Court of Appeal: Cadets Can't Be Fired for Getting Hurt In Academy

In Atkins v. City of Los Angeles, the Court of Appeal ruled that the California Fair Employment and Housing Act applies to pre-probationary public safety recruits attending academy training. The City of Los Angeles used to allow recruits who were injured during training to temporarily fill light-duty administrative positions until they either healed or became permanently disabled. At some point, the department decided to cease offering these positions and told five recruits who were on light duty that they needed to get medically cleared to return to full duty or they would be terminated. None of the recruits were able to do so and they were terminated or forced to resign. They sued and won a total of $12.3 million in future wages from the date of termination through to a hypothetical date of retirement.

Under FEHA an employer may not discriminate against "qualified individuals" on the basis of their disability. A "qualified individual" is a person who can perform the essential job duties of a position. Here, the recruits could perform the essential functions of the light-duty administrative position, but not the police recruit position. On appeal the City argued that the Court must determine whether the recruits are qualified individuals with respect to the recruit position, not the temporary administrative position. The City also argued that it had no duty to accommodate pre-probationary trainees.

The Court of Appeal found there was no distinction in the FEHA between pre-probationary employees, probationary employees, and regular employees with regard to either discrimination or the duty to accommodate. Thus, the Court upheld the failure to accommodate claim. However, the Court agreed that the proper test in a discrimination context is to examine whether the employees were "qualified individuals" with respect to the police recruit position, not the temporary light duty administrative position. Accordingly, the Court found that the employer did not discriminate against them. Ultimately the City was still liable for failure to accommodate, but the court did reduce the damages as they were too speculative.

PERB: No Duty to Bargain Over Retired Peace Officers' CCWs

In Riverside Sheriffs' Association v. County of Riverside (2013) 38 PERC ¶ 21, PERB ruled an employer does not have to meet and confer with a union about the CCW policy for retirees because retirees are not in the bargaining unit.  PERB reaffirmed that employers do not have to negotiate policies affecting retirees or other employees outside a union's bargaining unit unless those decisions affect current bargaining unit members in a significantly adverse way.

Legislative Analyst's Office, CDCR Address Realignment

In March and again in June, the Legislature passed a series of bills to shift responsibility for some services from the state to local and municipal governments. This process of realignment has far-reaching implications in local law enforcement, probation and corrections.   As part of this process, the state will begin diverting criminal offenders and parole violators to county supervision starting October 1st.

With the implementation date approaching, the Legislative Analyst's Office released a report today on the construction and mechanics of realignment as well its recommendations to improve the process.  Likewise, the California Department of Corrections and Rehabilitation launched a website yesterday to outline how realignment will impact state and local corrections, juvenile justice administration and supervision of parolees.

Client Advisory: PERB, Not Courts, to Decide Probation Officers' Duty of Fair Representation Claims

In Paulsen v. Local No. 856 of Intern. Broth. of Teamsters (Cal. Ct. App., Mar. 18, 2011) 11 Cal. Daily Op. Serv. 3366, the Court of Appeal decided PERB’s exclusive jurisdiction extends to probation officers and to duty of fair representation cases. Click on the link below for a discussion of the case in PDF format:


- Court: PERB Must Decide If Union Breached Duty of Fair Representation to Probation Officer -