AB 361 Allows Local Agency Legislative Bodies to Continue to Meet Virtually After September 30

A series of executive orders, the most recent of which was set to expire on September 30, 2021, waived all physical-presence requirements under the Brown Act as a means of limiting the spread of COVID-19. Last week Governor Newsom signed into law AB 361, extending the authority of public agencies to conduct meetings by teleconference, including video conference, during the COVID-19 pandemic.

In light of the on-going pandemic, AB 361 gives the option to continue meeting virtually. Virtual meetings are permitted presently because the Governor has proclaimed a state of emergency and the state and many local officials recommend measures to promote social distancing. If those conditions change, the local agency can still meet virtually and has determined that physical presence at meetings would present imminent risks to the health and safety of attendees.

Beginning 30 days after the first meeting, the legislative body must reconsider the continuing need for virtual meetings every 30 days. The legislative body must find each time that it has reconsidered the circumstances of the state of emergency, and the state of emergency continues to directly impact the ability of the members to meet safely in person or state and local officials continue to impose or recommend measures to promote social distancing. If a majority of the members of a legislative body do not adopt these findings, then traditional Brown Act rules for teleconferencing apply.

Once a legislative body votes to implement AB 361, these requirements apply:

  1. Notices and agenda requirements remain the same under the Brown Act;
  2. No physical location is required for public attendance or public comment. However, the public must be able to access and participate in the meeting through a call-in or an internet-based service, and instructions for how to participate must appear in the posted notices or agenda;
  3. Teleconference meetings must protect the statutory and constitutional rights of the parties and the public;
  4. If there is any disruption of the call-in or internet-based service the agency must suspend the meeting until the problem is fixed;
  5. Legislative bodies may allow public comments to be submitted prior to a meeting, but must also allow the public to participate in real time through call-in or internet-based service;
  6. If an internet-based service requires registration through a third-party, individuals can be required to register with the third-party to participate in the meeting;
  7. When providing a public comment period, whether after each item or during a general comment period, a legislative body must allow reasonable time for members of the public to comment, and must also include reasonable time for members to register with a third-party host, if applicable.

AB 361 is an urgency measure that went into effect immediately. It will expire on January 1, 2024. Members of local agencies are encouraged to contact their counsel with any questions about AB 361 or Brown Act rules going forward.

Meyers Nave Secures Key Victory In California Supreme Court Confirming Application of Automatic Stay Pending Appeal to Mandatory Injunctions

In a unanimous decision, the California Supreme Court confirmed that the automatic stay pending appeal applies to a superior court judgment that orders mandatory injunctive relief. The trial court judgment ordered the San Bernardino County Board of Supervisors to vacate the Third District seat and then immediately fill the vacant seat with a new appointee selected by Governor Newsom, based on an alleged Brown Act violation in the process the Board had originally employed to fill the vacant seat. The challengers had argued that the judgment was prohibitory in nature, and therefore excepted from CCP § 916’s automatic stay. Agreeing with the Board, the Supreme Court instead held that the judgment ordered mandatory injunctive relief because it altered the status quo of the parties at the time the judgment was entered, and the judgment was therefore subject to the automatic stay.

Gomez Daly v. San Bernardino County Board of Supervisors, S260209, came to the California Supreme Court in a unique procedural posture. Petitioners Michael Gomez Daly and Inland Empire United (“Petitioners”) filed a petition for writ of mandate in the San Bernardino County Superior Court alleging that the Board had violated the open meeting requirements of the Brown Act when it filled a vacancy on the Board in appointing a supervisor to the Third District seat. Over the Board’s strenuous objection, the superior court found that the appointment violated the Brown Act, and was therefore “null and void” under the Brown Act’s provisions allowing a court to nullify action taken in violation of the Act. The superior court then entered judgment requiring the Board to vacate the seat and to allow the Governor to make a new appointment. The Board immediately appealed the decision, alleging several errors committed by the superior court. In connection with the appeal, because Petitioners were attempting to immediately enforce the judgment notwithstanding the appeal, the Board sought writ of supersedeas in the Court of Appeal on the basis that CCP § 916’s automatic stay applied to the judgment pending appeal. The Court of Appeal denied the petition for writ of supersedeas, the Board petitioned to the Supreme Court for review, and the Court granted review.

The Supreme Court laid out the familiar rule: mandatory injunctions are ones that alter the status quo and are therefore subject to the automatic stay; prohibitory injunctions, on the other hand, seek to preserve the status quo and are not subject to the automatic stay. While many cases identify the status quo as the point in time before the injunction is ordered, Petitioners urged the Court to use another definition—the last peaceable, uncontested status preceding the controversy. The Supreme Court harmonized these two competing definitions by explaining that the latter could be used where an injunctive order seeks to prevent injury from future conduct rather than remedy a past wrong. The Court next turned to the facts of the case, and explained that the judgment here was a mandatory injunction. Although the relief stemmed from a finding that the Board’s action was “null and void,” the relief was nonetheless properly characterized as a mandatory injunction because it required a mandatory act that would change the relative position of the parties by removing the Supervisor from office. Now that the Supreme Court has confirmed the automatic stay applies, the case is back to the Court of Appeal to address the merits of the Board’s appeal.

With this decision, the Supreme Court affirmed that California law sets the “default rule” to be that mandatory orders are stayed pending appeal. The decision has far-reaching consequences, providing added clarity and guidance for all appeals from injunctive relief judgments. The decision should also provide comfort to public entities by ensuring that injunctive relief will generally be stayed pending appeal, reducing the potential for erroneous judgments to interrupt or impede stable governance.

Another Benefit of Arbitration Agreements

In most circumstances, private employers benefit when they have arbitration agreements with their employees, because arbitration can resolve disputes more quickly with less expense, and the agreements may even ward off frivolous lawsuits. A recent ruling in favor of a Meyers Nave client demonstrated yet another significant benefit.

On August 6, 2021, a San Diego Superior Court Judge granted the employer’s motion to compel the arbitration of the plaintiff’s individual wage and hour claim and stayed that plaintiff’s California Private Attorneys General Act (“PAGA”) claim until after arbitration of the individual claim. The Court rejected the plaintiff’s argument that the outcome of his individual claim will have no bearing on his PAGA claim, ruling, “Although the PAGA and individual claims are conceptually independent, they both arise out of the same nucleus of facts – i.e., defendant’s alleged violations of California labor law and whether any of those violations were committed against plaintiff.”

This decision, simplifying the case for now to just one employee’s claims, rather than potentially hundreds of employees, reduces plaintiff’s leverage. Meyers Nave continues to encourage private and non-profit employers to consider the benefits of arbitration and ensure that agreements are enforceable, by regularly updating them as the law changes.

For more information, contact Meyers Nave attorneys.

Is Your Organization’s Website ADA Compliant? Top 4 Things You Need to Know

The number of lawsuits alleging websites are not accessible as required by the Americans with Disability Act (“ADA”) has been growing rapidly in California. Businesses and public entities should proactively update their websites to ensure that they are accessible to individuals with disabilities who are visually impaired, blind, or hard of hearing.

1) What Does It Mean for a Website to Be “Accessible”?

To access and navigate websites, individuals who are blind or hard of hearing may use assistive technology such as screen readers, text enlargement software, and text-to-speech programs. Hard of hearing employees may need closed captioning to understand videos on websites. Although there is no mandated standard for websites, the most commonly used are the Web Content Accessibility Guidelines (“WCAG”) created by the World Wide Web Consortium.

While the ADA was enacted in 1990, before the internet was in common use, courts have found that the ADA requires that many websites must be accessible to individuals with disabilities. Title II of the ADA prohibits state and local government entities from discriminating against qualified individuals with disabilities or excluding them from services, programs, and activities. Title III of the ADA requires businesses and nonprofits considered public accommodations to provide equal opportunities to access the goods or services they offer.

2) The Number of Lawsuits Alleging Websites Are in Violation of the ADA is Growing.

After the ADA was enacted, most complaints alleged barriers to access at physical stores and restaurants. In recent years, a growing percentage of ADA claims concern access to websites. Certain individuals with disabilities and plaintiffs’ attorneys specialize in filing a high volume of claims, typically alleging violation of the ADA and the state counterpart, the California Unruh Civil Rights Act. The New York Times recently profiled one of these plaintiffs.

Despite the high volume of these cases, because most ADA website accessibility cases settle, the contours of what is required is slowly developing. In June 2021, for example, in the case of Domino’s Pizza v. Robles, Case No. CV 16-6599 JGB (Ex), 2021 WL 2945562 (C.D. Cal. June 23, 2021), a federal district court judge ruled among other things, that providing a telephone line for the plaintiff to place an order was insufficient, where the plaintiff was put on hold for over 45 minutes when he tried to call.

3) With the Increase in Virtual Meetings and Online Services, Public Entities Should Ensure Access for Individuals with Disabilities.

Due to the COVID-19 pandemic, over the last 18 months, many public entities made a dramatic shift to virtual meetings and providing online services. A number of public entities have subsequently received complaints regarding the lack of closed captioning for live and prerecorded public meetings and websites are not accessible to individuals who are blind, vision impaired, or hard of hearing. The U.S. Department of Justice has also issued some technical assistance documents regarding accessibility.

4) Take Action Before a Claim Is Made

Rather than waiting for a claim, organizations should proactively update their websites, and ensure access to their facilities and services. Some suggestions include:

  • Have an independent ADA consultant or ADA qualified user test your website for accessibility.
  • Update or modify your website as necessary, including displaying the entity’s accessibility practice.
  • Conduct routine website accessibility testing, especially after website updates.
  • Evaluate whether other online platforms, such as mobile applications are accessible.

Please contact us to minimize any future litigation risks associated with website accessibility issues and ADA violations.

California PERB Decision on UC Vaccination Mandate

In further proof that employers’ efforts to mandate vaccines has gained momentum, on July 26, 2021, the California Public Employment Relations Board (“PERB”) issued a decision that held that the University of California’s (“UC”) 2020 flu vaccine mandate was either (1) not amenable to bargaining or (2) outweighed the benefit of bargaining. PERB held that the UC’s mandating of vaccines is a managerial right due to the need to protect public health related to both COVID-19 and the flu. PERB has prioritized the need to protect the public’s health over collective bargaining rights. At the same time, PERB faulted the UC for failing to meet and confer with the unions over the foreseeable effects of the vaccine mandate.

For more information, contact Meyers Nave attorneys.

COVID-19 Vaccine Mandates

On July 26, 2021, the U.S. Department of Justice released a memorandum that bolsters employers’ efforts to mandate vaccines for its employees to maintain a safe work environment. The memorandum, which does not override state law, makes clear that the COVID-19 vaccines’ FDA emergency use authorization status does not preclude employers, both public and private, from mandating vaccines as part of their return to office policies.

For more information, contact Meyers Nave attorneys.

Immediate Update Required for Calculation of Premiums for Missed Meal and Rest Breaks

Ferra v. Loews Hollywood Hotel, LLC
On July 15, 2021, the California Supreme Court issued a decision in Ferra v. Loews Hollywood Hotel, LLC that further discourages employers from allowing their employees to miss meal, rest, and recovery breaks and potentially opens employers up to significant retroactive liability. Under California law, private employers are obligated to provide their employees certain meal, rest, and recovery breaks. If employees are not provided their required breaks, then their employers are obligated to pay those employees “one additional hour of pay at the employee’s regular rate of compensation.” Before the California Supreme Court’s recent rulings, employers typically used an employee’s base rate of pay when compensating employees for missed breaks as opposed to their “regular rate of pay” (which is higher as it typically includes additional incentive payments like bonuses and commissions and is used to calculate an employee’s overtime rate).

In Ferra v. Loews Hollywood Hotel, LLC, a bar employee argued that her employer should have paid her for her missed rest periods at her regular rate of pay as opposed to her base rate of pay. The Court disagreed with the trial and appeals court and unanimously held that employers must compensate their employees for missed meal, rest, or recovery periods by providing an additional hour of pay at employees’ regular rate of pay, not their base rate of pay. The Court also noted that this ruling applies retroactively. Public entity employers are not required to pay this premium for missed meal periods, rest, and recovery breaks and thus this holding is not applicable to them.

Takeaways for Employers
Going forward private and non-profit employers should immediately update their pay calculations for employees who miss meal periods, rest, and recovery breaks to be sure that they are being compensated at the correct rate. Please contact our firm if you would like to discuss the potential impact of this ruling on your business and for advice on how to minimize your possible risk and exposure.

Ninth Circuit Upholds COVID-19 Closure and Capacity Limits on Summer Waterpark

Slidewaters LLC v. Washington State Dept. of Labor and Industries, et al.

On July 8, 2021, the Ninth Circuit Court of Appeals upheld the dismissal of a waterpark’s action against the State of Washington for allegedly violating its constitutional rights when the State first closed waterparks and later imposed capacity restrictions in an effort to combat the COVID-19 pandemic.  The Ninth Circuit decision held that challenges involving economic rights and companion COVID-19 restrictions will generally be reviewed under the deferential rational basis standard of review.

In response to the COVID-19 pandemic, the State of Washington imposed restrictions on a number of industries, which included a complete closing of waterparks during the summer of 2020 and 50% capacity limit for the summer of 2021.  Slidewaters challenged these restrictions, asserting a substantive due process violation on the basis that the restrictions impinged on its “right to pursue a common calling and right to use its property as well as its employees’ right to work and its owners’ right to pursue their business and use their property as they see fit.”

The Ninth Circuit affirmed the dismissal of Slidewaters’ claim.  The court explained that the rights to pursue a common calling and to use property as one wishes are economic in nature, not fundamental rights—such as the First Amendment right to free exercise of religion at issue in Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S.Ct 63 (2020)—and therefore trigger only rational basis review.  Under that deferential standard, the Court that the State is entitled to great leeway in fashioning regulations to protect the public health, and even greater leeway during an emergency.  Thus, creating categories of activity that were based on how “essential” they are is a permissible way for the State to regulate activity, and the State is not required to do an individual assessment of every individual business or property.

Slidewaters is the latest decision affording governments great latitude in regulating economic activity to protect against the threat of COVID-19.  In distinguishing between economic and religious rights at issue where the Supreme Court has applied strict scrutiny, the Ninth Circuit has made clear that secular businesses seeking to challenge state and local COVID-19 restrictions will face a steep uphill climb.

Legislature Extends, Expands CEQA Streamlining for Major Projects

The Legislature recent passed, and the Governor signed into law, the Jobs and Economic Improvement Through Environmental Leadership Act of 2021 (“2021 Leadership Act”), which would extend the ability for certain qualifying projects to obtain streamlined judicial review for certain projects and would expand the types of projects that qualify.

Previously under the former 2011 Leadership Act, in order for projects to qualify for streamlining provisions, projects had to be of a certain specified type, be located on an infill site, result in $100 million or more in investment in California, meet LEEDs Gold standards, and pay prevailing wage to construction workers, among other requirements.  If a project met the qualifications, it could obtain streamlined judicial review of any challenges to the project.  These streamlining provisions included a requirement that the lead agency prepare the administrative record concurrently with the administrative process, certify the administrative record within 5 days of approval of the project, and that disputes regarding the administrative record be resolved through motions to augment filed concurrently with initial briefs in the trial court.  In addition, the 2011 Leadership Act required, to the extent feasible, that lawsuits filed challenging qualifying projects be resolved within 270 days of the certification of the administrative record, including any appeals.  The 2011 Leadership Act expired by its own terms on January 1, 2021.

The 2021 Leadership Act would reenact the 2011 Leadership Act, with certain changes, and would authorize the Governor, until January 1, 2024, to certify projects that meet the specified requirements to obtain the same streamlining benefits.  New in the 2021 Leadership Act is the inclusion of infill housing developments, which include a minimum 15% of the units dedicated to affordable housing, and which result in investment in California of between $15 million and $100 million.  Except for these housing development projects, the 2021 Leadership Act requires the quantification and mitigation of the impacts of a project from the emissions of greenhouse gases as provided in the statute.  In addition, the 2021 Leadership Act would allow the Governor to certify the project prior to the certification of the final EIR by the lead agency, and would allow the Governor to certify a project alternative to a project as described in the EIR.

Like the 2011 Leadership Act before it, the 2021 Leadership Act will likely apply only to a small range of projects.  The inclusion of more moderately-sized residential projects may, however, increase the number of qualifying projects.  In any event, with the passage of the 2021 Leadership Act, qualifying projects will continue to benefit from streamlined judicial review for another three years.

Update on California’s COVID-19 Emergency Temporary Standards, and OSHA

In a surprising move, last night, June 9, 2021, in a special meeting, the California Occupational Safety and Health Standards Board withdrew the revisions to Cal/OSHA’s COVID-19 Prevention Emergency Temporary Standards that it had just approved on June 3. The Standards Board may consider new revisions as soon as its next regular meeting on June 17.

The Standards Board is under pressure to align workplace requirements to the California Department of Public Health’s (“CDPH”) new guidance that as of June 15, face coverings will not be required for fully vaccinated Californians in most public settings. The CDPH guidance, however, provides that face coverings will still be required for everyone in settings such as public transit, K-12 schools, childcare settings, other youth settings, healthcare settings, correctional facilities, homeless shelters, and cooling centers.

Despite the new CDPH guidance, employers must continue to follow the Emergency Temporary Standards, which were first approved in November 2020. As a result, for now, even after June 15, face coverings will still be required for all workers when indoors.

In addition, today, June 10, the federal Department of Labor’s Occupational Safety and Health Administration (“OSHA”) issued an emergency rule that sets workplace safety parameters for employers in the health care sector for the duration of the COVID-19 pandemic. It also updated its guidance for mitigating and preventing the spread of COVID-19 for all industries. Information about both developments is located here.

This past week’s events make clear that employers need to continue to stay alert and flexible when it comes to managing COVID-19 issues in the workplace.