Court Rules POBR Statute of Limitations Tolled Until DA Declines Charges

In Richardson v. City and County of San Francisco (ord. pub. March 15, 2013), the Court of Appeal held a criminal investigation tolls the one year statute of limitations until the DA declines charges.  The case is about a San Francisco fraud investigator who was fired for CLETS violations, check fraud, and resisting arrest.  After the IAs were sustained, she filed a lawsuit claiming her Department did not discipline her within the one-year statute of limitations for discipline under POBR.

POBR’s one year statute of limitations has several exceptions.  One of the exceptions applies when, a “criminal investigation... is pending.”  Richardson argued POBR’s statute of limitations expired because the criminal investigation had to be an “actual and active investigation or prosecution” and the DA had stopped actively investigating the case against her more than a year before she was fired.  However, the Court decided the “active and actual” requirement is unworkable because it would be hard to prove how “active” a criminal investigation is at any point.  Instead, the Court said the investigation ended when the DA declined charges.  As a result, the Court upheld the discipline.

Court Finds Employers Liable for Word-of-Mouth Invasion of Privacy

In Ignat v. Yum Brands, Inc. (March 18, 2013) Case No. G046343, the Fourth District Court of Appeal ruled employees can sue when their employers publicly disclose private facts about them, even if just verbally.  The case started when Melissa Ignat, a Yum Brands employee, returned to work after an absence to learn that her employer had revealed to her co-workers that she suffered from bipolar disorder.  She filed a lawsuit, alleging public disclosure of private facts.

The case is especially significant because the Court of Appeal abolished the requirement that disclosure happened in a document.  The Court decided there was no good reason for the "document requirement" and recognized that verbal disclosures can be just as harmful and written ones.  Since the requirement served no legitimate purpose, the Court allowed Ms. Ignat to sue her employer for verbally disclosing her condition to her co-workers.

PERB Charges San Jose With Labor Law Violations Over Pension Initiative

On March 8, 2013, the Public Employment Relations Board issued a complaint against the City of San Jose related to Measure B, that City's attempt to strip employees of their retirement security.  The complaint alleges the City "knowingly provided inaccurate information" to the union about "its fiscal obligations regarding retirement benefits."  The City has been widely criticized for using pension numbers "not based on reality."

The complaint also alleges the City refused to meet and confer with the union and moved forward with Measure B without completing the labor relations process.  Accordingly, the complaint alleges the City violated Government Code sections 2503, 3505, and 3506.5.  Now the City must respond to the allegations with 20 days and the case will proceed to a hearing in front of judge with the Public Employment Relations Board.

Bill Introduced to Create "Union Agent-Represented Employee Privilege"

Assemblymember Roger Hernández introduced a new bill, AB 729, to create a new privilege, giving union representatives the right to refuse to disclose their communication with union members.  The law would create a new evidentiary privilege in California, like attorney-client, priest-penitent, and doctor-patient privilege.

The proposed law would give union representatives the "privilege to refuse to disclose any confidential information he or she may have acquired, whether or not the information was revealed in a communication between the union agent and a represented employee, in attending to his or her professional duties or while acting in his or her representative capacity" with some exceptions.  In discipline cases, the employee would have the right to insist the union representative not disclose communications.  In all other cases, the union is the sole holder of the privilege.

Assemblymember Eggman Introduces Bill to Slash Interest Due on Debts to Employees, Others

Under current law, when employees or labor associations win a judgement against a public entity, the agency has to pay interest on the debt until they pay it off.  The interest rate is set at 7% or 10%, depending on the type of case.  Now Assemblymember Susan Eggman has introduced AB 748 to let cities and counties pay minimal interest on these debts, jeopardizing employees' and unions' rights across the State.

Eggman's law would cap the interest a public agency has to pay at no greater than the rate on the "Pooled Money Investment Account."  That rate has been less than 1% for the past three years.  As a result, employees who are illegally terminated or denied their wages would receive much less interest on their awards than the interest they have to pay on their personal loans, mortgages, and credit card payments.  Cities win, employees lose.  Eggman previously served on the Stockton City Council were she voted to withhold employees' wages, even though they were guaranteed by labor contracts.

Sen. Leiu Introduces Bill to Expand POBR

Senator Ted Leiu introduced a new bill, SB 388, the expand officers' POBR rights under state law.  Under current law, agencies must inform public safety officers of the nature of an interrogation and allow them to have a representative, but only when the officer is "under investigation."  SB 388 expands the law to cover public safety officers "subject to interrogation without being under investigation."  This change makes clear officers have a right to notice regardless of whether an IA is opened on them and helps protect witness officers' rights.

SB 388 also expands the rule that public safety officers have a right to a representative "whenever an interrogation under any circumstances focuses on matters that could lead to punitive action."  Under the old law, the right to a representative only applied when an interrogation "are likely to result in" punitive action.  The bill is currently being considered by the committees on public safety and appropriations.