Legal Update Fire Agencies Insurance Risk Authority (FAIRA) | June 17, 2019

1. Legal UpdateFire Agencies Insurance Risk Authority (FAIRA) | June 17, 2019 Presented By: Morin I. Jacob

2. California Legislature Responds to “#MeToo Movement”….

3. AB 2770 – Privileged Communications for Employee Sexual Harassment Complaints • Civil Code 47 provides employers defense to defamation for factual information provided for current and former employees to prospective employers • AB 2770 expands this privilege as follows: • Complaints of sexual harassment made by an employee without malice to an employer based on credible evidence • Communications without malice between an employer and interested persons regarding sexual harassment complaint, and/or whether employer would rehire based on determination of employee engaged in sexual harassment

4. New Laws to Impact Settlement Agreement Confidentiality • AB 3109 • Prohibits contract or settlement agreement entered into after January 1, 2019 from limiting or waiving right to testify concerning alleged criminal conduct or sexual harassment • SB 820 • Prohibits settlement agreements entered into after January 1, 2019 from containing confidentiality provisions related to allegations of sexual harassment • SB 1300 • Prohibits confidentiality agreement or non-disparagement agreement as condition of employment. Also prohibits waiver of FEHA claims unless voluntarily negotiated

5. SB 1300 – Multiple Changes to FEHA Discrimination/Harassment Laws • Amends FEHA discrimination/harassment laws • “Severe or pervasive” legal standard rejected and single incident of harassment can create liability • No variance in liability for harassment based on work environment • Establishes legislature’s intent that harassment claims are rarely appropriate for summary judgment • Limits employer’s ability to recover attorney’s fees • Option for employers to provide bystander intervention training

6. SB 1343 – Expansion of Harassment Training to Nonsupervisory Employees • Expands harassment training requirements to nonsupervisory employees by January 1, 2020: • Requires one (1) hour of harassment training for nonsupervisory employees every two (2) years • Trainings must be provided to nonsupervisory employees within six (6) months of hire • Seasonal/temporary employees (hired to work less than six (6) months) – beginning January 1, 2020: • Requires one (1) hour of harassment training within 30 calendar days of hire or first 100 hours worked, whichever comes first

7. AB 2282 – Clarification of New Salary History Prohibitions (AB 168) • Labor Code Section 432.3 (AB 168) prohibits employers from using prior salary history information in employment decisions • AB 2282 clarifies law (Effective January 1, 2019): • Clarifies a “pay scale” means a salary or hourly wage range. • Clarifies a “reasonable request” for a pay scale can be made after an applicant has an initial interview • Permits employer to ask applicant for salary expectation for job position • Current employee who applies for new position at same employer is not an “applicant” • Clarifies that employer can make compensation decision based on current employee’s existing salary so long as decision is in compliance with permissible factors under law

8. CPRA Requests • Permits a public agency employer to recover, from the requestor of public records, the actual costs to the agency of redacting information from electronic records in response to a request for electronically stored public records. • National Lawyers Guild v. City of Hayward (2018) 27 Cal.App.5th 937 (Review granted by California Supreme Court, but case remains published in interim.)

9. CPRA Requests • Right to access privately held records does not establish Constructive Possession for a CPRA request. • Anderson-Barker v. Superior Court (City of Los Angeles) (2019) 31 Cal.App.5th 528.

10. Personnel - Discipline • A probationary police officer has a constitutional right of privacy that could preclude discipline for an extra-marital affair with a fellow officer. • Perez v. City of Roseville (2018 9th Cir.) 2018 WL 797453. • Withdrawn and superseded on May 21, 2019

11. Personnel - Discipline • Office of Inspector General’s interviews of correctional officers did not trigger POBR right to representation. • Blue v. California Office of the Inspector General (2018) 23 Cal.App.5th 138.

12. Personnel - Discipline • Probationary employee did not hold property interest in employment. • Palm v. Los Angeles Department of Water and Power (9th Cir. 2018) 889 F.3d 1081.

13. Personnel - Discipline • Last Chance Agreement violated public employee’s free speech rights as a private citizen speaking on matters of public concern. • Barone v. City of Springfield, Oregon (9th Cir. 2018)902 F.3d 1091.

14. Personnel – Gag Orders • PERB holds that County’s standard gag order, contained in notice of administrative leave, violated employee’s rights. • County of Santa Clara, PERB Decision No. 2613-M (2018).

15. Qualified Immunity – Individual Liability for Constitutional Violations • Qualified Immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. • Qualified Immunity protects all but the plainly incompetent or knowing violators. • Supreme Court has instructed courts not to define clearly established law at a high level of generality • Kisela v. Hughes (2018) 138 S. CT. 1148.

16. Personnel – Retaliation • Paid administrative leave may constitute adverse employment action. • Whitehall v. County of San Bernardino (2017) 17 Cal.App.5th 352.

17. Discrimination - Harassment • Employers must provide employees notice of the workplace rights of victims of domestic violence, sexual assault, or stalking. • Labor Code Section 230.1.

18. Discrimination - Gender • Sexual orientation claim survives summary judgment because of comments about personal appearance. • Husman v. Toyota (2017) 12 Cal.App.5th 1168.

19. Discrimination - Disability • Employer defeats disability claims after employee could not show link between his post-discipline sleep apnea diagnosis and his failure to respond to 10 calls to work. • Alamillo v. BNSF Railway Company (9th Cir. 2017) 869 F.3d 916.

20. Thank You! Morin I. Jacob Office Managing Partner | San Francisco Phone: 415.512.3036 | mjacob@lcwlegal.com www.lcwlegal.com/our-people/morin-jacob