April 2013 - Issue 14

Participant Waiver Execution and Retention

Blabby Supervisor Violated Privacy Rights By Disclosing Worker’s Mental Disability

Judge Orders San Jose to Disclose Officials' Messages on Private Devices

Court Says Using Cell Phone GPS While Driving Is Illegal

Changes to Hazard Communications Coming

Skateboarding On City Streets – Yes or No?

Legal Matters

Participant Waiver Execution and Retention

by Paul Zeglovitch, Liability Program Manager

Although member agencies provide year round recreational opportunities to their residents, spring is always a good time to revisit policies and procedures as we head toward the summer season. Participant waivers should be at the top of your agency’s list when it comes to good risk management practices in recreation and public programs. 

Now is the time to explore questions regarding the use of waivers or the content of your agency’s waiver form. Take this opportunity to either create or review your waiver and compare it against the template that is available through the Authority’s Resource Center. The language contained within the waiver is key and should include, but not be limited to, the following:

• A description and location of the activity to include any field trip locations. This information will remove any confusion as to what activities the waiver is releasing and where. 
• A time period for the activity, not to exceed one year. Sound practice is to conduct renewals of the agreement that will be more current and applicable should they be needed in litigation.

The recommended release and indemnity language recommended can be found within the Authority’s Participant Waiver and Release document (Resource Center; keyword participant waiver). 

In addition to the information above, it is important to have the waiver properly executed. That may seem obvious, but when minors are involved it becomes more important. Have the verbiage in the waiver specify that the signing party declares that they are a parent or legal guardian of the minor involved. It is also helpful if the signing party indicates what their relationship is to the minor. This can be accomplished through selecting grandparent, parent, legal guardian, step-parent or “other” (please explain). We recommend obtaining wet signatures when possible, however when using electronic forms, secure any information available regarding the origin of the online submission and retain same, along with the form. 

The retention of waivers is just as important as obtaining them. These waivers are a critical piece of information in formulating a litigation defense for your agency. Having them in an organized, easy to locate format is important. Computer retention is best from an organizational and space standpoint, however if that is not possible due to workload, there should be an indexing system for the paper files that is easy to understand (by more than one employee) and follow. We recommend retention of these records for three years from the date of signature and urge your agency to amend your document retention policy accordingly. 

If you have questions or need additional assistance regarding participant waivers, please contact your assigned Risk Manager.



The Court Report

Blabby Supervisor Violated Privacy Rights By Disclosing Worker’s Mental Disability

Reprinted from Barker Olmstead & Varnier - April 9, 2013
by Christopher W. Olmsted

Human resources managers know better than to disclose private medical information about employees. Supervisors may not. In a recent California appellate court case titled Ignat v. Yum! Brands, Inc., the company learned what legal misfortunes are in store when a supervisor doesn’t “zip it.” 

You Did Not Just Say That
Melissa Ingat worked for Yum! Brands, the corporate parent of several fast food franchises, such as Taco Bell, Pizza Hut, and KFC. Yum employed Ignat in its Real Estate Title Department. 

Ms. Ignat suffered from bipolar disorder, for which she was being treated with medications. Sometimes these were effective, sometimes not. Side effects of medication adjustments occasionally forced Ms. Ignat to miss work.

Apparently her co-workers did not know she was bipolar. But that changed when a supervisor gossiped about her condition during one leave of absence. After that, Ms. Ignat’s coworkers allegedly avoided and shunned her. 

The employee filed suit against Yum! Brands and the supervisor, for “invasion of privacy by public disclosure of private facts.”

The company denied that the supervisor had discussed the employee’s mental illness, and claimed that the employee herself had disclosed her condition to some of her co-workers.

Invasion or Not? 
In any event, the trial court granted summary judgment in favor of Yum! on a technicality. It ruled that the legal claim for invasion of privacy by public disclosure of private facts required that the disclosure be made in writing, not verbally.

On appeal, the court reversed the ruling, finding that the law does not require that the disclosure be in writing. 

A claim for invasion of privacy by disclosure of private facts includes the following elements: (1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to the reasonable person and (4) which is not of legitimate public concern.

The legal claim has its origins in Roaring Twenties Hollywood. In a 1931 case titled Melvin v. Reid, a reformed prostitute who had married and led a respectable life for some years became the subject of a 1925 silent movie, "The Red Kimono," closely based on the lurid details of her former life. Although an actress played her character, the film used her real name. Inexplicably, it appears that the filmmakers also went out of their way to reveal her married name. She sued for invasion of privacy and other causes of action. In that case, the court ruled that the right of privacy can only be violated by printings, writings, pictures, or other permanent publications or reproductions, and not by word of mouth.

In the Yum! case, the court rejected the restriction that the legal claim cannot be raised where the revelation of private facts is mad verbally. Accordingly, the claim against Yum! and its supervisor based on verbal comments about the mental disability could proceed. 

Workplace Privacy
Disclosure of private facts is not the only way an employer might violate an employee’s right to privacy. Legal analysts note that privacy interests generally fall into two categories: (1) “Informational privacy” which precludes disclosing sensitive and confidential information; and (2) “Autonomy privacy” which gives employees the right to making intimate personal decisions or conducting personal activities without observation or interference. Invasion of privacy claims are often seen in the following circumstances, among others: 

• Disclosure of medical information
• Suspicionless drug tests, except pre-hire exams and certain random drug tests
• Disclosure of reasons for termination to those not privileged to know
• Monitoring computer use or emails, video surveillance, secret audio recordings, where there is a reasonable expectation of privacy
• Searches of employees and their property, with exceptions
• Unreasonably intrusive investigations

Before intruding into any of these areas, a company should consult with legal counsel to ensure that it is lawful. 

Medical information and other sensitive data about employee should be stored in a secured location with limited access. Exercise control and care when disclosing information to company representatives for a variety of legitimate business reasons, including accommodations. Fundamentally, employers should train supervisors to refrain from disclosing confidential information about employees.



The Court Report

Judge Orders San Jose to Disclose Officials' Messages on Private Devices

Reprinted from the San Jose Mercury News - March 20, 2013
by John Woolfolk

SAN JOSE -- A Santa Clara County judge has ruled that San Jose must provide city officials' private text messages, emails or other electronic communications about city affairs in response to an activist's request, a potentially far-reaching decision that could settle a growing dispute over what open-government advocates say has become a glaring loophole in the state's public records law.

"This is an important decision," said Peter Scheer, executive director of the First Amendment Coalition, a Santa Rosa-based nonprofit organization dedicated to advancing free speech and open government. "It's an important advance. The judge has got to be right. Because if he's not right, then personal email accounts and personal texting accounts would constitute such a huge loophole in open government laws that they would basically render the basic requirements of the law meaningless." 

City Attorney Rick Doyle could not say whether the city will appeal because he hasn't discussed the decision with the City Council. But he agreed that its potential would be broad, arguing it could be troubling on both practical and privacy grounds.

"It has implications statewide," Doyle said. "We have some real concerns about it."

The ruling by Santa Clara County Superior Court Judge James P. Kleinberg on Friday was a victory for San Jose activist Ted Smith, who sued the city in August 2009 over its refusal to disclose officials' personal electronic communications in response to his request. Smith had requested emails, texts and other messages sent to and from personal devices by Mayor Chuck Reed, council members and redevelopment officials about city business including subsidizing a development in San Pedro Square downtown on property owned by former Mayor Tom McEnery and his family. 

Smith's attorney, James McManis, said the city's refusal to provide the records was ironic given that Reed had championed open-government "sunshine reforms" and San Jose's groundbreaking policy, adopted in January 2010, that declared such personal electronic messaging by council members and their staff subject to disclosure.

"We hear about the Reed Reforms and sunshine, but when we ask to see the emails on private devices, we're refused," McManis said. "That's why I'm really happy we won."
Reed was traveling out of state, and his office had no immediate comment.

Smith, an environmental activist who founded the Silicon Valley Toxics Coalition, and McManis, a prominent lawyer, have a history of taking on City Hall on such things as lobbying regulations and campaign finance restrictions that McManis argued abridge free speech rights.

"His interest is summarized in two words," McManis said of his client. "Good government."

McManis had filed a complaint on behalf of an anonymous critic in 2008 accusing McEnery of violating the city's lobbying laws in meetings with city officials about subsidizing his San Pedro development plans. City commissioners who enforce the lobbying laws dismissed the complaint after their outside investigators deemed it largely without merit.

Smith's suit over the electronic records argued the city violated the California Public Records Act by refusing to turn over messages from personal phones and other devices in response to his June 2009 request. It named as defendants Reed, the City Council, the now-defunct redevelopment agency and its former director, Harry Mavrogenes.

The suit came as a growing nationwide battle waged over the line between government officials' public and private lives, as lawmakers embraced technology that enabled portable wireless phones to send and receive email and short text messages.

Doyle has previously pointed to arguments raised by the League of California Cities and the California State Association of Counties in fighting a Tracy newspaper's effort to compel a city councilwoman to produce personal emails on a proposed development. They contended that compelling disclosure from officials' personal accounts would be impractical because the government agency does not control access and storage. They also argued that such requests raise privacy concerns because messages regarding official business may be mingled with others about private matters. Doyle said that if the state Legislature intends for officials' private accounts to be subject to disclosure it should say so.

San Jose made headlines in January 2010 with its policy declaring personal texts, emails and other electronic messages of council members and their staff subject to disclosure. But the question of whether the California Public Records Act covers personal devices and accounts of public officials had remained unresolved, as the Tracy newspaper lost its 2007 case on appeal over a technicality. Scheer said that if Judge Kleinberg's decision stands, it would change that.

"It is, I believe, a correct interpretation and goes beyond certainly the practices of most cities and local governments," Scheer said. "It would bring a lot more of the most important communications within local governments within the jurisdiction of the Public Records Act."


GPS

The Court Report

Court Says Using Cell Phone GPS While Driving Is Illegal

A recent court decision views “hands-on” cell phone use broadly. Using the map application on your cell phone is prohibited the court opined. In fact, the use of any application while holding a cell phone is a distraction while driving. Members are encouraged to review their Vehicle Use or Cell Phone Policies to ensure the policies address the recent decision. 

Reprinted from the Metropolitan News-Enterprise - April 3, 2013

The California law that bans using a cell phone to text or talk while driving also bars using the mapping function of the device, the Fresno Superior Court Appellate Division has ruled in a published opinion. 

The March 21 decision was published on the state courts’ website yesterday after the Fifth District Court of Appeal declined to consider the appeal by Steven R. Spriggs. Spriggs was cited in January of last year by a California Highway Patrol officer who said the motorist was viewing a map while holding his phone in his hand. 

Fresno Superior Court Commissioner Jeffrey Bird found Spriggs guilty of violating Vehicle Code Sec. 23123(a), which says:

“A person shall not drive a motor vehicle while using a wireless telephone unless that telephone is specifically designed and configured to allow hands-free listening and talking, and is used in that manner while driving.” 

Judge W. Kent Hamlin, writing for the Appellate Division, agreed that viewing a map on a cell phone while driving violates the statute. 

“Our review of the statute’s plain language leads us to conclude that the primary evil sought to be avoided is the distraction the driver faces when using his or her hands to operate the phone,” he said. “That distraction would be present whether the wireless telephone was being used as a telephone, a GPS navigator, a clock or a device for sending and receiving text messages and emails.”

Hamlin cited the legislative history, including a committee report that said the law was intended “to improve reaction time in the event of an emergency by requiring both hands to be on the wheel.” If the Legislature had only been concerned about phone conversations, as Spriggs—who represented himself on appeal—contended, it could have limited the proscription to “conversing” or to “listening and talking,” the judge said. 

The judge acknowledged that after enacting the statute, the Legislature revisited the issue and passed a new law extending the prohibition to communications devices that are not “wireless telephones,” and that the author of Sec. 23123(a) suggested at that time that the expanded legislation would be more difficult to enforce because it was “relatively easy for a law enforcement officer to see a driver holding a cell phone up to his or her ear.”

But that did not mean that using a cell phone for a purpose other than having a conversation was not intended to be a violation, Hamlin concluded.

“There is…no evidence in the legislative history… that would support the conclusion that those who voted in support of that bill, including its author, understood or intended the bill to be so limited in its application when it was passed,” the jurist wrote. “To the contrary, the legislative history set out above suggests that the bill was designed to prohibit the ‘hands-on’ use of the phone while driving, without limitation. “

The case is People v. Spriggs, 13 S.O.S. 1681.
Copyright 2013, Metropolitan News Company




OSHA Quick Card

Risk Solutions

Changes to Hazard Communications Coming

by Melaina Francis, Risk Manager

Federal OSHA modified the Hazard Communication Standard (29 CFR 1910.1200) in 2012 to align it with the United Nations Globally Harmonized System of Classification and Labeling of Chemicals, or GHS.

The GHS is a system for standardizing and harmonizing the classification and labeling of chemicals. It is a designed to have a logical and comprehensive approach to defining health, physical and environmental hazards of chemicals; creating classification processes that use available data on chemicals for comparison with the defined hazard criteria; and Communicating hazard information, as well as protective measures, on labels and Safety Data Sheets (SDS).

Major changes to the Hazard Communication Standard require that Chemical manufacturers and importers be required to determine the hazards of the chemicals they produce or import and must provide a label that includes a signal word, pictogram, hazard statement, and precautionary statement for each hazard class and category.

The Safety Data Sheet must include the new format requiring 16 specific sections, ensuring consistency in presentation of important protection information and to facilitate understanding of the new system. The new standard requires that workers be trained by December 1, 2013 on the new label elements and safety data sheet format, in addition to the current training requirements.

The difference is largely in the replacement of the old Material Safety Data Sheets (MSDS) with the Safety Data Sheet or (SDS). The purpose however is the same, to provide safety and health information about chemicals and to help prevent accidents and exposures. Primary differences on the two documents include how they are organized, the type of information included, the degree of detail presented, and the number and content of each of the sections. 

Employers must ensure that the SDSs are readily accessible to employees for all hazardous chemicals in their workplace. This may be done in many ways. For example, employers may keep the SDSs in a binder or on computers as long as the employees have immediate access to the information without leaving their work area when needed and a back-up is available for rapid access to the SDS in the case of a power outage or other emergency. 

Current compliance timeframes establish by Fed-OSHA:

• By December 1, 2013: Employers must train employees on the new label elements and SDS format.

• As of June1, 2015: The HCS will require new SDSs to be in a uniform format, and include the section numbers, the headings, and associated information. 

• As of June 1, 2015: All labels will be required to have pictograms, a signal word, hazard and precautionary statements, the product identifier, and supplier identification.

• By June 1, 2016: Employers must update alternative workplace labeling and hazard communication program as necessary, and provide additional employee training for newly identified physical or health hazards.

Federal OSHA has made available training aids that are readily available online to assist employers with this training requirement. 

https://www.osha.gov/Publications/OSHA3492QuickCardLabel.pdf
http://www.osha.gov/Publications/HazComm_QuickCard_SafetyData.html
http://www.osha.gov/dsg/hazcom/HCSFactsheet.html

Cal/OSHA is currently in the process of adopting revised regulations to comply with the new Federal standards. Cal/OSHA will be holding public hearings as part of the regulatory process. 

The California JPIA is also revising the Hazardous Communication training program including a template to meet the new standards. As the California regulatory process moves forward and clarity emerges on how California will implement the new standards, watch for updates in The Authority newsletter. 

If you should have questions about the revised Hazard Communication Standard, contact your designated Risk Manager.



Risk Solutions

Skateboarding On City Streets – Yes or No?

by Bob May, Risk Management Program Manager

With summer fast approaching, skateboarding, like other “extreme” sports has grown in popularity in Southern California. Not surprisingly, skateboarders do not limit their activity to designed skate parks. Instead, they are often found traversing city streets. Skateboarding on public streets has proved to be a danger to the skateboarders as well as pedestrian and vehicular traffic.

The California Vehicle Code does not outlaw skateboarding on public streets and instead leaves it to individual municipalities to make such a determination. However, California law does require that any skateboarder under the age of 18 must wear a helmet while riding on the street (California Vehicle Code Section 21212)

Accidents resulting from this activity expose cities that own the streets to potential liability for injuries sustained based on allegations of dangerous condition of public property.

Unfortunately, under California law even a slight crack in a street or sidewalk can render a city liable. Fortunately, cities are not without recourse. Pursuant to a city’s inherent police power, it has the authority to regulate the use of its streets and sidewalks through the passage of ordinances. Of course, the ordinance must have a rational basis to the safety of street and sidewalk users. [Amezuca v. City of Pomona (1985) 170 Cal. App. 3d 305]. Given the risk that skateboarding on public streets creates to skateboarder, as well as pedestrian and vehicular traffic, an ordinance prohibiting skateboard use on public streets will almost certainly pass the rational basis test used by California courts to test the validity of such ordinances.

California Vehicle Code section 21967 specifically permits cities to regulate the use of skateboards on its public streets and highways. It states:

21967. Except as provided in Section 21968, a local authority may adopt rules and regulations by ordinance or resolution prohibiting or restricting persons from riding or propelling skateboards on highways, sidewalks, or roadways.

To counter the growing skateboard liability problem, some member agencies have passed ordinances banning skateboarding on city streets based upon the language in California Vehicle Code Section 21967. Thus, agencies concerned about the increased use of skateboards on public streets may consider invoking their inherent police power to eliminate or limit skateboarding by way of an ordinance. 

A template of a model ordinance is located in the Resource Center. If you have questions about the ordinance, please contact your assigned Risk Manager.