Court of Appeal Finds Department May Have Unlawfully Terminated Officers

On March 20, 2014, the California Court of Appeal found the Orange County Sheriff's Department may have violated officers' POBR rights when it failed to provide a pre-termination hearing after a potentially pre-textual layoff.

The officers were "laid off" from their positions at the Sheriff's Department after the Department re-organized to cut spending.  The officers received a formal termination letter stating the Department faced economic difficulties and the lay-offs were not based on performance.  However, the officers suspected their terminations had to do with their past disciplinary records.  The termination letter informed the officers they were entitled to a "Liberty Interest Hearing" if they responded within 14 days.  Emails exchanged between the human resources representative and one officer explained the Liberty Interest Hearing would not include any presentation of evidence or witnesses.  None of the officers responded because they didn't believe the non-evidentiary Liberty Interest Hearing would result in reinstatement.

One day after the officers were terminated, the Sheriff held an off-site leadership retreat and showed a PowerPoint presentation.  The PowerPoint included slides suggesting the key to improving the Department was getting the right people "on the bus," and the wrong people "off the bus."  The officers filed a lawsuit claiming they were terminated for punitive reasons, rather than the budgetary reasons asserted by the Department.  They argued the Department's decision to terminate them constituted punitive action without providing them with the opportunity for an administrative appeal.  POBR requires the opportunity to a full evidentiary hearing for officers terminated for punitive reasons. 

The Court recognized POBR requires a full evidentiary hearing when officers are terminated for punitive reasons.  The Court stated a full evidentiary hearing usually includes sworn testimony, cross-examination of witnesses, and presentation of argument by the public agency to which the officer could respond.  Also, the public agency bears the burden of proof.  The process offered by the Department as presented by the human resources representative fell short under POBR.

In addition, the Court stated this case had many of the hallmarks of a pretext case.  Warning signs for a pretext case are layoffs that do not involve massive layoffs based on fixed rules such as seniority, a relatively small number of officers terminated, and when the decision-maker is not bound by seniority rules when choosing whom to terminate.  On these grounds, the Court concluded the trial court erred in dismissing the case.

PERB Reaffirms Employers Must Negotiate Number of Affected Employees in Layoffs

In Salinas Valley Memorial Healthcare System (2012) PERB Dec. No. 2298-M, the Public Employment Relations Board reaffirmed and elaborated about employers' duty to negotiate with unions about layoffs related to labor costs.

PERB has held employers do not have to negotiate about the decision to layoff.  However, employers still have a duty to meet and confer with unions about the implementation, impacts, and effects of a layoff.  Some of the established layoff effects are post-layoff workload and safety and conditions of remaining employees.  This case clarifies what counts as implementation and impacts that the employer must meet and confer about.

Here, the employer initially said it wanted to layoff 79 people "at the end of the year."  The union demanded to meet and confer over the timing, number, identity of the employees to be laid off.  The employer claimed it did not have to meet and confer about those details, asserting a "management prerogative."  PERB rejected that claim.  PERB explained "the implementation (timing of the layoff, and the number and identity of  employees to be laid off) and the impact and effects on remaining employees, including workload and safety, were mandatory subjects for meeting and conferring prior to the implementation of the layoff."  As a result, PERB decided the union stated a prima facie case for an unfair labor practice.