Public Sector 2017 Richard A Paul Esq Paul

Public Sector 2017 Richard A. Paul, Esq. Paul, Plevin, Sullivan & Connaughton LLP San Diego rpaul@paulplevin. com 13 th Annual Labor and Employment Law Advanced Practices Symposium

Problem 1: How can you tell when an employee is engaged in protected speech? n The Garcetti test: • Is the speech made in the course of the employee’s job duties? n If so, no constitutional protection and the inquiry ends • If not, is the speech on a matter of public concern? n If not, the inquiry ends • If so, do the employer’s interests outweigh the free speech values? 13 th Annual Labor and Employment Law Advanced Practices Symposium

Free Speech and Expression after Garcetti n Cops reporting cops: Just in a day’s work, or citizen speech? • Compare: Seifert v. Unified Government of Wyandotte County/Kansas City (10 th Cir. , 2015) • With: Matthews v. City of New York (2 d Cir. , Feb. 26, 2015, 13 -2915 -CV) 13 th Annual Labor and Employment Law Advanced Practices Symposium

Free Speech and Expression after Garcetti n Criticism of management and the budget: Unprotected griping or protected free speech on a matter of public concern? • Turner v. City and Cnty. Of San Francisco, 788 F. 3 d 1206 (9 th Cir. 2015) 13 th Annual Labor and Employment Law Advanced Practices Symposium

Free Speech and Expression after Garcetti n Is there “regarded as” protection? • Heffernan v. City of Paterson, 136 S. Ct. 1412 (2016) 13 th Annual Labor and Employment Law Advanced Practices Symposium

Free Speech and Expression after Garcetti n Is social media speech, like, protected? • Graziosi v. City of Greenville Miss. , 775 F. 3 d 731 (5 th Cir. 2015) • Bland v. Roberts, 730 F. 3 d 368 (4 th Cir. 2013) 13 th Annual Labor and Employment Law Advanced Practices Symposium

Free Speech and Expression after Garcetti n Can retaliation be shown by aggregating lots of little slights and annoyances? • Yes. Thomas v. County of Riverside, 763 F. 3 d 1167 (9 th Cir. 2014) 13 th Annual Labor and Employment Law Advanced Practices Symposium

Free Speech and Expression after Garcetti n Can a public officer decline to attend religious or ethnic community events? • Fields v. City of Tulsa (10 th Cir. 2014) 753 F. 3 d 1000 cert. denied sub nom. Fields v. City of Tulsa, Okla. (2014) 135 S. Ct. 714 13 th Annual Labor and Employment Law Advanced Practices Symposium

Free Speech and Expression after Garcetti n Is academic speech exempt? • Faculty speech: Demers v. Austin, 746 F. 3 d 402 (9 th Cir. 2014) • Student speech: Oyama v. Univ. of Hawaii, 813 F. 3 d 850 (9 th Cir. 2015) n Do public teachers have a 1 st Am right not to pay union does? • Freidrichs v. California Teachers Association, 2014 WL 10076847 (9 th Cir. 2014, cert. granted June 30, 2015, oral argument Jan. 11, 2016, aff’d on a 4 -4 vote after Justice Scalia died. 13 th Annual Labor and Employment Law Advanced Practices Symposium

Problem 2: Due Process / Equal Protection n Is an at-will appointee entitled to a due process, pre-termination hearing? • Mc. Donald v. Wise (10 th Cir. 2014) 769 F. 3 d 1202. 13 th Annual Labor and Employment Law Advanced Practices Symposium

Due Process / Equal Protection n Police misconduct due process • Right to an attorney during investigation? n Quezada v. City of Los Angeles, 222 Cal. App. 4 th 993 (2014). • Right to be informed of charges prior to investigation? n Ellins v. City of Sierra Madre, 2016 WL 337383 (2016) 13 th Annual Labor and Employment Law Advanced Practices Symposium

Due Process / Equal Protection n Same-sex marriage issues • Constitutional right? n n Obergefell v. Hodges, 135 S. Ct 2584 (2015) Affirmative action in public education • Status post Scalia? n Fisher v. University of Texas, 136 S. Ct. 2198 (2016) 13 th Annual Labor and Employment Law Advanced Practices Symposium

Equal Protection in Public Education n Does the model of public education in which students in poorer schools often are serviced by the lowest performing instructors violate Due Process? • No, at least not yet. Vergara v. State of California, 2016 WL 4443590 (2016) n What is the status of the transgender bathrooms mandate? • GG v. Gloucester County School Board, 824 F. 3 d 450 (4 th Cir. 2016) 13 th Annual Labor and Employment Law Advanced Practices Symposium

Problem 3: Whistleblower Protections n Does a potential WB lose protection if the information he discloses is confidential? • Potentially yes, but only if the law defining the duty to keep confidential is clear and specific. Department of Homeland Security v. Mac. Lean, 135 S. Ct. 913 (2015). 13 th Annual Labor and Employment Law Advanced Practices Symposium

Whistleblower Protections n Does whistleblower protection for reporting violations of law extend to employees who report theft of personal items in the workplace? • Yes, at least in California, says Cardenas v. M. Fanaian, DDS, Inc. , 240 Cal. App. 4 th 1167 (2015), pet. rev. granted (Dec. 2015) 13 th Annual Labor and Employment Law Advanced Practices Symposium

Whistleblower Protections n Are managers entitled to FLSA whistleblower protections if they report suspected wage and hour noncompliance? • Depends. See Rosenfield v. Global Tranz Enterprises, 811 F. 3 d 282 (9 th Cir. 2015) n Are in house public agency lawyers protected if they blow the whistle on their client? 13 th Annual Labor and Employment Law Advanced Practices Symposium

False Claims Act Certifications n Do federal contractors who submit bids to perform public services impliedly warrant that they are in compliance with all regulatory requirements applicable to the task performed? • Yes, says SCOTUS, under the implied false certification theory. Universal Health Services, Inc. , v. U. S. , 136 S. Ct. 1989 (2016) 13 th Annual Labor and Employment Law Advanced Practices Symposium

Problem 4: Immunity and Privilege n Do states enjoy 11 th Amendment immunity from suits for damages under Title II of the ADA? • Used to be clear, becoming less clear: Miller v. Ceres Unified School Dist, ---F. Supp. 3 d ---, 2015 WL 6534390 (E. D. Ca. 2015) 13 th Annual Labor and Employment Law Advanced Practices Symposium

Immunity and Privilege n Does ignorance of the current law help in establishing qualified immunity? • Cutler v. Stephen F. Austin State University, 767 F. 3 d 462 (5 th Cir. 2014). 13 th Annual Labor and Employment Law Advanced Practices Symposium

Immunity and Privilege n Are electeds immune from the same standard as regular employees? • Hemminghaus v. Missouri, 756 F. 3 d 1100 (8 th Cir. 2014). 13 th Annual Labor and Employment Law Advanced Practices Symposium

Immunity and Privilege n Can local law enforcement employees be required to do immigration checks on suspects arrested for local or state law violations? • For discussion 13 th Annual Labor and Employment Law Advanced Practices Symposium

Problem 5: Privacy n Can public employees have a reasonable expectation of privacy in: • A. locked office safes? n James v. Hampton, 2015 WL 74945 [14 -1511] (6 th Cir. , Jan. 7, 2015). • B. desk drawers? n Khachatourian v. Hacienda La Puente Unified School Dist. (9 th Cir. 2014) 572 Fed. Appx. 556 cert. denied • C. office or homecomputers? n Hernandez v. Hillsides, Inc. , 47 Cal. 4 th 272 (2009); City of San Diego PRA litigation 13 th Annual Labor and Employment Law Advanced Practices Symposium

Problem 6: Disability/FMLA n In the public sector, does reasonable accommodation require: • 1. Elimination of an essential job function? • 2. Indefinite leave until a vacancy develops? n Nealy v. City of Santa Monica (2015) ____ Cal. App. 4 th _____ 13 th Annual Labor and Employment Law Advanced Practices Symposium

Disability/FMLA n Can a public employer do a fitness for duty return to work physical exam, even if the FMLA prohibits it? • White v. County of Los Angeles, 225 Cal. App. 4 th 690 (2014). 13 th Annual Labor and Employment Law Advanced Practices Symposium

Violence, Threats and Disabilies n To take action against a public employee who has made threats to others, do you have to have current clinical proof of danger to self or others? • Curley v. City of N. Las Vegas, 772 F. 3 d 629 (9 th Cir. 2014), following the logic of Wills v. Superior Court. 13 th Annual Labor and Employment Law Advanced Practices Symposium

Violence, Threats and Disabilities n Does a public university have a duty of care to students while in the classroom to warn and protect them from forseeable acts of violence by fellow students? • Case pending before the Cal. Supreme Court Regents of University of CA. v. Superior Court, S 230568, vacated opinion below 240 Cal. App. 4 th 1296 13 th Annual Labor and Employment Law Advanced Practices Symposium

Disability/FMLA n Tangerines, oranges or tangelos? : The importance of comparisons in a non-discriminatory leave program • Young v. United Parcel Service, Inc. , 135 S. Ct. 1338 (2015) 13 th Annual Labor and Employment Law Advanced Practices Symposium

Problem 7: Discrimination n Can you have a BFOQ for prison guards? • Teamsters Local No. 117 v. Wash. Dept. of Corrections, 789 F. 3 d 979 (9 th Cir. 2015) n Discrimination against Muslims gets strict scrutiny • EEOC v. Abercrombie & Fitch Stores, Inc. , 136 S. Ct 2028 (2015) n Is sexual orientation discrimination outlawed under Title VII? • Baldwin v. Dept. of Transp. , EEOC Doc. No. 0120133080, WL 4397641 (July 15, 2015) 13 th Annual Labor and Employment Law Advanced Practices Symposium

Problem 8: Public Safety FLSA and Compensation Issues n Firefighter training time • Misewicz v. City of Memphis, Tenn. 771 F. 3 d 332, 341 (6 th Cir. 2014). n Firefighter time transporting gear to temporary duty stations • Balestrieri v. Menlo Park Fire Prot. Dist. , 800 F. 3 d 1094 (9 th Cir. 2015) n Correction officer meal periods • Babcock v. Bulter Cty. , 806 F. 3 d 153 (3 d Cir. 2015) 13 th Annual Labor and Employment Law Advanced Practices Symposium

Compensation and Benefits n Do public entity retirees have a vested right to lifetime medical? • M&G Polymers, No. 13 -1010 (U. S. Jan. 26, 2015); but see Protect our Benefits v. City and County of San Francisco, 235 Cal. App. 4 th 619 (2015) [vested contractual right to COLA payments cannot be undone by ballot initiative]. Cases to watch. 13 th Annual Labor and Employment Law Advanced Practices Symposium

Problem 9: Union rights n NLRB decisions that may bleed over into the public sector • Employee use of employer emails for union purposes. Purple Communications, Inc. , 362 NLRB No. 126 (2014) • Employee use of tape recorders at work. Whole Foods Market, 363 NLRB No. 87 (Dec. 24, 2015); Franchini v. Argonne Labs, ARB • Private personnel and payroll information. Cellco Partnership dba Verizon Wireless, Inc, 2015 WL 5560242 (Sept. 18, 2015) 13 th Annual Labor and Employment Law Advanced Practices Symposium

Cases to Watch: Public Records Are emails, texts or other electronic communications relating to City business - • (a) sent or received by public officials and employees on their own private electronic devices, • (b) using their private accounts, • (c) not stored on City servers, and • (d) not directly accessible by the city -still “public records” under the Public Records Act? See City of San Jose v. Superior Court, pending SCOCA n 13 th Annual Labor and Employment Law Advanced Practices Symposium

Cases to Watch: Public Pensions n Can a public employer cut the pension offered to a new hire at the time of hire without offering offsetting new benefits of equal value? • A: A second appellate panel in CA says yes. Cal. Fire Local 2881 v. Cal. PERS, Case A 142793, --- Cal. App. 3 d --- (December 30, 2016) 13 th Annual Labor and Employment Law Advanced Practices Symposium

Thank You! Public Sector 2017 Richard A. Paul, Esq. Paul, Plevin, Sullivan & Connaughton LLP San Diego rpaul@paulplevin. com 13 th Annual Labor and Employment Law Advanced Practices Symposium