October 2018 - Issue 80

23rd Annual Risk Management Educational Forum – Most Well Attended Ever

Capstone Award Winner Announced at 2018 Risk Management Educational Forum

California JPIA 40th Anniversary – Gaylord Knapp

Risk Managers Roundtable:  Sexual Abuse Awareness Training

Join Social Media Conversations with the Authority

Public Employees Can Use Employer E-Mail for Protected Communications During Non-Work Time

Court of Appeal Clarifies Statute of Limitations in Police Discipline Matters, Clearing Way for Disciplinary Proceedings in Racist Texting Case

Legislative Update

Forklift Safety

News: Worthy

23rd Annual Risk Management Educational Forum – Most Well Attended Ever

Nearly 200 employees and elected officials from over 80 members came to the Park Hyatt Aviara in Carlsbad from September 19 – 21 to experience The Amazing Race to Risk Management Success, the theme of the 2018 California JPIA Risk Management Educational Forum.  They were joined by Authority staff and business partners, alongRisk Management Educational Forum 2018 logowith a bevy of speakers in creating the most well attended Forum ever with over 320 attendees.

Feedback from attendees was glowing regarding the location, the organization, the content, the speakers, and the meals.  But the greatest praise was given regarding the opportunities to speak directly with local government peers, subject matter experts, and Authority staff between sessions and around social activities. 

This year’s Forum began with two opening sessions on Wednesday.  The Great Urban Race: The Homeless Dilemma, addressed the homelessness dilemma faced by communities across California.  Attendees received timely information regarding the legal landscape, cost of homelessness to local government, current litigation, and risk management strategies.  In Don’t be a Rogue Runner:  Employment Litigation & the #MeToo Impact, the audience heard a persuasive argument that by focusing on leadership, processes, and commitment, local government agencies can create a workplace culture that is inclusive and welcoming to all.

Wednesday’s events were topped off with a well-attended Welcome Dinner outdoors in the Palm Courtyard, giving all in attendance an informal and relaxed opportunity to network, connect, and enjoy the evening.

Following a Thursday morning breakfast featuring regional networking opportunities, Chief Executive Officer, Jon Shull, provided a warm welcome to all assembled and introduced the Executive Committee.  Jon made particular mention of the 93 first-time attendees, and reminded everyone that to have a successful Forum experience, all must reach out to make new contacts, renew past contacts, learn from others, and share experiences.  He concluded his comments with “Why” the Authority exists and “Why” the Forum is held.  Behind him on the screen were a collection of photographs depicting member programs and services that are delivered every day.  In answer to “Why” he said, “The Authority values the safety and security of member employees and their constituents and is dedicated to improving risk management within its members to allow financial resources to be applied to enhance communities.”

Assistant Executive Officer, Norm Lefmann, then took the stage for presentation of the Sixth Annual Capstone Award.  Joining him was last year’s winner, Isaac Etchamendy, Senior Civil Engineer for the City of San Marcos.  Norm explained the qualifications necessary to be nominated for the award.  Impressive video featured comments about each nominee together with scenes involving colleagues and their regional risk manager before calling the finalist to the stage.  This culminated with the announcement of this year’s winner:  Teri Davis, Program Manager for the City of Moorpark.

Keynote speaker Phil Hansen followed with a presentation many said inspired them greater than any prior keynote.  Phil’s artistic journey nearly came to an end when a tremor developed in his drawing hand. In exploring new ways to create art, Phil discovered that by embracing his shake, limitations could become the passageway to greater creativity and opportunities.

Phil's ability to draw art parallels to the business setting won him followers among the audience.  The complexities of running a business or public agency today are like creating a work of art: a continuous process of discovery, risk-taking, and adaptation.  Phil's approach to achieving artistic success was not only a natural fit for The Amazing Race to Risk Management Success, but also a necessity for how to adapt to the accelerating pace of change.

Thursday’s breakout sessions addressed progressive issues relevant to public agencies including:  Liability Case Law Update, Managing New Hire & Onboarding Risk, Why Injured Employees Hire an Attorney, Marijuana Update, Cal/OSHA Update, Choose Your Own Discipline Adventure, Site Security, Work Comp Drug Formulary & Opioid Abuse Epidemic, Protecting Public and Private Places in Your City, Root Cause & Failure Analysis, Building a Successful Relationship Between HR and Public Safety, Discovery of Electronic Records, Decision Making for Elected Officials, Required Elements to Successfully Tender a Claim or Lawsuit, and Tree Inspection & Maintenance.  Most presentations are accessible via links in the session descriptions here:  Forum Agenda.

Reaching the finish line is only one part of a successful race.  Those who finish the race aren't winners simply because they reached their goal, but also because they learned the path and planned for pitfalls.  Friday’s first session, Retaining & Motivating Employees, shared the importance of rewarding for attitude and not just skill, becoming a preferred place to work, and highlighting demographic changes that have resulted in changing norms of communication.  The last session, Juror Perceptions and Biases, provided the audience insight into the management of juror pools by the Authority’s defense attorneys to be in the greatest position to win each case.

Participating in The Amazing Race to Risk Management Success with trusted and experienced business partners is an important part in developing the successful practice of public agency risk management.  This is evident in how the Authority's partners work jointly with members in managing risk.  It also pertains to the role the Authority’s partners play in underwriting a significant portion of the Risk Management Educational Forum.  Their sponsorship has allowed the Authority to make member registrations free since 2009 and to continue to deliver an exceptional educational experience. 

Mark your calendar now to attend the 24th Annual California JPIA Risk Management Educational Forum to be held October 9 – 11, 2019, at the Hyatt Regency in Indian Wells.

News: Worthy

Capstone Award Winner Announced at 2018 Risk Management Educational Forum

The 2018 Capstone Award was announced at this year’s Forum and presented to Teri Davis from the City of Moorpark. The Capstone Award is presented annually to an individual at a member agency who best exemplifies the practice of risk management.

Teri, the City of Moorpark’s Program Manager, was selected from four finalists andTeri Davis - Capstone winner chosen for her exemplary risk management efforts. Some of Teri’s accomplishments include ensuring that the city’s Emergency Operations Center equipment was upgraded, developing various safety plans for the city, and passing an ordinance that established stronger earthquake requirements for cellular telecommunication and broadcast towers. In addition, she is recognized for promoting a culture of risk management awareness throughout the city.

In addition to Teri, the following individuals were recognized as finalists for this year’s Capstone Award:

  • Karina Bañales, Assistant to the City Manager / Human Resources for the City of Palos Verdes Estates
  • Sarah Siep, Deputy City Clerk for the City of Big Bear Lake
  • Brad Stewart, Facilities Maintenance Supervisor for the City of San Dimas

The 2019 Capstone Award will be presented at the 24th Annual Risk Management Educational Forum to be held October 9-11, 2019 at the Hyatt Regency Indian Wells Resort & Spa.

Photo: 2018 Capstone Award winner Teri Davis of the City of Moorpark and California JPIA Assistant Executive Officer Norm Lefmann.

News: Worthy

California JPIA 40th Anniversary – Gaylord Knapp

In the early days of the Authority, the organization had two advisory committees: the Committee of City Managers & Administrators and the Committee of Finance Officers. The former was first chaired by Gaylord Knapp, who at the time was the Cerritos City Manager. Not only was Gaylord instrumental in crafting the first coverage that the Authority offered to its members, he was also very active in the governance and policyGaylord Knapp direction of the Authority from the organization’s inception.

It was important to Knapp that the coverage the Authority offered would protect cities from the risks that they had in common, regardless of whether the coverage was available through a traditional insurance policy. Knapp was also deeply concerned about the Authority’s finances, prompting him to adopt somewhat unorthodox methods to preserve the organization’s financial stability. At times, he would contact certain members to discourage them from attending a meeting so that a quorum couldn’t be reached, and the meeting, therefore, could not be held; all in order to prevent
consideration of issues that may have weakened the Authority’s finances.

In 1991, after serving as Cerritos’ City Manager for 18 years, Knapp left the city to become Lake Forest’s first City Manager. He remained involved with the Authority until his passing in March 2008 from complications from Huntington’s Disease.

News: Worthy

Risk Managers Roundtable:  Sexual Abuse Awareness Training

The Authority presents quarterly Risk Managers Roundtables on various topics related to risk management, providing members with opportunities for roundtable discussion and dialogue on timely and relevant issues. Please join us for the last roundtable of 2018 to learn about and discuss a very important topic related to those that manage or administer youth programs at their agencies – sexual abuse awareness.

The single most important step an agency can take to reduce the risk of child sexual abuse to train staff and volunteers so that they understand the problem.  When staff members and volunteers have an awareness of the basic characteristics of a sexual abuser, the process by which an abuser picks and prepare a child for abuse, and key indicators of child sexual abuse, they are better equipped to recognize and prevent abuse in youth programs.  We cannot reduce a risk we do not understand.

The roundtable will be presented by attorney Kimberlee Norris. Ms. Norris’ mission is to protect children and those who serve them. After decades of litigating sexual abuse cases and providing consultation and crisis management to organizations, Ms. Norris’ organization, MinistrySafe, was founded to help those that administer youth programs to meet legal standards of care and reduce the risk of child sexual abuse.

Topics covered include: 

  • Common misconceptions about abusers and abuse
  • Offender characteristics
  • The offender’s “grooming process”
  • Common grooming behaviors
  • Legal reporting requirements
  • What all staff should know

There is only one scheduled date for the Risk Managers Roundtable this quarter. Participants may join in either at the California JPIA’s La Palma Campus or by live broadcast. The Roundtable will be held at on Tuesday, November 6, 2018. The program will begin at 1:00PM, preceded by a served lunch at noon for those attending in La Palma. 

Please register for the Roundtable through your training registrar or myJPIA. For more information and to request the weblink for remote participation, please contact Michelle Aguayo, Training Coordinator, at (562) 467-8777.

News:  Worthy

Join Social Media Conversations with the Authority  

In order to reach new members and better connect with current members, the AuthoritySocial Media Logo has an active presence on social media. Members can find information on various topics on the social media channels listed below. 

Connect with our latest topics:  

“The best way to lower the risk of fire emergencies is to put in place strategies that help stop fires before they start. Our Fire Prevention Plan policy template can help. Members can find it in our Resources & Documents library, keywords 'fire prevention.' #NationalFirePreventionMonth https://tinyurl.com/jxpfhdu” Like, comment and share:

LinkedIn Page
“In 1992, President George H. Bush proclaimed the first week of October each year to be #NationalCustomerServiceWeek, noting that ‘A business will do a better job of providing high quality goods and services by listening to its employees and by empowering them with opportunities to make a difference.’ Authority members can visit our Training Catalog Table of Contents to see our customer service training resources: https://lnkd.in/gsFyGP4" Follow us, comment and share about risk management:

LinkedIn Discussion Group
“According to 'Risk Management Monitor,' a recent study in the United Kingdom revealed that human error is often the root cause of a cyber breach. Organizations can minimize the risk of a breach by educating and training employees, that is, incorporating the 'human element' into their cyber risk management plans. In your organization’s training on cyber risks, what has worked for you? https://lnkd.in/ey-NZEJ” Join the conversation, or pose a question or idea about risk management and the California JPIA:

Group Shake Out photo 2018Twitter
“Another successful #ShakeOut drill this morning! For helpful resources and tips on earthquake preparedness and safety, visit https://www.shakeout.org/  #GreatShakeOut #GreatCaliforniaShakeOut” Tweet, retweet and follow the California JPIA:

For information on how to join these sites or participate in discussions, please contact Courtney Morrison, Administrative Analyst, by email or by phone at (562) 467-8779.

Photo: Authority staff gather outside during the annual ShakeOut earthquake drill

The Court Report

Public Employees Can Use Employer E-Mail for Protected Communications During Non-Work Time

By Monica Sanchez McQueen, Esq., and Pooja V. Patel, Esq., Burke, Williams & Sorenson 

On May 25, 2018, the Public Employment Relations Board (“PERB”) in Napa Valley Community College District[1], expanded the rights of public employees to use their employer’s e-mail system for “protected communications” and disapproved of prior precedent on this point.  PERB held that public “employees who have rightful access to their employer’s e-mail system in the course of their work have a right to use the e-mail system to engage in [Educational Employment Relations Act] EERA-protected communications on nonworking time.”[2] Although the case was decided under the EERA and involved a Community College District employer, this ruling is also applicable to other public sector employers including cities, counties and special districts subject to the Meyers-Milias-Brown Act (“MMBA”).  


In 2014, Eric M. Moberg applied for a temporary position as a part-time adjunct instructor with the Napa Valley Community College District (“the District”).  The District’s employment application asked for prior teaching experience.  In his application, Mr. Moberg made one misrepresentation and one omission.  First, he misrepresented his reason for separation from the San Mateo County Office of Education (“SMCOE”).  Mr. Moberg stated that he left SMCOE to “move out of area,” when in reality, his resignation from SMCOE was a condition of his settlement agreement.  Second, he entirely omitted his employment with the Monterey Peninsula United School District (“MPUSD”).  The District hired Mr. Moberg based on the information in his employment application.

In September 2015, the faculty association president sent an e-mail to all full-time and part-time faculty members reminding them of an association meeting.  The following day, a part‑time faculty member responded to all faculty and offered an analysis of the discrepancy in pay between full-time and adjunct faculty.  A few days later, Mr. Moberg responded in the same e-mail thread to all faculty stating “How about we take some money from the bloated Pentagon budget that funds death and destruction instead of education and enlightenment.”  Another faculty member responded directly to Mr. Moberg stating that she was disturbed by his e-mail.  Mr. Moberg responded to her stating “Thank you for joining our discussion.  I stand by my suggested solution to low pay for educators, which is a working condition that I find both unsatisfactory and remediable.”  The following day, the department chair asked Mr. Moberg to exclude politics from the conversation and referred him to the District’s e-mail use policy.  The association president sent a follow-up e-mail to all faculty members clarifying that the e-mail chain was not sanctioned by the association, that official business should be conducted through off-campus e-mails, and that District e-mails are to only be used for reminders and general information.

Mr. Moberg subsequently filed a grievance alleging that the directive to refrain from using the e-mail system to discuss pay issues violated the collective bargaining agreement (“CBA”) between the District and the association.  The acting dean declined to respond to Mr. Moberg’s grievance because he was not a “unit member” as defined by the CBA.  Thereafter, in October, 2015, Mr. Moberg sent an e-mail disputing the acting dean’s response titled “Moberg UN-AMERICAN OPPRESSION CONSPIRACY GRIEVANCE Level Three.”

In January, 2016, the District rescinded Mr. Moberg’s offer of employment for the spring 2016 semester because the District discovered that Mr. Moberg included misrepresentations and omitted material facts in his employment application.

Unfair Practice Charge Before PERB:

Mr. Moberg filed an unfair practice charge alleging that the District violated the EERA by withdrawing his offer of employment in retaliation for his protected activity.  PERB’s Office of the General Counsel found that Mr. Moberg’s e-mail messages and grievance were not “protected activity” under the EERA.  The General Counsel did find that Mr. Moberg engaged in protected activity when he filed PERB charges against SMCOE.  However, the General Counsel ultimately determined that there were no facts establishing that the District was aware that Mr. Moberg filed those PERB charges against SMCOE when it made the decision to withdraw the offer of employment.  Therefore, the General Counsel dismissed the charge and Mr. Moberg appealed.

On appeal, Mr. Moberg identified several errors in the dismissal of his unfair practice charge.  PERB reviewed whether Mr. Moberg engaged in protected activity by submitting a grievance and sending e-mails to co-worker’s regarding adjunct faculty pay.  First, PERB found that Mr. Moberg engaged in protected activity when he filed and processed his grievance.  Although the e-mail Mr. Moberg sent to various individuals including the District’s Board of Trustees following the District’s refusal to respond to his grievance, did not specifically assert a violation of the CBA, did not include the grievance, and did not allege that the CBA provided for a grievance process, PERB still found that because the charge alleged that the grievance asserted violations of various provisions of the CBA, it was protected.  PERB explained that whether the CBA contained a grievance process was not relevant.  PERB noted that an employee engages in protected activity by asserting a violation of a labor agreement even if the employee does so outside of the contractual grievance process.

Second, PERB found that Mr. Moberg’s e-mails in September, 2015 responding to his co‑worker’s messages about adjunct faculty pay also constituted protected activity.  PERB reasoned that “the relationship between federal government spending on defense and education and the employment and/or wages of Moberg and other District faculty is not so attenuated that the e‑mails lost their protection.”  PERB also focused on the fact that Mr. Moberg was responding to the association president’s and co-worker’s e‑mails directly involving adjunct faculty pay. 

Finally, PERB considered whether Mr. Moberg had the right to disseminate these statements via the District’s e-mail system – a question that had not been previously considered by the Office of the General Counsel.  In 2008, PERB held in Los Angeles County Superior Court,[3] that an employee’s use of his or her employer’s e-mail system is only protected if it qualifies as “permissible non-business use” under the employer’s e-mail policy.[4]  In coming to this conclusion, PERB relied on a National Labor Relations Board (“NLRB”) decision, The Register-Guard[5]  However, seven years later, The Register Guard decision was overruled and the NLRB announced a new rule in Purple Communications, Inc.[6] Because the NLRB is the agency that administers federal labor laws covering private sector employers, this is only persuasive and not controlling authority for PERB.  In this case, PERB was presented with the first opportunity to determine whether to continue to rely on the analysis in The Register Guard, or to instead follow the new rule announced in Purple Communications.

In The Register Guard, the NLRB found that an employer’s ban on employee use of its e‑mail system for all “nonjob-related solicitation” did not interfere with employee rights under the National Labor Relations Act (“NLRA”).  In 2014, the NLRB in Purple Communications overruled The Register Guard finding that it did not place enough importance on e-mail as a means of workplace communication.  Purple Communications held that presumably when employees have rightful access to their employer’s e-mail system, they have the right to engage in protected communications during nonworking time.  An employer may rebut this presumption by demonstrating that special circumstances necessary to maintain production or discipline justify restricting employee rights.  The NLRB noted however, that it would be a “rare case” where special circumstances could justify a total ban on non-work e-mail use. 

PERB agreed with Purple Communication and also disapproved of its decision in Los Angeles County Superior Court.  PERB reasoned that e-mail has become a fundamental forum for employee communication in the present day which now serves the same function as faculty lunch rooms and employee lounges once did.  Therefore, PERB concluded that a “rule which reflects this change in the contemporary workplace, presumes that employees who have rightful access to their employer’s e-mail system in the course of their work have a right to use the e-mail system to engage in . . . protected communications on nonworking time.”  PERB also stated that “an employer may rebut the presumption by demonstrating that special circumstances necessary to maintain production or discipline justify restricting its employees’ rights.”  The rule announced by PERB is based on the right of employees to “form, join, and participate in the activities of employee organizations” under EERA, which PERB noted includes the right to communicate with each other in the workplace.

Ultimately, PERB agreed with the Office of the General Counsel in finding that Mr. Moberg did not sufficiently allege that the District had knowledge of his prior PERB charges against SMCOE.  PERB also considered whether there was any unlawful motive between Mr. Moberg’s protected activity and the adverse employment action.  PERB agreed that Mr. Moberg was subjected to an adverse employment action, however there was no evidence, direct or circumstantial, to establish that there was an unlawful motive behind that action.

Significance to Public Employers and Recommended Next Steps:

While PERB decided this case under EERA which provides employees the general right to form, “join, and participate in the activities of employee organizations,” these rights are also protected under the MMBA and therefore applicable to cities, counties, and special district employers.  Under PERB’s new rule, an employee’s use of employer e-mail during non-work hours is protected if it relates to subjects such as wages, hours of work, and other terms and conditions of employment.  However, this new rule does not give employees the broad right to use employer e-mail for all non-work related items.

Public agencies should carefully review their e‑mail use policies and ensure compliance   with this new decision.  Employers are encouraged to seek the advice of their City Attorney or legal counsel when addressing circumstances that implicate this new PERB rule.   

[1] Moberg v. Napa Valley Community College District (2018) PERB Decision No. 2563.
[2] Id.  at p. 19.    
[3]Los Angeles County Superior Court (2008) PERB Decision No. 1979-C.          
[4] Id. at p. 15.
[5] The Register Guard (2007) 351 NLRB 1110.
[6]Purple Communications, Inc., (2004) 361 NLRB No. 126.

The Court Report

Court of Appeal Clarifies Statute of Limitations in Police Discipline Matters, Clearing Way for Disciplinary Proceedings in Racist Texting Case

By Kristina Doan Strottman, Partner, Burke, Williams & Sorenson

On June 22, 2017, the California Court of Appeal published a decision in Rain Daugherty v. City and County of San Francisco, denying nine officers’ claim that the disciplinary notices that were issued against them were untimely and in violation of the Public Safety Officers Procedural Bill of Rights Act (POBRA).[1]  The Court of Appeal emphasized that the statute of limitations does not begin to run until the alleged misconduct is discovered by a person authorized to initiate an investigation.  It also held that the statute of limitations is tolled during a criminal investigation.  

I.        Background & Trial Court Order

In 2011, a public defender accused San Francisco Police Department (SFPD) officers of conducting illegal searches, stealing property, and falsifying police reports.  This led the United States Attorney’s Office (USAO) to initiate a criminal corruption investigation.  Select members of the criminal unit of SFPD’s Internal Affairs Division (IAD-Crim) assisted the USAO.  During the investigation, search warrants of the cellphone records of former SFPD Sergeant Ian Furminger—the central figure in the corruption scheme—led to the discovery in December 2012 of racist, sexist, homophobic, and anti-Semitic text messages between Furminger and nine SFPD officers.  All evidence discovered during the course of the investigation was the property of the USAO and protected under a federal nondisclosure agreement as strictly confidential.     

Former Sergeant Furminger was convicted of criminal corruption.  Three days after the verdict, on December 8, 2014, the text messages between Furminger and the nine officers were released by the USAO to the administrative unit of SFPD’s Internal Affairs Division (IAD-Admin).  After IAD-Admin completed its investigation of the text messages, the chief of police issued disciplinary proceedings against the nine officers on April 2015.

While disciplinary proceedings were pending, the nine officers filed a petition for writ of mandate—seeking to rescind the disciplinary charges on the grounds that they were untimely. 

Under POBRA, an agency cannot take punitive action against a police officer for any alleged misconduct unless the investigation is completed within one year of “the public agency's discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct,” subject to certain statutory exceptions.[2]  One such exception provides that the one-year period is tolled while the alleged misconduct is also the “subject” of a pending criminal investigation or prosecution.[3]

The trial court granted the officers’ petition, finding that the one-year state of limitations began to accrue in December 2012 when the misconduct was discovered by IAD-Crim.  Further, the trial court found that the state of limitations was not tolled because the text messages were not specifically the subject of a criminal investigation.  Therefore, the investigation of the nine officer’s misconduct was not completed in a timely matter.

II.       Court of Appeal Reverses Order Dismissing Disciplinary Proceedings as Untimely

The Court of Appeal reversed the trial court, concluding that the one-year statute of limitation did not begin to run until the text messages were released by the USAO to IAD-Admin, because before then, the alleged misconduct was not and could not be discovered by the “person[s] authorized to initiate an investigation” for the purposes of the Government Code. 

The Court of Appeal emphasized that it is SFPD policy and its designation of persons authorized to initiate investigations that is controlling.  SFPD was able to show that its IAD-Crim and IAD-Admin were two separate entities and that only IAD-Admin had authority to initiate investigations. Further, the Court of Appeal noted that the USAO’s confidentiality restriction prevented disclosure to persons within SFD who were authorized to initiate an investigation, such as IAD-Admin.     

Alternatively, the Court of Appeal held that the one-year state of limitations was tolled until the criminal verdict in the criminal corruption case because the text messages were the “subject” of the criminal investigation within the meaning of section 3304(d)(2)(A).  Although the nine officers were not on trial, the text messages were key tools needed to determine the full scope of the conspiracy and corruption scheme.  Moreover, because the use and disclosure of the text messages was restricted under the protective order issued in the corruption case, they were “subjects” of the criminal investigation. 

The Court of Appeal held that “subjects” of an investigation should be applied broadly, and that the tolling provisions of the Government Code focus on conduct (i.e. the text messages) rather than individuals (i.e the nine officers) and whether they were implicated in the criminal investigation.  Tolling ended when the criminal trial came to an end in December 2014, and the text messages were released.  Therefore the April 2014 notices of discipline were timely. 

On September 12, 2018, the California Supreme Court declined without comment to grant the nine officers’ appeal for review.  Therefore, this leaves the Court of Appeal ruling as the final decision in the case.

III.      Takeaway from the Daugherty Ruling

While POBRA is meant to ensure that police officers have a fair and speedy disciplinary process, the one year statute of limitations may be tolled in circumstances such as related criminal proceedings.  This is especially true where there are protective orders preventing decision-makers from receiving information regarding alleged misconduct.

[1] Gov. Code, § 3300 et seq

[2] Id. § 3304, subd. (d)(1).)

[3] Id., sub. (d)(2)(A).

Legislative Update

By Abraham Han, Administrative Analyst

In a continued effort to provide members with information and updates on bills that may have an impact on liability or workers’ compensation matters, the Authority provides the following legislative update.

The 2017-2018 session of the California State Legislature has ended. Some of the bills discussed in the previous legislative update have gone through status changes, which are noted below. 

AB 553 (Daly). Workers’ compensation: return-to-work program.

Status: Vetoed by the Governor (9/23/2018)

Position: Oppose

Summary: This bill would require full payout of all remaining funds in the 100 percent employer funded catastrophic injury return to work fund, without any triggering event beyond the fact that some money remains after funding all claims each year.

AB 1298 (Santiago). Public safety officers: procedural rights.

Status: Dead (8/31/2018)

Position: Oppose

Summary: This bill would have required, when any public safety officer is under investigation and subject to interrogation by his or her commanding officer, of any other member of the employing public safety department, on the allegation of making a false statement, that any administrative finding of the false statement require proof based on clear and convincing evidence. The bill would have specified that this provision would apply only to allegations of false statements and would not have applied to or have affected any other allegation or charge against the public safety officer.

AB 1749 (Daly). Workers’ compensation: off-duty peace officer.

Status: Approved by the Governor, and chaptered by the Secretary of State (9/23/2018)

Position: Oppose unless amended

Summary: This bill states that an employer, at its discretion, is not precluded from accepting liability for an injury sustained by a peace officer while performing his or her duties as a peace officer by reason of engaging in the apprehension or attempted apprehension of law violators or suspected law violators, or protection or preservation of life or property, or the preservation of the peace, outside the state of California, but who was not at the time acting under the immediate direction of his or her employer, including any claims for injuries sustained by peace officers during the October 1, 2017, mass shooting in Las Vegas, Nevada. Although the brave acts displayed during the tragic Las Vegas shooting in October 2017 and the intent to help those who were harmed are fully recognized, this bill represents a major expansion of the workers’ compensation system.

AB 1870 (Reyes). Employment discrimination: unlawful employment practices.

Status: Vetoed by the Governor (9/30/2018)

Position: Oppose

Summary: This bill would extend the period to three years for which complaints alleging unlawful employment or housing practices may be filed with the department, as specified. Furthermore, this bill would expose public employers to costly litigation.

AB 1912 (Rodriguez). Public employees’ retirement: joint powers agreements: liability.

Status: Approved by the Governor, and chaptered by the Secretary of State (9/29/2018)

Position: Neutral

Summary: In alignment with the California Association of Joint Powers Authorities (CAJPA), the Authority is neutral on AB 1912, as amended July 3, 2018. As previously written, this bill would have imposed substantial burdens and costly unworkable requirements on local agencies by applying retroactive, joint and several liability as well as prospective joint and several liability for all retirement-related obligations to any current or former member of a joint powers authority (JPA) throughout its existence. The recent amendments removed the joint and several liability provisions (retroactively or prospectively) in favor of a more equitable apportionment scheme and clarified that this apportionment applies only when a JPA dissolves, ceases operations, or has its contract with the retirement system terminated. This approach strikes the balance of ensuring JPA retirees have secure retirement while avoiding the blanket liability provisions which had been in previous versions of the bill.

AB 2069 (Bonta). Medicinal cannabis: employment discrimination.

Status: Dead (5/25/2018)

Position: Oppose

Summary: The bill would have declared that the medical use of cannabis by an employee is subject to reasonable accommodation by an employer. The bill would have encroached on an employer’s ability to manage and effectively provide a safe workplace, and also would have exposed employers to costly and unnecessary litigation.

AB 2946 (Kalra). Division of Labor Standards Enforcement: complaint.

Status: Dead (6/1/2018)

Position: Oppose

Summary: This bill would have extended current law of six months, to three years for a worker to allege that they have been discharged or otherwise discriminated against and file a complaint with the Division of Labor Standards Enforcement. Furthermore, the bill also would have required a one-sided plaintiff attorney’s fee provision that would have incentivized further litigation.

AB 3120 (Gonzalez Fletcher). Damages: childhood sexual assault: statute of limitations.

Status: Vetoed by the Governor (9/30/2018)

Position: Oppose

Summary: This bill would expand the definition of childhood sexual abuse, which would instead be referred to as childhood sexual assault. This bill would increase the time limit for commencing an action for recovery of damages suffered as a result of childhood sexual assault 22 years from the date the plaintiff attains the age of majority or within five years of the date the plaintiff discovers or reasonably should have discovered that the psychological injury or illness occurring after the age of majority was caused by sexual assault, whichever is later. This bill would deprive California public entities of the ability to timely investigate and settle claims. This bill would also hamper early compensation to those who have been injured, and would dramatically increase the taxpayers’ cost of such claims.

ACA 31 (Cervantes). Public employee salaries: limit.

Status: Dead (8/31/2018)

Position: Oppose

Summary: This assembly constitutional amendment would have placed a hard cap on all public sector entity base compensation and tied the cap to the compensation set for the Office of the Governor which is established by the California Citizens Compensation Commission. Currently, the Governor’s compensation is set at an annual salary of $195,803. This would have negatively impacted the leadership of many public entities providing much needed services in California.

SB 772 (Leyva). Occupational safety and health: regulations.

Status: Dead (8/31/2018)

Position: Oppose

Summary: This bill would have exempted any occupational safety and health standard and order from the standardized regulatory impact analysis requirement, including a cost/benefit analysis.

SB 899 (Pan). Workers’ compensation.

Status: Vetoed by the Governor (9/23/2018)

Position: Support

Summary: This bill would clarify existing law which prohibits discrimination in providing workers’ compensation benefits. This bill would amend the California Labor Code to specifically state consideration of race, gender, and national origin are excluded from determination of apportionment regarding causation of permanent disability.

SB 937 (Wiener). Lactation accommodation.

Status: Vetoed by the Governor (9/30/2018)

Position: Oppose

Summary: This bill would place burdensome mandates regarding lactation accommodations on public employers and would expose employers to costly litigation traps.

SB 1300 (Jackson). Unlawful employment practices: discrimination and harassment.

Status: Approved by the Governor, and chaptered by the Secretary of State (9/30/2018)

Position: Oppose

Summary: This bill provides that a person alleging that an entity failed to take all reasonable steps necessary to prevent discrimination and harassment from occurring is not required to prove that he or she actually endured sexual harassment or discrimination. Although the Authority supports the idea of educating employees about harassment and discrimination (including how to report complaints), it could have likely been accomplished in a less expensive manner than how proposed by this bill.

Although the most recent updates were provided as of publication of this legislative update, the most current updates can always be found by clicking on each linked bill.

As the 2018-2019 session of the California State Legislature approaches, the Authority will monitor bills that may affect members. 

If you have any questions, please contact Abraham Han, Administrative Analyst.

Risk Solutions

Forklift Safety

By Tim Karcz, Senior Risk Manager

Forklift safety is high on Cal/OSHA’s priority list, frequently coming in the top ten of citable offenses each year. A July news release from the Department of Industrial relations outlines a fatal incident that occurred earlier this year at a marine cargo handling company in San Diego.

On January 3, a longshoreman was driving a forklift into a transit shed when he collided with a concrete support column and suffered fatal injuries after being thrown from the forklift. Cal/OSHA’s investigation found that the employee was not wearing a seatbelt and that the forklift had multiple safety devices disabled, including a seatbelt warning buzzer and mast interlock system designed to disconnect power from the hydraulic lift when the operator is unseated. The company was also issued a citation for a willful-serious violation as the employer failed to ensure workers perform a forklift safety check at the beginning of each shift and report unsafe conditions. Cal/OSHA issued six citations totaling more than $200,000 to the employer. The complete news release can be read here.

This underscores the prevalence of ensuring drivers are driving safely and powered industrial trucks are properly maintained. The California JPIA offers in-person and online training opportunities for member agencies. In addition, the following free e-tools are available for the public:

OSHA’s E-Tool on Forklift Safety (online training resource): https://www.osha.gov/SLTC/etools/pit/operations/index.html

NIOSH Alert: Preventing Injuries and Deaths of Workers Who Operate or Work Near Forklifts: https://www.cdc.gov/niosh/docs/2001-109/

If you have any questions or need additional information and/or resources, please contact your agency’s assigned risk manager.