Category: Client Alerts

The recent Ninth Circuit holding in Where Do We Go Berkeley et. al v. California Department of Transportation (CALTRANS) (9^th Circuit No. 21-16790, April 27, 2022), provides insight into how courts may adjudicate claims brought under the Americans with Disabilities Act (ADA) against public entities attempting to clear homeless encampments. In the case, the Ninth Circuit vacated an injunction delaying the eviction of homeless persons following Caltrans attempt to clear its property. In particular, the Ninth Circuit ruled that the district court erred in its merits analysis in finding that a serious question existed as to whether Caltrans violated the ADA merely because it found the Plaintiffs’ claim to be plausible. In addition, the district court erred when balancing the equities by inappropriately mitigating the harm to Caltrans on the basis of availability of a separate Caltrans property for relocation.

In Where Do We Go Berkeley et al. v. CALTRANS (U.S. District Court, N.D. Cal., Sept. 27, 2021), the Plaintiffs argued that Caltrans violated the ADA through evictions associated with clearing outdoor encampments situated along an exit ramp for Interstate 80.  The district court granted an injunction, which was overturned upon Ninth Circuit review, that required Caltrans to give Plaintiffs six months to relocate and find housing before clearing the encampments.  The district court’s injunction was based on its finding that the ADA required the program to give “reasonable accommodation” to disabled homeless persons, who need more time before being evicted.

In reviewing the district court’s six-month injunction, the Ninth Circuit examined the Caltrans “programs” subject to the ADA and whether the district court’s remedy was a “reasonable modification” of those programs or a more major change that “fundamentally alters” their nature. The Ninth Circuit found that Caltrans’s programs include clearing the encampments. Caltrans, under its authority to “do any act necessary, convenient or proper for the . . . maintenance or use of all highways,” clears its properties of homeless encampments according to its assessment of the risks posed by each encampment. Here, Caltrans categorized the encampment as a level 1 camp that posed a critical safety concern requiring urgent relocation. As a general rule, Caltrans provides 72 hours’ notice to vacate level 1 encampments, but notice is not required. Therefore, the Ninth Circuit found a six-month delay to be a fundamental alteration of Caltrans’s programs.

In addition, Plaintiffs had not established serious questions on the merits as to whether they were entitled to relief as disabled persons subject to discrimination. The district court was required to analyze the merits despite finding a lack of precedent regarding Title II applicability and should not have entered an injunction on a merely plausible claim. Moreover, the district court’s holding contradicted precedent found by the Ninth Circuit that had established that Title II’s second clause regarding discrimination is meant to prohibit intentional discrimination in an entity’s programs, rendering plaintiffs’ claim implausible.

In evaluating the balance of equities, consideration of reopening a separate, previously cleared Caltrans property called Seabreeze for the campers’ use was found improper. The Ninth Circuit ruled that the district court cannot require Caltrans to allow the campers to live on another Caltrans property because such an order goes beyond preserving the status quo. According to the Ninth Circuit, the reopening of Seabreeze should not have been considered a mitigating factor.

This case is the latest in an ongoing series between governmental agencies attempting to clear public spaces of homeless encampments and homeless advocates seeking to protect the rights of homeless persons. It is clear that the opinion was influenced by Caltrans need to protect public safety, including that of the homeless persons. Caltrans’s tiered program focuses on clearing areas where it is most dangerous to allow homeless encampments to remain, while taking a more hands-off approach to less dangerous Caltrans properties. Nevertheless, the Ninth Circuit’s ruling in Where Do We Go Berkeley suggests that homeless advocates may have a more difficult time making a case for ADA protection for homeless persons in cases involving the clearing of homeless encampments.

Part of an elected official’s job entails speaking out on hot button issues including responding to statements from other elected officials.  While the courts have made clear that their doors are not open to settling political disagreements amongst elected officials, the Ninth Circuit has recently identified action taken in response to the disfavored speech of an elected official that may form the basis for a First Amendment retaliation claim.  The case is Boquist v. Courtney, No. 20-35080 (9th Cir. April 21, 2022).

Brian Bouqist was an Oregon minority party state senator who filed a First Amendment retaliation claim against majority party state senators for allegedly retaliating against him for engaging in protected speech.  Specifically, Boquist, along with other minority party senators, walked out of the senate to prevent a quorum and in response, majority party members threatened to send the state police to arrest them and return them to the capital.  Boquist then made statements on the senate floor, and to reporters, saying that he would resist any attempt to arrest him, including saying to the senate president that if state police were sent “Hell’s coming to visit you personally” and saying that state police would need to “Send bachelors and come heavily armed.  I’m not going to be a political prisoner in the state of Oregon.”  In response to these statements, senate majority members ordered Boquist not to enter the state capital without giving them 12 hours advance notice so that the Oregon state police could increase their presence at the state capital.  Boquist claimed that this response constituted retaliation for his First Amendment protected speech.

The Ninth Circuit found that the district court erred in dismissing  Boquist’s First Amendment retaliation claim at the initial pleading stage.  Rather, the Court concluded that Boquist had adequately alleged that he engaged in constitutionally protected speech and was subject to a materially adverse retaliatory action on account of that speech.  First, the Court explained that there was no doubt that Boquist’s complaint raised a plausible inference that he was engaging in protected speech to express his views over a political dispute.  The Ninth Circuit went on to find that the contention that Boquist’s statements were unprotected “fighting words” that could be perceived as a true threat were issues of fact that could not be decided at the pleading stage.  Next, the Ninth Circuit found that the 12-hour notice rule was a materially adverse action.  The Ninth Circuit distinguished this from censure actions or actions stripping an elected official of their titular roles which do not rise to the level of a materially adverse action.  Specifically, the Ninth Circuit distinguished the Boquist case from its prior decision in Blair v. Bethel School Dist., 608 F.3d 540, 544 (9th Cir. 2010) and the Supreme Court’s recent ruling in Houston Cmty. Coll. Sys. v. Wilson 2022 WL 867307 (March 24, 2022).

In Blair, the Ninth Circuit found that action taken in the political arena to remove an elected official colleague from an internal leadership position did not as a matter of law state a claim for First Amendment retaliation.  Specifically, stripping a school board member of his titular vice president role because of his criticism of the superintendent was part of the political process and removal from the titular role was not a materially adverse action.  The Ninth Circuit explained that “more is fair in electoral politics than in other contexts” and that while the plaintiff board member had the First Amendment right to his critical speech, the other board members had the corresponding First Amendment right to vote him out of a leadership position.  Likewise, in Wilson, the Supreme Court explained that a public censure of a fellow board member because of his disfavored speech did not form the basis for a First Amendment retaliation claim as elected bodies have long exercised the power to censure their members and a purely verbal censure does not offend the First Amendment.  By contrast, in Boquist, the Ninth Circuit found that the 12-hour rule was a materially adverse action.  Unlike censure, the Court explained that the 12-hour rule was not a well-established historical practice considered consistent with the First Amendment.  The Ninth Circuit also explained that the defendants’ arguments that the 12-hour rule was a reasonable response to Boquist’s perceived threats (and thus that they had a non-retaliatory motive for their actions) was a factual issue that could not be decided on the pleadings.

The framework provided in the Ninth Circuit’s Boquist ruling, in conjunction with its prior ruling in Blair and the Supreme Court’s recent ruling in Wilson, should be considered by elected officials and their advisors when considering taking action in response to an elected official colleague’s disfavored speech.

Fish and Game Commission Expected to Take Action on Recommendation in June

The California Department of Fish and Wildlife (CDFW) delivered its long-awaited Status Review and Recommendation on the western Joshua tree to California Fish and Game Commission on April 21, 2022, recommending against listing the species as threatened under the California Endangered Species Act (CESA).  The 150-page, peer-reviewed report states that “the scientific evidence that is currently possessed by the Department does not demonstrate that populations of the species are negatively trending in a way that would lead the Department to believe that the species is likely to be in serious danger of becoming extinct throughout all or a significant portion of its range in the foreseeable future.”  The Commission is expected to consider and take final action on the recommendation at its June 15-16, 2022, meeting.

In October 2019, the Center for Biological Diversity submitted a petition to the California Fish and Game Commission (CFGC) requesting that Western Joshua Tree be listed as a threatened species under CESA.  In September 2020, the Commission found sufficient information exists to indicate that listing may be warranted, and the western Joshua tree was designated as a candidate species while CDFW conducted its review of the status of the species as required by Fish and Game Code section 2074.6.  As a candidate species, the western Joshua tree has been given the same protections as if the species was formally listed as threatened or endangered since October 2020.

In the Status Review, the CDFW recommends that the Commission find that the recommended action to list WJT as a threatened species is not warranted.  Key findings included the following:

• The abundant and widespread nature of the western Joshua tree lowers threat of extinction.
• Uncertainty exists with respect to what the predicted effects of climate change will be on individual western Joshua trees, and its populations, distribution, abundance, and range.
• It is unlikely that the special protection and management efforts required by CESA would ameliorate the direct and indirect effects of climate change on the western Joshua tree.
• The current scientific evidence does not demonstrate that populations of the species are negatively trending in a way that would lead the CDFW to believe that the species is likely to be in serious danger of becoming extinct throughout all or a significant portion of its range in the foreseeable future.

The Commission formally accepted the Status Review and recommendation from CDFW on April 21, 2022.  The Status Review must be made available to the public for a 30-day public comment period prior to the Commission taking any action on the Petition.  The Commission is expected to make its final determination on the listing at the June 15-16, 2022, meeting.  Interested parties have the opportunity to submit written comments regarding the listing of the western Joshua tree in advance of the meeting and/or make public comments at the Commission meeting.

For more information about the western Joshua tree listing process or CESA, please contact Shaye Diveley at sdiveley@meyersnave.com

As we have seen in just the past few weeks of the new year, laws are rapidly changing for employers. Following our Employment Law Update webinars provided to Private Sector and Non-Profit Employers, and Public Entity Employers, our Labor & Employment Team has provided an extensive 2022 Employment Law Update detailing new and evolving laws for all types of employers.

The 2022 Employment Law Update covers:

• COVID-19 Health and Safety
• Release of Peace Officer Records
• Arbitration Agreements
• Equity in the Workplace
• Compensation and Wage & Hour
• Leaves, Benefits, and Accommodations

If you have any questions, please contact our attorneys.

Click here to download the 2022 Employment Law Update.

On January 13, 2022, the Supreme Court of the United States (“SCOTUS”) issued its decision staying the enforcement of OSHA’s rule requiring either vaccination or masking and testing for workplaces with over 100 employees (see the decision here).  The Court found that the Petitioners, a combination of Republican Governors, businesses and religious institutions, were likely to succeed on the merits of their claim that OSHA lacked the authority to impose these workplace requirements. The Court reasoned that the statutory framework governing OSHA allowed it to set workplace safety standards but did not permit it to regulate the public health more globally which it found falls outside OSHA’s sphere of expertise. The Court compared COVID-19 risks to the universal risks from crime or pollution which the Court said were general risks rather than workplace risks.

As expected based on oral argument, Justices Breyer, Sotomayor and Kagan penned a vigorous dissent.  They noted that COVID-19 is a menace in workspaces where there is person-to-person contact and that OSHA has the authority to address that threat.  The six justices in the majority, all agreed that OSHA’s vaccinate or mask and test requirement exceeded its authority and found that the requirement was an indiscriminate approach that failed to take into account the crucial distinction between occupational risks and risks more generally.  The case will now proceed before the Sixth Circuit for review on the merits with OSHA’s regulation being stayed by SCOTUS pending that disposition.  The Court’s ruling staying OSHA’s vaccine requirement does not invalidate vaccine requirements put in place by private employers, municipalities or states.  Instead, the ruling is based on the limited grounds that OSHA exceeded its statutory authority and this does not impact the validity of private, local or state imposed vaccine mandates.

The Court did note that OSHA could impose COVID-19 specific workplace requirements where the risks posed by the virus may be increased, giving the example of a workplace where researchers work with the virus. In line with this reasoning, in another ruling issued on January 13th, the Court found by a 5-4 vote that a federal rule from the Department of Health and Human Services requiring the vaccination of healthcare employees at facilities receiving Medicaid and Medicare funds was likely valid. Thus, this federal vaccine mandate remains in effect (see the decision here). The Court explained that this targeted vaccine mandate fit neatly within the statutory language granting authority to the Secretary of Health and Human Services as addressing infections at these facilities is what he does.

On November 5, 2021, OSHA issued an Emergency Temporary Standard (“ETS”) requiring vaccinations for companies with over 100 employees or in the alternative requiring masking and testing. The ETS was immediately challenged in circuit courts across the nation by a mix of Republican Governors, businesses and religious institutions and then consolidated in the Sixth Circuit after a multi-district lottery. On December 15, 2021, the Sixth Circuit dissolved a stay of the ETS. See In re MCP No. 165, Occupational Safety & Health Admin., Interim Final Rule: COVID-19 Vaccination & Testing, No. 21-7000, et al. 2021 WL 5914024 (6th Cir. Dec. 15, 2021). The Petitioners immediately sought an emergency stay of the Sixth Circuit’s decision to the United States Supreme Court.

SCOTUS heard oral argument earlier today in this case and its ruling on the issue is expected to be issued before Monday, January 10, 2022, the date OSHA has set to begin enforcement of the masking requirement (followed by a February 9 start date to enforce the testing requirement). We provide this initial e-alert for those interested in the reasoning of the Sixth Circuit along with an overview of the oral argument held before SCOTUS while awaiting the final ruling.

Sixth Circuit December 15, 2021 Ruling Lifting Stay of OSHA COVID-19 ETS
The Sixth Circuit found that OSHA’s ETS aimed at reducing harm from the COVID-19 virus falls squarely within the scope of OSHA’s authority. The use of these tools in the current ETS was not a novel expansion of OSHA’s power, rather, it was the use of existing authority applied to a novel and dangerous worldwide pandemic. The Sixth Circuit also explained that OSHA is permitted to issue an ETS if it determines that employees are exposed to grave danger and where the standard is necessary to protect employees from such a danger.

The Sixth Circuit went on to find that OSHA was likely to prevail on the issue of grave danger and on the issue of necessity. As to grave danger, the Sixth Circuit explained that this is a policy consideration that belongs in the first instance to OSHA and that it was not appropriate to second-guess the Agency’s determination, in light of the many peer-reviewed scientific studies, on which OSHA had relied. The Sixth Circuit noted that the 153-page preamble to the ETS laid out in great detail OSHA’s findings and that it was difficult to imagine what more OSHA could do or rely on to justify its findings that workers face a grave danger in the workplace. As to the necessity prong, the Court found that OSHA had compiled substantial evidence that the ETS is essential to reducing the danger posed by the pandemic and that the protections afforded by the ETS outweigh the economic consequences.

SCOTUS January 7, 2022 Oral Argument
A robust two-hour-plus oral argument was held today before SCOTUS regarding OSHA’s Covid-19 vaccination and masking/testing ETS. Justices Kagan, Breyer, and Sotomayor expressed their support for finding that any higher standard that may be required for the issuance of an ETS (as opposed to the normal rulemaking with a notice and comment period) is met here given the threat posed by the Covid-19 virus during this pandemic. Justice Breyer asked whether the Petitioners were really still asking for an immediate stay in the face of the 10-fold increase in Covid-19 cases and the current overwhelming of hospitals as the Omicron variant surges in our country. Chief Justice Roberts’ questioning indicated some support for the ETS but he also focused on whether the ETS could have, or should have, been done targeted to specific industries, and whether OSHA’s ETS was part of a larger plan to institute what amounts to a federal vaccination requirement.

Justices Thomas and Barrett questioned what defines “necessary” for an ETS and whether “necessary” is broader in the face of an emergency. Justices Alito, Gorsuch, and Kavanaugh questioned whether the ETS goes further than permissible imposing a vaccine that impacts workers beyond just their time at work or in exercising a power that goes beyond what OSHA has previously exercised. The extensive questioning by the Justices illustrates the full engagement of the Court on this issue that will impact millions of Americans.

The most likely options are for SCOTUS to: affirm the 6th Circuit’s ruling allowing the ETS to take effect; impose a stay on the ETS effective date; or impose a temporary administrative stay to allow more time for examination of the weighty legal issues. It is not clear how the votes will line up in this case but a ruling from the Court is expected by Monday, January 10, 2022.

California juries seem to regularly award gigantic verdicts to employees. On December 16, 2021, a jury awarded a former employee $155.4 million, including $150 million in punitive damages, in Rudnicki v. Farmers Insurance Exchange. This verdict comes on the heels of the $137 million verdict to a former contract employee in Diaz v. Tesla, Inc. in October 2021.

While these enormous awards are likely to be reduced on appeal, they are another reminder that arbitration agreements can be valuable tools for private employers. They can reduce the cost of litigation, help to resolve disputes more quickly, and keep employment disputes out of the hands of unpredictable juries. Class action waivers in arbitration agreements also help to reduce baseless wage and hour claims. Arbitration agreements help to even the playing field for employers.

As previously reported, AB51 (Labor Code section 432.6), enacted in October 2019, prohibits employers from requiring job applicants or current employees to enter into arbitration agreements as a condition of their employment. More than two years later, the fate of the law is still tied up in the courts. While the law has been stayed since December 2019, in September 2021, a Ninth Circuit Court of Appeals panel ruled, among other things, that the Federal Arbitration Act (“FAA”) did not preempt the AB 51’s prohibition on using mandatory arbitration agreements as a condition of employment. This ruling has been stayed while the Ninth Circuit decides whether to have a rehearing before the full panel of the Ninth Circuit.

In addition, there may be beneficial changes on the horizon regarding whether arbitration agreements can require arbitration of claims under the California Private Attorneys General Act (“PAGA”). Currently, arbitration agreements can include class-action waivers, but cannot prevent employees from bringing PAGA representative actions in court. On December 15, 2021, the United States Supreme Court agreed to consider hear Viking River Cruises, Inc. v. Moriana (No. 20-1573), and determine whether under the FAA, arbitration agreements may prevent employees from raising representative claims, including under PAGA.

Takeaway for Employers:  Employers should consider having arbitration agreements. If arbitration agreements are already being used, they should be regularly reviewed to ensure compliance with the latest legal developments.

Please contact a Meyers Nave attorney for help to navigate these issues.

Join Meyers Nave for our Employment Law Update on January 11 and 13, 2022 to discuss this and other key employment law updates.

On December 16, 2021, the California Occupational Safety and Health Standards Board voted to re-adopt the Cal/OSHA Emergency Temporary Standards (“ETS”) on COVID-19 infection prevention, which takes effect on January 14, 2022. The revised ETS includes notable changes, including changes to masking and testing requirements for fully vaccinated individuals, exceptions for excluding close contacts, return to work criteria, and definitions for certain terms, as further described below. Cal/OSHA has released a summary and plans to publish updated FAQs once the revised ETS is effective.

Key ETS Changes

1. COVID-19 Testing Following Exposure.

• Existing Rule: An employer must make COVID-19 testing available at no cost, during paid time, to all employees who had a close contact and provide them with information on benefits, unless the employee was fully vaccinated, or in other limited circumstances.
• New Rule: An employer must make COVID-19 testing available to all employees who had a close contact, regardless of vaccination status, with limited exceptions. (Section 3205(c)(3)(B)(5).)

2. Exceptions to Excluding Close Contacts Requires Face Covering and Physical Distancing.

• Existing Rule: Employers must exclude persons who had a close contact with a COVID-19 case unless (1) the individual was fully vaccinated before the close contact and is asymptomatic, and (2) the individual recovered from COVID-19 in the past 90 days and has remained symptom free.
• New Rule: The same exclusion rules apply, but for the excepted employees to return, they must wear a face covering and maintain 6 feet of distance from others for 14 days. The employer also must provide information about applicable COVID-19 precautions. (Section 3205(c)(9).)

3. Return to Work Criteria Provides a 14, 10 and 7-day Timeline.

• Existing Rule: A person who had a close contact is permitted to return to work after 10 days if they never developed symptoms.
• New Rule: A person who had a close contact but never developed symptoms may return to work after 14 days, except when:
  (1) 10 days have passed and the person wears a face covering and maintains six feet of distance from others while at the workplace for 14 days following the close contact, or
  (2) 7 days have passed, the person tested negative for COVID-19 at least 5 days after the close contact, and the person wears a face covering and maintains six feet of distance from others while at the workplace for 14 days following the close contact. (Section 3205(c)(10)(D)(1).)

4. Critical Staffing Shortages.

• Existing Rule: Employers are provided an exception from the return to work requirements during critical staff shortages for health care workers, emergency response workers, and social service workers, when there are not enough staff to provide safe patient care, which may be implemented after 7 days if they test negative at least 5 days after exposure. (Section 3205(c)(10)(D)(3).)
• New Rule: The amended ETS removes this exception for critical staff shortages, and, instead, provides a 7-day return to work timeline for all exposures.

5. Outbreak Testing.

• Existing Rule: When a COVID-19 outbreak occurs, an employer is not required to make testing available to fully vaccinated employees before the outbreak period and who do not have COVID-19 symptoms.
• New Rule: This exception was removed. (Section 3205.1(b).)

6. Amended Definitions.

• “COVID-19 test”: The amended rule provides that a COVID-19 test may not be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.
• Amended definitions for “Face coverings,” “Fully vaccinated,” and “Worksite”.

December 13 CDPH Mask Guidance
The California Department of Public Health (“CDPH”) issued new Guidance for the Use of Face Coverings (“Guidance”) on December 13, 2021, which enacted a temporary mask mandate for all indoor public settings, irrespective of vaccine status. The mandate applies to all workplaces, with limited exceptions. This Guidance is in effect from December 15, 2021, through January 15, 2022. The CDPH recently provided clarification that if a local health jurisdiction had pre-existing masking requirements, irrespective of vaccine status, in indoor public settings, prior to December 13, 2021, then the local health jurisdiction is not required to comply with the Guidance, and the local mask requirement continues to apply. Ultimately, all employers must follow the current CDPH Guidance and the ETS’s face covering requirements.

Please contact a Meyers Nave attorney for help to navigate these issues.

Join Meyers Nave for our Employment Law Update on January 11 and 13, 2022 to discuss this and other key employment law updates.

The saga continues regarding the federal vaccine mandates. On November 4, 2021, the federal Occupational Health and Safety Administration (“OSHA”) issued an Emergency Temporary Standard (“ETS”) to require employers with 100 or more employees to have their employees vaccinated or undergo weekly testing by January 10, 2022, among other requirements.

The Fifth Circuit Court of Appeals almost immediately stayed the rule until judicial review is completed. On Friday, December 17, 2021, the Sixth Circuit Court of Appeals in Cincinnati lifted the temporary injunction. We expect further developments soon, as petitions have already been filed in the U.S. Supreme Court to challenge the temporary stay.

In light of the ongoing legal battles, on Saturday, December 18, 2021, the U.S. Department of Labor announced that it will not enforce the ETS against employers until February 9, 2022, as long as the employers exercise “reasonable, good faith efforts to come into compliance with the standard.” This will give employers more time to establish policies and gather records to comply with the new standard.

Please contact a Meyers Nave attorney if you need help navigating these issues.

Join Meyers Nave for our Employment Law Update on January 11 and 13, 2022 to discuss this and other key employment law updates.

On Monday, December 13, the California Department of Public Health issued guidance temporarily requiring masks to be worn in all indoor public settings, irrespective of vaccine status from December 15, 2021, to January 15, 2022. The Department of Public Health is concerned about the increased number of hospitalizations and cases in California, as well as the spread of the omicron variant.

Some counties, such as Los Angeles and several Bay Area counties, already had indoor mask requirements.

The new guidance is located here.

Please contact a Meyers Nave attorney if you need help navigating these issues.