California Appeals Court Holds That Public Speech Protection Law Cannot Be Used To Stifle Suit Against County

In a victory for public employees, a California court of appeals shut down an attempt by the County to strike a sheriff's deputy's lawsuit against the county alleging that they retaliated against him for asserting his privacy rights in his medical record. While this case is unpublished and therefore not controlling authority, it signals a warning to employees who might attempt to use California's anti-SLAPP rules to strike down lawsuits asserting MMBA and POBR violations.

By way of background, California's "anti-SLAPP" or anti-Strategic Lawsuits Against Public Participation is a civil code section used to punish those who bring lawsuits which are intended to stop or retaliate against speech made during "official proceedings." The idea behind anti-SLAPP is to prevent persons from stifling protected free speech by filing a lawsuit. However, public employers often attempt to classify their disciplinary proceedings as "official proceedings" and their recommendations for discipline as "protected speech." While this is a perversion of the spirit and purpose of the law, that does not stop management from trying to use it.

In Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2016) Second District Court of Appeal, Case No: B260584, A deputy injured himself at work and became addicted to pain killers for two years. He later entered a drug dependency treatment program and returned to full duty. After a later back surgery he again obtained pain medications from several different physicians. At some point, an unknown person from the Sheriff's Department accessed his record of prescriptions in the database and saw that he had several prescriptions from different doctors. The Deputy then discarded all of his medications.

The Deputy was meeting all of his performance requirements, but shortly after the unauthorized access, as many as six supervisors asked to get consent to access his prescription information in the database. They also asked him to voluntarily submit to a psychological fitness for duty evaluation. The County Occupational Health Department requested that he submit to a fitness for duty examination given his refusal to provide access to his prescription record. When he met with the psychologist, the doctor refused to do an exam unless he provided his medical records. The deputy was then ordered to take a medical leave of absence and was refused the opportunity to return to work. 

 
The Association sued alleging, among other things, violation of privacy rights and retaliation for asserting his privacy rights. The County moved to strike all claims on anti-SLAPP grounds arguing that the referral of the plaintiff to Occupational Health was protected speech and the process by which the County required the Plaintiff to submit to a fitness for duty test was an official proceeding for purposes of SLAPP. The trial court agreed and ordered the Plaintiff to pay the defendant’s costs of suit.

The appellate court noted that the meaning of "official proceeding" continues to elude definitive judicial interpretation, but should generally be limited to proceedings of a public nature and that this case was likely an internal matter, not a public proceeding. However, the appellate court did not need to reach that question because the claims in this case did not arise out of that process anyway. SLAPP case law draws a distinction between speech made in connection with an official proceeding, and the decision made because of that proceeding. The thrust of plaintiff’s arguments stemmed from the decisions made by the Department after the proceeding, not from the statements themselves. Thus, SLAPP was inapplicable here.

Third Appellate District Upholds Award of Penalties for Late Advance Disability Pension Payments

In the recently decided Gage v. Workers Compensation Appeals Board, (CA3, Nov. 22, 2016 No. C081618)  the Court upheld the ability for employees to receive penalties for late advance disability pension payments. In this case, a Sacramento County Sheriff’s Deputy, represented by Greg Gomez of Mastagni Holstedt, APC, sustained a job-related injury and applied for an industrial disability retirement. In cases like these involving peace officers, the injured party can also apply for advance disability pension payments in order to cover living expenses while the disability retirement application is being decided.

Here, Gage petitioned for these advance payments and applied for industrial disability retirement on March 6, 2015. When payments did not arrive, Gage petitioned for late payment penalties against the County on June 2. The County claimed not to have received the application until June 11. The County also asserted that the Workers Compensation Appeal Board (WCAB) did not have authority over advance payments of pension because that would fall under another a different law (County Employees Retirement Law of 1937), and thus it could not apply penalties.

While this issue was being decided, the County continued to stall payments due to some additional technicalities (legal joinder). On June 29, it finally approved payment of benefits. Gage filed a petition for penalties because the benefit check wouldn’t arrive until July 2, almost 4 months after her initial request.

A workers compensation judge initially agreed with Gage that disability pension payments were considered compensation, and thus were subject to penalties for late payment. The County appealed arguing that advance pension disability payments were an obligation of the retirement system, and thus not subject to the penalty. On appeal, the WCAB overturned the workers compensation judge’s initial decision.

When the case was finally appealed to the Third Appellate District, the Court explained that the workers compensation law was intended to be liberally construed for the purpose of extending benefits to those injured in the course of employment. This includes making sure that those in law enforcement are given all the rights attendant to the workers compensation law. The advance disability pension payments are specifically provided to help officers who would otherwise have difficulty making the monthly bills if they had no income due to being injured. In fact, the payment of such benefits was made mandatory in 2002.

The Court also discredited the County’s argument that under the applicable code section, the repayment of retirement benefits was outside of WCAB’s jurisdiction. The Court stated that while the repayment of retirement benefits once disability retirement was approved was outside the scope of the WCAB’s jurisdiction, that did not bar it from asserting penalties on late payments, because such payments are considered compensation and therefore fall under WCAB’s jurisdiction. While the court remanded the case to determine if the delay in this case was sufficiently unreasonable such that penalties were required, this case still stands as a big win for employees seeking disability retirement. Mastagni Holstedt, APC is requesting that this case be published so that it has precedential value.

Mastagni Holstedt, APC is privileged to have represented the Sacramento Deputy Sheriffs Association and Ms. Gage in obtaining this important result. Greg Gomez of Mastagni Holstedt, APC represented Ms. Gage in this matter.

CBS13 Interviews David Mastagni About Military Equipment for Law Enforcement

CBS13 interviewed Mastagni Holstedt partner David P. Mastagni about President Obama's call to limit military equipment in law enforcement agencies.  In the interview, Mastagni explained, "Obama's dead wrong" and the policy "is going to decrease public safety [and] put the public at risk, increase the risk of law enforcement officers' injury or death in the line of duty.  He explained, "the equipment that is necessary to meet and exceed the criminal threat is the type of equipment he is seeking to ban."

Court: "Liking" Sheriff Candidate on Facebook Protected by First Amendment

In Bland v. Roberts (4th Cir., Sept. 18, 2013, 12-1671) 2013 WL 5228033, the federal Court of Appeals for the Fourth Circuit ruled that the act of "liking" a candidate for Sheriff on Facebook by a deputy sheriff is protected speech under the First Amendment. As a result, it is unlawful for a sheriff to retaliated against an employee for "liking" his opponent.

The case started when sheriff’s office employees brought a civil rights action alleging that the sheriff retaliated against them by reappointing them because of their support of his electoral opponent. Two of the employees expressed support for the Sheriff’s opponent by “liking” his Facebook page and posting comments of encouragement for his upcoming election. After the sheriff was reelected, he refused to reappoint the employees to their positions as sheriffs deputies at the jail, a typical process in that jurisdiction.

 They sued, claiming that the sheriff violated their First Amendment rights to free association and free speech. Initially, the District Court sided with the sheriff, finding merely “liking” a Facebook page is insufficient speech to merit constitutional protection, but the Court of Appeals reversed.

The Court of Appeal said when one “likes” a political campaign's Facebook page, the user becomes associated with the campaign. A photo of the user is posted to the campaign’s profile, a link is provided on the users profile that others can use to access with the campaign’s page, and the “thumbs up” icon communicates the user’s support. The Court said the act of “liking” the page is like displaying a political sign in one’s front yard, which the Supreme court has held as substantive speech.

Sacramento County Breaks Promise to Disabled Deputy Sheriff

Eric Henrikson is the lone survivor of a fatal sheriff's helicopter crash that killed two deputies eight years ago. According to former Sacramento Sheriff Lou Blanas, the day of the crash "was one of the worst days in my life and one of the worst days in the history of the Sheriff's Department."  At the time, the County promised to cover Henrikson for life.

Now, Sacramento County has cut off his disability and medical payments, according to Sacramento's ABC news affiliate, News 10.  According to Dep. Henrikson's attorney, David P. Mastagni, the County cut him off with no notice and "what the County is doing to this former deputy is not reflective of what the citizens of Sacramento County want for the deputy."

The News 10 reporters stated the County sued the helicopter manufacturer, Turbomeca, settling for $1.5 million and recently learned Henrikson allegedly settled his claims against Turbomeca for $26 million, noting "maybe he just had a better lawyer."  The reporters condemned the County for cutting off Dep. Henrikson, noting "a deal is a deal and its right here in black and white."

Court: No Right to Pre-Interview Access to IA File

In Association of Orange County Deputy Sheriffs v. County of Orange, (June 12, 2013) G047167, the Court of Appeal ruled the County did not have to meet and confer with the DSA before it banned deputies from reviewing IA files before their IA interviews.  In Orange County, there was a longstanding practice where peace officers being IA'd could review the IA file before their interview.  Then, in 2011, the Sheriff banned anyone under investigation from reviewing the file before their IA interview.  The DSA sued, arguing the County had to meet and confer before making this kind of change to a past practice.

The Court decided the County did not have to meet and confer of this kind of a change to a past practice.  The Court reasoned that restricting access to IA files before the IA interview is not a "working condition" under the MMBA.  The Court looked to two other cases in reaching its conclusion.  In Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, the California Supreme Court ruled employers do not have to give officers pre-interview discovery.  Similarly, in Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2008) 166 Cal.App.4th 1625, the court ruled law enforcement agencies can ban so-called "huddling" between counsel and officers after critical incidents.  In this case, the Court said pre-interview access to an IA file was like pre-interview discovery and the no "huddling" rule.  As a result, the Court decided it is not a "working condition."

The Court did agree the meet and confer requirement extends to changes in existing and acknowledged past practices, even if they are not formalized in a written agreement or rule.  However, the Court decided agencies only have to meet and confer if the past practice counts as wages, hours, or terms and conditions of employment.  Since the Court decided pre-interview access to the IA file did not count as a working condition under the MMBA, it ruled meet and confer rules did not apply.  Still, the Court left the door open to associations and agencies including these requirements in their MOUs if they chose to.

Court: Pitchess Not Required for Peace Officer Personnel Records in Federal Court Case

In Pierce v. County of Sierra (E.D. Cal., June 3, 2013, 2:11-CV-2280 GEB AC) 2013 WL 2421710, a Northern California federal court ruled plaintiffs do not have to use the Pitchess process to get a peace officer's personnel records related in a federal lawsuit.  The case started when a deputy sheriff allegedly hit a motorcyclist with his patrol car.  The plaintiff sued the deputy and the county for negligence.

Then, the plaintiff sent a discovery request for parts of the deputy's personnel file to find paperwork related to the deputy's initial hire, find out about drug and alcohol testing, and the IA investigation related to the crash.  The County objected that the records were confidential peace officer personnel records under California Penal Code section 832.7.  The Pitchess process that limits disclosure of peace officer personnel records is the product of statute in California.  In many states, officers do not have these protections and their personnel records are more easily obtainable.

The Court decided the California Pitchess process did not apply in the federal action because the Federal Rules of Civil Procedure supersede the Pitchess process.  Instead, the Court examined whether there was good cause to turn over the documents.  The Court decided there was good cause because the records could shed light on whether the deputy was at fault and whether the County was negligent.  Accordingly, the Court ordered the County to release the records, but ordered the parties to work out a protective order to limit the exposure of the deputy's records.

Court Rules PC 242 Does Not Trigger Firearms Ban, Reistates Peace Officer

In Shirey v. Los Angeles County Civil Service Commission (May 6, 2013)--- Cal.Rptr.3d ---- the Court of Appeal ruled a conviction under California Penal Code section 242 does not trigger a firearms ban under the Federal Gun Control Act.

Deputy Sheriff Mark Shirey was found guilty of a simple battery in violation of Penal Code section 242, a misdemeanor. Because the subject of the crime was his live-in girlfriend, the crime was considered domestic abuse. As a result, the Los Angeles County Sheriff’s Department fired Shirey.

Title 18 of US code § 922(g)(9), the Federal Gun Control Act prohibited possession firearms if convicted of misdemeanor battery upon a domestic partner. The Department claimed that Shirey’s conviction disqualified him from continued employment as a deputy sheriff because the federal law prohibited him from carrying a firearm. Shirey appealed the decision.

The court sided with Shirey and found that a conviction under section 242 does not qualify as a predicate misdemeanor crime of battery upon a domestic partner. The court reasoned that section 242 requires use or attempted use of any amounted force which includes merely touching, whereas the federal statute requires “a quantum of force greater than a de minimus use of force or offensive touching.” Therefore, the Court granted Shirley's petition.

Deputy Sheriff Sues To Stop Anti-Military Discrimination

Placer County deputy sheriff Kevin Brady filed a lawsuit in federal court Monday to stop the Placer County Sheriff's Department from discriminating against military veterans. In a press release, the Placer County Deputy Sheriffs' Association explained that "following an eighteen month tour of duty in Operation Enduring Freedom, Army Sergeant Kevin Brady returned to his job as a Deputy Sheriff for the County of Placer. He was surprised to find that, instead of rewarding his service to his Country, the County was holding him back from being eligible to apply for specialty assignments and promotions in violation of federal law."

Veterans' post-service employment rights are guaranteed by the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) and California state law. The case seeks to protect all military veterans working at the Sheriff's Department.

Congress enacted USERRA to encourage military service and prevent employers from penalizing veterans for responding to the call of duty. USERRA requires employers to treat returning veterans as if they had been present and continuously working at their civilian jobs for the duration of their absence in military service.

Under USERRA, employees are entitled to more than merely their old job back. They are entitled to all the benefits, positions, and promotions they would have achieved if they had never left. As the U.S. Supreme court stated, the veteran "does not step back on the [career] escalator at the point he stepped off. He steps back on at the precise point he would have occupied had he kept his position continuously during the war." The employee does not have to demonstrate that a promotion or new position was guaranteed to him.  He only needs to show that it is reasonable to believe if he had been present at his civilian job instead of away serving his country, he probably would have been given the new position. 

USERRA prohibits employers from saying a service member is “not qualified” for the new position. Instead, it is the employer’s duty to make all reasonable efforts to train or otherwise qualify the employee for their new position. Mastagni Law attorneys David E. Mastagni and BJ Pierce represent Deputy Brady in the matter. See the CBS news video here.

Crime Victims, Deputies Join Forces Against El Dorado Sheriff's Blanket Rotational Policy

Crime Victims United of California and the El Dorado County Deputy Sheriffs' Association joined forces at a press conference Tuesday to protest El Dorado Sheriff John D'Agostini for putting the public in danger by shifting experienced detectives out of the investigations unit.

In a press release, the DSA expressed "grave concerns" that "Sheriff D’Agostini’s new rotational policy on detective positions will undermine the department’s ability to successfully investigate cases and bring justice to victims and their families." DSA President Todd Crawford noted "Our department had a rotational detective policy before,” but had "over 40 unsolved homicides" under that policy.

CVUC echoed the DSA's concerns, expressing "outrage Sheriff D’Agostini has chosen to risk the public safety of the Citizens of El Dorado County" with the policy change.  CVUC's press release also announced "Crime Victims United stands with the men and women of the El Dorado County Deputy Sheriffs’ Association" on the issue.

News outlets throughout Northern California covered the press conference, including the Modesto Bee, KCRA, the Sacramento Bee, and CBS13.  According to news reports, the policy "is a move victims say will hurt victims who have already suffered enough."

The DSA has filed a grievance over the unilateral policy change.  Mastagni Law attorneys David E. Mastagni and  BJ Pierce represents the DSA in the matter.  Follow updates to this story by subscribing to the California Public Safety Labor Blog.

Watch the news video here.

San Francisco Mayor Starts Proceedings to Remove Convicted Sheriff from Office

On Tuesday, March 20, 2012, San Francisco Mayor Ed Lee announced he was suspending San Francisco Sheriff Ross Mirkarimi after the latter refused to resign following his guilty plea Monday to misdemeanor false imprisonment charges.

Article 11 of California's state constitution requires every county have an elected sheriff.  It also allows charter counties, such as San Francisco, to set their own rules for the removal of sheriffs and other officials.  San Francisco's Charter, in turn, proscribes a 5-step process for removal of elected officials guilty of "official misconduct":

1.   The mayor starts the process by suspending the official and appointing a temporary replacement.
2.   The mayor sends formal charges to the San Francisco's Ethics Commission.
3.   The Ethics Commission holds a hearing.
4.   The Ethics Commission makes a recommendation on removal to the Board of Supervisors.
5.   The Board of Supervisors has 30 days to vote on whether to remove the sheriff.  Removal requires a three fourths vote to pass.  Supervisors do not have to follow the Ethics Commission's recommendation.

Because these rules are set by San Francisco's Charter, other rules apply for removal of sheriffs in other counties.

Ninth Circuit Finds for Former OCSO Lieutenant on Political Retaliation Claims

In Hunt v. County of Orange (February 13, 2012) 2012 WL 432297, the Ninth Circuit found the Orange County Sheriff’s Department violated a lieutenant’s constitutional rights by demoting him for allegedly bringing discredit to the Department after he ran against former Orange County Sheriff Mike Carona.

A lieutenant with the Orange County Sheriff's Department ran for sheriff against the incumbent sheriff and lost. During the election the lieutenant made statements criticizing the incumbent's performance and accused the sheriff of corruption. After the election was over, the Department placed the lieutenant on paid administrative leave pending an investigation into his speech and conduct during the campaign and gave him notice of demotion for violation of department rules and for bringing discredit upon the department. The lieutenant then filed a claim against Carona alleging violations of his First and Fourteenth Amendment rights.

Normally, an elected official cannot retaliate against a public employee for his or her political beliefs or activities. However, the “policymaker exception” allows elected officials to appoint “some high-level, personally and politically loyal officials who will help him implement the policies that the public voted for.” As a result, if an employee is a policymaker, an elected official can retaliate against him for political activity.

To decide whether this exception applied in this case, the court evaluated whether "the hiring authority can demonstrate party affiliation is an appropriate requirement for the effective performance of the public office involved." The court also noted "if an employee's private political beliefs would interfere with the discharge of his public duties, his First Amendment rights may be required to yield.”

The court found political considerations were not appropriate requirements for the lieutenant's job and found the lieutenant did not fall within the policymaker liability exception. However, the court found the sheriff had qualified immunity since the sheriff could have reasonably, but mistakenly, believed the employee’s demotion was not unconstitutional.

Court of Appeal Strikes Down POBR Waiver, Awards $362,000 in Backpay

In Jaramillo v. County of Orange (November 8, 2011) 2011 WL 5338998, the Fourth District Court of Appeal awarded an assistant Sheriff  backpay because the County denied him a pre-termination administrative hearing.  The Court also voided his purported waiver of POBR rights.

Former Orange County Sheriff Mike Corona appointed Jaramillo as Assistant Sheriff after he had supported him during an election.  However, Jaramillo and the Sheriff’s relationship began to deteriorate when the Sheriff requested he participate in  illegal activities. Jaramillo became tired of covering for the Sheriff and reported the Sheriff’s illegal activities. The Sheriff then fired the him without providing him with a pre-termination hearing. After he was terminated, he was charged with misappropriation of public resources and perjury before a grand jury to which he plead no contest as part of a settlement agreement.

The County claimed Jaramillo waived his POBR rights when he signed two documents upon being appointed as Assistant Sheriff. Both documents contained provisions stating he was an “at-will” employee and he “could be released from his position at any time without notice.” Neither of the documents he signed made any reference to POBR. The Court determined the waivers were blanket waivers and undermined the purposes of POBR. The Court distinguished County of Riverside v. Superior Court, noting that case permitted only specified and narrow waivers of POBR rights.

The Court also found denying Jaramillo's right to a pre-termination hearing violated POBR, 14th Amendment due process, and Labor Code Section 1102.5 (on the basis the Assistant Sheriff had been fired for whistleblowing on the Sheriff’s illegal activities.) The Court awarded backpay from the date of Jaramillo's termination to the date he plead no contest to two state law felonies as well as injunctive relief in the form of amending the waivers for future management employees.

Court Reaffirms Peace Officers' Constitutionally-Protected Right to Privacy While Partially Undressed

Following the Ninth Circuit, the Court of Appeals for the Third Circuit found a female deputy sheriff had a reasonable expectation of privacy while partially undressed and undergoing a decontamination process.  Doe, a deputy sheriff in Luzerne County, Pennsylvania was surreptitiously filmed by a male officer while undergoing decontamination. The male officer uploaded the video onto his work computer and called several officers into his office to view the footage.   He then put in on a county-wide server.  Doe filed a 1983 action against the county and the officer, alleging violations of her right to privacy under the Fourteenth Amendment and her right to be free from unlawful searches and seizures under the Fourth Amendment.

The trial court granted the county's motion for summary judgment. The Third Circuit reversed on the Fourteenth Amendment claim and affirmed on the search and seizure claim.  After looking to other circuits, the court concluded a deputy sheriff has a constitutionally-protected privacy interest in his/her partially clothed body. The court noted:

Although the issue of whether one may have a constitutionally protected privacy interest in his or her partially clothed body is a matter of first impression in this circuit, other circuits—including the Second, Sixth and Ninth Circuits—have held that such a right exists. See, e.g., Poe v. Leonard, 282 F.3d 123, 136–39 (2d Cir.2002) (finding that plaintiff, a female civilian who was participating in a police training video, alleged sufficient facts to raise a triable issue of whether her constitutional right to privacy was violated where the male police officer surreptitiously filmed her in the dressing room while topless and without a bra); York v. Story, 324 F.2d 450, 454–56 (9th Cir.1963) (finding that the plaintiff properly stated a claim for a violation of her constitutional right to privacy where she alleged that, while reporting a sexual assault, a male police officer deceived her into permitting him to photograph her genitals and exposed breasts under the pretext of an investigation), cert. denied, 376 U.S. 939, 84 S.Ct. 794, 11 L.Ed.2d 659 (1964); Brannum v. Overton Cnty. Sch. Bd., 516 F.3d 489, 497–98 (6th Cir.2008) (finding a privacy violation where a middle school's surveillance cameras recorded the plaintiff students in their undergarments while in the school locker room)
(Doe v. Luzerne County (3d Cir., Oct. 12, 2011, 10-3921) 2011 WL 4823387.)

The court concluded the male deputy’s filming did not implicate the Fourth Amendment because it was conducted for personal reasons.

9th Circuit: Felony Charges Alone Do Not Justify Peace Officers' Suspension Without Pay

In Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (Aug. 12, 2011, 08-56283) 2011 WL 3524129, the Ninth Circuit Court of Appeals found the County of Los Angeles violated peace officers’ constitutional rights by denying them a meaningful appeal of suspensions without pay. The Court found the mere fact an officer is charged with a felony is not enough to justify unpaid suspensions. Instead, a peace officer should be permitted a post-suspension appeal to challenge whether the charges are supported by valid allegations and to determine if the particular felony allegations against a suspended deputy justify suspension.

The case arose after four deputy sheriffs were charged with felonies and suspended without pay. The charges against some of them were later dropped and the others were exonerated by juries. The deputies challenged their suspensions and sought back pay, but the County refused, arguing unpaid suspensions were proper because felony charges, whether supported by valid allegations or not, were pending at the time of the suspensions. The deputies appealed, arguing they were entitled to challenge more than just the mere fact they had been charged with felonies.

Normally, peace officers are entitled to challenge discipline before it is implemented. However, courts look at felony charges somewhat differently than other types of alleged misconduct because whenever there are felony charges an independent third party has determined there is probable cause to believe the employee committed a serious crime. As a result, some courts have held employees who occupy positions of public trust and high visibility, such as peace officers, can be temporarily suspended without pre-suspension due process if felony charges are filed against them.

However, even though pre-suspension hearings may not be required under some circumstances, meaningful post-suspension hearings are required. The dispute in this case was about what the deputies had a right to challenge in their post-suspension appeal.

The County argued it did not have to let the officers challenge the basis for the felony charges because merely being charged with a felony meant the deputies could not do their jobs. The County relied on a rule allowing it to suspend employees based on a “condition which impairs an employee's qualifications for his or her position.” The Court, however, rejected this claim noting “nowhere does the rule state that a felony charge is necessarily such a ‘condition’—indeed, the rule does not mention felonies or felony charges at all.”

The Court therefore concluded the County “rendered the post-suspension hearings redundant and meaningless [and this kind of] “meaningless hearing is no hearing at all, and does not satisfy the requirements of procedural due process.”

New Department of Labor App Allows Employees to Track Hours Worked and Wages

The US Department of Labor has released a free application for iPhones and iTouch that will assist employees in tracking their hours worked, meal periods and rest breaks, overtime and wages owed. The application is titled "DOL-Timesheet" and is available for free on the apple website, and is expected to be released soon for other phones. This application will provide workers a valuable tool to establish their wage and hour claims where the employer has failed to keep accurate records. Under the FLSA and California labor law, employees can establish wage claims by reasonable inference where accurate records are not available.

In Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946) the court recognized that employees may establish their claims by reasonable estimates and averages. The court found, "Where the employer's records are inaccurate or inadequate and the employee cannot offer convincing substitutes ... the solution ... is not to penalize the employee ... on the ground that he is unable to prove the precise extent of uncompensated work. Such a result would place a premium on an employer's failure to keep proper records ... it would allow the employer to keep the benefits of an employee's labors without paying due compensation as contemplated by the [FLSA]." Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946).

This application will provide a much more accurate record of hours worked and strong evidence for courts to estimate the claims of other employees. Secretary of Labor Hilda L. Solis stated "This app will help empower workers to understand and stand up for their rights when employers have denied their hard-earned pay." The Labor Department indicated the calculator will be updated to allow workers to keep track of their tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials and pay for regular days of rest. The application can be found at http://www.dol.gov/whd/ or on itunes.

Ninth Circuit Sets Limits on "Policymaker Exception" to Public Employee First Amendment Protections

In Bardzik v. County Of Orange (Mar. 28, 2011) --- F.3d ---, Cal. Daily Op. Serv. 3692, the Ninth Circuit Court of Appeals clarified when the “policymaker exception” applies to public employees’ First Amendment claims. The case concerned Jeff Bardzik, a Lieutenant with the Orange County Sheriff’s Department. Lt. Bardzik was the Department’s Reserve Division Commander in 2005, in charge of 600 reserve deputies. Then he endorsed the incumbent Sheriff’s rival in an upcoming election. Shortly thereafter, the Sheriff allegedly retaliated by transferring him to a position in Court Operations where he only supervised three people. He was denied pay increases and promotional opportunities even after his transfer.

Normally, an elected official cannot retaliate against a public employee for his or her political beliefs or activities. However, the “policymaker exception” allows elected officials to appoint “some high-level, personally and politically loyal officials who will help him implement the policies that the public voted for.” As a result, if an employee is a policymaker, an elected official can retaliate against him for political activity.

Lieutenants are not automatically policymakers. Instead, whether the policymaker exception applies depends on nine factors: 1) breadth of responsibilities; 2) relative pay; 3) technical competence; 4) power to control others; 5) authority to speak for policymakers; 6) public perception; 7) influence on programs; 8) contact with elected officials; and 9) responsiveness to partisan politics. The Court also suggested a tenth factor, the ability to thwart the elected official’s agenda, was relevant to its analysis.

The Court applied these factors one-by-one to decide whether Lt. Bardzik counted as a policymaker when he was Reserve Division Commander. The Court held four of the factors favored Bardzik: he did not have a relatively high salary; he had to go through superiors before sending official memoranda to reserves; the public was unaware of his role; and it was unclear if he was responsive to partisan politics.

However, the Court found the other five factors warranted applying the policymaker exception. Engaging in a fact-intensive inquiry, the Court found Bardzik had broad discretion over the Reserve Division and often reported directly to the Sheriff. The Court also decided he had special skills and extensive authority over members of the Reserve division. Finally, the Court held Bardzik had significant influence over specific programs in the Division, a distinction the Court identified as “the most critical factor,” citing Walker v. City of Lakewood (9th Cir. 2001) 272 F.3d 1114, for authority. As a result, the Court decided the Sheriff was allowed to retaliate against Bardzik when he served as Division Commander.

The Court stressed, however, the retaliation crossed the line after the transfer to Court Operations. In Court Operations, Bardzik‘s job duties were limited to implementing, rather than making policy. As a result, the Court held his First Amendment rights prohibited continued retaliation for his political activity.

In his partial dissent, Judge Pregerson recast the facts and argued the evidence of Bardzik’s supervisory responsibilities as Division Commander did not support the majority’s conclusion he had significant control of others. Pregerson also questioned the majority’s reliance on Walker, arguing though “influence on programs” was the most critical factor in that case, the Court did not hold it would be in every case. As a result, the dissent contends, Bardzik was not a policymaker in either capacity.

Though the Court applied the "policymaker exception" on these facts, its holding is no victory for management. The holding sets a limit on "policymaker" retaliation where some retaliation renders the employee a non-policymaker. Thus, an elected official may quickly cross this line and incur liability with a series of retaliatory actions. Also, as Judge Pregerson’s dissent illustrates, whether the “policymaker exception” applies to a particular employee is a highly factual question which evades clear rank-based distinctions. Because this is a fact-intensive issue, employers will likely face significant burdens regardless of the ultimate outcome in litigation. Indeed, the Court heard Bardzik on an appeal from summary judgment after substantial discovery, press coverage and a District Court ruling for the employee.