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”.

California Supreme Court: Cities and Counties Can Ban Marijuana Dispensaries

In City of Riverside v. Inland Empire Patients Health And Wellness Center, Inc. (May 6, 2013) S198638, the California Supreme Court unanimously ruled the City of Riverside was within its rights to use zoning ordinances to prohibit all marijuana dispensaries from operating within its borders. The court held that a Riverside City ordinance making all marijuana distribution a prohibited land use and all marijuana dispensaries a public nuisance not to be in violation of Compassionate Use Act of 1996 and the more recent Medical Marijuana Program of 2004.

The court reasoned that local laws banning marijuana distribution were protected by article XI, § 7 of the California Constitution which gives counties and cities the right to make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws of California. Because the Compassionate Use Act and the Medical Marijuana Program only shield dispensaries from prosecution under California state laws, local municipalities are free to regulate dispensaries as they see fit, including banning them altogether.

CalPERS Back in Black After Record-Breaking Investment Gains

CalPERS has recovered more than $97 billion is value since the great recession battered its assets.  CalPERS' investment portfolio recently reached $261.7 billion, breaking CalPERS' pre-recession record on $260.5 billion in October 2007.  CalPERS still needs to grow to improve its funded status, but the returns are good news to public employees and employers.

Court of Appeal: 1-year POBR Statute of Limitations Does Not Apply to Work Comp Fraud Cases

In California Department of Corrections and Rehabilitation v. State Personnel Board (April 26, 2013) 2013 WL 1777118, the Court of Appeal ruled workers' compensation fraud investigations are exempt from the one-year limitations period established in section 3304 of POBR.  The Court rejected the argument that the investigation has to be conducted by an outside agency for the exception to apply.

There are several exceptions to the 1-year statute of limitations for IAs under POBR.  The statute says the statute of limitations is tolled when the alleged "misconduct is also the subject of a criminal investigation or criminal prosecution," when the officer waives the statute of limitations, if the investigation is multi-jurisdictional and reasonable extension is required, if multiple officers are subjects and a reasonable extension is required, if the officer is incapacitated, and if the officer is a defendant in a lawsuit about the same issue.

There is also an exception If the investigation involves an allegation of workers' compensation fraud on the part of the public safety officer."  In this case, an officer was disciplined for alleged workers' comp fraud and dishonesty in the investigation of the alleged fraud.  He argued this exception only applied when the fraud investigation was done by an outside agency.  The Court disagreed, finding the plain language of the statue did not contain that limitation.

Court of Appeal: City Violated Police Officer's Due Process Rights By Using Same Law Firm to Arbitrate, Advise on Discipline

In Glenn Sabey v. City of Pomona (April 16, 2013) B239916, the Court of Appeal ruled it violates due process to have partners in the same law firm act as advocate seeking termination and adviser to the City, overturning a police officer's termination.  The case stems from an advisory arbitration case against a police officer.  Unlike binding arbitration, advisory arbitration lets the employer reject the arbitration decision.  Here, two attorneys from Liebert Cassidy Whitmore acted as the attorney advocating for termination at the arbitration and legal adviser to the city council about whether to honor or reject the arbitrator's recommendation

 The Court ruled the second attorney's "role as an adviser to the city council violated Sabey's right to due process."  The Court explained "that an attorney cannot act as both an advocate for an agency and then as an adviser to the decision maker who reviews the result that the advocate achieved."  The Court said the rule should be the same for two different attorneys in the same law firm because "a partner would want to make another partner look good by seeking—consciously or unconsciously—to validate the job done by that partner" and "this creates an appearance of unfairness and bias."  The Court noted different rules apply to government lawyers.

As a remedy for the violation, the Court ordered the case "remanded back to the City Council for further consideration with the proviso that it must obtain independent legal advice to eliminate the taint of [the second attorney]’s involvement."   But the Court left the door open to quashing the discipline altogether in similar cases, noting it declined to do so in this case because the appellant "cited no law in support of this contention," and "[i]t is not [the Court's] responsibility to develop an appellant’s argument.”