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This post was authored by Megan Lewis.

The United States Supreme Court has vacated the decision of Ninth Circuit U.S. Court of Appeals (which covers all of California) in Rizo v. Yovino, which established that employers cannot rely on an applicant’s prior salary history to justify paying one employee differently than another employee of the opposite sex for similar work.

The Ninth Circuit’s Decision

The key issue in Rizo was the meaning of an exception to the federal Equal Pay Act.  This Act requires that, where an employer is paying an employee less than an employee of the opposite sex for work requiring the same skill, effort, and responsibility, which is performed under similar working conditions, the employer must be able to demonstrate that the disparity is based on one of the following: (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production; or (4) a differential based on any other factor other than sex.  The first three exceptions are fairly straightforward, but the fourth (known as the “catchall” exception) has often been the subject of litigation, as it was in the Rizo case.

The Ninth Circuit held that the only “factor[s] other than sex” employers can use to justify a wage disparity are “legitimate, job-related factors such as a prospective employee’s experience, educational background, ability, or prior job performance.  The Ninth Circuit stated that allowing salaries that were the result of “endemic sex-based wage disparities” to play a role in future salaries would, “perpetuate rather than eliminate the pervasive discrimination at which the Act was aimed.”

The U.S. Supreme Court’s Decision to Vacate

When we last reported on this decision, a petition for writ of certiorari was pending asking the high court to review the matter.  Jim Yovino, the Fresno County Superintendent of Schools, had asked the Court to review the Ninth Circuit’s decision because the U.S. Courts of Appeal in other parts of the Country had issued diverse opinions on whether prior salary is a “factor other than sex.”

The Court granted certiorari, but did not reach the merits of the Ninth’s Circuit’s ruling.  Instead, the Court vacated the decision and returned the case to the Ninth Circuit because Judge Stephen Reinhardt, who had authored the majority decision, died before the decision was issued.  Though the Ninth Circuit’s opinion noted that the judges voted and completed their opinions before Judge Reinhardt died, the Supreme Court set aside the ruling.  According to the Court, “federal judges are appointed for life, not for eternity.”

What Happens Next?

The Ninth Circuit was unanimous in ruling in favor of Rizo, and that outcome is unlikely to change when a new ruling is issued.  However, the panel was split on the reasoning behind the ruling, so we could see a different rationale behind the decision when the Ninth Circuit issues its new ruling with another judge taking Reinhardt’s place

As a practical matter, this ruling does not impact California employers because there is California law (Labor Code § 432.3) that already restricts the ability of employers to gather applicant salary history information or consider such information when determining whether to offer employment to an applicant and/or what salary to offer.

We will provide an update when the Ninth Circuit issues its new ruling.

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This blog was authored by Alysha Stein-Manes.

On October 1, 2017, several peace officers from the Orange County Sheriff’s Department were in attendance at the 91 Harvest Music Festival when a gunman opened fire on the crowd.  Fifty-eight people were killed and over 800 injured.  Several of these peace officers brought other festivalgoers to safety and continued to provide assistance to the local police immediately following the shooting.  Reports further indicate that peace officers from other California agencies were also present at the Festival and provided assistance.

Following the Las Vegas shooting, several Orange County peace officers filed workers’ compensation claims for injuries arising from their off-duty conduct, but their claims were denied because the California Labor Code did not extend workers’ compensation protections for such out-of-state conduct.

In response to the deputies’ experiences, an assembly member introduced Assembly Bill (AB) 1749 to amend the California Labor Code governing workers’ compensation benefits.  Following unanimous support from both Legislative houses, then-Governor Jerry Brown signed AB 1749 into law in the Fall of 2018.  The law specifically amends the Labor Code to permit public agencies to accept liability for workers’ compensation of a peace officer, if the peace officer “is injured, dies, or is disabled from performing his or her duties as a peace officer by reason of engaging in the apprehension or attempted apprehension of law violators or suspected law violators, or protection or preservation of life or property, or the preservation of the peace,” whether peace officers engage in such conduct in-state or out-of-state.  A public agency may accept such liability if the agency determines that providing workers’ compensation serves the agency’s public purpose.  Importantly, the law extends the timeline for peace officers who were injured in the Las Vegas shooting to file workers’ compensation claims by statutorily setting their “date of injury” as January 1, 2019.  By setting their date of injury as January 1, 2019, these peace officers may take advantage of the statute’s one-year statute of limitations.

The new law also clarifies that an agency’s acceptance of workers’ compensation liability does not affect any determination of whether a peace officer acted within the course and scope of their employment for any other purpose.  This additional language may be intended to protect agencies from liability for alleged legal violations arising from a peace officer’s off-duty conduct.

AB 1749 does not create a mandate that a public employer accept workers’ compensation liability under the circumstances described above.  Rather, the law expressly states that an employer may accept liability “at its discretion or in accordance with written policies adopted by resolution of the employer’s governing body.”

Agencies should consider if and how they wish to implement this new law.  On the one hand, adoption of a written policy can protect an agency against accusations that decisions to accept or deny liability are made for arbitrary, discriminatory, retaliatory or other improper reasons.  Written policies are generally a best practice.  On the other hand, the ability of an agency to make ad hoc non-discriminatory and non-retaliatory decisions regarding accepting such liability provides agencies with flexibility where it may be difficult to define what triggers coverage under this new law.  We recommend that agencies consult with their legal counsel to consider their options and discuss the drafting of a policy that will best serve a particular agency’s needs.

While this new law applies only to peace officers, the Legislature is currently considering a bill, AB 932, which would extend similar protections to California’s firefighters when the firefighter engages in fire-suppression or rescue operation or the protection or preservation of life or property outside of California.  We will continue to monitor AB 932 as it makes its way through the legislative process and provide updates.

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This blog was authored by Lisa S. Charbonneau.

Should your agency permit employees to use their available paid leave accruals prior to designating leave as Family Medical Leave Act (FMLA)-qualifying, even if your agency knows the leave is FMLA qualifying from the start?  A new Department of Labor (DOL) Opinion Letter issued by the Acting DOL Wage & Hour Administrator explains that employers that delay designation of FMLA-qualifying leave more than five days violate the FMLA.  Consistent with the new DOL Opinion Letter, employers should run FMLA once on notice of an FMLA qualifying event.

 What is the FMLA?

Generally speaking, the FMLA provides employees with the right to take up to twelve weeks of unpaid, job-protected leave per year to treat their own serious health condition or for various family care reasons, or up to twenty-six weeks to care for a covered service member.  An employee’s accrued paid leave may run concurrently with an employee’s otherwise unpaid FMLA leave.

The New DOL Opinion Letter

Issued March 14, 2019, a new DOL Opinion Letter addresses an employer’s obligation to designate leave as FMLA leave.  Specifically, the Opinion Letter explains that once an FMLA-eligible employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave.  That is, once an employer determines the employee’s reason for leave is FMLA-qualifying, the leave is FMLA protected, must be designated as FMLA, and thus counts toward the employee’s FMLA leave entitlement.  As the DOL Opinion Letter explains, an employer “may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation.”  The Opinion Letter also rescinds any prior statements in previous opinion letters that are inconsistent with the new opinion.

Application to California Employers

For California employers, the new DOL Opinion Letter clarifies employer responsibilities – especially after the Ninth Circuit case, Escriba v. Foster Poultry Farms, in which the Court held that an employee may affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.  Importantly, the Escriba case did not hold that an employer may delay designation of FMLA leave when an employer is on notice of an FMLA-qualifying event.  Rather, the case dealt with a scenario in which an employee did not request FMLA leave and did not give sufficient information that the purpose of the leave was FMLA-qualifying.  Because the employer was not on notice that the leave was FMLA-qualifying, it did not have an obligation to designate the leave as FMLA.

The new DOL Opinion Letter is clarification that once an employer determines that a leave qualifies as FMLA, the employer should designate an FMLA-qualifying leave as FMLA leave within five days.  Even if an employee wishes to take accrued paid leave at the outset, if the employer is on notice that the leave is FMLA qualifying, the leave will necessarily count toward the employee’s FMLA entitlement and will not expand that entitlement.

What About the California Family Rights Act?

The California Family Rights Act (CFRA) follows the FMLA to the extent the laws are not inconsistent.  On this issue, CFRA is not inconsistent with the FMLA so the principles discussed above should extend to CFRA leave designations as well.

Applying leave laws is challenging.  If you have questions on how to apply the various state and federal leave laws that apply to your agency, seek advice and counsel of an experienced employment law attorney to ensure you are in compliance.

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This post was authored by Lisa S. Charbonneau.

On February 25, 2019, the California Second Appellate District Court of Appeal issued a decision in the case Marquez, et al. v. City of Long Beach, holding that the state minimum wage applies to charter cities because minimum wages are a matter of statewide concern.  The holding should be construed to apply to all counties (charter and general law) as well.

What does this mean for charter cities and counties (charter and general law)?  The practical effect of Marquez is that charter cities and all counties must ensure that their non-exempt employees are paid no less than the state minimum wage for all hours worked.  An agency that pays any non-exempt employee less than the state minimum wage should take immediate steps to increase those wages right away.  We recommend consulting with legal counsel on how to take those steps.

Currently, the state minimum wage is $12.00 per hour for any employer with more than twenty-five employees and $11.00 per hour for employers with 25 employees or less.  The state minimum wage is statutorily set to increase yearly until it reaches $15.00 for all employees in 2023 (2022 for employers with more than 25 employees).  Click here for a chart on the state minimum wage phase-in.

Note that Marquez decision does not affect general law cities, which are subject to the state minimum wage.

Background

Beyond the impact on day-to-day wage rates, the Marquez decision is notable for its discussion of why the state minimum wage applies to charter cities and counties.  A bit of background will be helpful here.  Under the California Constitution at Article XI, Sections 4 and 5, charter cities and counties (charter and general law) have exclusive authority to regulate and determine their own municipal affairs.  These provisions have given rise to what is known as the home rule or municipal affairs doctrine.  Under the doctrine, charter cities and counties (charter and general law) have plenary power over their own municipal affairs exclusive of state interference.  In contrast, the state legislature has the power to regulate matters of statewide concern.  Click here to read more about the home rule doctrine.

Over the years, courts have been asked to determine what is a municipal affair, what is a matter of statewide concern, and in what cases may the state legislate municipal affairs.  In the context of employee compensation, courts have ruled, for example, that the state’s workers’ compensation law is a matter of statewide concern, as is the statewide rights of public employees to join a union, thus the constitution permits those laws to apply to charter cities and counties despite conflicting local laws.  In contrast, courts have found that setting the wages of charter city employees, capping those wages, and outsourcing the determination of such wages to a third party were all municipal affairs not subject to state interference.  (Marquez, *18.)

In the Marquez case, the court was tasked with evaluating whether the state’s minimum wage law is a matter of statewide concern applicable to charter cities (like workers’ compensation or the right to join a union) or unconstitutionally interfered with purely municipal affairs of those entities.

The State Minimum Wage Is a Matter of Statewide Concern

In applying the state minimum wage law to charter cities (and all counties), the Marquez court analyzed the purpose of the law itself, holding that the law and its legislative history evidences the Legislature’s intent to broadly apply the state minimum wage to all employees throughout the state in every industry – private and public.  Moreover, the state minimum wage law protects Californians by keeping California “families above the poverty line.”  (Marquez, *28.)  That is, like workers’ compensation law, the statewide minimum wage serves the “fundamental purpose of protecting health and welfare of workers,” which is a matter of statewide concern.  (Id.)  The court also noted the state is more likely to provide state-funded public assistance to employees receiving wages below the statutory minimum.  (Marquez, *25.)   For all these reasons, the court concluded that the state minimum wage law is a matter of public concern and may be applied to charter cities (and all counties).

The Marquez court was careful to distinguish minimum wage laws from prevailing wage laws, which have been struck down by the California Supreme Court as unconstitutional numerous times, most recently in State Building & Construction Trades Council v. City of Vista.  According to the Marquez court, the Supreme Court struck down prevailing wage laws because they effectively set wages and salaries at the prevailing rate, which has a greater impact on local control than minimum wage laws, which only set “as a floor the lowest permissible hourly rate of compensation.”  (Marquez, *29.)

Charter Cities and Counties Retain Authority to Provide Wages Above the Minimum

Importantly, the Marquez court wrote, “the minimum wage law does not deprive the City completely of its authority to determine wages.  The law sets a floor based on the Legislature’s judgment as to the minimum income necessary for a living wage in this state.  The City retains authority to provide wages for its employees above that minimum as it sees fit.”  (Marquez, *32.)  Thus, charter cities and counties should not rely on Marquez to follow wage and hour laws that are not the state minimum wage.  Agencies are cautioned to consult legal counsel to evaluate whether California wage and hour laws apply.

What Should You Do Right Now?

You should ensure that if you are a charter city or a county (general or charter) that all of your employees (including part-time and unrepresented employees) are paid at least the current state minimum wage.

It is not known whether the City will appeal the decision to the California Supreme Court.  Regardless, LCW is following this case and will provide updates on any new developments.

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This post was authored by Megan Lewis.

The United States Supreme Court may be gearing up to decide whether, under the Equal Pay Act, employers can consider an employee’s previous salary history when setting the employee’s rate of pay.  In doing so, the Court could clarify an area of the Equal Pay Act that has been interpreted differently by the various Circuit Courts of Appeal.

Under the federal Equal Pay Act, if an employer is paying an employee less than an employee of the opposite sex for work requiring the same skill, effort, and responsibility, which is performed under similar working conditions, the employer must be able to demonstrate that the disparity is based on one of the following:

  • seniority system;
  • a merit system;
  • a system which measures earnings by quantity or quality of production; or
  • a differential based on any other factor other than sex.

The first three exceptions are fairly straightforward, but the fourth (which is also known as the “catchall” exception) has often been the subject of litigation.

In April 2018, the Ninth Circuit ruled in Rizo v. Yovino that salary history is not a “factor other than sex” for purposes of the Equal Pay Act, meaning that employers cannot rely on an applicant’s prior salary history to justify paying one employee differently than another employee of the opposite sex for similar work.  The Ninth Circuit held that the only “factor[s] other than sex” that employers can use to justify a wage disparity are “legitimate, job-related factors such as a prospective employee’s experience, educational background, ability, or prior job performance.”

Jim Yovino, the Fresno County Superintendent of Schools, filed a petition for writ of certiorari asking the U.S. Supreme Court to review the Ninth Circuit’s decision because the Circuit Courts of Appeal do not agree on whether prior salary is a “factor other than sex.”  The Eleventh Circuit, like the Ninth Circuit, has held that the “factor other than sex” exception to the Equal Pay Act is limited to “job-related factors.”  The Seventh Circuit, on the other hand, has reached the exact opposite conclusion and held that employers can consider prior salary in setting pay.  The Second Circuit lands somewhere in the middle, holding that the “factor other than sex” exception applies to “business-related reasons,” which is likely less restrictive than the approach taken by the Ninth and Eleventh Circuits.

The Court is likely to decide the fate of Yovino’s petition in the coming weeks, possibly as soon as later this month.

If the Supreme Court ultimately affirms the Ninth Circuit’s decision in Rizo, the Ninth’s Circuit’s standard (under which only “job-related factors” can be a “factor other than sex”) could become the nationwide standard.  However, even if the Court were to overturn Rizo, state and local legislation regarding the right of employers to consider salary history in setting pay would remain in effect.  For instance, California employers would still be required to comply with the provisions of AB 168, which restricts the ability of employers to gather applicants’ salary history information or consider such information when determining whether to offer employment to an applicant and/or what salary to offer.  The same is true for employers in other states (Massachusetts, Delaware, and Oregon) and cities (New York, San Francisco, Boston, and Philadelphia) that have passed similar legislation.

We are watching this case closely, and we will provide updates as soon as they become available.

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This blog post was authored by Jennifer Palagi.

A number of developments – the 2016 decision in Flores v. City of San Gabriel on the intersection of wage and hour law and employer health plans and the U.S. Department of Labor’s (“DOL”) increased scrutiny of employers’ FLSA practices as of several years ago – continue together to provide a resounding “wake-up call” to employers.  It is important to assure FLSA compliance this year.

An FLSA audit is an opportunity to examine an agency’s policies and practices to identify any possible FLSA violations.  FLSA audits may examine every applicable wage and hour issue, or may look at one or two pressing concerns.  Audits typically involve reviewing various documents, such as payroll records, memoranda of understanding, and agency rules, as well as interviewing agency employees who are familiar with relevant practices.

Payroll Audits

Under the FLSA, all compensation that is “remuneration for employment” must be included in the regular rate unless it falls within one of several narrowly construed statutory exceptions.  The regular rate is not to be confused with the base hourly rate or salary and must include all requisite special pays in the overtime calculation.   In Flores v. City of San Gabriel, the Ninth Circuit held that cash payments to police officers made in lieu of health benefits must be included in the regular rate for overtime purposes under the FLSA (and that under some circumstances, health plan payments made on behalf of employees must also be included).

A payroll audit can assess whether an agency includes all special pays required by the FLSA in determining a non-exempt employee’s regular rate of pay and whether the agency is calculating the FLSA regular rate of pay correctly.

Employee Classification Audits

Misclassifying employees as exempt or non-exempt is a common FLSA error.  Unless exempt, employees must generally be paid at the rate of 1.5 times their “regular rate” of pay for all hours worked more than 40 in a week.  The most common exemptions, or “white collar” exemptions, apply to executive, administrative, professional, outside sales, and certain computer-related employees.  The burden is on the employer to show that an employee is properly classified as exempt.

The audit may be based only the determining whether salary levels are met for exemptions (i.e., just to confirm that relevant employees make enough for FLSA exemptions to apply to them).  Alternatively, it could involve a comprehensive review of the duties employees are actually performing and the percentage of time spent performing those duties to determine if employees qualify under FLSA exemptions.

Hours Worked Audits

The DOL continues to increase its rate of audits and general scrutiny of employers’ FLSA compliance.  One area of focus is whether non-exempt employees are getting compensated for all “hours worked.”  Under the FLSA, overtime compensation must be paid for all hours worked over a maximum amount in a work period (usually 40 hours in a seven day FLSA work week).  Hours worked under the FLSA is broadly defined to include all hours employees are “suffered or permitted to work” for their employer, including time they are necessarily required to be on duty on the employer’s premises or time worked even if the employer did not request the employee to perform that work.  Thus, the issue is often ripe for challenge by employees.

An “hours worked” audit can identify whether an agency’s calculation of hours worked is correct when an employee, for example, travels for work or attends a training.  The audit can also examine whether employees work off-the-clock hours and can identify whether these hours are compensable under the FLSA.

Finally, the FLSA provides employers a defense to liquidated damages (double damages) if the employer can show that in good faith it tried to follow the FLSA and was reasonable in believing that it was in fact in compliance.  Thus, agencies should regularly audit FLSA compliance to help support a good faith defense.

Now is the time for agencies to take a close look at their policies and practices and ensure they are in strict compliance with the FLSA.   An essential preventive tool for agencies is an FLSA audit.  It is only through a comprehensive analysis into an agencies’ compensation, classification and time-keeping practices, and an examination of whether those particular practices comply with FLSA requirements that an agency can properly navigate the FLSA and its regulations and reduce the risk of FLSA lawsuits.

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This blog post was authored by Jennifer Rosner.

In a 2014 decision of the U.S. Court of Appeals, the Ninth Circuit Court in California held that an employee can affirmatively decline to use leave under the Family Medical Leave Act (“FMLA”).  However, buyer beware!  If an employee affirmatively declines to use FMLA to which he/she would otherwise be entitled, the employer may be shielded from a lawsuit if it takes an adverse employment action against the employee based on that leave.

The FMLA provides job protection to an eligible employee who takes leave (up to 12 workweeks per year) to care for the employee’s spouse, child or parent with a serious health condition.  However, in Escriba v. Foster Poultry Farms, an employee declined to use FMLA when she took an extended leave of absence to care for her ill father.  When the employee was terminated for failing to comply with the company’s absence policy, she filed a lawsuit claiming that her termination was an unlawful interference with her FMLA rights.  The Court held that the termination was lawful because the employee had expressly declined to have her time off count as FMLA leave and therefore, was not entitled to job protection.

Maria Escriba worked at a Foster Farms processing plant for 18 years.  On November 19, 2007, she met with her immediate supervisor to request two weeks vacation leave to care for her ailing father in Guatemala.  Her supervisor asked if she needed more time in Guatemala to care for her father, and Escriba responded that she did not.  The supervisor told her that if she later decided to request more than two weeks leave, she would need to visit Human Resources.  Escriba then went to the Foster Farms facility superintendent and told him she was going to Guatemala because her dad was very ill.  She told him she was using two weeks of vacation time and asked her for an additional two weeks as a “favor.”  The superintendent told Escriba to send a note or documentation to Human Resources for the extra time.  He did not instruct Escriba regarding her rights and obligations under FMLA and did not take any steps to designate her time off as FMLA.  Escriba never requested any additional time from Human Resources.

Escriba then traveled to Guatemala to care for her father.  While there, she decided that returning to work after two weeks would not be practical but she failed to make contact with her employer to extend her leave.  Sixteen days after she was supposed to return to work, Escriba called her union representative who informed her that she was going to be terminated under Foster Farm’s “three day no-show, no-call rule.”  Under this policy, an employee is automatically terminated if absent for three work days without notifying the company or without seeking a leave of absence.  Escriba then sued Foster Farms, claiming that the company interfered with her right to take FMLA leave.

To establish a case of FMLA interference, an employee must establish that 1) he/she was eligible for FMLA protection; 2) the employer was covered by the FMLA; 3) the employee was entitled to leave under the FMLA; 4) the employee provided sufficient notice of intent to take leave; and 5) the employer denied the employee FMLA benefits to which he/she was entitled.  Here, the Court found that Escriba elected not to take FMLA leave after telling her supervisor that she only wanted vacation time and that she did not need additional time off.  She also knew that her supervisor only handled requests for vacation whereas Human Resources had handled her past fifteen requests for FMLA leave.  Moreover, Escriba had intended to take vacation time and not family leave.  Accordingly, Escriba did not express intent to take leave under the FMLA.

Thus, this case demonstrates that an employee cannot have it both ways – the employee cannot decline to use FMLA (even if the leave qualifies for FMLA) and then try to hide behind FMLA protections after the fact.  Accordingly, once an employee declines to use FMLA, the employee assumes the risk of the decision.  Thus, as in this case, if an employee declines FMLA leave, and goes on an unauthorized leave of absence, the employee can be lawfully terminated (consistent with agency policies).  Because the FMLA does not require that an employee expressly ask for “FMLA leave” to fall under its protections, we recommend that the employer should inquire of the employee if it is necessary to determine whether FMLA is being sought by the employee and obtain the necessary details of the leave to be taken.

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This post was authored by Erin Kunze.

Last month, the Court of Appeal for the Third Appellate District of California found that an employee’s time traveling between home and a job site in an employer’s vehicle was not compensable, despite the employer restricting the employee’s activities during the commute time at issue.  Notably, this case analyzed a California wage and hour law on travel time that applies to public sector employers other than counties or charter cities.

In Hernandez v. Pacific Bell Telephone Company, Pacific Bell established a “Home Dispatch Program” by which it allowed employees to take work vehicles home, and to use those vehicles to travel to various job sites without first checking in at a central garage.  The “Home Dispatch Program” was voluntary in nature.  Employees who chose to participate were required to be at their first worksite by 8:00 a.m., and were not compensated for any time before 8:00 a.m. spent driving from their homes to the initial worksite.  Nor were the employees paid for time spent driving home with equipment and tools after their last appointment.  However, during these commutes, participating employees were prohibited from talking on cell phones while driving (even before doing so was illegal), and were prohibited from making personal stops to run errands or drop off or pick up children from school while using the company vehicle.

Employees who did not opt to participate in the Home Dispatch Program were required to commute to and from a company garage each day, where they would pick up and drop off company vehicles.  Such employees were not compensated for their home-to-garage commute time.  Instead, they would be compensated once they arrived at the garage site at 8:00 a.m.

Employees who participated in the Home Dispatch Program brought suit against Pacific Bell claiming that the control Pacific Bell exerted over their commute time, while using a company vehicle, rendered the time compensable.  Relying on State law, the Court determined that, because the Home Dispatch Program was optional and employees were not required to use the company vehicle to commute to and from their worksites, they were not under the employer’s control, and the travel time was not compensatory.  The Court further articulated that carrying tools and equipment in company vehicles during the home-to-site commute times did not make the time compensatory because employees were not required to engage in any effort or extra time to effectuate the transport.  Notably, employees who participated in the Program were compensated when they were required to travel to and from the central garage to load equipment and tools needed for that week.

While this case does not necessarily change existing law, it clarifies that prohibiting employees from stopping for personal errands or carrying other passengers while commuting in an employer’s vehicle does not necessarily render the commute time compensatory under California law.  Rather, the question will be whether the use of the employer’s vehicle for that purpose, with the corresponding restrictions, was required by the employer.  In this case, because the Home Dispatch Program was optional and voluntary, employees were not entitled to compensation for their commute to and from various worksites at the start and end of the otherwise regular workday using a company vehicle.

We encourage public agencies to consult legal counsel to assess whether and how this case impacts the agency or its existing rules.

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This post was authored by Lisa S. Charbonneau.

Under Article XI, Sections 4 and 5 of the California Constitution, charter cities and counties have exclusive authority to regulate and determine their own municipal affairs, free from intrusion by the state.  These provisions of the Constitution are collectively referred to as the municipal affairs clause and have given rise to what is known as the “home rule” or “municipal affairs” doctrine.  At its essence, the home rule doctrine embodies the principle that a municipality knows its wants and needs better than the state at large.

The origins of the home rule doctrine lie in the creation of the state of California itself.  That is, when the original California Constitution was ratified in 1849, many municipalities within the state had operated autonomously for decades using their own laws, government structures, and tax systems.  In the face of the new power emanating from Sacramento, many established municipalities (such as Los Angeles or San Francisco) were skeptical of the state legislature and favored local autonomy.  The municipal affairs clause and the home rule doctrine reflect that sentiment; they evidence an affirmative adjustment to the political relationship between the state and municipalities that grants charter cities and counties the power to regulate their own municipal affairs.  For more on the history of municipal affairs in California, click here or here.

A case from 1899 involving the City and County of San Francisco (CCSF), Popper v. Broderick, exemplifies how the home rule doctrine has been invoked and applied.  In 1897, the state passed a bill setting minimum salaries for municipal police and fire personnel that were higher than that paid by many municipalities at that time.  For example, whereas the new state bill set the minimum salary for a police chief at $5000 per year, the police chief of San Francisco was only paid $4000 per year.  In response, San Francisco resident Max Popper sued to prevent CCSF from raising the salaries of any affected CCSF employees to comply with the new state law.  According to Popper, the law was an unconstitutional intrusion into a purely municipal affair; the state lacked the power to force the taxpayers of CCSF to pay increased compensation to its police and fire personnel.  In 1899, the California Supreme Court agreed, finding that the constitution’s home rule provisions were intended “to prevent the constant tampering [by the state] with matters which concern only or chiefly the municipality” and that “the pay of firemen and policemen clearly falls within the term ‘municipal affairs.’”

Since Popper, numerous California courts have taken up the issue of whether wages and salaries paid by charter cities and counties to their employees constitute a municipal affair.  For example, in 1979, the California Supreme Court held that a state law preventing public agencies from providing cost-of-living increases to their employees violated the home rule provisions of the California Constitution because the determination of wages paid to employees of charter cities and counties is a matter of local rather than state-wide concern.  In another example, the First District Court of Appeal held in 2008 that overtime pay and meal and rest breaks constitute matters of local concern, and that thus, under the home rule doctrine, provisions in the Labor Code regulating overtime and meal and rest breaks do not apply to charter cities and counties.

Today, charter cities and counties regularly invoke the home rule doctrine in response to attempts by various interests to apply inapplicable state regulation to charter cities and counties or to otherwise regulate on a state-level the goings-on within charter cities and counties.  Thus, courts throughout the state continue to apply a doctrine born in the 1800s to the modern day realities of state versus local government, with varying results.  Charter cities and counties should consult legal counsel to evaluate the applicability of the home rule doctrine to any particular state law or regulation that appears to address what may be a purely municipal matter.

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This post was authored by Lisa S. Charbonneau.

Many employers struggle with properly paying non-exempt employees who attend courses, conferences, seminars, meetings, and other trainings. In the absence of labor agreement provisions or other agency rules or policies governing this issue, public agency employers must follow the rules of the Fair Labor Standards Act (FLSA) when evaluating whether an employee is entitled to compensation for training time.

Under the FLSA, training time is not compensable work time if: (1) the training takes place outside of the employee’s regular working hours, (2) attendance is voluntary, (3) the training program is not directly related to the employee’s job, and (4) the employee performs no productive work during the training.  Click here to view the Department of Labor (DOL) regulation setting forth these rules.

What does this look like in real life? Let’s say a Detective who works Monday through Friday, 9 am – 5 pm, was permitted to attend a weekend intensive seminar on investigation skills.  She performed no productive work for her Department at the training.  Is she entitled to compensation for the time she spent in the training intensive?  Probably yes.  Even though the training was outside her regular work hours, she performed no productive work, and her attendance was voluntary, the training program was directly related to the Detective’s job and is therefore compensable hours worked.

In a change of facts, what if the detective’s Department did not approve her attendance at the training due to budget concerns and the Detective decided to attend the training on her own initiative. Would she still be entitled to compensation for the time she spent in the training? Probably not.  Where an employee attends an outside training while off duty on his or her own initiative, the time is not considered compensable hours worked – even if the training is related to his or her job.

Practice Tip: Be wary of approving attendance at trainings that occur outside of an employee’s regular work hours.

What about the time the Detective spent travelling to the training? Assuming the training time was compensable, was her travel time compensable? It depends – on a number of factors.  Importantly, the law governing this issue differs as between charter cities and counties on the one hand (which only need to follow the FLSA) and other public agency employers (which must also follow State law).  If the Detective works for a charter city, the FLSA applies and generally speaking she would be entitled to compensation for travel time that occurred during her regular work hours only. That means the time she spent driving herself to the training between 9:00 am and 5:00 pm – even though it is her day off – will be compensable hours worked.  (There are certain exceptions to this general rule, such as when an employee is a passenger and/or public transportation has been offered.  Click here to view the DOL regulations setting for these rules.)  If the Detective works for a general law city, however, California State law applies and she will likely be entitled to compensation for all time spent travelling.

The rules and legal tests governing the compensability of training time and travel time are complex and applying them to real life scenarios requires fact-specific analysis. Public agencies are well advised to consult legal counsel in making such determinations.

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