First Amendment Auditors

On November 3, 2020, two men wearing tactical vests and armed with a handgun stood outside a ballot box and filmed voters dropping off ballots in front of the Arapahoe County administration building in Littleton, Colorado.  Alarmed county staff approached the men and asked them what they were doing while others called the police.  In response to the county staff’s questioning, the men identified themselves as “First Amendment auditors,” and upon further questioning by police officers, the men conveyed that they had the legal right to film people outside a government building, and further that they possessed the right to carry firearms under Colorado’s open carry law.  The men recorded their encounter with police and County staff.  Ultimately the police decided not to cite or otherwise detain the two individuals because they did not actively prevent any voters from delivering their ballots.[i]

Instances of the above, known colloquially as “First Amendment audits,” are an increasingly prevalent phenomena that involves members of the public who call themselves citizen journalists and/or First Amendment auditors and who typically attempt to provoke a response or otherwise test local government officials.  The practice refers to individuals who travel to publicly-accessible areas on public property, including within local or municipal offices, and then film their encounters with public employees.  The self-proclaimed goal of these auditors is to test whether the government is abiding by the strictures of the First Amendment by leaving them be; if an official detains, cites, harasses, or otherwise restricts or arrests the auditor, the local entity is deemed to have “failed” the audit.  These filmed encounters usually wind up on social media including YouTube and Facebook with the stated goal being to raise awareness about violations of the law and holding the government accountable, while concurrently encouraging members of the public to express their disdain for the public employees who have been filmed.

Because auditors often behave provocatively and seek confrontation not only with police but also try to engage with municipal employees at all levels, and because the ramifications of a “failed” audit can result in unwanted social media attention, negative press coverage, and even civil liability, municipalities in recent years have sought guidance in enacting both constitutionally permissible and practical rules to mitigate against the undesired consequences of these encounters.

What are First Amendment Auditors?

First Amendment auditing can arguably trace its roots back to the beating of Rodney King in 1991.  George Holliday, a Los Angeles plumber, had then recently obtained a new Sony handheld camcorder.  Upon being awakened in the morning by the sounds of sirens and helicopters, he grabbed his camcorder and went onto his balcony to film the fateful encounter between four police officers and Mr. King; the shocking footage was later sent to a local news station.  Following acquittal of the officers on charges of use of excessive force, the 1992 Los Angeles riots erupted bringing to the forefront of the public mind important and longstanding racial, governmental, and social issues.

Since the beating of Rodney King, the proliferation of consumer-grade recording technology has only multiplied the number of persons who can video government misconduct exponentially; indeed, the ubiquity of cell phones and their video capability has practically transformed every single member of the public into an auditor who can capture instances of government abuse into videographic form—often instantly uploaded into the cloud or livestreamed.  The permanent and sometimes powerful nature of these recordings is lauded by proponents of First Amendment auditors, who argue that First Amendment auditors play a pivotal role in keeping the government accountable and transparent to the public.  A recent example of such accountability includes the recording of the murder of George Floyd in 2020 by four police officers in Minneapolis; the footage of the killing subsequently launched global protests against historic racism and police brutality, including the Black Lives Matter movement.

Today First Amendment auditing can be described as a form of citizen journalism or citizen activism that seeks to test and thereby protect certain constitutional rights, including the right to be physically present in a public space and the right to photograph or video record government officials on government property in action (or inaction).  As their name implies, auditors cite to the First Amendment as providing the constitutional bulwark supporting these rights; other implicated constitutional rights include the Fourth and Fifth Amendments, or even the Second Amendment, such as when auditors enter public spaces armed.  The typical auditor practice involves travelling to spaces open to the public—including local governmental offices such as city clerk offices, post offices, police stations, and libraries—and then openly filming or photographing those environs and any persons within them.  Auditors often refuse to self-identify or explain what they are doing, and auditors frequently intend to provoke a police response in order to record instances of police or governmental wrongdoing, or otherwise depict public employees in an unfavorable light.[ii]

That auditors frequently seek to incite confrontation or aggression through harassing or argumentative behavior stems from another motivation besides the asserted protection of individual liberties: namely, to obtain popularity and money flowing from social media views.[iii]  As reported by an increasing number of news organizations, the rising popularity of First Amendment auditor videos has led to a “ruthless competition” among auditors, thereby leading to attempts to create more dramatic videos in order to attract more clicks, subscribers, and advertising revenue for the video uploaders.[iv]  A vivid or violent interaction between an auditor and government officials can result in a video generating millions of views on YouTube and also thousands of donations to the auditor, which have led some auditors to describe auditing as their “form of business”.[v]

These dramatic interactions between auditors and government personnel may result in drastic consequences for a local municipality.  Indeed, if an evocative interaction makes it onto social media, it can result in hordes of auditors and “cop-watchers” descending onto a local city—which is what occurred following an arrest of an auditor for allegedly trespassing in a government building in Leon Valley, Texas.  The resulting video generated social media attention and thus led to more auditors arriving days later.  The ensuing confrontations led to arrests, including one incident in which an individual tried to bait law enforcement by carrying fake rubber guns into another government building.[vi]  The resulting arrests of the various protestors and auditors have led to multiple lawsuits against the City of Leon Valley and its officers via 42 U.S.C. § 1983 actions.[vii]  This problem of confronting disruptive individuals is further compounded with the increasing frequency of school shootings and other terrorism-related events in recent years, which may lead to tensions between public employees who are seeking to protect the health, safety and welfare of the public, and First Amendment auditors who refuse to self-identify and/or behave provocatively.[viii]

Is Video Recording Speech?

A threshold question to the potential regulation of any First Amendment auditor activity, which at its core involves filming publicly accessible spaces on government property and/or filming public employees in the course of their duties, is whether filming counts as speech, and therefore, does the First Amendment apply?

The Ninth Circuit as well as other circuits have concluded that filming is speech, or, at a minimum, necessary predicate activity to speech and therefore is protected activity under the First Amendment.[ix]  The Ninth Circuit squarely addressed the question in Animal Legal Defense Fund v. Wasden (“Wasden”), which concerned an animal rights advocacy organization’s challenge against Idaho’s “Ag-Gag” statute criminalizing a person from entering a private agricultural production facility and making an audio or visual recording of the facilities’ operations without the owner’s consent.[x]  Idaho’s statute was in response to a secretly-filmed expose going viral on the internet, depicting Idaho dairy workers torturing and otherwise mistreating cows.[xi]  At issue in the challenge was whether the Recordings Clause of the Idaho statute regulated speech and therefore was protected by the First Amendment.

The Ninth Circuit held that the statute prohibiting audio and visual recordings regulated speech and was a “classic” example of an impermissible content-based restriction.[xii]  Idaho’s arguments seeking to distinguish the act of recording as mere conduct and not speech were “easily” disposed of, because such arguments were “akin to saying that even though a book is protected by the First Amendment, the process of writing the book is not.”[xiii]   In other words, those steps integral in the speech-making process were entitled to equivalent protection as the speech (here, the film or photograph) itself.[xiv]  Thus the act of recording or creating the video could not be disaggregated from the video; they concerned the same expressive activity.  The Ninth Circuit also emphasized that the act of recording a video was expressive in of itself, explaining that:

[D]ecisions about content, composition, lighting, volume, and angles, among others, are expressive in the same way as the written word or a musical score.[xv]

The decision in Wasden followed several other similar decisions by the Ninth Circuit, all of which refused to create a distinction between what some have urged is “pure” speech—such as an essay or a piece of art—from the process of creating them—such as writing or painting.[xvi]  And, a subsequent decision in Askins v. U.S. Department of Homeland Security reaffirmed and reiterated the logic of Wasden.[xvii]  There, in an action by border policy advocates against the Department of Homeland Security, the Ninth Circuit overturned the lower court ruling and found that the advocates had stated a valid First Amendment claim.  These auditors were taking photographs from public lands and recording activities occurring at the port of entry; they were then detained and their photographs were destroyed.[xviii]  The Ninth Circuit held that the First Amendment’s scope of protection included the right to record law enforcement officers engaged in the exercise of their official duties in public places.[xix]

Other Circuit Courts of Appeal who have considered the issue have endorsed or adopted the same position as the Ninth Circuit, including the First Circuit[xx], Third Circuit[xxi], Seventh Circuit[xxii], and Eleventh Circuit.[xxiii]  And, although the Supreme Court has not expressly considered the issue, recent Supreme Court jurisprudence espouses similar logic as adopted by the majority view.[xxiv]

Regulating Speech on Government Premises

In assessing municipal regulations and policies under the First Amendment it is essential to understand the First Amendment jurisprudence at play.  In order to assess the scope of the First Amendment’s limitation on governmental authority,[xxv] it requires an examination of the forum classification doctrine that the Supreme Court has created for reviewing regulations of expressive conduct in a public space.[xxvi]

The forum classification doctrine is a system of categorizing spaces, and then determining the rules accorded to the specified category.  Forum classification is crucial because the level of scrutiny and the leeway afforded to the government differ based upon the type of forum being regulated, meaning that forum classification may be the deciding factor as to whether the government’s restrictions on a forum survive scrutiny under the First Amendment.[xxvii]

The forum classification doctrine is a complex body of law that often turns on the particulars of the underlying facts, but for purposes of providing a high level overview it is summarized as follows.  Once a court has decided that the activity at issue (such as filming) is protected speech, courts determine the type of forum where the speech is taking place, and then decide whether the challenged limitations on the activity meet the corresponding standard of review associated with that particular forum.

There are four categories of fora: (1) traditional public fora, where people have traditionally been able to express ideas and opinions in public to the public;[xxviii] (2) designated public fora, where the government intentionally opens (or “designates”) non-traditional areas for First Amendment activity pursuant to policy or practice;[xxix] (3) limited public fora, where the government opens a nonpublic forum but has a clear and evenhandedly enforced policy that limited it to certain activities or topics;[xxx] and (4) non-public fora, where the government has not opened a forum to general discourse, and is not by tradition or designation a forum for public communications, such as including where it engages in its own government speech.[xxxi]

Examples of the various types of public fora are provided below.

Forum Classification Examples
Traditional public forum Parks, public streets, or sidewalks.[xxxii]
Designated public forum State university meeting facilities where university opens the facilities to registered student groups; school board meetings where statute provides for open meetings; municipal auditorium and city-leased theater where city dedicates the property to expressive activity; and interior of a city hall where city opens space to display art.[xxxiii]
Limited public forum Public library meeting rooms where policy limits it to certain uses, and public school property where policy limits use to particular groups.[xxxiv]
Non-public forum Interior of polling places,[xxxv] city’s acceptance of privately funded monument for its public park,[xxxvi] and a state’s specialty license plates program.[xxxvii]

 

The classification of the forum triggers the level of review which can be pivotal in determining whether government regulations pass constitutional muster.  A table summarizing the standard of review for evaluating government restrictions on First Amendment activity within different types of fora is presented below.

Form Classification Standard of Review
Traditional or Designated public forum 1. Viewpoint based restrictions are prohibited.

2. Content-based restrictions are subject to strict scrutiny.  The government must show that the regulation is necessary to serve a compelling government interest and narrowly tailored.

3.  Restrictions on the time, place, and manner of speech are permissible, so long as these restrictions are (i) content-neutral, (ii) narrowly tailored to serve a significant government interest, and (iii) leave open ample alternative channels of communications.

Limited or Non-public forum 1.  Viewpoint based restrictions are prohibited.

2.  Restrictions on protected speech or expression are permissible so long as they are (i) viewpoint neutral, and (ii) reasonable in light of the purpose served by the forum.

 

Reviewing and Classifying Public Property

On a practical level, conducting a review of the public property managed by a municipality under the federal court’s classification doctrine may seem a confusing task to local officials, particularly since a municipality may possess varying types of properties.

Nevertheless, some pragmatic guidance is offered to assist in the performance of this review: first, municipalities should consider that they may have defined what “Public Property” consists of under its own Municipal Code, which should therefore be initially consulted.  Second, for those areas under the municipality’s control, the entity should review what oversight authority the entity has, including the power to create rules of conduct.  Finally, in classifying public property, the municipality should look to whether the space has been opened up to the public at large and/or has a history of being used for expressive kinds of activity.  A property’s historical use is relevant to such an assessment, as well as any existing written policies, as courts have found both written policies and historical practices as relevant in discerning a locality’s intent as to whether it opened up a space for public expression.[xxxviii]  In such an assessment, common sense should not be left at the door; simply because a municipality may permit a member of the public to have a meeting with public employees within an office or behind a planning counter does not constitute “opening up” a space to public expression.[xxxix]  When moving forward to characterize different locales and buildings, consider whether a municipality would be required to allow traditional speech in the location; for example, could protestors gather in an employee’s office and demonstrate?  This should provide a useful rule of thumb when starting a review of properties under a municipality’s control.

Finally, practitioners are encouraged to review examples of other localities’ ordinances which are specifically designed to address First Amendment auditor and similar activity, including the City of Portland’s Regulations,[xl] and the Municipal Association of South Carolina, which has also promulgated a model policy designed to address video and audio recording on municipal properties.[xli]

For instance, Portland’s ordinance is designed to apply to the nonpublic forums generally on city property, and attempts to regulate behavior and conduct rather than speech or other expressive activities.  For example, subsection (B)(4) states that:

No person shall engage in activity that disrupts or interferes with: the normal operation or administration of City business at City Property; lawful use by City employees and authorized users at City Property; or City permitted activities.[xlii]

Similarly, the Municipal Association of South Carolina’s model policy, like the Portland ordinance, defines different areas on the property open to public, including “limited access areas” which are generally not open to nor occupied by the public, such as employee offices and workspaces.[xliii]  And, like the Portland ordinance, MASC’s model policy also is designed to address conduct rather than typically expressive activities, such as prohibiting the obstruction or blocking of rights of way, while also empowering the municipality to create minimum standing or separation areas in order to prevent the recording of private, confidential, or sensitive information.[xliv]

Related Issues to Regulating First Amendment Auditor Activity

Aside from the forum classification analysis, other related issues regularly arise and are implicated when considering the nature and extent a municipality may limit First Amendment auditor activity on its property.  These include (1) the ability to prevent or control “loitering” on government property, (2) the rights of other private citizens on government property who are being recorded and who are attempting to conduct business that may be more “private” in nature, and (3) “sensitive” locations on government property. These issues are briefly addressed below.

Loitering. A similar line of regulations that attempt to prevent “loitering” have already been subject to extensive judicial review and therefore provide elucidation as to the ability of municipalities to regulate auditor conduct on similar grounds, i.e., whether it is permissible to preclude an auditor from sitting around in various public settings and filming individuals.  Although helpful, this line of cases tend to demonstrate the difficulties with controlling such activity because filming or photographing falls more squarely within the protections of the First Amendment.

“Loitering” is typically defined as staying in one location without an intended purpose.  The seminal case on this issue is the Supreme Court’s decision in City of Chicago v. Morales.[xlv]  There, several individuals were charged with violating Chicago’s gang loitering ordinance, which required a police officer, when observing a person whom he reasonably believed to be a gang member loitering in a public place with more than one persons, to order them to disperse.  Despite the somewhat targeted nature of the ordinance, the Supreme Court struck down the statute under the “vagueness” doctrine, explaining that the term “loiter” as used in the ordinance—“to remain in any one place with no apparent purpose”—was unconstitutionally vague.[xlvi]  As the Court explained, this is because it is difficult to imagine how any citizen of the City of Chicago standing in a public place with a group of people would know if he or she had an “apparent purpose”.[xlvii]

Private Citizens on Public Property. Another issue arises when other private citizens, conducting business on government property, feel uncomfortable when being videotaped by others.  Such persons may resort to asking government employees to intervene, or desist from coming onto public property altogether.

Such problems are not easily resolved as, generally speaking, it is legal to video record a private citizen so long as they do not have a reasonable expectation of privacy.[xlviii]  Persons in public places are typically found not to possess such a reasonable expectation from being video recorded.[xlix]  However, assessment of the factual setting is critical here as visiting a mental health or a juvenile probation facility may indeed carry with it an expectation of privacy.

Sensitive Government Locations. Another topic worth clarification concerns “sensitive” areas of government buildings that a municipality may wish to allow the public some form of limited access.

With respect to barring or restricting access, the Supreme Court has recognized that municipalities may of course prevent any public right of access to certain locations or areas, because similar to a private owner of property, the government also has the power “to preserve the property under its control for the use to which it is lawfully dedicated.”[l]  Although not dependent on having a characteristic relating to public safety, classical examples of such property over which the government can fully restrict access to include critical infrastructure such as water storage facilities, electric plants, airports, and public utilities.

With respect to limited access, the forum classification doctrine discussed above for potentially “sensitive” locations would apply.  The government should therefore consider if it wants to clearly define and mark which areas are public priority and which are off limits to members of the public.

Practice Pointers When Confronted by a First Amendment Auditor

In drafting or analyzing the legal adequacy of a filming or photographic ordinance (or one regulating activities frequently observed in First Amendment audits, including speech and provocation), attorneys should begin with the assumption that this activity implicates the full protection of the First Amendment.  From there, the analysis should focus on the forum being regulated.  If the forum is a public one (as it will be in the majority of situations), the critical point is to tailor the ordinance to the specific conduct and government interest(s) the regulation is addressing.  For a public forum, municipalities will also need to draft content-neutral regulations except in the rare instances where the regulation is supported by a compelling governmental interest.

While not exhaustive, the following is a list of tips a practitioner should consider for assessing the legal soundness of a First Amendment auditor or similar regulation concerning the filming or videotaping of persons on government property (and similar activities, such as confronting a municipal employee), as well as advice on instructing public employees on the appropriate manner of behavior:

  1. Consider creating guidelines for the government’s property to establish the nature of the public forum involved. In other words, define what areas are open to the general public versus areas only open to employees, like personal offices, workstations, waiting rooms, secure locations, and so on.
  2. Consider adopting guidelines for conduct that regulate only “time, place, and manner”—and not the content.
  3. Craft the guidelines to address and protect cognizable and practical interests the municipality wants to protect—for example, preventing interference with the ability to do the public’s work, or protecting against the invasion of privacy rights protected by law, like minors or health care.
  4. Ensure that the guidelines call out the nature of the public property in a way that is visible or accessible to both the public and municipal personnel.
  5. Ensure that employees are educated in the guidelines.
  6. Ensure that the rules in the guidelines are applied in an even-handed manner and are not only employed against specific persons or speech.
  7. Provide contact information to municipal personnel to ensure they know who to contact when situations develop.

In addition, municipalities should endeavor to ensure that employees specifically are trained in the following to facilitate a constructive or even positive encounter with First Amendment auditors:

  • Employees should know the general legal authority and understand what conduct is or is not generally permissible.
  • Employees should endeavor to stay calm and rational during an audit.
  • Employees should deflect or defuse inflammatory statements and not get angry.
  • If regulations apply to specific behavior or to the forum that a person is in, employees should clearly articulate them and direct the person to the rules.
  • Employees should always assume an audit video will end up on YouTube or other social media platforms.
  • Employees should have information on-hand to reach local counsel should the need arise.

[i] “Men filming voters in Littleton were ‘first amendment auditors,’ police say.”  The Littleton Independent (Nov. 3, 2020).

[ii] See Cardine, Sara. “1st Amendment auditors make police walk the line between enforcement, constitutionality.” Los Angeles Times (July 16, 2022).

[iii] Epstein, Kayla and Selk, Avi. “What is ‘auditing,’ and why did a YouTuber get shot for doing it?”  Washington Post (Feb. 15, 2019).

[iv] Sommer, Will. “The Insane New Path to YouTube Fame: Taunt Cops and Film It.” The Daily Beast (Jan. 24, 2019) (discussing First Amendment auditor activity in Texas, including Leon Valley).

[v] Ibid.

[vi] Ibid. (describing the Leon Valley incidents).  For additional examples, see “Viral video of Ohio police causes outrage, crashes phone line.”  WKBN, 2 News and Living Dayton, (Mar. 14, 2018).

[vii] See, e.g., Miller et al. v. Salvaggio et al. (W.D. Texas April 7, 2022), 2022 WL 1050314 (granting municipal defendants’ motion to dismiss).

[viii] See Thomas, Judy.  “They roam public buildings, making videos. Terrorism experts say they may be dangerous.”  Kansas City Star (Jan. 22, 2019).

[ix] See, e.g., Animal Legal Defense Fund v. Wasden (9th Cir. 2018) 878 F.3d 1184, 1203; see also Glik v. Cunniffe, 655 F.3d 78, 79–81 (1st Cir. 2011); Fields v. City of Philadelphia, 862 F.3d 353, 359 (3rd Cir. 2017); Blackston v. Alabama, 30 F.3d 117, 120 (11th Cir. 1994); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000).

[x] Animal Legal Defense Fund v. Wasden, 878 F.3d 1184, 1203 (9th Cir. 2018).

[xi] Id. at 1189.

[xii] Id. at 1203.

[xiii] Ibid.

[xiv] Ibid.

[xv] Ibid.

[xvi] Ibid.; Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995) (reversing summary judgment in suit involving arrest of citizen filming public protest march, as there was a “First Amendment right to film matters of public interest”); Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1061–62 (9th Cir. 2010) (determining that the tattooing process is expressive activity protected by the First Amendment).

[xvii] Askins v. U.S. Department of Homeland Security, 899 F.3d 1035, 1044 (9th Cir. 2018).

[xviii] Id. at 1045.

[xix] Id. at 1044.

[xx] Glik v. Cunniffe, 655 F.3d 78, 79–81 (1st Cir. 2011) (Holding that there exists a constitutionally protected right to videotape police officers in public. and stating that “[g]athering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs.’ ”).

[xxi] Fields v. City of Philadelphia, 862 F.3d 353, 359 (3rd Cir. 2017) (“Recording police activity in public falls squarely within the First Amendment right of access to information.”).

[xxii] ACLU v. Alvarez, 679 F.3d 583, 595 (7th Cir. 2012) (“The act of making an audio or audiovisual recording is necessarily included within the First Amendment’s guarantee of speech.”).

[xxiii] Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (“The First Amendment protects the right to gather information about what public officials do on public property[.]”).

[xxiv] See Citizens United v. Federal Election Com’n, 558 U.S. 310, 336 (2010) (noting that various laws enacted to control or suppress speech may “operate at different points in the speech process[.]”).

[xxv] Lovell v. Griffin, 303 U.S. 444, 450 (1938).

[xxvi] See e.g., Askins v. U.S. Department of Homeland Security, 899 F.3d 1035, 1044 (9th Cir. 2018) (employing forum classification system to review restrictions on right to take photographs in a public space).

[xxvii] Int’l Soc’y for Krishna Consciousness v. Lee, 505 U.S. 672 (1992); see also PMG Int’l Div., LLC. v. Rumsfeld, 303 F.3d 1163 (9th Cir. 2002); Hopper v. City of Pasco, 241 F.3d 1067, 1076 (9th Cir. 2001).

[xxviii] Cornelius v. NAACP Leg. Def. Fund, 473 U.S. 788, 800, 803 (1985).

[xxix] Perry Educ. Ass’n v. Perry Local Educator’s Ass’n, 460 U.S. 37, 45-46 (1983).

[xxx] Hills v. Scottsdale Unified Sch. Dist., 329 F.3d 1044, 1049 (9th Cir. 2003).

[xxxi] Pleasant Grove City v. Summum, 555 U.S. 460, 467-68 (2009).

[xxxii] See Perry Educ. Ass’n, 460 U.S. at 45-46.

[xxxiii] Widmar v. Vincent, 454 U.S. 263, 267 (1981); Madison Joint Sch. Dist. v. Wisconsin Emp’t Relations Comm’n, 429 U.S. 167, 174 (1976); Southeastern Promotions, Ltd v. Conrad, 420 U.S. 546, 555 (1975); Hopper, 241 F.3d at 1075-6.

[xxxiv] Faith Center Church v. Glover, 480 F.3d 891, 908 (9th Cir. 2007) (abrogated on other grounds by Winter v. Natural Res. Def. Coun., 129 S.Ct. 365 (2008)); Good News Club v. Milford Cent. Sch., 533 U.S. 98, 102, 106 (2001); Arizona Life Coalition v. Paisley, 515 F.3d 956, 969 (9th Cir. 2008).

[xxxv] Minnesota Voters All. v. Mansky, 138 S. Ct. 1876, 1885 (2018).

[xxxvi] Id.

[xxxvii] Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2245–2246 (2015).

[xxxviii] Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802 (1985) (examining government practices and policies to determine government charity drive is not a public forum).

[xxxix] Id., 473 U.S. at 805–806 (emphasizing the importance of allowing the government “wide discretion” in controlling its work space and refusing to find that rules permitting limited expression as opening up the space); see also Helms v. Zubaty, 495 F.3d 252, 257 (6th Cir. 2007) (county’s “open-door policy” was not evidence to create a public forum for expressive activity in the reception area outside of county offices); Sammartano v. First Judicial District Court, in and for County of Carson City, 303 F.3d 959, 966 (9th Cir. 2002) (abrogated on other grounds).

[xl] Portland City Code, PCC § 3.18.020, accessible at: https://www.portland.gov/code/3/18/020.

[xli] The Model Policy is accessible at: https://www.masc.sc/policy-regarding-public-access-and-video-and-audio-recording-municipality-property.

[xlii] PCC § 3.18.020(B)(4).

[xliii] Municipal Association of South Carolina’s Model Policy, at pp. 1, 4.

[xliv] Id. at p. 3.

[xlv] 527 U.S. 41 (1999).

[xlvi] Id. at 42.

[xlvii] Id.

[xlviii] For example, under California’s Constitution which provides an inalienable right to privacy to individuals (Cal. Const. Art. 1, § 1), the right only protects an individual’s “reasonable” expectation of privacy.  Ibarra v. Superior Court (App. 2 Dist. 2013) 158 Cal.Rptr.3d 751.

[xlix] See, e.g., Vo v. City of Garden Grove (App. 4 Dist. 2004) 9 Cal.Rptr.3d 257 (City ordinance requiring CyberCafe owners to maintain video surveillance did not violate privacy rights where, among other things, customers had no reasonable expectation of privacy in light of wide use of surveillance equipment in public places).

[l] Perry, 460 U.S. at 46.

 

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PAGA Standing and Arbitration: What California Employers Need to Know Now That the California Supreme Court Has Spoken

On July 17, 2023, the California Supreme Court issued its decision in Adolph v. Uber Technologies, Inc. With this decision California employers need to understand that plaintiffs do not lose standing when individual California Private Attorneys General Act (“PAGA”) claims are sent to arbitration and the PAGA claims of the other class members are likely to be stayed, rather than dismissed, pending determination in arbitration concerning whether a plaintiff is an “aggrieved employee.”

In Adolph, the Court addressed the question of whether an employee who was compelled to arbitrate individual Labor Code and PAGA claims maintains statutory standing to represent a class of other employees in companion PAGA claims. In a unanimous decision, the Court answered the question, “yes,” going against the U.S. Supreme Court’s conclusion on the same issue in Viking River Cruises v. Moriana. Heavily relying on its previous decision in Kim v. Reins International California, Inc., the Court reaffirmed that plaintiffs have standing so long as they are “aggrieved employees.” An aggrieved employee is broadly defined as (1) “someone who was employed by the alleged violator” and (2) “against whom one or more of the alleged violations was committed.” The Court in Adolph ruled that arbitrating individual claims does not strip PAGA plaintiffs of “aggrieved employee” status.

As a practical matter, this means that PAGA representative plaintiffs can rely on the Adolph decision to argue that the underlying representative action should be stayed (and not dismissed) while they litigate their individual claims in arbitration. After their own individual claims have been resolved through arbitration, and assuming the arbitrator finds that the individual employee was a victim of at least one Labor Code violation, they can return to court to litigate claims on behalf of other employees under PAGA.

PAGA has been criticized for spawning frivolous lawsuits and burdening an already overly-taxed judicial system. A ballot initiative to repeal PAGA has now qualified for the 2024 California ballot. Supported by the California Chamber of Commerce and other California business groups, “The California Fair Pay and Employer Accountability Act” would replace PAGA and restore wage/hour law enforcement to the California Department of Labor Standards Enforcement (DLSE). While the future of PAGA is uncertain, one thing is clear – in the short term, the Adolph decision will undoubtedly lead to increased PAGA litigation in the California courts.

Notwithstanding the Adolph decision, mandatory arbitration agreements remain a valuable tool for California employers. If you have any questions about the decision and how it may impact your operations, please contact a member of Meyers Nave’s Labor and Employment team.

Recent Developments Since the Viking River Cruises Decision: 5 Key Things California Employers Need To Know

The legal landscape for California employers has shifted rapidly since the recent U.S. Supreme Court’s decision in Viking River Cruises v. Moriana.

Here are 5 recent developments California employers need to know:

  1. PAGA Waivers: The Viking River Cruises decision was seen as a victory for California employers seeking to enforce PAGA waivers through arbitration agreements. The Supreme Court held that the Federal Arbitration Act (FAA) [preempts] California law’s prohibition on dividing individual and non-individual PAGA claims [through a valid arbitration agreement].
  2. Compelled Arbitration: Once individual PAGA claims are compelled to arbitration, non-individual PAGA claims must be dismissed for lack of standing, according to the Court’s ruling. However, there is ongoing debate among California courts regarding the interpretation of PAGA standing.
  3. Trial Court Approach: Most California trial courts are currently staying non-individual PAGA claims to await the resolution of individual PAGA claims in arbitration and guidance from the California Supreme Court’s review of Adolph v. Uber Technologies. The arbitrator’s determination of whether the plaintiff is an “aggrieved employee” is crucial for [PAGA standing.]
  4. Appellate Court Decisions: Several California Court of Appeals decisions have disagreed with the Supreme Court’s standing interpretation in Viking River Cruises. These appellate courts rely on PAGA’s statutory language and previous California Supreme Court rulings, such as Kim v. Reins Int’l Cal., Inc., which allow plaintiffs to pursue PAGA claims even after settling non-PAGA claims.
  5. Adolph v. Uber Technologies: The California Supreme Court heard oral arguments in Adolph v. Uber Technologies on May 9, 2023, to address the issue of standing for non-individual PAGA claims after the plaintiff is compelled to arbitrate their individual claims. The Court’s decision, expected by August 7, 2023, will provide clarity on this matter.”

To further elaborate on these developments, please see the following:

What Happens to the “Non-individual” PAGA Claims Now that Viking River Cruises Compels Arbitration of the “Individual” PAGA Claim?

The U.S. Supreme Court’s 2022 decision in Viking River Cruises v. Moriana was widely seen as a victory for California employers seeking to enforce PAGA waivers contained in arbitration agreements.[1] Since that time, a number of California courts have weighed in on the impact of the Viking River Cruises decision in the context of PAGA claims. On May 9, 2023, the California Supreme Court heard oral arguments in Adolph v. Uber Technologies to determine whether a plaintiff lacks standing to pursue a non-individual PAGA action based on Labor Code violations against other employees after the plaintiff is compelled to arbitrate their individual claims.  We expect the Court to issue its opinion in Adolph v. Uber Technologies by August 7, 2023.

What Happened in Viking River Cruises?

Last summer, the U.S. Supreme Court held that the Federal Arbitration Act (“FAA”) preempts California law’s prohibition of the division of an individual PAGA claim from a non-individual PAGA claim through a valid arbitration agreement.[i]  The Court also held that once individual claims are compelled to arbitration, the non-individual PAGA claims must be dismissed for lack of standing.[ii]  However, Justice Sotomayor’s concurrence invited California courts and Legislature to decide whether their interpretation of PAGA standing is correct.[iii]  Shortly after, the California Supreme Court granted review of Adolph.[iv]

What are California Trial Courts Doing in The Meantime?

California courts have followed the U.S. Supreme Court’s holding that individual PAGA claims can be compelled to arbitration.  Most state trial courts are staying the non-individual PAGA claims (1) to await the adjudication of the individual PAGA claims in arbitration and/or (2) to wait guidance from the California Supreme Court’s review of Adolph.

Some of these courts explain that a stay is appropriate because the arbitration will determine whether the plaintiff is an “aggrieved employee.” [v]  These courts underscore that under the statute, an “aggrieved employee” is (1) “any person who was employed by the alleged violator” and (2) “against whom one or more of the alleged violations was committed.”[vi]  Therefore, if an arbitrator decides that a plaintiff cannot prove the alleged Labor Code violations, the plaintiff is not “aggrieved” and does not have standing to move forward with the non-individual claims.[vii]

In February 2023, the Second District applied this reasoning in Rocha v. U-Haul.[viii]  However, Rocha is at odds with Gavriiloglou v. Prime Healthcare Management, Inc., holding that a plaintiff who loses on their individual claims in arbitration nevertheless sustains representative PAGA standing because “a party bound by issue preclusion must have been a party to the previous action in the same capacity.”[ix]  The Rocha court disagreed, stressing that issue preclusion does not require “identical capacity.”[x]  Therefore, where employers win arbitration of the individual PAGA claims, non-individual PAGA claims may be dismissed, but such outcome is not guaranteed at this time, given the budding split among the state appellate courts.

Other trial courts have stayed the non-individual PAGA claims pending the Adolph decision.[xi]  In some cases, trial courts have issued stays citing both the impending Adolph decision and awaiting the conclusion of arbitration.[xii]

Have the California Court of Appeals Weighed In?

Six California Court of Appeals have disagreed with Viking River on the standing issue.[xiii]  Five of these decisions bind state trial courts: Galarsa v. Dolgen Cal., LLC, Piplack v. In-N-Out Burgers, Gregg v. Uber Techs., Inc., Seifu v. Lyft Inc., Nickson v. Shemran, Inc.  The most recent decision, Quintero v. Dolgen Cal., LLC, concluded the same in an unpublished opinion.[xiv]  The appellate courts anchored their standing analysis on PAGA’s statutory language of “aggrieved employee.”  Central to their analysis is also the California Supreme Court’s holding in Kim v. Reins Int’l Cal., Inc., which holds that a plaintiff has standing to pursue PAGA claims even if the plaintiff settles the underlying non-PAGA claims.[xv]

After Viking River Cruises, the Galarsa court declined to follow the U.S. Supreme Court’s interpretation of standing, stating that “PAGA standing does not evaporate when an employer chooses to enforce an arbitration agreement.”[xvi]  The Galarsa court predicted that the California Supreme Court will reach the same conclusion.[xvii]  Likewise, the Fourth District’s decision in Piplack reiterated the statutory language and explained that it “could not reconcile” Viking River Cruises with Kim.[xviii]  Similarly, in Gregg, the Second District ordered the plaintiff to arbitrate the individual PAGA claims and stayed the non-individual claims pending arbitration.[xix]  Later, in Seifu, the Second District concluded “that a plaintiff is not stripped of standing to pursue non-individual PAGA claims simply because his or her individual PAGA claim is compelled to arbitration.”[xx]  The Fourth District reached the same conclusion in Nickson, but left “management of the superior court litigation during the pendency of arbitration to the trial court’s sound discretion.”[xxi]

What Did the Parties Argue in Adolph v. Uber?

Uber urged the Justices that the non-individual claims must be dismissed because the “Legislature linked the individual to the representative right to proceeding on behalf of himself and others.”  Concluding otherwise would foster “a ton of litigation.”  Uber cautioned that finding for Adolph “would put PAGA on a collision course with the Federal Arbitration Act, and it would wreak havoc on PAGA’s statutory framework.”  However, Justice Liu responded by saying, “I don’t see what the FAA problem is, that argues in favor of nonstanding here.”  Citing Robinson v. Southern Counties Oil Co., Uber explained that if Adolph’s individual claim is adjudicated in arbitration, “it will be resolved” and “after that occurs, Mr. Adolph will have received all the relief he could possibly hope to gain.”  Uber stressed that Adolph would not have “skin in the game” to pursue the non-individual claims after being compelled to arbitration.  The “no skin in the game” argument appears to be Uber’s strongest point and the court asked Adolph’s counsel to address this reading of the statute.

Adolph argued that a PAGA claim is a single claim proceeding in two forums—arbitration and court.  Adolph pointed out that neither Viking River Cruises nor the FAA uses the language of “severance” and that the California Courts of Appeal, and Justice Lui agree that a PAGA action is a single claim.  Adolph argued that a determination of an aggrieved status “is the skin in the game.”  Relying on Kim, Adolph argued that until there is a determination on whether a plaintiff is an “aggrieved employee,” the statute does not prevent a plaintiff from pursuing non-individual claims in court.  However, Adolph agreed that if, in arbitration, the plaintiff “is found not to be an aggrieved employee, that’s the end of the case.”

The Justices also invited discussion regarding whether staying non-individual PAGA claims should be required pending arbitration.  Adolph argued that a stay is not always required, but agreed that a trial court would have to accept an arbitrator’s adjudication regarding whether a plaintiff is “aggrieved.”  The Justices seemed unconvinced and a critical comment came from Justice Groban, who responded, “Your reasoning is leading us pretty hard toward a stay.”

While the court pushed back against the arguments of both parties, employers faces tough hurdles in Kim, and the recently published Courts of Appeal decisions.  Nevertheless, moving forward, arguments crafted by plaintiffs against staying non-individual claims are likely weak because arbitration would determine whether a plaintiff is “aggrieved” under PAGA.

We will stay tuned for the high court’s decision this summer and keep you posted.

 

[1] 142 S.Ct. 1906 (2022). For additional background, see the June 15, 2022 Meyers Nave Alert on Viking River Cruises here: https://www.meyersnave.com/supreme-court-tells-plaintiffs-to-port-individual-paga-claims-into-arbitration/

[i] Viking River Cruises, Inc. v. Moriana, 142 S. Ct. 1906, 1924 (2022).

[ii] Id. at 1925.

[iii] Id. at 1925-6.

[iv] Adolph v. Uber Techs., Inc., No. G059860, 2022 WL 1073583 (Cal. Ct. App. Apr. 11, 2022), review granted (July 20, 2022).

[v] Arboleda v. Guardian Pharm. of S. Cal. LLC, No. 37-2021-00008791-CU-OE-CTL, 2022 LEXIS 54023, at *8 (Cal.Super., San Diego County Aug. 5, 2022); Lepe v. Bristol Farms, No. 21STCV05909 (Cal.Super., Los Angeles County Sept. 9, 2022); Adams v. Pacific Villa, Inc., No. 20STCV37260 (Cal.Super., Los Angeles County July 27, 2022); Gozzi v. Acadia Malibu, No. 19STCV39861, 2022 LEXIS 69347, at *8 (Cal.Super., Los Angeles County July 13, 2022).

[vi] Cal. Lab. Code, § 2698 et seq.

[vii] Hailey v. Specialty Rests. Corp., No. 30-2022-01255938, LEXIS 59899, at *9 (Cal.Super., Orange County Sept. 30, 2022).

[viii] Rocha v. U-Haul Co. of California, 88 Cal. App. 5th 65, 77-78 (2023).

[ix] Gavriiloglou v. Prime Healthcare Mgmt., Inc., 83 Cal. App. 5th 595, 606 (2022), as modified on denial of reh’g (Sept. 20, 2022), review denied (Jan. 11, 2023).

[x] Rocha, 88 Cal. App. 5th at 80-81.

[xi] Lopez v. P.R. Perneky Mgmt. Corp., No. 22AHCV00578, 2023 LEXIS 15712, at *12-14 (Cal.Super., Los Angeles County Feb. 2, 2023); Bobbitt v. Aurora Vista Del Mar LLC, No. 56202200563179CUOEVT, 2022 WL 17970744, at *1 (Cal.Super. Ventura County Dec. 15, 2022); Mendoza v. Streamline Finishes, No. 30-2021-01207462-CU-OE-CXC, 2022 LEXIS 82839, at *7 (Cal.Super., Orange County Dec. 1, 2022); Lynch v. Snp Pharm., No. 22PSCV00139, 2022 LEXIS 85667, at *17 (Cal.Super., Nov. 22 2022); Castro v. Clay Lacy Aviation, Inc., No. 21VECV00304, 2022 LEXIS 78750, at *10 (Cal.Super., Los Angeles County Nov. 17, 2022); Salazar v. Epiphany Care Homes Inc., No. 56202200562790CUOEVT, 2022 WL 4232874, at *1 (Cal.Super., Ventura County Aug. 25, 2022); Flores v. Amwest, Inc., No. 21STCV16066, 2022 LEXIS 56779, at *5 (Cal.Super., Los Angeles County Oct. 4, 2022).

[xii] Garcia v. St Paul’s Episcopal Home, No. 2022-22641, 2023 LEXIS 6021, at *8 (Cal.Super., San Diego County Jan. 27, 2023); Kunsman v. Patriot Environmental Servs., No. 34-2021-310042, 2022 LEXIS 69628, at *9 (Cal.Super., Sacramento County Oct. 25, 2022); Harden v. Staffing Solutions, Inc., No. HG21103640, 2022 WL 4348674, at *4-5 (Cal.Super., Alameda County Sep. 14, 2022); Jacobs v. Best Buy Stores, L.P., No. RG19001196, 2022 WL 4348676, at *4–5 (Cal.Super., Alameda County Sep. 14, 2022); Applegate v. Seed Beauty LLC, No. 56202100555658CUOEVT, 2022 WL 4595046, at *6 (Cal.Super. Ventura County Sep. 13, 2022); Mendoza v. Laguna Cookie Co., No. 19-1107762, 2022 LEXIS 55903, at *9-10 (Cal.Super., Orange County Aug. 12, 2022).

[xiii] Galarsa v. Dolgen California, LLC, 88 Cal. App. 5th 639 (2023), as modified on denial of reh’g (Feb. 24, 2023); Piplack v. In-N-Out Burgers, 88 Cal. App. 5th 1281 (2023), review filed (Apr. 17, 2023); Gregg v. Uber Techs., Inc., 89 Cal. App. 5th 786 (2023), review filed (Apr. 28, 2023); Seifu v. Lyft, Inc., 89 Cal. App. 5th 1129 (2023), review filed (May 9, 2023); Nickson v. Shemran, Inc., 90 Cal. App. 5th 121 (2023); Quintero v. Dolgen California, LLC, No. F083769, 2023 WL 1878201 (Cal. Ct. App. Feb. 10, 2023), as modified (Mar. 7, 2023), review granted (Apr. 26, 2023).

[xiv] Quintero v. Dolgen California, LLC, No. F083769, 2023 WL 1878201 (Cal. Ct. App. Feb. 10, 2023), as modified (Mar. 7, 2023), review granted (Apr. 26, 2023).

[xv] Kim v. Reins Int’l California, Inc., 9 Cal. 5th 73, 80 (2020).

[xvi] Id. at 643, 653

[xvii] Id. at 654 (“We predict that the California Supreme Court will conclude that California law does not prohibit an aggrieved employee from pursuing Type O claims in court once the Type O claims are separated from the Type A claims ordered to arbitration.”).

[xviii] Piplack, 88 Cal. App. 5th at 1285.

[xix] Gregg, 89 Cal. App. 5th at 792.

[xx] Seifu, 89 Cal. App. 5th at 1134.

[xxi] Nickson, 90 Cal. App. 5th at 121.

Northern California Super Lawyers and Northern California Rising Stars Name Seven Meyers Nave Attorneys to 2023 List

Seven Meyers Nave attorneys were recently selected for inclusion in the 2023 Northern California Super Lawyers list and the 2023 Northern California Rising Stars list. Only up to five percent of the lawyers in California are named to the Super Lawyers list and up to 2.5 percent are named to the Rising Stars list.

We congratulate these attorneys for this important recognition of their legal expertise and professional accomplishments in both their geographic region and their areas of specialty!

The Meyers Nave lawyers ranked include:
Shaye Diveley – Environmental
Eric Firstman – Construction Litigation
Amrit Kulkarni – Environmental Litigation
David Mehretu – Civil Litigation

Rising Stars
Anthony Amara – State, Local and Municipal
Kiana Amiri-Davani – Environmental
Janine Braxton – Employment and Labor

Meyers Nave Announces New Diversity, Equity and Inclusion Committee Co-Chairs

Meyers Nave is pleased to announce that Principal, David Mehretu and Senior Associate, Neha Shah have been appointed to serve as co-chairs of the firm’s Diversity, Equity and Inclusion Committee. Fellow members of the Diversity Steering Committee also include Camille Hamilton Pating, Principal/Chair of the Labor and Employment Group, and Barbara Domingo, Director of Administration.

David Mehretu is an experienced trial attorney who represents private and public entities in high impact litigation in federal and state court, administrative proceedings, and appeals with an emphasis on complex, high-profile, and politically significant matters often covered by the media. David is a member of the Trial & Litigation, and Labor & Employment Law Practice Groups. David is a member of the Ethiopian American Foundation, which supports higher education and related development activities in Ethiopia, Asante Africa Foundation, a global team committed to providing programs that support education, gender equality, and entrepreneurship in East Africa, and the Charles Houston Bar Association, an affiliate of the National Bar Association representing the interests of African American lawyers, judges and law students throughout Northern California.

Neha Shah is a senior associate handling a broad range of public and private labor and employment matters with an emphasis on traditional labor relations, advice and counsel, and workplace investigations. She is a member of the Labor & Employment Law and Workplace Investigations Practice Groups. Neha is active in giving back to the community and served as the first director for Ms. JD’s Global Education Fund. Under her tenure, the Global Education Fund was able to increase its impact by offering additional full-ride scholarships to women law students at Makerere University in Uganda. Most recently she served on the Board of Directors for the South Asian Bar Association of Southern California’s Public Interest Foundation and the leadership committee for the International Rescue Committee, Los Angeles GenR Chapter. Currently, she is a committee member for the South Asian Bar Association of North America’s National Racial Justice Task Force.

Los Angeles Business Journal Names Deborah Fox to 2023 List of Women of Influence: Attorneys

The Los Angeles Business Journal named Deborah Fox, the Chair of Meyers Nave’s statewide First Amendment and Trial & Litigation Practice Groups, to its 2023 list of “Women of Influence: Attorneys”. The feature profiles women who “have been recognized for exceptional legal skill and achievement across the full spectrum of responsibility, exemplary leadership as evidenced by the highest professional and ethical standards, and for contributions to the Los Angeles community at large.”

The LABJ noted that Deborah “is one of California’s leading experts on First Amendment issues. She has expertise with cases involving the convergence of First Amendment, land use, and zoning laws. She is highly sought-after for high-impact litigation and crisis management and her constitutional work typically involves complex cases with overarching social justice components.” Deborah’s recent work with statewide ramifications was highlighted along with her role on Meyers Nave’s Executive Committee.

Learn more about Deborah and her practice.

View the LABJ’s 2023 Women of Influence: Attorneys.

Meyers Nave Secures Victory for City of Oakland as Court of Appeal Upholds EIR for A’s Baseball Stadium Project

In a lengthy published decision, the Court of Appeal upheld the City of Oakland’s environmental impact report (EIR) for the proposed Oakland A’s MLB stadium and mixed use project, rejecting numerous challenges and affirming the trial court’s decision in full. Meyers Nave represented the City of Oakland in the litigation and advised during the development of the EIR in the administrative process.

Subject to expedited judicial review under a special statute for the project (AB 734), the Court of Appeal decision was issued less than a year after the EIR challenge was filed in the trial court. The decision provides detailed guidance on many important issues under the California Environmental Quality Act (CEQA), including:

  • Deferred Mitigation: The Court of Appeal soundly rejected numerous claims that mitigation for the Project’s greenhouse gas impacts (GHG), hazardous materials and other impacts was improperly deferred.
  • Exhaustion: The Court of Appeal discussed the level of detail required to exhaust administrative remedies before the agency, rejecting claims related to the Project’s rail safety and other impacts.
  • Speculation: The decision affirmed the EIR’s approach regarding the speculative nature of impacts associated with displaced tenants from the Project site.

The Court of Appeal also addressed substantive issues related to GHG impacts, analysis and mitigation of at-grade rail crossings, hazardous materials and cumulative impacts analysis. Overall, the decision is a resounding affirmation that the City’s EIR complied with CEQA requirements.

The Meyers Nave team included Shaye Diveley and Tim Cremin. Learn more about our Land Use and Environmental Law expertise.

Meyers Nave Attorneys Recognized in 2023 San Diego Super Lawyers and Rising Stars Lists

Three Meyers Nave attorneys were recently selected for inclusion in the 2023 San Diego Super Lawyers list.

The Meyers Nave lawyers ranked include:

  • Janice P. Brown – Employment Litigation, Employment & Labor, Business Litigation
  • Suzanne K. Roten – Employment Litigation, Employment & Labor
  • Arlene R. Yang – Employment & Labor, Employment Litigation, General Litigation

The Super Lawyers list is a rating service that recognizes outstanding lawyers across more than 70 practice areas who have attained a high level of peer recognition and professional accomplishment. The selection process includes independent research, peer nominations, and peer evaluations. Only up to 5% of lawyers in California are named to the Super Lawyers list, and up to 2.5% are named to the Rising Stars list.

This recognition reflects Meyers Nave’s commitment to providing exceptional legal services and underscores the team’s dedication to excellence in their respective areas of specialization.

5 Things Water Utilities Should Know About the EPA’s Recent Proposal Establishing Legal Limits for Certain PFAS Substances in Drinking Water

On March 14, 2023, the U.S. Environmental Protection Agency (EPA) announced the proposed National Primary Drinking Water Regulation (NPDWR) to establish legally enforceable Maximum Contaminant Levels (MCLs) for six PFAS substances (the “Proposed Regulation”). The EPA will hold a webinar about the PFAS NDPWR for water utilities on March 29 to provide information regarding the Proposed Regulation, as reflected on the U.S. EPA webpage here.

Here are five key things you should know about the Proposed Regulation, and how it may impact water utilities going forward:

  1. The EPA has proposed a regulation to establish MCLs for six PFAS substances in drinking water.
  2. The proposed MCL for PFOA and PFOS is 4 parts per trillion, and the proposed regulation uses a hazard index calculation to limit any mixture containing one or more of PFNA, PFHxS, PFBS, and/or GenX Chemicals.
  3. The EPA plans to finalize the regulation by the end of 2023, and public water systems will be required to monitor for these chemicals, notify the public of PFAS levels, and reduce PFAS if levels exceed the proposed regulatory standards. Drinking water suppliers will be subject to MCL limitations, and if the proposed rule is adopted, water systems with PFAS levels that exceed the proposed MCLs would need to take action to provide safe and reliable drinking water.
  4. Comments on the new regulation must be submitted to the public docket during the 60-day public comment period following the proposed rules being published in the Federal Register.
  5. EPA is also proposing health-based, non-enforceable Maximum Contaminant Level Goals (MCLGs) for the six PFAS. These levels represent the maximum level of a contaminant in drinking water where there are no known or anticipated negative health effects. The proposed MCLG for PFOA and PFOS is any amount above zero.

Also, the new proposed rule signals other likely impacts to NPDES permits, waste discharge requirements, and site clean-ups in California because new MCL standards affect each of these programs.

Key Takeaways

Water utilities will want to attend the upcoming EPA webinar, submit comments during the comment period, and begin to evaluate potential obligations, such as identifying alternative uncontaminated sources of water or designing water treatment systems that EPA believes are feasible.

If you have any questions about the Proposed Regulation and how it may impact your operations, please contact a member of Meyers Nave’s Water Law team.

Meyers Nave Welcomes Senior Of Counsel Janine M. Braxton

Meyers Nave announces the addition of Janine M. Braxton as Senior Of Counsel in the firm’s Labor and Employment Practice. Janine will join the firm’s San Diego office later this year.

Janine advises and defends employers in all aspects of California labor and employment law and litigation, including wage and hour class and representative PAGA actions, discrimination, retaliation, harassment, wrongful termination, and other labor code violations. She routinely defends employers in actions filed with the U.S. Equal Employment Opportunity Commission (EEOC), the Civil Rights Department (CRD) (formerly known as the California Department of Fair Employment and Housing), and the California Division of Labor Standards Enforcement (DLSE). Additionally, Janine assists clients with developing, implementing, and auditing their employment policies and practices, and she provides effective recommendations to avoid risk and litigation. She also spent several years as a workplace investigator.

Managing Principal David Skinner states: “Janine brings a decade of experience in handling workplace investigations, class action litigation and other high impact issues on behalf of employers. We are thrilled to have her join our dynamic Labor & Employment Group.”

Active in the legal community, Janine serves on the Labor and Employment Executive Committee for the California Lawyers Association (CLA), currently sitting on the Mentorship, Law Review, Wage and Hour and Marketing subcommittees. From 2020-2022, she served as a California Young Lawyers Association liaison to the CLA Labor and Employment Executive Committee. Janine is a member of National Labor and Employment Relations Association (LERA) and served as the interim president and current secretary for the Northern California LERA Chapter. She is a member of the Sacramento County Bar Association, recently completing terms as treasurer (2020-2021) and as an executive committee member (2019-2020) for the Labor and Employment Section.

“Janine’s arrival will expand Meyers Nave’s ability to deliver exceptional results in employment litigation and help us meet growing, continuing demand for Labor and Employment services. Janine is a leader and mentor who brings her commitment to excellence to everything she does,” said Camille Hamilton Pating, Chair of Meyer Nave’s Labor & Employment Practice.

Janine has been recognized as a “Rising Star” in the “Employment & Labor” category by Northern California Super Lawyers. She has published several articles in the California Lawyers Association’s Labor and Employment Law Review and in the National LERA Perspectives on Work magazine. She regularly presents on a variety of labor and employment law related topics. Janine received her J.D. from Lincoln Law School of Sacramento and her B.A. from the University of California, Davis.

About Meyers Nave

Founded in 1986, Meyers Nave is celebrating more than three decades of prominent clients, dedicated employees and precedent-setting work. Meyers Nave is a full-service California law firm providing transaction, litigation, regulatory compliance and general counsel legal services in more than 20 areas of law to corporations, public entities, non-profits and public-private partnerships. Learn more about Meyers Nave.