CalPERS Changes Eligibility Rules for Industrial Disability Retirement

The California Public Employees’ Retirement System (CalPERS) posted Circular Letter 200-018-17 on March 30, 2017. Among other things, this Letter addresses changes to the eligibility determinations for certain local safety members applying for industrial disability retirement. 


In the past, CalPERS relied on the employer’s recommendation to verify eligibility of any member for industrial disability retirement. However, CalPERS will now independently evaluate whether certain members are eligible. The employer must obtain CalPERS’ determination of a member’s eligibility to apply for disability retirement before the employer starts the process of a disability determination for any of the following circumstances:

• Disciplinary process underway prior to the member’s separation from employment.

• The member was terminated for cause.

• The member resigned in lieu of termination.

• The member signed an agreement to waive his or her reinstatement right as part of a legal settlement (i.e., Employment Reinstatement Waiver).

• The member has been convicted of or is being investigated for a work-related felony.

The Letter also imposes a requirement for local agencies to re-evaluate eligibility determinations for disability retirees under the voluntary service retirement age. The purpose is to verify whether the recipient remains physically or mentally disabled from the position which they disability retired for the condition(s) that they were approved for.

The Letter requires employers to provide all relevant personnel documents and medical records to CalPERS. This information will be used to conduct the second evaluation of a member’s medical incapacity and employment status.  However, providing such information to CalPERS creates a conflict for safety employers. For example, Penal Code section 832.7 prohibits employers from disclosing peace officer personnel records without the peace officer’s written consent or a Pitchess motion. Employers are also prohibited from disclosing medical information without written authorization from the employee.

California Supreme Court Grants Review of CAL FIRE Airtime Credit Case

On April 12, 2017, the California Supreme Court granted CAL FIRE Local 2881's petition for review of the First District Court of Appeal's decision on December 20, 2016 to uphold the elimination of the “airtime credit” benefit in the Public Employment Retirement Systems (“PERS”).

The most significant part of the previous decision by the  Court of Appeal for the First District was the court's decision to adopt the ruling in Marin Association of Public Employees v. Marin County Employees’ Retirement Association (MAPE) regarding the authority of the Legislature to reduce retirement benefits if they do not destroy the pension. The MAPE ruling broke with a half century of precedent holding that any modification of a pension resulting in a detriment must include an offsetting advantage.

The California Supreme Court has now granted review of both the MAPE and Cal Fire rulings. This is a significant opportunity to right the ship and overturn the damage these decisions did to the California vested rights doctrine.

Our office is currently representing two law enforcement associations in separate pension-related appeals in the First Appellate District, including the Alameda Deputy Sheriff's Association. 2017 continues to be an important year for determination of pension rights.

First Appellate District Challenges Vested Rights Doctrine in Upholding Elimination of Airtime Credit

In Cal Fire Local 2881 v. California Public Employees’ Retirement System, the Division Three of the First District Court of Appeal upheld the elimination of the “airtime credit” benefit in Public Employment Retirement Systems (“PERS”). Airtime credit was a benefit available to CalPERS and some other PERS programs that allowed members who had already earned five years of service credit, to purchase another five years of “nonqualified retirement service credit.” The record reflected that PERS had been under charging for the benefit.  In 2013, the Public Employees’ Pension Reform Act of 2013 (“PEPRA”) was passed in what was billed as an effort to reign in unfunded pension liabilities. One of the provisions of PEPRA eliminated the ability to purchase airtime credit.

The court considered whether the ability to purchase airtime credit was a “vested benefit.” The court started its analysis with a general presumption against the granting of a vested benefit, unless its text or legislative history evidence an intent to be bound. Applying the reasoning in Employees Assn. of Orange County, Inc. v. County of Orange (2011) 52 Cal.4th 1171, the court held “there is nothing in either the text of the statute, or its legislative history, that unambiguously states an intent by the Legislature to create a vested pension benefit. This demonstration of intent, as we explained above, is required by California law.” The court found no such intent with respect to airtime.

Further, the court held no right was destroyed, noting PEPRA provided members with a seven month window to purchase the service credit, and that such applications would be honored if they were submitted prior to December 31, 2012. "Thus, nothing in the revised statutory scheme immediately destroyed plaintiffs’ right to purchase the airtime service credit ... To the extent plaintiffs lost out on the opportunity to purchase the airtime service credit, such loss was, accordingly, a product of their own doing."

The court also held that the elimination of airtime did not destroy any benefit because the cost of airtime was always intended to be borne entirely by the employee.  Because the benefit was established as cost neutral to the employer, "the employees, not the state, paid for this benefit" and therefore the court held "this simply is not a case where the state provided a retirement benefit to its employees in exchange for their work performance, and then took the benefit away."

Most significantly, the court endorsed Division Two of the First District's holdings in Marin Association of Public Employees v. Marin County Employees’ Retirement Association (MAPE) regarding the authority of the Legislature to reduce retirement benefits s long as they do not destroy the pension.  This superfluous basis for upholding the elimination of airtime is striking given that the Supreme Court had granted Review of MAPE.

MAPE broke with a half century of precedent holding that any modification of a pension resulting in a detriment must include an offsetting advantage.  On November 22, 2016, the California Supreme Court issued an order granting review of MAPE, holding, "The petition for review is granted. Further action in this matter is deferred pending the decision of the Court of Appeal, First Appellate District, Division Four, in Alameda County Deputy Sheriff's Association et al. v. Alameda County Employees' Retirement Association et al., A141913
 
Although the elimination of airtime is not particularly significant, the court's unnecessary adoption of the MAPE reasoning in the face of Supreme Court review could affect broader legal principles involving the California vested rights doctrine.  Our office currently is representing two law enforcement associations in two separate pension related appeals in the First Appellate District, including the Alameda Deputy Sheriff's Association.  2017 is shaping up to be an important year for determination pension rights.

California Supreme Court Finds Limited Exception to Employees' Access to Supervisor Notes Under FFBOR

On August 24, 2015, the California Supreme Court issued a decision in Poole v. Orange County Fire Authority. The Court held Government Code section 3255 did not compel the County to provide a firefighter the opportunity to review and respond to a supervisor's personal notes regarding the firefighters work performance if the notes were not used for a personnel purpose. The supervisor did not share the notes or make them available to anyone with authority to take adverse disciplinary action against the firefighter. For these reasons, the Court held the supervisor's notes did not constitute a file "used for any personnel purposes by his or her employer."

Under the Firefighters Procedural Bill of Rights Act ("FFBOR"), a firefighter has the right to review and respond to any negative comment that is "entered in his or her personnel file, or any other file used for any personnel purpose." In Poole, a supervisor maintained raw notes on his subordinates. The notes documented factual occurrences for his reference when writing employees' annual reviews. Some of the occurrences in the supervisor's notes described instances where the employees had failed to complete assigned duties. The supervisor did not make these notes available to anyone with authority to take adverse action against the firefighter and not all of the notes were documented in annual performance reviews. The Court considered the narrow question of whether the FFBOR required the supervisor to provide employees the opportunity to review and respond to negative comments in his notes that were not included in the employees' annual performance evaluations or performance improvement plans.

It is well established that employers must provide firefighters and public safety officers an opportunity to review and respond to negative comments entered into files used for personnel purposes. For example, in Venegas the appellate court concluded that an index card maintained by internal affairs documenting all complaints against an officer constituted a file "used for... personnel purposes," because it would be available to those responsible for disciplinary action. In addition, in County of Riverside, the county was required to disclose to a police officer adverse comments in a file containing the results of a background investigation the county used to determine whether to continue to employ the officer. And in Aguilar, the appellate court held an officer was entitled to review and respond to an uninvestigated citizen's complaint placed in a confidential investigative file. These cases remain authoritative in compelling employers to provide firefighters and public safety officers the opportunity to review and respond to adverse comments placed in files "used for... personnel purposes."

The Court distinguished this case from other cases interpreting similar statutes on the basis that the supervisor's notes were not available to anyone making personnel decisions in the future. Based on a unique set of circumstances, this case clarified FFBOR protections are not triggered by a supervisor's private notes that were not used for any personnel action.

Court of Appeal Gives Retroactive Effect to Firefighter Injury Presumption

The California Court of Appeal ruled statutory changes to workers' compensation injury presumptions apply to cases pending prior to the change in the statute. In doing so, the Court of Appeal overruled the Workers' Compensation Appeals Board ("WCAB") who refused to apply the presumption to a pending case. This decision could affect the presumptions involved in many workers compensation cases.

 

The facts of Lozano v. W.C.A.B. are tragic. William Lozano worked as a firefighter for a Department of Defense installation. Lozano was diagnosed with stomach cancer and succumbed to the disease in September of 2007. In November of 2009, Lozano's wife and two young children filed a workers compensation claim alleging the stomach cancer was work related.

 

On January 1, 2009 the legislature amended the Labor Code so that firefighters like Lozano could take advantage of the cancer presumption. This means the family would not need to prove Lozano's employment caused stomach cancer. Rather, the court would assume the cancer was from his employment and the employer would have to prove the cancer was not job related.

 

The Agreed Medical Examiner ("AME") concluded Lozano was exposed to carcinogens as part of his work activities. However, he could not conclusively say the carcinogens caused Lozano's cancer. However, if the firefighter cancer presumption applied to Lozano's case, the AME concluded the cancer should be presumed as work related.

 

The WCAB determined the presumption did not apply to Lozano's case. The WCAB noted Lozano was not a qualifying firefighter under the statute at the time of his death. The WCAB refused to apply the statutory change retroactively because the Legislature did not provide for retroactive application in the statute.

 

The Second District Court of Appeal reversed the WCAB's decision and held the presumption did apply to Lozano's claim. In general new statutes operate prospectively unless the Legislature clearly indicates otherwise. However, this general rule does not apply to new statutes that simply alter procedural or evidentiary statutes to trials occurring after enactment. Thus, if a new statute alters substantive legal rights, like who is liable for an injury, that statute cannot be applied retroactively. But, if the statute only alters procedural rights, like who has the burden of proof, the statute can be applied retroactively.

 

Here, the presumption test does not change who is liable for the injury, but rather who has the burden of producing evidence. Making the cancer presumption available to firefighters like Lozano only addresses the procedure to follow, not the substantive legal rights. Thus, the Court of Appeal overruled the WCAB and allowed Lozano's heirs to retroactively apply the cancer presumption.

 

This case should help a great number of public safety employees in the future. The instant statute only dealt with firefighters working at Department of Defense facilities. But the court's logic could be applied to any new statute which changes the evidentiary burdens for workers compensation claims. Thus, when the legislature changes the statute to help more people, any pending claims can take advantage of that new rule.

Mastagni Holstedt Attorney Jeff Edwards, Local 522 District Director Steve Loza Interviewed About Union Logo Win

On January 6, 2015, the Labor Relations Information System posted a podcast interview about the Sacramento Area Fire Fighters, IAFF Local 522's win in County of Sacramento (2014) PERB Decision No. 2393-M.  LRIS attorney Will Aitchison interviewed Mastagni Holstedt attorney Jeff Edwards and Local 522 District Director Steve Loza about the case.  

County of Sacramento vindicates the right of public safety professionals to wear union insignia on duty.  First, the ruling means public safety professionals, such as firefighters and peace officers who were a uniform, have the right to wear union insignia on their uniform on duty. Second, firmly established that the right to wear union insignia cannot be limited to pins, but includes other apparel such as T-shirts, caps, and clothing.

PERB Vindicates Right of Public Safety Professionals to Wear Union Insignia on Duty

In a decisive win for labor, the Public Employment Relations Board (PERB) overturned an administrative law judge and held firefighters at Sacramento’s airports have the right to wear Sacramento Area Fire Fighters, IAFF Local 522 union logos on duty.

The case has statewide importance for two reasons. First, the ruling means public safety professionals, such as firefighters and peace officers who were a uniform, still have the right to wear union insignia on duty. Second, firmly established that the right to wear union insignia cannot be limited to pins, but includes other apparel such as T-shirts, caps, and clothing.

In County of Sacramento (2014) PERB Decision No. 2393-M, firefighters wanted to wear union logos on the Class B uniform t-shirts, caps, and sweatshirts. Local 522 provides the apparel at cost to firefighters it represents throughout the Sacramento area. The Local 522 apparel conforms to uniform specifications and includes the union logo.

For a time, firefighters were allowed to wear the union logo apparel occasionally. In October, firefighters wore pink versions of their union logo apparel to support breast cancer awareness. There were no operational problems or complaints. Then, the County ordered the firefighters not to wear “hats, T-shirts and sweatshirts with the union logo” and announced it would discipline any firefighter who wore the union logo.

Local 522 filed an unfair practice charge with PERB, alleging the prohibition against wearing the Local 522 logo interfered with their rights under the Meyers-Milias-Brown Act, one of California’s public sector collective bargaining statutes. Local 522 members expressed their strong desire to support and show solidarity with their union which they had worked hard to join by wearing union apparel on duty.

The County claimed the firefighters did not have the right to wear union insignia on their Class B uniform. It claimed that since the firefighters wore public safety uniforms, the County had the right to ban union insignia since they were not part of the uniform. The County also claimed union members only have a right to wear small union pins, not other kinds of union apparel.

PERB rejected the County’s arguments and upheld the right of Local 522 members to wear the union logo. PERB held the “fundamental right to wear union insignia at work” applies equally to employees who wear public safety uniforms. PERB rejected the notion that a union member’s right to wear union insignia is limited to wearing pins, noting, “The County offers no logical argument why a protected right to wear union insignia transforms into an unprotected right because the insignia appears on clothing rather than an object that is attached to clothing.”

Thus, PERB held the County had to demonstrate there was a special circumstance justifying the restriction on wearing the union logo. The County provided no evidence of a special circumstance and the evidence showed several other agencies permit firefighters to wear union insignia at work without incident. Thus, PERB decided the County violated Local 522 members’ rights and ordered it to cease and desist and post notice of its violation of state law.

Local 522 was represented in the matter by Jeffrey R. A. Edwards, a senior associate at Mastagni Holstedt, APC.

PERB: "Economic Exigency" Not Enough to Declare Impasse

In Selma Firefighters Association, IAFF, Local 3716 v. City of Selma, the Public Employment Relations Board ("PERB") took a hard line against employers’ citing economic exigency to declare impasse.

The City of Selma engaged in MOU negotiations with Selma Firefighters’ Association. During the bargaining process, the City abruptly ended negotiations and declared impasse. The City imposed it’s last, best, and final offer to the Selma Firefighters’ Association, claiming economic exigencies and a budget deadline warranted the impasse.

The City argued this budgeting deadline was relevant because the MOU must be agreed to prior to the next year’s budget being adopted. PERB found against the City. The Board held economic exigency did not warrant the City of Selma to declare impasse and impose its last, best, and final offer. In fact, the Board explained “it has long been noted that such economic exigency provides no justification for suspending the duty to bargain in good faith.” The Board also held an impending budget deadline did not justify the bargaining impasse. The Board ruled collective bargaining has no necessary linkage with the budgetary process.

This decision strengthens employee groups' bargaining position. The case creates a clear precedent that arguments like those utilized by the City of Selma are improper. Employers attempting to justify unilateral action based on claimed “fiscal emergencies” are not operating under an exception to their bargaining obligation. Additionally, an agreement does not need to be reached before a City’s final budget is adopted for the upcoming year.

Ninth Circuit Rules Fire Department Dispatchers and Aeromedical Technicians Are Entitled to Standard Overtime Pay Under FLSA

On March 18, 2014, the Ninth Circuit issued an opinion in Haro v. City of Los Angeles. The Ninth Circuit found standard overtime rules under the Fair Labor Standards Act (FLSA) apply to fire department dispatchers and aeromedical technicians. This case distinguishes fire department dispatchers and aeromedical technicians from firefighters in calculating overtime.

Under the FLSA, employees who work more than 40 hours in a workweek are entitled to overtime pay. However, Section 207(k) exempts certain job classifications from this general rule. Section 207(k) requires certain employees, such as firefighters, to work a total of 212 hours in a 28-day period before earning overtime pay. In this case, the City of Los Angeles classified dispatchers and aeromedical technicians as employees “engaged in fire protection.” Classifying dispatchers and aeromedical technicians as employees “engaged in fire protection” subjected them to the same overtime rules as firefighters.

L.A. City dispatchers and aeromedical technicians filed suit. They argued that they are not actively engaged in fire protection as defined by the FLSA, and should receive standard overtime pay. The City argued because dispatchers and aeromedical technicians contribute in a direct and vital manner to the fire department’s suppression of fires, Section 207(k) applies.

Although dispatchers and aeromedical technicians occupy a vital role in fighting fires, they are not employees “engaged in fire protection” as defined by the FLSA. The Court pointed out dispatchers do not actively engage in fire suppression. Rather, dispatchers send firefighters to the scene to suppress the fire. Similarly, the Section 207(k) exemption does not apply to aeromedical technicians. Their duties include medical support, setting up equipment, loading hoses and fittings onto helicopters, filling helicopters with water, and establishing secure landing sites. These are not duties of an employee “engaged in fire protection.” Since dispatchers and aeromedical technicians are not exempt under the FLSA, they were awarded backpay for unpaid overtime.

The City has participated in much FLSA litigation in recent years. The litigation caused the City to reconsider its pay practices for many employees, but the City never investigated its pay practices for dispatchers and aeromedical technicians. The Court concluded the City willfully violated the FLSA by failing to investigate whether dispatchers and aeromedical technicians were exempt under Section 207(k).

British Firefighters Poised to Strike Over Retirement Age Increase

Firefighters in England and Wales announced today they plan a 4-hour strike to protest a proposal to raise their retirement age to 60 because raising the retirement age jeopardizes public safety.  The firefighters' labor union, the Fire Brigades Union, explained "It is ludicrous to expect firefighters to fight fires and rescue families in their late 50s - the lives of the general public and firefighters themselves will be endangered. None of us want a strike, but we cannot compromise on public and firefighter safety.” It will be the first nationwide strike of firefighters in that country in a decade.

AB 11 Increases Protections for Volunteer Firefighters. Reserve Peace Officers

Current state law requires employers with 50 or more employees to provide up to 14 days of temporary leave for volunteer firefighters for fire or law enforcement training.  AB 11 expands this to any employee who is a volunteer firefighter, or reserve peace officer, or emergency rescue personnel, and also expands the qualifying training to include fire, law enforcement or emergency rescue training.

Under the law, any volunteer firefighter or reserve peace officer who is fired, threatened with being fired, demoted, suspended, or otherwise discriminated against because they took time off for qualifying training is entitled to legal and equitable remedies including reinstatement and reimbursement for lost wages and benefits.

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.

Court of Appeal: Firefighter's Standby Pay Not Pensionable

In City of Pleasanton v. CalPERS (Nov. 29, 2012) 2012 WL 5984074, the Court of Appeal ruled "Standby Pay" does not count toward pension benefits.  The firefighter at the center of the case worked a 40-hour workweek.  However, he received 7.5% "Standby Pay" for being on call. At issue in the case was whether that 7.5% "Standby Pay" counts as pensionable earnings for his CalPERS retirement. The Fourth District found the "Standby Pay" was not pensionable because it was for services rendered outside of his normal working hours.  The Court said the payments could not be construed as holiday pay, shift differential pay, training premium pay, management incentive pay or off-salary-schedule pay because the 7.5% “Standby Pay” did not meet any of the definitions contained in CalPERS Regulation 571.  

Stockton Voters Throw Mayor Out of Office in Landslide, Elect Pro-Public Safety Candidate

After years of cuts to police and rising crime, Stockton voters held the politicians accountable Tuesday.  Stockton voters overwhelmingly rejected mayor Ann Johnston's cuts to public safety, throwing the incumbent out of office in a landslide 58% to 42% vote.  Public safety was the central issue in the campaign.  Johnston attacked the Stockton Police Officers' Association in a flyer celebrating the way police officers' and firefighters' benefits were "slashed" and "axed" under her watch.  Mayor-elect Anthony Silva, on the other hand, campaigned on a promise to raise revenue and hire 200 more police officers, saying voters "want more police on our streets, they're saying we want our neighborhoods to be safe."

Michigan Voters Considering Constitutional Right to Collective Bargaining

After a string of stinging defeats at the ballot box, labor leaders in Michigan are trying to turn the tide by establishing a state constitutional right to collective bargaining.  Next Tuesday, Michigan voters will go to the polls to decide Proposal 2, which would create a state constitutional amendment locking in union rights in the state.  Proposal 2 would:

• allow police officers and firefighters to negotiate safe staffing levels
• establish a constitutional right to form a union and bargain collectively
• invalidate any attempts by the state legislature to limit collective bargaining rights
• override state laws about employees hours and conditions of employment 
• mandate binding arbitration for some police groups

If passed, Proposal 2 would be the first of its kind in the country.  The campaign to pass Proposal 2 got a big boost earlier today, when President Clinton endorses the measure.  

California Democratic Party Joins Police and Fire Unions to Oppose Prop 32

The Sacramento Bee reports that the California Democratic Party has voted to officially oppose Proposition 32, which would restrict union political fundraising by prohibiting use of payroll-deducted funds for political purposes.  CPF and PORAC are already aggressively opposing Prop 32.

Tom Sullivan Interviews David P. Mastagni on Why Cities Scapegoat Cops and Firefighters

Mastagni Law partner David P. Mastagni recently appeared on the Fox's Tom Sullivan Show to explain why California cities, including Stockton, are trying to scapegoat public safety professionals and violate their contractual obligations.  He explained that in light of what cities are doing with their contracts, "you dont have to be an Apache Indian or Geronimo to understand what the government thinks of its contractual obligations."

The real problem is that cities made "bad business judgments" by approaching infrastructure projects like it was "college lab class," investing other people's money in ventures they knew little about.  Now that cities are seeing red, they're blaming police officers and firefighters, but "blaming the police is nothing but a red hering." 

Watch the whole video here.

Lawsuits Filed to Stop Attacks on Retirement Security

Legal challenges are already underway to local pension initiatives passed by voters Tuesday in San Diego and San Jose.  The initiatives, both named "Measure B", attack public employees' pensions in those cities.

San Diego's Measure B creates a new retirement tier replacing defined benefits with a 401(k) and lowers public safety's maximum retirement benefit to 80% of salary.  The measure also caps city payroll at 2011 for five years, risking massive layoffs for the city.  

The legal challenge to the San Diego measure started even before the election.  Unions filed an unfair practice charge with PERB in February because city leaders refused to meet and confer about the changes.  PERB quickly granted their request for injunctive relief and filed a lawsuit in San Diego to stop the measure from going before voters.  While the court initially ruled against PERB, the case was promptly appealed and oral arguments are scheduled for June 13, 2012.  PERB also issued a complaint against the city.

The San Jose measure seeks to shift the city's contributions to the pension system to employees, likely 16% of their salaries.  It also provides that if the cost-shifting provision is struck down, as many expect it will be, the city can dramatically slash salaries to make up the difference.  The plan also limits disability retirements, lets the city council take away retirees' cost-of-living-adjustments, and prices retirees out of the city health insurance plan.

San Jose police and firefighters immediately filed lawsuits in state court to stop enforcement of the measure.  The firefighters lawsuit, Robert Sapien et al. v. City of San Jose et al. seeks declaratory and injunctive relief and a writ of mandate prohibiting enforcement of Measure B.  It argues the measure violates California state constitutional protections related to due process, the prohibition on breaking public contracts, and restrictions on seizing property.  The POA's lawsuit, San Jose Police Officers' Association v. City of San Jose et al. makes similar claims and also alleges violations of freedom of speech, separation of powers, the MMBA, the parties' MOU, and the California Pension Protection Act.  The City of San Jose also filed a preemptive lawsuit in federal court seeking a declaration that the measure is not unconstitutional.

PERB: Fire Chief Violated MMBA By Eliminating Union Time Bank

In Stanislaus Consolidated Firefighters (January 20, 2012) PERB Dec. No. 2231-M, PERB found a Fire Chief violated several sections of the MMBA when he eliminating a Union Time Bank after members filed a grievance over being denied the time off.

The Union and the Fire Department were in the middle of negotiations when the Fire Chief informed the Union he would be removing section 20-2 from the MOU. Section 20-2 allowed the union to use Department buildings for its meetings and also provided for station coverage during those meetings. The Fire Chief proposed the removal of the section after the last day for the parties to bring new proposals to the table. The Fire Chief claimed the removal of the section was not related to the regular on-going negotiations and was instead considered an operational need for the District. However, at no time during negotiations did the District present a proposal that section 20-2 be eliminated from the successor agreement.

The parties reached a tentative agreement which continued, in effect, the terms and conditions of the expired MOU, including section 20-2. Section 20-2 disappeared from the agreement after the Fire Chief reviewed and signed the agreement and presented the agreement to the Union to sign. The Union refused to sign the agreement until section 20-2 was reinserted into the agreement. The District then threatened to impose. Around the same time, union members had submitted time off requests to use the Union’s Time Bank to attend a “State of the District” address. When their requests were denied they filed a grievance on the issue. In response to the grievance being filed at step 3 the Department unilaterally decided to discontinue the Union Time Bank, which was provided for in the current MOU.

PERB decided section 20-2 presented a negotiable matter within the scope of representation and that section 20-2 was still in effect since the TA continued the terms and conditions of the expired MOU. PERB also found the District removed the section without giving the other party notice or an opportunity to bargain and that the Union had presented a prima facie case of discrimination and retaliation as well as interference. The Chief knew the requests for time off were for protected activity and unilaterally discontinued the leave bank in response to their request and subsequent filing of a grievance.

Court of Appeal Vindicates Firefighter's Workers' Comp Rights

Where does the personal end and the legally compensable begin? In Richard Warner v. W.C.A.B. et al., California’s Second Appellate District recently had a chance to weigh in on this crucial workers’ comp question as it relates to a work-from-home firefighter.

Richard Warner is a Los Angeles County firefighter who works and lives on small, picturesque Santa Catalina Island. To ensure that the approximately 4,000 residents of the island have fire protection, LA County required Warner, along with one other firefighter, to live on the island. Warner’s house is both residence and partial workplace. Island denizens visit him there when they need his services, and he often responds to incident calls directly from home, without traveling to the island’s modest fire station.

In February of 2010, Warner’s wife asked him to help her trim the wisteria that grows wildly around their house. Warner, after falling off a ladder, injured his neck and his back, as well as his wrist, elbow, and shoulder on his left side.

The County tried, with initial success, to avoid paying disability or medical costs to Warner, under the claim that this injury was due to a personal act—a favor Mr. Warner did for his wife—rather than part of his employment obligations. The Workers’ Comp Appeals Board sided with the County, concluding that although Warner suffered his injury in the course of employment, it did not arise out of employment, because trimming the wisteria was something he did for private purposes.

The Second Appellate District overturned the Board and upheld Warner’s rights. The Court invoked the time-honored Dual Purpose Doctrine: if an action serves both personal and employment-related ends, it is an act which “arises out of work” for compensation purposes. There was no question that Warner worked from his home. It was equally incontestable that the County benefited from having this fire station-cum-residence be both easily accessible and aesthetically pleasing.

In other words, trimming the wisteria served both Warner’s ends and those of his boss—the fact that Warner acted at his wife’s request did not negate this fact. His employer must pay him workers’ comp.

The court’s decision is unpublished, but it nevertheless represents a significant vindication of the rights of workers in a time when they are under increasing attack. Workers’ comp exists to help those who are hurt serving their bosses’ interests. Employers who compel their subordinates to mingle duty and leisure should not be able to cry “Personal purposes!” when the same mingled deeds lead to mangled results.