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Presented by: Peter Brown Public Sector Employment Law Update Western Region Intergovernmental Personnel Assessment Council / May 6, 2010.

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Presentation on theme: "Presented by: Peter Brown Public Sector Employment Law Update Western Region Intergovernmental Personnel Assessment Council / May 6, 2010."— Presentation transcript:

1 Presented by: Peter Brown Public Sector Employment Law Update Western Region Intergovernmental Personnel Assessment Council / May 6, 2010

2 Discrimination - Disability An employee returning from ADA disability leave may be asked about her ability to perform job duties but cannot subjected to a medical exam. An employee returning from ADA disability leave may be asked about her ability to perform job duties but cannot subjected to a medical exam. Indergard v. Georgia-Pacific Corp. (9th Cir. 2009) 582 F.3d 1049, on remand to 2010 WL (Jan 2010).

3 Discrimination – Religion A police department could discipline a Muslim employee for refusing to remove a head scarf. A police department could discipline a Muslim employee for refusing to remove a head scarf. Webb v. City of Philadelphia (3rd Cir. 2009) 562 F.3d 256.

4 Discrimination – Race Disparate impact on minorities, by itself, is not enough to permit setting aside an otherwise apparently valid promotional exam. Disparate impact on minorities, by itself, is not enough to permit setting aside an otherwise apparently valid promotional exam. Ricci v. DeStefano (2009) 129 S.Ct

5 Discrimination – Gender A female officer who repeatedly finishes higher on eligibility lists than the male officers who are promoted may sue for gender discrimination. A female officer who repeatedly finishes higher on eligibility lists than the male officers who are promoted may sue for gender discrimination. Risch v. Royal Oak Police Department (6th Cir. 2009) 581 F.3d 383, rehearing and rehearing en banc denied.

6 Privacy Covert video surveillance of employees in an office may not be a violation of their privacy rights since it would not have been highly offensive to a reasonable person. Covert video surveillance of employees in an office may not be a violation of their privacy rights since it would not have been highly offensive to a reasonable person. Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272 [97 Cal.Rptr.3d 274].

7 Privacy A provision in a county employees resignation agreement prohibiting the parties from disclosing facts and reasons for the resignation was valid and enforceable. A provision in a county employees resignation agreement prohibiting the parties from disclosing facts and reasons for the resignation was valid and enforceable. Sanchez v. County of San Bernardino (2009) 176 Cal.App.4th 516 [98 Cal.Rptr.3d 96], review denied.

8 First Amendment The standards for deciding between citizen speech and employee speech are the same under the California constitution as under the federal constitution. The standards for deciding between citizen speech and employee speech are the same under the California constitution as under the federal constitution. Kaye v. Board of Trustees of San Diego County Public Law Library (2009) 179 Cal.App.4th 48 [101 Cal.Rptr.3d 456], rehearing and review denied.

9 Family Sick Leave California statutory requirements for use of paid sick leave to attend to ill family members only applies if the employers policy provides for accrued, banked sick leave hours. California statutory requirements for use of paid sick leave to attend to ill family members only applies if the employers policy provides for accrued, banked sick leave hours. McCarther v. Pacific Telesis Group (2010) 48 Cal.4th 104 [105 Cal.Rptr.3d 404]. McCarther v. Pacific Telesis Group (2010) 48 Cal.4th 104 [105 Cal.Rptr.3d 404].

10 Employer Liability A city is not liable to a female citizen who is allegedly sexually assaulted in a fire truck by city fire fighters. A city is not liable to a female citizen who is allegedly sexually assaulted in a fire truck by city fire fighters. M.P. v. City of Sacramento (2009) 177 Cal.App.4th 121 [98 Cal.Rptr.3d 812], review denied.

11 Brown Act Labor-management committees established through bargaining are not subject to the Brown Act. Labor-management committees established through bargaining are not subject to the Brown Act. Attorney General Opinion No (2009) 92 Ops.Cal.Atty.Gen. 102.

12 Brown Act A closed session of elected officials with a mediator to discuss settlement of a dispute is a violation of the Brown Act. A closed session of elected officials with a mediator to discuss settlement of a dispute is a violation of the Brown Act. Page v. MiraCosta Community College District (2009) 180 Cal.App.4th 471 [102 Cal.Rptr.3d 902], rehearing denied, review filed.

13 Benefits An employer may deny vacation accrual and vesting for the first six months of employment. An employer may deny vacation accrual and vesting for the first six months of employment. Owen v. Macy's, Inc. (2009) 175 Cal.App.4th 462 [96 Cal.Rptr.3d 70], review denied. Owen v. Macy's, Inc. (2009) 175 Cal.App.4th 462 [96 Cal.Rptr.3d 70], review denied.

14 Rights of Laid Off Classified Employees Court holds that laid off classified employee has reemployment rights to positions outside the class from which he was laid off. Court holds that laid off classified employee has reemployment rights to positions outside the class from which he was laid off. Tucker v. Grossmont Union High School Dist. (2008) 168 Cal.App.4th 640 [85 Cal.Rptr.3d 527].

15 Wage and Hour Law California public agencies are not subject to Labor Code provisions regarding overtime, meal breaks or immediate payment of wages upon separation. California public agencies are not subject to Labor Code provisions regarding overtime, meal breaks or immediate payment of wages upon separation. Johnson v. Arvin-Edison Water Storage District (2009) 174 Cal.App.4th 729 [95 Cal.Rptr.3d 53].

16 Fair Labor Standard Act Ninth Circuit finally speaks on the issue of compensability of donning and doffing uniforms and safety gear. Ninth Circuit finally speaks on the issue of compensability of donning and doffing uniforms and safety gear. Bamonte v. City of Mesa (9th Cir. 2010) ___ F.3d ___ [2010 WL ].

17 Labor Relations Teacher's complaint regarding the reduction in his own workload was not protected activity because individual complaints are protected only when they are a continuation of a group activity. Teacher's complaint regarding the reduction in his own workload was not protected activity because individual complaints are protected only when they are a continuation of a group activity. Stott v. San Joaquin Delta Community College District (2010) PERB Dec. No [34 PERC 38].

18 Labor Relations A city may reduce retiree health benefits for current employees since such benefits are not vested. A city may reduce retiree health benefits for current employees since such benefits are not vested. San Diego Police Officers' Assn v. San Diego City Employees' Retirement System (9th Cir. 2009) 568 F.3d 725.

19 Labor Relations An employee must affirmatively request representation at an investigatory interview before there can be a violation of his right to representation. An employee must affirmatively request representation at an investigatory interview before there can be a violation of his right to representation. Shelton v. San Bernardino County Public Defender (2009) PERB Dec. No. 2058M [33 PERC 148].

20 Monetary Settlement Monetary settlement for discrimination plaintiff's emotional distress was taxable as income. Monetary settlement for discrimination plaintiff's emotional distress was taxable as income. Wells v. Commissioner of Internal Revenue (2010) T.C. Memo , 2010 WL

21 Thank you. Peter Brown


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