February 2013 - Issue 12

Parks and Recreation Academy

Authority Now Provides Self-Service Basic Evidences of Coverage

Jeff Rush, Workers’ Compensation Program Manager

Company Can’t Fire Workers for Complaints Made on Facebook, NLRB Rules

California Supreme Court Makes Recovery of Damages More Difficult In Bias Cases

California Legislature Passes Social Media Privacy Law

News: Worthy

Parks and Recreation Academy

The California JPIA Parks and Recreation Academy was held February 11 – 13, 2013 at the Shorebreak Hotel in Huntington Beach. Butch DeFillippo, managing partner for PlaySafe, LLC and his team facilitated the three–day academy which consisted of ten sessions designed for parks and recreation directors, managers, and supervisors. 

"People come from a variety of communities and programs, so their perspectives and challenges vary greatly. The Academy audience also reflects a range of experience levels, from seasoned professionals to people who are just starting to investigate the park and recreation profession," reflected DeFillippo. With that in mind, the core curriculum for the Academy provided participants with strategies for developing new programs and evaluating existing ones, staffing, overseeing special events, and providing safe environments in parks and aquatic centers. Sessions included:

  • Parks and Recreation Risk Management
  • Playground Safety and Defending Your Agency Against Playground Litigation
  • Preparing a Parks and Recreation Master Plan: Protecting Citizens Now and In the Future
  • Public Input Process: Meetings with Meaning and Essentials of Grant Writing
  • Safe Facilities: Conducting a Facilities Risk Review
  • Emergency Plans
  • Recreation for Tomorrow: Keeping Safety First
  • Contracts and Joint Use Agreements
  • Aquatics Risk Management

33 participants representing twenty–two agencies attended the specialized academy. Adriene Braddock, a first time attendee and new Recreation Supervisor with the City of Moorpark commented, "I’m new to risk management. The Contracts and Joint Use Agreements session was particularly relevant in the parks and recreation field." Steve Bell, Community Services Manager with the City of Mission Viejo, said, "Honing skills and adding to members' knowledge base is key focus at California JPIA. The Academy was one of the most informative and comprehensive training programs that I have attended." 

The next Parks and Recreation Academy will be offered in early 2014. For more information about the Academies offered by the California JPIA, please contact Catherine Sloan, Senior Training Specialist, at csloan@cjpia.org. 


News: Worthy

Authority Now Provides Self-Service Basic Evidences of Coverage

The Authority is pleased to announce that a self-service function is now available for obtaining basic Evidence of Coverage letters. This new self-service function will allow members to download an evidence letter immediately without needing to submit a request to the Authority. All other requests for evidences of coverage remain the same, including members that need an Evidence of Coverage naming a third party as an additional Protected Party (or Additional Insured). These requests still require members to receive approval by the Authority before the Evidence is provided to a third party.

Evidence of Coverage, sometimes referred to as a Certificate of Insurance (not to be confused with the Certificates of Coverage provided by the Authority), provides documentation of liability and/or workers' compensation coverage, and is commonly issued to third parties, such as individuals, vendors, companies, schools and/or other agencies.

In order to obtain any Evidence of Coverage, please visit the Authority’s site page at http://eoc.cjpia.org/4dcgi/services/coverage_evidence.shtml. There you will be provided instructions on how to obtain evidences of coverage for any of the Authority’s programs.

If you have questions about Evidence of Coverage or have an urgent request, please contact Jim Thyden, Insurance Programs Manager.


Jeff Rush

Pro: Files

Jeff Rush, Workers’ Compensation Program Manager

"The experts say when it comes to starting a job search, there’s no time like the present — except, maybe, if the present happens to be during a major life change, a big project at work, or the during the holidays," laughs Jeff Rush, Workers’ Compensation Program Manager. 

Rush joined the California JPIA as Workers’ Compensation Program Manager in December. "The stars will never align perfectly in your job search and if you wait for them to do so, a great opportunity could be missed. The California JPIA is very well–respected in the risk pool industry and I didn’t want to miss the opportunity — even if it meant changing jobs during the hectic holiday season", said Rush. 

Rush has an extraordinary record of experience, with over 19 years in the workers’ compensation field as an examiner, supervisor, manager, and independent auditor. In addition, he has 17 years working with public agencies, with the last eight years working directly for joint powers authorities. 

During his brief tenure with the California JPIA, Rush has spent significant time traveling and meeting with members. "My role as Workers’ Compensation Program Manager is to develop collaborative partnerships between members, York Risk Services Group, and the Authority’s regional risk managers. Much of my time will be spent assessing members’ needs and working with members to resolve workers’ compensation and risk management issues."

Jeff and his wife have three children. It’s all about kids and sports on the weekends — he and his wife juggle swim meets, and soccer, basketball, and hockey games (his daughter can’t wait to play hockey in Southern California). Jeff is a loyal San Jose Sharks and World Series Champions San Francisco Giants fan...and he doesn’t plan on becoming a Los Angeles Kings or Dodgers fan anytime soon. 


Legal Matters

Company Can’t Fire Workers for Complaints Made on Facebook, NLRB Rules

by Paul Zeglovitch, Liability Program Manager

(Reprinted from Jackson Lewis LLP, December 27, 2012)

In an apparent expansion of the National Labor Relations Board’s traditional view of protected concerted activity, the Board has affirmed an administrative law judge’s finding that an employer violated the National Labor Relations Act by firing five employees for posting Facebook comments in response to a co–worker’s criticism of their job performance. Hispanics United of Buffalo Inc., 359 NLRB No. 37 (Dec. 14, 2012).

Factual Background

Lydia Cruz–Moore and Marianna Cole–Rivera were employed by Hispanics United of Buffalo ("HUD") to assist victims of domestic violence. Cruz–Moore was often critical of her HUD co–workers. She told Cole–Rivera that she thought her co–workers failed to provide prompt and adequate assistance to clients. On Saturday, October 9, 2011, Cruz–Moore sent a text message to Cole–Rivera stating that she (Cruz–Moore) planned to report her co–workers’ poor job performance to HUD’s Executive Director. 

On her personal computer, Cole–Rivera responded to Cruz–Moore’s text message, posting the following message on her Facebook page:

Lydia Cruz, a coworker feels that we don’t help our clients enough at [Respondent]. I about had it! My fellow coworkers how do u feel?

Four HUD employees who were off–duty posted comments in reply to Cole–Rivera’s Facebook message. The responses generally objected to Cruz–Moore’s assertion that the employees’ work performance was substandard.

Cruz–Moore saw the comments on Facebook and complained to HUD’s management that she had been slandered and defamed. HUD subsequently terminated Cole–Rivera, along with the other four employees who posted replies on Facebook, for violating the company’s zero–tolerance policy with respect to "bullying and harassment."

One of the terminated employees filed a charge with the NLRB alleging that HUD violated Section 8(a)(1) of the Act by terminating the five employees in response to their Facebook comments.

NLRB’s Ruling

Section 8(a)(1) bars employers from interfering, restraining, or coercing employees in the exercise of their rights, guaranteed by Section 7 of the Act, to engage in concerted activity for their mutual aid or protection. 

In this case, the Board majority agreed with the Administrative Law Judge ("ALJ") that the terminated employees were engaged in concerted activity for their mutual aid and protection. The ALJ concluded that the Facebook comments constituted protected activity because the employees "were taking a first step towards taking group action to defend themselves against the accusations they could reasonably believe Cruz–Moore was going to make to management."

Member Brian Hayes dissented from the majority’s opinion, arguing that the Facebook comments were not undertaken for the purpose of the terminated employees’ "mutual aid and protection." Member Hayes noted that there was "no credible evidence that Cole–Rivera made her initial posting with the intent of promoting a group defense, or that her co–workers responded for this purpose." To the contrary, Member Hayes would characterize the Facebook comments as "shop talk" or "group griping," which has not traditionally risen to the level of protected activity. 

Disagreeing with Member Hayes, the Board majority emphasized the Board’s longstanding position that Section 7 protects employee discussions about job performance. Therefore, because the Facebook comments in this case plainly related to the employees’ job performance, the majority held the employees were "clearly engaged in protected activity in mutual aid of each other’s defense" to Cruz–Moore’s criticisms of their work performance.

The Board concluded the terminations violated Section 8(a)(1) of the Act because the employees were terminated solely as a result of their Facebook postings and those Facebook comments were protected under the Act.

Implications

The Board’s decision opens the door to the argument that any discussion among co–workers pertaining to workplace matters could be considered "protected" under the NLRA, regardless of whether such discussion is undertaken to initiate or prepare for group action in the interest of employees. While the Facebook comments posted by the HUD employees in this case certainly communicated mutual disagreement with Cruz–Moore’s criticism of their job performance, they did not suggest or contemplate taking any action in response to this criticism. Yet, the Board concluded that the comments were undertaken for mutual aid and protection. The majority’s ruling under these circumstances demonstrates an expansion of the NLRB’s traditional definition of protected concerted activity. 

Public agencies are not subject directly to the jurisdiction of the National Labor Relations Board ("NLRB"), which administers the National Labor Relations Act ("NLRA"). A long line of California court cases (Fire Fighters Union v. City of Vallejo (1974) 12 Cal. 3d 608) and Public Employment Relations Board ("PERB") cases have held that state courts and the PERB may refer to NLRA cases when interpreting the Meyers–Millias–Brown Act if the language of the two laws is parallel, even though NLRA cases are not binding on the public sector. As a consequence, NLRA cases can be both instructive and cautionary for public sector employers.

Should your agency be faced with a situation similar to the case discussed above, we strongly urge consultation with your labor and employment counsel before taking action. The California JPIA’s Employment Intervention Assistance Program (EIAP) is also available to serve in an advisory capacity. If you have questions about the Authority’s EIAP or the NLRB Facebook ruling, please contact Paul Zeglovitch, Liability Program Manager at pzeglovitch@cjpia.org or (562) 467–8786. 


The Court Report

California Supreme Court Makes Recovery of Damages More Difficult In Bias Cases

(Reprinted from the Society for Human Resource Management (SHRM), February 11, 2013)

The California Supreme Court issued a unanimous opinion on Feb. 7, 2013, that has "far–reaching implications for employment cases throughout the state" by requiring judges to give juries mixed–motive instructions in bias cases, Anthony Oncidi, an attorney in Proskauer’s Los Angeles office told SHRM Online. 

The state’s highest court set forth a new legal standard that an employee must meet to prevail in a jury trial. Employees can no longer win by proving that discrimination was simply "a motivating reason" for the adverse job action. An employee must now show that discrimination was a "substantial factor motivating his or her termination." Further, even when the employee meets this burden, if the employer shows that it would have made the same decision absent any bias, the court may not award damages, back pay or reinstatement. The employee may, however, obtain an injunction against the employer prohibiting further discrimination, and he or she may also recover reasonable attorney’s fees.

This case "has a significant practical impact for how these cases get tried," said Linda Shostak, an attorney with Morrison & Foerster in San Francisco. "This has been an issue percolating around trial courts for 20 years: How do you acknowledge that a mixture of motives might have been in play" when an employment decision was made? 

"As a result of this opinion, some employees will not be able to recover any form of monetary damages even if they can prove they were the victims of discrimination," Oncidi said. He added that the case will "make it more difficult for plaintiffs’ lawyers to find clients who are willing to go the distance in prosecuting a discrimination case, because those people may end up with no monetary recovery." 

Pregnant Bus Driver Fired by City

Wynona Harris was hired by the City of Santa Monica as a bus driver trainee in October 2004. During her training period, she had a "preventable accident" where she cracked the glass on the bus’s back door. After completing her training, Harris was promoted to probationary part–time driver. During the three–month probationary period, Harris was involved in a second "preventable accident" in which she sideswiped a parked car. In February 2005, she reported late to work and received her first "miss–out." Under the city’s job performance guidelines, a miss–out is defined as a driver’s failure to give his or her supervisor at least one hour’s notice that the driver will not be reporting to an assigned shift. In March 2005, Harris received a written performance evaluation covering her first three months as a probationary driver. Her supervisor gave her a rating of "further development needed."

The next month, Harris incurred another miss–out. According to Harris, the stress from attending her daughter’s juvenile court hearing that day caused her to forget to notify the dispatcher that she would be late for her shift. Bob Ayer, the transit services manager, investigated the circumstances and later, after reviewing her personnel file, told the bus company’s assistant director that Harris was not meeting the city’s standards for continued employment. On May 12, Harris told her supervisor that she was pregnant. Four days later, her employment was terminated. Harris sued the city, claiming that she was fired because of her pregnancy in violation of the California Fair Employment and Housing Act (FEHA).

At trial, the city maintained that Harris was fired for poor job performance and asked the court to instruct the jury with a mixed–motive instruction. The instruction stated: "If you find that the employer’s action, which is the subject of plaintiff’s claim, was actually motivated by both discriminatory and nondiscriminatory reasons, the employer is not liable if it can establish by a preponderance of the evidence that its legitimate reason, standing alone, would have induced it to make the same decision." The trial judge refused to give this instruction. Instead, the jury was instructed that the city should be held liable if Harris’ pregnancy was a "motivating factor/reason for [her] discharge." The jury found in favor of Harris and awarded her $177,905 in damages and $410,187 in attorney’s fees and costs. The city appealed the decision.

The California Court of Appeal reversed the award in favor of Harris and held that the jury should have been told that evidence showing the city was motivated by mixed factors in terminating Harris would entitle the city to a complete defense.

Supreme Court Takes Middle Ground 

The high court noted that FEHA grounds liability on discrimination "because of" a protected trait and found three possible meanings of that phrase: proof that bias was the "but–for" cause, a "substantial factor" or a "motivating factor" in the challenged employment decision. At the trial court, Harris had argued for "a motivating factor" jury instruction, while the city sought an instruction requiring "but–for" causation. The court rejected both positions and found some middle ground.

The high court said that if discrimination was a "substantial" factor in a worker’s termination, an employer shouldn’t escape all liability, even if the firing was tied to legitimate shortcomings. "We believe that allowing a same–decision showing to immunize the employer would tend to defeat the purposes of" FEHA, the court said. "Such discrimination, even if not a ’but–for’ cause of the disputed employment action, would breed discord and resentment in the workplace if allowed to be committed with impunity."

The court also rejected the request of Harris and employee groups who submitted "friend–of–the–court" briefs in her favor to award damages, reinstatement and back pay in these types of cases.

"Although such remedies might help to ’prevent and deter unlawful employment practices,’ they would do so only at the cost of awarding plaintiffs an unjustified windfall and unduly limiting the freedom of employers to make legitimate employment decisions," the court said. The end result of the position taken by the high court is that, even if an employee shows bias, once the employer demonstrates that it would have made the same decision absent any illegal motive, the court may not award damages, back pay or reinstatement. The employee, however, may obtain an injunction against the employer prohibiting further discrimination and may recover reasonable attorney’s fees.

"I think it is interesting that the court went its own way and did something different" from what was requested by the parties, Shostak said. 

Oncidi noted that although the mainstream press "is saying no one won" because of the middle ground taken by the court, that wasn’t entirely true. "These cases are usually about money," he said. They are not usually "about a policy or righting a wrong." 

Harris v. City of Santa Monica, Calif., No. S181004 (Feb. 7, 2013).

Joanne Deschenaux, J.D., is Society for Human Resource Management’s senior legal editor. 


Risk Solutions

California Legislature Passes Social Media Privacy Law

by Alex Mellor, Risk Manager

On January 1, 2013, California followed the legislative trend at both federal and state levels by enacting AB 1844 (Campos): Employer Use of Social Media, which limits an employer’s right to access employees’ or applicants’ personal social media. In a statement on the State Assembly’s website, Campos stated that employers are likely to create biases from the private information a current or prospective employee had on their social media account. Campos saw this bill as a "preemptive measure" that provides firm guidelines to employers regarding the accessibility of private information. The law is a clear attempt to balance a current or prospective employees’ right-to-privacy with the legitimate business interests of the employer.

The law explicitly prohibits an employer from requiring or requesting an employee or applicant for employment to disclose a username or password for the purpose of accessing personal social media, to access personal social media in the presence of the employer (known as "shoulder surfing"), or to divulge any personal social media. The law also prohibits an employer from discharging, disciplining, threatening to discharge or discipline, or otherwise retaliating against an employee or applicant for not complying with a request or demand by the employer that violates these provisions. Under the law, "social media" includes social media services and accounts, as well as content such as videos, photos, blogs, podcasts, text messages, email, and website profiles and locations.

While other states have enacted similar "password protection legislation", California's law contains a critical exception for employers. The exception permits employers to ask an employee to divulge personal social media content that the employer "reasonably believe[s] to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations" provided that the social media is used solely for purposes of that investigation or a related proceeding. Employers may also require or request an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device.

Members should be aware that the above exceptions do not apply to job applicants. Specifically, employers may not legally request access to an applicant’s personal social media as part of a pre-employment background investigation or other hiring process.

It is also important to note that the law places no restriction on employers’ access to publicly available social media content. Content available in the public domain is fair game.

In light of this new law, the Authority recommends that members review their employment and hiring practices and social media policies to ensure compliance. Please contact your assigned risk manager if you have questions about the new legislation.