November 2018 - Issue 81

California JPIA 40th Anniversary – Authority Campus

California Wildfires

Use of Other Power-Driven Mobility Devices in Public Places Under the Americans with Disabilities Act

The Rapid Rise and Emerging Risk of Electric Scooters

American with Disabilities Act Financing Program

Federal Aviation Administration Reauthorization Act of 2018

Evidence of Coverage Letters

An Advanced Look at Senate Bill 1421: Analyzing the Confidentiality of Certain Police Records

Keeping Up with the Legislature: 2019 Brings Changes to the Fair Employment and Housing Act

In Case You Missed It: California Adopted Comprehensive National Origin Regulations

Code Enforcement Officer Safety: A Paramount Concern

Worker Fatigue – Assessing and Mitigating the Risk

Pollution Program – Pollution Coverage Explained

News: Worthy

California JPIA 40th Anniversary – Authority Campus

By the early 1980s the Authority’s membership had grown to forty cities.01a RV - old Authority Campus Authority staff was beginning to outgrow its current office space in Los Alamitos and the Executive Committee decided to expand its operations.

Before the Authority’s two-building campus became known and admired for its charming Spanish style architecture and eye-catching courtyard fountain, the property consisted of an office building, a liquor store, an RV storage lot, and a car repossession yard.

What is currently known as “Building A” on the Authority’s campus was purchased for $569,000 in 1982 for the Authority’s move from Los Alamitos to La Palma. 01b Old Bldg. editTo the west of the office building stood a nonconforming single-family home, to the east was an infrequently visited liquor store and to the south stood three buildings on a lot that was used for RV storage and repossessed vehicles. At the time, the Authority occupied the first floor and rented the second floor to other businesses, but by the late 1980s, the Authority had grown to occupy the entire office building.

In 1996, the Executive Committee approved the purchase of the surrounding properties and a plan for the construction of a campus-like space for the organization’s offices.01c Campus at dusk After “Building B” was built, all staff moved there while Building A was rebuilt. In January of 1999, the Authority’s campus was completed.

Locals are sometimes confused about the property, mistaking it for a rental space for weddings and other social functions. Although the Authority does not rent out its property for weddings, wedding parties have been known to sneak onto the property to take photos.

Top Photo: 
A pre-1996 birds-eye view of what would eventually become the Authority campus

Middle Photo:
“Building A” as viewed from La Palma Avenue circa 1982

Bottom Photo:
The Authority campus at dusk


News: Worthy

California Wildfires

By Tim Karcz, Senior Risk Manager

Many of the Authority’s members were affected by the recent wildfires. As the effects of these destructive and devastating events continue, the California JPIA extends sympathy to those affected, as well as appreciation to fire departments and emergency personnel.

Valuable fire safety resources can be found on the California Office of Emergency Services resource-rich website: http://www.caloes.ca.gov/ICESite/Pages/December-Wildfires.aspx, as well as Cal-Fire’s website. In addition, the California Office of Emergency Services offers up-to-date information on its website on active wildfire events as well as a statewide wildfire recovery resources page offering important information. 
Wildfires

In addition to the destructive hazards of a wildfire, airborne health hazards can be a primary concern for residents and agency employees, especially those that work outside. Blowing ash is one of the biggest causes of airborne health hazards and can affect communities hundreds of miles away from the actual fire. If possible, limiting physical activity outside can reduce exposure when air quality is poor. California’s Fire Response and Recovery Page includes information and resources on geographically relevant air quality concerns; and can be found at https://calepa.ca.gov/disaster/fire/. Current air conditions, during an active wildfire or not, can be found at https://airnow.gov/. Other resources include a Wildfire Smoke and Health Guide for Public Health Professionals, and has been developed to help you take measures to protect the public when smoke is present. The guide can be downloaded for free at https://oehha.ca.gov/media/wildfiresmoke2016.pdf.

The California JPIA offers training on Respiratory Protection, Emergency Preparedness, and Fire Extinguisher use. Visit https://www.cjpia.org/risk-management/training for more information.

Property and Continuity Resources

Sedgwick, the California JPIA’s property claims third party administrator, is on call in the event a member has a property concern/claim. Claims can be reported here.

The Authority also has a Continuity of Operations Program  to assist members when planned or unplanned events occur that would otherwise shut down operations.

For more information, contact your regional risk manager or Jim Thyden, Insurance Programs Manager.


News: Worthy

Use of Other Power-Driven Mobility Devices in Public Places Under the Americans with Disabilities Act

By Alex Mellor, Risk Manager

People with mobility, circulatory, respiratory, or neurological disabilities use many kinds of devices for mobility. Some use walkers, canes, crutches, or braces. Some use manual or power wheelchairs or electric scooters. In addition, advances in technology have given rise to new devices that some people with disabilities use as mobility devices, including many veterans injured while serving in the military. And more advanced devices will inevitably be invented, providing more mobility options for people with disabilities.

Title II of the Americans with Disabilities Act (ADA) protects qualified individuals with disabilities from discrimination on the basis of disability in services, programs, and activities provided by State and local government agencies. Further, public agencies are required to make “reasonable modifications” to their services, programs and activities to accommodate people with disabilities. This requirement extends to the use of manual mobility devices and so-called Other Power-Driven Mobility Devices (OPDMDs), such as Segways, golf carts, and all-terrain vehicles (ATVs).

Public agencies must allow people with disabilities using OPDMDs onto their property and into their facilities unless a particular type of device cannot be accommodated because of legitimate safety concerns. Such safety concerns must be based on actual risks, not on speculation or stereotypes about a particular type of device or how it might be operated by people with disabilities. In deciding whether a particular OPDMD can be accommodated, public agencies must consider certain safety assessment factors. A full description of these assessment factors is provided by the Department of Justice at the following location: https://www.ada.gov/opdmd.htm.

For example, public agencies may elect to prohibit the use of ATVs on public streets due to the following legitimate safety concerns:

  • ATV tires have deep treads, which are designed to grab surfaces, but not release. Cars and trucks, by contrast, have tires that are designed to continually grip and release the road. This makes ATVs unpredictable in their performance on all public roadway surfaces, but especially on paved streets and roads.
  • Most ATVs have a locked rear differential or solid rear axle. This means that ATV wheels do not turn at a different rate when going around a curve as they do on vehicles designed for roadway travel. Thus, ATVs require a much wider turning radius.
  • ATVs have a relatively high center of gravity, lower pressure tires and a narrow wheelbase.
  • All the above factors make loss of ATV control and rollovers on roadways an ever-present danger, especially at speeds often traveled on public streets and roadways.
  • ATV manufacturers themselves warn riders in their owner’s manuals that their product should not be used on public roads and streets and have placed warning labels on ATVs stating the same.

Using the same example, a public agency may also elect to prohibit or restrict the use of ATVs as OPDMDs in public parks. Using the assessment factors referenced above, such a decision will require an analysis of information such as patterns and volume of pedestrian traffic in the park in question, effect of noise levels from gas-powered ATVs on other park users, and the risk of fire due to ATV operation near grass and other vegetation. One possible modification, for example, might be to allow ATV operation in agency parks only at times of limited pedestrian traffic, and never to exceed walking speed.

If your agency intends to prohibit or restrict the use of certain OPDMDs, the Authority recommends adopting an ordinance and/or administrative policy to serve as formal, constructive notice to the public, and as guidance for agency staff. Of critical importance is that the ordinance and/or policy have a legitimate safety-related basis.

The Authority has a variety of resources to assist member agencies with ADA compliance, including a formal ADA Assistance Program which provides financial and consulting assistance with development and implementation of an ADA Transition Plan.

For questions or additional guidance on this topic, please contact your assigned regional risk manager.


News: Worthy

The Rapid Rise and Emerging Risk of Electric Scooters

By Abraham Han, Administrative Analyst

Cities across the nation have been faced with the sudden presence and unprecedented increase of electric scooters within their jurisdiction.  Companies such as Bird and Lime have led the charge in dropping off electric scooters in various locations, sometimes without a city’s knowledge.  The sudden growth in the number of electric scooters in cities has raised liability, safety, and accessibility concerns.

Although other forms of electric transportation such as electric bicycles have already been observed in a few select cities across the nation, electric scooters in particular have presented unique challenges due to their “dockless” nature. “Dockless” means that riders do not have to “dock” or “park” the scooter to a designated fixture or area. 

Enforcement of good scooter parking practices has been difficult for cities.  At best, electric scooter companies have asked riders to park them in a safe area without much further instruction or guidance.  There currently is no firm system for either scooter companies or riders to be accountable for parking scooters in areas that do not pose safety or accessibility concerns.

Various issues have arisen ever since electric scooters have grown their appeal to the public at large and have found their way into cities.Electric Lime Scooter

Trip Hazards

Cities have reported seeing scooters strewn across the path of travel on sidewalks.  Scooters should be parked in areas away from pedestrian traffic.  However, commonly reported issues include scooters being parked in the middle of the path of travel and/or scooters lying on their side and not sitting properly upright.  This has presented a trip hazard for pedestrian, and the California Vehicle Code prohibits parking an electric scooter in such a manner that does not provide an “adequate path for pedestrian traffic.”  (CVC §21235)

Furthermore, the operation of electric scooters presents safety issues as well.  There have been documented instances of riders clipping or even crashing into pedestrians on sidewalks.  This is despite the fact that the California Vehicle Code prohibits someone who operates a motorized scooter from doing so on a sidewalk, unless entering or leaving adjacent property.  (CVC §21235)

Accessibility Issues

In addition to electric scooters presenting potential trip hazards, they also raise accessibility concerns.  In relation to electric scooters, accessibility will typically hinge on whether or not the scooters are parked in areas such that the general path of travel on sidewalks is not blocked.  Accessibility concerns extend beyond the sidewalks and into adjacent areas.  Electric scooters might block or impede travel to accessibility ramps, building entrances, and other similar paths of entry or travel.

Property Damage

Electric scooters can also pose property damage risk.  Riders might directly crash into agency property or otherwise disrupt and distract vehicular traffic that results in property being damaged.  And, it is worth noting that riders might not be the only ones to could potentially cause property damage.  Bystanders could incur property damage by throwing or tossing a scooter at agency property (e.g., agency building, agency vehicle, signs, etc.).  In some extreme cases, electric scooters have been seen hanging on tree branches or placed in other unusual locations.

How Cities Have Reacted

Cities have taken various approaches to address the sudden growth of electric scooters within their jurisdiction.  These approaches, either singularly or combination, have included the following:

  • Passing an emergency ordinance prohibiting the use of electric scooters and bikes for a temporary period of time (for example, six months) until the issue can be further researched
  • Sending cease and desist letters stating that companies are in violation of statutes
  • Filing a criminal complaint that a scooter company violated laws
  • Removing and impounding electric scooters and bikes, and then charging a retrieval fee to companies on a “per scooter/bike” cost basis
  • Implementing a pilot program in which companies have to apply to have electric scooters in the city, and also fulfill certain terms (e.g., operate a limited/capped number of scooters, pay an annual operating fee, pay a “per scooter” fee, share scooter data with the city, ensure strong privacy policies for end users, etc.)
  • Passing an ordinance to clarify that leaving scooters or bikes on public rights-of-way is illegal
  • Seeking a temporary injunction to immediately remove electric scooters
  • Allowing electric scooters and bikes within the jurisdiction, but charging a relatively high “per scooter” cost to companies in order to mitigate and recoup costs of administration, enforcement, and potential claims

Although various approaches exist, each agency should be mindful to keep liability, accessibility concerns, and risk management at the forefront of their eventual approach. 

The California JPIA will continue to monitor this evolving risk exposure, as there might not be a “one size fits all” method.  Meanwhile, members are encouraged to discuss internally within their agencies (including legal counsel) and think through strategies that appropriately address the intricacies and unique situations of their jurisdictions. 


News: Worthy

American with Disabilities Act Financing Program

By Abraham Han, Administrative Analyst

The California JPIA is currently accepting applications for the new American with Disabilities Act (ADA) Financing Program.  This program provides members with an opportunity to obtain funding that might otherwise be difficult to procure for ADA transition plan development or the removal of ADA-related barriers.

The program is expected to run for a five-year period, with an annual call for applications. 

Members selected to receive funds through the ADA Financing Program must repay the amount, plus interest, with level annual payments of principal and interest over a five-year term.  Additional details regarding the requirements and terms of the program are outlined in the ADA Financing Program application.

The application can be found here, and it is in a fillable PDF format.  It is highly recommended to download a copy of the application so that progress of application completion can be saved. 

Applications will be accepted until January 9, 2019.  After this date, members will need to reapply during the next application cycle.  All members will be notified of their status by March 4, 2019.

This program is part of a larger coordinated effort to help members make progress towards compliance with the Americans with Disabilities Act. 

If you have any questions about the ADA Financing Program or the Authority’s other ADA-related programs and resources, please contact Abraham Han, Administrative Analyst.


News: Worthy

Federal Aviation Administration Reauthorization Act of 2018

By Alex Mellor, Risk Manager

As those who have paid attention to the rapid adoption of drone technology by public and private sector organizations and hobbyists are well aware, advancements in technology have greatly outpaced the ability of government to implement effective regulation.

What regulation does exist has largely been developed and implemented by the Federal Aviation Administration (FAA). This regulation took another step forward on October 5, 2018, when President Trump signed the FAA Reauthorization Act. In addition to securing funding for the FAA for the next five years, the Act establishes new conditions for recreational use of drones.

These conditions include repeal of Public Law 112-95 Section 336, also known as the Special Rule for Model Aircraft, which had previously established separate rules for hobbyist drone operators. It now appears that hobbyists will be required to comply with the same rules as commercial operators, including a requirement to pass a knowledge test before flying.

The Act also requires that the FAA work with NASA and drone industry stakeholders to develop a plan for implementation of an unmanned traffic management (UTM) system. This system would ultimately be responsible for ensuring safe operation of multiple drones within the same airspace.

According to the FAA, the agency is currently evaluating the impact of this change in the law and how implementation will proceed. At this point in time, FAA is unable to fully implement the Act.

Members wishing to learn more about hobbyist drone operation in their jurisdiction, or regulations affecting operation of member-owned drones, can visit the FAA website at the following link: https://www.faa.gov/uas/.

For more information, please contact your assigned regional risk manager.


News: Worthy

Evidence of Coverage Letters

By Jim Thyden, Insurance Programs Manager

When members enter into written contracts or agreements there is often a requirement for them to provide proof that they have insurance or other coverage to protect both themselves and the other party to the contract.  The Authority provides members with this proof through Evidence of Coverage letters (EOCs) that can be obtained through our website.

When the written contract or agreement extends beyond the end of the coverage period on June 30 every year, the member needs to input the request as a “recurring” EOC so that it can be reissued annually.  The new EOC can be obtained easily through the Authority’s website.

Members only need to mark the “No Changes” or “Revise” box, make any necessary changes, click “Submit Updates”, and the updated EOC will be emailed to the member immediately for distribution to the party who requires it in the written contract or agreement.  Additionally, members can delete recurring EOCs that are no longer needed by checking the box “No longer needed” and it will be removed from the current and future lists.

We hope this process makes it quick and easy for members to meet their insurance requirements.

If you have any questions, please contact Jim Thyden, Insurance Programs Manager


Legislative Update

An Advanced Look at Senate Bill 1421: Analyzing the Confidentiality of Certain Police Records

By Algeria R. Ford, Senior Associate, and Nathan A. Oyster, Partner, Burke Williams & Sorenson

California Senate Bill 1421 modifies Penal Code 832.7 by stripping the prior confidentiality of police personnel records related to 1) sustained findings of dishonesty, 2) investigations of Officer Involved Shootings and serious uses of force, and 3) sustained findings of sexual assault. The law takes effect January 1, 2019, at which time law enforcement agencies must be prepared to tackle issues arising from the reclassification of the aforementioned records and the new requirement of analyzing disclosure of personnel records under both the established Pitchess procedure as well as the Public Records Act (PRA).

Processing Requests for Peace Officer Personnel Records     

Beginning January 1, 2019, when a request for peace officer records comes in, agencies will have to evaluate and categorize the request as either a request pursuant to the PRA or one falling under the prior established Pitchess procedures. The request should be categorized as an inquiry for non-confidential records pursuant to the PRA (California Government Code §§ 6250 et seq.) if the request is for peace officer personnel records related to Officer Involved Shootings (OIS), uses of force that result in Great Bodily Injury (GBI) or Death, sustained allegations of sexual assault against a member of the public, or sustained allegations of dishonesty. For all other peace officer personnel records, the request should be categorized as an inquiry for confidential records pursuant to the procedures outlined in Pitchess v. Superior Court (1974) 11 Cal.3d 531, California Penal Code §§ 832.7(a) and 832.8, and California Evidence Code §§ 1043 and 1045. 

Public Records Act Analysis

When a record has been characterized as non-confidential because it is a record of a sustained allegation of dishonesty, a sustained allegation of sexual assault, an Officer Involved Shooting or a use of force that resulted in Great Bodily Injury or Death, the law enforcement agency must generally disclose all relevant documents and must generally do so within the timelines outlined in the PRA. There is the ability to redact information in certain limited circumstances and also delay disclosure of some records during an active criminal investigation or active Internal Affairs investigation. 

Importantly, there will no longer be a neutral arbiter reviewing the records prior to disclosure. Instead, agencies must themselves now determine what should be turned over. If there is a dispute about the disclosure, a local agency may not commence an action for declaratory relief to determine the agency’s obligation to disclose records to a member of the public under the Act. Filarsky v. Superior Court (2002) 28 Cal.4th 419. On the other hand, the PRA allows a requestor to file a Verified petition for Writ of Mandate to Compel Compliance and Complaint for Injunctive and Declaratory Relief. In addition, if the plaintiff prevails in the litigation, the judge must award court costs and reasonable attorney fees to the plaintiff. Gov. Code, § 6259, subd. (d).

Pitchess Analysis

Peace Officer personnel records not classified as Officer Involved Shootings (OIS), Uses of force that result in Great Bodily Injury (GBI) or Death, Sustained allegations of sexual assault against a member of the public, or Sustained allegations of dishonesty will continue to be evaluated pursuant to Pitchess.

Disclosure will continue to require a noticed motion, a hearing, and an in-camera review of records and any disputes regarding disclosure will still be handled by a neutral arbiter. In addition, as before, there is no entitlement to attorney fees.

Considerations 

SB 1421 expands the definition of sexual assault. The Bill defines “sexual assault” as the commission or attempted initiation of a sexual act with a member of the public by means of force, threat, coercion, extortion, offer of leniency or other official favor, or under the color of authority. It also includes as sexual assault “the propositioning for or commission of any sexual act while on duty.” This broader definition encompasses on duty consensual relationships and contacts such that, theoretically, an officer who engages in sexual conduct with a spouse, while on duty, would have committed a sexual assault. While it is unclear if that was the intention of the legislature, the express language of the Bill requires law enforcement agencies to consider consensual sexual conduct a “sexual assault” if it occurs while the officer is on duty.

The “balancing test” for withholding documents is likely not as useful as it appears. Under SB 1421, a public agency may redact or delay a record disclosure if the public interest served by not disclosing the information clearly outweighs the public interest served by disclosing the information. While the balance test reflects current law, this exemption is rarely, if ever, used. In addition, if this exemption is invoked, law enforcement agencies would have to contend with costly legal challenges and would not be able to recover their costs even if the agency prevailed. On the other hand, if agencies were unsuccessful, they would be on the hook for costs in addition to attorney fees. Ultimately, the burdens and risks are substantial and given the legislature’s intent to make these documents public, the circumstances where records could be withheld or redacted are likely limited.

Agencies may change how they decide to punish misconduct. Assume, for example, that a police department investigates an officer for an on-duty motor vehicle accident and alleged false statements made by the officer to cover-up the accident.  Prior to SB 1421, the entire investigation would remain confidential regardless of the findings.  A police department who believed that its officer had been dishonest in reporting the accident might opt to impose a 30-day suspension on the officer, rather than terminating the officer.  The officer, avoiding termination, might choose to accept that level of discipline, knowing that his career will continue. SB 1421 changes the analysis for both the department and the officer in this example.  If the department concludes that the officer was dishonest, the entire Internal Affairs investigation will become public. This reality may make termination more common when an agency concludes that an officer was dishonest.  As an alternative, a police department that does not want to terminate an officer may opt instead to sustain a finding for the underlying motor vehicle accident rather than for the alleged dishonesty because if the sustained finding were for the motor vehicle accident only, the investigation would remain confidential.

Attorneys representing law enforcement agencies must be prepared to educate the judiciary on the new changes and advise their clients about the treatment of requests going forward. It will likely take time for the criminal defense bar and the judiciary to adjust to the change in law. This is especially true because Pitchess is not dead, it’s just been limited, so courts will have to distinguish between what process is appropriate for the specific types of documents being sought. Attorneys representing these agencies will have to advise regarding whether they will construe Pitchess motions to be PRA requests for those files that are no longer confidential, and then prepare formal opposition to the motions for other files that are not covered by SB 1421.


Legislative Update

Keeping Up with the Legislature: 2019 Brings Changes to the Fair Employment and Housing Act

By Kelly Trainer, Partner, and Pooja Patel, Associate, Burke, Williams & Sorensen

In late 2017, #metoo went viral, and allegations of sexual harassment took center stage in the United States.  The California Legislature responded by introducing a large number of bills to amend the Fair Employment and Housing Act (“FEHA”) to address a variety of harassment-related issues.  Governor Brown signed several of these bills into law to take effect on January 1, 2019.  Like the remainder of the FEHA, these changes apply to all public employers and most private employers.

SB 1300, or the Omnibus Sexual Harassment Bill, amends the FEHA by adding in Sections 12923, 12964.5 and 12950.2 to the Government Code. It is unclear how courts will apply these changes, so at this early date, it is unclear what practical impact the changes will have on employers. Technically, the new provisions simply state the Legislature’s understanding of appropriate legal standards, some of which courts have already articulated as persuasive authority. That means that, in theory, courts could simply reject the changes and proceed with its currently applied jurisprudence. We expect these issues to be heavily litigated. In sum, the changes in SB 1300 will make it easier for plaintiffs to file and litigate harassment claims against employers and make it more difficult for employers to defeat harassment claims on summary judgment. 

Declined Tangible Productivity Unnecessary. SB 1300 affirms the standard stated by Justice Ruth Bader Ginsburg in her concurrence in Harris v. Forklift Systems[1] that the plaintiff does not need to prove declined tangible productivity as a result of the harassment. Instead, the plaintiff need only prove that a reasonable person subjected to the discriminatory conduct would find that the harassment altered working conditions so as to make it more difficult to do the job.

Single Incident Sufficient. Application of SB 1300 expands current law to establish an actionable harassment claim. Currently, the complained of conduct must be sufficiently “severe or pervasive.” Generally, this requires either one extremely severe instance or multiple less severe instances. Under SB 1300, a single incident of harassment that has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment, may be sufficient to create a triable issue regarding the existence of a hostile work environment. Accordingly, a plaintiff will not necessarily need to allege multiple incidents to meet the “severe and pervasive” standard to establish a case of a hostile work environment; one incident of harassing conduct could more easily constitute unlawful “severe and pervasive” harassment. The application of SB 1300 rejects the holding in Brooks v. City of San Mateo[2]

“Stray Remarks” Relevant. SB 1300 affirms the current standard set forth in Reid v. Google[3]: The existence of a hostile work environment depends on the totality of the circumstances. Therefore, even if a discriminatory remark is made not directly in the context of an employment decision or uttered by a non-decision-maker, a court will still consider the remark as relevant, circumstantial evidence of discrimination.

Industry Culture Irrelevant. SB 1300 disproves the language in Kelley v. Conco Companies.[4] Currently, in evaluating whether alleged harassment is triggered by a victim’s protected status (e.g., sex or race), a court might consider the general industry culture to determine discriminatory intent. For example, a court might interpret certain sexually explicit statements to not be motivated by gender because vulgar language is commonly used in the entire industry or workplace. SB 1300 disapproves the current standard and declares the legal standard for sexual harassment will not vary by type of workplace. Under the new standard, in determining whether a hostile environment exists, courts should consider the nature of the workplace in a hostile work environment claim only “when engaging in or witnessing prurient conduct and commentary is integral to the performance of the job duties.” Therefore, it is irrelevant that an occupation may have been characterized by a greater frequency of sexually related commentary or conduct in the past.

SB 1300 carves out a small exception: the nature of the workplace is considered if witnessing or engaging in sex-related conduct is integral to the job.

Summary Judgement Rarely Appropriate. SB 1300 affirms the observation in Nazir v. United States, Inc.[5], that hostile work environment cases involve issues “not determinable on paper.” That means that harassment cases will rarely be appropriate for disposition on summary judgment.

Expands Employers’ FEHA Liability for Third Parties. Currently, employers are responsible for non-employees’ sexual harassment only if the employer knew or should have known about the conduct. Under SB 1300, an employer is now responsible for harassment by a third party based on any protected status, rather than just sex. 

Limits Release and Non-Disparagement Agreements. SB 1300 prohibits employers from requiring an employee to sign, as a condition of employment, continued employment, or in exchange for a raise or bonus: (1) a release of FEHA claims or rights or (2) a non-disparagement agreement prohibiting a disclosure of information about unlawful acts in the workplace, including sexual harassment.

SB 1300 creates an exception: this restriction does not apply to negotiated settlement agreements to resolve FEHA claims filed in court, before administrative agencies, alternative dispute resolution or through the employer’s internal complaint process. The settlement agreement just has to be negotiated, voluntary, and supported by valuable consideration. 

Limits Prevailing Employers’ Right to Fees and Costs. SB 1300 prohibits a prevailing defendant from being awarded attorneys’ fees and costs unless the court finds the complaint was frivolous, unreasonable, or groundless when filed; or that the plaintiff continued to litigate after it clearly became so. SB 1300 explicitly states that this provision does not apply to section 998 settlement offers.

Authorizes Bystander Intervention Training.  SB 1300 also authorizes, but does not require, employers to provide bystander intervention training that includes information and practical guidance on how to enable bystanders to recognize potentially problematic behaviors and to motivate bystanders to take action when they observe problematic behaviors.

SB 1343 increases the number of employers that will have to provide sexual harassment prevention training and mandates training for non-supervisory employees. Currently, all public employers and private employers with 50 or more employees have to provide sexual harassment training. Now, by January 1, 2020, employers with 5 or more employees (including temporary and seasonal employees) will have to provide such training. This training must be interactive and must be provided to all employees, not just supervisors. Supervisors will be required to complete two hours of training while non-supervisors will be required to complete one hour.

Training for non-supervisory employees must be completed by January 1, 2020.  Thereafter, training must be completed within six months of hire and every two years thereafter. The Department of Fair Employment and Housing has been directed to develop courses that meet this requirement and make them available for employers.  The Authority has long-recommended harassment prevention training for all employees, not just supervisors, and non-supervisory employee training is currently available to all Authority members.

Beginning on January 1, 2020, employers must provide this training within 30 calendar days of the hire date, or within 100 hours work (whichever occurs first) for seasonal and temporary employees that are hired to work for less than six months. If the temporary employee is employed by a temporary service employer, as defined in the California Labor Code, to provide services for a client, the training must be provided by the temporary service employer, not the client.

SB 820 extends the California Code of Civil Procedure (“CCP”) and applies to both public and private employers as well as both civil and administrative actions. CCP §1002 currently prohibits provisions in settlement agreements that prevent disclosure of acts that can be prosecuted as felony sex offenses and certain sex offenses against children. SB 820 adds CCP §1001 to prohibit nondisclosure provisions in settlements involving sexual misconduct. If a settlement agreement after January 1, 2019, includes such nondisclosure provision, that provision will be void as a matter of public policy. SB 820 creates two exceptions: (1) either party can prevent the nondisclosure of the amount paid, and (2) the claimant can prevent nondisclosure of facts that would protect his or her identity, as long as a government agency or public official is not a party to the action.

AB 3109 bars settlement provisions that prevent an individual from testifying about criminal conduct or sexual harassment in court or legislative proceeding. AB 3109 makes such provision void and unenforceable.

SB 419 prohibits the Legislature from firing or discriminating against an employee or lobbyist who files a harassment complaint. SB 419 also requires the Senate and Assembly to maintain records of harassment complaints for at least 12 years. Complaints made at the request of a legislative employee and complaints made against a non-employee in specified circumstances are also “protected disclosure” under this law.


[1] (1993) 510 U.S. 17.

[2] (2000) 229 F.3d 917 (holding that a single instance of offensive conduct did not rise to the level of harassment under Title VII).

[3] (2010) 50 Cal. 4th 512 (holding that discriminatory comments by coworkers and non-decision-makers and comments unrelated to the employment case should be considered with the rest of the evidence in the record).

[4] (2011) 196 Cal.App.4th 191 (taking into consideration the workplace environment in determining that sexually taunting comments made by employees and supervisors was not harassment severe and pervasive enough to amount to an action under FEHA).

[5] (2009) 178 Cal.App.4th 243.


Legislative Update

In Case You Missed It: California Adopted Comprehensive National Origin Regulations

By Kelly Trainer, Partner, and Pooja Patel, Associate, Burke, Williams & Sorensen

Earlier this year, the California Fair Employment and Housing Council adopted new regulations regarding national origin, which went into effect on July 1, 2018. These regulations clarify the definition of “national origin,” codify case law, and strengthen existing laws on discrimination, retaliation, and harassment. These laws apply to applicants and employees, regardless of documentation status.

2 Cal. Code Regs. §11027.1(a) expands the definition of “national origin” to include the individual's or the individual's ancestors' actual or perceived:

(1)       physical, cultural or linguistic characteristics associated with a national origin group;

(2)       marriage to or association with persons of a national origin group;

(3)       tribal affiliation;

(4)       membership in or association with an organization identified with or seeking to promote the interests of a national origin group;

(5)       attendance or participation in schools, churches, temples, mosques or other religious institutions generally used by persons of a national origin group, and

(6)       name that is associated with a national origin group.

The regulations also provide that “national origin groups” include “ethnic groups, geographic places of origin, and countries that are not presently in existence.”

2 Cal. Code Regs. §11028 bolsters existing regulations that prevent harassment, discrimination, and retaliation based on national origin.         

Language Restriction: California employers have been prohibited since 2001 from adopting or enforcing a policy that prohibits the use of any language in the workplace, unless a business necessity justified the prohibition and certain notice requirements were met.  The new regulations bolster this law by also requiring that any such restriction be “narrowly tailored.”  Under current law, restrictions on language use in the workplace are are presumptively illegal unless the employer can show the following three things: (1) the language restriction is justified by a business necessity; (2) the restriction is narrowly tailored; and (3) the employer has informed the employees when the language restriction is to be enforced and the consequence of violating it. A language restriction that “merely promotes business convenience or is due to customer or co-worker preference” will not be permissible.  Further, “English-only” rules are never allowed during employee’s non-work time such as breaks, lunches, and unpaid employer-sponsored events.

Accents: Employers cannot discriminate against an applicant or employee based on his or her accent unless the employer can prove that the accent materially interferes with their ability to perform the job.

English Proficiency: Employers cannot discrimination against an applicant or employee based on his or her English proficiency unless it is justified by a business necessity. In determining whether there is a business necessity, the relevant factors include the type of proficiency, the degree of proficiency required, the nature of the job, and the job duties. However, an employer may request an applicant or employee provide information about his or her ability to speak, read, write, or understand any language, including English, if justified by a business necessary.

Immigration Status: This regulation applies to all applicants and employees regardless of immigration status. Further, this regulation prohibits inquiry into the applicant or employee’s immigration status and discrimination based on immigration status unless there is clear and convincing evidence that the inquiry is necessary to comply with federal immigration law.

Human Trafficking: The regulations prohibit employers from using force, fraud, or coercion to compel the employment based on national origin.

Height and/or Weight Requirements: If height or weight requirements create a disparate impact on the basis of national origin, the employer must be able to demonstrate that the requirements are job related and justified by business necessary. Even if the employer is able to demonstrate that, the requirement may still be unlawful if the applicant or employee can prove that the purpose of the requirement can be achieved through less discriminatory means.

Recruitment and Job Segregation: Employers may not seek, request, or refer applicants or employees based on national origin, or assign positions, facilities or locations based on national origin.

Harassment: Employers are prohibited from harassing an applicant or employee on the basis of national origin.

Retaliation: Employers are prohibited from retaliating against an individual who has opposed discrimination or harassment on the basis of national origin, has participated in the filing of a complaint, or has testified, assisted, or participated in any other manner in a proceeding in which national origin discrimination or harassment has been alleged. This section specifically includes threatening to contact or actually contacting immigration authorities or a law enforcement agency about the immigration status of the individual, or a family member of that individual, and taking adverse employment action against an individual for updating personal information based on a change of name, social security number, or government-issued employment documents.


Risk Solutions

Code Enforcement Officer Safety: A Paramount Concern

By Melaina Francis, Risk Manager

When considering agency exposures those of code enforcement officers should not be overlooked. Threats, attacks, and even deaths have occurred while code enforcement officers were performing their duties. California JPIA members providing code enforcement services have reported occupational injuries impacting employees in the form of assaults. Over the last ten years, these injuries ranged from physical attacks by transients to being threatened with a knife by a resident.

According to the California Association of Code Enforcement Officers (CACEO) threats and assaults on code enforcement personnel is on the rise. “When citizens act aggressively toward a code enforcement officer, words alone may not offer any protection. Sometimes either retreating or using personal protective equipment is required to prevent injury from the attack. There may not be an option to retreat, which has been clearly documented by the battering and murders committed against code enforcement officers and other government regulators over the past 15 plus years.” The graph below is a representation of the types of incidents that have occurred in California.

Incident type graph
  Data sourced from California Association of Code Enforcement Officers – Officer Safety Committee 2016 Incident Report

A recent tragedy involved a code enforcement officer shooting: Code enforcement officer Jill Robinson, 52, was shot and killed Thursday, Aug. 9, 2018. A 65-year-old man was taken into custody as a suspect.

“Attacks on code enforcement officers have included the use of firearms, explosives, all manners of bludgeons, knives, motor vehicles, beatings and even human bites on the officer's person. A 2001 CACEO survey of association members reported that over 63% of those who responded to the survey had been assaulted or threatened.”

With that said, there is action public agencies can take to protect their employees working in the field that encounter hostile, aggressive, unstable individuals that may try to do them harm.

According to the California Occupational Safety and Health Act of 1973, every employer has a legal obligation to provide and maintain a safe and healthful workplace for employees. As of 1991, a written, effective Injury and Illness Prevention Program is required and should include the evaluation and prevention of workplace violence. The Department of Industrial Relations developed an Injury and Illness Prevention model program for workplace security.

Agencies should conduct and document a job hazard analysis that includes a hazard assessment for personnel protective equipment to determine what types of equipment to issue employees such as emergency radios, protective ballistic vests, pepper-spray, tasers, and expandable batons. All of which may be necessary protective equipment that requires specialized training, written policies and procedures, and reporting and documentation when incidents arise. The Colorado Association of CACEO has developed Safety Standards and Guidelines, which is an excellent tool to assist members with conducting a job hazard analysis. Obtaining and evaluating crime statistics and gang activity data in the member’s jurisdiction is recommended as part of the job hazard assessment.

As discussed earlier, if de-escalation tactics should fail, and an aggressor turns violent and the officer cannot flee, he or she has the right to defend themselves. How will they do this successfully to minimize injuries to themselves and others? Besides verbal de-escalation techniques, employees should have an agency issued radio or phone and know the established protocol to call for assistance when there is an indication that the situation is escalating. Agencies should consider providing their community service officer/code enforcement officers self-defense training and other training tools.

CACEO is the only State recognized authority under Assembly Bill 2228 to provide training for code enforcement officers to obtain the designation of Certified Code Enforcement Officer (CCEO). CACEO has developed an officer survival guide consisting of best practices that can be downloaded from their website. https://www.caceo.us/page/OfficerSafety

The KIT Group/BC Krav Maga is the only organization sanctioned by CACEO that has developed a self-defense training program specifically for code enforcement officers. BC Krav Maga has provided self-defense training to over five-hundred Certified Code Enforcement Officers in Southern California. It has been reported that some officers attend self-defense training at their own expense, which should not occur as this is the responsibility of their employer. Ensuring that employees receive proper training and the essential equipment to work safely is of utmost importance.

A possible safety vest resource for members is available through the DOJ Bureau of Justice Assistance that offers a bulletproof vest partnership that include code enforcement officers on the list of job categories eligible for the reimbursement program.

The California JPIA offers a Pepper Spray policy template to assist members. The policy template is available in the “Policy Templates” section of the Authority’s Resources and Documents library on cjpia.org.  Additionally, OC Pepper Spray Training: A Useful Tool for Field /Enforcement Personnel is available for California JPIA members. If you have any questions, please contact your assigned Risk Manager.


Risk Solutions

Worker Fatigue – Assessing and Mitigating the Risk

By Tim Karcz, Senior Risk Manager

As workforces grow smaller, individual employee responsibilities sometimes increase. With this comes increased concern over worker fatigue and how it may affect worker safety. Fatigue is a risk to worker safety and health. The short-term effects of fatigue can lead to significant safety hazards as the workers’ ability to safely and effectively perform work is impacted. Fatigue impairs workplace performance in four key areas:

  • Worker alertness: The ability to remain vigilant and react to the work environment.
  • Emotional stability: The ability to remain calm and stable in fast-moving environments and critical situations.
  • Mental abilities: The ability to make decisions, think clearly, and effectively multi-task.
  • Physical abilities: The ability to perform with adequate reaction times and proper coordination.

Like other hazards faced by your agency, assessing and mitigating fatigue-related risk exposures is critical. Identifying factors likely to influence fatigue is the first step towards understanding and assessing these exposures. Factors likely to influence fatigue include work scheduling, work tasks, work environments, and other factors such as emergency situations, health concerns, or stress.

The California JPIA offers several training resources for its members, including on-demand E-Learnings such as “Coping with Stress” and “Manage Stress on the Job.” In addition, the Authority offers a classroom training titled “Stress Management,” focused on the impact of stress, time management, and workplace health and well-being. Members can request these trainings by visiting the Authority’s training website at https://www.cjpia.org/risk-management/training.

In addition, there are free resources are available through the National Institute for Occupational Safety and Health (NIOSH), a part of the CDC and a leading authority in worker safety. Click on the following links for access to these resources.

Training and education resources: https://www.cdc.gov/niosh/topics/workschedules/education.html.

Webinar series of sleep-problem and fatigue related concerns: https://www.cdc.gov/niosh/topics/workschedules/webinars.html

For additional information or to discuss these exposures in more detail, contact your regional risk manager.

 


Coverage Matters

Pollution Program – Pollution Coverage Explained

By Jim Thyden, Insurance Programs Manager

The California JPIA provides many coverages for members, including liability and pollution, under separate programs.  Pollution losses are generally excluded under both the Primary Liability Program (Memorandum of Coverage – Primary Liability, Exclusion “F”) and Excess Liability Program (Memorandum of Coverage – Excess Liability,  Exclusion “19”).

These exclusions exclude any claim, liability, alleged liability, loss, cost or expense arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release, escape or any other forms of exposure to or the presence of pollutants or hazardous materials.  The exclusion encompasses any claims related to the cleanup and containment of a loss, as well as any subsequent testing.  Also excluded are expenses claimed for business interruption from either the member or third party.  Claims presented under the Clean Water Act are also excluded.  The Clean Water Act establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters. 

There is an exception to the exclusions in the liability programs: the exception is for bodily injury or property damage arising out of or caused by any actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants or hazardous materials if certain conditions occur.  Those conditions include things such as hostile fire, explosion, weather event, vandalism or a vehicular collision causing the event.  The event must be instantaneous and accidental; the event must have become known to the protected party within seven days and reported in writing to the Authority within twenty days of knowledge; and the protected party must undertake reasonable efforts to correct or terminate the discharge, dispersal, seepage, migration, release or escape of pollutants or hazardous materials. 

The liability memoranda of coverage aim to provide coverage to members when there is a sudden, unexpected event, that results in a pollution loss.  The liability programs are not designed to provide coverage for ongoing, continuous pollution related losses that result in claims. 

The Pollution Program can cover those pollution losses that are generally excluded under the Liability Program.  The program provides participating members with coverage for both first- and third-party claims for pollution conditions on-site and migrating off-site, including bodily injury, property damage, remediation on-site and off-site, business interruption, extra expense, image restoration and emergency expense costs.  Additional protection for claims from non-owned disposal sites, transportation, illicit abandonment, contracted operations and storage tanks are also included.

Environmental incidents do not occur often, however when they do, they can be catastrophic.  While the Pollution Program does cover incidents occurring on a sudden and accidental basis (new conditions) it also covers losses that have occurred over time without the member’s knowledge (pre-existing conditions).  Airports, however, are limited to sudden and accidental and landfills (or locations that were ever a landfill) are limited to off-site coverage only.

It is important to understand that pollution coverage is very “schedule specific”, and member locations need to be scheduled, in order for coverage to apply.  The program does provide coverage for inadvertent mistakes in reporting and automatic acquisition for new locations.  For new locations, new conditions coverage is provided, but coverage for pre-existing conditions can only be added with review of appropriate environmental reports.  This coverage does not apply to landfills.

While the coverage is broad in terms, there are restrictions in the form of exclusions including criminal fines and penalties, non-disclosed known conditions, material change in use, land use control violations, communicable disease (does not apply to medical waste) and divested properties.

The Pollution Program is very strict in their claim reporting requirements, and members must receive the insurance carrier’s consent before engaging remediation or legal specialists if the expectation is that such costs would be covered.  The exception is acting in an emergency after a pollution incident.  Members should report claims and/or any known incidents to the Authority immediately. 

While the master program does provide coverage for scheduled underground storage tanks, it does not provide financial assurance as required by the State of California.  For those members wishing to meet the state obligation through risk transfer of insurance, the Authority offers an optional program for Financial Guarantee for Underground Storage Tanks.

If you have questions about the Pollution Program, please contact Jim Thyden, Insurance Programs Manager.