US Supreme Court Declines to Hear Case that Could Weaken Public Sector Unions

Last month, the US Supreme Court rejected an appeal challenging the ability of public sector unions to serve as the exclusive bargaining representative of public employees.

The case Thompson v. Marietta Education Association (U.S., June 7, 2021, No. 20-1019) 2021 WL 2301972, was brought by Jade Thompson— a teacher at a public high school who was not a member of the union. She filed a lawsuit claiming that the Ohio law that permitted the union to act as the exclusive bargaining representative for all teachers violated her First Amendment rights to freedom of speech, association, and petition. Both the district court and the Sixth Circuit ruled against Thompson holding that the Supreme Court’s 1984 decision in Minnesota State Board for Community Colleges v. Knight (1984) 465 U.S. 271, which upheld the legality of these collective bargaining systems, controlled the outcome in Thompson’s case. Thompson appealed the case to the Supreme Court, arguing in her petition that the Court should overturn Knight in light of their 2018 decision in Janus v. AFSCME (2018) 138 S.Ct. 2448, which held that government employees can opt out of paying union fees to cover collective bargaining.

Without comment, the Supreme Court declined to hear her petition and passed on the opportunity to extend their ruling in Janus. The appeal was one of the first to test the Court’s willingness to address labor issues since the confirmation of Justice Amy Coney Barrett. 

California Supreme Court Holds the Terms "Pay" and "Compensation" Synonymous with FLSA's Regular Rate of Pay

In Jessica Ferra et al. v. Loews Hollywood Hotel, LLC (July 15, 2021) the Supreme Court of California held that employers must pay employees one-hour meal and rest period premiums based on the FLSA regular rate employers use to calculate overtime premiums rather than the employee’s base hourly rates. 

Ferra was a bartender at Loews Hollywood Hotel. The hotel paid Ferra hourly wages in addition to quarterly nondiscretionary incentive payments. If Loews did not provide an employee with a compliant meal or rest period, it would pay the employee an additional hour of pay according to the employee’s hourly wage at the time of the missed meal or break. Loews did not factor any nondiscretionary payments, such as Ferra’s quarterly incentive payments, into the calculation of premium pay owed.  

Ferra filed a class action suit against Loews alleging that the hotel failed to pay her for noncompliant meal or rest breaks in accordance with California law by omitting nondiscretionary incentive payments from its calculation of premium pay.

To calculate overtime, California Labor Code section 510(a) requires an employer to pay an hour at the employee’s “regular rate of pay” including nondiscretionary payments. If an employer does not provide an employee with a compliant meal, rest, or recovery period, section 226.7(c) requires the employer to “pay the employee one additional hour of pay at the employee's regular rate of compensation.” The question the court answered was whether “regular rate of pay” and “regular rate of compensation” were synonymous. If so, Loews erred in not including any nondiscretionary payments for Ferra and other employees’ when calculating compensation for noncompliant meal or rest breaks.  

Both the trial court and the Court of Appeal held that “regular rate of compensation” in section 226.7(c) and “regular rate of pay” in section 510(a) are not synonymous. The Courts concluded that the premium for missed meal and rest periods is the employee's base hourly wage. The Supreme Court of California reversed these holdings and instead found the two sections to be synonymous. The Court reasoned that “the words “pay” and “compensation” are often used interchangeably and “regular rate” is a well-recognized term of art.” The Court also noted “wage/hour laws are supposed to be protective of employees, so ambiguities should be construed in favor of “more protection”.”  

While this holding pertained to California Labor Code sections largely inapplicable to public employees, the broader holding regarding the meaning of "pay" and "compensation" will significantly impact public employees.  This ruling will likely be given significant weight in contractual disputes over the calculation of leave cash outs and MOU overtime rates.  

 

U.S. Supreme Court Shows Its Spirit For Students’ First Amendment Rights

In Mahanoy Area School District v. B.L., 594 U.S. ___ (2021), the U.S. Supreme Court ruled in favor of a disgruntled high school cheerleader (B.L.) who didn’t make the varsity squad. 

During one weekend at a convenience store, B.L., a public high school student, made Snapchat posts criticizing the school and the cheerleading team. One post showed her with middle fingers raised with the caption: “F--- school, f--- softball, f--- cheer, f--- everything.” To no surprise, the other cheerleaders and their moms caught wind of the post and became upset and went to the principal. In response, the school handed B.L. a one-year suspension from the cheer team.

 

The issue was whether the suspension violated B.L.’s First Amendment rights. 

 

Schools have a special interest in regulating speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” Here, the Court weighed B.L.’s interest of freedom of expression against the school’s interest of maintaining order for off-campus activity. Examples of off-campus activity that may call for school intervention include bullying, harassment, threats, or cheating on schoolwork.

 

However, B.L.’s Snapchat did not require school intervention. She did not identify the school in her post or make threats to anyone. She posted the Snapchat to an audience that only consisted of her private Snapchat friends. The post did not amount to substantial disorder because it only made the cheerleaders upset momentarily. Thus, the First Amendment protected B.L.’s speech, and the school’s suspension violated her First Amendment rights.

 

Public Employees and Free Speech

B.L. won the government interest argument because her post did not disrupt the school. A student’s gripes about the cheer team has little to no effect on the school’s operations. However, your “unpopular opinion” post can trigger more public outcry and cause a major disruption at work. 

 

Public employees are protected by the First Amendment for speaking about matters of “public concern.” A matter is of “public concern” if it deals with political, social, or other community concerns. However, the First Amendment will not protect you if the government’s interest in preventing disruptions at work and maintaining public trust outweighs your interest in free speech. This is a similar balancing test in the above case. 

 

To make matters worse for public employees, the First Amendment does not protect speech that is a part of your job duties. Don’t let this rule fool you into thinking that making a post after work is protected by the First Amendment. Your post may still be subject to the balancing test above. 

 

Here’s a Scenario

 

You have a Trump sticker on your personal truck. This is a matter of public concern because Trump is a politician (among other things). A few Biden supporters complain to your employer. Your employer is worried that you will treat Biden supporters differently than Trump supporters and tells you to remove the sticker or be fired. You sue your employer claiming that your sticker is protected by the First Amendment. The Court will apply the balancing test and likely find that the sticker is protected because a Trump sticker doesn’t necessarily imply that you do not like Biden supporters. Moreover, there is no disruption because only a few Biden supporters complained. 

 

Let’s change the facts a little. Along with your Trump sticker, you have a “Liberals Suck” sticker. Moreover, you live in an area that voted overwhelmingly for Biden. The First Amendment will probably no longer protect you because your stickers make it appear that you won’t treat Biden supporters equally. Given the community you are in, your stickers will likely harm public trust and disrupt work operations. Thus, you should follow your employer’s orders. 

Not Hacking if You Have Permission: U.S. Supreme Court Decision Regarding An Officer’s Improper Use of Police Database Aligns With California Case Law

In Van Buren v. United States, 593 U.S. ____ (2021), the Court clarified an outdated and vague law that was not in conformity with today’s digital age. Van Buren, a former police sergeant, ran a license-plate search in a police computer database in exchange for money with a shady local citizen. The FBI was already investigating Van Buren in connection with other dealings he had with the citizen. Van Buren’s database search violated department policy, which authorized him to obtain database information only for law enforcement purposes. Van Buren was also convicted of a felony violation of the Computer Fraud and Abuse Act of 1986 (CFAA), which subjects criminal liability to anyone who “intentionally accesses a computer without authorization or exceeds authorized access.” (18 U.S.C. §1030(a)(2).) The term “exceeds authorized access” is defined as “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accessor is not entitled so to obtain or alter.” (18 U.S.C. §1030(e)(6).) 

The issue was whether Van Buren exceeded his authorized access when he searched the database for an improper purpose. Van Buren argued that the “without authorization” clause protected computers from outside-hackers, while the “exceeds authorized access” clause provided protection for information within computers by targeting inside-hackers. The Government attempted to use grammar and sentence structure to show that Van Buren’s conduct fit within the provision. However, the Court stated the CFAA provision would have attached criminal penalties to an immense amount of commonplace computer activity that did not involve hacking if it adopted the Government’s interpretation. For example, employers have rules that work computers can only be used for business purposes. If an employee sent a personal e-mail or read the news using a work computer, he/she would be in violation of the CFAA. To avoid this absurd result, the Court dismissed the Government’s interpretation.

 

The Court held that Van Buren did not violate the CFAA. The Court reasoned that the provision covers people who obtain information from particular areas in the computer—such as files, folders, or databases—to which their computer access does not extend. The provision does not cover people who, like Van Buren, have improper motives for obtaining information that is otherwise available to them. Here, even though he had an improper purpose for the license-plate search, he did not exceed his authorized access. Thus, he was not hacking the database. The rule is that if you have authority to access a database, you are not exceeding that authority if you are using the database for an improper purpose.

 

The California Comprehensive Computer Data Access and Fraud Act (Penal Code § 502)

 

Penal Code § 502 is the equivalent to the CFAA. PC 502(c) has 14 enumerated acts that may constitute a violation. Our focus is on the enumerated acts that contain “knowingly accessing and without permission” language, which is similar to the CFAA provision in Van Buren. PC 502 also has a built-in “scope of employment” exception in subsection (h).

 

The CA Supreme Court has not interpreted PC 502(c), but the appellate court in Chrisman v. City of Los Angeles (2007) 155 Cal.App.4th 29 had a similar holding and reasoning as Van Buren. The ChrismanCourt held that PC 502(c)(7), which contains the “knowingly accessing and without permission” language, did not apply to an officer accused of misusing his computer to seek information that he was permitted to access, but for which he had an improper purpose.

 

The ChrismanCourt further held that the “scope of employment” exception under subsection (h) is not limited to work-related conduct. Employee conduct on a computer that is not work-related does not necessarily make that conduct criminal. The ChrismanCourt used the same example in Van Burenabout how reading personal emails on a work computer would be criminal under the statute. The ChrismanCourt reasoned that was not the intent of the Legislature. In other words, your local state representative did not intend to put you in jail for checking your social media on a work computer.

 

These holdings are not an excuse to access a database for an improper purpose. An employee can still be held liable for policy violations and other statutory violations, e.g., misuse of CLETS. If you have been charged with a violation of PC 502(c) or a similar law, consult with your attorney to determine if your conduct is applicable to your charge.

 

Attorney General's Office Releases Further Guidelines on its Investigation into Police Shootings of Unarmed Civilians (A.B. 1506)

Assembly Bill (AB) 1506, effective July 1, 2021, amended Government Code section 12525.3(b)(1) to require that the California Department of Justice (DOJ) investigate all officer-involved-shootings that result in the death of an “unarmed civilian”.

On June 24, 2021, the California Department of Justice released an information bulletin interpreting some of the ambiguous language in AB 1506.  On July 7th, the DOJ released a more comprehensive package of protocols and guidelines for the investigation of “qualifying events” (officer-involved shootings that result in the death of an unarmed civilian).

Prior to the release of these guidelines, the DOJ met with various stakeholders—including local and state law enforcement agencies—to discuss how the legislation would be implemented. However, despite these seemingly productive discussions, the protocols released on July 7th appear to disregard serious concerns raised by law enforcement groups during these meetings. Further, implementation of these guidelines is likely to improperly commandeer the authority of local governments and agencies and result in violations of officers’ constitutional rights. The full guidelines are lengthy and spread across numerous documents. In this post we address some of the most concerning issues for our law enforcement clients.

Most of these issues stem from the fact that officers cannot be compelled to give a statement or participate in a criminal investigation. Officers, like all citizens, have a Fifth Amendment right not to incriminate themselves. After a critical incident the involved officers will typically agree to voluntarily participate in a scene walkthrough and give a voluntary statement to criminal investigators. However, if the officer chooses not to do so, the employing agency can order the officer to answer questions for the purpose of conducting an internal administrative investigation. That compelled interview cannot be used against the officer in a criminal matter because to do so would violate the Fifth Amendment. (See Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822.)  

The DOJ’s guidelines suggest that if the officer declines to waive their Fifth Amendment rights, the DOJ will request that the employing agency compel officers to participate in various parts of the investigation. For example, the protocol regarding scene walkthroughs suggests that the DOJ will ask the employing agency to compel walkthroughs when necessary. If an officer is compelled to do a walkthrough, that evidence cannot be used against him in a criminal case. Moreover, if the DOJ acts in conjunction with the employing agency to compel an officer to provide a statement in a criminal investigation, that questioning is subject to POBR and the Lybarger admonition. (California Correctional Peace Officers Assn. v. State of California (2000) 82 Cal.App.4th 294.)

Additionally, the protocols state that if the officer makes incriminating statements during a walkthrough, the investigators should continue to obtain their statement, rather than immediately Mirandizing the officer as is required by the Constitution. Similarly, the DOJ cannot compel officers to provide a blood, breath, or urine sample without probable cause and a warrant.  DOJ also cannot force the employing agency to compel its officers.  If the employing agency administratively compels a blood sample, it must be based on reasonable suspicion or a negotiated policy, and the sample cannot be used in the criminal investigation.

Finally, separate and apart from these Constitutional issues, the DOJ’s guidelines regarding sleep cycles and video evidence review do not follow best practices. Experts in use of force science recommend that officers get at least two sleep cycles prior to giving a statement. The science shows that a person’s memory of a traumatic event is usually more accurate after their adrenaline wears off and they have been given the opportunity to rest and emotionally decompress. The DOJ intends to ask officers to immediately provide a shortened statement recounting their actions, and then, if permitted by local agency policy, allow the officer up to 48-hours of rest before requiring a second full interrogation.

This policy undermines the entire purpose of a sleep cycle; officers will be subject to having their credibility questioned based on any additional details provided or if there are even small discrepancies between the two statements (which will inevitably occur simply as a result of the officer’s reduced adrenaline and time to recount the events).

The DOJ’s protocols on review of video evidence present a similar problem. The guidelines state that the officer will give a statement, then be permitted to review video evidence if allowed by their agency, and then have the opportunity to clarify their original statement based on that video evidence. This practice unfairly denies officers the basic right to refresh their recollection and enhance their ability to give a full and complete statement, a right afforded any witness in court.  The second statement creates a similar concern that any clarifications will be misused by critics to attack the officer’s credibility.       

Critical incident investigations are lengthy, complex processes with lots of moving parts. This is why local agencies, in conjunction with local law enforcement stakeholders, have implemented their own policies and procedures that take into account the needs of the agency, the officers, and their community. Rather than rely on this local expertise, the DOJ’s policies usurp local authority, commandeer the employment relationship to compel compliance, and are likely to create confusion rather than uniformity. Although there is still a long way to go, we are hopeful that we can continue to work with the DOJ and other stakeholders in refining and revising these policies. Mastagni Holstedt, A.P.C. will continue to work with law enforcement stakeholders in the fight to uphold the rights of peace officers in California. Mastagni Holstedt, A.P.C. will continue to work with law enforcement stakeholders in the fight to uphold the rights of peace officers in California.

Sacramento County Superior Court Rules in Favor of the Sacramento County Deputy Sheriffs’ Association (“SCDSA”) Regarding Vested Pension Rights to Service Credit for a 7/12 Schedule and Pay Inclusions to Final Compensation

During the period of 2018 to 2020, the Sacramento County Employees Retirement System (“SCERS”) adopted three policies eliminating certain benefits that sheriff deputies had been receiving for many years without providing a similar new advantage in return.  Specifically, the calculation of service credit was changed from 2080 hours equals one year of service credit to one calendar year equals one year of service credit.  This deprived deputies that work a regular schedule that exceeds 2080 hours a year from earning extra service credit.   SCERS also implemented a policy that all deputies hired after 1/1/2013 only have a base pay calculated as part of the final highest compensation.  This deprived deputies from getting increased final highest compensation due to other forms of pay like certificate pays, incentive pays, specialty pays, and shift differential.  Lastly, SCERS implemented a policy that all deputies, no matter the date of hire, would not have K-9 pay calculated as part of final highest compensation.

SCERS took the position that the pension reform statutes passed into law in 2013 (“PEPRA”), along with the California Supreme Court Decision in Alameda Deputy Sheriff’s Assn. V. Alameda Cty. Employees Ret. Assn. (“Alameda”), authorize SCERS to implement policy changes that are consistent with the statutory scheme, even if the changes deprive employees of previously provided pension benefits.

On behalf of SCDSA, the Mastagni Law Firm filed a Writ of Mandate and Complaint for Declaratory Relief against SCERS.  The primary argument being that pension benefits (with some narrow statutory exceptions) are a constitutionally protected interest under the contracts clause of the California Constitution.   These rights cannot be impaired without providing a similar new advantage in return.  This is also referred to as the California Rule and these rights have been recognized throughout the courts for more than eighty years.

 

SCERS filed a Demurrer asking the Court to dismiss the civil action in its entirety for failing to state a cause of action.  As indicated above, SCERS argued it has the authority to make these changes post PEPRA and Alameda, and the deputies have no valid claim for the pension benefits that were taken away.

 

The Court denied SCERS’ Demurrer in its entirety.  The court ruled that Alameda did not eliminate the California Rule and that SCERS policies and practices can still create vested pension rights. The Court held that under PEPRA and Alameda, SCERS must show that the vested benefits violate the retirement statutes, and here, they failed to do so.

 

This case will now proceed to a full hearing on the merits.  This case is illustrative of the constant attacks on public safety pensions.  We must remain diligent and aggressively defend against these types of actions or public safety pensions will suffer a significant reduction in benefits.

The Attorney General's Office Releases Information Bulletin Explaining Its Investigations of Police Shootings that Result in the Death of an Unarmed Civilian (A.B. 1506)

Starting July 1, 2021, the Attorney General's office will investigate police shootings involving the death of an unarmed civilian. On June 24, 2021, the California Department of Justice released an information bulletin interpreting Assembly Bill (AB) 1506. AB 1506 amended Government Code section 12525.3(b)(1) and requires that effective July 1, 2021, the DOJ must investigate all officer-involved-shootings that result in the death of an “unarmed civilian”. The June 24th bulletin is meant to interpret some of the ambiguous language used in the statute and to provide guidance to local law enforcement in determining if a case needs to be turned over to DOJ.

The DOJ defines “officer-involved” as all shootings committed while an officer is on duty, as well as any off-duty shooting where the officer is acting under color of authority. A “shooting” does not include use of less lethal devices such as bean bags, stun guns, or rubber bullets. The law defines an unarmed civilian as anyone “not in possession of a deadly weapon.” According to the June 24th bulletin a “deadly weapon” includes all firearms and BB/ pellet guns, even if unloaded or inoperable. This clarification is helpful because the statutory language is ambiguous as to if unloaded firearms constitute “deadly weapons”.

However, the DOJ’s interpretation of “in possession” is less straightforward. The bulletin states that a civilian is in possession if the weapon is “under the civilian’s dominion or control at the time of the shooting.” “Where a civilian attempts to take control of an officer’s firearm, the civilian is not in possession unless the officer loses control of the firearm.” This means that until the moment when the civilian actually gains control of the firearm, they are deemed to be “unarmed”, regardless of what tactics they may use against the officer or how close they may come to actually taking the firearm.

Beginning July 1st, law enforcement agencies must immediately notify the DOJ when there is an officer-involved shooting of an unarmed civilian. The DOJ requests that agencies also contact them in situations where it is undetermined if the individual was unarmed.

Representatives from Department of Justice have been meeting with stakeholders, including local prosecutors, law enforcement agency heads, and police unions, regarding the DOJ protocols for these investigations.  David E. Mastagni participated in the meetings.

After initially intending to handle the complete investigation, DOJ currently plans to to take over as the lead investigating agency once they arrive on scene, but to work in conjunction with the local agencies.  DOJ will have northern and southern California teams. For now, DOJ intends to honor local protocol and/or agency policies, including timing of interviews, conducting of a walk-through, video review, and blood samples (although DOJ intends to ask for a voluntary sample). They will only handle the qualifying OIS portion of the incident and not any underlying crimes.