see Pocket Guide to Unfair Practices: California Public Sector (5th edition), by Carol Vendrillo (Berkeley, CA: CPER, Univ. of California, 2013).

236 5 USC sections 7116(d), 7121(d), 7121(e).

12. Protected Activities

A. Overview

The various public employment relations statutes recognize the right of employees to form, join or participate in an employee organization for purposes of representation in their relationship with their employer. These representational rights are called “protected activities” because the statutes protect employees from discipline, discrimination, or other kinds of interference based on the exercise of their statutory right to engage in union activity.

1. Right to participate in union activity

State statutes. The Educational Employment Relations Act (covering public school and community college district employees), the Dills Act (covering most state employees), and the Higher Education Employer-Employee Relations Act (covering university employees) grant employees essentially identical rights to form, join, and participate in employee organizations of their own choosing for the purpose of representation on all matters of employer-employee relations. Employees also have the right to refuse to participate in such activity.237

The Meyers-Milias-Brown Act (covering cities, counties, and other local government agencies), the Transit Employer-Employee Relations Act (covering Los Angeles County Metropolitan Transportation Authority employees),the Trial Court Employment Protection and Governance Act (covering court employees), the Trial Court Interpreter Employment and Labor Relations Act (covering court interpreters), and the In-Home Supportive Services Employer-Employee Relations Act (covering supportive services workers) have similar language.238 Employees of most public transit districts are subject to separate labor relations provisions, appearing in the statute governing the district’s operation. These provisions vary from district to district with regard to how protected activities are defined, if at all.239

State employees who are designated as managerial, supervisory, or confidential are not covered by the Dills Act and, instead, are subject to the Excluded Employees Bill of Rights Act (EEBRA). That act protects union activity but only for supervisory employees and then only the right to participate in an organization composed solely of supervisory employees.240

Federal employees. The Federal Service Labor-Management Relations Statute grants federal employees a similar right to join, form, or assist a labor organization or to refrain from such activities, without fear of penalty or reprisal from employer or union.241

2. Limitations on the right to participate

Public employees’ right to join or participate in an employee organization of their choosing (and the corresponding right not to participate) is not unlimited. Restrictions are imposed by other rights and duties that the labor relations statutes provide.

A major limitation comes from the provision that one organization may be recognized as the “exclusive representative” of all employees in a bargaining unit. As such, once recognition is granted, no employees in the unit may be represented by any other individual or organization other than the exclusive representative, in dealings with the employer in matters such as grievances or working conditions.242 In addition, some of the statutes permit law enforcement employees243 and professional employees244 or require supervisory employees245 to be represented by organizations made up exclusively of those types of employees. Also, employee organizations may lawfully make reasonable membership rules that may result in an employee being rejected from membership in the organization.246 State, local government, school, community college, CSU, UC, and court employees, court interpreters, and in-home supportive services workers are granted the right to represent themselves,247 but that right may be limited when there is an exclusive representative in place. For instance, the union may control who represents employees under a negotiated grievance procedure, or an employer may refuse to negotiate separate employment agreements with individual employees. Similarly, federal employees have the statutory right to be represented by someone other than the exclusive representative in appeals, except in appeals brought under the negotiated grievance or appeals procedure contained in the labor agreement.248 (See Chapter 14 for discussion of self-representation rights.)

An employee’s right to refuse to participate in a union can be limited by an organizational security agreement, which may require an employee either to remain a union member (maintenance of membership) or to contribute a service fee (also known as “fair share” or “agency shop” fee) to the union to support the cost of negotiating and administering the collective bargaining agreement. (See Chapter 16 regarding union security arrangements.)

3. Types of protected activities

In addition to obvious union activities — such as joining an existing union, forming an employee organization, or attending a union meeting — other kinds of activities also are protected. For instance, signing a card authorizing a representation election, voting in such an election, or campaigning for or against selection of an exclusive representative are all protected activities.

Participating in any organization whose central purpose is representation on employment issues, even if it is an organization other than the exclusive representative, is also protected. An organization may be informal, such as a group of employees concerned about a work-related problem.

Other forms of protected activity include using the grievance procedure, or otherwise attempting to enforce the collective bargaining agreement, and participating in an unfair practice case. Employees also have the protected right to request the presence of a union representative in an investigatory or disciplinary meeting, or any meeting which generally involves a discussion of terms and conditions of employment. However, where the purpose of the meeting is to deliver information and not elicit damaging facts from the employee, no such right of representation exists. By contrast, the right to a representative is required when the meeting involves matters such as an informal discussion regarding a grievance, a meeting to review a negative performance evaluation, a meeting to discuss disputed leave entitlements, and meetings concerning salary or classification adjustments. (See Chapter 13 for greater detail.)

Employees have a qualified right to wear union buttons and insignia, although the right is not unlimited and is subject to reasonable restriction based on the nature of the employee’s job. In addition, employees are entitled to utilize employer email systems for statutorily protected communications on nonworking time, if an employer provides email access to its employees.

Involvement in “concerted activities,” such as a picket line, strike, or other job action, also may be protected under the state statutes, but the legality of the action itself may affect whether employees can be disciplined for their participation. Under state law, a strike that endangers public health and safety may be declared unlawful.249 The Public Employment Relations Board has found that strikes which have an unfairly coercive impact on the employer, such as “partial strikes,” work slowdowns, selective refusals to do required duties, and on-and-off work stoppages, may be unprotected. Any strike by federal employees is unlawful, and participation in strikes or picketing that interferes with federal government operations is not protected.250

Both state and federal statutes also protect an employee organization’s right to represent employees. Although these rights are granted to the union, not to employees, violation of the union’s rights may have a direct impact on employees’ ability to freely exercise their representation rights.

The statutes vary on how union rights are defined, and some grant different rights than others; however, common rights of the recognized representative include the right to represent its members, to demand that the employer meet and confer (negotiate) in good faith and endeavor to reach agreement on matters within the scope of bargaining, to have a reasonable right of access to employees at the worksite, to receive information from the employer that is necessary to bargaining and administering the collective bargaining agreement, and to have employees granted a reasonable amount of time off to conduct union affairs.251

4. Prohibited employer conduct

Employers are prohibited from interfering with or taking reprisals or threatening to take such action against employees for exercising protected rights. Interference, restraint, or reprisals are considered “unfair labor practices.” In most instances, such unlawful or unfair conduct occurs when an employee is singled out for adverse treatment that can be linked to a protected activity, such as disciplining an employee who has been active in the union or has used the negotiated grievance procedure.

An employer’s speech can be an unlawful action if the employer promises employees a benefit if they refrain from union activity or threatens reprisals if they participate in an activity, such as voting for union representation. However, an employer can express an opinion about employees’ participation in protected activity, so long as the speech is not intimidating or coercive.

Mere “interference” with an employee’s protected activity is treated differently by PERB than is discrimination or reprisal for union activity. To establish unlawful interference, an employee must only show that the employer’s conduct tends to or does result in harm to the employee’s rights; proof that the interference was intentional is not required.252 PERB also will balance the necessity of the employer’s action against the harm to the employee’s rights. But harm that is inherently destructive to protected rights is unlawful unless there is evidence that the harm was caused by circumstances beyond the employer’s control, and the employer had no alternative course of action available to it.

To prove discrimination or reprisal for protected activity, PERB has required the employee or union to prove that the employer knew about the employee’s protected activity and took adverse action because of that activity.253

Proof of the employer’s unlawful intent may be inferred from a variety of factors, even when no supervisor or manager admits that protected activity motivated the discipline, transfer, denial of promotion or other benefit, or other adverse action. For example, intent can be inferred from close timing between the employer’s action and the employee’s protected activity, inconsistent explanations for the action, a departure from established practices, an incomplete or unfair pre-disciplinary investigation, or a penalty that is harsher than that given to other employees in similar circumstances.

Such inferences can be rebutted if the employer can show a reasonable operational justification for its action and that it would have acted the same even if the employee had not participated in the protected activity.

5. Prohibited union conduct

Although protected activity generally is discussed in terms of employer reprisals, employee organizations are likewise prohibited from interfering with the employees’ right to participate in an organization of their own choice. For example, an organization may violate employees’ rights by ejecting them from union membership for participating in a campaign to decertify the union as the exclusive representative. However, employee organizations may establish reasonable restrictions regarding membership and provisions for dismissal from membership without violating the collective bargaining statutes.

Unions also are prohibited from causing the employer to take reprisals against employees because of protected activity or to interfere with their rights.

Charges of union interference or discrimination for protected activity often are filed in connection with a claim that the employee organization has breached its duty of fair representation, such as by discriminating against non-members in handling grievances. (See Chapter 15 on the duty of fair representation.)

B. Enforcement

EERA, the Dills Act, HEERA and TEERA make it an unfair practice for either the employer or employee organization to take or threaten reprisals or to discriminate against employees, or otherwise interfere with, restrain, or coerce employees “because of their exercise of rights guaranteed” by the acts. PERB hears and decides unfair practice charges arising under these acts.254

Although the MMBA does not expressly identify “unfair practices,” it contains a clause that forbids public agencies and employee organizations from interfering with, intimidating, restraining, coercing, or discriminating against public employees for exercising their representation rights. Similar language is found in the TCEPGA, the TCIELRA, and the IHSSEERA.255 As previously noted in the Introduction to Part II of this guide, PERB hears and decides most unfair practice charges arising under those statutes.256

Similarly, violations of rights protected by the Federal Service Labor-Management Relations Statute are deemed unfair labor practices.

See the Introduction to Part II, above, for an explanation of how violations of these statutory rights may be remedied before PERB, the FLRA, in the courts, or by grievance arbitration.

C. Key Cases

Bolling v. Public Employment Relations Board (2017) 10 Cal.App.5th 853. (An employer has no obligation to meet and confer with the recognized bargaining unit over matters placed on an election ballot through a duly-qualified citizen-sponsored initiative.)

City of Santa Ana v. Santa Ana Police Benevolent Assn. (1989) 207 Cal.App.3d 1568, 80X CPER 1. (Work stoppage by police is illegal even if there is no evidence of imminent threat to public health or safety.)

Clovis Unified Teachers Assn., CTA/NEA v. Clovis Unified School Dist. (1984) PERB Dec. No. 389, 62 CPER 36. (Interviews of employees during union election were lawful since they did not contain hostility or implied retaliation against employees based on their views.)

County of Sacramento (2014) PERB Dec. No. 2393-M. (Public employees, including public safety firefighters, have the right, while in uniform and on duty, to wear union insignia. Only special circumstances can justify a prohibition on wearing union insignia with a showing by the employer that the insignia would “disrupt the uniformity, discipline, or appearance of neutrality among para-military law enforcement employees.”)

County Sanitation Dist. No. 2 of Los Angeles Co. v. Los Angeles Co. Employees Assn. (1985) 38 Cal.3d 564, 65 CPER 2. (Strike to improve wages and working conditions not unlawful unless strike poses an “imminent threat to public health and safety”; since statute silent on right to strike, strikes are not prohibited; prior case law prohibiting public employee strikes overruled.)

Federal Mediation and Conciliation Service (1982) 9 FLRA 199. (Whether an employer’s statement constitutes interference, restraint, or coercion depends on whether the employee could reasonably have drawn a coercive inference, not whether the employer intended to interfere or coerce.)

General Services Administration (1982) 9 FLRA 213. (Employees have protected right to distribute union literature in non-work areas during non-work time.)

Hard et al. v. California State Employees Assn. (1999) PERB Dec. No. 1368-S (For the purpose of establishing that a union unlawfully interfered with protected conduct, participation in internal union activities is protected conduct only if the activity has a substantial impact on employee-employer relations.)

Internal Revenue Service (1981) 6 FLRA 96. (Test for finding unlawful retaliation; FLRA general counsel must find that employee’s protected activity was motivating factor in management’s decision; then management has burden of showing it would have taken same action in the absence of protected activity.)

Los Angeles County Employees Assn. v. County of Los Angeles (1985) 168 Cal.App.3d 683 (County’s unilateral decision to implement health insurance benefits only for unions which had reached agreement was discriminatory because it treated groups differently based on the employees’ exercised protected activity.)

Modesto City Schools v. Modesto Teachers Assn., CTA/NEA (1983) PERB Dec. No. 291, 56 CPER 84. (Strikes prior to completion of impasse procedure presumed unlawful as failure to participate; slowdown or partial work stoppage unlawful if employees refuse required duties, but refusing voluntary duties is protected.)

Monsoor v. California Department of Developmental Services (1982) PERB Dec. No. 228-S, 55 CPER 48. (Participation in the activities of an informal group that concerns itself with some employment-related matter is protected even though the group does not have a formal structure, seek exclusivity, or is concerned with all aspects of the employment relationship.)

Novato Federation of Teachers, Local 1986, AFT, AFL-CIO v. Novato Unified School Dist. (1982) PERB Dec. No. 210, 54 CPER 63. (Test for proving unlawful discrimination or reprisal for protected activity under PERB-administered statutes; proof of intent required, evidence may be circumstantial; employer must show it would have acted the same despite employee’s protected activity.) Compare to proof required to establish unlawful interference, Carlsbad USD (1979) PERB Dec. No. 89, 41 CPER 58, below.

Oceanside-Carlsbad Federation of Teachers, Local 1344, CFT/AFT v. Carlsbad Unified School Dist. (1979) PERB Dec. No. 89, 41 CPER 58. (Test for proving employer’s unlawful interference with protected activity under PERB-administered statutes; proof of intent to interfere not necessary if action is inherently destructive of rights and there is a nexus with protected activity; action excused only if no alternative or the circumstances are beyond employer’s control; if harm to protected rights is slight, employer’s operational necessity for action is balanced against harm to rights.) Compare to proof of intent required to establish unlawful discrimination, Novato USD (1982) PERB Dec. No. 210, 54 CPER 63, above.

Oklahoma City Air Logistics Center (1981) 6 FLRA 159. (Management may not conduct a “vote no” campaign in a representation election, but management personnel may express personal views, arguments, or opinions if statements contain no threat of reprisal or promise of benefit; employees have protected right to solicit union membership during non-work time.)

Petrich v. Riverside Unified School Dist. (1987) PERB Dec. No. 639. (Mere failure to conduct an independent investigation of a supervisor’s charges of misconduct or poor job performance does not reflect unlawful motivation, without more. PERB will consider whether there are other factors such as whether the employer has a policy or practice of conducting such investigations and whether the record otherwise reflects anti-union animus.)

Purple Communications, Inc. v. Communications Workers of America, AFL-CIO (2014) NLRB Case Nos. 21-CA-095151, 21-RC-091532, and 21-RC-091584. (NLRB held that employees are entitled to use employer’s email for statutorily protected communications on nonworking time when employers have chosen to provide employees with email access.)

Rio Hondo Community College Faculty Assn. v. Rio Hondo Community College Dist. (1980) PERB Dec. No. 128, 46 CPER 68. (Test for permissible employer speech; statement unlawful if contains threat of reprisal or promise of benefit such that it interferes with or discourages employees’ exercise of right to choose representatives; employer can express views if comments not coercive.)

San Diego Teachers Assn. v. San Diego Co. Superior Ct. (1970) 24 Cal.3d 1, 41 CPER 2. (PERB has exclusive initial jurisdiction over strikes or other activity arguably an unfair practice under EERA; employer wishing to enjoin a strike must ask PERB to seek an injunction, rather than going directly to court.)

San Leandro Police Officers Assn. v. City of San Leandro (1976) 55 Cal.App.3d 553, 28 CPER 33. (Employer may not grant benefit only to employees not represented by union.)

San Leandro Teachers Assn. v. Governing Board of the San Leandro Unified School Dist. (2009) 46 Cal.4th 822 (School District may prevent teacher’s union from using the internal mailboxes to distribute union materials endorsing political candidates because mailboxes are District “equipment” that serves as school’s internal communication system.)

Service Employees International, Union, Local 660, AFL-CIO v. Los Angeles County Office of Education (1990) PERB Dec. No. 851 (Although timing of the adverse action compared to the protected conduct is an important factor, PERB will also look to other factors, such as (1) the employer’s disparate treatment of the employee; (2) the employer’s departure from established procedures and standards when dealing with the employee; (3) the employer’s inconsistent or contradictory justifications for its actions; (4) the employer’s cursory investigation of the employee’s misconduct; (5) the employer’s failure to offer the employee justification at the time it took the action, or the offering of exaggerated, vague, or ambiguous reasons; or (6) any other justification which might demonstrate the employer’s unlawful motive.)

D. Resources

Bussey, Ellen M. Federal Civil Service Law and Procedures: A Basic Guide, 2nd edition. Washington, D.C.: Bureau of National Affairs, 1990.

Fecher, Gerald. Pocket Guide to Public Sector Mediation in California (2nd edition). Berkeley, CA: CPER, University of California (2015), http://cper.berkeley.edu.

Silver, Frank and Bonnie G. Bogue. Pocket Guide to Public Sector Arbitration: California (4th edition). Berkeley, CA: CPER, University of California (2015), http://cper.berkeley.edu.

Vendrillo, Carol. Pocket Guide to Unfair Practices: California Public Sector (5th edition). Berkeley, CA: CPER, University of California (2013), http://cper.berkeley.edu.

Zerger, Kirsten L., et al., eds. California Public Sector Labor Relations; Chapter 15. New York: Matthew Bender, looseleaf with annual supplements.

237Educational Employment Relations Act (EERA), Gov. Code section 3543; Dills Act, Gov. Code section 3515; Higher Education Employer-Employee Relations Act (HEERA), Gov. Code section 3565.

238Gov. Code sections 3502 (MMBA); 71631 (TCEPGA); 71813 (TCIELRA) ; 10002 (IHSSEERA); Pub. Utilities Code section 99563.8 (TEERA.)

239Enabling statutes are found in the California Public Utilities Code. Some have language similar to the National Labor Relations Act or the MMBA; others are silent altogether with regard to protected activity. A district may, as a condition of receiving federal financial aid, have agreed to continue the collective bargaining rights that employees had when the transit service was provided by a private employer subject to federal labor law.

240Gov. Code section 3531.

241Commonly referred to as Title VII of the Civil Service Reform Act of 1978 codified at 5 U.S. Code sections 7101 et seq.; unfair labor practices are defined in section 7116.

242For example, see EERA, Gov. Code section 3543.1(a).

243MMBA, Gov. Code section 3508.

244MMBA, Gov. Code section 3507.3; TCEPGA, Gov. Code section 71637.

245EERA, Gov. Code section 3545(b)(2); Excluded Employees Bill of Rights Act (EEBRA), Gov. Code section 3533.

246For example, see EERA, Gov. Code section 3543.1(a).

247EERA, Gov. Code section 3543; Dills Act, Gov. Code section 3515.5; HEERA, Gov. Code section 3567; MMBA, Gov. Code section 3502; TCEPGA, Gov. Code section 71631; TCIELRA, Gov. Code section 71813; IHSSEERA, Gov. Code section 110022..

2485 U.S. Code section 7114(a)(5).

249See County Sanitation Dist. No. 2 of Los Angeles County v. Los Angeles County Employees Assn., Local 660, SEIU, AFL-CIO (1985) 38 Cal. 3d 564, 65 CPER 2.

2505 U.S. Code sections 7116(b)(1) and (7).

251See EERA, Gov. Code sections 3540.1(h), 3543.1, 3543.5(c); Dills Act, Gov. Code sections 3515.5, 3518.5, 3517, 3519; HEERA, Gov. Code sections 3568, 3569, 3569.5; MMBA, Gov. Code section 3503; TCEPGA, Gov. Code section 71633, 71634.2; TCIELRA, Gov. Code section 71815, 71818, 71821, 71823; IHSSEERA, Gov. Code sections 110022, 110025, 110033, 110034; Federal Service Labor-Management Relations Statute, 5 U.S. Code sections 7114-7117.

252EERA, Gov. Code section 3543.5(b); Dills Act, Gov. Code section 3519(b); HEERA, Gov. Code section 3571(b); MMBA, Gov. Code section 3506; IHSSEERA, Gov. Code section 110034(b). See Carlsbad Unified School Dist. (1979) PERB Dec. No.89, 41 CPER 58.

253Novato Unified School Dist. (1982) PERB Dec. No. 210, 54 CPER 63.

254EERA, Gov. Code sections 3541.5, 3543.5 and 3543.6; Dills Act, Gov. Code sections 3514.5, 3519, and 3519.5; HEERA, Gov. Code sections 3563.2, 3571, and 3571.1; TEERA, Public Utilities Code sections 99563.7(a) and 99563.8(b).

255TCEPGA, Gov. Code section 71635.1; TCIELRA, Gov. Code section 71822 ; IHSSEERA, Gov. Code section 11026.

256MMBA, Gov. Code section 3506; See also 8 CCR sections 32603-32605.

13. Right to Union Representation

A. Overview

An employee has the right to have a representative of his or her choice be present in any administrative interview with the employer if there is a potential that the responses to the questioning may result in disciplinary action.

What is commonly called the “Weingarten right” was first defined by the U.S. Supreme Court in the Weingarten case decided under the National Labor Relations Act.257 The right exists under each of the public sector laws. It is based on the statutory right of employees to participate in an employee organization “for purposes of representation,” as well as the union’s right to represent employees.258 The California Legislature has specifically articulated the right to a representative and additional procedural protections that must be provided to public safety employees when subjected to a disciplinary investigation. (See Chapter 6.)

No right to ask for a union representative exists for ordinary workplace conversations between a supervisor and an employee, such as to give instructions or correct work, unless an employee reasonably anticipates that the interview or investigation may lead to punitive or corrective action. Similarly, there is no right to representation where an employer simply informs an employee of discipline.

Under public sector employment relations statutes, however, a right to the presence of a union representative also may exist in non-disciplinary contexts, such as in a conference about a performance evaluation, salary adjustment, or contract application dispute. The broader right exists because the statutes grant the right to representation on “all matters of employer-employee relations.”

The employer does not have to inform the employee of the right to demand a union representative, but must reasonably allow the employee to have one when the employee asks. However, after an organization is made the exclusive representative, an employer may reasonably deny an employee a representative who is not affiliated with that exclusive representative.

Once the employee has requested a representative, the employer may postpone the meeting until a union representative can be present. The employee may not postpone the meeting just to find one particular representative but may have to accept the presence of the shop steward or other union official who can be available within a reasonable period of time.

An employee cannot be threatened with discipline for insubordination for refusing to meet without a union representative, unless a reasonable amount of time has been given to the employee to obtain a representative, and the employee still refuses to meet. Furthermore, when a representative is present, he or she has the right to speak in support of the employee, provide insight, ask for clarification and assist the employee in understanding the questioning and articulating responses. Ultimately, the employer has the right to compel the employee to answer questions, or face insubordination for failing to do so.259

B. Enforcement

Denying an employee who has asserted his/her right to representation is an “unfair practice” that violates the employee’s statutory right to representation, as well as the employee organization’s right to represent its members.

Employees under the jurisdiction of the Public Employment Relations Board (PERB) must file an unfair practice charge with that agency. For state and local employees outside of PERB’s jurisdiction, recourse may be through the courts or a local employee relations board. Violations of federal employees’ rights are remedied through the Federal Labor Relations Authority. If the right also is expressed as a term in a collective bargaining agreement, denial may be grieved as a contract violation.

See the Introduction to Part II, above, for an explanation of enforcement procedures through PERB, the courts, FLRA, or grievance arbitration.

C. Key Cases

California School Employees v. Capistrano Unified School Dist. (2015) PERB Dec. No. 2440-E. (PERB found that the right to representation under EERA is “considerably broader” than under Weingarten, citing EERA section 3543.1. A supervisor’s statement of the purpose of the meeting is not dispositive. Even though the supervisor said no discipline was contemplated, the Board found it to be investigatory and the employee had a right to representation.)

California School Employees Assn. v. Redwoods Community College Dist. (1983) PERB Dec. No. 293, 57 CPER 65. (Based on statutory right to representation, an employee’s right to a union representative extended to non-disciplinary meeting to review a non-routine performance evaluation because of particular circumstances; union representative must be allowed to speak.)

California State Employees Assn., Chapter 41 v. Regents of the University of California (1984) PERB Dec. No. 403-H (requiring union representation in “highly unusual circumstances”; employer required to allow representation during a formal meeting regarding a job audit which had the potential for salary adjustment.)

Capistrano Unified School Dist. (2015) PERB Dec. No. 2440-E. (The right to a representative under EERA is “considerably broader” than the right under Weingarten, and an employee with a strained relationship with a supervisor is entitled to a representative when speaking with that supervisor about terms and conditions of work, even when the supervisor has stated that no discipline will come from the meeting.)

City of Los Angeles v. Superior Court (Labio) (1997) 57 Cal.App.4th 1506. (Police officer was unlawfully interrogated without being afforded procedural protections, including the right to a representative, when questioned by his supervisor as part of a disciplinary and criminal investigation.)

Civil Service Assn., Local 400, v. City and Co. of San Francisco (1978) 22 Cal.3d 552, 40 CPER 59. (Employees covered by Meyers-Milias-Brown Act have right to union representation as provided in the “Weingarten rule.”)

Coalition of University Employees, Local 6 v. Regents of the University of California (2006) PERB Dec. No. 1843-H (In order to establish a violation of the right to union representation, the charging party must demonstrate: (a) the employee requested representation, (b) for an investigatory meeting, (c) which the employee reasonably believed might result in disciplinary action; and (d) the employer denied the request; no unfair practice if the employee does not request union representation.)

Hartnell Community College Dist. (2015) PERB Dec. No. 2452-E. (Once an exclusive representative is selected by the employees, only that organization may represent bargaining unit employees in matters with the employer.)

Mauriello v. Bay Area Air Quality Management Dist. (2006) PERB Dec. No.1807-M. (Employer has no duty to inform the employee of the right to union representation.)

National Labor Relations Board v. Weingarten (1975) 420 U.S. 251. (Employee has right to insist on union representation at investigatory interview that employee reasonably believes may lead to discipline. During investigatory interview, employer may insist that employee, not representative, answer questions posed to him/her.)

Redwoods Community College Dist. v. Public Employment Relations Board (1984) 159 Cal.App.3d 617. (The right of representation under the act should only be granted, absent the discipline element, in highly unusual circumstances.)

Rio Hondo Faculty Assn., CTA/NEA v. Rio Hondo Community College Dist. (1982) PERB Dec. No. 260, 56 CPER 76. (PERB adopts “Weingarten rule”; denial of union representation at reprimand meeting violated employee’s right to participate in union activity and union’s representation rights under EERA.)

Robinson v. State Personnel Board (1979) 97 Cal.App.3d 994, CPER Special Reporting Series No. 10. (Employee has right to union representation at meeting with superiors, where the purpose is to investigate facts to support discipline, based on statutory right to representation.)

Steinert v. City of Covina (2006) 146 Cal.App.4th 458. (Brief questioning of a police officer by her supervisor did not constitute an interrogation entitling her to notice and a representative under the Public Safety Officers Procedural Bill of Rights Act when the supervisor’s subjective intent was not to discipline the officer during the conversation.)

Ulmschneider v. Los Banos Unified School Dist. (2007) PERB Dec. No. 1935 (No right to union representation if employer meets with the employee to read a letter of reprimand, where employer did not seek any information from the employee.)

Upland Police Officers Assn. v. City of Upland (2003) 111 Cal.App.4th 1294. (The Public Safety Officers Procedural Bill of Rights Act, which provides for representation of the officer’s choosing, is limited by a requirement of reasonableness and does not require rescheduling of hearings whenever the chosen representative is unavailable.)

D. Resources

Diamond, Steve, Kirsten Snow Spalding, and Lisa M. Vanderford-Anderson. Hey, the Boss Just Called Me Into the Office: The Weingarten Decision and the Right to Representation on the Job. Berkeley, CA: Center for Labor Research and Education, Institute of Industrial Relations, University of California, 2004.

Zerger, Kirsten L., et al., eds. California Public Sector Labor Relations, Chapter 15, 30. New York: Matthew Bender, looseleaf with annual supplements.

257National Labor Relations Board v. J. Weingarten, Inc. (1975) 420 U.S. 251, 261.

258Educational Employment Relations Act (school and community college district employees), Gov. Code sections 3543, 3543.1(a); Dills Act (state employees), Gov. Code sections 3515, 3515.5; Excluded Employees Bill of Rights Act (state employees), Gov. Code sections 3530, 3531; Higher Education Employer-Employee Relations Act, Gov. Code section 3565; Meyers-Milias-Brown Act (local government employees), Gov. Code sections 3502, 3503; Trial Court Employment Protection and Governance Act (court employees), Gov. Code sections 71631, 71633; Trial Court Interpreter Employment and Labor Relations Act (court interpreters), Gov. Code sections 71813, 71815; IHSSEERA, Gov. Code section 110022. The right is expressly stated for federal employees in the Federal Service Labor-Management Relations Statutes, 5 U.S. Code section 7114(a)(2)(B), for state and local peace officers in the California Public Safety Officers Procedural Bill of Rights Act, Gov. Code section 3303(i), and for fire fighters in the Firefighters Procedural Bill of Rights Act, Gov. Code section 3253(i). See Chapter 6 of this Pocket Guide for a discussion of PSOPBRA and FBOR.

259National Labor Relations Board v. J. Weingarten, Inc., supra, 420 U.S. 261

14. Self-Representation

A. Overview

“Self-representation” is the right of individual employees to represent themselves in all employments matters by presenting their own complaints or discussing employment issues with the employer without intervention by an employee organization. Even though a union has established the right to be the “exclusive representative” of all employees in a bargaining unit (meaning no other union can represent them), employees nonetheless have a statutory right to represent themselves or in some instances to have someone they choose represent them on individual matters.

The self-representation right is specified in the employment relations statutes governing state,260 local government,261 public school/community colleges,262 university,263 courts,264 court interpreters,265 in-home supportive services workers,266 and federal employees.267 However, the right is limited in several ways, and is not as broad as it may appear from reading the statutes.

First, if an exclusive representative exists, employees represented by that union may only raise individual concerns directly with their employer, but not concerns that affect the whole bargaining unit. For example, an employee may present complaints about unsafe working conditions as long as doing so does not undermine the union’s right to negotiate issues concerning workplace safety. In some instances, an employer may be required to notify the exclusive representative when an individual employee raises a concern that may impact negotiable matters.

The restriction on individuals’ rights to negotiate their own terms and conditions of employment has been clarified by court decisions and decisions of the Public Employment Relations Board (PERB) interpreting the statutes. The laws do not permit individual employees to negotiate their own employment contracts if they are represented by an exclusive employee organization, even if they are not dues paying members of that organization.268 To allow individual contracts would undermine the purpose of the laws, which is to promote stable employment relations through recognition of a single bargaining agent.

Second, although an individual has a right to bring a grievance, that employee may not have a right to control the process. The public employer and the union often negotiate limits and parameters on an individual’s opportunity to use the contract grievance procedure, such as prohibiting an individual from taking a grievance to binding arbitration without the union’s consent. The public employer and the union may establish reasonable guidelines and processes by which grievances must be submitted. The failure to follow these established protocols may invalidate the grievance.

Also, some statutes provide specific limitations: public school and higher education employees may represent themselves only up to the arbitration step of the grievance procedure; they must advise the union of their grievances; they may not reach a settlement that is inconsistent with the agreement; and the employer must notify the union of any proposed resolutions, so that the union has an opportunity to respond.269

Although the bargaining law covering the federal service recognizes the right to self-representation, it also recognizes the right of the exclusive representative to be present during any formal discussion between the agency and employees regarding any grievance, personnel policy or practice, or other condition of employment.270 Both the employees’ right to represent themselves and the union’s right to be present apply to the negotiated grievance procedure.

Third, employees are limited in their ability to choose an individual to represent them. They may seek to have another employee, or even an attorney, represent them in dealings with the employer. However, if the employee is part of a union that has been designated as the exclusive representative, the employee will be required to select a representative who is part of that union.271 An employee wishing to be represented by an individual not affiliated with the exclusive representative must clarify that the person is not in fact working for or acting on behalf of a rival employee organization.272

Also, a union may limit public school employees’ right to select an independent representative by negotiating provisions in the collective bargaining agreement that require that the chosen representative be approved by the union.273

B. Enforcement

Under the Educational Employment Relations Act, the Dills Act, the Higher Educational Employer-Employee Relations Act, the Meyers-Milias-Brown Act, the Trial Court Employment Protection and Governance Act, the Trial Court Interpreter Employment and Labor Relations Act, and the In-Home Supportive Services Employer-Employee Relations Act, a union’s or employer’s interference with employees’ rights to self-representation is considered an unfair practice, which can be remedied by filing a charge with PERB.274 For state and local employees outside of PERB’s jurisdiction, recourse may be through the courts or a local employee relations board. Interference with an employee’s right of self-representation is also an unfair labor practice under the federal statute, enforceable before the Federal Labor Relations Authority. Those local government employees and state employees who are not subject to PERB procedures may enforce their rights in court.

See the Introduction to Part II, above, for a general discussion of enforcement procedures before PERB, FLRA, and the courts.

C. Key Cases

California School Employees Assn. Chapter No. 504 v. Pleasant Valley School Dist. (1988) PERB Dec. No. 708, 79X CPER 12. (Employee has right to represent himself on work issue, such as safety, if not attempting to negotiate a condition of employment and undermine the exclusive representative’s position.)

Diablo Valley Federation of Teachers v. Mount Diablo Unified School Dist. (1977) PERB Dec. No. 44, 36 CPER 32. (Right of self-representation permits an employee to be represented by a friend or advisor, but that person may not be an agent of an employee organization other than the exclusive representative, which is the only organization permitted to represent employees in the bargaining unit.)

Fleck v. Chaffey Joint Union High School Dist. (1982) PERB Dec. No. 202, 53 CPER 45. (Employee’s right to self-representation is not absolute; although EERA section 3543 states employees can present grievances without union intervention, the employer can negotiate a grievance procedure permitting only the exclusive representative to designate who represents the grievants.)

Hartnell Community College Dist. (2015) PERB Dec. No. 2452-E. (Under the EERA, once a union has been designated as the exclusive representative, members may only select representation designated by that union. To allow individual members to select representatives from other unions would cause instability between the employer and the exclusive representative and impact labor relations.)

Internal Revenue Service v. Federal Labor Relations Authority (9th Cir. 1983) 706 F.2d 1019. (Right of union to be present at employee grievances does not include federal employee’s EEO conciliation conference where employee elected to pursue the statutory remedy for discrimination unless there is a formal grievance involving general employment conditions.)

Lillebo v. Davis (1990) 222 Cal.App.3d 1421, 84X CPER 5. (Although Dills Act recognizes individuals’ right to represent themselves, state employer has no duty to negotiate with them regarding conditions of employment, since that duty is owed only to the exclusive representative; thus, the right to self-representation does not excuse employees from paying fair share fees to defray union’s bargaining expenses.)

Mauriello v. Bay Area Air Quality Management Dist. (2006) PERB Dec. No. 1807-M (Employee has no standing to allege claims of unilateral implementation or violation of collective bargaining agreement.)

Quarrick and O’Brien v. Mount Diablo Unified School Dist. (1978) PERB Dec. No. 68, 39 CPER 57. (Right to self-representation does not include right to use the negotiated grievance arbitration procedure; exclusive representative may reserve the right to represent employees in arbitration.)

Relyea v. Ventura Co. Fire Protection Dist. (1992) 2 Cal.App.4th 875, 92 CPER 17. (Self-representation right under MMBA is limited to presenting individual grievances; does not include right to meet and confer with employer on terms of employment; duty to negotiate is owed only to exclusive representative.)

D. Resources

Liebert, John, and Mildred Collins. “Do Individuals Have Bargaining Rights Under the Meyers-Milias-Brown Act?” California Public Employee Relations, No. 85 (June 1990), pp. 2-6.

Vendrillo, Carol. Pocket Guide to Unfair Practices: California Public Sector (5th edition). Berkeley, CA: CPER, University of California (2013), http://cper.berkeley.edu.

Zerger, Kirsten L., et al., eds. California Public Sector Labor Relations, Chapters 15 and 32. New York: Matthew Bender, loose leaf with annual supplements.

260Dills Act, Gov. Code sections 3512 et seq., sections 3515 and 3515.5. Supervisory state employees excluded from Dills Act are granted the right of self-representation in Gov. Code section 3531, a provision of the Excluded Employees Bill of Rights Act (EEBRA), Gov. Code sections 3525 et seq.

261Meyers-Milias-Brown Act (MMBA), Gov. Code sections 3500 et seq., sections 3502 and 3503.

262Educational Employment Relations Act (HEERA), Gov. Code sections 3540 et seq., section 3543.

263Higher Education Employer-Employee Relations Act (HEERA), Gov. Code sections 3560 et seq., section 3567.

264Trial Court Employment Protection and Governance Act, Gov. Code sections 71600 et seq., sections 71631, 71633.

265Trial Court Interpreter Employment and Labor Relations Act, Act, Gov. Code sections 71800 et seq., section 71813.

266 In-Home Supportive Services Employer-Employee Relations Act, Gov. Code section 110022.

267Federal Service Labor-Management Relations Statute, 5 U.S. Code sections 7101 et seq., sections 7114(a)(5)(B) and 7121(b)(1)(C)(ii).

268Lillebo v. Davis (1990) 222 Cal. App. 3d 1421, 1445-1446.

269EERA, Gov. Code section 3543; HEERA Gov. Code section 3567.

2705 U.S. Code sections 7114(a)(2)(A), 7121(b)(1)(C)(ii); but see Internal Revenue Service v. Federal Labor Relations Authority (9th Cir. 1983) 706 F.2d 1019 (right does not extend to EEOC precomplaint conferences), in the Key Cases section, below.

271See Hartnell Community College Dist. (2015) PERB Dec. No. 2542-E.

272See Diablo Valley Federation of Teachers v. Mount Diablo Unified School Dist. (1977) EERB Dec. No. 44, 2 PERC Para. 2048; Lubnau v. Santa Ana Unified School Dist. (1978) PERB Dec. No. 73, 2 PERC Para. 2201.

273Fleck v. Chaffey Joint Union High School Dist. (1982) PERB Dec. No. 202, 6 PERC Para.13077.

274EERA, Gov. Code sections 3543.5, 3543.6; Dills Act, Gov. Code sections 3919, 3519.5; HEERA, Gov. Code sections 3571, 3571.1; MMBA, Gov. Code sections 3506, 3506.5; Trial Court Act, Gov. Code section 71635.1; Court Interpreter Act, Gov. Code section 71822; IHSSEERA, Gov. Code sections 110022, 110026.

15. Duty of Fair Representation

A. Overview

The “duty of fair representation” refers to the union’s duty to fairly and impartially represent all employees in the bargaining unit in activities the union is statutorily obligated to perform. Primarily, the duty covers negotiating with the employer over terms of a collective bargaining agreement and enforcement of the agreement through processing grievances.

The duty, often called “the DFR,” is imposed on a union that is recognized or certified as the “exclusive representative” of a bargaining unit. Because employees in the bargaining unit can only be represented by that one union, the duty has been created to assure that the union represents everyone fairly, regardless of membership in the union or other considerations, such as race, sex, political affiliation, or internal union politics.

The DFR generally does not extend to union representation outside of the collective bargaining contract (such as in court or administrative proceedings, including personnel or civil service hearings), since such proceedings are not under the union’s exclusive control and the employee can obtain other representation. However, a duty may arise once the union voluntarily undertakes such representation.

1. Duty imposed by statute

The DFR is explicitly imposed by state employment relations statutes governing state,275 public school,276 and higher education269277 employees, and supervisory employees who work for the Los Angeles County Metropolitan Transportation Authority.278 A similar protection is granted to federal employees.279

However, the statutes governing local government, court, and in-home supportive services employees do not expressly impose a duty of fair representation.280 Although courts are divided over whether the DFR exists, most court decisions, as well as the Public Employment Relations Board, have held that the duty of fair representation is implied and therefore does exist. In cases interpreting the Meyers-Milias-Brown Act, courts held that because the statute provides for exclusive representation, the DFR is implied under the MMBA.281 PERB has reached the same conclusion.282 Likewise, another court held that a duty was implied in a public transit district’s labor relations statute.283 Yet another court held that an obligation “akin” to the duty of fair representation may arise when an employee organization voluntarily agrees to represent an employee, even though it is not legally required to do so.284 However, another court found that the MMBA does not imply a DFR in the absence of exclusive representation.285

2. Conduct that breaches the DFR

A union violates the DFR only if its conduct is arbitrary, discriminatory, or in bad faith.286 While each statute defines the duty somewhat differently, courts and agencies have for the most part interpreted it similarly, and allow unions to exercise reasonable discretion in carrying out their duties.

“Arbitrary conduct” may be found if the union’s decision had no rational basis or was based on very poor judgment, or if the union simply demonstrated a lack of effort to carry out its duties. The union’s misconduct need not be intentional, but in most cases more than mere negligence is required. For example, one instance of failing to take a grievance to the next step within the time limit probably will not amount to arbitrary action, but a pattern of careless representation may create a breach of the DFR.287

“Discriminatory conduct” occurs if the union’s representation of one employee or group is unfair in relation to how it has represented others. For example, if a union refuses to take a grievance to arbitration, but pursues similar grievances on behalf of other employees without a reasonable basis for different treatment, it may have breached its duty. Discriminatory representation may be based on race, gender, or some other category protected by anti-discrimination statutes, or it may be because the employee is not a union member or has spoken out against the union.

“Bad faith” is found when a union intentionally harms employees by acting unfairly in carrying out its representational duties.

The standard for determining whether a union has breached the DFR differs, depending on whether the action involved grievance processing or bargaining duties.288

Grievance processing. The duty may be breached in grievance processing if the union, for an impermissible reason, does not pursue a grievance. Generally, a union may refuse to pursue a grievance or stop short of arbitration without breaching the DFR if its decision is based on an honest, reasonable determination that the grievance lacks merit or may be unlikely to succeed before an arbitrator.289 In analyzing whether the union had an honest, reasonable belief that the grievance lacked merit, both the courts and PERB will not assess whether the union’s decision was correct, but rather whether the union’s decision “had a rational basis, or was reached for reasons that were arbitrary or based upon invidious discrimination.”290

In addition, the burden is on the member claiming a breach of the DFR to demonstrate that the union lacked such a basis. The courts and PERB have granted unions considerable discretion to determine the merits of a particular grievance or unfair practice charge. Even if the employee pursues the case without union representation and wins, the union may not have violated the DFR, as long as its judgment was honest and reasonable. `

Even if a grievance clearly has merit, the union may refuse to pursue it if the union determines that taking action would not be in the best interest of the bargaining unit as a whole.291 The union may consider the costs of going to arbitration in reaching that decision.

The union may refuse to pursue a grievance without breaching the DFR if the employee has missed deadlines. When a union declines to pursue a grievance, a DFR charge may be avoided if a reasonable explanation for its decision is given to the grievant. A union may file a grievance and later withdraw the grievance if facts come to light that demonstrate the grievance is without merit.

A breach may occur if the union commits significant errors in processing the grievance, causing injury to the grievant, such as failing to make key arguments or introduce important evidence at the arbitration hearing, repeatedly missing deadlines, inadequately handling an investigation, or failing to inform the grievant of appeal rights. While an isolated instance of negligence or failure to raise every argument at arbitration would not breach the DFR, a particularly egregious mistake or a combination of errors might.

Bargaining. In general, the courts and labor relations agencies grant unions much wider discretion in carrying out bargaining duties than in processing grievances. It is more difficult to prove that the union breached the DFR when it was negotiating a contract or strike settlement because unions must have the ability to compromise during negotiations in order to reach a settlement.

The courts will not require the union to justify every bargaining decision or satisfy the interests of all unit members. The mere failure to propose a particular issue at the bargaining table or to negotiate a particular term into the agreement ordinarily will not amount to a breach of the DFR, even though the issue was of importance to certain employees in the unit.

However, the union may violate the DFR if negotiating a particular contract provision was clearly without a rational basis and harmed unit employees. For example, negotiating a provision that waives employees’ constitutional or important statutory rights may breach the DFR.292 Nonetheless, because a union has wide latitude in contract negotiations, it is not required to satisfy all union members, and is not barred from entering into a contract that negatively impacts some union members.

The duty of fair representation does not extend to how a union conducts its own internal affairs, but only to matters that affect the relationship between the employees and the employer. For example, a union is not required to give notice to bargaining unit members before presenting each contract proposal in negotiations, nor is it required to include employees who are not union members in a contract ratification vote or in meetings at which new contract terms are presented.

However, PERB has held that the DFR requires some consideration of the views of unit employees and some means for communicating those views.293 A breach may occur if the union fails, before the close of negotiations, to communicate with employees about a proposal that would have a substantial impact on the employees’ relationship with the employer. The obligation may be fulfilled by distributing written materials to all employees or by making regular announcements regarding the status of negotiations.

B. Enforcement

Employees may be required to exhaust internal union complaint procedures before filing a charge with PERB or a complaint in court. However, if the employee can show that the union’s procedure clearly would be futile or the remedy inadequate, this step may not be necessary.

Under the state, public school, higher education, local government, trial court, court interpreter, local agency, and in-home supportive services bargaining statutes administered by PERB, a violation of the DFR is an “unfair practice” by the union and may be remedied by filing a charge with PERB.

Employees not under PERB’s jurisdiction may challenge a union’s action by filing a lawsuit. Local government employees also should check whether a local ordinance or charter provision governing employment relations provides an express DFR.

Federal employees alleging a DFR breach must file an unfair practice charge with the Federal Labor Relations Authority (FLRA).

PERB, the courts, or the FLRA may remedy a DFR breach by ordering the union to process a grievance, granting a make-whole monetary award, issuing a cease and desist order, and/or requiring the union to post the ruling that it has violated its duty to fairly represent employees. A remedy calling for back pay may be complicated if both the union and the employer are at fault, such as where the employer wrongfully discharged an employee and the union breached its DFR in pursuing the employee’s grievance.

See the Introduction to Part II for a discussion of enforcement procedures through PERB, the courts, FLRA, or grievance arbitration.

C. Key Cases

Anderson v. California Faculty Assn. (1994) 25 Cal.App.4th 207 (Because the duty of fair representation is defined in HEERA as an unfair practice claim, PERB has exclusive jurisdiction over any such dispute.)

Alexander v. Fontana Teachers Assn. (1984) PERB Dec. No. 416E, 63X CPER 11. (Union afforded nonmembers sufficient notice of negotiation proposals by distributing negotiation surveys and information to all bargaining unit members and presenting repeated oral updates.)

Antilles Consolidated Education Assn. (1990) 36 FLRA 776. (The Federal Labor Relations Authority uses a two-step analysis to assess allegations that a union violated the DFR by discriminating on the basis of union membership. First, the FLRA determines whether the union’s disputed activities were undertaken in the union’s role as exclusive representative. Second, the FLRA determines whether the union discriminated on the basis of union membership.)

Bramell v. San Francisco Classroom Teachers Assn. (1984) PERB Dec. No. 430, 64 CPER 56. (More than mere negligence is required to breach DFR; cumulative errors, inaction, and faulty explanations together may demonstrate breach.)

Chestangue v. San Francisco Classroom Teachers Assn. (1985) PERB Dec. No. 544, 67X CPER 15. (Union does not owe DFR unless it is the exclusive representative and is the exclusive means to seek a remedy; union not required to provide representation in judicial or administrative proceedings to enforce statutory rights.)

Council of School Nurses v. Los Angeles USD (1980) 113 Cal.App.3d 666, 48 CPER 42. (PERB has exclusive jurisdiction over DFR enforcement; violations may not be litigated in court.)

DeFrates v. Mount Diablo Education Assn. (1984) PERB Dec. No. 422, 63X CPER 13. (No DFR breach where union agreed to eliminate a benefit for a small number of employees to gain a benefit for a larger number.)

Faeth v. Redlands Teachers Assn. (1978) PERB Dec. No. 72, 39 CPER 58. (Employee organization may exercise considerable discretion in conduct of negotiations; no violation when union does not go to impasse unless the decision is arbitrary, discriminatory, or bad faith conduct.)

Forslund v. Saddleback Valley Educators Assn. (1990) PERB Dec. No. 828, 86 CPER 68. (No DFR breach where union refused to pursue grievance, since decision based on honest, reasonable determination that grievance lacked merit.)

Golden v. Local 55, IAFF (9th Cir. 1980) 633 F.2d 817, 48 CPER 54. (The court inferred a DFR in MMBA because another court had found DFR implied in the state Agricultural Labor Relations Act, which is comparable to MMBA.)

Gorcey v. Oxnard Educators Assn. (1988) PERB Dec. No. 664, 77 CPER 86. (A union may breach the DFR by negotiating a provision that would waive employees’ statutory rights, and also by failing to communicate a contract proposal to employees before the close of negotiations.)

Jones v. Omnitrans (2004) 125 Cal.App.4th 273. The court found that, although the MMBA does not explicitly provide that employee organizations have a duty to their members of fair representation, courts recognize that any labor organization which acts as the exclusive representative of its members has such a duty. See also Lerma v. D-Arrigo Bros. (1978) 77 Cal.App.3d 836, 44 CPER 5, note 11 (The court inferred a duty of fair representation where the union was the exclusive collective bargaining agent even though no statute provided that the union was the exclusive agent.)

Kimmett v. SEIU Loc. 99 (1979) PERB Dec. No. 106, 44 CPER 56. (Charge involving internal union affairs is not DFR claim; is outside PERB jurisdiction unless activity has substantial impact on employees’ relationship with employer.)

Lane v. IUOE Stationary Engineers, Loc. 39 (1989) 212 Cal.App.3d 164, 82 CPER 22. (Union has duty akin to DFR where it voluntarily undertook to represent a nonmember employee in a matter not arising under the collective bargaining agreement.)

Linn v. San Francisco Classroom Teachers Assn. (1984) PERB Dec. No. 444 (PERB standard for a prima facie case of the breach of DFR is (1) the union acted in its capacity as the exclusive bargaining unit, and (2) the union’s conduct was arbitrary, discriminatory, or bad faith.)

McElwain v. Castro Valley Teachers Assn. (1980) PERB Dec. No. 149, 48 CPER 65. (Grievance with arguable merit can be rejected without breaching DFR if victory would damage terms and conditions for bargaining unit as a whole.)

Paulson v. International Brotherhood of Teamsters (2011) 193 Cal.App.4th 823. (The court found a duty of fair representation under the MMBA, at least as to bargaining over the terms and conditions of employment by an exclusive representative. PERB has exclusive initial jurisdiction over the dispute.)

Romero v. Rocklin Professional Teachers Assn. (1980) PERB Dec. No. 124, 45 CPER 82. (DFR implied in EERA; PERB adopts standard for breach — conduct must be arbitrary, discriminatory, or in bad faith; greater discretion allowed in bargaining than in grievance processing.)

Service Employees International Union Local 721 (2015) PERB Dec. No. 2462-C (A DFR is the “quid pro quo for the granting of exclusive representational rights to employee organizations,” and such a duty exists under the TECPGA.)

Vaca v. Sipes (1967) 386 U.S. 171, 44 CPER 3, at note 4. (Landmark private sector case establishing DFR, holding that arbitrary, discriminatory, or bad faith conduct breaches the duty.)

Willis v. El Centro Elementary Teachers Assn. (1982) PERB Dec. No. 232, 55 CPER 67. (DFR requires consideration of views of various groups of employees and means for communicating those views, but act does not require formal procedures.)

D. Resources

Bogue, Bonnie G., Carol Vendrillo, David Bowen, and Eric Borgerson. Pocket Guide to the Educational Employment Relations Act (9th edition). Berkeley, CA: CPER, University of California (2016), http://cper.berkeley.edu

Bogue, Bonnie G., Marla Taylor, Carol Vendrillo, and Eric Borgerson. Pocket Guide to the Meyers-Milias-Brown Act (16th edition). Berkeley, CA: CPER, University of California (2016), http://cper.berkeley.edu.

D’Orazio, Fred, Kristin Rosi, Howard Schwartz. Pocket Guide to the Ralph C. Dills Act (3rd edition). Berkeley, CA: CPER, University of California (2013), http://cper.berkeley.edu.

Vendrillo, Carol. Pocket Guide to Unfair Practices: California Public Sector (5th edition). Berkeley, CA: CPER, University of California (2013), http://cper.berkeley.edu.

Zerger, Kirsten L., et al., eds. California Public Sector Labor Relations, Chapter 32. New York: Matthew Bender, 1989 and annual supplements.

275Dills Act, Gov. Code section 3515.7(g).

276Educational Employment Relations Act, Gov. Code section 3544.9.

277Higher Education Employer-Employee Relations Act, Gov. Code sections 3571.1(e), 3578.

278Public Utilities Code section 99564.5

2795 U.S. Code section 7114(a)(1).

280Meyers-Milias-Brown Act, Gov. Code sections 3500 et seq., governing city, county, and special district employees. Transit district employees are governed by separate labor relations provisions in the Public Utilities Code. See Trial Court Employment Protection and Governance Act, Gov. Code sections 71600 et seq., governing court employees; Trial Court Interpreter Employment and Labor Relations Act, Gov. Code sections 71800 et seq., governing court interpreters.

281Jones v. Omnitrans (2004) 125 Cal.App.4th 273. The court found that, although the MMBA does not explicitly provide that employee organizations have a duty to their members of fair representation, courts recognize that any labor organization which acts as the exclusive representative of its members has such a duty. See also Lerma v. D-Arrigo Bros. (1978) 77 Cal.App.3d 836, 44 CPER 5, note 11 (The court inferred a duty of fair representation where the union was the exclusive collective bargaining agent even though no statute provided that the union was the exclusive agent.) See also Paulson v. International Brotherhood of Teamsters (2011) 193 Cal.App.4th 823.

282Attard v. International Association of Machinists (2002) PERB Dec. No. 1474-M, 153 CPER 75.

283Logan v. Southern California Rapid Transit Dist. (1982) 136 Cal.App.3d 116, 55 CPER 13.

284Lane v. IUOE Stationary Engineers, Loc. 39 (1989) 212 Cal.App.3d 164, 82 CPER 22.

285Andrews v. Board of Supervisors of Contra Costa Co. (1982) 134 Cal.App.3d 274, 55 CPER 17.

286The U.S. Supreme Court has applied this standard in private sector cases under the National Labor Relations Act. (See Vaca v. Sipes in Key Cases section, below.) That standard appears in provisions of the Dills Act, HEERA and TEERA. While EERA does not contain language incorporating the same standard, the Public Employment Relations Board and the courts nonetheless have applied it in EERA cases. (See Romero v. Rocklin Professional Teachers Assn. (1980) PERB Dec. No. 124, 45 CPER 82, below.)

287Bramell v. San Francisco Classroom Teachers Assn. (1984) PERB Dec. No. 430E, 64 CPER 56.

288Determining whether a DFR breach has occurred involves case-by-case factual inquiry. Some generally applicable principles that may be gleaned from existing case law are discussed here. See Key Cases, below, for cases establishing these principles.

289Forslund v. Saddleback Valley Educators Assn. (1990) PERB Dec. No. 828, 86 CPER 68.

290United Teachers of Los Angeles (Adams) (2009) PERB Dec. No. 149.

291McElwain v. Castro Valley Teachers Assn. (1980) PERB Dec. No. 149, 48 CPER 65.

292Gorcey v. Oxnard Educators Assn. (1988) PERB Dec. No. 664, 77 CPER 86.

293Willis v. El Centro Elementary Teachers Assn. (1982) PERB Dec. No. 232, 55 CPER 67.

16. Organizational Security Arrangements

A. Overview

“Organizational Security Arrangements” refer to the requirement that employees financially support the union that represents them. Employee organizations may negotiate a provision requiring employees to pay either union dues or a service fee to cover the cost of representation. These security arrangements are the method by which the union obtains financing to carry out its representational obligations to the employees.

Union or organizational security arrangements are based on the fact that a union that has been designated by the majority of employees to be the “exclusive representative,” is required to fairly represent every employee in the bargaining unit (and is subject to a claim of a violation of the duty of fair representation), whether they are union members or not.294 Such arrangements assure that there are no “free riders” — employees who obtain the benefits of representation without contributing to the cost of securing those benefits.

An employee organization’s right to demand that all bargaining unit members share the cost of representation is balanced against individual employees’ First Amendment right to refuse to participate in a union or support activities to which they are politically or ideologically opposed. Although current legal challenges exist on this issue, past U.S. Supreme Court decisions have ruled that union security arrangements are constitutional because they further the government’s interest in promoting labor peace by stabilizing union-management relationships.295

1. Types of union security

The employment relations statutes authorize a variety of organizational security arrangements. Agency shop and maintenance of membership clauses are authorized by the Dills Act, the Educational Employment Relations Act, and the Higher Education Employment Relations Act.296 Agency shop clauses are authorized by the Meyers-Milias-Brown Act, Trial Court Employment Protection and Governance Act, Trial Court Interpreter Employment and Labor Relations Act, the Los Angeles County Metropolitan Transportation Authority Employer-Employee Relations Act, and the In-Home Supportive Services Employer-Employee Relations Act.297 The Excluded Employees Bill of Rights does not provide for any organizational security. The Federal Labor Relations Act does not provide for organizational security other than dues deduction.298 While most transit district statutes are silent regarding organizational security arrangements, at least one court has held that agency fee arrangements may be implemented through the collective bargaining process.299 Organizational security arrangements can be implemented as a result of collectively bargained agreements,300 elections following a petition process,301 employee organization request,302 and legislative direction.303

Agency shop. The most common type of public sector organizational security is the “agency shop,” sometimes referred to as a “fair share” requirement.

An agency shop clause requires all bargaining unit members, as a condition of continued employment, either to join the union or to pay a service fee (agency or fair share fee) to cover the union’s expense of carrying out its representation duties. Employees usually must begin to pay the fee within a specified number of days after beginning employment, either through payroll deduction or directly to the employee organization.

Union shop. Unlike in the private sector, statutes governing public employees do not permit “union shop” clauses that require union membership and payment of full union dues. In both the public and private sectors, “closed shops” (requiring employees to join the union before they can be hired) have been deemed unconstitutional.

Maintenance of membership. Although employees cannot be required to join a union, the union may require anyone who voluntarily joins to continue membership for a specified period of time, generally for the duration of the collective bargaining agreement. Statutes authorizing such clauses may require that employees be given a “window period,” often 30 days before the expiration of the agreement, during which they may drop membership.304

Dues deduction. Payroll deduction of union dues (sometimes called “check-off”) is another mechanism that helps a union maintain financial security, but one that does not affect nonmembers. It saves the union the expense of collecting dues and assures prompt and regular payment. The employee relations statutes grant unions the right to have the employer deduct union members’ dues from their paychecks, with authorization from the individual, and to forward the money to the union.305 In most instances, only the exclusive representative may have dues deducted from bargaining unit members. (Employees who are not in a represented unit usually may have dues deducted for the organization of their choice.)

2. Objectors and challengers

In Abood v. Detroit Board of Education,306 the United States Supreme Court held that to the extent an agency fee agreement is used to finance union expenditures “for the purposes of collective bargaining, contract administration, and grievance adjustment,” it is constitutionally valid. However, the court also held that a union may not constitutionally compel objecting agency fee payers to contribute to a union’s expenditures “for the expression of political views, on behalf of political candidates, or towards the advancement of other ideological causes not germane to its duties, as that would impinge on that employee’s First Amendment rights by compelling them to support political speech.”307 These objecting agency fee payers, or commonly referred to as “objectors,” are entitled to pay a reduced fee covering only chargeable expenses.

This arrangement, which has been in effect since the 1977 decision in Abood, struck a balance between an individual employee’s First Amendment right to refuse to participate in a union or support activities to which they are politically or ideologically opposed and the union’s obligation, as the exclusive representative, to represent the member in matters impacting the terms and conditions of employment. However, there have been numerous challenges of late to this arrangement and it is anticipated that the U.S. Supreme Court will revisit its decision in Abood. The primary argument against agency fee agreements is that they are unconstitutional, in that any requirement of an employee to pay any portion of his or her dues violates that employee’s First Amendment rights by compelling that employee to engage in “speech” in violation of the employee’s Free Speech. The argument is founded upon the premise that there is significant overlap between collective bargaining and political activities and that the line between the two is unidentifiable.

“Challengers” are those employees who believe that the union was wrong in its calculation of the portion of its budget going for chargeable expenses. They may exercise their right to challenge the amount of the fee. (See discussion of procedures, below.)

Special protections exist for nonmembers who belong to religious organizations that forbid union membership or financial support. Such “conscientious objectors” may be required to contribute an amount equivalent to the service fee to a charitable organization in lieu of paying a service fee to the union. However, if they use the grievance and arbitration procedure, they may be required to pay the union for the cost of doing so.

3. Procedural requirements

Unions must establish procedures that ensure nonmembers an opportunity to object to paying any part of the fees they believe falls outside the union’s representational obligations. These commonly are called “Hudson procedures” because they were defined by the U.S. Supreme Court in Chicago Teachers Union v. Hudson case.308

The Public Employment Relations Board (PERB) has adopted agency fee rules that satisfy the constitutional requirements.309 Employee organizations may adopt these procedures to assure compliance. All exclusive representatives that have agency fee provisions must use PERB procedures regarding objecting to and challenging chargeable fees.310

Local government employee organizations that are not subject to PERB rules may adopt similar internal procedures to satisfy Hudson.

Under PERB rules, the union first must send an advance notice, commonly referred to as a Hudson notice, to all nonmembers explaining how it has established the amount of the fee. The notice can be sent at the same time payroll deductions begin if the entire fee is set aside in an account the union cannot access (placed in escrow) until objectors are given a chance to challenge the fees. The notice must describe the challenge procedure.

In Knox v. Service Employees Intern. Union, Local 1000,311 the United States Supreme Court held that a union violated nonmembers’ First Amendment rights by collecting a “special assessment” in dues from all employees, spending those dues on nonchargeable events, and failing to issue nonmembers an updated or new Hudson notice.

Second, the union must give nonmembers an opportunity to challenge the fee amount before an impartial decisionmaker. PERB regulations require that the union contact either the American Arbitration Association or the California State Mediation Service, which in turn, will select the person to arbitrate the matter.312

Union members do not have the right to object to the dues set by the union; only nonmembers may object on the ground that they are being compelled to support an organization in violation of their First Amendment freedom of association.

The burden is on nonmembers to object to the fees, either to avoid paying for nonchargeable expenses or to demand an impartial review to establish the correct amount. If they do not object, they waive their constitutional right and the union may deduct the full amount. Once a challenge is made, the burden is on the union to justify the fees.

Third, the union may not spend the fees while a challenge is pending. Although the whole fee may still be deducted from the nonmember’s paycheck or assessed directly, the disputed amount must be held in escrow until the challenge is resolved.

Rescission of agency shop. Agency shop arrangements under the Dills Act, EERA, HEERA, MMBA, TCEPGA, TCIELRA, TEERA, and IHSSEERA may be rescinded by a majority vote of the employees in the unit covered by the agency fee.313 As a condition of holding a rescission election, each of these statutes requires that a petition be submitted which contains the signatures of at least 30 percent of the employees in the covered unit. Generally, no more than one vote may be held during the term of a collective bargaining agreement.

4. Fee amount and usage

An agency fee usually is less than regular union dues and covers only “chargeable” expenses. These are expenses the union incurs in carrying out its representation obligations, such as administrative costs (i.e. the costs of doing business), collective bargaining, and contract administration. Employees’ First Amendment rights are violated if they are made to pay fees covering “nonchargeable” costs, such as for union political or ideological activities, members-only benefits, or other activities not directly related to the union’s representation duties.

Some unions set fees equivalent to union dues and do not reduce them to cover only chargeable amounts unless the nonmember objects to paying for nonchargeable activities. Other unions set fees to cover only what they have determined to be chargeable expenses. The line between chargeable and nonchargeable expenses is not always clear and is subject to challenge.

Activities that clearly fall within the union’s representation duties include contract negotiations, grievance processing, arbitration or litigation to enforce the agreement, strikes or other concerted activity (even if the strike is declared illegal), and administrative expenses, such as salaries and rent for offices.

Disputes have arisen over other areas that may benefit employees in the bargaining unit but fall outside the representation obligations that the employment relations statutes have placed on exclusive representatives. The Supreme Court has developed a three part test to determine whether an expense is chargeable: (1) whether the charge is germane to collective bargaining activity; (2) whether the charge is justified by the interest in avoiding a “free-rider” problem; and (3) whether the charge is allowed only for activities which do not significantly add to the burdening of free speech. Under this test, the courts have resolved the following problem areas.

Lobbying and campaigning. As explained above, the First Amendment prohibits the use of fair share fees for lobbying by a public employee organization, unless the organization is seeking ratification of a collective bargaining agreement or an appropriation to finance the agreement. Use of agency fees to campaign for political candidates is not permitted.

In addition, the EERA does not allow employee organizations to charge nonmembers for most lobbying or political campaigning. However, this statute was amended in 2000 to allow lobbying that fosters collective bargaining activity and contract administration or secures advantages regarding the terms and conditions of employment.314

State and university employee unions have a broader right to lobby than do other public employee unions because the employment conditions often are defined by statute and are more directly related to the state political process. The Dills Act, which applies to state employees, expressly allows nonmembers to be charged for lobbying the legislature to foster policy goals on matters germane to negotiations, contract administration, and state employee benefits; the courts have found that such lobbying is constitutional.315

Organizing new members. Organizing new union members is not a chargeable expense, even if the result may benefit employees in the bargaining unit.

Union newsletters. The cost of producing and mailing union publications is chargeable, but only the portions of the publication devoted to union activities that are themselves chargeable. If unions include publication costs in their chargeable expenses, they must calculate what percentage covers permissible topics.

Union social activities. Activities that are essential to the union’s discharge of its duties, such as union meetings or conferences, workshops, and planning sessions, as well as activities that attract individuals to organizing and recruiting functions, are chargeable. Purely social events are chargeable because they are sufficiently related to union business in that these activities create a harmonious environment.

Litigation. Legal expenses are chargeable only if the case directly involves the bargaining unit and is related to the union’s representational obligations, such as to enforce an arbitration award or pursue an unfair practice charge. For example, the cost of bringing an employment discrimination claim on behalf of a unit member is not chargeable because the union’s representation duty does not include enforcing rights arising under anti-discrimination statutes, civil service provisions, or the Constitution.

Expenses of affiliates. Dues that go to the local union’s state or national affiliate (such as the California Teachers Association or National Education Association, to which a local teacher’s union may belong) to support their representational (non-political) activities are chargeable.

B. Enforcement

Unions may enforce agency shop and maintenance of membership arrangements through automatic payroll deductions authorized by statute. Where fees are not deducted and employees are required to pay directly to the union, payment may be compelled by a provision making compliance a condition of continued employment. In other words, the union may demand that the employer fire employees who fail to pay the fees. Even though the statutes may define agency fee payment as a condition of employment, the union may sue employees to collect the fees, rather than seek an employee’s termination, if the agreement permits that alternative. If the employer fails to deduct fees, the union may seek enforcement of the agreement against the employer.

Employees’ rights to object or challenge is usually provided for in the union’s internal procedure or in PERB’s rules. In addition, employees subject to PERB’s jurisdiction may file an unfair practice charge with PERB to claim violation of the organizational security provisions in the employment relations statutes, although the union’s agency fee appeal procedure may have to be exhausted first.

Nonmembers also may file a lawsuit claiming a First Amendment violation if they believe the fee amount or procedure does not meet constitutional standards. They can seek an injunction halting fee collection until the claims are resolved. Generally, employees must exhaust all available administrative remedies before going to court.316

C. Key Cases

Abood v. Detroit Board of Education (1977) 431 U.S. 209, 34 CPER 2. (Agency fee arrangements do not violate First Amendment; public sector unions may collect fees for representational services, such as collective bargaining, contract administration, and grievance processing, but not for political or ideological activities.)

Chicago Teachers Union v. Hudson (1986) 475 U.S. 292, 68X CPER 1. (First Amendment requires procedures to assure agency fees cover only chargeable expenses and for hearing objections by nonmembers.)

Cumero v. King City Joint Unified High School Dist. Assn. (1982) PERB Dec. No. 197, CPER Special Reporting Series No. 20. (Agency fees can be used for union administrative expenses, litigation costs for defending unfair practices, social activities with a representation purpose, union benefits available to nonmembers, publications related to representation activities, and dues to affiliated organizations. Other holdings overruled by below.)

Cumero v. Public Employment Relations Board (1989) 49 Cal.3d 575, 83 CPER 62. (Under EERA, objecting nonmembers may not be charged for lobbying unless it affects employer resources within the scope of representation, campaigning for political candidates or parties, or organizing new members outside the bargaining unit; fees can be used to pay dues to state and national affiliates.)

Davenport v. Washington Education Assn. (2007) 551 U.S. 177 (Union’s First Amendment rights are not violated when a state requires that its public sector labor unions receive affirmative authorization from a nonmember before spending that nonmember’s agency shop fees for election-related purposes.)

Ellis v. Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, et al. (1984) 466 U.S. 435, 61 CPER 57. (First Amendment permits agency fees to be used for representational purposes by private sector unions, including costs of litigating bargaining-related cases [but not discrimination cases], union conventions and social activities, publications devoted to representational activities of the union; but fees may not be used for organizing outside the bargaining unit.)

Grunwald v. San Bernardino City Unified School Dist. (9th Cir. 1993) 994 F.2d 1370, 100 CPER 47. (Union may collect fees from nonmembers in an amount equivalent to dues and place in escrow until fee payers have opportunity to request refund of portion not used for chargeable expenses.)

Kidwell v. Transportation Communications International Union (4th Cir. 1991) 946 F.2d 283, cert. denied 112 S.Ct. 1760. (Union members do not have constitutional right to object to the uses of union dues.)

Lehnert v. Ferris Faculty Assn. (1991) 500 U.S. 507, 89 CPER 12. (Established test for determining permissible uses of agency fees. Permissible uses include sending union delegates to state and national conventions, expenses of the national parent union if for chargeable activities of other member organizations, preparing for an illegal strike, and lobbying and political activities directly related to bargaining. Nonchargeable expenses include securing funds for education, publications covering nonrepresentational matters, and promoting the teaching profession.)

Lillebo v. Davis (1990) 222 Cal.App.3d 1421, 84X CPER 5. (Lobbying state legislature on terms and conditions of employment for state employees or other representation-related policies is a cost chargeable over objections of nonmembers.)

D. Resources

Albey, Rhonda. “Agency Shop in 10 Easy Steps.” California Public Employee Relations, No. 128 (February 1998), pp. 3-10.

American Arbitration Assn. Rules for Impartial Determination of Union Fees. New York: American Arbitration Assn.

Annotation: Union Security Arrangements in State Public Employment, by Wayne F. Foster, 95 ALR 3d 1102.

Annotation: Validity of Union Procedures for Fixing and Reviewing Agency Fees of Nonunion Employees Under Public Employees Representation Contract — Post Hudson Cases, by Tim A. Thomas, 92 ALR Fed. 893.

Zerger, Kirsten L., et al., eds. California Public Sector Labor Relations, Chapter 31. New York: Matthew Bender, looseleaf with annual supplements.

294For a discussion of the duty of fair representation, see Chapter 15 of this Pocket Guide.

295Abood v. Detroit Board of Education (1977) 431 U.S. 209, 34 CPER 2. For discussion of First Amendment rights, see Chapter 7, above. Friedrichs v. California Teachers Assn. (2016) 578 U.S.___, 136 S.Ct. 1083, a case that directly challenged California’s agency fee security arrangement and sought to overturn the Abood decision, was pending before the U.S. Supreme Court at the time of Justice Antonin Scalia’s death in 2016. Subsequently, the Court, by a vote of 4 to 4, affirmed the Court of Appeals decision upholding the arrangement, without issuing a decision on the merits. It is anticipated that this issue will come before the Court again in the near future. Readers are advised to follow developments in this area closely.

296Gov. Code section 3515.7(a) (Dills Act); Gov. Code section 3540.1(i)(1)(2) (EERA); Gov. Code sections 3583, 3583.5 (HEERA) (agency shop arrangement does not apply to faculty of the University of California).

297Gov. Code section 3502.5 (MMBA); Gov. Code section 71632 (TCEPGA); Gov. Code section 71814 (TCIELRA); Gov. Code section 110019 (IHSSEERA); Pub. Utilities Code section 99566 (TEERA). Each of the statutes covered by the Gov. Code exclude certain employees from agency shop arrangements: MMBA (excludes management employees); TCEPGA and TCIELRA (exclude management, supervisory and confidential employees). TEERA applies only to supervisory employees at the MTA and these employees may be covered by an agency shop arrangement.

298Federal Service Labor-Management Relations Statute, 5 U.S. Code section 7115.

299Rae v. Bay Area Rapid Transit Supervisory etc., Assn. (1980) 114 Cal.App.3d 147, 152. See also PUC section 99566 (TEERA allows deduction of an agency fee for unions.) and PUC section 98168 (relating to the Santa Cruz Municipal Transit District, implicitly allows an agency fee because the Act provides that religious objectors do not have to pay a fee to the union.)

300See e.g., Gov. Code section 3515.7(a) (Dills Act); Gov. Code section 3543.2 (EERA); Gov. Code section 3502.5(a) (MMBA); Gov. Code sections 71632, 71632.5(a) (TCEPGA; Gov. Code section 71814 (TCIELRA); Gov. Code section 110019 (IHSSEERA).

301See e.g., Gov. Code section 3502.5(b) (MMBA); Gov. Code section 71632.5(c) (TCEPGA); Gov. Code section 71814(c) (TCIELRA).

302See e.g., Gov. Code section 3546(d)(2) (EERA).

303See e.g., Gov. Code section 3583.5(a)(1) (HEERA).

304See e.g., Gov. Code section 3540.1(i)(1)

305Dills Act, Gov. Code sections 3515.6, 3515.7(b); EERA, Gov. Code section 3543.1(d); HEERA, Gov. Code sections 3583, 3585; MMBA, Gov. Code section 3508.5; TCEPGA, Gov. Code section 71638; TCIELRA, Gov. Code section 71824; IHSSEERA, Gov. Code section 110020; Federal Service Labor-Management Relations Statute, 5 U.S. Code section 7115. Although the EEBRA and some transit statues are silent with respect to organizational security, Government Code sections 1157.1 and 1157.3, applying to all public employees, allow a public agency to deduct dues for organizations whose objectives include improvements in the terms or conditions of employment.

306(1977) 431 U.S. 209, 225-226, 34 CPER 2.

307Id. at 235-236.

308(1986) 475 U.S. 292, 68X CPER 1.

3098 Cal. Admin. Code sections 32990 et seq.

3108 Cal. Admin. Code section 32994.

311(2012) 132 S.Ct. 2277.

3128 Cal. Admin. Code section 32994. The American Arbitration Association has also developed rules for the conduct of agency fee hearings under which the AAA, not the union, selects an arbitrator.

313Gov. Code section 3543, 3546 (EERA); Gov. Code section 3515.7 (Dills Act); Gov. Code section 3583.5 (HEERA); Gov. Code section 3502.5(d) (MMBA); Gov. Code section 71632.5 (TCEPGA); Gov. Code section 71814 (TCIELRA); PUC section 99566.1 (TEERA); Gov. Code section 11019(d) (IHSSEERA).

314Gov. Code section 3546(b).

315Gov. Code section 3 515.8; Lillebo v. Davis (1990) 222 Cal.3d 1421, 84X CPER 5.

316See Introduction to Part II of this Pocket Guide for explanation of PERB’s unfair practice p rocedures.

17. Table of Cases

4 Penn Plaza LLC v. Pyett (2009) 556 U.S. 247/p. 37

Abood v. Detroit Board of Education (1977) 431 U.S. 209, 34 CPER 2/pp. 86, 91, 102, 105, 191

Aguilar v. Johnson (1988) 202 Cal.App.3d 241, 78 CPER 41/pp. 63, 72

Alexander v. Fontana Teachers Assn. (1984) PERB Dec. No. 416-E, 63X CPER 11/p. 177

Alexander v. Gardner-Denver (1974) 415 U.S. 36, 61 CPER 61/pp. 37, 44

Allen v. Iranon (9th Cir. 2002) 283 F.3d 1070/p. 92

American Federation of Labor and Congress of Industrial Organizations v. California Unemployment Insurance Appeals Board (1994) 23 Cal.App.4th 51; modified (1994) 23 Cal.App.4th 1306D, 105 CPER 62/p. 58

American National Insurance Company v. Fair Employment and Housing Commission (1982) 32 Cal.3d 603/p. 111

Anderson v. California Faculty Assn. (1994) 25 Cal.App.4th 207/p. 176

Andrews v. Board of Supervisors of Contra Costa Co. (1982) 134 Cal.App.3d 274, 55 CPER 17/p. 172

Antilles Consolidated Education Assn. (1990) 36 FLRA 776/p. 177

Arellanes v. Los Angeles Co. Civil Service Commission (1996) 41 Cal.App.4th 1208, 116 CPER 29/p. 92

Armendariz v. Foundation Health Psychcare Services (2000) 24 Cal.4th 83, 144 CPER 69/pp. 17, 37

Arnett v. Kennedy (1974) 416 U.S. 134, 21 CPER 60/p. 30

Asmus v. Pacific Bell (2000) 23 Cal.4th 1/p. 17

Atkins et al v. City of Los Angeles (2017) 8 Cal.App.5th 696/p. 111

Attard v. International Association of Machinists (2002) PERB Dec. No. 1474-M, 153 CPER 75/p. 172

Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237/p. 122

Bachelder v. America West Airline, Inc. (9th Cir. 2001) 259 F.3d 1112/p. 124

Bauer v. Sampson (9th Cir. 2001) 361 F.3d 775, 151 CPER 45/p. 92

Berkeley Police Assn. v. City of Berkeley (2008) 167 Cal.App.4th 385/p. 72

Bjorndal v. Superior Court (2012) 211 Cal.App.4th 1100/p. 103

Board of Education of Independent School Dist. No. 93 of Pottawaromie County v. Earls (2002) 536 U.S. 822, 155 CPER 17/p. 59

Board of Regents v. Roth (1972) 408 U.S. 564, 20 CPER 71/pp. 24, 30

Board of Trustees of Leland Stanford Jr. University v. Superior Court of Santa Clara Co. (Dong) (1981) 119 Cal.App.3d 516/pp. 69, 72

Bogacki v. Board of Supervisors (1971) 5 Cal.3d 771/pp. 130, 135

Bolling v. Public Employment Relations Board (2017) 10 Cal.App.5th 853/p. 152

Bostean v. Los Angeles Unified School Dist. (1998) 63 Cal.App.4th 95, 130 CPER 66/p. 30

Bradbury v. Superior Court (1996) 49 Cal.App.4th 1108/p. 71

Brady v. Maryland (1963) 373 U.S. 83/p. 79

Bramell v. San Francisco Classroom Teachers Assn. (1984) PERB Dec. No. 430, 64 CPER 56/pp. 172, 177

Brandon v. Maricopa County (9th Cir. 2017) 849 F.3d 837/p. 92

Branti v. Finkel (1980) 445 U.S. 507/pp. 93, 94

Brewster v. Board of Education of Lynwood Unified School Dist. (9th Cir. 1998) 149 F.3d 971, 131 CPER 46/p. 92

Brundage v. County of Los Angeles (1997) 57 Cal.App.4th 228, 126 CPER 50/p. 111

Burdick v. Board of Retirement (1988) 200 Cal.App.3d 1248/p. 111

Burlington Northern & Santa Fe Railway Co. v. White (2006) 548 U.S. 53/p. 48

Bush v. Lucas (1983) 462 U.S. 367/p. 93

California Correctional Peace Officers Assn. v. State of California (2000) 82 Cal.App.4th 294/p. 80

California School Employees Assn. and its Hacienda La Puente Chapter 115 v. Hacienda La Puente Unified School Dist. (1998) PERB Dec. No. 1280, 132 CPER 79/p. 140

California School Employees Assn. Chapter No. 504 v. Pleasant Valley School Dist. (1988) PERB Dec. No. 708, 79X CPER 12/p. 167

California School Employees Assn. v. Redwoods Community College Dist. (1983) PERB Dec. No. 293, 57 CPER 65/p. 161

California State Employees Assn., Chapter 41 v. Regents of the University of California (1984) PERB Dec. No. 403-H/p. 161

Capistrano Unified School Dist. (2015) PERB Dec. No. 2440-E/p. 161

Carlsbad Unified School Dist. (1979) PERB Dec. No. 89, 41 CPER 58/pp. 150, 154

Cassista v. Community Foods (1993) 5 Cal.4th 1050, 102 CPER 43/p. 111

Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028/p. 48

Chalk v. U.S. District Court (9th Cir. 1988) 840 F.2d 701, 77 CPER 63/p. 111

Chandler v. Miller (1997) 20 U.S. 305/p. 59

Chestangue v. San Francisco Classroom Teachers Assn. (1985) PERB Dec. No. 544, 67X CPER 15/p. 177

Chicago Teachers Union v. Hudson (1986) 475 U.S. 292, 68X CPER 1/pp. 186, 191

Cimarusti v. Superior Court (2000) 79 Cal.App.4th 799/pp. 67, 72

Circuit City Stores, Inc. v. Ahmed (9th Cir. 2002) 283 F.3d 1198/p. 17

City of Los Angeles v. Superior Court (Brandon) (2002) 27 Cal.4th 1/p. 66

City of Los Angeles v. Superior Court (Labio) (1997) 57 Cal.App.4th 1506, 127 CPER 24/pp. 76, 81, 161

City of Moorpark v. Superior Court (1998) 18 Cal.4th 1134, 132 CPER 20/p. 17

City of Ontario v. Quon (2010) 560 U.S. 756/p. 54

City of San Jose v. Superior Court of Santa Clara County (2017) 2 Cal.5th 608/pp. 57, 59

City of Santa Ana v. Santa Ana Police Benevolent Assn. (1989) 207 Cal.App.3d 1568, 80X CPER 1/p. 152

Civil Service Assn., Local 400, v. City and Co. of San Francisco (1978) 22 Cal.3d 552, 40 CPER 59/p. 161

Civil Service Commission v. National Assn. of Letter Carriers (1973) 413 U.S. 548/p. 93

Cleary v. American Airlines (1980) 111 Cal.App.3d 443/p. 18

Cleveland v. Loudermill (1985) 470 U.S. 532, 64X CPER 2/pp. 24, 31

Clovis Unified Teachers Assn., CTA/NEA v. Clovis Unified School Dist. (1984) PERB Dec. No. 389, 62 CPER 36/p. 152

Coalition of University Employees, Local 6 v. Regents of the University of California (2006) PERB Dec. No. 1843-H/p. 161

Cockburn v. Santa Monica Community College Dist. Personnel Com. (1984) 161 Cal.App.3d 734/p. 25

Coleman v. State Personnel Board (1991) 52 Cal.3d 1102, 88X CPER 6/pp. 27, 31

Collins v. Bender (9th Cir. 1999) 195 F.3d 1076/p. 93

Colmenares v. Braemer Country Club, Inc. (2003) 29 Cal.4th 1019, 159 CPER 52/p. 112

Commission on Peace Officer Standards and Training v. Superior Court (Los Angeles Times) (2007) 42 Cal.4th 278/pp. 69, 72

Connick v. Myers (1983) 461 U.S. 138, CPER Special Reporting Series No. 22/pp. 93, 96

Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272/pp. 69, 72

Cotran v. Rollins Hudig Hall Intl., Inc. (1998) 17 Cal.4th 93, 128 CPER 11/pp. 18, 31

Couch v. Morgan Stanley and Co., Inc. (ED CA 2014) 2014 WL 1577463/p. 103

Council of School Nurses v. Los Angeles USD (1980) 113 Cal.App.3d 666, 48 CPER 42/p. 117

County of Fresno v. Fair Employment and Housing Commission (1991) 226 Cal.App.3d 1541, 88 CPER 52/p. 112

County of Los Angeles v. Los Angeles County Employee Relations Commission (2013) 56 Cal.4th 905/pp. 70, 72

County of Riverside v. Superior Court (Madrigal) (2002) 27 Cal.4th 793, 154 CPER 43/pp. 67, 73

County of Sacramento (2014) PERB Dec. No. 2393-M/p. 152

County Sanitation Dist. No. 2 of Los Angeles County v. Los Angeles County Employees Assn., Local 660, SEIU, AFL-CIO (1985) 38 Cal. 3d 564, 65 CPER 2/pp. 148, 153

Crawford v. Metropolitan Govt. of Nashville and Davidson County, Tenn. (2009) 129 S. Ct. 846/p. 48

Cumero v. King City Joint Unified High School Dist. Assn. (1982) PERB Dec. No. 197, CPER Special Reporting Series No. 20/p. 192

Cumero v. Public Employment Relations Board (1989) 49 Cal.3d 575, 83 CPER 62/p. 192

Dahlia v. Rodriguez (2013) 735 F.3d 1060/p. 93

Davenport v. Washington Education Assn. (2007) 551 U.S. 177/p. 192

Davis v. Farmers Ins. Exch. (2016) 245 Cal.App.4th 1302/p. 48

DeFrates v. Mount Diablo Education Assn. (1984) PERB Dec. No. 422, 63X CPER 13/p. 117

Dental Supplies, Inc. v Superior Court (2010) 48 Cal.4th 665/p. 37

Department of Fair Employment and Housing v. Verizon (2003) 108 Cal.App.4th 160/p. 123

Department of Homeland Security v. MacLean (2015) 135 S.Ct. 913/p. 93

Diablo Valley Federation of Teachers v. Mount Diablo Unified School Dist. (1977) PERB Dec. No. 44, 36 CPER 32/pp. 166, 168

Douglas v. Veterans Administration (1981) 6 MSPB 313/p. 118

Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255/p. 123

Duncan v. Department of Personnel Administration (2000) 77 Cal.App.4th 1166, 141 CPER 51/p. 26

Edgerton v. State Personnel Board (2000) 83 Cal.App.4th 1350/p. 59

EEOC v. Abercrombie & Fitch, Inc. (2015) 575 US___, 135 S.Ct. 2028/p. 48

El Dorado Savings and Loan Assn. v. Superior Court (1987) 190 Cal.App.3d 342/pp. 69, 73

Ellins v. City of Sierra Madre (2016) 244 Cal.App.4th 445/p. 81

Ellis v. Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, et al. (1984) 466 U.S. 435, 61 CPER 57/p. 192

Elrod v. Burns (1976) 427 U.S. 347, 30 CPER 45/pp. 93, 94

Ely v. Wal Mart, Inc. (C.D. Cal. 1995) 875 F.Supp. 1422, 112 CPER 72/p. 125

Eng v. Cooley (9th Cir. 2009) 552 F.3d 1062/pp. 88, 94

Enomoto v. Brown (1981) 117 Cal.App.3d 408, 49 CPER 48/p. 28

Escalante v. Wilson’s Art Studio, Inc. (2003) 109 Cal.App.4th 692/p. 18

Escriba v. Foster Poultry Farms, Inc. (9th Cir. 2014) 743 F.3d 1236/p. 125

Faeth v. Redlands Teachers Assn. (1978) PERB Dec. No. 72, 39 CPER 58/p. 177

Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 879/p. 123

Federal Mediation and Conciliation Service (1982) 9 FLRA 199/p. 153

Fisher v. Superior Court (1986) 177 Cal.App.3d 779/p. 112

Fleck v. Chaffey Joint Union High School Dist. (1982) PERB Dec. No. 202, 6 PERC Para.13077pp. 167, 168

Flippin v. Los Angeles City Board of Civil Service Commissioners (2007) 148 Cal.App.4th 272/p. 31

Florio v. City of Ontario (2005) 130 Cal.App.4th 1462, review denied Oct. 26, 2005/pp. 29, 31

Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 79X CPER 5/pp. 18, 103

Forslund v. Saddleback Valley Educators Assn. (1990) PERB Dec. No. 828, 86 CPER 68/pp. 173, 178

Fresno County Superior Court (2017) PERB Dec. No. 2517-C/p. 94

Friedrichs v. California Teachers Assn. (2016) 578 U.S.___, 136 S.Ct. 1083/p. 182

Gales v. Superior Court (1996) 47 Cal.App.4th 1596, 120 CPER 66/pp. 80, 81

Gambini v. Total Renal Care (9th Cir. 2007) 486 F.3d 1087/p. 125

Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 93 CPER 42/pp. 18, 103

Garcetti v. Ceballos (2006) 547 U.S. 410/p. 94

General Services Administration (1982) 9 FLRA 213/p. 153

Gibbs v. American Airlines (1999) 74 Cal.App.4th 1/p. 123

Gilbert v. Homar (1997) 520 U.S. 924, 125 CPER 19/pp. 25, 31

Gilmer v. Interstate/Johnson Lane Corp. (1991) 500 U.S. 20, 89 CPER 59/pp. 37, 44

Golden v. Local 55, IAFF (9th Cir. 1980) 633 F.2d 817, 48 CPER 54/p. 178

Gorcey v. Oxnard Educators Assn. (1988) PERB Dec. No. 664, 77 CPER 86/pp. 175, 178

Gordon v. Horsley (2001) 86 Cal.App.4th 336/pp. 77, 81

Grant-Buron v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361/p. 19

Green v. Par Pools, Inc. (2003) 111 Cal.App.4th 620/p. 49

Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66/p. 19

Green v. State of California (2007) 42 Cal.4th 254/p. 112

Griggs v. Duke Power (1971) 401 U.S. 424/p. 49

Gross v. FBL Financial Services, Inc. (2009) 129 S. Ct. 2343/p. 49

Grunwald v. San Bernardino City Unified School Dist. (9th Cir. 1993) 994 F.2d 1370, 100 CPER 47/p. 192

Hafer v. Melo (1991) 502 U.S. 21, 91 CPER 63/p. 94

Haight v. City of San Diego (1991) 228 Cal.App.3d 413, 88X CPER 5/pp. 78, 81

Hanna v. City of Los Angeles (1989) 212 Cal.App.3d 363, 84 CPER 17/pp. 80, 81

Hard et al. v. California State Employees Assn. (1999) PERB Dec. No. 1368-S/p. 153

Harris v. City of Santa Monica (2013) 56 Cal.4th 203/p. 49

Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 103 CPER 10/p. 112

Hartnell Community College Dist. (2015) PERB Dec. No. 2452-E/pp. 162, 166, 168

Heffernan v. City of Paterson, New Jersey (2016) 136 S.Ct. 1412/pp. 88. 94

Higgins-Williams v. Sutter Medical Fund (2015) 237 Cal.App.4th 78/p. 112

Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 105 CPER 20/pp. 59, 71, 73

Hobbie v. Unemployment Appeals Commission (1987) 480 U.S. 1365/p. 94

Holihan v. Lucky Stores, Inc. (9th Cir. 1996) 87 F.3d 362/p. 112

Holmes v. Hallinan (1998) 68 Cal.App.4th 1523, 134 CPER 34/p. 31

Hughes v. County of San Bernardino (2016) 244 Cal.App.4th 542/p. 81

Huppert v. City of Pittsburg (9th Cir. 2009) 574 F.3d 696/p. 93

Internal Revenue Service (1981) 6 FLRA 96/p. 153

Internal Revenue Service v. Federal Labor Relations Authority (9th Cir. 1983) 706 F.2d 1019/pp. 166, 168

International Brotherhood of Electrical Workers v. City of Gridley (1983) 34 Cal.3d 191, CPER Special Reporting Series No. 25/p. 26

International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Superior Court (Contra Costa Newspapers, Inc.) (2007) 42 Cal.4th 319/pp. 68, 73

Johnson v. Winter (1982) 127 Cal.App.3d 435/pp. 68, 73

Jones v. Omnitrans (2004) 125 Cal.App.4th 273/pp. 171, 178

Katzberg v. Regents of the University of California (2002) 29 Cal.App.4th 300, 158 CPER 64/p. 32

Kemmerer v. County of Fresno (1988) 200 Cal.App.3d 1426, 77 CPER 28/p. 19

Kennedy v. Applause, Inc. (9th Cir. 1996) 90 F.3d 1477, 120 CPER 83/p. 113

Kidwell v. Transportation Communications International Union (4th Cir. 1991) 946 F.2d 283, cert. denied 112 S.Ct. 1760/p. 193

Kimmett v. SEIU Loc. 99 (1979) PERB Dec. No. 106, 44 CPER 56/p. 178

Kirchmann v. Lake Elsinore Unified School Dist. (1997) 57 Cal.App.4th 595, 126 CPER 29/p. 94

Knox v. Service Employees Intern. Union, Local 1000 (2012) 132 S.Ct. 2277/p. 187

Kraslawsky v. Upper Deck Co. (1997) 56 Cal.App.4th 179/p. 19

LaChance v. Erickson (1998) 522 U.S. 262, 128 CPER 57/p. 32

Lambert v. City of Santa Ana (9th Cir. 1995) 59 F.3d 134, 113 CPER 78/p. 94

Lane v. IUOE Stationary Engineers, Loc. 39 (1989) 212 Cal.App.3d 164, 82 CPER 22/pp. 172, 178

Lehnert v. Ferris Faculty Assn. (1991) 500 U.S. 507, 89 CPER 12/pp. 195, 193

Leisek v. Brightwood Corp. (2002) 278 F.3d 895/p. 19

Lerma v. D-Arrigo Bros. (1978) 77 Cal.App.3d 836, 44 CPER 5, note 11/pp. 171, 178

Levine v. City of Alameda (9th Cir. 2008) 525 F.3d 903/p. 130

Lillebo v. Davis (1990) 222 Cal.App.3d 1421, 84X CPER 5/pp. 165, 168, 189

Linn v. San Francisco Classroom Teachers Assn. (1984) PERB Dec. No. 444/p. 179

Liu v. Amway (9th Cir. 2003) 347 F.3d 1125/p. 125

Loder v. City of Glendale (1997) 14 Cal.4th 846, 122 CPER 19/pp. 59, 71

Logan v. Southern California Rapid Transit Dist. (1982) 136 Cal.App.3d 116, 55 CPER 13/p. 172

Long Beach City Employees Assn. v. City of Long Beach (1986) 41 Cal.3d 937, 69X CPER 1/pp. 57, 60

Long Beach Police Officer’s Assn. v. City of Long Beach (2014) 59 Cal.4th 59/pp. 60, 73

Lonicki v. Sutter Health (2008) 43 Cal.4th 201/p. 123

Los Angeles County Employees Assn. v. County of Los Angeles (1985) 168 Cal.App.3d 683/p. 153

Los Angeles Police Protective League v. City of Los Angeles (1995) 35 Cal.App.4th 1535, 113 CPER 53/pp. 78, 82

Los Angeles Police Protective League v. City of Los Angeles (2014) 232 Cal.App.4th 136/p. 82

Lubey v. City and Co. of San Francisco (1979) 98 Cal.App.3d 340, 44 CPER 51/pp. 28, 29, 32

Lubnau v. Santa Ana Unified School Dist. (1978) PERB Dec. No. 73, 2 PERC Para. 2201/p. 166

Luck v. Southern Pacific Transportation Co. (1990) 218 Cal.App.3d 1, 86 CPER 2/p. 60

Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822, 67X CPER 1/pp. 76, 82

Lyle v. Warner Bros. Television Prod. (2006) 38 Cal.4th 264/p. 49

Marchisheck v. San Mateo County (9th Cir. 1999) 199 F.3d 1068/p. 125

Mathews v. Eldridge (1976) 42 U.S. 319/p. 32

Mauriello v. Bay Area Air Quality Management Dist. (2006) PERB Dec. No. 1807-M/pp. 162, 169

McAllister v. Los Angeles Unified School Dist. (2013) 216 Cal.App.4th 1198/pp. 17, 20

McDonnell Douglas Corp. v. Green (1972) 411 U.S. 792/p. 49

McElwain v. Castro Valley Teachers Assn. (1980) PERB Dec. No. 149, 48 CPER 65/pp. 174, 179

Mendoza v. Roman Catholic Archbishop of Los Angeles (9th Cir. 2016) 824 F.3d 1148/p. 49

Menge v. Reed (2000) 84 Cal.App.4th 1134/p. 32

Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 70 CPER 57/p. 50

Miller v. Chico Unified School District Board of Education (1979) 24 Cal.3d 703/p. 65

Modesto City Schools v. Modesto Teachers Assn., CTA/NEA (1983) PERB Dec. No. 291, 56 CPER 84/p. 154

Mogilefsky v. Superior Court (Silver Pictures) (1993) 20 Cal.App.4th 1409, 104 CPER 46/pp. 38, 50

Monsoor v. California Department of Developmental Services (1982) PERB Dec. No. 228-S, 55 CPER 48/p. 154

Mora v. Chem-Tronics, Inc. (S.D. Cal. 1998) 16 F.Supp.2d 1192/p. 125

Moreau v. Air France (9th Cir. 2004) 356 F.3d 942/p. 126

Mounger v. Gates (1987) 193 Cal.App.3d 1248, 75X CPER 2/pp. 79, 82

Mount Healthy City School Dist. v. Doyle (1977) 429 U.S. 274/p. 95

National Labor Relations Board v. Weingarten (1975) 420 U.S. 251/pp. 158, 160, 162

National Treasury Employees Union v. Von Raab (1989) 489 U.S. 656, 81 CPER 16/p. 60

Neisendorf v. Levi Strauss (2006) 143 Cal.App.4th 509/p. 123

Nelson v. United Technologies (1999) 74 Cal.App.4th 597/p. 124

Nevada Department of Human Resources v. Hibbs (2003) 538 U.S. 721/p. 126

Neveu v. City of Fresno (E.D. Cal. 2005) 392 F.Supp.2d 1159/p. 99

Novato Federation of Teachers, Local 1986, AFT, AFL-CIO v. Novato Unified School Dist. (1982) PERB Dec. No. 210, 54 CPER 63/pp. 150, 154

Nunez v. Davis (9th Cir. 2002) 169 F.3d 1222/p. 95

O’Connor v. Ortega (1987) 480 U.S. 709, 73 CPER 73/pp. 53, 54, 60

Oceanside-Carlsbad Federation of Teachers, Local 1344, CFT/AFT v. Carlsbad Unified School Dist. (1979) PERB Dec. No. 89, 41 CPER 58/p. 154

Oklahoma City Air Logistics Center (1981) 6 FLRA 159/p. 155

Oncale v. Sundowner Offshore Services (1998) 520 U.S. 1263, 129 CPER 11/p. 50

Operating Engineers Local 3 v. Johnson (2003) 110 Cal.App.4th 180, 161 CPER 35/pp. 71, 73

Opuku-Boateng v. State of California (9th Cir. 1996) 95 F.3d 1461, 120 CPER 79/p. 50

Ortega v. Contra Costa Community College Dist. (2007) 156 Cal.4th 1073/p. 37

Ostad v. Oregon Health Sciences Univ. (9th Cir. 2003) 327 F.3d 876/p. 95

Otto v. Los Angeles Unified School Dist. (2001) 89 Cal.App.4th 985, 149 CPER 24/pp. 77, 82

Pang v. Beverly Hospital, Inc. (2000) 79 Cal.App.4th 998/p. 124

Parker v. City of Fountain Valley (1981) 127 Cal.App.3d 99/p. 32

Paulson v. International Brotherhood of Teamsters (2011) 193 Cal.App.4th 823/pp. 171, 179

Payton v. City of Santa Clara (1982) 132 Cal.App.3d 152, 54 CPER 39/p. 73

People v. The Superior Court of San Francisco County (2015) 61 Cal.4th 696/p. 74

Perez v. City of Westminster (2016) 5 Cal.App.5th 358/p. 82

Petrich v. Riverside Unified School Dist. (1987) PERB Dec. No. 639/p. 155

Pettus v. Cole (1996) 49 Cal.App.4th 402, 121 CPER 68/pp. 20, 66, 74

Pickering v. Board of Education (1968) 391 U.S. 563/pp. 95, 96

Poole v. Orange County Fire Authority (2015) 61 Cal.4th 1378/pp. 63, 74

Prilliman v. United Air Lines (1997) 53 Cal.App.4th 935, 124 CPER 68/p. 113

Professional Engineers in California Government v. State of California (Dept. of Personnel Admin.) (1987) PERB Dec. No. 648-S, 75X CPER 6/p. 128

Prudential Insurance Co. v. Lai and Viernes (9th Cir. 1994) 42 F.3d 1299, 110 CPER 70/pp. 37, 44

Pugh v. See’s Candies (1981) 116 Cal.App.3d 311/p. 20

Purple Communications, Inc. v. Communications Workers of America, AFL-CIO (2014) NLRB Case Nos. 21-CA-095151, 21-RC-091532, and 21-RC-091584/p. 155

Quarrick and O’Brien v. Mount Diablo Unified School Dist. (1978) PERB Dec. No. 68, 39 CPER 57/p. 169

Quon v. City of Ontario et al. (9th Cir. 2008) 529 F.3d 892/p. 61

Rae v. Bay Area Rapid Transit Supervisory etc., Assn. (1980) 114 Cal.App.3d 147/p. 183

Raytheon v. California Fair Employment and Housing Commission (1989) 212 Cal.App.3d 1242, 82X CPER 10/p. 113

Redwoods Community College Dist. v. Public Employment Relations Board (1984) 159 Cal.App.3d 617/p. 162

Relyea v. Ventura Co. Fire Protection Dist. (1992) 2 Cal.App.4th 875, 92 CPER 17/p. 169

Rendish v. City of Tacoma (9th Cir. 1997) 123 F.3d 1216, 126 CPER 54/p. 95

Rio Hondo Community College Faculty Assn. v. Rio Hondo Community College Dist. (1980) PERB Dec. No. 128, 46 CPER 68/p. 155

Rio Hondo Faculty Assn., CTA/NEA v. Rio Hondo Community College Dist. (1982) PERB Dec. No. 260, 56 CPER 76/p. 162

Rissetto v. Plumbers and Steamfitters Loc. 343 (9th Cir. 1996) 94 F.3d 597, 120 CPER 90/p. 50

Robinson v. State Personnel Board (1979) 97 Cal.App.3d 994, CPER Special Reporting Series No. 10/p. 162

Roby v. McKesson Corp. (2009) 47 Cal.4th 686/pp. 36, 50

Rojo v. Kliger (1990) 52 Cal.3d 65, 86X CPER 11/p. 20

Romero v. Rocklin Professional Teachers Assn. (1980) PERB Dec. No. 124, 45 CPER 82/pp. 172, 179

Rosales v. City of Los Angeles (2000) 82 Cal.App.4th 419/pp. 71, 74

Ross v. Ragingwire Telecomm, Inc. (2008) 42 Cal.4th 920/p. 108

Runyon v. McCrary (1976) 427 U.S. 160/p. 50

Rutan v. Republican Party of Illinois [1990] 497 U.S. 62, 86 CPER 57/p. 94

Sacramento Police Officers Assn. v. Venegas (2002) 101 Cal.App.4th 916, 156 CPER 41/pp. 80, 83

San Diego Police Officers Assn. v. City of San Diego (2002) 98 Cal.App.4th 779, 155 CPER 29/pp. 76, 83

San Diego Teachers Assn. v. San Diego Co. Superior Ct. (1970) 24 Cal.3d 1, 41 CPER 2/p. 155

San Leandro Police Officers Assn. v. City of San Leandro (1976) 55 Cal.App.3d 553, 28 CPER 33/p. 155

San Leandro Teachers Assn. v. Governing Board of the San Leandro Unified School Dist. (2009) 46 Cal.4th 822

San Mateo City School Dist. (1984) PERB Dec. No. 383, 61X CPER 14/pp. 155, 156

Santa Clara County Correctional Peace Officers Assn. v. County of Santa Clara (2015) PERB Dec. No. 2431-M/p. 143

Scamihorn v. General Truck Drivers (9th Cir. 2002) 282 F.3d 1078/p. 126

School Board of Nassau County, Florida, v. Arline (1987) 480 U.S. 273, 73 CPER 70/p. 113

Service Employees International Union, Local 721 (2015) PERB Dec. No. 2462-C/p. 179

Service Employees International, Union, Local 660, AFL-CIO v. Los Angeles County Office of Education (1990) PERB Dec. No. 851/p. 156

Sims v. Alameda-Contra Costa Transit Dist. (N.D. Cal. 1998) 2 F.Supp.2d 1253/p. 126

Skaarup v. City of North Las Vegas (9th Cir. 2003) 320 F.3d 1040/p. 95

Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 27 CPER 37/pp. 24, 33

Skillsky v. Lucky Stores (9th Cir. 1980) 893 F.2d 1088/p. 103

Skinner v. Railway Labor Executives Assn. (1989) 489 U.S. 602, 81 CPER 16/p. 61

Smith v. Fresno Irrigation Dist. (1999) 72 Cal.App.4th 147, 136 CPER 39/p. 61

State Personnel Board v. Fair Employment and Housing Commission (1985) 39 Cal.3d 422, 67 CPER 20/p. 50

Steiner v. Showboat Operating Co. (9th Cir. 1994) 25 F.3d 1459/pp. 50, 163

Steinert v. City of Covina (2006) 146 Cal.App.4th 458/p. 163

Sterling Transit Co. v. Fair Employment and Housing Commission (1988) 121 Cal.App.3d 791/p. 113

Stevens v. California Dept. of Corrections (2003) 107 Cal.App.4th 285/p. 124

Stevenson v. Huntington Memorial Hospital (1997) 16 Cal.4th 880, 126 CPER 7/p. 20

Swift v. County of Placer (1984) 153 Cal.App.3d 209, 61 CPER 29/p. 28

Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167/pp. 15, 16. 20, 104

Thompson v. Holy Family Hospital (9th Cir. 1997) 121 F.3d 537, 126 CPER 52/p. 113

Thorne v. City of El Segundo (9th Cir. 1983) 726 F.2d 459, 60 CPER 71, cert. denied, (1984) 469 U.S. 979/p. 61

Tomlinson v. Qualcomm, Inc. (2002) 97 Cal.App.4th 934/p. 124

Townsell v. San Diego Metropolitan Transit Development Board (1998) 65 Cal.App.4th 940 (Supreme Ct. rev. den.), 132 CPER 71/p. 33

Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238/p. 20

Turturici v. City of Redwood City (1987) 290 Cal.App.3d 1447, 73 CPER 32/pp. 76, 83

Ulmschneider v. Los Banos Unified School Dist. (2007) PERB Dec. No. 1935/p. 163

Ulrich v. City and County of San Francisco (9th Cir. 2002) 308 F.3d 968, 157 CPER 64/p. 96

United Auto Workers v. Johnson Controls (1991) 499 U.S. 187, 89 CPER 58/p. 51

United States v. Gonzales (9th Cir. 2002) 300 F.3d 1048/p. 61

United States v. Jones (9th Cir. 2002) 286 F.3d 1146/p. 61

United States v. Simons (4th Cir. 2000) 206 F.3d 392/pp. 54, 62

United Teachers of Los Angeles (Adams) (2009) PERB Dec. No. 149/p. 173

Unland v. Block (1997) 59 Cal.App.4th 1537/p. 69

Upland Police Officers Assn. v. City of Upland (2003) 111 Cal.App.4th 1294/p. 163

Vaca v. Sipes (1967) 386 U.S. 171, 44 CPER 3, at note 4/pp. 172, 179

Volpei v. County of Ventura (2013) 221 Cal.App.4th 391/p. 37

Wabakken v. California Department of Corrections and Rehabilitation (9th Cir. 2015) 801 F.3d 1143/p. 104

Walker v. Northern San Diego Co. Hospital Dist. (1982) 135 Cal.App.3d 896, 55 CPER 54/p. 21

Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109/p. 113

Warren v. State Personnel Board (1979) 94 Cal.App.3d 95/p. 62

Washington v. Davis (1976) 426 U.S. 229/p. 51

Waters v. Churchill (1994) 511 U.S. 661, 107 CPER 16/p. 96

White v. County of Los Angeles (2014) 225 Cal.App.4th 690/p. 124

Wilkinson v. Times Mirror Corp. (1989) 215 Cal.App.3d 1034, 83X CPER 6/p. 62

Williams v. City of Los Angeles (1988) 47 Cal.3d 195, 79 CPER 20/pp. 80, 83

Williams v. Dept. of Water and Power (1981) 130 Cal.App.3d 677, 53 CPER 38/p. 28

Willis v. El Centro Elementary Teachers Assn. (1982) PERB Dec. No. 232, 55 CPER 67/pp. 175, 179

Wright v. Universal Maritime Service Corp. (1998) 525 U.S. 70, 129 CPER 75/pp. 37, 44

Zazueta v. County of San Benito (1995) 38 Cal.App.4th 106, 114 CPER 69/pp. 80, 83

18. Index of Terms

Accommodate/Accommodation/ pp. 38, 39, 48, 49, 50, 57, 90, 105, 108, 109, 110, 111, 112, 113, 117, 121

Adverse action/pp. 6, 8, 10, 13, 24, 25, 32, 34, 67, 78, 79, 88, 102, 112, 150, 156 (see also Discipline)

Affirmative action/p. 42

Age discrimination (see Discrimination — age)

Age Discrimination in Employment Act (ADEA)/pp. 37, 46, 47, 49

Agency fee/pp. 96, 182, 183, 185, 186, 187, 188, 189, 191, 192, 193 (also see Agency shop; Fair share fee; Organizational security)

Agency fee objectors and challengers/pp. 185-186

Agency shop/pp. 86, 91, 147, 182, 183, 188, 190, 192, 193 (also see Agency fee; Fair share fee; Organizational security)

AIDS (see HIV-related diseases)

Alcohol testing/pp. 58, 59, 61

Alcoholism/pp. 65, 107, 108

Americans with Disabilities Act (ADA)/pp. 37, 44, 47, 49, 105-111, 113, 114, 121, 130

Anti-SLAPP law/p. 17

Appeals (see Civil service rules; Disciplinary procedures; Enforcement of rights; rights; Grievance procedures)

Arbitration/pp. 12, 13, 14, 17, 21, 37, 38, 44, 70, 103, 134, 135, 136, 142, 152, 156, 160, 165, 166, 169, 173, 174, 176, 186, 188, 190

Arbitrary conduct/pp. 172, 173, 178, 179

“At-will” employees/pp. 14, 15

Back pay (see Enforcement of rights)

Bad faith/pp. 172, 173, 178, 179

Bargaining/pp. 1, 3, 86, 92, 128, 129, 131, 137, 143, 149, 151, 165, 166, 169, 171, 173, 174-175, 176, 179, 185, 188, 189, 192 (see also Collective bargaining agreements; Duty to bargain)

Bargaining unit/pp. 19, 55, 67, 86, 127, 137, 140, 143, 146, 154, 162, 164, 165, 168, 170, 174, 175, 177, 179, 181, 183, 184

Blood test (see Alcohol testing; Drug testing)

Breach of contract actions/pp. 15-16, 21

Business necessity defense/p. 35

Business Records Act/p. 73

California Constitution/pp. 1, 6, 7, 10, 15, 16, 18, 23, 24, 29, 42, 53, 59, 60, 62, 73

Article I, Sec. 1/p. 59

Article I, Sec. 4/p. 90

Article I, Sec. 7/p. 23

Article VII/p. 7

California False Claims Act/p. 101

California Family Rights Act /pp. 115, 118, 119, 122, 123, 124, 125, 126

California Public Records Act/pp. 57, 59, 68

California State University employees/pp. 9, 12, 67, 132, 138, 140

California Whistleblower Protection Act/pp. 98, 104

Certificated employees (see Public school employees)

Challenges (see Agency fee objectors and challengers)

Chapter 43/pp. 10-11

Chapter 75/pp. 10-11

Chargeable expenses (see Agency fee objectors)

Child care (see Family leave; Medical leave)

Childbirth (see Family leave; Medical leave)

Civil Rights Act of 1866/pp. 45, 90

Civil Rights Act of 1871/p. 46

Civil Rights Act of 1964/pp. 36, 42-44, 50, 90, 110 (see also Title VII)

Civil service employees/pp. 42, 50, 58, 66, 67, 70, 82, 87, 91, 92, 93, 98, 127, 128-129, 134, 135, 141, 161, 170, 190

Civil Service Reform Act/pp. 99-100, 139, 145

Civil service rules/pp. 13, 29, 36, 58, 70, 129

Classified employees (see Public school employees)

Collective bargaining agreements (CBA)/pp. 3, 5, 6, 8, 9, 10, 11, 14, 15, 18, 24, 25, 29, 36, 37, 44, 58, 78, 86, 95, 96, 103, 120, 123, 127, 129, 132, 133, 134, 139, 147, 149, 160, 167, 169, 170, 179, 184, 188, 189

Community college employees/pp. 9, 25, 100, 130-131, 144, 146, 155, 158, 162, 164, 166, 168

Concerted activities/pp. 19, 148, 188

Confidential information, disclosure of/pp. 66, 67, 69, 71, 72, 73, 74

Confidentiality of Medical Information Act/p. 66

Constructive discharge/pp. 18, 20-21, 103

Court employees/pp. 95, 129, 138, 139-141, 145, 146, 158, 164, 167, 171, 176

Covenant of good faith and fair dealing/pp. 15, 18

Damages/pp. 5, 6, 14, 15, 16, 17, 18, 30, 32, 40, 41, 43, 44, 46, 47, 50, 64, 70, 71, 80, 81, 91, 94, 98, 99, 101, 102, 103, 110, 111, 122, 126, 140

Department of Fair Employment and Housing (DFEH)/pp. 3, 39, 40, 43, 50, 110, 118, 119, 122, 123

Department of Labor (DOL)/pp. 118, 122

Department of Personnel Administration (DPA)/p. 128

DFR (see Duty of fair representation)

Dills Act/pp. 128, 136, 138, 139, 142, 143, 144, 145, 146, 149, 150, 151, 158, 164, 167, 168, 171, 172, 180, 182, 184, 186, 189

Disabilities, defined/pp. 106-108

Disability rights/pp. 34, 36, 38, 39, 41, 47, 48, 50, 51, 105-114, 115, 119, 121

Discharge/pp. 6, 7, 9, 14, 15, 16, 18, 20, 24, 27, 28, 30, 31, 32, 33, 62, 78, 90, 94, 96, 100, 103, 124, 126, 127 (see also Constructive discharge; Wrongful termination)

Disciplinary procedures/pp. 6, 7, 9, 10, 11, 12, 13, 25, 26, 29, 30, 32, 97, 100, 127

Discipline/pp. 1-22, 23, 24, 25, 26, 27, 29, 30, 31, 32, 33, 57, 58, 71, 73, 77, 82, 85, 89, 90, 91, 93, 94, 95, 98, 102, 108, 128, 144, 148, 150, 159, 161, 162, 163

Discrimination (on the basis of)/pp. 34-52

age/pp. 20, 34, 37, 38, 41, 42, 44, 46, 49, 50

alcoholism/pp. 65, 107-108

ancestry/pp. 34, 38, 41

color/pp. 34, 38, 41, 42

disability/pp. 34, 36, 38, 39, 41, 47, 48, 51, 105-114, 121

drug addiction/pp. 65, 107-108

ethnicity/pp. 42, 45,

gender (see Discrimination — sex)

marital status/pp. 34, 38, 41, 43

medical condition/pp. 34, 38, 47, 68, 106, 109, 111, 112, 115, 117, 118, 119, 125

national origin/pp. 34, 38, 41, 42, 43

physical handicap/p. 113

physical or mental disability/pp. 34, 38, 106, 107, 108, 109, 111

political beliefs/activity/pp. 1, 41, 76, 84, 85, 87, 92, 93, 156, 170

pregnancy/pp. 34, 38, 39, 41, 43

race/pp. 1, 16, 34, 38, 41, 42, 45, 170, 173

religion/pp. 16, 34, 38, 41, 42, 84

sex/pp. 16, 34, 38, 40, 41, 42, 45, 47, 50, 170

sexual orientation/pp. 34, 38, 43

union activity/pp. 85, 91, 140, 144-145, 147, 149, 150, 153, 162

Discriminatory conduct/pp. 173, 178, 179

Discriminatory representation/pp. 173

Disparate impact/pp. 35, 46, 49

Disparate treatment/pp. 35, 46

Drug testing/pp. 53-55, 56-57, 59, 60, 61, 71

Drug use/pp. 7, 56-57, 107-108

Due process rights/pp. 1, 6, 21, 23-33, 66, 86, 130

Dues (see Agency fee; Dues deduction; Organizational security)

Dues deduction/pp. 183, 184

Duty of fair representation (DFR)/pp. 151, 162, 170-180, 181, 190

Duty to accommodate disability/pp. 108-109, 112, 121

Duty to bargain/p. 129

Education Code/pp. 9, 10, 12, 41, 65, 68, 130, 131, 132

Educational Employment Relations Act (EERA)/pp. 131, 135, 138, 139, 142, 143, 144, 146, 149, 150, 151, 155, 158, 160, 161, 164, 166, 167, 168, 171, 172, 179, 180, 182, 183, 184, 188, 189, 192

Employee Polygraph Protection Act of 1988/p. 57

Employer unfair conduct (see Interference with protected rights; Unfair labor practices)

Employment, reasonable expectation of/pp. 15-16

Enforcement of rights/pp. 29-30, 39-40, 41, 43-45, 46, 47, 58, 70-71-79-80-, 90-91, 110-11, 122, 129-130, 134-135, 151-152, 160, 167, 176, 190-191 (also see Damages)

Equal Employment Opportunity Commission (EEOC)/pp. 3, 39, 40, 43, 44, 47, 51, 110, 166

Equal Pay Act/pp. 40-41, 47, 49

Equal Pay Law/pp. 40, 47, 48

Equal protection/pp. 1, 45-46, 60

Evidentiary hearing/pp. 6, 25, 26, 27, 28, 31, 33

Excluded Employees Bill of Rights Act (EEBRA)/pp. 136, 138, 139, 145, 146, 158, 164, 182, 184

Exclusive representation/pp. 147, 151, 159, 162, 164, 166, 168, 169, 170, 171, 172, 177, 179, 186

Fair Employment and Housing, Department of (see Department of Fair Employment and Housing)

Fair Employment and Housing Act (FEHA)/pp. 36, 37, 38-40, 43, 47, 48, 50, 56, 90, 105-113, 118, 119, 121

Fair representation (see Duty of fair representation)

Fair share fee/pp. 86, 147, 169, 183, 189 (also see Agency shop; Agency fee)

False Claims Reform Act of 1986/pp. 101-102

Family and Medical Leave Act (FMLA)/pp. 115-118

Family leave/pp. 115-126

Federal discrimination laws/pp. 36, 42-45, 46-52, 91, 105, 108, 110

Federal employees/pp. 1, 6, 10-11, 23, 30, 38, 43-47, 87, 91, 93, 99-100, 116, 133-134, 135, 139, 141, 142, 147, 148, 156, 158, 160, 165, 171, 176

Federal Labor Relations Authority/pp. 139, 145, 149, 152, 158, 165, 183, 184

Federal Service Labor-Management Relations Statute (aka Title VII of the Civil Service Reform Act)/pp. 139, 145, 149, 152, 158, 165, 183, 184

Fifth Amendment (see United States Constitution)

Firefighters/pp. 46, 75, 78, 79, 80, 124, 152

Firefighters Procedural Bill of Rights Act (FBOR)/pp. 75-83, 159

First Amendment (see United States Constitution)

Fourteenth Amendment (see United States Constitution)

Fourth Amendment (see United States Constitution)

Free speech right/pp. 1, 71, 84-96, 102, 185, 189

Freedom of association/pp. 84-87, 187

Freedom of religion/p. 84

Freedom of Information Act/p. 57

Furloughs/pp. 10, 127

Genetic Information Non-discrimination Act (GINA)/ p. 47

Good cause/pp. 13, 15, 18, 19, 20, 23

Government Code/pp. 7, 20, 41, 42, 67, 76, 184

Governmental immunity/p. 17

Grievance procedures/pp. 12, 13, 30, 44, 58, 70, 79, 99, 129, 130, 131, 132, 133, 134, 135, 142-143, 146, 147, 149, 160, 165, 166, 168, 169, 176, 179, 186, 191

Grievance processing/pp. 173-174, 179, 191

Harassment (see Sexual Harassment)

Hatch Act and “little Hatch Act”/pp. 87, 93

Health Insurance Portability and Accountability Act/p. 66

Higher education employees (see California State University employees; University of California employees)

Higher Education Employer-Employee Relations Act (HEERA)/pp. 132, 136, 138, 139, 142, 143, 144, 146, 149, 150, 151, 158, 164, 166, 167, 171, 172, 177, 182, 183, 84, 186

HIV-related diseases/pp. 107, 108, 111, 113, 125

Industrial Relations, Department of/p. 41

Hudson procedures/notice/pp. 186-187, 191, 193

Information Practices Act/p. 67

In-Home Supportive Services Employer-Employee Relations Act (IHSSEERA)/ pp. 139, 143, 145, 146, 149, 150, 152, 158, 164, 165, 167, 171, 176, 182, 183, 184, 188

Interference with protected rights/pp. 55, 84, 99, 125, 144, 149, 151, 53, 154, 167

Just cause/pp. 6, 11, 13, 14, 18, 21, 23, 24, 25, 30, 31

Labor Code/pp. 17, 19, 38-40, 64, 66, 67, 71, 100-102, 108

Law enforcement employees (see Peace officers)

Layoffs/pp. 26, 127-136

Leave (see Family leave; Medical leave, Pregnancy leave)

Liberty interest/pp. 6, 7, 23, 28, 32

Lie detector test (see Polygraph test)

Lilly Ledbetter Fair Pay Act of 2009/p. 43

Local government employees/pp. 1, 6, 8-9, 42, 45, 57, 68, 84, 87, 91, 99, 129-130, 138, 139-141, 144, 158, 167, 171, 178, 186

Los Angeles County Metropolitan Transportation Authority Employer-Employee Relations Act (TEERA)/pp. 139, 141, 143, 145, 151, 172, 182, 183, 188

Los Angeles city and county employees/p. 140

Maintenance of membership/pp. 147, 182, 184, 190

Managerial employees/pp. 7, 15, 126, 138, 139, 146

Medical leave/pp. 74, 115-126

Memoranda of understanding/p. 129

Merit Systems Protections Board/pp. 11, 18, 22, 91, 100, 134

Meyers-Milias-Brown Act (MMBA)/pp. 129, 135, 138, 139, 140, 141, 143, 144, 145, 146, 149, 150, 151, 152, 158, 161, 164, 167, 169, 171, 172, 178, 179, 180, 182, 183, 184, 188

National Labor Relations Act (NLRA)/pp. 19, 137, 145, 158

Obesity/pp. 107, 111

Objectors (see Agency fee objectors and challengers)

Office of Federal Contract Compliance/p. 110

Office of Personnel Management/p. 133

Office of the Special Counsel/p. 11

Organizational security/pp. 86, 147, 181-194

Paid Family Leave Law/p. 119

Peace officers/pp. 26, 60, 63, 65, 66, 67, 68, 69, 72, 73, 75, 79, 80, 140, 141, 143, 158

Penal Code Section 832.7(a)/pp. 69, 72

Personnel Administration, Department of (see Department of Personnel Administration)

Personnel file, access to, contents of, disclosure of/pp. 57, 58, 63-68, 70-71,-74, 78, 79

Personnel rules/pp. 6-11, 24, 29, 36, 58, 129-130, 132, 134

Political activity/pp. 1, 76, 85, 87, 92, 188-189

Polygraph (lie detector) test/pp. 53, 57, 60, 78, 82

Pre-disciplinary procedures/pp. 24, 25-27, 30, 150

Pregnancy (see Discrimination—pregnancy; Medical leave)

Pregnancy Disability Leave Law (PDLL)/pp. 115, 119

Pregnancy leave/pp. 39, 115, 119

Privacy, reasonable expectation of/pp. 1, 53-62, 71

Privacy Act/pp. 57-58

Privacy right/pp. 19, 53-55, 57, 62, 70, 71, 73

Private employees/pp. 14, 15, 38, 42, 44, 50, 56, 57, 60, 84, 106, 108, 115, 116, 137-138, 184

Probationary employees/pp. 7, 11, 15, 24, 27, 28, 127, 130, 133, 134

Property interest in employment/pp. 6, 7, 23, 24, 26, 27, 28, 29, 30, 32, 33, 130

Protected activities/pp. 27, 34, 85, 90, 97, 144-157

Public concern, matters of/pp. 87, 88, 89, 92, 93, 94, 95, 96, 102

Public Employment Relations Board (PERB)/pp. 139, 140, 141, 142, 143, 148, 149, 150, 151, 152, 156, 160, 165, 169, 171, 172, 173, 174, 175, 176, 177, 178, 179, 186, 187, 191

Public policy violations/pp. 16-17, 18, 19, 48, 103, 125

Public Records Act/pp. 55, 57, 59, 68, 69, 72, 73

Public Safety Officers Procedural Bill of Rights Act (PSOPBRA)/pp. 26, 57, 67, 72, 75-83, 159, 163

Public school employees/pp. 9-10, 12, 25, 41, 65, 75, 92, 99, 130-132, 139, 144, 156, 164, 167, 171, 176

Punitive action (see Discipline)

Race (see Discrimination — race)

Reasonable accommodation (see Accommodation)

Reasonable expectation of employment (see Employment; Reasonable expectation of)

Reasonable expectation of privacy (see Privacy; Reasonable expectation of)

Reduction in force/pp. 127-136

Reemployment rights/pp. 121-122

Rehabilitation Act of 1973/pp. 47, 105, 106, 110, 113

Religion (see Discrimination— religion; Freedom of religion)

Remedies (see Damages; Enforcement of rights)

Representation (see Duty of fair representation; Exclusive representation; Self representation; Union representative, right to)

Representation elections/pp. 147, 155

Retaliation/pp. 18, 34-41, 48, 84, 95, 98, 99, 101, 102, 103, 123, 140, 153

“Right to sue” letter/pp. 39, 40, 43, 110

School employees (see Public school employees)

Search and seizure (see United States Constitution — Fourth Amendment)

Self-representation/pp. 164-169

Seniority/pp. 41, 47, 121, 122, 127, 128, 129, 131, 133

Sex discrimination (see Discrimination — sex)

Sexual harassment/pp. 18, 20, 34-52, 78, 103

Skelly right/pp. 24-33

Speech (see Free speech right)

State civil service employees/pp. 7-8, 12, 15, 50, 66, 67, 98, 128, 129

State employees/pp. 6, 7-8, 9, 23, 41, 42, 43, 45, 70, 71, 87, 91, 98, 100, 128-129, 139-141, 144, 145, 146, 158, 160, 164, 167, 168, 171, 176, 189, 193

State Employer-Employee Relations Act (see Dills Act)

State Personnel Board (SPB)/pp. 8, 21, 98, 103, 104, 128

Strikes (or other job actions)/pp. 148, 153, 154, 155, 188

Supervisory employees/pp. 37, 138-139, 145, 164, 171, 183

TEERA (see Los Angeles County Metropolitan Transportation Authority Employer-Employee Relations Act)

Temporary employees/pp. 7, 15, 24, 116, 127, 138

Termination (see Wrongful termination)

Tests (see Alcohol testing; Drug testing; Polygraph test)

Title VII /pp. 36, 39, 40, 42-44, 45, 46, 47, 48, 49, 50, 51, 90, 91, 110, 139, 145 (see also Civil Rights Act of 1964)

Transit district employees/pp. 138, 141, 144-145, 171

Trial Court and Interpreter Employment and Labor Relations Act (TCIELRA)/pp. 138, 143, 145, 146, 149, 151, 152, 182, 183, 184, 188

Trial Court Employment Protection and Governance Act (TCEPGA)/pp. 138, 139, 143, 145, 146, 149, 151, 152, 182, 183, 184, 188

Unfair (labor) practices/pp. 141, 142, 145, 149, 151, 152, 169, 180

Union activity/pp. 85, 91, 140, 144-145, 147, 149, 150, 151

Union interference, prohibited conduct/pp. 151, 167 (also see Duty of fair representation)

Union internal affairs/pp. 175, 178

Union membership/pp. 144-157 (see also Maintenance of membership)

Union representative, right to/pp. 69, 94, 148, 149, 158-163, 166, 167, 168

Union shop/p. 184

United States Constitution/pp. 1, 6, 16, 23, 27, 31, 45-46, 53, 59, 88l, 91, 94, 102

First Amendment/pp. 84-96, 102, 182, 185, 186, 187

Fourth Amendment/pp. 23, 59, 60, 61

Fifth Amendment/pp. 23, 30, 45, 46

Fourteenth Amendment/pp. 23, 24, 36, 45-46, 84

University of California employees/pp. 10, 32, 67, 100, 132-133, 138, 140, 161-162

Urinalysis (see Alcohol testing; Drug testing)

Uniformed Services Employment and Reemployment Rights Act (USERRA)/p. 19

Weingarten right/pp. 158-159, 160, 161, 162, 163

Whistleblower Protection Act of 1989/pp. 99-100

Whistleblower protections/pp. 97-104

Workers’ compensation/pp. 2, 16, 50, 63, 78

Wrongful termination/pp. 5-22, 48, 103, 124, 125, 127, 176

Publications of the CPER Program

CPER Pocket Guide Series

Pocket Guide to Disability Discrimination in the California Workplace

Pocket Guide to Dismissal Procedures Affecting Permanent, Certiﬁcated Employees

Pocket Guide to Due Process in Public Employment

Pocket Guide to Factﬁnding

Pocket Guide to Just Cause: Discipline and Discharge Arbitration

Pocket Guide to K–12 Certiﬁcated Employee Classiﬁcation and Dismissal

Pocket Guide to Layoff Rules Affecting Certiﬁcated Employees

Pocket Guide to Layoff Rules Affecting Classiﬁed Employees

Pocket Guide to Layoff Rules Affecting Community College Faculty

Pocket Guide to Public Sector Arbitration: California

Pocket Guide to Public Sector Mediation in California

Pocket Guide to the Basics of Labor Relations

Pocket Guide to the Educational Employment Relations Act

Pocket Guide to the Fair Labor Standards Act

Pocket Guide to the Family and Medical Leave Acts

Pocket Guide to the Fireﬁghters Procedural Bill of Rights Act

Pocket Guide to the Higher Education Employer-Employee Relations Act

Pocket Guide to the Meyers-Milias-Brown Act

Pocket Guide to the Public Employees’ Pension Reform Act

Pocket Guide to the Public Safety Ofﬁcers Procedural Bill of Rights Act

Pocket Guide to the Ralph C. Dills Act

Pocket Guide to Unfair Practices: California Public Sector

Pocket Guide to Workplace Investigations

Pocket Guide to Workplace Rights of Public Employees

Pocket Guide to Workers’ Compensation in California

For the latest editions, go to the CPER website at

http://cper.berkeley.edu

For Inquires:

cperservices@berkeley.edu

510-643-7093