Client Alerts

2012

Labor and Employment

• CalPERS Seeks to Prevent City of San Bernardino From Using Bankruptcy to Avoid Meeting Pension Payment ObligationsDecember 21, 2012The California Public Employees’ Retirement System (CalPERS) is seeking to sue the bankrupt City of San Bernardino to require the City to meet its pension obligations.   The City entered Chapter 9 bankruptcy proceedings in August 2012, in part due to an unfunded pension liability of upwards of $140 million.  In In re San Bernardino, Case No. 12-28006 (U.S. Bankruptcy Court, Cent. ... read more
• Whistleblowers Beware: Violations of a Charter City’s Municipal Law Are Not Violations of State Law For Purposes of Labor Code Section 1102.5(c)December 17, 2012The California Labor Code protects whistleblowers by prohibiting employers from retaliating against an employee "for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation."  Cal. Labor Code § 1102.5(c). In Edgerly v. City of Oakland (Alameda Super. Ct. No. ... read more
• “Strenuous Duties” May Be Essential Functions Even For Administrative Sworn-Officer PositionsDecember 13, 2012Kenneth Lui v. City and County of San Francisco,2012 Cal. App. LEXIS 1248 (December 11, 2012) Police departments across the state should take note: a California appellate court has held that "strenuous duties" are essential functions of administrative sworn-officer positions in the San Francisco Police Department. In Lui v. City and County of San ... read more
• California Court Rejects Honest-Belief Defense To CFRA “Interference” ClaimNovember 28, 2012Richey v. AutoNation, Inc., 2012 Cal.App. LEXIS 1177 (November 13, 2012) Earlier this month, a California appellate court rejected an employer's honest-belief defense to a California Family Rights Act ("CFRA") claim, holding that an employer seeking to terminate an employee for abusing medical leave must prove that the employee actually abused the leave.  In ... read more
• Supreme Court Considering Definition of “Supervisor” in Workplace HarassmentNovember 27, 2012Yesterday, the United States Supreme Court heard oral arguments in Vance v. Ball State University, a workplace harassment case on appeal from the Seventh Circuit Court of Appeals in which the Court is being asked to decide the proper definition of “supervisor” under Title VII.  The definition is extremely important for employers, because the employer is usually automatically liable ... read more
• MOU Language Precludes City from Unilaterally Changing Retiree Health BenefitNovember 26, 2012International Brotherhood v. City of Redding,2012 Cal. App. LEXIS 1149 (November 2, 2012) Since 1979, MOU’s between the City of Redding (City) and International Brotherhood of Electrical Workers (IBEW) contained the following (or substantially similar) language:“The City will pay fifty percent (50%) of the group medical insurance program premium for each retiree and dependents, if ... read more
• Governor Brown Signs Workplace Religion Freedom Act of 2012, Expanding Protections for Religious Freedom Under California’s Fair Employment and Housing ActOctober 17, 2012Last month, Governor Brown signed Assembly Bill 1964, also known as the Workplace Religious Freedom Act ("WRFA").  The WRFA expands the California Fair Employment and Housing Act's ("FEHA's") prohibition of employment discrimination based on religious creed. Expands Protections to Include "Religious Dress and Grooming Standards" The WRFA expands FEHA's definition of ... read more
• Governor Brown Signs AB 2386, Which Clarifying that FEHA’s Definition of “Sex” Includes “Breastfeeding and Conditions Relating to Breastfeeding”October 15, 2012Governor Brown recently signed Assembly Bill 2386, which clarifies that the California Fair Employment and Housing Act (“FEHA”) definition of “sex” includes “breastfeeding and conditions related to breastfeeding.”  The current definition of sex includes gender, pregnancy, childbirth, and conditions related to pregnancy or childbirth.  Although the amendment is effective January 1, ... read more
• New California Privacy Law Restricts Access to Employees’ Social Media AccountsOctober 10, 2012On September 27, 2012 Governor Jerry Brown signed Assembly Bill 1844 (“AB 1844”).  Starting January 1, 2013, employers will be prohibited from asking or requiring a job applicant or employee to disclose usernames and passwords to their personal social media accounts such as Facebook or Twitter.  Employers will also be prohibited from requiring an applicant or employee to log in to their ... read more
• Second Circuit Rules Undocumented Hours Count Toward FMLA EligibilityAugust 21, 2012Donnelly v. Greenburgh Central School District, No. 7 (Second Circuit, August 10, 2012) In Donnelly, the Second Circuit found undocumented “hours worked” could count toward the 1,250 hours required for FMLA eligibility.  Plaintiff teacher (Donnelly) sued defendant School District, claiming he was not granted tenure in retaliation for taking leave pursuant to the Family ... read more
• District Court Grants Summary Judgment Again for Orange County in its Retiree Medical LitigationAugust 15, 2012REAOC vs. County of Orange, SACV-01-1301 AG On Tuesday, August 14, 2012, the United States District Court granted summary judgment on behalf of the County in longstanding litigation stemming from Orange County’s decision to “de-pool” retiree and active health care rates. Summary judgment was earlier granted to the County on June 19, 2009.  The Ninth Circuit Court of Appeals ... read more
• EEOC Issues Guidance Regarding The Consideration Of Criminal Records In Employment DecisionsMay 11, 2012INTRODUCTION On April 25, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued an Enforcement Guidance on employer use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964 (Title VII).  The Enforcement Guidance clarifies and updates the EEOC’s longstanding policy that a categorical exclusion from employment ... read more
• U.S. Supreme Court Extends Qualified Immunity To Outside Attorneys Temporarily Retained By Public Entities To Conduct Workplace InvestigationsApril 26, 2012On April 17, 2012, a unanimous U.S. Supreme Court in Filarsky v. Delia held that an outside attorney temporarily retained by a public entity to conduct an internal workplace investigation is entitled to qualified immunity from a §1983 lawsuit.  The case involved an internal affairs investigation of City of Rialto firefighter Nicholas Delia by an outside attorney hired by the City of ... read more
• States No Longer Liable for Violations of Self-Care Provision of FMLAApril 10, 2012Coleman v. Court of Appeals of Maryland, et al, Slip Opinion (March 20, 2012) The Family Medical Leave Act (FMLA) permits employees to take twelve weeks of unpaid administrative leave for: (a) the care of a newborn; (b) the adoption of a child; (c) the care of a family member with a serious medical condition; or (d) the employee's own serious health condition. Sections ... read more
• U.S. District Court Holds That An Eight Percent Wage Reduction Impairing Existing MOUs Did Not Violate The U.S. Constitution’s Contract ClauseApril 9, 2012On March 29, 2012, the Federal District Court of the Virgin Islands rejected a Contract-Clause challenge to the Virgin Islands Economic Stability Act (“VIESA”), which provided that all executive and legislative branch employees making more than $26,000 would receive an eight percent (8%) wage reduction.  United Steel, Paper & Forestry, Rubber, Manufacturing, Allied Industrial and ... read more
• California Court of Appeal Holds that an Employee May Be Disciplined for Fabricating Sexual Harassment AllegationsFebruary 9, 2012Richard Joaquin v. City of Los Angeles(2012) 202 Cal.App.4th 1207 In Joaquin v. City of Los Angeles, the California Court of Appeal recently held that an employer may lawfully terminate an employee based on a good faith belief that the employee has filed a false sexual harassment complaint. The Underlying ... read more

Municipal and Special District Law

• Relief for Public Entities Who Prevail in Disability Access LawsuitsDecember 18, 2012On Monday, December 17, 2012 the California Supreme Court issued an order in a disability access case that will greatly assist public entities in defending against the all too common  lawsuits brought under Civil Code Section 55.  In Jankey v. Lee, the Court confirmed that a prevailing Defendant who successfully defeats a claim of disability access violations brought under Civil Code ... read more
• Government Claim Cannot Simply Be Handed to a Public Entity EmployeeDecember 7, 2012Yesterday the California Supreme Court issued an opinion on whether or not the delivery of a government claim presented to a public entity for consideration satisfied the requirements of the Government Claims Act—granting a victory to public entities. The Court issued its opinion, Dicampli-Mintz v. County of Santa Clara (December 6, 2012, S194501) in response to an argument that the ... read more
• City Adoption of Voter Initiative Qualifying For Ballot Is Subject to CEQANovember 2, 2012It is well settled that projects placed on the ballot by voter initiative are exempt from the requirements of the California Environmental Quality Act (“CEQA”).  In Tuolumne Jobs and Small Business Alliance v. Superior Court (“TJSBA”),the Fifth District Court of Appeal held that CEQA’s ballot initiative exemption does not apply when lead agencies directly adopt a ... read more
• Public Agency’s Non-Pecuniary Interest In Litigation To Enforce Public Rights May Not Be Used To Deny Award Of Attorney’s FeesJuly 24, 2012Under the “private attorney general” statute (Code of Civil Procedure section 1021.5), courts may award attorney’s fees to a party that prevails in litigation which benefits the general public by enforcing an important public right.  A court may award attorney’s fees under section 1021.5 if it determines that the financial cost of such litigation outweighs the purely “personal” stake ... read more
• Cities’ Closure of Medical Marijuana Dispensaries Is Not Discrimination Under Americans with Disabilities ActMay 25, 2012The Ninth Circuit Court of Appeals recently issued an opinion declaring that the federal Americans with Disabilities Act ("ADA") does not protect medical marijuana users claiming discrimination based on their use of marijuana. In James v. City of Costa Mesa, the Court held that doctor-recommended marijuana use, authorized by state law, but prohibited by federal law, is an illegal use of ... read more
• FPPC Votes to Allow Public Officials to Vote on Self-Appointment to BoardsMarch 16, 2012Yesterday, the Fair Political Practices Commission (“FPPC”) voted 3-2 to adopt an amendment to Regulation 18705.5. The regulation allows local public officials to vote on their own appointments to compensated positions on various types of boards, including, for example, boards of county sanitation districts, joint powers authorities and local area planning organizations. The FPPC’s ... read more
• California Supreme Court: School districts may be vicariously liable for the negligent hiring, supervision and retention of employee who harms studentMarch 14, 2012C.A., a Minor v. William S. Hart Union High School District S188982 On March 8, 2012, a unanimous California Supreme Court ruled that under Government Code Section 815.2, a school district may be held vicariously liable for the negligent hiring, retention, and supervision of an employee who harms a student, even if the employee’s conduct is deemed ... read more
• New Court Decision Limits Authority of Cities to Ban Medical Marijuana DispensariesMarch 14, 2012A recent California appellate court has issued a potentially significant opinion, declaring that local governments may not completely ban medical marijuana dispensaries, with the limitation that the Legislature authorized medical marijuana dispensaries only at sites where medical marijuana is "collectively or cooperatively...cultivate[d]." (See City of Lake Forest v. Evergreen Holistic ... read more
• New Laws Regarding Charter City Elections, Public Agency Management Contracts and Obligations and Posting of Public Agency Meeting NoticesJanuary 6, 2012AB 1344, which became effective on January 1, 2012, changes the law regarding employment and compensation for public agency managers.  It also requires public agencies to post meeting agendas on their websites and imposes new restrictions on changes to city charters.    Here is a summary of significant changes: 1.  Charter City Election Restrictions Requires an ... read more

Land Use

• Court Upholds EIR’s Analysis of Public Safety and Traffic Impacts, But Finds Parkland Impacts Analysis InadequateJuly 5, 2012CEQA requires agencies to support their environmental conclusions with “substantial evidence.”  In City of Hayward v. Board of Trustees of the California State University, the First District Court of Appeal held that the University’s Master Plan EIR for the expansion of its East Bay campus largely complied with CEQA, except that the University failed to rely on substantial ... read more

Public Contracts

• Supreme Court Rules that Charter Cities may not have to pay Prevailing WagesJuly 3, 2012On Monday, July 2, 2012, the California Supreme Court clarified that Charter Cities may exempt themselves from paying prevailing wages on public works projects where the projects are funded with local dollars.  The long anticipated case, State Building and Constructions Trades Council of California, AFL-CIO v. City of Vista, held that the ordinances of charter cities supersede state law ... read more

Environmental Law

• Court Bars CEQA Challenge To Post-EIR Approvals “In Furtherance” Of Previously Approved ProjectJune 19, 2012CEQA requires that, before a public agency approves a project which may adversely affect the environment, the agency must conduct environmental review of the “whole” of the proposed project.  In Van De Kamps Coalition v. Board of Trustees of Los Angeles Community College District, the Second District Court of Appeal has clarified that the statute of limitations period to challenge ... read more
• Supreme Court Holds That Requirement To Exhaust Issues Applies To Challenges To Exemptions From CEQAJune 15, 2012In Tomlinson v. County of Alameda (June 14, 2012, S188161) __ Cal.4th __, the California Supreme Court affirmed that the “exhaustion doctrine” applies to an agency’s determination that a project is categorically exempt from environmental review under the California Environmental Quality Act (“CEQA”).  The exhaustion doctrine requires that project opponents raise the specific ... read more
• Rejecting Sunnyvale West, the Second District Court of Appeal Affirms Agency’s Discretion to Use a “Future Conditions Baseline” for CEQA Analysis of Traffic, Air Quality and Greenhouse Gas ImpactsApril 23, 2012Just over a year ago, the Sixth District Court of Appeal sparked controversy when it ruled, in Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351 (“Sunnyvale West”), that CEQA requires as a matter of law that environmental impacts of a proposed project to be analyzed in comparison to “baseline” environmental conditions as they ... read more

Trial and Litigation

• Ninth Circuit Clarifies Constitutionality of Permitting Regulations on Protected Speech in Public ForaJune 15, 2012In Kaahumanu v. State of Hawaii, the Ninth Circuit rejected plaintiff’s constitutional challenge and upheld a permit requirement for weddings on public beaches in Hawaii.  (Click here to read the opinion in Kaahumanu v. State of Hawaii, 2012 DJDAR 7472 (9th Cir. 2012).)  The Court found that ... read more
• Supreme Court Rules That Police Officers Are Justified In Entering A Home Without A Warrant When A Woman Flees Inside After Being Asked Whether She Owns A GunJanuary 23, 2012Plaintiffs brought an action against police officers under 42 U.S.C. §1983 alleging that the officers violated their Fourth Amendment rights by entering their home without a search warrant. The Supreme Court reversed the Ninth Circuit Court's decision and held that the Fourth Amendment allows officers to enter a residence without a warrant when they have an objectively reasonable belief that an ... read more

Land Use and Environmental Law

• The Supreme Court Grants Review of the Controversial CEQA Decision Berkeley Hillside Preservation v. City of BerkeleyMay 23, 2012The Supreme Court has voted unanimously to grant review of the First District Court of Appeal's controversial decision in Berkeley Hillside Preservation v. City of Berkeley (2012) 203 Cal.App.4th 656. The case involved the application of an exception to the use of categorical exemptions under CEQA for projects that could result in significant environmental impacts due to "unusual ... read more

California Public Records Act

• Court of Appeal Holds that Personnel Investigation Report is Subject to DisclosureFebruary 2, 2012Marken v. Santa Monica-Malibu Unified School District On January 24, 2012, the Court of Appeal ruled that a report of a personnel investigation was subject to public disclosure. In Marken, the Court ruled that, under the California Public Records Act (CPRA), public interest in disclosure of a report of a personnel investigation finding a teacher had violated ... read more