Hired, Fired, and Legally Mired: An Employment Law Blog

Hired, Fired, and Legally Mired:
An Employment Law Blog

From Breast Milk to Salary History: San Francisco Reminds Us that Employment Law in California Varies County to County

By: Corey Day • September 19, 2017

San Francisco is known for mission burritos, the golden gate bridge, and some of the most progressive employment laws in the nation. That last point was proven twice over in recent months as Mayor Ed Lee signed two ordinances. The first sets forth requirements for employer-provided lactation locations at the work site. The second goes above and beyond the California Equal Pay Act in prohibiting employers from asking about and using employees’ salary history.

Lactation in the Workplace Ordinance

Employers in the City and County of San Francisco already had an obligation under California law to ensure that every employee seeking to pump breast milk at the workplace has a reasonable time and place to pump. Effective January 1, 2018, San Francisco will take that requirement a step further and will require employers to ensure the pumping location is: (1) safe, clean, and free of toxic or hazardous materials, (2) has a surface for placing a breast pump and personal items onto, (3) has seating, and (4) access to electricity. Further, employees must have access to a refrigerator and sink in “close proximity to the employee’s work area.” The ordinance does have an express exemption when the employer shows that the requirements would “impose an undue hardship by causing the employer significant expense or operational difficulty when considered in relation to the size, financial resources, nature, or structure of the employer’s business.” Specific hardship examples include: requiring the employer to build a room, undertake a construction project, remove seating from a restaurant, or remove retail floor space. The ordinance goes on to set record-keeping and notice requirements.

Parity in Pay Ordinance

While California already places greater restrictions on employers’ use of employees’ salary history than federal law, San Francisco again has made sure it is not outdone. Effective July 1, 2018, employers in San Francisco cannot consider an employee’s salary history in offering employment or determining what salary to offer an employee. An employer cannot take any action against an employee or applicant for refusing to disclose their salary. Employers cannot release an employee’s salary history without written authorization unless expressly required by law or a collective bargaining agreement. However, when an applicant voluntarily, and without prompting, discloses his or her salary history, employers may then consider that salary in determining the salary for that applicant or to verify that history with a previous employer. However, any such use of salary history is restricted under California Labor Code section 1197.5. Additionally, employers must provide notice of these provisions in all languages spoken by more than 5 percent of the workforce in San Francisco. (Currently: English, Spanish, Chinese, Filipino, Russian, and Vietnamese.)

Take Away

While San Francisco only accounts for about 2 percent of California’s population, these recent enactments combine to make a larger point: employers need to stay on top of not just federal and state employment laws, but county and city employment laws as well. If you have questions about whether your county and/or city places greater restrictions on your business, give our friendly  employment attorneys a call.

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Overtime Controversy Over, For the Time Being

By: Julio Colomba • September 12, 2017

Last week, a federal judge declared unlawful the Obama-era Department of Labor rule that attempted to broadly redefine the class of workers eligible for overtime pay across the United States.  The rule was controversial from its inception, but that controversy has, for now, come to a close.

The final rule itself, “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees” was promulgated May 23, 2016, for the purpose of updating and specifying which U.S. workers would and would not be exempt from the federal overtime pay requirements established by the Fair Labor Standards Act of 1938 (“FLSA”).

In addition to establishing overtime pay requirements, the FLSA exempts employers from paying overtime to “any employee employed in a bona fide executive, administrative, or professional capacity.”  Commonly referred to as the “EAP” exemption, this provision’s specifics were left by Congress to be defined and determined by the U.S. Department of Labor.

A 2004 regulation, promulgated by the Bush administration and still currently in effect, determines the class of exempt employees based on a three-part test. It classifies exempt employees as those (1) paid on a salary basis, (2) over a minimum salary level, (3) who perform executive, administrative, or professional capacity duties.  The 2004 rule sets the minimum salary level at $23,660 annually, meaning employees earning over that amount who hold positions meeting the definitions for executive, administrative, or professional roles are exempt from the FLSA overtime provision.

While the 2004 rule was the first meaningful update to the overtime standards in decades, by the end of the Obama administration many argued that the minimum salary level had grown out of touch with the needs of American working families and that raising the minimum salary level would be beneficial for struggling workers—potentially raising the percentage of U.S. workers eligible for overtime from eight percent to about forty.  The result of this sentiment was the Obama Department of Labor’s rule proposing to set the minimum salary level at $47,476 per year—more than doubling that of the 2004 rule.

Citing the drastically increased costs of so broadly expanding eligibility for overtime pay, coalitions of business interests and state governments rallied to oppose the rule.  The rule was finalized on May 23, 2016, but just before it went into effect in December 2016, the rule’s business and state government opponents sued in the U.S. District Court for the Eastern District of Texas to have the rule’s enforcement enjoined.  Judge Amos Mazzant granted that motion.

On August 31st, Judge Mazzant went further, invalidating the rule on a motion for expedited summary judgment.  Judge Mazzant held, among other things, that raising the minimum salary level so high would “effectively eliminate[] a consideration of whether an employee performs ‘bona fide executive administrative, or professional duties.’”  Because any employee falling under the minimum salary level would automatically qualify for overtime pay regardless of the character of their duties, Judge Mazzant found the rule inconsistent with the will of Congress as expressed in the text of the FLSA.  With the rule invalidated, the 2004 rule remains in effect.

On Wednesday September 6th, the U.S. Court of Appeals for the Fifth Circuit agreed to dismiss a pending appeal of an earlier ruling in the case.  The dismissal was requested by the Trump administration Department of Justice and signals an end to the legal battle over the overtime rule, for now.  Many speculate that this development signals an intention by the Trump administration Department of Labor to update the overtime standards with a more moderately increased minimum salary level. Experts are estimating that this new level will likely fall in the low- to mid-$30,000’s per year salary range. If you have questions about how this ruling applies to your recently modified salary levels, feel free to contact our employment attorneys.

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Ninth Circuit Affirms Summary Judgment for BNSF Railway Company in FEHA Case

By: Suzanne Nicholson • September 5, 2017

BNSF Railway Company recently obtained a decisive victory in the Ninth Circuit Court of Appeals, with the Court affirming a grant of summary judgment in its favor on an employee’s FEHA claim. The case, Alamillo v. BNSF Railway Co., was decided August 25, 2017, and underscores the importance of the three-step burden-shifting analysis for employment discrimination cases set forth by the Supreme Court in McDonnel Douglas Corp. v. Green.  In Alamillo, not only was the plaintiff unable to establish a prima facie case of discrimination, the court found that even if he had been able to do so he had presented no evidence that the employer’s stated non-discriminatory reasons for its employment actions were pretextual.

The case is interesting because Alamillo, an “extra board” or on-call locomotive engineer, was subjected to discipline for missing calls to work before he obtained a diagnosis of obstructive sleep apnea, which he then claimed explained his failure to hear and answer his employer’s calls to his cell phone. The district court granted summary judgment to BNSF, concluding that BNSF could not have discriminated against Alamillo based on his disability at a time when Alamillo had no diagnosis. The Ninth Circuit agreed, pointing out that the FEHA prohibits employers from taking adverse employment actions against an employee because of the person’s disability. Where neither Alamillo nor BNSF knew that Alamillo had obstructive sleep apnea, Alamillo could not establish a prima facie case of discrimination based on this alleged disability.

The court went on to address the third prong of the McDonnel Douglas test, which requires an employee who has established a prima facie case, and has received a non-discriminatory reason for the employer’s adverse employment action, to present evidence from which a jury could conclude the employer’s stated reason was pretextual. In this case, BNSF presented evidence that it disciplined and ultimately dismissed Alamillo because he repeatedly missed calls to report to work. Alamillo was unable to show this stated reason for his dismissal was untrue, or present any evidence that the true reason for his dismissal was discriminatory in nature. The court also observed that Alamillo could not show that his obstructive sleep apnea actually caused his attendance problems. Alamillo could have provided his employer with a land-line and/or pager number as backup if he did not answer his cell phone, set his alarm for 5:00 am when BNSF would typically call, checked the electronic job board every day, or simply requested a transfer to a normal five-days-per week schedule with regular hours. All of these alternatives were within Alamillo’s control, and the court held that BNSF had no duty to provide a “reasonable accommodation” of “excusing a failure to control a controllable disability….”

This case is a good example of all the avenues open to an employer to defend itself against a discrimination claim, and the importance of addressing each and every prong of the McDonnel Douglas burden-shifting analysis on summary judgment. One simply never knows on which prong the court may choose to hang its hat. If you have questions about using the McDonnel Douglas burden-shifting analysis, feel free to contact our employment attorneys.

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Snaplications and Legal Implications

By: Mariel Covarrubias • August 29, 2017

This summer it was announced that McDonald’s has teamed up with snapchat to hire 250,000 workers across the United States with the help of Snaplications. For those who are not aware, Snapchat is an image messaging and multimedia mobile application. The idea behind the snaplication is that an interested snaplicant would video themselves and send it to the company. In this instance once videos are reviewed, McDonald’s will send a link to its application page also within the app for the snaplicant to formally apply for a job. As noted in the article, the Snaplication will not take the place of a one-on-one interview but it will be considered.

The idea of a snaplication poses general questions on its legal implications in the employment hiring arena.  If companies begin using snaplications would this potentially amount to a rise in future litigation as to pre-hiring discrimination?

Imagine the potential for future claims. A snaplicant will have a documented video of their snaplication. This video would later be valuable in weighing future claims of discrimination. They say a picture is worth a thousand words, so imagine the force of a video. The idea of using snaplications may give ammunition to claims that may ordinarily not have merit.

Think for example of a raced based claim of discrimination in the hiring process. In the old school scenario, the protected class applicant sends in an application to a company and is declined for an in-person interview. That applicant is just a name, without a face, without a race, or any other protected category.  Now envision the same protected class applicant sends in a snaplication to a company. The company declines an in-person interview. The snaplicant may now have some basis to indicate a lost opportunity due to race based discrimination and a video would document exactly what was sent in to the company.

Snaplications may open the door to new-aged claims which would not have held muster if a company received a paper application with nothing other than a name and data on an applicant’s professional history.

Generally, employment should not be advertised in a manner that indicates preference, limitation, specification or discrimination on any of the following categories: 1) race; 2) color; 3) religion; 4) sex; 5) national origin; or 6) age. (See 42 U.S.C. §2000e-3(b).)

The California Government Code expands on this list adding the categories of ancestry, physical disability, mental disability, medical condition, genetic information, marital status, gender, gender identity, gender expression, sexual orientation, or military and veteran status. (See Cal. Gov. Code § 12940(d).)

This begs the question, is a company soliciting snaplications actually advertising job opportunities based on the category of age? The answer is far from given, but only 12 percent of Snapchat’s users are over 35 years old.

In looking at the state of the law, it is an unlawful employment practice, unless based upon a bonafide occupational qualification to refuse to hire or employee a person based on the same categories enumerated above. (See Cal. Gov. Code § 12940(a).) Therefore, in assessing the legal issues that may flow from a snaplication it is key to reflect on some of the guidelines for pre-employment inquires under the law.

It is unlawful for an employer to discriminate on the basis of age for individuals who are over 40 years old. (See 29 U.S.C. §§623(a), 631(a).) Although age may be difficult to ascertain via a snaplication a snaplicant clearly over 40 years old may have the opportunity to invoke the protections of the law if not asked for an in-person interview after submitting a snaplication.  Denying employment because of a foreign accent or inability to communicate well in English may constitute national origin discrimination. (See 29 C.F.R. §1606.6(b)(1)). An accent would be clearly evident in a snaplication and a snaplicant could also potentially invoke the protection of the law due to this category.

Other obvious protected categories which would be readily apparent through a snaplication are sex, a religious headscarf and potentially pregnancy depending on the distances of the video footage. It is unlawful for an employer to refuse to hire an applicant with the motive of avoiding the need to accommodate the applicant’s religious practice. (See 42 U.S.C. §2000e-2(a)(1), (m)). The same is true for pre-employment inquires limiting, specifying or discriminating based on sex and pregnancy. (See 29 C.F.R. §1604.7; see 42 U.S.C. §2000e-2; see also 42 U.S.C. § 2000e(k).)

Only time will tell how snaplications bode in the employment hiring arena and whether new claims based on pre-hire discrimination begin to have an uptick. If you have questions about complying with California’s hiring regulations, feel free to contact our employment attorneys.

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Employers Prevail in Two Recent Age Discrimination Cases in California.

By: Stephanie Quinn • August 22, 2017

They say “40 is the new 30,” and in the U.S. labor market that appears to be the trend.  According to the Bureau of Labor Statistics, by 2024, the median age of the labor force will be 42.4, up from 37.7 in 1994. Yet under California’s Fair Employment and Housing Act, “40” is a protected class, just like race, gender or disability status. Government Code section 12940 et seq. prohibits an employer from taking adverse employment action against an employee who is 40 years or older because of that employee’s age.

In two recent appellate court decisions, employers were victorious in debunking claims that they engaged in unlawful age discrimination.

In Merrick v. Hilton Worldwide, Inc., a 60-year-old former Hilton Hotel employee brought suit in federal court in San Diego claiming he was terminated from his position as Director of Property Operations at Hilton’s La Jolla Torrey Pines Hotel because of his age. Merrick was terminated as part of the hotel’s reduction-in-workforce that took place due to a decline in revenue. The company considered twenty-nine management level employees for lay off and chose Merrick because his position did not add revenue for the hotel (like food or beverage service), he had limited guest contact so the impact on guests was limited, and his position had in part already been outsourced. His compensation was more than $130,000 per year, so the hotel could eliminate only one position and reach its target payroll reduction goal.

In order to prove his case, Merrick was first required to show that (1) he was at least forty years old, (2) he was performing his job satisfactorily, (3) he was discharged, and (4) he was either replaced by a substantially younger employee with equal or inferior qualifications or he was discharged under circumstances otherwise giving rise to an inference of discrimination. Hilton argued that Merrick could not prevail because he was not replaced by a younger employee. The Assistant Director, fifteen years his junior, took over some of Merrick’s duties but other duties were outsourced.

The Ninth Circuit Court of Appeals rejected Hilton’s argument that an employee terminated during a reduction-in-workforce must show that he was replaced by a younger worker. The Court found that Merrick could put on evidence that the discharge occurred under circumstances that would infer age discrimination, such as evidence showing that the terminated employee’s duties were still being performed which would tend to show that the employer had a continuing need for the terminated employee’s skills and services.

Although the Court sided with Merrick in finding he had met his initial burden, the Court went on to find that Hilton showed a legitimate, business reason for the termination and Merrick did not submit sufficient evidence to demonstrate that the reason given by Hilton was a pretext for age discrimination. As the Court pointed out, the employer’s termination decision does not need to be wise or correct. It is not for the Court to second guess an employer’s business decision. Unwise business judgment does not equate to discriminatory motive. In order to prevail, the terminated employee has the burden to show that the employer’s reasoning is false or its true reasons are discriminatory.

Hilton articulated several reasons why Merrick was chosen over other employees to be laid off which had nothing to do with his age and were all legitimate business concerns for the company to consider.

Merrick tried to undermine Hilton’s reasoning by arguing that the company’s failure to transfer him to the Assistant Director position showed improper motive. However, the company’s reduction-in-force policy provided that qualified employees may apply for a transfer to an available position. Since the Assistant Director position was held by another employee, it was not available and Hilton’s refusal to oust another employee in order to keep Merrick was not discriminatory. None of Merrick’s other criticisms of Hilton’s decision were sufficient to raise an inference that he was terminated because of his age.

The Court noted that when a plaintiff alleges age discrimination “context is key.” The context the Court took note of included lost profits during an economic downturn, a series of layoffs over several years, and the fact that Merrick survived a prior reduction-in-force even though at that time he was over the age of 40. These circumstances did not lead to a rational inference that Hilton’s actual motive was discriminatory.

The California Court of Appeal also recently sided in favor of the employer in Robin Ford v. Chevron Corp. It upheld the Los Angeles Superior Court’s dismissal of an age discrimination case against Chevron.  Ford, a contractor for Chevron for 10 years, claimed she was passed over for several positions at Chevron because of her age (57).  She alleged that despite being the most qualified applicant, less qualified younger candidates were hired for two work control specialist positions. As a contractor, Ford worked in a similar role for several years. Chevron claimed that she was not hired for either of the work control specialist positions because of her poor ranking after interviews and behavioral and performance issues as a contract employee.

The Court found that Ford had not shown evidence that Chevron’s decision not to hire her was unbelievable, pointing to documented incidents where she displayed behavioral issues and was unprofessional. Ford’s experience doing the type of work involved in the position she sought was not enough to overcome the documented evidence of prior behavioral problems. The Court noted that the fact that Chevron kept Ford on as a contractor after these incidents merely suggests that these prior incidents were not serious enough to warrant disciplinary action or termination but they could have disqualified her from the positions she sought when she was compared to the other candidates that did not have behavioral issues. It was not compelling that no formal disciplinary documentation was generated by Chevron; the incidents had been documented in emails.

Ford’s claim that she was also not selected for an administrative position because of her age was dismissed as well. She failed to submit any evidence as to what the actual requirements of the position were, how her qualifications fit them, or what the qualifications of the other candidates were.  Because she failed to put forth evidence to show a prima facie case of age discrimination, Chevron did not need to show it had a legitimate, non-discriminatory reason to not select Ford for the administrative position.

Despite these recent victories, employers would be wise to evaluate their employment policies to ensure they are complying with anti-discrimination laws and that they are adequately documenting performance deficiencies. With an aging labor force and more employees in the protected “40 and over crowd,” it would not be surprising to see an uptick in age related claims in the coming years.

If you have questions about how to comply with the anti-discrimination laws and proper methods on documenting performance deficiencies, contact our employment attorneys.

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Starting July 1, 2017, California Employers Must Provide Employees with Notice of Protections for Victims of Domestic Violence, Sexual Assault, or Stalking.

By: Jessica Coffield • August 15, 2017

Existing law prohibits an employer from discharging, discriminating, or retaliating against an employee who is a victim of domestic violence, sexual assault, or stalking for taking time off from work for certain purposes related to addressing the domestic violence, sexual assault, or stalking. As of July 1, 2017, employers with 25 or more employees must now provide written notice of the rights and duties under the existing law. A recent bill amended Labor Code section 230.1 to include employer notice requirements and ordered the Labor Commission to develop a sample form for employers to use to comply. If an employer chooses not to use the form, the notice used must be substantially similar in content and clarity. Whatever form is used must include information explaining an employee’s right to take time off, right to reasonable accommodations, right to be free from discrimination and retaliation, and right to file a complaint.

Although the rights under Labor Code section 230 for employees who are victims of domestic violence, sexual assault, or stalking have not changed, the new notice requirement imparts more responsibility on employers and thus warrants a refresher.

Right to Time Off – Employees who are the victims of domestic violence, sexual assault, or stalking are permitted to take time off to:

  • Seek medical attention;
  • Obtain services from a domestic violence shelter, program, or rape crisis center;
  • Obtain psychological counseling;
  • Participate in safety planning, including temporary or permanent relocation;

The employee must give reasonable advance notice to the extent feasible. Employees may take unpaid leave or use paid time off benefits that may be accrued including vacation, PTO, personal leave, or sick leave.

Right to be Free from Discrimination/Retaliation – An employer may not discharge or in any manner discriminate or retaliate against employees who are the victims of domestic violence, sexual assault, or stalking and who take time off work for one of the purposes outlined above. If any actions are taken against an employee in violation of these sections, the employee is entitled to reinstatement and reimbursement for lost wages and benefits. An employer who willfully refuses to restore an employee who has been determined to be eligible for rehiring by a grievance procedure or hearing authorized by law is guilty of a misdemeanor.

Right to Accommodations – Employers must provide reasonable accommodations which may include “safety measures, including a transfer, reassignment, modified schedule, changed work telephone, changed work station, installed lock, assistance in documenting domestic violence, sexual assault, or stalking that occurs in the workplace, an implemented safety procedure, or another adjustment to a job structure, workplace facility, or work requirement.” (Labor Code § 230.)

Right to File a Complaint – Employees must also be notified of their right to file a complaint with the California Division of Labor Standards Enforcement if the employer discriminates against the employee on any basis discussed herein.

Thoughts on Compliance:

It is important to confirm written notice is provided to new employees on the date of hire and is made available to current employees upon request. It may also be advisable to update your employee handbooks and/or policies to include employee obligations for providing advance notice for time off and outline the manner of providing proof or certification for an unscheduled absence.

If you have questions regarding how to comply with the new notice enactment, contact our employment attorneys to schedule a consultation.

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Is the Tide Turning for Employers? There Seems to be Some Good News on the Horizon.

By: Susan DeNardo • August 8, 2017

The United States Department of Labor (“DOL”) is contemplating changes that may help employers in the future on a few different topics including the salary requirement for employees who qualify for federal overtime. The DOL requested information on July 27, 2017 related to the exemption for employee minimum wage and overtime pay. A request for information is an opportunity for the public to provide information that will help the DOL in formulating a proposal to revise related regulations.

The Fair Labor Standards Act (“FLSA”) requires employers who do more than $500,000 in gross annual sales and engage in interstate commerce to pay their employees at least the federal minimum wage which is currently $7.25 per hour for all hours worked. In general, interstate commerce refers to the sale, purchase or exchange of goods or money, or transportation of people or navigation of water between different states. If the state where the employee resides has a minimum wage higher than $7.25 per hour, then that state’s minimum wage will apply with a few exceptions not discussed here. The FLSA also requires employers to pay their employees premium pay of time and a half for hours worked over forty in seven consecutive days. Some of the law surrounding federal minimum wage and overtime can be found on the United States Office of the Law Revision Counsel’s website including 29 USC 206 and 29 USC 207.

The FLSA exempts from both the federal minimum wage and overtime laws employees employed in a bona fide executive, administrative, or professional capacity, and expressly delegates to the Secretary of Labor the power to define these terms through regulation. As cited to on the DOL’s website, these exemptions have been defined for over 75 years using three criteria; including, (1) the employee must be paid on a salary basis; (2) the employee must receive at least a minimum specified salary amount; and (3) the employee’s job must primarily involve executive, administrative or professional duties. See 29 CFR part 541

One of the more recent changes by the DOL occurred in 2016 and set the standard salary at a level, that if implemented, would exclude from exemption the bottom 40 percent of salaried workers in the lowest-wage census region of the United States, which would result in an increase from $455 per week to $913 per week.  Among other things, the new standard salary level would mean an increase in persons eligible for minimum wage and overtime pay. The DOL also established a mechanism for automatically updating the salary level every three years. The effective date of these changes was December 1, 2016; however, because of recent litigation in the Fifth Circuit Court of Appeals the DOL has solicited information from the public to determine what the minimum salary level should include.

To find additional information on this topic or respond to the Department’s request for information go to www.dol.gov. The 60-day comment period to respond to the DOL’s request for information ends on September 25, 2017 according to their website.

If you have questions regarding minimum wage or overtime laws, please contact our office to speak to one of our helpful employment law attorneys.

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Keeping Your Private, Private & Your Public, Public.

By: Corey Day • August 1, 2017

“What do you mean public record, it’s in my private e-mail account?” If you work in an office subject to the California Public Records Act (CPRA), be prepared to hear this sentence uttered repeatedly in the coming years. The California Supreme Court recently determined that public business conducted by a public employee through that employee’s personal (and private) account is subject to CPRA requests. The CPRA allows the people of California to request public records (with some limitations) from public agencies. While often used to increase transparency as required by a functioning democracy, this process is often used by Plaintiffs as a means of obtaining documents before filing a lawsuit.

In San Jose v. Superior Court (full opinion in the link) the Plaintiff requested documents from the City concerning redevelopment plans for its downtown; specifically, e-mails and text messages sent or received on private electronic devices used by the mayor, two city council members, and their staffs. In response, the City released communications made using public telephone numbers and e-mail accounts but did not release communications to or from employees’ personal accounts. The Court determined that it doesn’t matter how public business is conducted, using a private account doesn’t limit the scope of the CPRA. Therefore the City was ordered to produce the documents (if any existed) from the employees’ personal accounts. The Court went on to note that while the information must be produced, that does not grant a public entity or the public at large unlimited access to public employees’ private accounts. Rather, the employee (when properly trained) may conduct their own search of their personal accounts.

Ok, I definitely want to comply with the law but I don’t know the definition of “public record”?

Why thanks for asking hypothetical Public Entity Supervisor! Generally any record kept by an officer because it is necessary or convenient to the discharge of his official duty is a public record. Unfortunately, whether a writing is sufficiently related to public business will not always be clear. The San Jose Court used the following example:

“Depending on the context, an e-mail to a spouse complaining “my coworker is an idiot” would likely not be a public record. Conversely, an e-mail to a superior reporting the coworker’s mismanagement of an agency project might well be.”

The Court identified several factors to be used in identifying whether a record is public including: (1) the content itself; (2) the context in, or purpose for which, it was written; (3) the audience to whom it was directed; and (4) whether the writing was prepared by an employee acting or purporting to act within the scope of his or her employment.

Alright I get it, it’s complicated… how do I stay on the right side of the law?

First things first, eliminate the risk. A public entity should have policies and procedures in place (and enforced) that require employees to only use their entity-provided accounts to conduct public business. In a pinch, a real dire emergency, a public employee can CC their entity account on any business conducted from a private account. Then when it comes to answering the CPRA request itself, you can have your employees confirm that they knew of the public business policy and have conducted all business according to it. Now is a great time to go forth and revise your employee handbook.

Ok I’m really trying to get around to revising my employee handbook, but don’t have the time (and sometimes my employees don’t follow my current handbook anyway), how do I make sure my employee’s conduct a proper search?

Unfortunately the Court did not lay out a failsafe method but it did make some helpful suggestions on compliance.

So you have a CPRA request and have reason to believe that documents within the scope of the request may be stored in an employee’s private account, what to do. First, as discussed above, your employees must be trained on how to distinguish between a public record and their private documents. Second, each employee must search their personal accounts and separate the public records from their private documents. Third, if they find a document that may be potentially responsive but they believe to be private they must lay out sufficient information in an affidavit (a written statement under oath) such that a reviewing court can make a final determination. Finally, they should turn over unaltered copies of all of the public records. Phew, that wasn’t too bad.

If you have concerns about whether your office’s procedures comply with this new clarification of the CPRA or wish to receive training on how to conduct a proper search for public records, please contact our helpful employment attorneys.

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