Wednesday, July 20, 2016

Dash Camera Video Not Part of Officer’s Personnel Record, Court Rules

A California appeals court ruled this week that dash camera footage is not part of an officer’s confidential personnel record, even though it was used in an internal affairs investigation against the officer. The Court of Appeal ruled in City of Eureka v. Superior Court (Thadeus Greenson) (1st Dist., July 19, 2016) that Pitchess statutes do not protect this kind of video footage from being released to the public.

Eureka Police Sergeant Adam Laird and other officers arrested a juvenile suspected of gang activity. After the incident, the Eureka Police Department opened an internal affairs investigation into Sergeant Laird’s conduct, eventually deciding to fire him. And the Humboldt County District Attorney’s Office charged Laird with misdemeanor assault by a police officer without lawful authority and making a false police report. Both investigations alleged that Laird used excessive force against the suspect, including pushing him to the ground and then kicking or stomping on him repeatedly.

A key piece of evidence in both of these investigations was the video recorded by the dash camera in another officer’s vehicle. This video apparently recorded the whole interaction between Sergeant Laird and the juvenile suspect. Experts hired by both the prosecution and Laird’s defense attorney determined Laird’s use of force was justified under the circumstances. The prosecution dropped the charges and the Department halted its termination of Laird.

However, a local newspaper reporter then filed requests for the video footage. The reporter claimed the video was a public record. A trial judge in Humboldt County agreed and ordered the City of Eureka to release the video. The City appealed the judge’s order, arguing the video was part of Laird’s confidential personnel file and could only be released through the procedures required by the Pitchess statutes.

The Court of Appeal rejected the City’s argument and affirmed the order to release the video. The Court ruled that because the video was recorded before any investigation had begun, it was an independent record and was not part of Laird’s personnel file. Because the video was merely considered during the investigation and was not generated by it, the video was not a record related to “employee advancement, appraisal, or discipline.”

The Court relied on the major decision by the California Supreme Court two years ago in Long Beach Police Officers Association v. City of Long Beach (2014). In that case, the Supreme Court ruled that Long Beach could not withhold the identity of a police officer who had been involved in a shooting, but must disclose it to requesting newspapers. Here, the Court of Appeal ruled that dash camera footage is similar to an officer’s identity and must be released to the public.

The Court of Appeal’s decision is a serious setback to the privacy interests of peace officers across the state. Under the ruling, potentially all dash camera and body camera footage could be subject to public release.

Monday, July 18, 2016

Court of Appeal Holds Public Employer Can Refuse to Indemnify Officers Where Malice Found

In David Chang et al., v. County of Los Angeles, --- Cal.App.2d --- (July 1, 2016) 2016 WL 3574063, Sheriff's deputies brought action against the County seeking indemnification of a judgement against them under Government Code section 825.  The County had provided a defense for three employees under a reservation of rights, then refused to pay the resulting judgment for battery and civil rights violations on the ground that the employees acted with actual malice.

The deputies were sued by an inmate for battery and violation of civil rights. On September 9, 2010, following a jury trial, the jury found the deputies violated Franco's federal civil rights, causing injury or harm to him. The jury also found each of the deputies acted with malice, oppression or reckless disregard in violating the inmate's civil rights, and that they acted with malice, oppression, or fraud in committing battery on Franco.

Against each deputy, the jury awarded compensatory damages of $85,000 and punitive damages of $50,000. The total compensatory damage award was $255,000. The deputies were jointly and severally liable for an award of costs of $6,754.80 and attorney fees of $189,331.67. The employees sought indemnification from their employer under Government Code section 825. The trial court granted summary judgment in favor of the employees.  The appellate court reversed.

The deputies signed agreements with the County of Los Angeles setting forth the terms and conditions under which the County would defend them. The first paragraph of each agreement listed circumstances under which the County might withdraw from defending a deputy, including if the deputy did not act within the scope of his employment or he acted or failed to act because of actual fraud, corruption, or actual malice.

On appeal, the public entity contended that because the defense was conducted under a reservation of rights, the deputies had to satisfy the requirements of section 825.2 for indemnification.  The court agreed, holding by implication the County had reserved the right not to indemnify the deputies for acts within the course and scope of their employment that were taken with actual malice. The court pointed out the County showed the jury had acted with malice or at the very least, a triable issue of fact existed as to whether the deputies acted with malice.

By implication, the court found the County reserved the right not to indemnify the deputies for acts within the course and scope of their employment that were taken with actual malice. Having reserved that right, the County could invoke section 825.2 in seeking to deny indemnification.

Federal Appeals Court Vindicates First Responder Regulation in Ordering Overtime for Fire Captains

In Morrison v. County of Fairfax, VA, --- F.3d --- (4th Cir. June 21, 2016, No. 14-2308) 2016 WL 3409651, the Fourth Circuit Court of Appeals enforced Fire Captains' right to overtime under the First Responder Regulations of the Fair Labor Standards Act (FLSA).  

Under the FLSA employees who work overtime generally are entitled to overtime pay.  However, public entities that fail to properly pay overtime often argue Fire Captains and Police Sergeants are exempt from the overtime requirements of the FLSA.  The FLSA does provide an an exception, which must be narrowly construed, for certain “executive” and “administrative” employees whose primary job duties are management-related.

The district court erroneously held that Fairfax County fire captains were exempt executives, and entered summary judgment for Fairfax County.  On appeal, the County doubled down arguing some of the Captains are exempt executives while others are exempt administrators.

However, under the First Responder Regulations of the FLSA, the executive and administrative exemptions to the FLSA overtime requirements did not apply to certain firefighters regardless of rank or pay level unless their primary duty was management or directly related to management, applied to fire captains employed by county fire department.

The Department of Labor applies four factors in determining whether exempt duties constitute the primary duty of an employee: [1] relative importance of the exempt duties as compared with other types of duties; [2] the amount of time spent performing exempt work; [3] the employee’s relative freedom from direct supervision; and [4] the relationship between the employee’s salary and the wages paid to other employees for the kind of nonexempt work performed by the employee. 

The Court ruled that the evidence failed to show that the captains’ primary duty was management related and instead was to respond to emergency calls. First, fire fighting is clearly the more important job when compared to the captains’ exempt duties. Emergency calls take priority and captains do not have discretion to disregard the duty. Second, while captains do have some tasks that are distinct from their first-responder duties, these duties take at most 25 hours out of the working year. Third, the captains’ role is to carry out their supervisors’ orders and are thus in constant contact with their supervisors. And lastly, there was nothing evidencing a significant pay gap between the captains and non-exempt lieutenants just below them. Therefore, the court ruled Fire Captains are entitled to overtime compensation under the FLSA. 


Hopefully this decision will put to rest the boilerplate defense raised in public sector FLSA cases that Fire Captains and Police Sergeants are exempt from the FLSA's overtime protections.  Public safety employees whose primary duty is to investigate crimes or fight fires are not exempt merely because they also direct the work of other employees in the conduct of an investigation or fighting a fire.

Monday, June 13, 2016

Howard Liberman Joins Mastagni Hosltedt as Los Angeles Office Managing Attorney

Howard A. Liberman

Managing Attorney, Los Angeles Office

Office: 916-318-4601
Cell: 310-701-5582


"We are pleased to welcome Howard to our firm as our Los Angeles Managing Attorney; his experience will allow us to further service the firm's regional and statewide clients."
-David P. Mastagni, Founding                 Partner

With more than 65 attorneys and negotiators, Mastagni Holstedt, A.P.C. is the largest law firm representing law enforcement and firefighters in California and the U.S., dedicated to representing clients in the protection and advancement of public safety officers and their rights.  Mastagni Holstedt, A.P.C. has gained state and national recognition in the area of Labor and Employment as an AV-rated preeminent law firm by Martindale Hubbell, and is listed among the "Top Law Firms" in the Sacramento Business Journal, and has been recognized as a top law firm by Forbes and Fortune Magazines.


Mastagni Holstedt, A.P.C. is pleased to announce that Howard A. Liberman has joined the firm's Labor and Employment Practice as the Los Angeles Office Managing Attorney. 

Howard has been practicing law since 1992 and began his legal career in the United States Navy as a member of the Judge Advocate General's Corps.  He served on active duty for five years as a defense attorney, prosecutor, and Assistant Staff Judge Advocate (in house counsel) to a two-star admiral.  Howard affiliated with the Navy Reserve serving as a defense attorney, legal assistance attorney, appellate defense counsel, and executive officer.  In 2014, he retired from the Navy with the rank of Commander.

In 1997, Howard began practicing public sector labor law focusing his civilian practice on labor and employment, with an emphasis on public safety disciplinary defense and collective bargaining.  For nearly two decades, Howard has successfully litigated numerous appeals of administrative discipline in both the Superior Court and the Court of Appeal on behalf of police officers and firefighters wrongly accused of misconduct throughout California.

Howard is a graduate of Bloomsburg University (1989) and Temple University School of Law (J.D. 1992). He is a native of Scranton, Pennsylvania and is an avid Philadelphia sports fan. Howard resides in the West L.A. area with his wife and two daughters.

Wednesday, June 8, 2016

Cash-in-Lieu of Health Benefits is Included in Rate Calculations Under FLSA

If you receive cash in lieu of healthcare benefits, you may be entitled to additional overtime compensation from your employer.  The Ninth Circuit Court of Appeal recently ruled that cash payments made to employees who declined medical coverage had to be included in the regular rate used to calculate the employees’ overtime compensation.

In Flores v. City of San Gabriel, the Ninth Circuit ruled the City of San Gabriel willfully violated the Fair Labor Standards Act (“FLSA”) by failing to include cash payments for unused medical benefits in police officers’ overtime calculations. The court also ruled that money the City paid out to third parties for officers’ benefits had to be included in their overtime rate. Under 29 U.S.C. section 207(e)(4), payments to third parties or trustees made pursuant to a “bona fide plan” for providing health insurance benefits could be excluded from the regular rate used to calculate overtime. The court found that the City’s plan was not a “bona fide plan” because approximately 40% of the City’s total contributions were paid directly to employees, rather than received as benefits.

Many public employers give employees a cash incentive for opting out of employer-provided medical coverage. The court’s ruling in Flores establishes that such incentives must be included in the regular rate used to calculate overtime for employees who receive them.  Not many employers do this.

If your agency offers cash in lieu of medical benefits, you may have a claim for unpaid overtime and liquidated damages in an amount equal to the unpaid overtime (e.g. double damages) under the FLSA. While your agency may fix this issue going forward, you will likely need to file a lawsuit to recover backpay. Under the FLSA, an employee can only recover damages for unpaid wages that occurred within the last three years. As such, it is important to pursue an FLSA claim immediately.

If you are represented by our office and your agency offers cash in lieu of medical benefits, you should call our office or your union immediately to discuss the matter.

Friday, May 27, 2016

Seventh Circuit Holds Class Action Waiver Unenforceable

The Seventh Circuit sided with the National Labor Relations Board (NLRB), creating a split with the Fifth Circuit, in holding an employer's arbitration agreement was unenforceable. (Lewis v. Epic Systems Corp. (7th Cir., May 26, 2016) No. 15-2997.) 

The employer, a software company, violated the National Labor Relations Act (NLRA) by imposing a mandatory arbitration agreement barring employees from seeking class, collective, or representative remedies to wage-and-hour disputes. The employer required certain employees to sign as a condition of employment. A technical writer who signed the agreement filed a putative class action arguing the employer had misclassified the technical writers as exempt from overtime. The employer moved to compel arbitration. The district court denied the motion.

The Seventh Circuit found "concerted activity" could include resort to class action remedies. The court then determined the arbitration agreement impinged employee's rights to engage in concerted activity. The employer argued the Federal Arbitration Act (FAA) trumped the NLRA and entitled it to enforce its class-action waiver. The Seventh Circuit disagreed, stating the employer's argument "put the cart before the horse." The first question was not whether the FAA "trumped" the NLRA, but whether the two statutes were in conflict at all. The FAA contains a saving clause that does not require a court to enforce agreements "upon such grounds as exist by law." Thus, the Seventh Circuit determined it was not required to enforce an illegal arbitration agreement that violated the NLRA.

The decision also questioned a Ninth Circuit opinion, which held a class-action waiver may be enforceable where the employee had the right to opt out without penalty. According to the Seventh Circuit, the Ninth Circuit's decision failed to defer to previous Board decisions reaching the opposite conclusion.

Tuesday, May 24, 2016

POBRA's One-Year Limitation Tolled By Internal Criminal Investigations

On May 24, 2016, the Third District Court of Appeal held the one-year statute of limitations under the Public Safety Officers Bill of Rights Act (“POBRA”) is tolled when a law enforcement agency conducts its own criminal investigation. (Department of Corrections and Rehabilitation v. State Personnel Board (Shiekh Iqbal)(May 24, 2016, No. C073865.)

Under POBRA, employers cannot take punitive action for investigations not completed within one year, except under certain circumstances. One such circumstance is that the statute of limitations is tolled while a criminal investigation into the same conduct by the same employee is ongoing. The question before the court was whether the statutory tolling of the limitations for “criminal investigations” applied when the agency conducts its own investigation, rather than having it done by an independent agency.

The court determined the language of the statute was clear and placed no restriction on who conducts the criminal investigation. The court dismissed a State Personnel Board decision that reached the opposite conclusion, finding the Board has misapplied prior case law. Looking to Legislative intent, the court reasoned that the Legislature knew there could be abuses by law enforcement employers who were conducting criminal and internal affairs investigations of their employees which is why it qualified the criminal investigation exemption provision with the language that the investigation had to be “concerned solely and directly with alleged criminal activities.”

            Ultimately, the court held the defendant was arguing a factual issue on whether the employer was conducting a criminal investigation only to toll the statute of limitations. The court found the allegation of delay had no traction because the Notice of Adverse Action (“NAA”) was served only three days past the one-year limitations period expired. Regardless, the court stated the limitations period had been tolled for the entire criminal investigation, and thus, the NAA was timely.