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Archive for the ‘Government Law’ Category

Are We Witnessing the End of Qualified Immunity?

Posted on: September 19th, 2018

By: Sun Choy

For many decades, qualified immunity has served as a powerful defense to end civil cases against public officials, including law enforcement officers for the alleged use of excessive force.  Given the many high-profile deaths involving the use of force by officers, progressives have again called for the end of qualified immunity.  Even some conservatives are now calling for an end to qualified immunity.  In a recent National Review article, the author lays out a conservative rationale to end qualified immunity, which is primarily based on the “plain meaning” of the statutory language of 42 U.S.C. § 1983.  With progressives and conservatives joining forces, is it only a matter of time before the Supreme Court ends qualified immunity?

If you have any questions or would like more information, please contact Sun Choy at [email protected].

California Attacks Arbitration Agreements …. Yet Again!

Posted on: August 24th, 2018

By: Dave Daniels

On August 22, 2018, the California Senate voted to approve AB 3080, a bill prompted by the #MeToo movement against sexual harassment. Nominally, the bill is intended to combat the use of mandatory arbitration agreements and confidentiality clauses to prevent the public disclosure of workplace sexual harassment, a practice vigorously opposed by the #MeToo movement. As written, however, AB 3080 goes much further, imposing a ban on mandatory arbitration agreements for all claims of employment discrimination, retaliation, and harassment, as well as wage and hour claims.

The bill is currently on Governor Jerry Brown’s desk, awaiting his signature or veto. If signed, the new law would apply to any employment contracts “entered into, modified, or extended” on or after January 1, 2019, and would make several sweeping changes to the California employment law landscape:

Ban on Mandatory Arbitration Agreements

Arbitration agreements are ubiquitous in employment contracts and provide for a low-cost, efficient means of resolving employment disputes.

AB 3080 would put a stop to this by adding Section 432.6 to the Labor Code, which would prohibit any person from requiring an applicant or employee, “as a condition of employment, continued employment, the receipt of any employment-related benefit, or as a condition of entering into a contractual agreement,” “to waive any right, forum, or procedure” for claimed violations of the California Fair Employment and Housing Act (“FEHA”) or the California Labor Code.

In other words, if AB 3080 is signed, it will be unlawful—indeed a misdemeanor—for an employer to require its employees to enter into mandatory arbitration agreements for any claims covered by FEHA (i.e., discrimination, retaliation, harassment) or the Labor Code (i.e., wage and hour claims).

While the bill only applies to mandatory arbitration agreements, Section 432.6(c) makes clear that employers will not be able to sidestep the new prohibitions by using opt-out clauses or otherwise requiring an employee to “take any affirmative action to preserve their rights.”  Moreover, Section 432.6(b) prohibits employers from threatening, terminating, retaliating against, or discriminating against any employee or applicant who refuses to voluntarily sign an arbitration agreement.

Finally, because these new provisions appear in the Labor Code, violations could subject employers to civil penalties under the California Labor Code Private Attorneys General Act, also known as PAGA.

Elimination of Settlement Agreements

Because AB 3080 prohibits any person from requiring an applicant or employee “to waive any right, forum or procedure” “as a condition of entering into a contractual agreement,” it arguably also eliminates or curtails employers’ ability to enter into settlement and general release agreements with their employees for FEHA and Labor Code claims.  Given that the vast majority of these types of claims are settled, the full extent of AB 3080’s impact remains uncertain.

Ban on Confidentiality Agreements for Sexual Harassment

AB 3080 would also add Section 432.4 to the Labor Code, which would bar any person from prohibiting an applicant, employee, or independent contractor, “as a condition of employment, continued employment, the receipt of any employment-related benefit, or as a condition of entering into a contractual agreement,” from “disclosing to any person an instance of sexual harassment that the employee or independent contractor suffers, witnesses, or discovers in the workplace or in the performance of the contract.”

In short, employers will no longer be able to impose confidentiality obligations on their employees or independent contractors with respect to claims of sexual harassment.

Individual Liability

Importantly, AB 3080 applies to any “person” who commits any of the above-noted violations, not just an employer.  An earlier version of the bill was restricted to “an employer,” but was subsequently amended to replace “an employer” with “a person,” signaling the Legislature’s intent to impose individual liability for violations.

What Employers Should Know Now

For the moment, as it awaits Governor Brown’s signature, AB 3080 is still not the law.  In 2015, Governor Brown vetoed a similar bill, AB 465, which would have outlawed the use of mandatory arbitration agreements as a condition of employment.  In his veto message, Governor Brown noted that there is significant debate about whether arbitration is less fair to employees, and explained that he was “not prepared to take the far-reaching step proposed by this bill.”  Remember, however, that Governor Brown’s term ends in January 2019, and a re-introduced version of the bill could find a more sympathetic audience in his successor.

Even if Governor Brown signs the bill, there will be immediate legal challenges arguing that the bill is unenforceable under the Federal Arbitration Act, which the United States Supreme Court has steadfastly enforced, most recently in Epic Systems Corp. v. Lewis. AB 3080 is just the latest in a long history of California’s antagonism towards arbitration agreements, both in the employment context and beyond.

Notwithstanding the hurdles that AB 3080 faces, employers should now begin reviewing their arbitration agreements and practices in light of these potential changes.  In particular, employers will want to think about best approaches to take during the period after the bill is signed and legal challenges work their way through the courts.

If you have any questions regarding the state of arbitration agreements in the Golden State, please feel free to contact Dave Daniels in our Sacramento office at 916-472-3301 or [email protected].

New Potential SCOTUS Justice: Friend or Foe of Qualified Immunity?

Posted on: July 10th, 2018

By: Sara Brochstein

President Trump announced his decision to nominate Judge Brett Kavanaugh to fill the Supreme Court vacancy created by Justice Anthony Kennedy’s retirement.  Should he be confirmed, Judge Kavanaugh could have significant impact on the preservation of qualified immunity, which continues to come under fire of late.   Essentially, the defense of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Given the current climate with unending allegations of excessive use of force by police, the call for reconsideration of the expansive protection offered by qualified immunity has become widespread.  And whether officers remain entitled to qualified immunity under the current parameters of the doctrine has substantial effect on civil litigation outcomes and potential damage awards.

Such a hot button issue continues to present itself to the Supreme Court.  In fact, just one year ago, Justice Clarence Thomas wrote separately in the Court’s decision in Ziglar v. Abbasi, stating that in an appropriate case, the Court should reconsider its qualified immunity jurisprudence.   It will be interesting to see how the Court evolves in its decisions to uphold officers’ entitlement to qualified immunity, especially given continuing outspoken public perception on the issue.   However, if Judge Kavanaugh’s recent dissent in Wesby et al. v. District of Columbia et al. is any indication of his views of qualified immunity and the position he would take as a Justice, it appears qualified immunity could endure as a strong  defense given that the Supreme Court ultimately sided with the dissent.

If you have any questions or would like more information, please contact Sara Brochstein at [email protected].

To Shoot or Not to Shoot – The Ninth Circuit Says That Is The Question (for the jury)

Posted on: July 6th, 2018

By: Owen Rooney

On June 25, 2018 the U.S. Supreme Court denied certiorari in Estate of Lopez v. Gelhaus, arising out of the shooting in Sonoma County, California of a 13 year old who was holding a toy AK-47 gun.

In the mid-afternoon of October 22, 2013 two deputies for Sonoma County were on patrol in a high crime area with known gang activity.  No active crime was reported. They observed the child walking at a normal speed on the sidewalk with the “gun” pointed down. The deputies disagreed whether the child was holding the gun in his left or right hand.   One deputy chirped the siren briefly and activated the lights.  The deputies also disagreed whether the child looked over his shoulder in response to the chirp of the siren. After stopping, one deputy yelled “drop the gun” from a distance of approximately 65 feet.  The child did not drop the gun and rotated his body clockwise. As the child turned, one deputy saw the gun come around and shot and killed the child without issuing any additional warnings.  The orange tip on the toy gun that is required by federal law had been removed.

The child’s estate filed suit against Sonoma County and the deputy who shot the child for excessive force.  The deputy asked the court to dismiss the lawsuit based on qualified immunity.

The District Court denied defendants’ Motion and the Ninth Circuit affirmed.  The case primarily turned on the number of times that the deputies had shouted for the child to put down his “weapon” and to what extent Andy had pointed the gun at the deputies.  The Court of Appeal noted that one of the deputy’s perspective would be different depending on whether the child had turned to his right or left, a factual dispute that could not be resolved on appeal.  Of note, the District Court only concluded that the gun barrel “was beginning to rise” from its position of having been pointed straight down; thus, the Court opined it was unknown if this posed an imminent threat to the deputies.

As the dissent pointed out, the precise angle that the gun was pointed is “not material” to the qualified immunity analysis because an officer need not delay firing if a person reasonably suspected of being armed makes a furtive movement, harrowing gesture, or serious verbal threat.  The dissent further noted that the District Court seemed to create a spectrum as to how far a suspect can raise their weapon before an officer can use lethal force.

The Ninth Circuit  has a long history of being reversed by the Supreme Court so there are some observers who are surprised that this decision was left intact.  The next procedural step is a trial and one can surmise that additional appeals will follow the end of any jury trial in this case.

If you have any questions or would like more information, please contact Owen Rooney at [email protected].

Supreme Court Ends Compulsory Union Payments for Government Employees – So What’s Next?

Posted on: July 5th, 2018

By: Brad Adler & Matt Weiss

On Wednesday June 27, the United States Supreme Court reached a landmark 5-4 decision in Janus v. American Federation of State, County, and Municipal Employees Council 31 wherein it ruled that the Constitution’s First Amendment prohibits public sector unions from collecting fees from non-union members.   While the scope of the impact of this ruling will be unknown for years, there is no doubt that Janus weakens the ability of public sector unions to raise money.

In Janus, an employee with the Illinois Department of Healthcare and Family Services sued the American Federation of State County, and Municipal Employees Council 31 (“AFSCME”) to challenge an “agency fee” that he was required to pay to the union under the Illinois Public Labor Relations Act.  The Act provided that, if a majority of employees in a bargaining unit voted to be represented by a union, the union was designated as the exclusive representative of all employees and, even though employees were not obligated to join the union, they were required to pay the agency fee, a percentage of union dues for “chargeable expenditures,” i.e., the portion of union dues attributable to activities germane to the union’s duties as a collective bargaining representative.  The agency fee excluded “nonchargeable expenditures,” which funded the union’s political and ideological projects.  This distinction between chargeable and nonchargeable expenditures was the framework created by the Supreme Court in its 1977 decision Abood v. Detroit Board of Education, 431 U.S. 209.

The Supreme Court elected to use Janus as a vehicle to overturn Abood and hold that the Illinois law that required nonunion public employees to pay an agency fee to a public union constituted a violation of their First Amendment right to free speech, even if the fees only consisted of chargeable expenditures.  The Court assessed the agency fees under an exacting standard, which required a showing that “a compelled subsidy must serve a compelling state interest that cannot be achieved through means significantly less restrictive of associational freedoms.”  Applying the standard, the Court declined to identify a “compelling state interest” and found that public-sector unions could no longer extract agency fees from nonconsenting employees.

The Court’s ruling in Janus very likely will have a direct effect on 5 million public employees in 22 states, including California, New Jersey, New York, and Pennsylvania, who are no longer required to pay agency fees for a union in which they are not a member.  However, the impact of this decision is less direct in states where agency fees and, in some cases, public sector collective bargaining, are either non-existent or prohibited.  Nonetheless, even in these states, the Supreme Court’s basic holding in Janus, that the government cannot compel its employees to make payments for causes with which they disagree, could be applied in a variety of other contexts such as mandatory contributions to government pension funds.

Whether the Supreme Court will expand on this newly identified First Amendment right of government employees and non-union members remains to be seen, especially in light of Justice Kennedy’s retirement announcement.  The one certainty is that public unions in cities and counties in nearly half the states in the country will no longer be able to require non-union employees to contribute union fees.  And very few doubt that this new legal reality will reduce (in some capacity) the power of public unions by shrinking their financial base of support and by potentially reducing their membership.

But lawmakers in some states already are rallying to pass statutes that will allow unions to limit the services they provide to only those employees that pay union dues.  As a result, it is important for employers to keep informed on any new Janus-induced union laws in states in which they operate.  In fact, in anticipation of an adverse ruling, on April 12, New York passed legislation that relieved unions from representing the interests of non-members in different areas.

The Janus decision is only the latest chapter in a long and unfinished story written about the constitutionality of certain activities of public sector unions.  More to come in the years ahead. . .

If you have any questions or would like more information, please contact Brad Adler at [email protected] or Matt Weiss at [email protected].