Supreme Court Denies Active Duty Peace Officers Labor Code 4458.2 Disability Benefits Provided to Volunteer Peace Officers

On October 26th, the California Supreme Court decided the case of Larkin v. Workers’ Compensation Appeals Board. The Supreme Court ruled that Labor Code section 4458.2 does not apply to sworn peace officers who are regular, salaried employees of a law enforcement agency.  The Court held that this enhancement of disability benefits was only applicable to so-called "Posse Comitatus" (i.e. volunteer or certain reserve officers) and declined to extend the benefit to regular active duty officers.

Brian Dixon and Gregory Gomez from the Law Offices of Mastagni Holstedt, A.P.C. represented Officer Larkin before the California Supreme Court.  Larkin filed a claim for TD benefits under Section 4458.2 arguing the express language of the Section did not exclude full time active duty officers. Larkin sought these enhanced benefits after having utilized all available 4850 time.  The Workers’ Compensation Appeals Board had denied his claim for these post-4850 benefits. The Court of Appeal upheld the WCAB.

Under Labor Code section 4458.2 an officer’s temporary disability (or “TD”) benefit is set at the maximum statutory rate instead of being based on what they were actually earning. This means that if an officer was serving as a volunteer or reserve officer when they were injured on duty, they would receive TD benefits as if they were full-time employees of the agency. And the officer would receive TD benefits at the highest possible rate even if they were actually paid less while they were working.

This makes a huge difference in the amount an officer is paid for an on-the-job injury. Normally, an employee’s TD benefit payment is only two-thirds (2/3) of their regular salary. But under Section 4458.2 an officer would receive the maximum statutory rate of TD, as if they were among the highest paid employees.

To put this in real terms, in 2008 Police Officer John Larkin was seriously injured in a vehicle accident while on duty. His average weekly salary at that time was around $1000. The City of Marysville said it would only pay Larkin TD at two-thirds of his salary, meaning around $670 per week. But if Section 4458.2 was applied and Larkin was paid TD at the maximum statutory rate, he would receive over $900 per week in TD benefits. That is a difference of more than $10,000 over a year.

 

The Supreme Court’s explained Section 4458.2 was originally written to provide disability coverage to volunteer peace officers. Officer Larkin’s attorneys pointed out that the word “volunteer” was removed from the law in 1989 and is not in the other law it references (Labor Code section 3362). Selectively relying upon the legislative history, the Court held these amendments were not intended to broaden the law to apply to all peace officers. 

The Court further opined that regular peace officer employees are covered under Labor Code sections 4850 and 4853. These laws allow an injured officer to take up to one year of full-paid leave and then up to one year of TD benefits at the normal two-thirds rate. The Court argued that it was “balancing” the interests of regular and volunteer peace officers by denying regular officers Section 4458.2 benefits.

The Court ignored the reality facing many peace officers in smaller cities and rural counties. Officers like Larkin choose to serve in dangerous positions for less pay than their colleagues in wealthier cities and counties. They should not be punished when they suffer an on-the-job injury. But now, not only will officers like Larkin get less in TD benefits than many regular peace officers. They cannot even get the same TD benefits that volunteer peace officers receive. This ruling affects the rights of more than 73,000 police and sheriff patrol officers across in the state. (Employment Development Department, Police and Sheriff Patrol Officers in California.)

On behalf of the thousands of peace officers hurt by this inequity, Mastagni Holstedt, A.P.C. hopes the Legislature immediately fixes the law and overturns the Supreme Court’s ruling.

California Employers Face Class Action Liability for Failing to Reimburse Work-Related Cell Phone Use

On August 12, 2014, the California Court of Appeal held in Cochran v. Schwan's Home Service, Inc. that California employers face class action liability if they fail to reimburse employees for work-related cell phone use. Employers must reimburse a reasonable percentage of employee cell phone bills, regardless of the cell phone plan or who pays the bill.

In Cochran, customer service managers of Home Service filed a class action lawsuit alleging the company failed to reimburse them for work-related cell phone use. The class included 1,500 employees.  Labor Code section 2802 requires employers to indemnify employees for "all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer..."

The Court stated: "It does not matter whether the phone bill is paid for by a third person or at all. In other words, it is no concern to the employer that the employee may pass on the expense to a family member or friend, or to a carrier that has to then write off a loss." The Court found section 2802 is aimed at preventing employers from passing on operating expenses. Also, the Court held employers should not intrude into the private lives of their employees to find out how they manage their finances. While such details may affect each employee's recovery, it is irrelevant in determining employer liability under section 2802. Employers must reimburse employees for a "reasonable percentage" of their cell phone bills if they use their cell phones for work. Failure to do so may subject employers to class action liability for all affected employees.

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.

California Court Uphold Employees' Right To Vacation Pay On Termination

California Labor Code section 227.3 requires employers immediately pay a terminated employee for all his vested vacation time. In Howard Choate et al., v. Celite Corporation (May 2, 2013) B239160, the Court of Appeal decided the right provided in section 227.3 can only be waived if a negotiated collective bargaining agreement clearly and unmistakably waves that right.

Under their collective bargaining agreement, Plaintiffs in Howard earned their vacation based on hours worked the previous year and there was no waiver of section 227.3. However here was no past practice of paying out next year’s vacation time. Until the lawsuit, neither the terminated employees nor their union had objected to this practice. The court found the parties' past practice of not enforcing the vacation rule did not count as a clear and unmistakable waver of section 227.3. Therefore, the Court said the Plaintiffs were entitled to be paid for time earned. However, the court did not grant special penalties to Plaintiffs because it said the employer did not act “willfully”.