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CEA’s “Know Your Rights” Library
What Rights Do We Have As Public
Employees?
The following articles are available from CEA's "Articles Bank" to all client
associations and their members. Non-clients may purchase articles
individually or contract for CEA's services on a month-to-month basis.
Please call staff at the CEA office for more information (562) 433-6983 or
cea@cityemployees.net.
LEGAL RIGHTS AND STRATEGIES
IS THE CITY REALLY BROKE, AND WHAT DOES THAT MEAN TO ME?
Why are California's Cities so hard up financially? Effects of recession on tax
base; different taxation sources for City funding. Cities must consciously
rethink spending priorities. Labor and Management should work together to
talk about increasing revenues/cutting expenses. Are service cuts inevitable?
CAN cities violate the labor contract due to financial problems? Can they lay
employees off? What are the rules for any given layoff procedure?
WHAT’S A FISCAL EMERGENCY? WHEN DOES AN EMERGENCY
ALLOW THE CITY TO “FORCE OPEN” YOUR CONTRACT?
Although it’s true that your employer cannot “break open” your contract to
take money or benefits away from your members, once the contract expires,
the City may declare impasse and, ultimately, impose its “last, best offer.” If
the city’s situation worsens, and your union has not managed to close a contract, the employer CAN make
new proposals, including proposals for “takeaways.”
SHOULD YOU "JUST BE GLAD YOU'VE GOT A JOB"?
There IS a line between hard work and exploitation. Employees should not be expected to work through
lunch, skip breaks, come to work sick, take work home, work overtime without appropriate pay, perform the
work of higher job class without the pay, or do the work of several job classes. No one should be
endangered or made sick by exploitive work conditions. After all, it is one thing for a beleaguered employer
to ask you to "pitch in" during an emergency, but it’s quite another to threaten you with layoffs or contracting
out if you can't do the work of three people!
WHAT IS AN MOU, ANYWAY
What is the ‘right to bargain’ and what topics can bargaining cover. How much authority does the MOU
(contract) hold. What happens if the City refuses to adhere to it? What is the role of the Public Employment
Relations Board? What is a “Management Right?” What happens if the Union fails to enforce the MOU?
LAYOFFS AND THE LAW
Right of Association to meet and confer over effects. Notification requirements. Goal of negotiations (extent
of 'effects.') "Can union block layoffs?" Seniority requirements of law. Legal remedies (wrongful termination
actions.)
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BUDGET CRISIS: AN EXCUSE FOR TAKEAWAYS?
Potential for Management 'takeaways' of benefits earned since last great Depression. Where to 'draw the
line' at exploitive work conditions. Documenting these conditions. Group grievances. Current threats to
workers compensation, Retirement and overtime laws.
THE RETIREMENT CONUNDRUM
Is it true that the Public Employee Retirement System has lost so much money that it has become
“unstable?” Is it possible that the System won’t be able to pay back your City’s
investment when the time comes for YOU to retire?
The answer is an absolute NO on both accounts. But it IS true that PERS (and ALL
public employee retirement systems) is now much more expensive for your
employer. This article also addresses “Superfunding”, Where Did All the Money Go,
When Politicians Jump on the Bandwagon, What Happens When Older Employees
Can’t Retire, What Happens If Public Employees’ Retirement Income is Reduced,
and What “Takeaways” Can’t They Ever Take?
SHOULD WE NEGOTIATE "ALTERNATIVES" TO LAYOFFS?
What are 'alternatives?' (Wage reductions, paid leave and benefit cuts, furlough programs, etc.) Danger of
reopening contracts. Potential divisions among membership. Role of Board of Directors. Role of Political
Action Committee, with City Council, etc.
WHERE DOES YOUR CITY’S MONEY COME FROM?
Public agencies in California vary wildly in financial stability. This is not only due to the obvious fact that some
communities are wealthier than others, but that the sources of revenue can vary wildly. Utility districts, for
example, are much more “recession-proof” than cities. Their incomes are based on ratepayers’ (predictable)
demand for life’s necessities: gas, water, or electricity. Cities survive on the money they receive from the
state, what they can assess in fees or charges, and local taxes. In California, State taxes have always been
a prime source of income for the cities.
SHOULD YOUR ASSOCIATION GET INVOLVED WITH LOCAL
POLITICS?
SHOULD YOU FORM A “PAC?”
Right now, however, one of the worst decisions your Association can
make is the decision not to form a Political Action Committee and/or not
to exercise your right to communicate with your Council. In fact, if you
are a leader of a public employee association, especially in this
economy, especially in California, you don’t just have the “right” to
communicate with elected officials, you have the obligation to do so. After all, your members’ jobs and
standard of living are at stake, and the Council has absolute authority over such decisions, at least until they
are told otherwise by PERB and/or the courts.
WHAT IS A GRIEVANCE?
Ninety-five percent of public employees NEVER file formal grievances, but everyone has a problem once in a
while. This is our best effort to explain where a "problem" ends and a "grievance" begins and how the
grievance mechanism works.
WHAT IS A FURLOUGH? CAN THE CITY “MANDATE FURLOUGHS?”
A furlough is a fancy word for an involuntary, unpaid leave of absence. Furloughs are usually implemented to
save the employer money without reducing employees’ wages directly. A furlough is a “takeaway” from your
negotiated Contract. Employers cannot impose them without “extending the offer to meet and confer.” As
with any change in terms and conditions, if you’re in the middle of a contract, your Association CAN decline
to bargain.
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WHEN DO YOU NEED A (Workers Compensation) LAWYER?
Need to report all injuries. Right to see your own doctor. City's Worker's Comp program: it’s negotiable.
Call your union rep BEFORE calling a lawyer; we're more likely to save your job. If the injury is short-term...
If it's long-term... DO call a lawyer when... Work with the lawyer the Association refers you to.
SKELLY RIGHTS: DUE PROCESS PRIOR TO MAJOR DISCIPLINE
Federal and state 'property rights' to your job. The appeals process; including post-
Skelly evidentiary hearing. The role of the union rep. Negotiating a better appeals
process.
YOUR PERSONNEL FILE
Your right to view & reproduce your file under the law. No discipline for material not
seen & signed. Significance of your file to your future employment.
WEINGARTEN RIGHTS (Right to Representation)
Your right to avoid self-incrimination. Right to be represented in all questioning meetings. Distinction
between questioning and discipline. What if Management violates your rights? The role of the
representative.
ARE WE A UNION OR AN EMPLOYEES ASSOCIATION? Under the government code there is no
difference. They are both Unions. Unions must “collectively bargain” a contract, commonly called an MOU
and enforce members rights under that contract. Also they have the responsibility to enforce Federal and
State laws affecting workers, such as…
PAID TIME – WHEN AM I ON THE CLOCK? “Volunteering” to work overtime. On call time. Rest and meal
periods. Sleeping time and certain other activities. Lectures, meetings and training programs. Travel time –
home to work. Travel time in the course of the day.
BUT I'M SICK... YOU MEAN THEY CAN FIRE ME?
Legal rights of sick/injured employees Vs Management's right to 'get the job done.' How to protect against
losing your job. When to seek reclassification or union help. New laws: Family Medical Leave Act;
Americans with Disabilities Act.
CalPERS AND SOCIAL SECURITY
Most public employees are in the PERS retirement system. Some also have -- or are now contributing -- to
Social Security. It IS TRUE that when you retire from both systems the value of one plan is partially
deducted from the other. Here is how PERS and the Social Security System “reconcile” your retirement
benefits.
NO FREE LUNCH; LIMITS ON SERVICES TO NON-MEMBERS
Legal responsibilities of union to non-members. Need for "vote of support"
from all represented employees. Attitude of members toward non-
members. Free rider problem drags everyone down. Services not provided
to non-members.
BUT IT'S NOT MY JOB: WHAT TO DO ABOUT OUT-OF-CLASS PROBLEMS
When ARE YOU working out of your classification? With Increasing frequency there is out-of-class work in
City employment. Solving the problem "without rocking the boat." When to file a formal grievance; possible
outcomes. Resolving classification problems at the bargaining table.
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WARNING: DON'T CALL A LAWYER (for a workers comp case) UNTIL YOU'VE EXHAUSTED YOUR
GRIEVANCE PROCESS
(1/3 page 'filler'). If you call a lawyer: 1) City won't talk to you or your rep anymore; and 2) you may get a
settlement but lose your job. Association's role in protecting your job.
WHAT DOES THE ASSOCIATION DO FOR ME?
Legal role of the union: monitoring City legal actions, enforcing and expanding
employee rights via 1) bargaining and 2) grievance process. Representation of
group vs. individuals. Structural/Legal relationship among members, Board and staff.
WHO YOU GONNA CALL?
Who to call with various kinds of work-related problems: When to call union rep?
Board rep? When to talk first to supervisor? When to go to Payroll department?
Another governmental agency? A lawyer?
HOW NEGOTIATIONS WORK
Negotiations calendar. Role of the Board, the Professional Staff & the Members.
How do we measure 'successful' negotiations? What aggrieved members can do. Legal role of bargaining
team. What is impasse? Legal right to go to Council.
'CONTRACTING OUT:' HOW PUBLIC EMPLOYEE UNIONS CAN
FIGHT BACK
Legal limitations on public employers' right to contract out services. Obligations to notify and/or meet and
confer with Association. Association strategies: communication with Council; legal challenges.
UNDERSTAFFING & WHAT YOU CAN DO ABOUT IT
Identifying if your workplace is understaffed. Identifying problems: denials of rights, injuries,
stress, etc. When to file a group grievance? How long to be a "human sponge." City
funding, the recession, the employee & the taxpayer.
FLSA - OVERTIME LAWS
Summary of FLSA guidelines. Answers to questions: can I be compelled to work over? What if I want
money instead of comp time? Can the Association "negotiate away" our overtime? Can the City be required
to make overtime equally available to all employees? What is work?
BUT I'M SICK... YOU MEAN THEY CAN FIRE ME? PART II
Here’s the answer: If the only law protecting you was the FMLA, then the answer could be yes. However, if
you have a medical condition which keeps you off the job for more than three months, other laws come into
play:
FLSA – EXEMPT
Does being exempt from FLSA mean that I am “at will?” What are my rights as an exempt employee?
SEXUAL HARASSMENT: THE 'REASONABLE WOMAN' STANDARD
New legal standards for sexual harassment cases. What to do about on the job harassment. Use of the
grievance process vs. 'informal solutions'.
PUBLIC POLICY RETALIATION
Employees who report violations of Public Policy, or what they believe “in good faith” to be violations, cannot
be disciplined or retaliated against for the report. Included are examples of violations and possible forms of
retaliation that an employer may use.
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THEY CAN’T FIRE AN INJURED WORKER” …OR CAN THEY?
Disability retirement – what if I am so disabled that I can’t perform the essential duties of my job? Does the
City have to apply for my disability retirement? Is a Skelly hearing required if the city proposes to fire me, but
not for disciplinary purposes? Which is better for me – disability retirement or age-based retirement?
COMPARISON OF FAMILY LEAVE ACTS
Summary of the new laws and how they can benefit you. Why the new laws should be incorporated into
MOU's.
VIOLENCE AT THE WORKPLACE
“Recognizing signs of violence and what can be done about it. Is there anyway to protect myself or my co-
workers from such harm?” What obligation does my employer have to protect me?”
WHO DO WE REPRESENT?
Scope of Association coverage of: 1) Various classifications in bargaining unit; 2) Legal rights of non-
members of an Association. What services can be denied non-members?
CAN THEY GIVE OUR JOBS TO PART-TIMERS or VOLUNTEERS?
How can public employees prevent permanent erosion of bargaining unit jobs? What does the law say about
giving permanent City jobs to temporary or "contract" employees? How to grieve City's replacement of
permanent jobs with "part-timers?"
RETIREE HEALTH BENEFITS
Do you have the right to same benefits that were in place when you were hired? Can the City change the
retirement plan, or retiree health benefits, after you retire? To what extent are these benefits subject to
negotiations? Subject to changes in the law? What is the employees’ recourse if these rights are violated?
COURTS STRENGTHEN 'NO DRUG TESTING' RIGHTS OF PUBLIC EMPLOYEES
Because of constitutional privacy rights, employers can not require urinalysis-based drug testing of all job
applicants and promotional candidates without sufficient justification. The
city must now show a compelling interest in the testing that outweighs the
applicant/employee’s fundamental right to privacy.
CHEMICAL DANGERS IN YOUR WORKPLACE
Do employees have the legal right to know what hazardous chemicals they
are exposed to? Where can employees go to find out what chemicals they
are exposed to and whether these chemicals are carcinogens and/or
reproductive toxins?
PERS MILITARY BUY BACK PROGRAM
“I’ve heard that PERS provides a program which enables veterans to get
extra retirement income for serving in the military. If this is true, how can I sign up?
ASSOCIATION'S RIGHT TO PARTICIPATE IN LOCAL POLITICS
Can you be prevented or “discouraged” from participating in local political activities? Most impasse
procedures (for resolving contract negotiations) and many grievance procedures (for enforcing the contract)
end up in the hands of the City Council. Much as City Management prefer you NOT communicate with the
Council; there is no legal reason that can block you from doing so.
WHEN CAN I BE HELD "LIABLE?"
"My wife is working with disabled children. As part of her duties, she has to ferry them around to various
public facilities. Is she liable if something happens?"
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VIOLENCE ON THE JOB
Most people who are victims of violence know their attackers, particularly true in the workplace. Women are
nearly twice as likely as men to be victims of workplace violence. This article discusses the "signs" of
potential violence in your workplace, and what to do when you notice them…
INTERPERSONAL PROBLEMS ON THE JOB
Workplaces are complicated settings where some people get along better than others. If a supervisor has
decided you're a problem employee, life at work can feel unbearable. This is when a meeting between the
employee, the supervisor and a skilled third person can prove constructive. A process called mediation…the
use of an 'outsider' to help reconcile opposing sides in a dispute. Your union staff person can serve as a
mediator to help resolve problems with your supervisor.
MEDICAL LEAVE CAN BE “REASONABLE ACCOMODATION” UNDER THE ADA
In California public workplaces, sometimes employees become disabled WHILE EMPLOYED. This article
discusses what options an employee has to continue working with a disability, and the employer's obligation
to provide continued employment and/or accommodation for the disabled employee.
ENHANCED RETIREMENT
In January 2002 the much-coveted “Enhanced Retirement Law,” AB616, went into effect. Cities, counties and
water districts may now contract with PERS for the “2.5% @ 55,” “2.7% @ 55,” or the “3% @ 60” formulas on
behalf of their “Miscellaneous” workforces. Key word here is “MAY;” AB616 is what we call an “enabling law.”
It’s up to each collective bargaining unit to convince its local Councils, Boards and Management to
implement a higher level of benefit. Here are some strategies for convincing your employer to implement one
of these plans.
WORKERS COMPENSATION: A PRIMER
Summary of benefits provided under California Workers Compensation Law. Explains the
many options the employer has in responding to an employee's claim. Delineates how
the procedure actually works and when the victim needs an attorney. Explains role of
employee representative as "liaison" in the system.
RANDOM DRUG TESTING UNDER THE D.O.T.
What the Department of Transportation really says about drug testing...the basics, the effects, and
unnegotiated expansions of the policy.
EXCESSIVE ABSENCES...or NOT?
What are your legal rights when management tries to discipline you for medical related absences? A
summary of how the FMLA, CFRA, ADA, CalPERS Disability Retirement, Workers Compensation and Skelly
laws may be able to protect you.
THE EMPLOYEE ASSISTANCE PROGRAM (AND WHY IT COULD BE A RESOURCE FOR YOU…)
Most public employers in California have established “Employee Assistance Programs” which are
available for intervention or help when you need it. Learn how you can talk to a psychologist or
licensed family counselor through the “Employee Assistance Program.”
CALPERS- (CALIFORNIA PUBLIC EMPLOYEES RETIREMENT SYSTEM)
PERS is now offering a wide array of “contract enhancements’! Find out how you and
your employer can upgrade your MOU to include these.
LEGAL RIGHTS OF SALARIED EMPLOYEES
When your employer may and may not discipline you by deducting wages from your paycheck.
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DECLARING “IMPASSE”
Step by step summary of the use of the Impasse Resolution Procedure in the bargaining process.
PUBLIC EMPLOYEE RELATIONS BOARD (PERB)
Because of substantial changes in the law, employees associations in cities and water districts may now take
disputes with their employer before the Public Employee Relations Board. “PERB” is the administrative
board, created 1976, which oversees labor relations throughout the State, but “local agencies” were
previously excluded from PERB jurisdiction and forced to take legal matters to the Court system. Now even
small associations may take their violations of local rules and unfair practices claims to PERB, for swift,
affordable resolution.
“MWD” DECISION: COURTS FIND THAT ‘CONTRACT LABOR’ IS EVASION OF PERS RULES
A recent landmark decision involving the MWD said that if a contract employee (one who works for a
contractor working for MWD) who crosses the 1000-hour threshold must be placed into the PERS system.
RECESSION…AGAIN?
It’s all over the news again: ‘The Recession.’ How true is the threat? What does this mean for future wages
and benefits? What kinds of ‘incursions’ on our current MOU’s might we expect? How can we best prepare
and/or draw the line? The answers vary from jurisdiction to jurisdiction, but here are some general strategies
– learned from the last “Great Recession.”
COURTS CRACK DOWN ON “COMMON LAW” EMPLOYEES
“Common law” employees raise questions about who’s really the employer.
Recent legal decisions force employers to provide benefits to “temp agency”
employees who actually work for local governments.
WHAT THE BROWN ACT REALLY SAYS
When can City Councils and District Boards meet in “executive session” to discus employee matters.
Under what circumstances can employees associations communicate with – or meet with – their political
leaders. What kinds of private meetings violate the Brown Act?
LAW PROTECTS AGAINST DISCIPLINE FOR OFF-DUTY CONDUCT
Passed in 2001, a modification of the labor code enables public employees to file claims for lost wages if
their employer has disciplined them for legal activity off the job. Does NOT protect employee against
discipline for illegal activity – either on or off the job….
RELIGION IN THE WORKPLACE
What is the employer’s legal obligation to protect employees from religious discrimination? To what extent
must the public agencies allow employees to practice their religion on the job – or take time off the job for
religious activities. What legal steps can employees take if they believe they are victims of discrimination?
MATING & DATING ON THE JOB
Does your employer have the right to restrict you from dating someone at work? Could your
job be in jeopardy if you date or marry a co-worker? What is a Nepotism Policy? Is it
negotiable? Where do we draw the line between “dating” and sexual harassment?
STATE DISABILITY INSURANCE – EXPANSION OF SCOPE
2002 change in the SDI law will allow employees to apply for and receive assistance with
injury and illness for members of immediate family as well as themselves – IF your
employer contracts with SDI. If not, it should be on the bargaining table. The law does
not take effect until Jan 2004. The article discusses the application of the new law.
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“VICTIMS LAW”
Modification of The California Labor Code as to Victims’ rights. Employers cannot retaliate against an
employee who is a victim of a crime and has to take time off to comply with a subpoena or court order, or
who takes time off to obtain relief as a victim of domestic violence. In addition, employers cannot discriminate
against an employee for serving on a jury if reasonable notice is given to the employer.
FEHA ACCOMODATION
Employers must enter into a “serious interactive discussion” to identify alternative job
assignments for employees who become disabled. Recently, the appeals court has
clarified that this onus falls on the employer. The employer is most familiar with the
workplace and the courts lean strongly in favor of an employee who is able to prove
that his employer did not engage in “good faith interaction”.
SAFETY: WHAT THE LAW SAYS
Do I have a right to report safety problems on the job? Where can I go to see the written
OSHA standards on the internet? Your right to refuse to work if a situation has serious, direct hazards.
HAAS DECISION- HEARING OFFICERS MUST BE IMPARTIAL
Hearing Officers selected by or paid for solely by Management are not “impartial” under the requirements of
law because they have an interest in being re-hired and cannot be used. “Due Process” under the law
requires the hearing officer to be free of any direct, personal or pecuniary interest in a matter.
WORKPLACE VIOLENCE SAFETY LAW
1995 CA law allows employer to secure restraining order against an individual who
presents a “threat of violence” in the workplace. Fearful employers fear not.
DISCRIMINATION
What is the difference between discrimination, unequal treatment and mistreatment? What
constitutes “harassment?” The legal definition of “discrimination” and the laws that protect you
from discrimination in the workplace.
A GENERATION OF (New) RIGHTS
25 years ago, public employees could be fired “at will” and California had almost NO labor or employment
laws. Today, city and water district employees have Skelly Rights and are also covered by family medical
leave laws, harassment and discrimination laws (including the Americans with Disabilities Act;) laws that
protect their vacation and retirement money; laws protecting their Contracts (wages, benefits and work
conditions) against the political whims of City Councils or the public – and the right to enforce their Contract
in front of the Public Employment Relations Board. Summary of all labor/employment rights and laws that
have come to life in the last generation.
RETIREE HEALTH ANNUITIES
Employee controlled Medical Annuity Programs can relieve burden of retirement health costs. A retiree
health annuity program is like a group savings account. Contributions are made into a trust fund which can
be used for specific purposes by participants that meet certain criteria. After retirement, employees can draw
on the fund for payment of medical expenses or premiums. Everyone in the bargaining unit contributes
equally, and once the trust is fully funded, everyone who meets the eligibility requirements may draw upon it
equally.
PERS 5-YEAR SERVICE CREDIT PROGRAM
New PERS 5-year Service Credit Program competes with other retirement plan options. The new law takes
effect January 1, 2004, and PERS members can invest further in their PERS retirement accounts rather than
investing in other vehicles such as 403(b) or 457 plans. Your Association does not need to negotiate an
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agreement with the City. . Purchase options for any number of years up to five, in whole years only; and
payments over a period of years is an option.
PERS “AIR TIME” MIGHT COST MORE THAN IT’S WORTH
The much-celebrated PERS “buy your own service credit” program is actually turning out to be one of the
most expensive investments you can make – unless you’re still many years from retirement. This is because
the price for purchasing service credit is actuarially determined: the greater your age, income and current
years of service, the more the addition years will cost you. But for employees who are about to retire, or for
those who DO want to invest the extra cash, it might be an excellent program. This is something you can
investigate for yourself by going into the PERS website directly.
TAX SHELTERING LEAVE PAYOFFS AT RETIREMENT
When you leave your public employer, you have a right to be paid for all accrued vacation leave and “comp
time.” Many associations have managed to negotiate “payoffs” of all or part of your unused sick leave. If
added to your final year’s pay, theses monies can push you into a much higher tax bracket. Associations
have begun to negotiate tax-shelter programs to enable you to receive the full amount of these retirement
payoffs (which can sometimes be in the 10’s of thousands) with taking a tax deferment. The financial vehicle
which can be set up to “shelter” your excess funds is called a 401(a) account. Once established, when you
retire, you may put all or part of your leave payoffs into this tax deferred account, which, literally, defer you
tax liability. At the point which you take your money out of the 401(a) it becomes subject to taxation.
WHAT IS THE CONSUMER PRICE INDEX?
The CPI stands for Consumer Price Index. It is a set of government-published statistics which presumes to
measure the increased cost of living. In many people’s minds, “COLA” and the “CPI” are synonymous, but
there is no legal or formal connection between the terms. In fact, tying the two concepts together can be bad
for public employees. This is because the published CPI is often much, much
lower than your real cost in your living. In general, the CPI is a tool used by the
government and by employers to satisfy their constituents demand for cost-of-living
adjustments, but to keep these adjustments relatively low. A more useful bargaining
strategy involves determining what employees need the most in pay and benefits
increases, as well as what the employer can afford – and to negotiate for these
directly.
WORKERS COMPENSATION ’04 “REFORMS”
On April 19, 2004, Governor Schwarzenegger signed into law SB 899. The provisions of this bill constitute a
major overhaul of the Workers’ Compensation System in the State of California. While Workers’
Compensation reform has been very common in the last decade, never have we ad such sweeping reforms.
Unfortunately, the result of SB 899 will be that injured workers in the state will have a more difficult time
processing a claim and securing medical treatment. This article reviews of some of the major changes in the
workers comp system, most of which take effect January, 2005.
FAIR LABOR STANDARDS ACT
The Fair Labor Standards Act has been revised to allow employers more “loopholes” in the definition of what
is a “salaried” employee. The new law went into effect August 23, 2004, and it is estimated that millions of
employees may now lose their abilities to collect overtime. Thus, the "salary test” which said that supervisors
and administrators were NOT exempt if they spent more than 20 percent of their time “in the field” has been
eliminated. “Highly compensated employees” (those who earn $100,000 per year or more) may now be
considered automatically “exempt.” Non management employees in production, maintenance, construction,
and similar occupations will continue to be entitled to overtime pay, no matter how highly paid they might be.
On the positive side, if an employer has a practice of making improper deductions from the paychecks of
FLSA-exempt employees, the employer now risks losing its exemption for the entire job classification.
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STRESS! What it is and Why You Probably Can’t “Go Out” on It!
A “stress claim” is a workers compensation claim. Stress claims are real; people ARE made sick by the
chronic fatigue or chronic frustrations of their jobs. A few jobs are recognized by the Courts to be so stressful
that employees’ stress claims are regularly granted. But most employers fight most stress claims, and most
stress claims are (at least initially) rejected. Further, the new workers comp laws have made it harder and
harder for employees with stress-based injuries to prevail. What are some of the methods for resolving
stressful circumstances on the job?
LAWYER CONFLICT: Neutral Hearing Boards Can’t Be Guided by Employer-side Attorneys
Employees threatened with major discipline have the absolute right to “Skelly Due Process.” This is a two-
part hearing process: first an informal meeting with Department Management to allow you to respond to the
charges; and second, a “full evidentiary hearing before a reasonably impartial non-involved reviewer.” In
many public agencies, this “reviewer” is a Personnel Board or Civil Service Commission. On the surface, this
is good. All too often, however, this neutral hearing Board is advised, legally, by the same attorney who
serves as the advocate for the City or disciplinary proceedings. In other words, the “neutral” hearing board is
given advice about how to conduct its proceedings by the same person who is assigned to WIN in those
proceedings.
THERE OUGHT TO BE A LAW…
1) When are pay raises required? 2) What is an employer required to pay for weekend or night
work? 3) Don’t I have to be paid overtime after eight hours in a day? 4) How are vacation, sick
leave and holiday pay computed? When must they be paid? 5) I thought federal holidays had
to be paid at time-and-a-half…? 6) How is severance pay calculated and when is it due? 7)
When must breaks and meal periods be given? 8) Are periodic performance evaluations required? 9) Can an
employee be required to perform work outside of the employee's job description? 10) How many hours per
day or per week can an employee be forced to work? How much rest time must be provided between work
shifts? 11) When is double time due? 12) If I work overtime, but am sick during the same pay period, my
employer subtracts my sick leave from my overtime pay. Is this legal? 13) My employer tells me that I have to
take “comp time” instead of overtime pay, when I work overtime. Is this legal?
DRUGS, ALCOHOL & YOUR PUBLIC JOB
In the late 1980’s, Congress passed the “Drug Free Workplace Act.” This law was used by many public
agencies as the basis for enacting - or attempting to enact – random, unannounced drug testing in the
workplace. “Reasonable Suspicion” testing has no legal meaning in the workplace. The federal Department
of Transportation did establish guidelines for the random testing of heavy vehicle drivers. Although most
employees cannot be compelled (under most circumstances) to provide urine or blood samples for
substance testing, they CAN be compelled to cooperate with workplace inspections. There is essentially NO
privacy in a public work place.
PERS DISABILITY RETIREMENT
When a public employee develops a disability while on the job, whether the injury was work
related or not, retirement may be his only option. This is true despite the presence of the ADA
(Americans with Disabilities Act) which requires the employer to “reasonably accommodate” a
disabled employee by modifying the workplace or offering alternate employment. The fact is
that the majority of people who develop permanent disabilities while working for public agencies
end up losing their jobs. PERS does have a program for people in this situation, but it is NOT
generous, and is often not competitive with one’s normal service requirement. To be eligible for
a CalPERS Disability Retirement you must have at least five years of service. If a disabled
employee is not yet age 50, then Disability Retirement is the only retirement option. Further, if an employee
disability retires, you cannot ask to age-base retire when you become eligible.
CAN THEY MAKE ME TAKE A LIE DETECTOR TEST?
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Both California and Federal law forbid employers from requiring public employees to take lie detector
(polygraph) tests. While the employer can cooperate with the police in making a public employee available
for a polygraph in a criminal investigation, the results of such a test cannot be used to discipline the
employee. The law also forbids simulated use of a polygraph to mislead an individual into confession.
RIGHTS OF EMPLOYEES CALLED TO ACTIVE MILITARY DUTY
Under Federal law, employees called to active duty in the Military Reserve or National Guard have the right
to return to the same or similar position as the one they were employed in at the time of the call up.
Employees must give prior notice of the call up. (The amount of notice varies with the length of
the call up.) Upon return from active duty, an employee is entitled to have their seniority restored
and the length of service for purpose of sick leave, vacation and FMLA rights is calculated as if the
employee remained on the job.
YOUR RIGHT TO A FAIR HEARING
Everyone knows when they have been treated unfairly, but what – legally- is a Fair Hearing.
This article explains your rights to representation (Weingarten Right) and to a fair hearing
and due process under Skelly Law at your job in the public sector.
ARE THE RICH GETTING RICHER AND THE POOR GETTING POORER IN PUBLIC EMPLOYMENT?
The rising cost of housing, gasoline and medical care means that it’s getting harder and harder for the
average public employee to make ends meet. Southern California has become one of the toughest
places in the nation to “make it.” This hardship is not evenly distributed, however. Managers,
police and fire, tend to do better than general employees in most cities and this fact worsens the
budget pressures on blue collar and clerical workers. This article explores bargaining strategies
associations find helpful in strengthening their position at the table when it comes to getting
Cities to distribute money more equally in contract negotiations.
VEHICLE LIABLITY
What happens when you have an accident in your employer’s vehicle? This article explores the Government
Code sections that define an employer’s liability for automobile accidents that occur in the course and scope
of employment. Employers are responsible for damages arising out of ordinary negligence in work-related
automobile accidents. Employees are responsible for violations of the law, work rules and criminal or
malicious behavior.
IS THERE STILL RACISM IN THE WORK PLACE?
A discussion of the definition of racism and the laws that protect you from it. Also discusses EEOC and
FEHA as enforcement tools.
HOW DOES OUR ASSOCIATION WORK
How have public employee labor associations evolved from social organizations to unions that negotiate
MOUs, Enforce the MOUs with the grievance procedure and represent members who have gotten on the
wrong side of management to protect their rights. What are the obligations the Association has to its
members? What determines how the Association conducts its business and where to draw the line ?
“PRESENTEEISM:” THE HIGH PRICE WE ALL PAY WHEN YOU MUST COME TO WORK SICK
Presenteeism: the loss in productivity caused by employees who come to work when they are suffering from
illness or injury. There are concrete actions employers may take to reduce the incidence of “Presenteeism.”
Many people suffering from chronic conditions don’t know what to do -- except to keep on trying to work.
“Presenteeism” is just the tip of the iceberg….
WHY IS MY ASSOCIATION DEFENDING THAT JERK?
It is unquestionably true that unions spend a significant portion of their members’ resources defending
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people who are threatened with discipline. Your Association’s goal is not to enable guilty people to avoid
discipline; it is to try to bring about an even playing table: to make management treat everyone fairly. The
Association isn’t defending a jerk; it’s defending a process. For all the disadvantages of this system the
alternative is worse.
HOW MUCH IS YOUR TIME WORTH?
The US Department of Labor has, held the opinion that “prep time” is work time. Most employees “clock in”
as soon as they arrive at work, but many are told that they are not to clock in “until the door opens” to the
public or until the crew leaves the yard. These directions clearly violate the federal Fair Labor Standards. The
legal guideline for determining whether someone should be compensated is that “any time an employee is
subject to the control of the employer” he must be paid
WHEN IS A “LAST CHANCE” REALLY A LAST CHANCE?
Last Chance Agreements are cropping up more and more often in public workplaces as a way to avoid costly
and time-consuming disciplinary hearings. An LCA generally warns an employee that he’s done something
seriously wrong, and that if it happens again, he won’t be given another chance.
The majority opinion among legal experts today that the LCA is a “binding modification to the collective
bargaining agreement” which enables the employer to avoid progressive discipline but doesn’t enable them
to avoid a “Skelly” hearing, and possibly a full arbitration or Board hearing. In other words, the threat that an
employee has waived his right to appeal if he signs a Last Chance Agreement may be nothing more than
that: a threat. . If you are innocent – and up for the fight – you should think twice before signing a Last
Chance Agreement.
CEA STAFF DEFEND EMPLOYEE RIGHTS AT PUBLIC EMPLOYMENT RELATIONS
BOARD
Since our clients have come under PERB’s jurisdiction, the attorneys at City Employees
Associates have file more than 20 “unfair practices” complaints (and won almost all of
them.) We thought it might be interesting for you to hear about some of these: PERB tells
Pasadena it Can’t Deny Pay Adjustments to Probationary Employees; Rainbow Water
District Can’t Deny Employees’ Right to Representation, Can’t Advise Employees that they are “at will,” Can’t
refuse to Deduct Dues, Can’t Terminate a Probationary Employee for “whistleblowing.”; City of Lomita Can’t
Refuse to Allow Representatives at an Investigative Interview; UNSUCCESSFUL CASES… Water District
Clerks Can Sue for Proper Job Class, but not 10 Years after the fact; Finally…Although clerical staff was
improperly classified as “confidential,” Association Should Have Objected Back When Misclassification
Occurred.
THE INTERACTIVE PROCESS: WHAT IS IT AND HOW DO EMPLOYEES BENEFIT FROM IT
This article discusses the legal obligation of the employer to enter into an interactive process with an
employee who has been injured on the job and it looks like there will be limitations on the employees ability
to perform the essential duties of the job. Specifically, It is the thorough analysis of an employee's medical
limitations in relation to his job, to determine how the job can be modified (or the employee reassigned) so he
can continue to work. Employees have the right to be represented in such meetings, and the burden is on
the employer to show that the employee can perform his – or any other available – job.
FREE SPEECH: WHERE DO WE DRAW THE LINE BETWEEN DISSENT AND INSUBORDINATION
This article discusses the extent to which an employer can direct or control your speech while on the
job. While the First Amendment guarantees you the right to free speech without fear of
retaliation from the government, it does not grant you license to talk about anything or anybody
while on the job without consequences from your employer.. This article provides several clear
examples of what is OK and protected speech and what is not… and recommends that you think
twice and speak once about complaints about co-workers or bosses. The existence of e-mail
makes this doubly important because there is now a written record of what you have said about
something.
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INTERNS, TRAINEES & CONSULTANTS…WHEN IS AN EMPLOYEE NOT REALLY AN EMPLOYEE?
Public employers often invent new categories of labor (intern, consultant, trainee) to get work done cheaper
and easier. These employees are hired outside of the local Personnel Rules and are under different wage-
and-benefits scales than the permanent employees. Often these “temporary” employees replace permanent
workers, which depresses the bargaining power of the permanent employees. What can you do? One, it may
be a violation of your MOU to assign your duties to another job class, outside of the bargaining unit, at which
point the association can file a grievance. Two, check to see if and when the Municipal Code or Civil Service
Rules have been re-written to allow for At-Wills and Consultants. Three: It may be a violation of state law for
a city not to acknowledge the permanent status of its employees (ex: Metropolitan Water District case).
WHAT CAN A PROSPECTIVE EMPLOYER ASK ABOUT YOUR MEDICAL HISTORY?
The answer lies in the 1990 Americans with Disabilities Act, which prohibits employers from discriminating
against employees on the basis of disability -- at all phases of the employment relationship: from job
interview to termination. Under the ADA employers may not ask you any disability-related questions or
require any medical information during the interview process. The employer CAN ask
questions to determine whether you can perform specific job functions, such as lifting a
certain amount of weight. Employers may not ask applicants about job-related injuries or
their or workers compensation history. Once an employer has made an actual job offer, it
may ask about your workers' compensation history, physical impairments, and general
physical and mental health. The job offer may be withdrawn on the basis of results of
disability-related questions or a medical examination – but this must be because of the
demands of the job, and the difficulty of “accommodating” the prospective employee’s
impairment.
THE MEYERS-MILIAS-BROWN ACT: CITY EMPLOYEES BARGAINING LAW
Although it seems as if we’ve been doing contract negotiations forever, the law establishing city employees’
right to organize is not even 40 years old. In 1968, with the passage of the Meyers-Milias-Brown Act,
employees at “local agencies” (cities, counties and special districts) in California gained the right to form
unions and “collectively bargain” a contract over “changes in wages, hours and terms of employment.”
Today there are enforceable standards for fair treatment for City employees, due process and respect for
their negotiated agreements. This doesn’t mean that employers never violate the contract or that employees
are never mistreated, but it does mean that there are, now, strong legal procedures in place for setting bad
situations straight. The road from weakness and chaos to relative stability is marked by dozens of decisions
which “fleshed out” the Meyers-Milias-Brown Act. These still control the process today, and this article
outlines a few, including: the adoption of “reasonable rules,” management rights vs. negotiable topics, cities
in financial crises, and other issues governed by the MMBA.
BACKGROUND CHECKS
Employers have the right to conduct background checks on their current or potential employees. This article
discusses the kind of information that is and is NOT included in these checks, the laws governing the
investigations, and the recourse the employee has if the City compiles incorrect information.
MY BOSS HARASSES ME! WHAT SHOULD I DO?
With so many personalities, cultures and communication styles, how do we get a handle on
what constitutes harassment in the workplace? More importantly, what can we do to respond to
it? Harassment can refer to an extraordinarily wide spectrum of offensive behavior – much of it
“in the eyes of the beholder.” By strict definition, the term refers to “behaviors that are found
threatening or disturbing, beyond those that are sanctioned by society.” Found by whom? If we
ask the Courts, those types of speech which are repetitive, persistent and untruthful could,
possibly, be considered harassment. In other words, the legal threshhold for “proving” harassment is very
high; in a country which allows free speech, one person’s claim of harassment could easily refer to another’s
normal behavior. Even in the realm of sexual harassment, only those behaviors which are repeated,
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persistent, unwanted advances, will meet the definition of harassment in the workplace. This article
discusses what to expect when filing a harassment claim, as well as discussing what constitutes
discrimination.
WHAT IS THE DIFFERENCE BETWEEN A PROBLEM AND A GRIEVANCE?
Contrary to popular opinion, “filing a grievance” is not a terrorist act. Your Association’s grievance procedure
is nothing more than an in-house mechanism for asking the City to fix a problem. It can be a problem with
your pay, your work hours, your job assignment, your equipment or furniture, your interaction with your
supervisor, etc. Legally-speaking, not all “problems” are, grievable matters; but, at the informal stage, the
distinction doesn’t matter much. A grievance is simply a request that someone in authority give some
attention to your legitimate, work-related problem. This article discusses the steps of the grievance process
including early communication, time limits, going formal and possible outcomes.
FAMILY MEDICAL LEAVE ACT- A DECADE LATER
When the FMLA was passed in 1994, there were threats that it would cause widespread disruption and/or
bankruptcies among small employers who could not afford to “float” an employee for months off the job. In
the years since ’94, none of the dire warnings have come true, but millions of people have enjoyed the
“luxury” of taking care of themselves, or their seriously ill spouses and children without the double fear of
losing their jobs. This article reviews the rights you have under the FMLA as well as the proper procedure for
filing paperwork and returning to your job.
WHAT IS ARBITRATION?
Arbitration is a formal hearing procedure, much quicker and less expensive than court, but with
the agreed-upon authority for resolving a wide range of “civil” disputes. Arbitration is generally,
but not always, the final step in an association’s grievance procedure. There are two basic kinds
of cases that may, if your MOU provides for this, be heard by an arbitrator: grievances and
disciplinary appeals. This article discusses the two types of arbitration cases, as well as PERB’s
role in the process.
YOUR RIGHT TO A LIFE: WHEN MUST YOUR EMPLOYER ACCOMMODATE YOUR PERSONAL
NEEDS?
This article summarizes the laws that protect employees under a variety of situations, including:
accommodation for illiteracy, privacy of police records, alcohol and drug rehabilitation, garnishment of wages
for child or spousal support, harassment and discrimination, military duty, jurors and witnesses, retaliation for
filing a workers comp claim or calling CalOSHA, off-duty conduct, elections officer,
political activity, polygraph exams, surveillance, whistleblowing, attending children’s
school activities, and pregnancy, disability and family illness.
CAN THEY JUST CHANGE MY JOB?
This article tackles the difficult “gray zone” between the Association’s right to meet and
confer over changes in “wages, hours or conditions of employment” and Management’s
right to manage. Can they just change your job? Absolutely- but usually not without
extending the opportunity to you. Even in situations where the State mandates new
certifications, the Association has the right to negotiate how these new mandates are
implemented (e.g. which members must maintain them, monetary compensation, etc). Not all changes are
significant enough to merit the meet and confer process, and the courts have decided these largely on a
case by case basis. In general, it is safe to say that if you are asked to perform duties that either 1) are not
on your job description, 2) are clearly enunciated on another position’s job description, or 3) clearly differ
from the work you believe you were hired to perform, you are experiencing a significant change.
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ARE PUBLIC EMPLOYEES GOING BACKWARDS IN BENEFITS?
Though public employees continue to get raises, it has become harder and harder to make ends meet as
their medical costs exponentially increase. A new philosophy in Human Resource Departments touts “shared
benefits,” which purportedly makes employees share responsibility for their health by sharing a cost that
used to be free. Actually, benefits for public employees were never really free; they were part of an unspoken
“deal:” trading lower wages than the private sector for better benefits, job security and a retirement plan.
Today, however, the “deal” is being thrown out, and you are being invited to “share” in your own costs. This
article explores some possible solutions to the health care crisis and its impact on cities and their employees.
WHEN DO I HAVE THE RIGHT TO A REPRESENTATIVE?
This brief article goes over your “Weingarten Right” to have a representative present during meetings with
Management.
WHAT ARE MY “SKELLY” RIGHTS?
In the late ‘70’s, the California Supreme Court established your “Skelly Rights.” This means that public
employees must be provided a “pre-disciplinary hearing” with management before they may be suspended
(for five days or more,) demoted or terminated. This article details your rights under Skelly and how the
disciplinary appeals process works in public agencies.
WHO QUALIFIES FOR OVERTIME PAY AND WHY?
What does the federal overtime law (the FLSA) really say about the distinction between exempt and non-
exempt employees? This article describes the criteria by which an employee’s position may be deemed
“exempt.” There are four basic classes of exemptions: Administrative, Executive, Professional and
Computer-related. The crucial distinguishing factor, though, between those employees who qualify for
overtime and those who don’t is the exercise of independent judgment and discretion more than50% of the
time. You can contact an Association Rep or the Department of Labor if you feel your job has been
misclassified; you may be due a substantial amount of back pay.
G.A.S.B.
This law stands for the Governmental Accounting Standards Board. In 2001, the “creative” accounting
methods of ENRON, their subsequent implosions and criminal indictments caused GASB to investigate how
such a colossal fraud could have been perpetrated on the public -- and the employees -- for so long. As a
result of this investigation, new guidelines were issued in 2004, called Statement 45. Statement 45 changes
the method in which cities report retiree benefits. Here is a brief explanation of the impact of those changes
and how they will affect you.
NEPOTISM
Nepotism is defined as “the favoring of relatives and friends because of their relationship to someone in
power, rather than because of their abilities.” There are no laws governing personal relationships in the
workplace. However, most employers have nepotism policies, which are negotiable. Although often ignored,
these policies are enforceable. If people in a relationship work together in a capacity where one might be
able to “bestow benefit” upon the other, the employer can absolutely require them to make a choice: either
discontinue the personal relationship OR expect an involuntary end to the “reporting relationship” via
termination or transfer. If an employer wants to create, or change it’s nepotism policy it must
“extend the opportunity to meet and confer” to any of the unions who’s members it may
affect.
PERS SERVIVOR BENEFITS
When an employee dies there are many factors that determine what happens to the
retirement monies that have accrued. Your employer can tell you which PERS option (if any)
your Association is currently contracted for. Upgrades are negotiable, for information about
how survivor’s benefit may work for you; it’s best to call PERS in Sacramento Directly.
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TIME OFF
There are many leave laws that apply to public employees in California. Family Medical Leave Act and the
California Family Rights Act. Most people have familiarity with the FMLA (1994) and the CFRA (1991.) These
laws require employers with 50 or more employees to allow an employee who has been there for at least
1250 hours in the previous year time off the job (up to 12 weeks) to care for ones own, or an immediate
family member's, serious illness. These laws have radically altered practices in that employees no longer
have to choose between their children's health and their jobs. It also gives people with chronic conditions or
those recuperating from injury or illness a reasonable amount breathing space before their jobs are in
jeopardy.
PREGNANCY LEAVE
There are four applicable laws regarding maternal leave, one federal and three state laws:
The federal Family Medical Leave Act provides eligible employees with up to 12 weeks of unpaid leave for a
"serious health condition" related to pregnancy. This law is largely preempted however, by the more liberal
Pregnancy Disability Law, which is part of the California Fair Employment and Housing Act. This law provides
up to four months leave if an employee is unable to work because of a pregnancy. The right to bond with
your infant is covered by the California Family Rights Act, which provides for up to twelve weeks for this
purpose. In other words, it is possible to take a maximum, for maternity leave and childcare in California, of
seven months leave. This length of time requires some support from the doctor, but it is possible. Read the
full article for all of the details.
OATH OF OFFICE
When you are hired by a public agency, one of the many documents you may be told to sign
is an "Oath of Office" agreement. The state of the law today is that you CAN be compelled
to cooperate. So what exactly is an oath of office and how does it apply to you? It's a
document that says two things; The first paragraph of the state's loyalty oath affirms that you
will "support and defend the Constitutions of the United States and the State of California
against all enemies, both foreign and domestic." The second section states that you are
not a member of any organization advocating the overthrow of the government by force,
violence or other unlawful means. Agencies differ in whether or not they will require you to
sign a loyalty oath; but they absolutely may require you to sign, as a condition of employment, however there
are some religious exceptions.
GOLDEN HANDSHAKE
Several years ago, the state legislature approved a PERS "Golden Handshake," which MAY BE offered by
public employers as an incentive for early retirement. The benefit consists of two years’ service credit, which
can significantly enhance the amount of a retirement payment for an employee who’s thinking about
“stepping down.” The benefit isn’t free (it has an actuarial cost for implementation) but it is intended to
provide a mechanism for financially troubled agencies to downsize by eliminating
positions on a positive note, rather than through layoffs.
WHISTLEBLOWERS
“Whistleblowers,” people who report suspected illegal activity, are “protected”
against retaliation by both state and federal law. The reason that there are such
laws is that retaliation is common. The decision on whether or not to "blow the
whistle" should not be made lightly. If you're not sure what is legal or illegal the first thing to
do is call your union representative.
WHISTLEBLOWER REWARD FROM IRS
Did you know that the IRS now has a Whistleblower Reward Program? It has become increasingly popular as
employees in large corporations have seen their own incomes and benefits decline, while their companies rake
in profits.
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AT WILL EMPLOYMENT – WHAT DOES IT REALLY MEAN?
Temporary employees are not only cheaper than full-timers, they are also much easier to motivate. A part-
timer is also not going to file a grievance as frequently as a full-timer would. But, no matter how they got
there, “at will” employees have the direct effect of depressing the bargaining power and job security of all
permanent employees. After all, when you work side by side with someone who is doing the same job
without job security, you don't have a lot of leverage to improve your own situation! What follows, therefore,
is a summary of strategies to enable city employees unions to stop the replacement of their jobs with part-
time and at will labor.
C.O.B.R.A.
C.O.B.R.A. is an acronym for the Consolidated Omnibus Budget Reconciliation Act, which was enacted in
1986. Its primary purpose was to require employers to continue to make health insurance available,
temporarily, to people who are leaving job, but do not yet have another job, or another source of insurance.
It also requires that the employer continue to provide the insurance at a rate that is the same as it was when
the former employee was working. As the cost of medical insurance continues to skyrocket, as companies
continue to consolidate and layoff, and as fewer and fewer employers are willing to pay the full price of health
care – especially for retirees, COBRA has been a godsend for larger and larger segments of the American
population.
PORTABILITY HEALTH CARE LAW
The Health Insurance Portability and Accountability Act of 1996 made sweeping changes to the health
insurance industry. The new law says that, if a worker was covered under a plan at the prior job, then the
new insurance must cover the condition. Insurance Company Availability - Some workers for small
employers have been denied insurance altogether due to a medical condition. Insurance companies will no
longer be able to do this. If the insurance company is in the market, it must take all applications. Guaranteed
Renewability - In the past, some insurers have withdrawn their coverage because of bad experience with an
employer or an individual. Under this law, the insurer must permit employers and individual employees to
renew, so long as they have paid their premiums.
SEXUAL HARASSMENT
Sexual harassment falls under federal and state laws that prohibit discrimination on the basis of an
individual’s membership in a “protected” group or class of people. Protected classes involve age, disability,
religion, race, national origin and gender. Employers are prohibited from discriminating against an individual
based on that individual’s gender—that is sex discrimination. Sexual harassment is a type of sex
discrimination and falls into one of two categories; unwelcome verbal or physical conduct,
or. Quid-Pro Quo sexual harassment.
WHO’S GOT THE POWER?
It seems that some public employees (public safety and top managers, for instance)
are treated a lot more “equally” than others! These employees have an easier time
feeding, housing and educating their families because their salaries and benefits are
not only substantial, but substantially disproportional to their numbers in the workplace.
Thus, in some jurisdictions a Police Officer or Fire Fighter will cost nearly three times as
much as a Maintenance Worker or Accounting Clerk! So, in those cities, it is only after
huge chunks of the budget are set aside for Management and Safety that the remaining “general”
employees are left to squabble over the remainder.
DISCRIMINATION LAWS
In the employment arena, laws now prohibit “discriminatory practices” based on race, sex, religion, national
origin, physical disability, age and, most recently, sexual orientation. People who meet these criteria may be
considered members of “protected classes;” it is illegal to treat people differently on the job because they are
members of these classes. The courts have found that “discriminatory practices” may occur in any aspect of
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employment: hiring, promotion, job assignment, termination, or compensation.
Harassment may be an example of discrimination, but not all harassment is evidence
of discrimination.
PERS FRAUD LAW
Disability retirements can be lucrative, and there is currently no penalty for the filing of a false
PERS disability claim. For safety employees a disability retirement is worth far more than a service
retirement, because disability payments are not subject to income taxes. This year, however, CalPERS is
fighting back to protect its members’ assets. It is sponsoring anti-fraud legislation that would make it a crime
to provide false information with the intent to enhance ones retirement benefit. This bill is similar to current
laws regarding workers compensation fraud, and conviction of fraud could be punished by up to a year in
county jail and a fine, in addition to paying back the illegally obtained benefit.
MOONLIGHTING
It’s not unusual for employees to have second jobs or “side businesses.” This isn’t illegal, of course, but for
public employees it can be problematic. The question about whether the City has the right to ask about, or
possibly interfere with, your other job comes to up regularly, and despite the fact that, yes, this is America
and yes, you do have a constitutional right to privacy, the overwhelming answer is Yes: the City does have
the right to information about your outside employment.
WHAT IS A “CONFIDENTIAL” EMPLOYEE?
A “Confidential Employee,” under Government Code 3513 (the state labor law) is “any employee who is
required to develop or present management positions with respect to employer-employee relations or whose
duties normally require access to confidential information contributing significantly to the development of
management’s bargaining positions
What this means is that confidential employees are the staff who either sit in with Management and the City
Council or process paperwork for them, relating to the City’s contract bargaining positions.
DEAF RIGHTS
A significant portion of our population is either born with, or develops, hearing
impairments over the course of their work lives. Although illegal, discrimination against
people with hearing problems is common. This can be a potential violation to the
Americans with Disabilities Act (ADA), but deaf people, like most are reluctant to press
charges. With little expense, hearing-impaired people can perform almost any job that
an unimpaired person can perform.
WHY YOU PROBABLY CAN’T GET YOUR BOSS FIRED…
The vast majority of supervisors and managers achieve their positions because they
work hard, learn their fields, and are fair and reasonable in their dealing with others. But
every once in a while there’s a bad apple. Their subordinates vary widely in the response to
mistreatment. You DO have the right to file a grievance over mistreatment on the job. Legally-speaking the
grievance procedure is the enforcement mechanism of your Association’s MOU. Most Contracts include
language about employees’ right “to a safe, healthy and harmonious work environment,” and most cities also
have published anti-harassment policies, which tell you how to file a complaint, with or without the assistance
of your union.
WHAT MUST YOU EMPLOYER CONTRIBUTE TOWARDS BENEFITS?
There are a few possible pension plans designed to help save for retirement. Most Cities and Water Districts
participate in the California Public Employment Retirement System, or CalPERS. However, there are also
county retirement systems and privately-funded retirement programs. Payment into your pension is provided
by both employer and employee. As an employee your rate is a fixed percentage (6%-8%) of what you
make, while the employer’s rate is “experience rated.” This means that based on the plan’s usage and
effectiveness the contribution amount is allowed to vary in an attempt to fully cover future predicted costs.
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Many cities and districts have agreed to pay for both of these contributions. For healthcare PERS health
requires contributions of $97.00 starting in 2008 and will increase with each year. The City is not required to
provide health care, but such opportunities are often factors in contract negotiations.
MUCH ADO ABOUT GASB
The high cost of retirement benefits have been melodramatically labeled a “ticking time bomb of financial
collapse.” The State General Accounting Standards Board with “GASB 45” states that public agencies in
California must calculate the amount of their future benefit liabilities and make sure they have methods for
being able to pay for these. Despite a “pay as you go” philosophy, CalPERS is 90% pre-funded and thrives
on the idea that a large sum of money reinvested in itself will provide self-sustained income for retirement
benefits. Public employees must battle public discontent over the cost of these benefits. However,
Constitutionally, the Contracts Clause protects benefits considered part of “contemplated compensation.” So
deferred payment is provided for extended quality service in what is called “vesting.” Contracts are often
renegotiated, but you can not lose your benefits. The contract you enter into is honored at retirement.
CALL OUT
If you are called by work after leaving for the day, or are required to return to work, or a
work related project you are eligible for the Call-out policy. To receive call-out policy
pay benefits one must meet two requirements: 1)Eligibility to receive overtime, 2) Called
to a job location after leaving for home. This is not paid travel time, but a policy which
can provide two to three hours of overtime pay for work required that may interfere with
your home or social life as you’ve constructed it around your schedule. The idea behind the
Call-out Policy is that employees should be rewarded for enduring this kind of inconvenience. Call-out
policies are negotiable and if not available, the Fair Labor Standards Act applies.
ERGONOMIC REQUIREMENTS
Ergonomics is the science of determining the best available arrangement of employees’ work sites and work
tools to minimize skeletal-muscular injuries. In response to this epidemic, OSHA (the Occupational Safety
and Health Administration) published extensive guidelines for ergonomically safe workplaces. They are
outlined in this article.
WEINGARTEN
Your right to union representation at investigatory interviews was established by the U.S. Supreme Court as
the result of a 1975 case entitled NLRB vs. Weingarten. Employees have Weingarten rights ONLY during
investigatory interviews for information gathering. If the employee has a reasonable belief that discipline
could result from what he might say, he has the right to union representation. You and your representative
have the right to know the subject of the meeting in advance. The Supreme Court has acknowledged that a
union representative may assist and counsel his client during a questioning meeting. Today, employees who
work in non-unionized workplaces are not entitled to have assistance with them in an
interview with their employer -- even if the affected employee has reason to expect discipline.
MINIMUM WAGE
The minimum wage is typically “indexed” to inflation. When the minimum wage goes up there
is proven evidence of a “spillover effect” on most hourly wage jobs. There are also
correlations between pay increases and stimulating the economy. Contrary to belief that an
increase in wage causes job loss, the Fiscal Policy Institute found better performance after
the hike. A living wage versus minimum wage: legislation would determine a new “minimum” given the
standard demands of cost of living and would put California’s pay rate at $11.50 an hour.
YOUR RIGHT TO STRIKE
When Management gives its “last and final offer,” the Association has the choice to strike. Usually unpaid
while on strike many employees fear losing their jobs and medical and retirement plans. Also options are
voicing concern to the public, City Council, or top management. Also impasse can be declared and a
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mediator brought in. If “good faith bargaining” is violated charges can go to PERB. Public employees have
the right to strike except in two instances: 1) when their union or Association has agreed to a “no strike”
clause in the contract (the MOU), or 2) if the employees’ perform public safety duties, such as police officers
and firefighters.
DISPUTE RESOLUTION
Your “rights” as an employee are stated both in your “Memorandum of Understanding” and in state and
federal law. If you feel these rights are violated the legal mechanism at your disposal is the grievance
process. First, informal notification to Management to spark discussion, but if this doesn’t provide a
resolution a written grievance (with the help of your association) creates discussion under time constraints
and will permit appeals to a higher authority should the outcome not be satisfactory. The State Agency
PERB (Public Employees Relations Board) provides a free service to analyze claims and call hearings with
results typically within months. Management prefers to solve problems before they escalate and few claims
make it to PERB.
UNEMPLOYMENT INSURANCE
Established under Federal law, unemployment insurance provides a maximum of $450 per week and can
provide benefits to unemployed workers. One is eligible for UI if he or she is was terminated unjustly or
forced to quit due to intolerable conditions. The Employment Development Department (EDD) will conduct
interviews to determine eligibility based on this subjective criteria. Things like location change or change of
job duties justify “intolerable” conditions however. UI benefits are issued every two weeks and must be
reported on federal, but not state income tax. The unemployed worker must show an active attempt to look
for work in a written claim to the EDD every two weeks. If circumstances cause you to be unemployed and
you feel unjustly denied these benefits you should follow through with an appeal. Your association can help
you.
PERS INVESTMENTS
The California Public Employees Retirement System held assets of more than
$247 billion in 2007. This money provides for the secure retirements of about 1.5
million current employees. However, this money is not only from employee contributions.
Last year 76.8% of PERS expenditures came from market earnings. With PERS as one of the State’s
largest investors the economy is stimulated from an influx of money in equities and real estate. A board of
13 (six elected by PERS members i.e. city employees) overlooks these investments. The PERS Board has
as number one obligation to protect members’ funds. Even if investments turn sour PERS must pay
employees based on their agreed retirement plans. This amount is concrete and doesn’t change with the
market.
CITY’S RIGHT TO KNOW YOUR MEDICAL CONDITION
Under both the state and federal Family Medical Leave Acts, your employer has the right to know that you
may have a serious medical condition, which may require that you take time off the job. The time missed
must be estimated by your doctor, but you are not required to provide any additional information. The City
may not contact your doctor or send you to their own. If asked to sign an authorization form to grant access
to medical records, you have the right to deny such action without retaliation. However, upon return to work
from illness or injury a clearance form must be provided by your doctor that includes any provisions your
physical/mental state may require.
VACATION BENEFITS
Vacation benefits are voluntary in California. If employers do provide vacation pay this time is considered
“earned wages.” When in a union the conditions under which vacation benefits may be used, saved or
converted to money, are negotiable. Under the law, vacation time is earned proportionately as labor is
rendered. Vacation time must be paid at an employees current wage rate.
COST OF LIVING ADJUSTMENTS
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“Cost-of-living adjustments” are slipping behind the actual cost of living, while at the same time, public
employees are being asked to absorb expenses that they never had to before. This financial squeeze is
present in health care costs, affordability of transportation, housing and education. Employees must make
sure they’re getting their just due.
FAMILY MEDCIAL LEAVE FOR MILITARY FAMILIES
The FMLA for military families has been expanded: 1) Active Duty Leave: Employees can take up to 12
weeks off because of a “qualifying exigency” (i.e. emergency or need) if an immediate family member
is called to active duty and 2) Injured Service Member Leave: Employees can take up to 26
weeks off in a single year to care for a family member in the Armed Forces who is ill or was
injured in the course of duty.
THE DIFFERENCE BETWEEN LAW AND JUSTICE IN THE PUBLIC WORKPLACE
Beyond basic laws, almost all “terms and conditions of employment” are the product of
negotiations. Most terms and conditions of employment are the subject of bargaining. Almost all
public employers have come to offer benefits, because they need to recruit and retain good
employees, but (as we’ve seen a LOT in recent years) employers can also attempt to take them
away. Your Association’s key function is to “make a deal” with Management for the best possible
wages, benefits and working conditions, and then make sure the agreement is written down. This
Contract (or MOU) then takes on the force of law – at least at your workplace.
A PRIMER IN “PAST PRACTICE”
The courts define a Past Practice as “a practice that exists for a reasonably long time, occurs repeatedly,
and is known and accepted by both the association and management.” Unions invoke the “past practice”
argument when Management wants to change something – and there are no written rules to stop them. Past
practices ARE enforceable, but only when: 1) The Practice must be identifiable AND agreed-upon. Absent
clarity (and often even with it) management may argue either that they are not changing anything OR that
that they are exercising a “Management Right” to make this “operational change;” 2) It IS a Management
Right to make operational changes, but Past Practices trump Management Rights – as long as they are
agreed-upon practices. The phrase “operational changes” is highly subject to interpretation. If it’s a change in
“wages, hours or conditions of employment,” it’s negotiable (and shouldn’t be changed without bargaining.)
3) Past Practices don’t mean a thing if they are contradicted by the MOU (or any other local rule.) In this
case, the City MAY make changes in line with the language in the Contract, but it can’t make OTHER
changes.
WHAT IF I’M ACCUSED OF DOING SOMETHING ILLEGAL?
People who work for public agencies do work with the public. On very rare
occasions, there are real sparks. Here are some do’s and don’ts when accused
of doing something illegal. The most important thing is not to panic. Neither your
job nor your freedom can be taken from you without a full hearing. Even when
accusations are completely false, you are likely to be taken off the job, brought
in for questioning, and possibly threatened with termination or incarceration.
When you are called in for questioning you have the right to bring a
representative, and you have the right to know whether you will be questioned
about any matter that could lead to prosecution. If you end up being arrested, the
police will have to provide you with your “Miranda Rights” – and, of course, you’ll
have a right to an attorney. If you can’t afford an attorney, the Court will provide
you with one. You cannot be terminated merely for being investigated or even arrested by the police. You
really ARE “innocent until proven guilty.” If the City begins disciplinary proceedings and you believe you are
innocent, or not guilty of such a severe infraction to merit the discipline, call your union rep.
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WORKPLACE PRIVACY
Your “right to privacy” in your private life, does not, for the most part, carry over to the
workplace – especially a public work place. In general when you’re at the employer’s
worksite or on “on the employer’s dime,” the protection against being bothered,
watched, listened to or even searched, is a myth. You do have protections against
unreasonable searches of your private effects, personal phone calls, medical records
and personnel records, etc. This article summarizes some of your most important
workplace privacy rights.
WHAT IS “WIN-WIN” BARGAINING?
The traditional view of negotiations between labor and management is adversarial:
the two sides sit on opposite sides of a table and try to haggle, cajole or threaten the other side into giving in
to their demands. In recent years, however, new methods of negotiations have been cropping up, toward the
goal of taking blood and heat out of the process. The underlying premise is that both the people who run the
city and the people who work for it have significant mutual interests. This article discusses the nuts and
bolts, goals and objectives of what is also known as “interest based bargaining.”
YOUR RETIREMENT BENEFICIARY: WHO GETS “UNDISTRIBUTED CONTRIBUTIONS” IN YOUR
ACCOUNT AFTER YOUR DEATH?
If you are public employee in the PERS system, contributions are made to your retirement account on behalf
of both the employer and the employee… When you retire, you will be asked to choose a beneficiary who will
receive your one-time death benefit. Here is a summary of how it works.
WHEN MUST THE CITY NEGOTIATE BEFORE MAKING A CHANGE IN THE WORKPLACE?
Most people agree that your union’s most important function is to negotiate your Contract.
By law, that Contract (also known as a Memorandum of Understanding) can encompass
any aspect of “wages, hours and terms and conditions of employment” that the parties
can agree upon. The formal bargaining process takes place every few years. But what
about changes the City wants to make to your job in the MIDDLE of a contract? A
new job spec, for example? Or a drug-testing program? Or dress code or e-mail
policy? What if the City wants you to attend training classes or get a new certificate?
This article explains what steps the employer must take to make changes in
your job or workplace “away from the table” It also explains what steps the Association
may take to block unwanted mid-term “modifications of terms and conditions.”
DISABILITY INSURANCE: A PRIMER
Everyone knows that if you’re hurt on the job, you are covered by workers compensation. But what if you fall
off a ladder at home, or are in a car accident on the way to work? What if you have a heart attack and need
to be hospitalized? Your loss of income will not be covered unless you have disability insurance – and there
is no obligation for public employers in California to provide disability insurance. This articles covers State
Disability Insurance, Private Disability Plans, and enforcement of those plans.
PERS VISION PLAN
Assembly Bill 1997, currently pending a second hearing in the California legislature, would establish a self-
funded vision care program for state, county, city and utility district employees, who retire under CalPERS.
The plan specifically authorizes PERS to contract with one or more vision care plans, then to set up a
payment program for retirees who wish to purchase this insurance. The payments will be deducted from
retirees’ retirement checks.
VARICOSE VEINS MAY BE AN INDUSTRIAL INJURY
Varicose veins are an under-reported industrial injury, and may require surgery or other medical attention. In
some cases, the law may recognize them as a permanent medical impairment, triggering your need for
“accommodation” on the job. If your job entails hours of standing or walking, your varicose veins are likely
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to be considered a work-related injury. You DO have the right to require your employer to
take care of this condition and to cover your loss of income if you must take time off for
treatment.
WHAT DOES PERS DO WITH YOUR MONEY?
The California Public Employees Retirement System (CalPERS), which derives from
employer and employee contributions, is earmarked to provide for the secure retirements
of about 1.5 million current employees and more than 400,000 current retirees and beneficiaries. Most
people don’t know that the vast majority of money actually paid out to retirees comes from PERS’
investments. This article addresses: (1) How CalPERS invests its money profitably. (2) Who decides how
your money will be spent? (3) How safe are your retirement dollars? (4) Local control over benefit level.
SICK LEAVE: IS IT A “RIGHT” OR A “PRIVILEGE?”
This article covers sick leave benefits, how most public employees obtain it, the difference between vacation
time and sick leave, and some of the myths surrounding sick leave.
WHAT IS SEXUAL HARASSMENT?
This article gives updated information on the definition of “Sexual Harassment”, different forms of
harassment, and defines the “Reasonable Person” standard. The article also lists 7 components the Courts
have listed as a sexually harassing environment as well as the steps to take if you believe you are a victim of
sexual harassment.
THE DIFFERENCE BETWEEN AN ASSOCIATION MEMBER
AND A FEE PAYER UNDER THE AGENCY SHOP LAW?
The vast majority of public employees unions in California have Agency Shops, and, in
most cities and districts, everyone in the bargaining unit chooses to be a member. This
article explains the difference between members, fee payers, and religious objectors and
also explains the rights and benefits that are reserved for members only.
ARE PUBLIC EMPLOYEES SECURE?
Does having a union mean that public employees’ jobs ARE MORE SECURE? Without a union, you might
have very limited capacity to defend your job at all. This article covers the right to due process and the
factors that secure your retirement and medical benefits.
NO RETALIATION FOR EXERCISING YOUR “FAMILY RESPONSIBILITY RIGHTS”
With the passage of the federal Family Medical Leave Act, employees gained the right to use up to 12 weeks
of time without threat to their job or their benefits. Retaliation can take a variety of forms and this article
covers this subtle form of discrimination.
IS YOUR RETIREMENT MONEY SAFE?
This article discusses PERS investments, the economy, and employee/employer contributions.
DOES THE CITY HAVE THE RIGHT TO TELL YOU WHAT TO WEAR?
Does a public agency have the right to interfere with your right to “be yourself” on the job? Do their rules
about dress or hair or tattoos violate your First Amendment right of self-expression? Can dress codes be a
form of discrimination? And does your union have any say in this matter, anyway?
NO WORKPLACE RETALIATION FOR FILING BANKRUPTCY
It is illegal for your employer to discriminate against you for filing for bankruptcy protection or to discriminate
against you for associating with someone who has filed for bankruptcy. Government lenders cannot withhold
student loans because of a bankruptcy either.
YOUR RIGHT TO PLAY POLITICS
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California is one of the few states that require employers to allow employees time off to vote and which
prevents them from disciplining employees for holding political positions. On the other hand, most
government agencies are strict in prohibiting employees’ “partisanship” on the job. This doesn’t mean that
they aren’t allowed to have opinions, or even to share those opinions with one another. It means that they
can be disciplined for using any of their employer’s resources, including time, to carry out political activities.
POST-TRAUMATIC STRESS SYNDROME: NOW A RECOGNIZED DISABILITY
PTSD is now recognized as a disability, not simply a temporary state of mind. It often requires medical
attention, and is treated, legally, the same as other disabilities under the Americans with Disabilities Act.
CIVIL RIGHTS, A HISTORY
Today, as racial and ethnic discrimination becomes less overt, many more claims are filed over gender,
disability, and age discrimination. This article gives a brief history of civil rights progression since the sixties.
IRS 125 FlexPlan
Also known as a Flexible Benefits Plan, IRS 125 plans enable you to pay certain medical and dependent-
care costs on a pre-tax basis. The money spent is never taxed, so (based on your tax bracket) you can save
15% to 28%. The IRS allows un-taxed income to be spent on a wide range of medical costs that may not
be paid by your employer: monthly insurance premiums, prescriptions, co-pays, medical equipment or
prostheses, eye exams, glasses, laser eye surgery, even medically necessary cosmetic surgery. In the
category of dependent-care, you may use pre-tax dollars to pay for child care, a nanny in your home, even
home care for an ailing parent.
MUST I RESPOND TO A SUBPOENA?
A subpoena is not like a party invitation to which you can graciously reply that you cannot
attend. Generally, public agencies pay their employees when they are subpoenaing you, but
not when you’ve been called by an outside source. This articles explains the process.
TEXT MESSAGE PRIVACY
Employees often have text-messaging capacity on devices provided by their workplace, and,
they often use the devices to send personal messages. The courts have held that state and
federal constitutional privacy rights were violated when personal text messages were reviewed.
This practice, the Court said, superseded the published Internet policy! The general rule is that IF the city
has a written policy governing e-mail or phones, your privacy rights – even in text messaging -- may be
minimal.
HOW LOW CAN YOU GO? HOW MUCH SHOULD PUBLIC EMPLOYEES “CONCEDE” DURING BAD
FINANCIAL TIMES?
You have some STRATEGIC CHOICES… Even if you are in the middle of an MOU, it is likely that the City is
going to ask your Association for some economic concessions. (In fact, it’s also possible that they will try to
take a few “concessions” without asking!) This article also addresses what a reasonable bottom line is. To
start with, you need to know what “concessions” your employer can simply impose on you -- and which
require your agreement.) In short, the City does not have the right to ignore your Union Contract – even in
the face of fiscal emergency.
DEFERRED COMPENSATION: CAN YOU ACCESS YOUR “RAINY DAY MONEY” NOW?
Your deferred comp account is intended to become available to you (or your family) at retirement,
termination, disability, or death. As more and more current employees are struggling with high bills and
mortgages, however, questions about your right to access this money NOW have been coming up often.
The answer is that deferred comp accounts may be cracked open while you are still working under
“conditions of severe hardship created by an unforeseeable emergency.” The IRS establishes no formal
definition of “unforeseeable emergency.” Each case depends on the particular facts and circumstances.
But, as a rule of thumb, if your need for cash can be relieved with reimbursement from insurance, liquidation
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of your assets, or discontinuing deferrals under the plan, then it will not qualify as an unforeseeable
emergency.
CalPERS Loses 25% of “Paper Assets” (BUT YOUR RETIREMENT MONEY IS SAFE)
For many years, the vast majority of retirees’ “pay outs” from PERS have actually come from its stock market
earnings on your employer’s contributions, rather than from those accumulated contributions themselves.
What happens when the stock market does really, really poorly: Earnings drop and the value of the funds
dwindle. This has no effect on the amount of benefit you’ll receive when you retire. PERS is a “defined
benefit plan,” which means that it MUST pay you according to the formula (2.0%, 2.5%, 2.7% at 55 or 3% at
60) which your Association has negotiated. But it DOES mean that your employer’s contribution rate goes
up. How does it affect your job? There is NO direct effect. Your retirement money is secure and the
amount of your future retirement checks is defined by law.
THE STATE OF THE LAW ON FURLOUGHS
How does the imposition of furloughs on state employees affect you? This article
answers questions about the how furloughs work and some topics to consider
before agreeing to them.
MONEY-SAVING IDEAS
This article is in-depth look at Why You Should Probably Talk to the City about Cost Savings Ideas (Instead
of Talking about Layoffs and “Takeaways”)
OBAMA EXEC ORDERS PRESIDENT SIGNS EXECUTIVE ORDERS ON LABOR ISSUES
The President signed a series of executive orders that he said will "level the playing field for
workers and the unions that represent their interests…” This article goes into more detail
about those orders.
MEDICAL MARIJUANA
Medical marijuana has now been legal long enough in California for it to make its way
into a myriad of Court decisions. Some important information for you if you have been
prescribed marijuana for a medical condition.
CAN “THE TAXPAYERS” OVERRIDE YOUR MOU?
Legally-speaking this complex issue focuses on the interplay of state labor law with the laws passed in your
own community.
VOTER INITIATIVES ON RETIREMENT BENEFITS: HOW SERIOUS IS THE THREAT?
In June 2011, statewide voter initiatives are circulating which, if implemented, could change the shape of
retirement benefits for all public employees. The initiatives could; prohibit “full retirement” for current
employees until age 62, prevent future employees from ever earning more than 60% of the average of their
highest three years’ compensation, deny retirement benefits entirely for future part-time employees, require
future employees to make retirement contributions at least equal to their employer’s contribution and prevent
any public agency from providing retroactive pension increases “under any plan…”
ALCOHOLISM: IS IT REALLY A “WORKPLACE DISABILITY?”
It is true that the Americans with Disabilities Act (ADA) identifies alcoholism as a disability, requiring
“workplace accommodation.” It’s NOT true, though, that employees are permitted to be under the influence
on the job.
CREEPING SOCIALISM?
There has been much debate lately about “how much is too much” to ask the wealthiest Americans to pay in
income tax. Congress will soon be voting on whether to raise the maximum tax, for the top 5% of earners,
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from its current 28% to 50%. Challengers call this “creeping socialism.” We thought the subject justified
some research and a little historical perspective.
STIMULUS & THE CITIES
President Barack Obama’s American Recovery and Reinvestment Act (ARRA), “The
Stimulus Act” should hold special interest for city and utility district employees because the
majority of the $787 billion will pass through the hands of state and local government. In
fact, one of the stated purposes of the Act is to help other governmental agencies, so they
may “avoid reductions in essential services and counterproductive state and local tax
increases.”
DEPARTMENT OF LABOR PLUGS “LOOPHOLES” IN FAMILY LEAVE ACT
The Family Medical Leave Act, passed in 1994, is essentially a “job protection law.” You may use
FMLA time intermittently: days or even weeks at a time. Employers can require the employee to use
time that is on the books first, even if the employee wants to go on unpaid status initially. And, yes,
employers can now require employees to provide medical “proof” that they (or their family member)
have a serious condition. If an employee doesn’t want to provide medical information, employers now have
the right to deny the FMLA claim.
PUBLIC EMPLOYEES BENEFITS “OUTRAGEOUS” & STILL CLIMBING ???
This is the first article in a 2-part series. Last month the Orange County Register printed another editorial
insisting that public employees’ wages and benefits are “climbing shamefully,” while the rest of the economy
slides downward. We ask: Is it true that your wage and benefits package “continues to expand” during this
recession? Do you feel that your job and benefits are secure? Is your retirement package excessively
generous at the expense of the public? The public employees answer this question.
THIS TIME IT’S REAL: CITIES COME AFTER UNIONS FOR “TAKEAWAYS”
If your Association is in the midst of bargaining, a looming budget deficit becomes the biggest “player” in the
room. If you are in the middle of a contract, Management CAN’T cut wages or benefits, but they CAN lay
people off. Managing “fiscal crisis” in a service agency ALWAYS means cutting the cost of people who
provide the service. Most of the time, cities save money by ceasing to fill vacant positions, hiring part-timers
or temps and squeezing discretionary spending. For the first time EVER, the City really, really needs YOUR
cooperation “at the table.” No one knows more about how to cut operational cost or generate income at a
public agency than the people who work there.
NEW LAW ENABLES STATE TO RECOVER FRAUDULENT UNEMPLOYMENT BENEFITS
A new federal law helps states collect fraudulent overpayments of unemployment insurance.
CALIFORNIA PUBLIC EMPLOYEES FILE CLAIMS FOR BACK WAGES
UNDER RECENT SUPREME COURT “DONNING & DOFFING” DECISION
In the public sector, employees often spend time “donning and doffing” special uniforms. The Long Beach
Police Officers have now filed suit, and If YOU spend your time “doffing” a special uniform or protective gear,
for the job before clocking in, you, too, may have a claim. You may be owed back pay or, at minimum, you
may want to make sure that your “changing time” is PAID TIME in the future.
WHAT IS THE “GOLDEN HANDSHAKE”?
When the State legislature approved the PERS "Golden Handshake," it was offered as an early retirement
incentive, in order to avert layoffs. The benefit which consists of two years’ service credit, must also be
offered within a window period, between 90 and 180 days into the future. Read more details in this article.
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WHAT DOES THE PUBLIC OWE ITS PUBLIC “SERVANTS”?
As California’s state budget goes into complete “free fall,” much of the money normally sent to the cities will
be withheld. So, this year, most cities are dipping into reserves, many so heavily that there will be little left in
2010. Many are also freezing expenditures, slashing programs, furloughing or laying off employees, and
asking their employees’ unions for “give backs.”
Between the state’s problems and the overall recession, most agencies don’t have much hope for immediate
increases in revenues. (After all, there’s only so much one can charge for business licenses or parking
tickets.) Sacrificing employees – or preferably employees’ pay-and-benefit packages – seems the only
option. BUT WAIT! Cities have the power to tax!
WHAT IS A DOMESTIC PARTNER?
In California, any two unmarried adults who reside together may file for “Domestic Partnership.” This does
NOT mean, however, that they are automatically eligible for medical coverage. There is no law requiring
employers to recognize domestic partnerships for purposes of providing benefits. The CalPERS Health
Plan, for example, grants benefits to some partners.
COULD I BE TARGETED FOR LAYOFFS?
As more and more employees lose their jobs, this question of discrimination – or “targeting” -- inevitably rises
to the surface. Of course employers would rather terminate some employees than others.
Even when the rules require a neutral selection procedure or an “order of layoff by seniority,”
layoffs can be an opportunity for employers to “clean house” of people they don’t like. This
can be the case, despite strong laws against discrimination. After all, while it is one thing to
allege discrimination; it’s another to prove it. This article is a discussion about the conditions
requiring your employer to be “fair” in deciding who will lose his/her job during an economic
downturn.
IS IT “DISCRIMINATION” FOR THE CITY TO ASK YOU ABOUT RETIREMENT?
The short answer is, No, a simple question is not evidence of discrimination. It is also perfectly legal for the
City to offer you a “Golden Handshake” -- even if you don’t want to take it. Every case is unique. Feel free to
call Association staff for assistance. If you do decide to retire, they may be able to help you negotiate your
exit. If you DON’T want to retire, they will stop the harassment.
CAN THE CITY REQUIRE YOU TO TAKE A PERSONALITY TEST?
Psychological and aptitude testing are often used by employers when they are trying to
find the best candidate for promotion or trying to unravel interpersonal problems in the
workplace. The question is: when do these tests “cross the line” into invasion of
privacy, or even violate your rights under HIPAA, which guarantees confidentiality of
your medical records?
STATE SUPREME COURT SIDES WITH EMPLOYEES ON WORKERS’ COMP ISSUE-
SANDHAGEN
Last year, the California Supreme Court in Sandhagen v. WCAB, sided with injured workers against the
insurance industry on an important issue: the amount of time an insurance company may take to “review” a
case before providing medical care.
FURLOUGHS, LAYOFFS & OTHER “TAKEAWAYS:” WHAT’S LEGAL?
This article is a very brief summary about the legality, and the actions your Association may want to take, in
response to cost-cutting measures which may be cutting into YOUR job.
“TWO-TIERED” RETIREMENT SYSTEMS…ARE THEY LEGAL?
In a word, Yes. The “two tiers” refer to different levels of benefits for different groups of employees. When
benefits get expensive – or political leaders start getting cheap – the most common way for agencies to save
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money is by providing lesser benefits to new employees. As long as the employer negotiates these changes
with the affected unions, they are perfectly legal.
FITNESS FOR DUTY EXAMS: WHEN CAN THE CITY SEND YOU TO A DOCTOR?
Most people are surprised to find out that your employer CAN send you for a medical or psychiatric exam as
a condition of continued employment. Both state and federal law allow these exams when the employer can
show that its inquiry about your condition is job related and consistent with business necessity. This means
that an exam can be triggered for your out-of-the-ordinary behavior, or for your employer’s reasonable belief
that you may no longer be able perform the duties of your job. Learn when you do have the right to
a hearing and why therapy isn’t considered discipline.
A KEY AMENDMENT TO THE AMERICANS WITH DISABILITIES ACT
The Americans with Disabilities Act (“ADA”), if an employee becomes disabled while
employed, the employer must engage in a good faith interactive process in order to
reasonably accommodate the employee’s disability. Accommodations may include
restructuring a job, modifying work schedules, reassignment to a vacant position or
providing special equipment or devices. Whether a particular accommodation is
reasonable depends on the disabled employee’s circumstances and whether the accommodation would
place an “undue hardship” on the employer.
UNEMPLOYMENT BENEFITS FOR PARTIAL JOB LOSS: HELP FOR EMPLOYEES WITH REDUCED
WORK HOURS OR “ON FURLOUGH”
Did you know, though, that there IS a provision under the State’s Unemployment Insurance program to allow
employees who are “experiencing partial job reductions” to receive supplementary unemployment benefits?
It is called California’s “Work Sharing,” or “partial unemployment” Program. Once the employer’s plan is
approved, eligible employees may apply for the benefits.
DO SALARIED EMPLOYEES BECOME “HOURLY” WHEN THEY ARE FURLOUGHED?
Technically it is illegal for an employer to forcibly deduct pay from an exempt employee, for less than a full
pay period. Do the salaried employees become hourly? According to a recent opinion issued by the
Department of Labor Standards Enforcement (“DLSE”) the answer is YES: salaried employees who take
furlough days DO become hourly employees, but only for the pay period in which the partial week’s loss –
the furlough -- occurred.
SPORTS INJURIES – WHO’S LIABLE?
California law severely limits your right to sue in case of injuries during recreational activities. If
you are involved in a sport under the auspices of your employer, your employer may be liable if
you are hurt. If you were hurt because your equipment was defective, the maker of the
equipment may be liable.
IS THE PUBLIC EMPLOYEE RETIREMENT SYSTEM GOING BROKE?
Of the 80 public retirement systems in California, CalPERS (California Public Employee
Retirement System) is the largest. It is true that large portions of PERS’ money was
generated by, and invested in, the stock market. There is no relationship between the
amount of money your employer’s PERS account “earns” in the stock market and the
amount that must be paid to you, when you retire. The employer portion is “experience rated,”
which means that it fluctuates in response to plan usage AND in response to stock market earnings.
PERS HEALTH TAKES A STAND ON NATIONAL HEALTH REFORM
PERS Health insures the vast majority of public employees in California. Answer: The plan currently being
discussed in Washington would not affect CalPERS members’ benefits. Health care costs are now
absorbing huge portions of public agencies’ budgets. It will also help control health care costs for current and
future retirees. Health care reform is critical.
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THE GENDER GAP: WHERE DO WE STAND TODAY?
In 1972 women earned 59-cents on every dollar a man earned. What explains this
difference in pay between what the average man and average woman earns? Women
supposedly “pick” lower-paid jobs than men. They pick “service work” while men pick
industry or business. Since 1982 women have been earning more bachelor’s degrees
than men. Women earned 52% of professional degrees conferred in 2008. Between
1960 and 2006, percentage of dentistry degrees earned by women increased from
0.8% to 44.5%. Before unions, most working class jobs were paid at starvation
wages. Today, over 8 million women are union members – most of them public
employees.
YOUR HEALTH CARE: HOW GOOD IS YOUR PLAN?
Currently PERS Health covers more than 1.3 million members. Your city may not be in PERS Health; it may
have its own, private health plan. PERS Health is not connected to the PERS retirement plan, by the way.
This article answer the questions: what MUST Your Employer Pay; can the City change my plan; and can I
change plans?
DUI - DRIVING UNDER THE INFLUENCE: WHAT IMPACT WOULD AN ARREST HAVE UPON YOUR
JOB?
The courts take intoxicated driving seriously. Whether you drive your car on the job or not, almost all job
descriptions require that you carry a valid California driver’s license. Driving between worksites on City time
IS driving on the job. If your job requires both driving AND holding a commercial license, however, you are
going to have significant problems at work.
PRESIDENT EXPANDS FAMILY MEDICAL LEAVE RIGHTS FOR MILITARY FAMILIES
President Obama signed legislation that gives families of military personnel the right to two different forms of
Medical Leave. These circumstances apply when there are medical issues resulting from Active Duty within
the five-year period prior to the request for the leave. Get more details in this article regarding
Caregiver Leave and Exigency Leave.
THE “UTAH EXPERIMENT:” DOES THE ALTERNATE WORK WEEK REALLY SAVE
MONEY?
In 2008, the State of Utah decided to close all of its offices on Fridays and move state employees
to a four-day, ten-hour work schedule. The move was an experiment, to determine whether the
alternate work week really did save the State money. The outcome was a $4.8 million savings for
the year – but the REASON for the savings turned out to be a big surprise. The State had anticipated a $3
million dollar savings in energy. HUGE savings in employee costs: in overtime expenses, to be exact.
WHAT’S THE CITY’S ROLE DURING AN EPIDEMIC?
It’s clear now that the H1N1 Influenza (“swine flu”) is becoming a global pandemic. Luckily, it is not as deadly
as we feared a few months ago; but it CAN BE a serious illness: disabling for several weeks, life-threatening
for some people, and very, very contagious. So, there are many questions about what responsibilities
Management may have for protecting you from contracting H1N1 at the workplace, or relieving you from
work if they believe that you have the flu. The article has some very general answers.
DOES COLLECTIVE BARGAINING COMBAT RECESSION?
Unions weren’t really new in 1935. Workers had been forming unions, primarily in heavy industry, since the
1870’s. When wages plunged from subsistence to starvation levels, millions of hungry homeless people
turned to the government for relief. Unions were still a radical idea, but the President and Congress clearly
believed that the times called for radical action. There is no question that the government’s support for
collective bargaining empowered unions to raise wages -- and no doubt that this helped alleviate the Great
Depression.
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SHOULD YOU FILE A WORKERS’ COMP CLAIM?
Should you file a workers’ comp claim? What if the injury gets worse, rather than better?
ALWAYS Report an Injury. The law firmly protects employees against retaliation for filing a workers’
compensation claim. Proving workers’ comp discrimination – in fact, proving ANY retaliation or
discrimination, requires proving a “nexus” (a connection) between the injury and the negative actions.
STATE FURLOUGHS TURN OUT TO SAVE LITTLE MONEY (BUT CREATE BIG HEADACHE…)
The Franchise Tax Board, which delayed audits due to the furloughs, lost approximately $231 million in
revenues. The state will also collect about $60 million less in income tax, due to the employees’ lower
incomes. The state is now ordered to pay the employees back – with a predicted cost, thus far, of $37
million. Union lawsuits are not the only kind of legal problem the furloughs have engendered. The State’s
response time had fallen below acceptable standards set by the National Emergency Number Association.
DOWNSIZING: HOW SHOULD WE RESPOND TO UNDERSTAFFED
WORKPLACES?
Understaffed workplaces triggers a CHANGE in work loads and assignments.
It’s perfectly reasonable for you – if you ARE affected – to ask about Acting
Pay (or reclassification,) training, work schedules, deadlines, etc. WHAT IF
THE UNDERSTAFFED WORK CONDITIONS ARE ABUSIVE?
Most public employees truly believe in the City’s mission of serving the public,
even in the face of declining work conditions. SO…here lies the difficulty in
“drawing the line” tolerable vs intolerable work conditions. People’s “toleration
levels” vary wildly.
COURTS FORCE EMPLOYERS TO COMPLY WITH FEDERAL WAGE
LAWS – EVEN FOR IMMIGRANT WORKERS
This settlement benefitted about 650 workers, and was the largest class-action back-wage agreement
involving California's dairy industry.
YOUR LYBARGER RIGHT: YOUR RIGHT TO CONFIDENTIALITY DURING
AN ON-THE-JOB INVESTIGATION
What if you are being accused of stealing, or something else, which COULD lead to criminal prosecution? In
this case, you have what is called your “Lybarger Right,” the right to your employer’s guarantee that the
information you provide in an administrative setting will not be provided to criminal authorities, nor used
against you, for criminal prosecution. In other words, you can’t refuse to answer questions from the
employer, under threat of losing your job, but you should be assured that your answers will not be used in
any other setting. The current state of affairs is that a prosecutor or Federal Grand Jury may subpoena your
statements made during an administrative hearing, but they may not “base the case” on statements you
might have made. Criminal prosecutors have the burden of proof to show that any charges filed against you
are based entirely on information gathered independently of your administrative investigation.
GOVERNOR SIGNS SB186 – CONTINUED RIGHT TO PRE-DESIGNATE YOUR DOCTOR
In the nick of time last year, Governor Schwarzenegger signed Senate Bill 186, which enables California
employees to continue to pre-designate their physicians in the event of work injuries. Had the governor
vetoed the bill, this right would have been eliminated as of December 31st 2009.
BUT I'M SICK...YOU MEAN THEY CAN FIRE ME??
If your absence is due to a work-related injury, the law requires that you be paid Temporary Disability income
of at least 66% of your base pay. Some employers provide full pay for a period time. If you are unable to
work for months, the City can press for a medical determination as to when you’ll be able to return to work --
or if you should be declared “permanently disabled.” If you are terminated due to this “physical incapacity”
you should have attorney representation in working out a permanent workers’ compensation settlement.
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Do’s and Don’ts For Public Employee “Activists”
Some important reminders for employees and associations who may choose to become active on Council or
initiative campaigns.
Warning: Your Employer May Be Monitoring Your Voice Mail & Email!
Technology now makes it possible for employers to track virtually all workplace
communications -- on the phone and in cyberspace. A recent survey over the
use of tracking devices found that roughly three quarters of all companies
monitor their employees' use of the internet and/or email. Whether all this
monitoring is legal depends on what type of communication the employer is
trying to eavesdrop on, how reasonable it is for the employee to expect the
communication to be private, and the employer's reason for listening in. This article contains a summary of
what to expect.
ARE CITIES GOING DOWN THE TUBES?
Are service cuts inevitable? What about local taxes? What’s a poor city to do? Cities are turning more and
more to service charges as a source of revenue. Almost all cities levy business license taxes or fees. These
bring in 3% of the average city’s general revenue. Read more about financial trends in the cities in this
article.
AGE DISCRIMINATION: AGE DISCRIMINATION IS COVERT, BUT ALIVE …
The Age Discrimination in Employment Act (ADEA) is the federal law that protects individuals from
employment discrimination based on age. A retirement incentive offer isn’t discrimination. The Older
Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to prohibit employers from denying
benefits to older employees. It’s valid to terminate an employee, even an older employee, for poor job
performance.
RETIREE HEALTH BENEFITS
Court decisions upholding this principle rest on the premise that retirement benefits are part of a deferred
compensation package, which may only be altered by the substitution of a benefit of equal value. Later
contract negotiations may alter benefits for future employees, but not for employees who were hired under
THIS contract. Retiree health benefits are “obligations of contract.”
COURTS OVERTURN SCHWARZENEGGER FURLOUGHS - AGAIN
In December 2008 Governor Schwarzenegger ordered mandatory furloughs of state employees of two days
per month. The mandatory furlough affected about 200,000 state employees and was supposed to save
about $2 billion. In January 2009 a Superior Court Judge ruled that Schwarzenegger did have the power to
implement emergency furloughs. In February 2010 another Superior Court ruled that the furloughs must
stop. The furloughs had been authorized ONLY to respond to an emergency. Once an
emergency is over, employee compensation -- and compliance with union contracts – must be
restored.
FRATERNIZATION
There are no laws that regulate workplace “dating and mating,” but employers may pass
policies about these. Often called “Fraternization” policies, they ARE negotiable
and can’t be implemented until your union has had the opportunity to meet and confer.
IS YOUR EMPLOYER “CLEANING HOUSE?”
If your Association’s layoff procedure is weak (or there is no layoff procedure,) then the City can probably
“hand-pick” the employees it wishes to lay off. But, if you have a good, seniority-based layoff procedure,
their hands are a bit tied. Layoff-by-seniority treats employees objectively: the newest must go first (usually
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by job class) without regard to their helpfulness or “flexibility.” Under these circumstances, Management may
step up disciplinary activity to begin eliminating those people they prefer.
HEALTH REFORM LAW
We are entering the era of universal health care in America. This means lots of change for people who can’t
afford or have been denied insurance, lots of tough rules for insurance companies, and a noticeable tax
increase for the wealthy. But, if you’re a moderately paid public employee in California, it probably means
very little change for YOU.
COULD THEY GIVE MY JOB TO A VOLUNTEER?
We thought we hit bottom with cheap, non-career labor, but the recession has created a whole new low
“nadir of cheapness:” the volunteer. This is not to say that volunteers are an entirely new phenomenon.
They’ve always been around, and have always been appreciated – especially in youth programs or senior
citizen centers. For as long as their supply and their enthusiasm lasts, they are being used to replace
regular, full-time positions.
PROBATIONARY EMPLOYEES PROTECTED AGAINST RETALIATION
An employee filed a claim with the Public Employment Relations Board (PERB), saying that he was
wrongfully terminated in retaliation for exercising his grievance rights. The PERB hearing officer agrees.
WHAT THE MANAGEMENT-SIDE LAWYERS ARE TELLING THEIR CLIENTS
This article is a summary of a management-side lawyer’s suggestions about how to handle employee
problems. We don’t know how many HR Directors are taking this underhanded advice, but it is amazing to
discover an entire premeditated strategy for “turning the tables on the unions” in six easy lessons. Here is a
summary.
IMPORTANT ADA DECISION: EMPLOYERS MUST ACCOMMODATE EMPLOYEES’ NIGHT-DRIVING
PROBLEMS
The Third Circuit Court of Appeals overruled Rite Aid and held that “changing an employee’s hours to
prevent disability-related transportation issues is exactly the type of accommodation contemplated by the
Americans with Disabilities Act.” In fact, the ADA specifically cites “modified work schedules” as an example
of a reasonable accommodation.
EMPLOYERS CANNOT BAR ASSOCIATIONS FROM USING E-MAIL SYSTEM
In today’s workplace e-mail has become the most common method of communication – not only between
employers and employees, but between employees and their co-workers. Employers DO have the right to
control the use of e-mail and the internet, particularly as it relates to the CONTENT of material or the use of
employee time. But it has become virtually impossible for employers to deny the use of e-
mail for non-work interpersonal communications. And, as a result, it has become virtually
impossible for employers to deny the use of e-mail for union communications. Learn why.
NEW HEALTH CARE LAW: EMPLOYERS MUST ACCOMMODATE NURSING
MOTHERS
Most people don’t know in March 2010 the FLSA (Fair Labor Standards Act) was amended
to allow working mothers time to express milk. The modified law now requires employers to
provide a “reasonable” amount of time based on the woman’s need.
THE CITY IS “REORGANIZING”…. DO EMPLOYEES HAVE ANY CONTROL?
So, what kinds of changes does your Management have the right to make “unilaterally,” -- and which must be
negotiated with your union? This question goes to the core of the purpose of the Meyers-Milias-Brown Act
(MMBA), which is the collective bargaining law for cities and special districts. The MMBA says, essentially,
that ANY topic affecting “wages, hours and conditions of employment” is negotiable. So, when can the City
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“just reorganize” YOUR job, and when do you have the power to protect yourself from undesirable change?
This articles gives some answers.
EMPLOYER MAY BE HELD LIABLE FOR EXACERBATING EMPLOYEE’S INJURY
If an employer knows of a dangerous condition that causes an employee's work- injury and they fail to
correct that condition, the employee may be entitled to an additional 50% compensation beyond their
workers' compensation settlement..
EMPLOYEES ON DISABILITY ARE ELIGIBLE FOR COBRA
If you are off the job with an illness or injury, the Family Medical Leave Act requires the City to continue your
medical benefits (including the City’s contribution to those benefits) for at least twelve weeks. But what if the
condition lasts LONGER than twelve weeks? Can the City discontinue your benefits?
WHEN CAN YOUR ASSOCIATION “JUST SAY NO” (TO TAKEAWAYS?)
The function of an MOU is to summarize the various agreements between an agency and its employees and
to hold these in place until the contract expires. This means that if you have a contract in force, your union
can “just say no” to management-initiated proposals.
DEPARTMENT OF LABOR EXPANDS DEFINITION OF “PARENT”
UNDER THE FAMILY MEDICAL LEAVE ACT (FMLA)
Given recognition of the many alternate ways that a family might be constructed today, the DOL has been
asked to render an opinion about the specific meaning of loco parentis.
The new Guidelines make clear that there is no requirement for a biological or legal relationship with the
child to stand in loco parentis. FMLA leave can be extended to domestic partners, grandparents, or other
family members who provide either day-to-day on-going care or financial support for the child.
WORKING IN HIGH TEMPERATURES
Heat-related illnesses have reached alarming levels in California, as more employees are doing more work
with fewer co-workers and are working longer and longer hours. Cal-OSHA (the state Occupational Safety
and Health Administration) sets standards which employers must follow for providing employees with shade,
potable water and adequate rest breaks. Employers which violate these standards can be reported,
anonymously.
WHAT TO DO WHEN YOU CAN’T DO IT ALL
One of the most immediate outcomes of financial difficulties at any agency is understaffing. This is not just a
word; it’s a major predicament: how to keep shoveling the work forward with fewer and fewer hands on the
shovel. Most cities won’t just shut programs down so they try to reorganize. “Reorganization,” as we know,
may be little more than a smokescreen for making fewer people perform more job duties.
EMPLOYERS CAN’T MAKE HOURLY EMPLOYEES “EXEMPT” TO AVOID PAYMENT OF OVERTIME
Runaway overtime can easily double the cost of an employee. It’s legal for public agencies to cut back
sharply on overtime opportunities. What’s NOT legal, however, is for the City to attempt to designate hourly
employees as “salaried,” or FLSA-exempt, in the attempt to avoid payment of overtime.
MUCH ADO ABOUT BELL
The Bell story triggered investigations about the pay packages of councils and managers all
over the state. Clearly some people have the goal of convincing people that government is
inherently bad, and that their long-time “public servants” are public enemies! The Real Story…
IS THE RECESSION HAVING A “CHILLING EFFECT” ON EMPLOYEE RIGHTS?
People are afraid to speak up when they are harassed about finishing work they can’t possibly
finish. People are simply afraid. Although it’s blatantly illegal for employers to retaliate against
employees for exercising their “protected activity rights” (i.e. their right to file a grievance,) it occurs
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nonetheless. Group grievances obviously provide some protection for each individual member.
CITIES CAN’T USE LAYOFFS TO AVOID DISCIPLINE PROCEDURE
Public employees in California can’t be terminated without a hearing. Layoffs, on the other hand, are widely
recognized to be an absolute management right, and very few agencies make any provision for employees
to appeal or object to layoffs. The case, Levine v. City of Alameda, involved an employee who believed that
his layoff was a pretext, and that he was actually terminated because his supervisor disliked him. The Court
held that the employee was entitled to a hearing prior to the layoff, including full evidentiary due process to
raise issues about the “real” reason for the layoff.
ASBESTOS IN THE WORKPLACE
If you have been exposed (or suspect you have been exposed) to asbestos you should inform your doctor
about the exposure history and about symptoms you may be experiencing. Your employer is obligated to
notify you if they believe that you have been exposed to significant doses of asbestos on the job. At your
request, they are also required to send you to a doctor for tests and assist you in filing a workers’
compensation claim. Companies and public agencies have paid billions in workers’ comp claims to victims,
and their families who were killed by asbestosis.
“PICKING YOUR BATTLES” DURING HARD TIMES
Some declining work conditions just SHOULDN’T be “adjusted to” at all! The line between hard work and
exploitation is thin. You should not be expected to work through lunch, skip breaks, come to work sick, take
work home, work overtime without pay (including taking “comp time” when you want the pay), work excessive
overtime, perform most of the duties of a higher job class, or be harassed, made ill, or given negative
evaluations for failing to do an impossible amount of work.
CAN THE CITY MAKE ME SEE THEIR DOCTOR?
When you return to work, you need to provide a doctor’s note, explaining that you’re released to full duty, or
stating what accommodations you may still need on the job. This medical examination must be "job-related
and consistent with business necessity." Generally the law considers the employee’s doctor to be the
“primary treating physician” for deciding whether or not an employee is capable of returning to work. But
what if YOUR doctor and the City’s doctor disagree?
LAYOFFS & THE LAW
There is no law saying that a City’s layoff policy must be based on seniority. Even if your City’s layoff policy
IS based on seniority, Management may still have considerable control over who “goes out the door.” City-
wide seniority comes into play only for purposes of “bumping:” when the least-senior employees in a job
class turn out to have greater city-wide seniority than someone in a lower job class.
EMPLOYEES’ SHARE OF HEALTH CARE COSTS ARE SKYROCKETING
The Kaiser Family Foundation and National Health Research Trust have just released a survey about the
health care programs of more than 3,000 private and public employers. The findings were predictable: while
the actual cost of health care premiums rose only 3% in 2009, the amount paid by employees rose by 14%.
DON’T THEY HAVE TO LET ME TAKE A VACATION?
Almost all permanent public employees have vacation benefits. This is clearly so you can TAKE a
vacation. The amount of vacation you receive is negotiated by your Association, but vacation is also
a “vested benefit” under law. In still others, there are whole policies about vacation bidding and
seniority.
WHAT DOES THE PUBLIC HAVE THE RIGHT TO KNOW ABOUT ITS “PUBLIC SERVANTS?”
Under the Public Records Act any member of the public has the right to know the name, position, work
location, work phone number, work e-mail address and salary of any public employee. In hearing these
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various “demands” for public information, the Courts apply a “balancing test,” weighing the value of the
information the public is seeking in “contributing to public understanding of government activities” against the
damage that might be done by the public’s intrusion of employees’ lives. What about the “public’s interest” in
protecting employees against intrusions on their time or against threats from members of the public?
SACRAMENTO COUNTY LOSES THE BATTLE FOR PENSIONERS’ PRIVACY
In September 2010 a Sacramento Superior Court judge ruled that the County’s retirement system can't
withhold information about employees’ pensions from the public.
NO MANDATORY RETIREMENT AGE FOR NON-SWORN EMPLOYEES
By Federal law, it is illegal to terminate employees (or compel them to give up their jobs) because of their
age. However, this didn’t stop the State Department of Consumer Affairs from telling 23 employees that the
department had a mandatory retirement rule for business inspectors who hit age 65.
There IS NO mandatory retirement age for non-sworn employees.
BE CAREFUL WHAT YOU TWITTER: THE JOB YOU LOSE COULD BE YOUR OWN
The use of social networks has raised questions about whether employees, especially
public employees, can be held responsible on the job, for things they say or do off the job
and “in the media.” Non-sworn employees are NOT considered “representatives of the
City” except when they are at work. You have the right to free speech. Public employees are held to
a higher standard than private sector employees. In all cases, the Courts have allowed the employer to
impose the discipline.
MORE ANSWERS TO QUESTIONS ABOUT YOUR MEDICAL PLAN
Can I take legal action for increased share of costs? Can they just lower the retiree health care fund
contribution? Can they just stop one HMO provider and start up with another?
NEW FEDERAL RULES FOR INVESTORS HANDLING PUBLIC MONEY
The Securities and Exchange Commission (SEC) has adopted new rules designed to curtail questionable
investment practices by people managing money for state and local governments. The problem, we have
learned, is that wherever there are large sums of money available, there is room for bribery and fraud.
HOW DO PUBLIC JOBS COMPARE TO THE PRIVATE SECTOR - TODAY?
The study found that public employees make lower pay than private employees, but receive significantly
HIGHER medical and retirement benefits. Public employees are generally better educated than private
employees: 55% hold Bachelor’s degrees, compared to only 35% of private employees have BA’s.
Public employers spend 36% of “total employee compensation” on benefits, including 11.8% on medical and
8.2% on retirement. Private sector employees with Masters Degrees earn 33% more than employees with
equivalent education in government ($107,017 compared to $71,527.)
HR DIRECTORS PUBLISH THEIR “TAKEAWAY PLANS”
California’s Human Resources Managers meet regularly to discuss their common issues on the job. For the
last several years, the overriding topic has been how to manage their agencies’ workforces with rapidly
diminishing resources. In reality, this means how to accomplish employee takeaways, without a
lot of conflict and without the union suing you. (This is why the same strategies and bargaining
packages show up in differing cities all over the state.)
ARBITRATOR REVERSES MANAGER’S DISCIPLINE FOR LOW PRODUCTIVITY -- IN
UNDERSTAFFED WORK CONDITIONS
The County of Contra Costa has been ordered to reinstate a manager in its Mental Health
Department who was demoted for “failure to perform” in severely understaffed work conditions. In fact, the
arbitrator who heard his case said that it was “remarkable” that he made only four significant errors, “given
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the scope of his responsibilities” and the extent to which the program was “stretched to the limit on
resources.”
IF YOU (OR A FAMILY MEMBER) HAVE A CHRONIC ILLNESS, YOU SHOULD HAVE AN “FMLA
LETTER” ON FILE
Why? Because if you or a member of your immediate family have a medical condition which might cause
you to lose work time, you will be protected from job loss for up to 12 weeks. Further, it is illegal for
employers to “adversely impact” (discipline, reprimand, or give negative evaluations) employees for the
legitimate use of time under the Family Medical Leave Act.
THE PERS “GOLDEN HANDSHAKE:” HOW IT REALLY WORKS
The “Handshake” is a program enabling employers to provide two years of service credit for any “retirement
eligible” employee. The Handshake isn’t free. There is NO requirement that the benefit be offered to ALL
eligible employees in the unit, although this subject is negotiable, also.
WHAT DOES “SENIORITY” MEAN?
Seniority is a principle, not a law. Seniority rules are negotiable. As long as everyone agrees on the policy,
seniority is the perfect way to sort out people’s differences. Often the details about how a seniority policy
works aren’t written down. Unlike seniority systems for picking shifts or days off, seniority-for-layoff is
controlled by law. Layoff procedures are a major subject of bargaining – and layoffs for “economy purposes”
must be based on seniority.
WHAT IS A “PAST PRACTICE?”
An employer cannot change a legitimate past practice without bargaining with the Association. If your “past
practice” contradicts what the MOU (or other City rules) say, the City can enforce the language in the written
rules. When contract language is “clear and unmistakable” it will always “trump” past practice. Past practices
“detail out” how the rules really work. Under these circumstances, Management can’t change a past practice
without bargaining.
GINA….PROTECTION AGAINST GENETIC DISCRIMINATION
The new law prohibits discrimination -- by health insurance companies or by employers –
against individuals on the basis of genetic characteristics. It also restricts employers or
health insurance companies from disclosing genetic information.
CALIFORNIA IS AN “AT WILL” STATE …. EXCEPT FOR PUBLIC EMPLOYEES
Employees in California can be terminated “without cause,” unless they are public employees. Other
employees in California have no such system. If the employer fires the employee before the contract is
completed, the employee may have grounds for suing over a “breach” of that contract. The law protects
people against retaliation for reporting violations of law, or exercising their rights under the law. There are
also a few other times that employees are protected: when they are in court as crime victims, when they are
in a shelter due to domestic violence or natural emergency, when they are voting, etc. Employees
terminated during one of these periods may have cause for legal action.
TOUGHER LAWS FOR PEOPLE WHO HOLD “HEAVY VEHICLE” LICENSES
In the last few years, these employees have been subjected to huge changes in work conditions, as the laws
surrounding these licenses have become more and more stringent. Starting in the mid-‘90s, the federal
Department of Transportation began requiring employers to conduct random drug and alcohol testing. After
that, a series of rules were implemented which raised questions about employees who have vehicle
accidents, and require employees with positive substance tests to be removed from the job.
WHO MADE PUBLIC EMPLOYEES THE SCAPEGOAT … AND WHAT DO THEY HAVE TO GAIN?
There isn’t any way to ignore it any longer: the media have declared war on public employees. From
overblown reports on sleazy politicians, to exaggerated tales of pension plan debt, public employees have
become our country’s? scapegoats. You know that we’ve lost all sense of proportion when even liberal
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politicians like Jerry Brown (himself a public employee for 30 years) says he’s going to “break the unions’
stranglehold” on the State budget. More about the myths in this article.
WHEN DOES A CITY EMPLOYEE HAVE THE RIGHT TO APPEAL A LAYOFF?
Since Levine v. City of Alameda, attorneys for public employers have been advising their clients that they
should make some sort of hearing process available to employees who believe that they have been targeted
for layoff for some reason other than the City’s need to eliminate the job. The court in the Levine case didn’t
draw a distinction between layoffs for economic reasons and layoffs due to reorganization, contracting out, or
discontinuation of services. In California, layoffs for economic reasons, are supposed to be based primarily
on seniority.
DO YOU HAVE THE RIGHT TO TAPE RECORD YOUR BOSS?
Because it is against the law to tape record anyone without his knowledge or permission. It’s
also illegal to place a bug or recording device on a person, or in a home, office, or restaurant
to secretly record conversations. Does your boss have the right to tape record you? When it
comes to tape-recording phone calls, the current law applies: your employer must tell you if
you are using a tape-recorded line.
CAN THE CITY REQUIRE YOU TO SHOW YOUR CHILD’S BIRTH CERTIFICATE?
Although it appears to be a violation of your privacy, you employer DOES have the right to request social
security numbers and/or birth certificates for dependent children. The reason for this stems from regulations
established by health care providers, including CalPERS.
ANSWERS TO SOME QUESTIONS ABOUT OVERTIME
As city administrators scrutinize their budgets, trying to provide services with less and less money, you – the
employee – are inevitably asked to do more work for less pay. Overtime costs are a large portion of public
agency budgets; it isn’t unusual for agencies to be “pushing the boundaries” of the federal overtime laws.
Here are some answers to employees’ recent questions on this subject.
SUPREME COURT DETERMINES THAT HEARING OFFICERS MUST BE TRULY IMPARTIAL
Several years ago, a decision by the California Supreme Court finally addressed a problem that public
employee associations have been complaining about for years: decision-making by “impartial” hearing
officers who are clearly NOT impartial. They are either part of the City’s Management or are selected and
paid by City Management.
EMPLOYER LIABILITY FOR AUTOMOBILE ACCIDENTS
if you are in an accident, while performing work-related duties, your employer is responsible. Liability
applies under this section only if the public employee is operating the vehicle in the scope of employment;
accidents incurred by employees driving to and from work are NOT “within the scope.”
NEW LAW: PAID LEAVE FOR ORGAN DONORS
California Senate Bill 1304 enacted Part 5.5 of the Labor Code, Section 1508, et seq., effective January 1,
2011, which requires employers with 15 or more employees to provide paid leave for employees who donate
an organ or bone marrow to another person.
HAVE YOU HEARD ABOUT THE FACEBOOK FIRING CASE?
In October 2010 the National Labor Relations Board (NLRB) filed a complaint against American Medical
Response (AMR), a Connecticut ambulance service, on grounds that the company violated federal labor law
when it fired Dawn Marie Souza. Employees are prohibited from making disparaging, discriminatory or
defamatory comments when discussing the Company or the employee's superiors, co-workers and/or
competitors.
WHAT ARE ALL THESE “CONSULTANTS” DOING AROUND HERE?
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It’s easy to forget that there are reasons for all those burdensome rules about advertising, testing and hiring
employees, “on the basis of merit” for jobs in public agencies. Simply put: the duties of a job belong to a job
classification. If the duties of the position are assigned to someone outside the bargaining unit, the City has
essentially “stolen” a position from the union.
YOUR “RIGHT” TO USE SICK LEAVE
When sick employees are harassed for their legitimate use of sick time, this doesn’t make the
employee perform the job any better. If you have a serious medical condition, or if you have a
family member with a condition who you must care for, you have the right not to be bothered
about this. What IS sick leave “abuse,” anyway?
EMPLOYERS HAVE LEGAL OBLIGATION TO PROVIDE SAFE AND HEALTHY
WORKPLACE
Employers recognize they have a legal obligation to provide their employees with a safe
environment in which to work. In most people’s minds, this means minimizing employees'
exposure to dangerous work-related processes, machinery, or environmental risks in the field.
However, the legal obligation to provide a safe work environment also includes minimizing the risk
that employees will be victims of workplace violence. One way to do this is to make everyone aware
of the “early indicators” of a potentially violent co-worker.
IN TIMES LIKE THESE, WHY BARGAIN AT ALL?
Today (2011) bargaining is almost all bad. Whether your City is really broke, or just responding to vague
“political pressure,” MOU negotiations are likely to be your City’s opportunity to implement “takeaways.”
Associations that are in the middle of long contracts are better off than groups whose contracts are expiring.
Those with expiring contracts are best off negotiating the longest extensions possible. Unfortunately, public
agencies in California have become increasingly aggressive in pushing for shorter and shorter contracts.
THE LAW PROTECTS AGAINST DISCIPLINE FOR “OFF DUTY” CONDUCT
The California Labor Code has been amended to resolve one of the big questions in public labor law: does
your City have the right to punish you for what you do in your personal life?” Although most Court decisions
would tell you that your employer has NO right to take disciplinary action against you for “off duty” behavior,
a great many employers continued to believe that you could be held liable for “behavior unbecoming a
representative of the City” or “bringing discredit to the employer.”
WHAT DOES THE CITY “HAVE TO PAY” TOWARD YOUR RETIREMENT BENEFITS?
Most, but not all, Cities and Water Districts in California participate in the California Public Employment
Retirement System, commonly known as CalPERS. There’s no legal requirement that they belong to PERS.
Several dozen belong to county retirement systems, such as the San Bernardino- or Orange County
Retirement Systems. A few agencies also have privately-funded retirement programs.
PUBLIC OPINION ABOUT PUBLIC EMPLOYEES IS CHANGING
Last month California voters were asked their opinions of public employee unions, and public employee
pension plans. The Field Poll, which surveyed 1035 people found that nearly half (46%) felt that “unions do
more good than harm.” Only 35% felt the opposite. The opinion split along party lines. Nearly six in 10
Democrats surveyed support labor unions, while 57 percent of Republicans believe unions do more harm
than good.
WHAT HAPPENS WHEN PUBLIC EMPLOYEE UNIONS ARE DESTROYED?
The 2011 uprising in Wisconsin has fostered some good debate about the cost of public
employees and the “value” of their services. The big philosophical question is: what
difference do all the “services” make in people lives? Is there a relationship between public
services and public well being? Does it make any difference what we pay these “public
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servants?” Does it make any difference whether they have the ability to negotiate over that pay?
IRS KICKS OFF “WHISTLEBLOWER REWARD PROGRAM”
The whistleblower program was designed to encourage tips in large-scale organizations.
WHAT IS ARBITRATION?
Arbitration is a formal hearing process. In many agencies, however, the decision of the arbitrator is advisory
to the City Manager or the City Council. This article discusses Limitations to Arbitration, Why
Choose Arbitration, and Arbitrating a Major Discipline Case.
VOTER INITIATIVES ON PUBLIC EMPLOYEE BENEFITS: HOW SERIOUS IS THE
THREAT? Statewide voter initiatives are circulating which, if implemented,
could change the shape of retirement benefits for all public employees. Prohibit “full
retirement” for current employees until age 62 and deny retirement benefits entirely for future
part-time employees. This article discusses the state of the law for current employees and
changes to future employees’ benefits.
THE REPORTS OF CALPERS’ DEMISE ARE …. PROPAGANDA!
There is no need for reform of the statewide pension system. In fiscal 2010, the fund earned a 13.3 % return
on investments. Those advocating massive pension reform don't admit that only 22-cents of any pension
payout dollar comes from taxpayer funds.
ANOTHER HURDLE FOR HEAVY VEHICLE DRIVERS: SLEEP APNEA TEST
Millions of public employees drive trucks or busses. To do this they must carry Class A or Class B drivers
licenses take special driving tests and pass a physical every two years. As many drivers know, the criteria
for passing both the test and the physical have been getting tougher every year. This year, a new
component has been added: a test for sleep apnea.
“HOW CAN I GET THE TRUTH ABOUT MY CITY’S FINANCES?”
Is there some way to gather concrete information about the status of your City’s finances? The answer is
YES. It is called the Comprehensive Annual Financial Report or CAFR. The CAFR is an annual report filed
by every city in California, within six months after the end of the fiscal year. It is has to be submitted to
independent auditors for verification.
CAN YOUR ASSOCIATION “TRADE AWAY” YOUR BENEFITS?
Both State and Federal law establish some basic rights and benefits of public employees. But “basic” is the
operative word; employees are often surprised to discover how minimal these legal “protections” really are.
The vast majority of your rights and benefits are NEGOTIATED, and are found either in your City’s Personnel
Rules or in the MOU between the City and your Association.
DID YOU KNOW THAT YOU ARE AN “EMERGENCY DISASTER SERVICE WORKER”?
Under Government Code 3100 all public employees in California are considered “Emergency Disaster
Service Workers.” If you are at work, you can be compelled to stay at work until you are released. All public
agencies are required to have a Disaster Preparedness Plan.
IF YOU’RE SUFFERING SIDE EFFECTS FROM MEDICATIONS ….
YOU MAY BE DUE ADDITIONAL WORKERS COMP PAY
If you are taking medication for a work-related injury, you may be entitled to additional
Workers Compensation benefits for any side effects related to the medication. Some
common medications can cause or aggravate these serious conditions:
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CALPERS CONFIRMS IT: PENSIONS ARE A VESTED RIGHT A
June 2012 CalPERS report confirms that public employee retirement benefits are a form of deferred
compensation. As Anne Stausboll, CalPERS’ Chief Executive Officer put it, a pubic employer’s promise to its
employees for a pension “is a promise that employer must keep.”
CAN THE CITY DENY YOUR USE OF VACATION?
Almost all permanent public employees are provided monthly allotments of vacation time. Today, however,
increasing numbers of people are having difficulty scheduling vacation time off. If you routinely put in for
time off, but are denied, this is not “mutual agreement!” Managers normally deny the severity of this
problem.
PUBLIC EMPLOYEES UNDER ATTACK: WHO NEEDS TO MAKE THE “SHARED SACRIFICE”?
The President’s answer startled many employee advocates. Throughout the '60s, '70s and early '80s, public
employees were “the good guys.” Today, most public employees in California are pay a portion of their
retirement cost AND hundreds of dollars out-of-pocket for medical. Who decided that public employees
deserved this punishment? Public employees, who are often unionized, are the perfect target.
SO NOW …THE CITY MANAGERS TAKE A STAND ON PENSION REFORM
The League of California Cities’ Board of Directors has now adopted its own policy on public pension reform.
Crafted primarily by the “City Managers Department,” the policy starts out by agreeing that high pension
costs have created a problem of such proportion that they seem to be shaking the very foundations of
civilization:
ENVIRONMENTAL HAZARDS IN YOUR WORKPLACE
Exposure can lead to deadly diseases including leukemia, multiple myeloma, and severe aplastic
anemia. Office workers can be exposed to hazardous levels of mold and other chemicals in
“sick buildings.” Legal Remedies…If the exposure happened on the job, you may be able to file
for workers compensation. For other chemical exposures, that period is two years from the
date you suspected that your disease could have been caused by exposure. You should
contact an attorney BEFORE filing a claim, if you believe that your disease could have been caused by
chemical exposure.
STAND BY PAY: WHAT DOES THE LAW SAY AND HOW DOES IT WORK?
Standby Time is considered work time under the law. Most policies pay employees a flat amount per day or
week, but some are a percentage of base pay. What is a “Call Out?” When an employee must actually get in
his vehicle, outside regular work hours, to attend to an employer’s call, he is now on “call-out” time. Unlike
the regular work day, an employee “on call-out” is in paid status from the moment he begins the drive to the
emergency. (This is called “portal to portal pay” and it affects mileage and workers compensation coverage.)
Also, standby and call-out pay aren’t restricted to hourly employees. Supervisors and other “exempt” staff
who are forced to be available to handle emergencies can negotiate for standby pay.
PAY GAP BETWEEN UNION & NON-UNION PUBLIC EMPLOYEES
This table, put together by the American Federation of Teachers, shows public sector salaries, nationally,
from 2002 through 2010. The data shows that employees with collective bargaining agreements (Union
Contracts) make, on average, about 30% more than employees who have no such agreements. This is true
even during a recession.
UNDERSTAFFING MAY BE HAZARDOUS TO YOUR HEALTH!
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The understaffing legal violations can be fairly obvious: unpaid hours of work, skipped lunches and breaks,
working out-of-class, abuses of part-time labor, etc. It is almost inevitable that work injuries increase when
people work in understaffed circumstances. The problem, of course, is that a short-staffed work place also
often pressures people about constant attendance. (Similarly, management may “look the other way” when
employees take work home or work overtime “under the table.”
WHAT IS COLLECTIVE BARGAINING?
Is collective bargaining a "right"? Could Public Employees LOSE their Right to Bargain? Several states
HAVE taken away their public employees’ collective bargaining rights this year. Public employees’
bargaining rights are NOT guaranteed by the federal government.
DECLINE IN PUBLIC EMPLOYMENT CITED AS A “DRIVING FORCE” IN THE STATE’S
RISING POVERTY RATE
California’s poverty rate has risen in the last year, faster than any other state in the country.
One of the key causes, according to economists at the University of the Pacific is budget cuts
in the cities and school districts.
IS SEXUAL HARASSMENT A THING OF THE PAST?
A doctor brought her sexual harassment complaint to the hospital's chief medical officer. After a seven-week
trial, a jury ordered the hospital to pay plaintiff $1 million to compensate for the sexual harassment, and
$600,000 for the retaliation. That department head will never ask an employee to dance on a table again…
COURTS ‘LEAN IN THE DIRECTION’ OF EMPLOYEE FREE SPEECH
The Court agreed: employers have no right to insist that employees take them in as “friends.”
WHAT TO DO WHEN YOU’RE INJURED
Even if you think the injury is minor, report it. The system doesn’t really care how the injury occurred. If
you’re hurt on the job and DO need medical care, the law requires your employer to provide medical care. If
your injury is so serious that you end up with a permanent disability that results in job loss, YOU WILL NEED
A LAWYER. In the majority of cases, work injuries are minor, will require only a few visits to the doctor, if
any.
MOONLIGHTING . . . DOES THE CITY HAVE THE RIGHT TO INTERFERE WITH MY OTHER JOB?
The employer has the absolute right to make sure that you are not performing outside work that could
influence your decision-making in your City job. Section 96(k) also allows employers to take disciplinary
action when the non-work activity causes the employee’s work performance to suffer. This means that an
outside job which takes time away from your City job, or may leave you too tired to perform that City job, can
be cause for suspicion.
BIG, BIG CHANGES IN STATEWIDE BARGAINING LAW!
On October 9, the Governor signed AB 646 the Meyers-Milias-Brown Act (the bargaining law for cities,
counties and “special districts”) to include mandatory fact-finding. The law is very general and will certainly
result in litigation to pin down the details, but it basically says that an employer can no longer simply, and
often time quickly, impose their “last best offer” when the parties reach a stalemate in bargaining. Instead,
when the union and the employer reach an impasse, either side may call for a panel of fact-finders to
investigate the situation and make recommendations for resolution.
JERRY BROWN’S “12-POINT PLAN” DOESN’T AFFECT CITIES OR UTILITY
DISTRICTS (YET…)
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In October, Governor Brown unveiled a proposal for the massive overhaul of the Public Employment
Retirement System. Although the plan could NOT affect cities or utility districts immediately (because they all
have independent contracts with PERS) it holds real potential for future benefit losses.
IRS CLARIFIES TAX TREATMENT OF EMPLOYER-PROVIDED CELL PHONES
The IRS has issued clarification on the subject of taxation of employer-provided cell phones.
YOUR “LYBARGER RIGHT: YOUR RIGHT TO CONFIDENTIALITY DURING AN ON-THE-
JOB INVESTIGATIONIf you are called into a questioning meeting with management, you do
not have against self-incrimination under the 5th Amendment. You DON’T have “Miranda Rights.” Miranda
applies to criminal investigations; your management cannot prosecute you criminally. But it CAN compel you
to answer questions, and does have the right to discipline you -- even to terminate you -- if you refuse to
cooperate.
NEW LAW RAISES PENALTIES FOR EMPLOYERS WHO MISCHARACTERIZE EMPLOYEES AS
CONTRACTORS
Governor Brown has signed SB 459, which has the capacity to impose big penalties on employers that
willfully misclassify employees as independent contractors. Currently, millions (if not billions) of dollars are
lost each year to both state and federal governments when employers force employees to absorb the cost of
their own payroll taxes.
WHEN CAN YOU FILE A WORKERS COMP CLAIM OVER A PSYCHOLOGICAL ILLNESS?
Everyone knows that people who are physically injured on the job have the right to workers compensation
benefits. But it is also true that employees who suffer psychological or psychiatric injury may be due payment
or medical care under the workers comp system.
WHEN DOES THE CITY HAVE THE RIGHT TO BREAK YOUR CONTRACT?
The Labor Agreement between your Association and the City -- your MOU -- is a Contract. The enforcement
of that Contract (your right to expect that your negotiated “wages hours and working conditions” will be
honored) is rooted in the “Contracts Clause” of the U.S. Constitution. It literally says that written agreements
may be upheld by force of law: people or entities that violate contracts can be sued. Contracts can be
enforced.
DOES RAISING THE RETIREMENT AGE INCREASE INEQUALITY?
Right now, our national Congress is considering raising the eligibility age for Medicare
and Social Security. At the same time, Governor Brown’s pension reform plan is
proposing to raise the retirement age for most public employees to 67. On the surface,
this looks sensible. After all, life expectancy is presumed to be much higher today than
when any of these programs was initiated.
CAN THE CITY INSTALL SURVEILLANCE EQUIPMENT IN YOUR WORKPLACE?
You are not going to like this, but your employer has the right to monitor your workplace
and can install audio and video devices. The state of the law is actually self-contradictory about whether
they actually have to tell you. It’s illegal, for example, to tape record employees without their knowledge, but
legal to videotape them!
DIFFERENCES BETWEEN UNION AND NON-UNION SALARIES PERSIST, DESPITE RECESSION
With all the loss public employees are experiencing, it’s reasonable to ask what your Association is doing for
you. Analysis of the data for most of the last decade (from the American Federation of Teachers 2010
Compensation Survey) gives a concrete answer.
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COURT RULES THAT DISCUSSIONS AT LABOR/MANAGEMENT COMMITTEES NEED NOT BE MADE
PUBLIC
The State Attorney General ultimately issued an opinion: Since the law exempts “any meeting and
negotiating discussion between a public school employer and a recognized employee organization” from the
Brown Act, and since health benefits are within the scope of bargaining, and the Committee was a product of
bargaining, the Committee is a part of the continuing bargaining process. The A.G. advised that the
committee was not a legislative body subject to the open meetings law, and the Court sustained this position.
HOW THE NEW “FACT FINDING” LAW IS GOING TO WORK (AND WHY IT’S IMPORTANT TO YOU…)
Last month the Public Employment Relations Board held forums to enable lawyers, union reps and
managers of public agencies to submit their ideas about how AB646 will be administered. AB646 is the new
law, allowing labor organizations to call for fact finding in negotiations before their employer can impose a
“last best offer.” Predictably, labor and management differed wildly in their recommendations about how the
law should be interpreted.
THERE OUGHT TO BE A LAW
When are pay raises required? What is an employer required to pay extra for weekend or night work?
Don’t I have to be paid overtime after eight hours in a day? How are vacation, sick leave and holiday pay
computed? When must they be paid? I thought federal holidays had to be paid at time-and-a-half…?
How is severance pay calculated and when is it due? When must breaks and meal periods be given? Are
periodic performance evaluations required? Can an employee be required to perform work outside of the
employee's job description? How many hours can an employee be forced to work? How much rest time
must be provided between work shifts? When is double time due? If I work overtime, but am sick during the
pay period, my employer subtracts my sick leave from my overtime pay. Is this legal?
2.5% at 55 OR 401(k) … WHAT’S YOUR CHOICE?
Here are some facts about our economy, our retirement, and the cost of public employee benefits, gathered
from more than a dozen studies conducted by universities, advocacy groups and bi-partisan organizations.
Our goal is to give you a wide swatch of factual information, to help clear the fog in the “Pension Debate.”
EMPLOYER LIABILITY FOR AUTOMOBILE ACCIDENTS
Suppose you are running an errand for your boss at lunchtime in your car and have
an accident -- who is liable? If you are in an accident, while performing work-
related duties, your employer is responsible if the public employee is operating the
vehicle in the scope of employment; accidents incurred by employees driving to
and from work are NOT “within the scope.”
CAN THE CITY TAKE US OUT OF CALPERS?
You can’t pick up a newspaper nowadays without reading about how public employee pensions are
bankrupting the state. This has led to lots of discussion about whether individual agencies may actually
withdraw from PERS. The answer is YES: the law does allow public employers to drop out of the CalPERS
system. In fact, 118 agencies (of the 2000+ that participate in PERS) have actually done this.
HOW HAS YOUR ASSOCIATION CHANGED OVER THE YEARS?
The big cultural change in the '80s was the crackdown on racism and sexism in the workplace. This wasn’t
necessarily out of the goodness of the cities’ hearts; it was fueled by a LOT of legal action. This articles
discusses: Bargaining in Good Times, The Impact of Prop 13, Transitioning from Social Group to Union,
Who Will Enforce These Laws?, The Need for Skilled Staff, This Year’s Big Change, Political Action isn’t a
Luxury Today.
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Know Your Rights Page 44
EMPLOYERS CANNOT BAR ASSOCIATIONS FROM USING E-MAIL SYSTEM
In today’s workplace e-mail has become the most common method of communication – not only between
employers and employees, but between employees and their co-workers. Employers DO have the right to
control the use of e-mail and the internet, particularly as it relates to the CONTENT of material or the use of
employee time. But it has become virtually impossible for employers to deny the use of e-mail for non-work
interpersonal communications.
SEXUAL HARASSMENT …. OR NOT? USEFUL RESPONSES TO EVERYDAY CIRCUMSTANCES
Sexual harassment in the workplace is much less prevalent than it was a generation ago. Reports from the
Equal Employment Opportunity Commission show that the number of cases have been dwindling every year
since the mid-'90s. The decline has been attributed to a combination of good laws (and good lawsuits!) as
well as active employer education. To put it bluntly: employers don’t “look the other way” at sexual
harassment the way the used to.
THE RIGHT TO BARGAIN PERSISTS, EVEN WHEN YOUR MOU EXPIRES
A Union Contract is a CONTRACT. Really. If you belong to a public employees association, your Contract
is your Memorandum of Understanding and, even if your MOU has “expired,” it remains in effect. The City
may not change any aspect of your Contract without bargaining. If your Contract has
not expired, your Association probably can’t be compelled to bargain at all! (Not
bargaining, nowadays, is probably a good thing.)
SLEEPING AT WORK MAY BE A SIGN OF A “PROTECTED” DISABILITY
The City gave me a termination notice because I have fallen asleep several times at
my desk. I went to a meeting and brought a letter from my doctor, explaining that I
have sleep apnea. But they fired me anyway. Is there anything I can do?
WHEN DOES THE CITY HAVE THE RIGHT TO BREAK YOUR CONTRACT?
The Labor Agreement between your Association and the City -- your MOU -- is a Contract. The
enforcement of that Contract (your right to expect that your negotiated “wages hours and working conditions”
will be honored) is rooted in the “Contracts Clause” of the U.S. Constitution. It literally says that written
agreements may be upheld by force of law: people or entities that violate contracts can be sued. Contracts
can be enforced.
WHEN YOUR CO-WORKER HAS A COMMUNICABLE ILLNESS
If a co-worker truly has a serious, communicable illness, he should NOT be at work. If he doesn’t stay home
voluntarily, the City should send him for a fitness for duty exam to make sure he isn’t contagious. The
problem with most illnesses is that we are the most contagious before the disease actually “manifests.”
WHAT IF MY JOB MAKES MY (PRE-EXISTING) INJURY WORSE?
Everyone knows that you can file a workers compensation claim if you are hurt on the job. But what if you
are hurt (or sick) from causes outside your job, and the condition becomes worse as the result of the duties
you perform?
LABOR-MANAGEMENT COMMITTEES:
SOLVING WORKPLACE PROBLEMS, EVEN DURING HARD TIMES
As the depression deepens for public agencies, the potential for conflict between labor and management
only increases. Why? Because public employers are under increasing pressure (both financially and
politically) to squeeze more money out of employee wages and benefits. Your union’s job, of course, is to
prevent this. This creates conflict….
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Know Your Rights Page 45
HEALTH CARE FOR “THE WORKING POOR” (Sitting Next to You)
Did you know that California was one of the first states to create a universal health care system? In 2003,
Gov. Gray Davis signed legislation which required employers of more than 50 people to provide all
employees with health insurance, or pay a fee to the state so that it could provide insurance. Before the
program could get off the ground, though, it was repealed by voter referendum.
AB1203: RELEASE TIME FOR ASSOCIATION LEADERS
This bill will allow employee association leaders in cities and utility districts “reasonable time off”
for representation of co-workers and for attending organizational events. Under current law,
the right to paid time for union business is strictly limited to contract negotiations.
WHAT TO DO ABOUT A BOSS WHO…
If you have a problem supervisor, whether he or she is nasty or discriminatory or incompetent, the need to
get along is more important and, often, more difficult. This person has control over your livelihood. There are
no foolproof methods for getting along with difficult bosses, but here are a few tactics we can recommend.
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