Regents of the University of California Have Immunity Against Lawsuit Challenging Employee Time Keeping Procedures

In Gomez v. Regents of University of California (2021) 63 Cal.App.5th 386, the Fourth District of the California Court of Appeals held that the Regents of the University of California have some immunity when it comes to California’s minimum wage laws. At issue in this case was whether the Regents —an independent governing body that oversees the state's colleges and universities—are a public employer, or whether the University is a public trust, as defined by the California Constitution, making them free to make internal decisions relating to wages and benefits given to its employees.

A former employee of the University of California, Guivini Gomez, alleged that due to the University’s time management policies she received below the state required minimum wage for all the hours she worked. While the Gomez’s hourly rate was above minimum wage, Gomez asserted that the University’s time keeping policies violated the law in two ways. First, they rounded the number of hours worked, which usually resulted in rounding down. And secondly, they automatically deducted thirty minutes for meal breaks, regardless if the employee was offered or took the break.

Gomez alleged that this practice violated the California Labor Code Sections 1194 & 1197, which require employers to pay the minimum wage “for all hours worked.” Gomez brought suit against the Regents seeking relief for unpaid wages and civil penalties under the Private Attorneys General Act (PAGA). In response, the Regents claimed they were exempt from any PAGA penalties because the Labor Code only applied to private sector employees, unless specifically stated otherwise. The trial court sided with the Regents agreeing that they were exempt from the Labor Code provisions, and therefore were not subject to any subsequent penalties under PAGA.

On appeal, the Gomez argued the Regents pay practices violated Wage Order No. 4, section 4 which requires minimum wage to be paid for “all the hours worked." In response, the Regents argued that they were exempt from the Wage Order because the Wage Order only specified that it applies to the state and its political subdivisions and the relevant Labor Code provisions, in its definition of employer, did not include the Regents.

The California Court of Appeals for the Fourth District upheld the decision by the trial court in favor of the Regents. The court held that under the California Constitution the Regents were considered a “public trust." This grants them “full powers of organization and government” and also gives them “general immunity from legislative regulation." While there are a number of exceptions to this immunity, the courts have consistently held that statutes regulating wages and benefits of employees are a matter of internal affairs. In coming to this decision, the Appeal’s Court leaned heavily on the precedent in Kim v. Regents of University of California (2000) 80 Cal.App.4th 160.

The court concluded that Regent’s time-keeping procedures are matters of internal affairs and don’t fall within any of the exceptions to the Regents’ constitutional immunity. The court regarded the Regents not to be a “public employer” as defined by the Wage Order No. 4. Instead, the University is “a separate arm of state government that is given constitutional power to govern its own internal affairs, such as the terms on which it employs its workers." This means these provisions are not binding on the University.

Although the court ultimately sided with the University, they did not conclude that state minimum wage laws do not apply to the Regents. Instead, the nuanced opinion points out that Gomez did “not allege the Regents set her hourly pay below the minimum wage." Instead, she challenged “certain time-keeping procedures” the Regents used. The court found that the way in which the Regents calculated the hours worked was a matter of internal governance and therefore not subject to the California Labor Codes or Wage Order in question.

Update on Legal Challenges to Mandatory Vaccinations

 States/ Local Governments Can Mandate Vaccinations

Over 100 years ago, the Supreme Court decided that states can mandate that their citizens get vaccinated. In Jacobson v. Commonwealth of Massachusetts (1905) 197 U.S. 11, the Court upheld a local law in Cambridge, Massachusetts requiring inhabitants receive the smallpox vaccine. The Court’s ruling relied on the principles that an individual’s right to liberty and bodily autonomy is not absolute, and that states have the authority to take actions necessary to protect the health and wellbeing of their citizens (commonly referred to as states’ “police powers”).

 

The Supreme Court did not revisit government mandated vaccinations again until 1922 in Zucht v. King (1922) 260 U.S. 174. The Zucht Court held that mandating vaccines for only one group of people (in this case school children), did not violate individuals’ Fourteenth Amendment rights to due process or equal protection. This same logic would likely apply to a mandate that first responders or public safety officers be vaccinated, even if the same requirement is not applied to the general public.

More recently, multiple California appellate courts have upheld Jacobson and Zucht, ruling that when it comes to mandatory vaccinations, finding the need for public safety outweighs individuals’ rights to privacy or bodily autonomy. In Brown v. Smith (2018) 24 Cal.App.5th 1135 and Love v. State Dept. of Education (2018) 29 Cal.App.5th 980, California appellate courts upheld Senate Bill No. 277, which repealed the personal belief exemption to California’s immunization requirements for school children. Thus, the courts limited the exemptions available (once full FDA approval is received) to: 1) a sincerely held religious belief, practice or observation; or 2) a medical accommodation.

There has been one court decision dealing with mandatory COVID-19 vaccines. In Bridges v. Houston Methodist Hospital (S.D. Tex., June 12, 2021, No. CV H-21-1774) 2021 WL 2399994, Houston Methodist Hospital implemented a policy requiring staff to be vaccinated or face termination. A number of employees sued claiming wrongful termination after they refused to be vaccinated. The court cited Jacobson as proof that an employer can mandate vaccines. The court also dismissed the employees’ arguments that the COVID-19 vaccine was distinguishable because it had only received “emergency” approval. Ultimately, the court concluded: “Bridges can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else... Every employment includes limits on the worker's behavior in exchange for his remuneration. That is all part of the bargain.” (Id. at p. *2.) It is important to note that this case dealt with a private employer. However, the rationale is applicable to public employers and employees.

In another pending federal lawsuit, correctional employees brought wrongful termination claims in challenging a directive requiring first responders to be vaccinated as a condition of employment unless a reasonable accommodation is approved. (Legarreta v. Macias, Case 2:21-cv-00179-MV-GBW (D.N.M., filed Feb. 28, 2021).)  The court denied the employees request for a restraining order on March 4, 2021, and the Defendants have filed a motion to dismiss the case for failure to state a claim and based on qualified immunity.  The motion to dismiss is fully briefed and a ruling could come as early as next week. 

It is well-settled law that state/local governments—and by extension government employers—can mandate that citizens be vaccinated. Further, the court rulings to date have applied these legal principles to mandatory COVID-19 vaccines found in favor of the employer. However, this authority is not absolute. Government employers may still be required to make accommodations for individuals with sincere religious beliefs or medical conditions that make vaccination a risk. The exemptions are discussed further below.

Right to Bargain over the Impacts and Effects of Mandatory Vaccinations

While mandating vaccination is generally legal, the impacts and effects of such a decision fall within the scope of bargaining. PERB recently held the decision to adopt an influenza vaccination policy was outside the scope of representation because the need to protect public health was not amenable to collective bargaining or, alternatively, outweighed the benefits of bargaining over the policy. However, the University’s implementation of the vaccination policy constituted a unilateral change, in violation of HEERA, because the University was not privileged to implement the policy before completing negotiations over its effects. (Regents of the University of California (2021) PERB Decision No. 2783-H.) The University had not met and conferred in good faith before implementation of the policy.

Labor leaders should demand to bargain over the impacts and effects of any vaccination policy. And, if the failure to get vaccinated could lead to discipline, the policy itself may be subject to decision bargaining. Employers must provide notice and opportunity to meet and confer prior to mandating vaccines. Employers can offer employees incentives to get vaccines, but it cannot be so large that it is coercive. 

 Right to Refuse Vaccination

A.         Food, Drug & Cosmetic Act under the Emergency Use Authorization (EUA)

The EUA requires employees be informed they have the right to refuse vaccination and must be given a fact sheet listing the health consequences of refusal, and of the alternatives to the product that are available and of their benefits and risks, amongst other notices.  However, the Acting Assistant Attorney General Office of Legal Counsel (OLC) refused to read this language as prohibiting public and private entities from requiring individuals to be vaccinated.

On July 6, 2021, the OLC issued a slip opinion addressing whether section 564 of the Food, Drug and Cosmetic Act prohibits Entities from requiring the use of a vaccine subject to and EUA. The slip opinion is not binding legal authority, but delivers a strong opinion favoring mandatory vaccines. Ultimately, the OLC concluded that section 564 does NOT prohibit public or private entities from imposing vaccination requirements, even when the only vaccines are those authorized under EUAs.

The argument the vaccines are “experimental” because they only have emergency authorization, and therefore cannot be mandated, is weak. EUA means the shot is safe enough for the public. Further CDC has also said vaccines approved under the EUA are “safe” an “effective.”

A least one court has already rejected the claim “that the injection requirement is forcing its employees to participate in a human trial because no currently-available vaccine has been fully approved by the Food and Drug Administration.” (Bridges v. Houston Methodist Hospital (S.D. Tex., June 12, 2021, No. CV H-21-1774) 2021 WL 2399994, at *2)  The court explained “Equating the injection requirement to medical experimentation in concentration camps is reprehensible. Nazi doctors conducted medical experiments on victims that caused pain, mutilation, permanent disability, and in many cases, death. … [employees] can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else. … If a worker refuses an assignment, changed office, earlier start time, or other directive, he may be properly fired. Every employment includes limits on the worker's behavior in exchange for his remuneration. That is all part of the bargain.” (Id.)

Moreover, we expect the FDA to issue full approval in the coming months. Therefore, this basis for an exemption is not likely to prevail. (See Legaretta v. Macias, No. 21-CV-179 MV/GBW, 2021 WL 833390, at *1 (D.N.M. Mar. 4, 2021); Bridges v. Houston Methodist Hosp., No. 4:21-cv-01774, 2021 WL 2399994, at *1–2 (S.D. Tex. June 12, 2021.)

B.         Medical Accommodations under the ADA/ FEHA

An individual that suffers adverse medical consequences—such as an allergic reaction—to vaccinations may be entitled to a reasonable accommodation under the Americans with Disabilities Act (“ADA”) (42 U.S.C. § 12101 et seq.) and the California Fair Employment and Housing Act (“FEHA”) (Gov.  Code § 12900 et seq.)

The ADA and FEHA require that employers to provide a reasonable accommodation for an employee’s disability. Such disability may include an inability to be vaccinated due to a serious medical condition. The employee must first put their employer on notice and request accommodation to begin an interactive process. In addition, employees must put forward medical documentation to substantiate their claim of a disability.

Moderate reactions to vaccines are probably not legally sufficient. For example, in Hustvet v. Allina Health System (8th Cir. 2018) 910 F.3d 399, 411, the Eighth Circuit affirmed a judgment against an employee who had “never been hospitalized due to an allergic or chemical reaction [from a vaccine], never seen an allergy specialist, . . . [or] ever sought any significant medical attention when experiencing a chemical sensitivity, taken prescription medication because of a serious reaction, or had to leave work early because of a reaction.” Therefore, this claim will only be available to individuals who suffer serious, documented medical consequences from being vaccinated.

C.         Religious Accommodations Under Title VII

Individuals with sincerely held religious objections to the COVID-19 vaccine may also seek a religious accommodation to a vaccination requirement under Title VII of the Civil Rights Act of 1964 (“Title VII”). Title VII prohibits employers from discriminating “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . religion.” (42 U.S.C. § 2000e-2(a)(1).)

An employer must make reasonable accommodations for employees sincerely held religious beliefs “unless an employer demonstrates that he is unable to reasonably accommodate… without undue hardship on the conduct of the employer’s business.” (42 U.S.C. § 2000e(j).) Thus, an employer is obligated to try to reasonably accommodate an employee’s religious beliefs to the extent it does not cause an undue hardship on the business, and failure to do so violates Title VII. This does not mean that the employer is required to offer an employee his or her preferred accommodation. Rather, the accommodation offered simply must be reasonable. (Bruff v. N. Miss. Health Servs., Inc. (5th Cir. 2001) 244 F.3d 495, 501.)

In conclusion, public employers will generally be able to mandate that employees receive vaccinations if they deem it necessary for public health and safety. Individuals for whom vaccination poses a serious health risk should be able to obtain an exemption under the ADA/FEHA. Further, individuals that hold sincere religious objections to vaccinations may be able to obtain a reasonable accommodation from their departments. Lastly, at a minimum, the impacts and effects of such policies are subject to bargaining, including the consequences of refusal.

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.