October 2013 - Issue 20

Member Satisfaction Survey

Executive Academy

Volunteers…Too Good to be True?

Guidelines for Maintaining Playground Surfacing

Fire Safety: Holiday Safety Tips for Public Buildings

The Court Report

Member Satisfaction Survey

News: Worthy

Member Satisfaction Survey 

by Norm Lefmann, Assistant Executive Officer

During the months of June and July, the California JPIA conducted its fourth member satisfaction survey. In the end, 339 individuals responded, which represents a completion rate of 19%. 

As in years past, the California JPIA selected True North Research to design the research plan and conduct the study. Broadly defined, the study’s purpose was to:

• Measure overall satisfaction with the Authority’s performance in meeting member needs
• Gauge awareness of existing programs and services
• Identify the perceived importance and satisfaction of specific programs and services
• Evaluate current communication methods and efforts
• Profile member perceptions of the California JPIA as an organization
• Track the findings of the 2010, 2007 and 2004 studies, where appropriate

Approximately nine in ten members (89%) surveyed in 2013 indicated that the California JPIA does an excellent (44%) or good (45%) job in providing programs and services to its members. Approximately 6% of members indicated that the Authority’s performance is fair in this respect, whereas less than 1% rated the Authority’s performance as poor or very poor, and 4% were unsure.

Overall, respondents were most familiar with training offered by the Authority such as classroom style, online, webcasts, academies and the annual educational forum (88% very or somewhat familiar), followed by the Liability Protection Program (72%), and risk management such as LossCAP, employment intervention, help desk, and contract review (76%). At the other extreme, respondents were much less familiar with Crime Insurance (40% very or somewhat familiar) and the Pollution Legal Liability
Insurance offered by the Authority (35%).

Members clearly differentiate between the various programs and services offered by the Authority in terms of the perceived importance to their organizations. Overall, members rated the Liability Protection Program as the most important program offered (94% extremely or very important), followed by the Workers’ Compensation Program (94%), risk management programs such as LossCAP, employment intervention, help desk and contract review (90%), training programs (90%), and Property Insurance (90%). The services and programs rated as least important among those tested were Pollution Legal Liability Insurance (60%) and Crime Insurance (70%).

Among respondents who expressed an opinion, nearly all indicated that they were satisfied with the California JPIA’s performance in providing the same list of nine programs and services. The percentage who indicated that they were satisfied ranged from a low of 92% for Workers’ Compensation Protection Programs to a high of 98% for Property Insurance.

To view the entire survey results, please click here

News: Worthy

Executive Academy

by Catherine Sloan, Senior Training Specialist

Particularly since the Bell scandal, public agencies have been often scrutinized in areas of leadership, management, and pay. Some of the criticism has been justified, but the majority of local government professionals just want to continue working effectively and ethically. Nevertheless, city managers and agency executives have been forced to maintain the stability and integrity of their agency by delivering even greater services with often fewer resources.

Designed for current and emerging city managers and agency executives, the California JPIA will present the Executive Academy on January 15 -17, 2014 at the Westlake Village Inn in Westlake Village. 

The Executive Academy will address the legal, financial, and structural constraints of governmental agencies through the active exchange of ideas and information. Using a series of sessions presented by experienced professionals, participants will learn greater skills in key areas of local government management.

Areas include:
• Why Effective Risk Management is Critical
• Assessing Your Skills through a Diagnostic Personality Inventory
• Psychology of Crisis Management
• Developing Successful Employee Relations
• Managing Employment Law Issues
• Exploring Current Issues in Local Government 
• Working Effectively with Councils and Boards
• Governing with Honesty, Integrity, and Ethics
• Using the California JPIA in Reducing Claims and Losses

The Executive Academy provides a unique opportunity to work collaboratively, share smart practices, and participate in joint exercises with other senior leaders facing similar challenges. “It was amazing how much I learned,” said a former attendee who attended the Executive Academy in Pasadena in 2012. “I sit on the Managers Committee of the California JPIA, and still I walked away learning so much valuable information that I did not know before. I was excited to share what I learned with my employees and to implement new procedures designed to reduce risk and help us to operate more efficiently.” 

This day and a half academy will allow you to focus on these conversations, all the while protected from the daily interruptions and distractions of organizational life. The academy is limited to 30 participants, and the registration deadline is December 16, 2013. For more information or to register for the Academy, contact your regional risk manager or click here.

We hope to see you at the Academy!

Legal Matters

Legal Matters: Volunteers…Too Good to be True?

by Kelly A. Trainer and Ulysses Aguayo, Burke, Williams & Sorensen, LLP

Public agencies have always relied on the support of volunteers to deliver programs and services. In recent years that reliance has increased for many agencies who are seeking to lower these costs. While volunteers can therefore play an important role, there are legal risks, and agencies should take steps to reduce them when utilizing volunteers. For example, many agencies do not consider a volunteer to be an employee and therefore do not extend the same benefits and protections to volunteers that are afforded to employees. However, in some circumstances, a volunteer can be an employee. Whether a volunteer is an employee depends on the language and interpretation of the particular law in question. Members are encouraged to contact legal counsel or their regional risk manager for assistance with these issues. A few of the employment-related risks of utilizing volunteers are outlined below.[1]

Workers’ Compensation
A volunteer is not included in the definition of employee for purposes of workers’ compensation. Section 3352 of the Labor Code expressly excludes “[a]ny person performing voluntary service for a public agency . . . who receives no remuneration for the services other than meals, transportation, lodging, or reimbursement for incidental expenses.” However, the public agency may include volunteers within its workers’ compensation coverage by adopting a resolution that declares volunteers to be employees in accordance with Labor Code section 3363.5. If a public agency has not adopted such a resolution, then a volunteer who is injured in the course and scope of performing their volunteer duties would be able to bring a civil lawsuit against the public agency.

Workplace Harassment under FEHA and Title VII
The Fair Employment and Housing Act(“FEHA”) sets forth California’s prohibition on workplace harassment, discrimination and retaliation based on legally protected characteristics. The statutory and regulatory language of the FEHA is vague on its application to volunteers.[2] Government Code section 12926 does not define which persons constitute employees; rather section 12926 excludes certain persons from the definition of employee (“any individual employed by his or her parents, spouse, or child, or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility”). The regulations implementing the FEHA define employee as “[a]ny individual under the direction and control of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written.” (Cal. Code Regs. § 7286.5(b).) 

Title VII of the Civil Rights Act of 1964 (“Title VII”), the federal anti-discrimination law, defines employee as an individual employed by an employer. (42 U.S.C. §2000e(f).)The United States Supreme Court noted that this definition is “completely circular and explains nothing.” Nationwide Mutual Insurance Co. v. Darden (1992) 503 U.S. 318, 323 (analyzing whether a party is an “employee” under ERISA, which uses identical language to Title VII). In the Darden decision, the U.S. Supreme Court adopted a common law agency test to determine employee status, and this standard has been used by many lower courts when a statute fails to define employee.

As the FEHA and Title VII do not specify whether they apply to volunteers, the question has fallen to the courts. Most recently, this issue was addressed in California in Estrada v. City of Los Angeles (2013) 218 Cal.App.4th 143, when a volunteer police reserve officer brought a FEHA disability discrimination action against the City of Los Angeles. The City’s administrative code stated that police reserves were “volunteer workers only and shall not be, or deemed to be, employees of the City…” The reserve officer had also signed an acknowledgement which stated that he was not a regular salaried officer of the LAPD. However, the City did have a resolution in place which deemed reserve officers to be employees for purposes of workers’ compensation. Estrada suffered two work related injuries and received workers’ compensation benefits. He was terminated after 17 years for misconduct. The trial court ruled that Estrada could not establish the elements of a cause of action for disability discrimination because he was not an employee for purposes of the FEHA.

The court of appeal affirmed the ruling of the trial court. In determining whether Estrada was an employee, the court looked to prior state and federal rulings and to the provisions of Los Angeles’ local civil service rules. The court expressly held that, given the provisions of the City’s local rules, the policy decision to include volunteers under its workers’ compensation coverage did not “convert these uncompensated volunteers into municipal employees for all purposes.” 

In addition to a detailed analysis of the City’s local rules and ordinances, the court’s consideration of the workers’ compensation benefits was important because the prior decisions relied on by the court had found that a volunteer, absent remuneration, are not volunteers. (See e.g. Mendoza v. Town of Ross (2005) 128 Cal.App.4th 625 [unpaid volunteer community service officer could not sue for disability discrimination under the FEHA]; O’Connor v. Davis (2d Cir. 1997) 126 F.3d 112 [unpaid intern could not sue for sexual harassment under Title VII].) The question of remuneration has been found by the majority of federal courts to be an essential initial inquiry of whether a volunteer is an employee. The California courts have relied on that analysis, but have also heavily focused on the public agency’s local rules.

However, under Title VII, there is a minority view in the circuit courts of appeal that does not require remuneration as a dispositive issue, and instead requires only that the volunteer establish employee status by analyzing common law agency principles. The Ninth Circuit (the Circuit that has jurisdiction over California) is part of this minority view. The court relies on the common law multi-factor test of employee, and includes remuneration as a factor within that analysis. The Ninth Circuit’s interpretation of the Darden test requires an evaluation of the following factors: “(1) the skill required; (2) the source of the instrumentalities and tools; (3) the location of the work; (4) the duration of the relationship between the parties; (5) whether the hiring party has the right to assign additional projects to the hired party; (6) the extent of the hired party’s discretion over when and how long to work; (7) the method of payment; (8) the hired party’s role in hiring and paying assistants; (9) whether the work is part of the regular business of the hiring party; (10) whether the hiring party is in business; (11) the provision of employee benefits; and (12) the tax treatment of the hired party.” Murray v. Principal Financial Group, Inc.(9th Cir. 2010) 613 F.3d 943, 945-46 quoting Darden, supra, 503 U.S. at 323). Thus, in the Ninth Circuit, remuneration is but a factor to be considered and not an initial inquire to be made before proceeding to the detailed common law analysis.

As a result, California employers must be mindful of both the state and federal decisions in considering whether a volunteer is an employee for purposes of the FEHA and Title VII. In determining whether a volunteer is protected under the FEHA and Title VII, agencies must look to their own internal rules, policies, resolutions, and ordinances for definitions of employees as well as to when a person has been “appointed.” Agencies must also consider what benefits are extended to the volunteer. Remuneration can include financial compensation, or “substantial indirect compensation”, including: health insurance, vacation or sick pay, disability pensions, or survivor’s benefits.

Labor Relations
The Meyers-Milias-Brown Act (“MMBA”) regulates the labor relations of local agencies in California. A local agency is required to give “reasonable written notice” to a labor union of “any ordinance, rule, resolution, or regulation directly relating to matters within the scope of representation proposed to be adopted” and must give the labor union “the opportunity to meet” with the local agency. (Gov. Code §3504.5.) The “scope of representation” includes “all matters relating to employment conditions and employer-employee relations, including, but not limited to, wages, hours, and other terms and conditions of employment, except, however, that the scope of representation shall not include consideration of the merits, necessity, or organization of any service or activity provided by law or executive order.” (Gov. Code § 3504.)

The use of volunteers can raise issues that are within the scope of representation. For example, if the work the volunteer will perform is work that is typically performed by a union-represented position, then the agency must address the issues raised by the transfer of bargaining unit work. In addition, if the use of volunteers otherwise impacts a bargaining unit member’s wages, hours, or working conditions, then the agency will be required to give notice to the affected labor union and meet and confer over the decision and/or effects of the decision. For example, if the use of a volunteer reduces the amount of overtime that an employee is able to work, the employee’s wages have been impacted and the duty to bargain is triggered. Additional obligations may also be set forth in an agency’s memoranda of understanding, municipal code, personnel rules, or employer-employee relations resolution. There is a substantial body of law that has been developed by the Public Employment Relations Board (“PERB”) regarding the employer’s obligations when transferring bargaining unit work, and agencies are strongly encouraged to coordinate any such actions in advance with legal counsel.

Fair Labor Standards Act
The Fair Labor Standards Act (“FLSA”) is a federal law that sets forth restrictions on wages and hours. When Congress amended the FLSA in 1985, it made clear that people are allowed to volunteer their services to public agencies “for civic, charitable, or humanitarian reasons, without promise, expectation or receipt of compensation...”(29 C.F.R. § 553.101(a).) An individual is only considered a volunteer if “their services are offered freely and without pressure or coercion, direct or implied, from an employer.” (29 C.F.R. § 553.101(c).) There are two primary issues that arise under the FLSA when utilizing the services of volunteers: (1) what payment, if any, can a volunteer receive; and (2) can an employee volunteer for the same public agency that employs the employee?

Payment to Volunteers. While a volunteer cannot be compensated for their services, the volunteer can be “paid expenses, reasonable benefits, a nominal fee, or any combination thereof,…” (29 C.F.R. § 553.106(a).) For example, a volunteer school guard could receive a uniform allowance or reimbursement for reasonable uniform cleaning expenses and still maintain his/her status as an unpaid volunteer. Volunteers can also be reimbursed for “out-of-pocket expenses incurred incidental to providing volunteer services…” such as transportation and meals. (29 C.F.R. § 553.106(b).)“Benefits [provided to volunteers] would be considered reasonable, for example, when they involve inclusion of individual volunteers in group insurance plans (such as liability, health, life, disability, workers' compensation) or pension plans or “length of service” awards, commonly or traditionally provided to volunteers…” of public agencies. (29 C.F.R. § 553.106(d).) Indeed, even a “nominal fee” can be provided to volunteers without jeopardizing their volunteer status. However, a nominal fee cannot be a “substitute for compensation and must not be tied to productivity” (29 C.F.R. § 553.106(e).) For example, a volunteer who volunteers on an annual basis can receive a nominal stipend or fee. Finally, public agencies must be mindful of the total value of the expenses, benefits and fees provided to volunteers because it is possible for the individual to lose his/her volunteer status when the total value of the payments made is considered “in the context of the economic realities of the particular situation.” (29 C.F.R. § 553.106(f).)

Employees Who Volunteer. The regulations state that “[a]n individual shall not be considered a volunteer if the individual is otherwise employed by the same public agency to perform the same type of services as those for which the individual proposes to volunteer.” (29 C.F.R. § 553.101(d).) “The phrase “same type of services” means similar or identical services.” (29 C.F.R. § 553.103(a).) In determining whether an employee is volunteering to perform the same type of services will depend on an analysis of the Department of Labor’s Dictionary of Occupational Titles, as well as the facts and circumstances of the particular situation and “whether the volunteer service is closely related to the actual duties performed by or responsibilities assigned to the employee.” Ibid. The regulations provide some practical examples of this – it would be acceptable for a police officer to volunteer as a part-time basketball referee for the same agency or for a city parks employee to serve as a volunteer firefighter. However, it would be unacceptable for a firefighter to serve as a volunteer firefighter in the same agency, or for a nurse to volunteer to perform nursing duties at a health clinic that is part of the same public agency that employs him/her.

[1] This article is not intended to be a comprehensive discussion of every risk presented by the use of volunteers. 
[2] Note, for purposes of harassment, an employee can be harassed by a volunteer, and the employer is obligated to take steps to respond to and prevent any such harassment. This is because even if the volunteer does not qualify as an “employee,” the City is required to take steps to protect the employee from harassment.

Risk Solutions

Guidelines for Maintaining Playground Surfacing

by Tim Karcz, CSP, ARM-P, CPSI, Director with Poms and Associates

Part two of a three-part series

A recent study by the National Parks and Recreation Society (www.nrpa.org) revealed that over 79% of all accidents on a playground are from children falling. A major factor in determining the injury causing potential of a fall is the surfacing installed under and around the playground equipment. A fall onto a shock absorbing surface is less likely to cause a serious injury than a fall onto a hard surface. Because head impact injuries from a fall have the potential for being life threatening, the more shock absorbing a surface can be made, the greater the likelihood of reducing severe injuries.
Approved playground surfacing materials include: engineered wood fiber, wood chips, pea gravel, sand, synthetic or rubber tiles, shredded rubber, matting and poured-in-place rubber. Playground should never be installed over concrete, asphalt, blacktop, packed dirt or grass.

Playground surfacing material requires periodic inspection and maintenance. For example, loose fill materials such as engineered wood fiber, sand, shredded tires, etc., are expected to be tracked away and depleted over time. High traffic areas, such as underneath swings and slide exits, are particularly vulnerable to surfacing material displacement. Special mats and/or landing pads may be installed in high traffic areas. In addition, the protective surfacing should be topped off as necessary to ensure that the maximum heights and ground clearances of all components are maintained. This can be facilitated by marking ideal surfacing depths on the equipment posts. The depth of loose fill surfacing should either meet or exceed the manufacturer’s recommendations or should meet or exceed the specifications outlined in Table 2 of the Public Playground Safety Handbook (2010) published by the U.S. Consumer Product Safety Commission. If manufacturer testing data is not available to warrant the suitability of loose fill surfacing for a specified fall height, it is recommended that playground operators conduct field testing of the material in accordance with ASTM Standard F1292. 

Although unitary surfacing materials, such as poured-in-place, rubberized material, or synthetic tile systems, do not require the same degree of maintenance as loose fill materials, they should be periodically checked for damage, deterioration, and wear. All surfacing should be kept clean and free of extraneous materials that could cause injury (ASTM 1487-07, Section 13, Maintenance). Repairs of this material should not compromise the impact-attenuating properties of the surfacing.

Members are encouraged to contact their regional risk manager for additional assistance. Also, the following resources are provided to assist in researching and developing your comprehensive playground safety and risk management program:

The Authority’s Resource Center.

The Dirty Dozen Training Video:
Public Playground Safety Handbook (2008), U.S. Consumer Product Safety Commission: http://www.cpsc.gov/cpscpub/pubs/325.pdf 

Playground Safety Publications, U.S. Consumer Product Safety Commission: 

Americans with Disabilities Act, Accessibility Guidelines for Buildings and Facilities (ADAAG): 

Americans with Disabilities Act, Accessibility Guidelines for Play Areas: 

Risk Solutions

Fire Safety: Holiday Safety Tips for Public Buildings

by Bob May, Risk Management Program Manager

Decorating public buildings is a long-standing tradition around the holiday season. Unfortunately, these same decorations may increase chances of fire. In the holiday season, members are reminded to follow safety precautions when using live trees, artificial decorations, and indoor/outdoor lighting to decorate. 

Members are also encouraged to consult with local fire officials about decorating plans including putting live trees in public buildings. The California Fire Code and California Code of Regulation Title 19 have specific requirements for the use of decorative material.

Live trees
Use artificial trees, wreaths, and boughs when possible. Cut natural trees, wreaths, boughs create a serious fire hazard.

If your agency includes a natural live tree in its festivities, make sure your live tree is freshly cut. Needles on trees should be green and hard to pull back from the branches, and the needles should not break if the tree has been freshly cut. The trunk should be sticky to the touch. Old trees can be identified by bouncing the tree trunk on the ground. If many needles fall off, the tree has been cut too long and, has probably dried out, and is a fire hazard. State and local regulations may require flame retardant be applied to a live tree before use in a building. The Uniform Fire Code and Title 19, California Code of Regulations, Section 3.08 require that Christmas trees be treated with a flame-retardant solution or process approved by the State Fire Marshal when placed in any area where the public may gather.

Trees should not be placed close to a heat source, including heat vents. The heat will dry out the tree, causing it to be more easily ignited by heat, flame or sparks. Do not put live trees up too early or leave it up for longer than two weeks. Keep the tree stand filled with water at all times.

Holiday trees account for hundreds of fires annually. Typically, shorts in electrical lights or open flames from candles, lighters or matches start tree fires. Well-watered trees are not a problem--a dry and neglected tree can be.

Holiday lights
Only lights that are listed by an approved testing laboratory (UL) should be used. Before installing the lights, it is important to inspect for excessive kinking or wear, frayed wires, gaps in insulation, bare spots, and cracked or broken sockets. Never use a “three-prong-to-two-prong” plug adapter to by-pass a grounded plug.

Keep all lights away from combustible materials such as fabrics or paper decorations; and keep all electrical cords out of traffic areas, and not under rugs, through doorways or taped to the floor. Turn lights off when not in use.

Holiday decorations
Injuries due to falls are a major holiday hazard: if you need to hang something higher than you can safely reach, use an approved ladder and not a chair, desk, or box. Make sure you know how to safely use a ladder. Plan your decorating to minimize tripping hazards or snagging clothing. 

Holiday decorations should not be placed near sources of heat or flame, including heat vents. Only nonflammable or flame-retardant decorations should be used. 
Make sure seasonal decorations do not block, hide or obscure safety equipment such as fire alarm strobe lights or horns, safety signage or evacuation plans, fire extinguishers, safety showers or eyewash units, and exit ways.

The California JPIA encourages its members to follow safety precautions this holiday season. For more information or questions about appropriate holiday decorations, consult your agency’s regional risk manager.

Legislative Update

The Court Report

Supervisor’s Failure to Engage in Interactive Process with Disabled Employee May Convert Employee’s Resignation into Constructive Discharge

Reprinted from Franczek Radelet, October 1, 2013

In a case recently decided under the Americans with Disabilities Act (ADA)—Suvada v. Gordon Flesch Company, Inc.—a federal district court in Chicago allowed a production clerk’s claim for constructive discharge against her former employer, an office services company, to proceed to trial. The day following the clerk’s diagnosis with stage-four cervical cancer, she called to inform her supervisor. She provided no specifics about her condition and did not advise the supervisor of any medical restrictions or treatment plan, as she did not yet have any. However, the employee did express concern about her ability to meet her job responsibilities in the future and asked whether any easier jobs were available. According to the employee, the supervisor responded that she needed someone who could perform the job during their upcoming busy season, pressed the employee to tell her whether she would be able to carry out her duties, and told her that she did not know of any easier jobs in the division in which they worked. When the employee continued to express anxiety about managing her workload, the supervisor asked her if she was giving a two-week notice. The employee responded that she did not wish to stop working. The supervisor told her that if she was going to resign, she had to do so in writing. The supervisor’s version of the conversation was different than the clerk’s, but both agreed that termination was not mentioned as a possibility.

Twenty minutes following this conversation, the employee sent an email to her supervisor, resigning her employment. In the email, she explained that due to her medical issues, she would not be capable of fulfilling her job duties. Later, she testified that she resigned because she thought she would be terminated if she did not and in any event, she did not want to “screw over” her co-workers by failing to fulfill her job responsibilities.

Denying the employer’s motion for summary judgment, the court found that the clerk’s notification to her supervisor that she had cancer was, in and of itself, sufficient to trigger the employer’s duty to engage in the interactive process required by the ADA. Among other things, the court found the supervisor should have asked follow-up questions to determine whether an accommodation was needed, and should have referred the employee to human resources or the employer’s website when the employee asked about the availability of easier jobs. Because the employee testified that the supervisor failed to do so, the court allowed her constructive discharge claim to proceed to trial. 

The court acknowledged that under Title VII, the facts as alleged by the employee would have fallen short of what is necessary to maintain a claim for constructive discharge under that and similar non-discrimination statutes. The bar is lower under the ADA, the court held, because under that statute, employers have an affirmative duty to provide accommodations, not merely a duty to refrain from discrimination. Because the supervisor failed to engage in the interactive process immediately upon learning of the clerk’s cancer diagnosis, the employee’s belief that she would be terminated if she did not resign was reasonable, according to the court.

This case underscores the importance to employers of training all supervisors in the basics of the ADA. It is not enough to train only human resources personnel, as any supervisor’s misstep could result in employer liability.

Members are encouraged to contact their Regional Risk Manager should they have questions or need additional assistance.