January 2015 - Issue 35

California JPIA Employment Intervention Program

Delegation of Claims Handling Authority

Cal/OSHA Reporting Requirements

California JPIA Website: Training Catalog

2015 Brings Significant Changes to the FEHA

C.A. Cites Expert Testimony, Tosses Red Light Camera Conviction

News: Worthy

California JPIA Employment Intervention Program

By Paul Zeglovitch, Liability Program Manager

The world is a very different place than it was just a few years ago.  The economy shed more than seven million jobs between January 2008 and December 2009. These layoffs reached virtually every market sector, particularly in the public sector and local government.  In light of the current economic environment, the risk of exposure to liability in the employment practices context is greater than ever.

Given the increasing number of employment-related claims filed, combined with the risk of astronomical judgments, the Authority is committed to partner with members in managing this risk before a claim or lawsuit is filed.  In 2012, the California JPIA’s Employment Intervention Program (EIP) was designed and implemented to augment the guidance and legal counsel that is generally being provided by the member’s employment counsel.  

By engaging one or more of the Authority’s defense attorneys that specialize in employment practices and litigation, the Authority will partner with a member’s employment counsel to provide a “360-degree view” of an employment practices scenario and the unique and challenging issues that often accompany these types of matters. By working together with a member’s human resources department and employment counsel, this early intervention will limit or even eliminate any potential liability.  Areas where this assistance has proven to be most valuable include, but are not limited to, harassment and discrimination allegations, adverse employment actions such as suspensions or terminations, leaves of absences, and the interactive process.  

Although FEHA and EEOC complaints are not covered under the Authority’s Memorandum of Liability Coverage, it is recommended that members notify the Authority when these types of complaints are filed so that defense counsel may be assigned early in the process and assist in the preparation of the defense to the complaint.

The costs for these services are borne by the Authority and are not directly allocated back to the member agency.  Since the inception of the EIP, the Authority has assisted members on 62 different matters, often achieving excellent results, such as a return to work, outright resignation, or nominal settlement in exchange for a resignation.  The program has saved members -- and the pool -- thousands of dollars in litigation costs and fees.   

For more information about the EIP, please contact the Authority’s Liability Program Manager, Paul Zeglovitch at (562) 467-8786 or pzeglovitch@cjpia.org.

News: Worthy

Delegation of Claims Handling Authority

by Paul Zeglovitch, Liability Program Manager

The responsibility for liability claims handling has long rested with the California JPIA and its third party claims administrator, Carl Warren & Company (Carl Warren). But does that responsibility constitute an official designation of authority to “act” on claims? By “act,” we mean the sending of government rejection, late claim, and insufficiency letters pursuant to the California Government Code. These notices are an important part of the government claims handling process.  

Rejection letters serve as a formal denial of a government tort claim and set forth a six-month statutory period in which a lawsuit must be filed if the claimant desires to continue pursuit of their claim. Late claim letters notify the claimant that their claim has either been filed past the six-month claiming filing deadline or past the one year mark. Each of these notices carry with them statutory requirements that the claimant must adhere to in order to continue the pursuit of their claim and can sometimes extinguish the claim altogether. Insufficiency letters play an important role in mandating that a claimant provide complete information regarding their claim in order that it may be properly and timely investigated.  When the formal delegation of authority to “act” on claims has not been delegated to the California JPIA, the administrative process is the responsibility of the members and Carl Warren. Carl Warren requests the specific action letter from the member; member agency staff completes the notice; and the notice must be authorized by the governing board. This process can slow down the claims cycle and also provide additional administrative work for the member and its governing body.  In addition, it can serve to lengthen the time requirement for the filing of a lawsuit by the claimant.  Finally, having the council or board involved in the routine claims handling process by acting on claims can bring direct scrutiny to them from the claimant. 

California Government Code 935.4 provides for delegation of the authority to act on claims to a designee other than the governing board.  Further, California Government Code 6508 addresses the pooling of entities and creation of a new entity (the Authority) that represents their interests.  By way of the Joint Powers Agreement between members, the groundwork is laid to allow for members to delegate the entirety of the claims handling process to the Authority.  The Authority then extends that delegation to Carl Warren.

The delegation of the claims handling process can be completed by passing a resolution by the member’s governing body.  The Authority encourages members to delegate the claims handling process to the California JPIA. We feel strongly that it is beneficial for the expedient handling of claims filed against member agencies. 

For more information about the delegation of the claims handling process, contact your agency’s assigned risk manager.

News: Worthy

Cal/OSHA Reporting Requirements

By Jim Gross, Senior Risk Manager

Employers must record all work-related injuries and illnesses on Cal/OSHA Form 300 during each calendar year unless exempted. A work-related injury or illness must be recorded if it results in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness or a significant illness or injury as diagnosed by a physician or other licensed health professional. Employers must record any new incidents and incidents that aggravate a prior injury. Employers must also record work-related injuries and illnesses that meet any of the specific recording criteria. 

Employers with 10 or fewer employees at all times during the year are exempt from complying with the Cal/OSHA injury and illness record keeping requirements unless specifically requested by the California Division of Occupational Safety and Health (DOSH) to do so. Employers in retail, service, finance, insurance and real estate industries (low-hazard Standard Industrial Classification categories) are also exempt from the record keeping requirements. 

All employers must file reports of occupational injuries and illnesses with the Director's Office of Policy, Research and Legislation and immediately report to the DOSH any workplace incident that results in serious injury or illness or death. 

If employers have a privacy concern case, they may not enter the employee’s name on Form 300. Instead, they should enter “Privacy Case” in the space reserved for the employee’s name. Privacy concern cases are defined as an injury or illness to an intimate body part or the reproductive system; an injury or illness resulting from a sexual assault; mental illnesses; HIV infection, hepatitis or tuberculosis; needle stick injuries and cuts from sharp objects that are contaminated with another person’s blood or other potentially infectious material; and other illnesses. 

Employees, former employees and their representatives have the right to review Form 300. Prior to releasing data, employers must delete all personally identifying information. However, employers may release personal data to a consultant hired to evaluate their safety and health programs, as necessary for processing workers’ compensation benefits or to public health and law enforcement agencies, except where Health Insurance Portability and Accountability Act (HIPAA) privacy regulations are potentially violated.

Additionally, at the end of the year, all employers must complete Cal/OSHA’s Form 300A, the Annual Summary of Work-Related Injuries and Illnesses, even if no work-related injuries or illnesses occurred during the year. California law requires employers to post the Annual Summary from Feb. 1 to April 30 of the year following the year covered by the report. It must be displayed in a conspicuous location where notices to employees are regularly posted. A company executive must certify that he or she has examined the Cal/OSHA Form 300A and reasonably believes, based on his or her knowledge of the process by which the information was recorded, that the Annual Summary is correct and complete. 

A copy of the Annual Summary must also be made available to employees who do not report to any fixed establishment on a regular basis. At the end of the three-month posting period, the Annual Summary should be kept on file for five years. If any newly discovered, recordable incidents or changes in classification are noted, the log should be updated. 

Last, employers must complete a Cal/OSHA Injury and Illness Incident Report (Form 301), or its equivalent, within seven calendar days after receiving notice that a work-related accident or illness has occurred. Form 301 must be kept on file for five years from the date of the incident.

News: Worthy

California JPIA Website: Training Catalog

by Courtney Morrison, Administrative Analyst

The California JPIA recently updated its website www.cjpia.org in order to provide better information and service to members. Overall, this means members will be able to find information more easily and also have access to more self-service options. For training, this means that members can find offering details on the Training Catalog page.

The Authority has long provided training to members as a way to support professional growth and development, and believes training plays an important role in supporting risk management and good governance of members. For members seeking information about the Authority’s training program, the Training Catalog page is a gateway to accessing available offerings.

To access these offerings, members can click on the page’s training catalog table of contents button, which will provide a comprehensive list of all trainings and give members the ability to search for specific trainings by category or title. 

Trainings are identified by the following categories:

  • Classroom Training
    Classroom Training is delivered face-to-face by an instructor in a classroom-like setting.
  • E-learning Training
    E-learning Training is the presentation of on-demand training content via the internet, meaning that it can be viewed anytime and anywhere.
  • Webcast Training
    Webcast Training originates from the California JPIA campus and is delivered through web-browser technology directly to an employee’s computer.
  • Webinar Training
    Webinar Training is carried out in an online meeting format directly between the instructor and the participant, and is viewed on any computer. 
  • Academies
    Academies are multi-day trainings that focus on various public sector disciplines and use various instructors for presenting the academy content. 
  • Educational Forum
    The Educational Forum is a multi-day training that focuses on issues important to members of the pool and associated public-sector disciplines.

To access specific trainings by category, members can click on the “Learn More” link below each category. Once an offering is selected, a member can register for the training if any dates are currently available.

The training reimbursement request button at the bottom of the page is available for members to upload receipts and submit reimbursement requests directly to the training division.

Other features on the page include links to the Training Catalog in a PDF format for members wishing to download a printable copy; a printable Academy Catalog, which provides more detailed information on the multi-day academy trainings; and the Training Calendar, which allows members to view offerings in a calendar view. 

For more information, please contact Michelle Aguayo, Training Coordinator, at maguayo@cjpia.org or (562) 467-8777.

Legal Matters

2015 Brings Significant Changes to the FEHA

By Kelly A. Trainer and Katy A. Suttorp, Burke, Williams & Sorensen, LLP

Governor Brown signed two pieces of legislation in 2014 that amend the FEHA and will have significant impacts on employers in 2015.  The first, AB 2053, requires that employers include a discussion of “abusive conduct” during mandatory harassment prevention training with employees.  The second, AB 1443, expanded the applicability of the FEHA by including unpaid interns and volunteers in the scope of protection against harassment and certain forms of discrimination.  Each of these laws became effective of January 1, 2015.  We discuss each in turn.

AB 2053 – Abusive Conduct Training

AB 2053 amends the FEHA training requirements to include “prevention of abusive conduct” as a component of the mandatory sexual harassment prevention training that must be provided to supervisory employees every two years (and within six months of initial appointment to a supervisory position).  Abusive conduct is defined as:

Conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.  Abusive conduct may include:

  • Repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets;
  • Verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating;
  • The gratuitous sabotage or undermining of a person’s work performance.

A single act shall not constitute abusive conduct, unless especially severe and egregious.

While employers are obligated to include information about preventing abusive conduct in the mandatory training, the bill did not extend the other protections of the FEHA to abusive conduct, and did not create a private right of action for abusive conduct. [1]   This is the Legislature’s first attempt at addressing the growing problem of bullying in the workplace.  While this legislation has not made abusive conduct unlawful under the FEHA, employers would be wise to take action to avoid other potential liability, such as a workers’ compensation stress-related claim or intentional or negligent infliction of emotional distress.

Training Obligations
The bill contains no details about what needs to be included in the mandatory training about abusive conduct beyond providing the above general definition and requiring some kind of discussion about preventing such conduct.  To ensure adequate training is provided, employers should speak with the individual providing harassment prevention training to discuss how such information will be presented.  The trainer needs to be made aware of any existing employer policies or procedures related to abusive conduct, which may include policies on workplace violence prevention, policies prohibiting bullying or hazing, or policies that prohibit discourteous treatment of others.  The employer should also be sure that the trainer is discussing the limitations of the abusive conduct bill and that it is not given the same legal treatment as harassment.  Finally, given that employees are likely to have significant questions about abusive conduct, it would be wise to select a trainer who is experienced not only with workplace harassment, but also with bullying, hazing, and workplace violence prevention. Harassment prevention training is available to all members of the Authority, and the training provided is fully compliant with AB 2053.  If your Agency has specific concerns regarding abusive conduct and how it will be addressed in training, you are encouraged to contact your assigned risk manager.

Preventative Measures and Responding to Complaints
While it is not expressly contemplated in the text of AB 2053, most employers are anticipating an increase in complaints of bullying or abusive conduct as a result of this bill.  Indeed, some organizations and individuals are already misrepresenting the scope of AB 2053, and advising employees that bullying is against the law.  However, the Legislature has expressly stated that there is no legal cause of action for bullying under the FEHA.

That being said, there are many reasons that employers would be wise to consider how to best address these issues and to get out in front of them, rather than responding to issues as they arise.  Abusive conduct can be a form of harassment if based on a protected characteristic.  Abusive conduct, if left unaddressed, will often turn into actual violence in the workplace, on the part of the abuser or abused employee, or both.  At minimum, abusive conduct impairs employee morale and decreases productivity.  Overall, abusive conduct is very disruptive and detrimental to a workplace.  Accordingly, we recommend that employers explore the following questions in preparation for January 1, 2015, when AB 2053 takes effect.

Should We Adopt a Policy?  First, ask yourself if abusive conduct is already addressed in a workplace policy.  Some potential policies would include:

  • Policy prohibiting bullying and hazing
  • Policy prohibiting workplace violence
  • Statement of compliance with the OSHA/CalOSHA obligation to provide a safe workplace
  • Policy prohibiting discourteous treatment of others
  • Policy prohibiting conduct unbecoming an employee

If you do not feel that your workplace policies adequately address the issue of abusive conduct, then employers should evaluate whether or not to address these issues in policy, and if so, the most effective approach for doing so.  Employers with labor unions will need to comply with applicable obligations to negotiate these policies with labor unions before implementation.  

Should We Conduct Comprehensive Training?  It may be advisable to provide a training that is more comprehensive than what is required by AB 2053.  Such training should focus on the more general subject of dangerous workplace conduct, and include issues such as discourteous treatment, bullying, hazing, and workplace violence.  Training employees, both general and supervisory, can have significant benefits for a workplace.  A well-structured and in-depth training can appropriately educate employees on the expected standards of conduct and dissuade employees from behaving inappropriately, as well as resolve possible conflicts and educate victims on the available complaint procedures.

Should We Investigate Complaints of Abusive Conduct?  More often than not, there will be good reason for an employer to investigate claims of abusive conduct despite the fact that the FEHA investigation obligation may not expressly apply to all potential complaints.  Abusive conduct might be the subject of a grievance or the basis for performance concerns in an evaluation that warrant further inquiry.  Conducting a workplace investigation may also provide your agency with the just cause needed in disciplinary proceedings.  In general, an investigation in response to claims of abusive conduct will assist your agency in determining whether there are any practices that are not conducive to a productive workplace that should be addressed.

In sum, AB 2053 on its face does not really require that much – just a discussion of a new, related topic within harassment prevention training.  However, the bigger picture of AB 2053 reflects recognition by California lawmakers that bullying and hazing in the workplace is a problem and needs to be addressed.  Accordingly, it is quite likely that additional legislation on this topic will be coming in the future.  For now, AB 2053 is going to be a new source for discussion of the issue of bullying and hazing in the workplace, and employers would be wise to be prepared for it.

The second amendment to the FEHA extends its protections to unpaid interns and volunteers.  Two published court of appeal decisions had previously addressed the questions of whether the FEHA applied to volunteers.  In the most recent of the two decisions,  Estrada v. City of Los Angeles (2013) 218 Cal.App.4th 143,  the court ruled that despite receiving coverage under the City’s workers’ compensation policy, a volunteer police reserve officer was not protected by the FEHA and as a result, could not state a FEHA disability discrimination claim . [2] 

AB 1443 invalidates both prior decisions and expressly includes volunteers and unpaid interns in the coverage of the FEHA.  Specifically, AB 1443 adds the following language to Section 12940 of the Government Code:

  • It is an unlawful employment practice…(c)[f]or any person to discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person because of [that person’s legally protected characteristic]…
  • It is an unlawful employment practice…(j) [f]or any employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of [that person’s legally protected characteristic], to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract.  Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.  An employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, where the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action.  In reviewing cases involving the acts of nonemployees, the extent of the employer’s control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered.  An entity shall take all reasonable steps to prevent harassment from occurring.  Loss of tangible job benefits shall not be necessary in order to establish harassment.
  • It is an unlawful employment practice…(l)(1) [f]or an employer or other entity covered by this part to refuse to hire or employ a person or to refuse to select a person for a training program leading to employment or to bar or to discharge a person from employment or from a training program leading to employment, or to discriminate against a person in compensation or in terms, conditions, or privileges of employment because of a conflict between the person’s religious belief or observance and any employment requirement, unless the employer or other entity covered by this part demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance, including the possibilities of excusing the person from those duties that conflict with his or her religious belief or observance or permitting those duties to be performed at another time or by another person, but is unable to reasonably accommodate the religious belief or observance without undue hardship, as defined in subdivision (u) of Section 12926, on the conduct of the business of the employer or other entity covered by this part. Religious belief or observance, as used in this section, includes, but is not limited to, observance of a Sabbath or other religious holy day or days, reasonable time necessary for travel prior and subsequent to a religious observance, and religious dress practice and religious grooming practice as described in subdivision (q) of Section 12926.  This subdivision shall also apply to an apprenticeship training program, an unpaid internship, and any other program to provide unpaid experience for a person in the workplace or industry.

The Fair Employment and Housing Council has also announced proposed amendments to the FEHA Regulations.[3]  The proposed amendments include the following definition of “unpaid interns and volunteers”:

“Unpaid interns and volunteers.”  For purposes of the Act, any individual (often a student or trainee) who works without pay for an employer or other covered entity, in any unpaid internship or another limited duration program to provide unpaid work experience, or as a volunteer.  Unpaid interns and volunteers may or may not be employees. However, when used in these regulations, the term “employee” shall include any individual who is an unpaid intern or volunteer.

Employers should consider any necessary changes that may result from these new provisions , which will likely include some or all of the following:

  • Employers will need to consider whether their existing harassment policy requires updating to comply with the requirements of AB 1443.  At a minimum, employers should distribute the harassment policy to all volunteers and unpaid interns and receive their signed acknowledgement of receipt of the policy.  Any change to the policy should clearly articulate that the inclusion of volunteers and unpaid interns in the definition of employee does not change the employment status of the volunteer or unpaid intern.
  • Employers who offer harassment prevention training to all employees, rather than just to supervisors, should also begin including volunteers and unpaid interns in that training (or perhaps offer a separate training for them). 
  • Employees who supervise volunteers and interns should be made aware of this change in the law.  Employers should request that the individual performing harassment prevention training alert supervisors to this issue.
  • Employers should evaluate whether there is a volunteer who supervises other volunteers.  Recall that the definition of “supervisor” under the FEHA is quite broad:

“any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routing or clerical nature, but requires the use of independent judgment.”

It is quite possible that a volunteer performs one or more of these functions.  The FEHA is silent about the possibility of a volunteer meeting the definition of a supervisor.  However, it is logical to read the amendment as requiring training of that volunteer supervisor, as well as any employee who may newly be considered a “supervisor” due to authority over volunteers or unpaid interns.

[1] Naturally, an employee may be able to recover damages under other legal theories based on “abusive conduct” in the workplace, such as a workers’ compensation stress-related claim or intentional or negligent infliction of emotional distress.

[2] See also 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].

[3] The full text of the proposed amendments is available here:

http://www.dfeh.ca.gov/res/docs/Council/10%2024%202014/Text%20of%20Proposed%20Amendments%20to%20Fair%20Employment%20and%20Housing%20Act%20Regulations.pdf.  Public comment on the proposed amendments closed on December 8, 2014.

The Court Report

C.A. Cites Expert Testimony, Tosses Red Light Camera Conviction

Reprinted from the Metropolitan News Enterprise, January 12, 2015

The Fourth District Court of Appeal overturned a red-light camera conviction, saying the defendant, through expert testimony, overcame the statutory presumptions regarding the validity of evidence obtained via an automated traffic enforcement system. 

Div. Two ruled in the case of Viktors Retke, who challenged a citation he received in Riverside in 2012. 

The operator of Riverside’s Redflex system, a retired sheriff’s deputy, offered digital photographs and a 12-second video clip to support his testimony that Retke was driving 15 miles per hour in a 35 mph zone, that the yellow light interval was 3.65 seconds, that Retke was about six feet behind the limit line when the signal had been red for close to a second, and that the vehicle failed to stop for the light and continued to make a right turn.

On cross-examination, the operator acknowledged that he could not tell if Redflex’s monthly inspections included verification of the time intervals for the lights, and that he did not know if any city employee checked to make sure the system was calibrated properly. 

The defense expert, an engineer, testified that he had taken video clips of the site before and after Retke’s alleged infraction, and that the yellow light interval on each occasion was 3.5 seconds, plus or minus 0.07 seconds. This would violate the state’s Manual on Uniform Traffic Control Devices, which requires that a yellow light at an intersection along a 35 mph roadway have an interval of at least 3.6 seconds. 

The defense argued, based on that testimony, that the system was sufficiently unreliable to create a reasonable doubt as to the defendant’s guilt. Riverside Superior Court Commissioner William Anderson Jr. disagreed and fined Retke $490.

The Appellate Division affirmed the conviction, but granted the defendant’s motion that the case be certified for transfer to the Court of Appeal, where Presiding Justice Manuel Ramirez concluded that the defendant should have been acquitted based on the expert’s unrefuted testimony.

Presumptions Misapplied

The trial judge, Ramirez said, misapplied the presumptions created by Evidence Code §§1552 and 1553 that printed representations of computer information and of images stored on a video or digital medium are accurate representations of the computer information and images they purport to represent. 

In People v. Goldsmith (2014) 59 Cal.4th 258, the jurist explained, the high court held, based on the two Evidence Code sections, that testimony on the reliability and accuracy of a red-light camera system’s hardware and software—as distinguished from the visual representations of the data—is not required as a prerequisite to admission of evidence generated by the computer. 

But in Retke’s case, Ramirez went on to say, the judicial officer treated the statutory presumptions as affecting the burden of proof, rather than the burden of producing evidence. This was contrary toGoldsmith, he explained, where the high court “observed that such presumptions do not require any weight to be given to the evidence if admitted, did not reduce the prosecution’s burden of proof to show defendant’s violation beyond a reasonable doubt, and did not deny the defendant a fair opportunity to rebut the presumed accuracy or reliability of the offered evidence.”

Presumptions Undermined

The engineer’s testimony, Ramirez explained, undermined the presumptions and shifted to the city the burden of refuting the inference that the yellow light interval was too short for Retke to safely stop when the light turn red. “Because the digital images were previewed by Redflex before being forwarded to the Riverside Police Department, and because digital images are susceptible to manipulation, it was incumbent upon the City to introduce evidence that the printed representations were accurate,” the jurist wrote.   

Justice Carol Codrington concurred in the opinion. 

Justice Jeffrey King dissented, arguing there was substantial evidence of guilt. The expert’s testimony regarding the yellow light interval, he said, “was relevant to whether defendant had sufficient time to stop before the light turned red, but the testimony in no way indicated that the critical still photographs and the time stamps on those photographs did not show what they purported to show:  defendant running the red light.”

King reasoned:

“Even if the yellow light interval was only 3.5 seconds, not the 3.6 seconds depicted on the still photographs, the photographs show the light was red and had been red for an appreciable amount of time when defendant entered the intersection.  Other evidence showed that in a 35-mile-per-hour zone, the yellow light interval should be 3.6 seconds.  But here, defendant was only traveling at 15 miles per hour as he approached and ran the light.”

The case is People v. Retke, 15 S.O.S. 143.