Newsletter

Issue 50-April 2016

Registration will open in May for the 21st Annual Risk Management Educational Forum entitled Weathering the Storm to be held at the Hyatt Regency Indian Wells Resort and Spa from October 12 – 14, 2016.  It is during the Forum that the Authority recognizes one outstanding individual who best exemplifies the practice of risk management in the public sector with the Capstone Award.

California JPIA 21st Annual Risk Management Educational Forum: Capstone Award and Scholarship Opportunity

The Only Constant Is Change: Are You in Compliance with the New FEHA Regulations?

Clear As Mud: California Wage and Hour Laws in the Public Sector

New Instructor-Led Training Course:  Mandated Reporter

Summertime

Legislative Update

Property Damage Recovery Program

News: Worthy

California JPIA 21^st Annual Risk Management Educational Forum: Capstone Award and Scholarship Opportunity

Registration will open in May for the 21^st Annual Risk Management Educational Forum entitled Weathering the Storm to be held at the Hyatt Regency Indian Wells Resort and Spa from October 12 – 14, 2016.  It is during the Forum that the Authority recognizes one outstanding individual who best exemplifies the practice of risk management in the public sector with the Capstone Award. Separately, the Authority provides a limited number of scholarships for lodging accommodation costs to member employees whose employers may be unable to pay those costs.

4^th Annual California JPIA Capstone Award

An individual nominated for the Capstone Award is a person who could be working at any level within a member agency and ideally, would be someone who:

• Thinks through the implications of risk in the carrying out of local government programs and services
• Works to support traditional or enterprise risk management efforts for the member agency
• Develops, implements, and administers loss prevention and loss control programs to mitigate risk exposures for the member agency
• Coordinates support systems that serve the member’s risk management goals and needs
• Influences others in developing quality risk management programs for the member agency.

If you know someone who demonstrates these characteristics and would like them to be considered for the fourth Annual Capstone Award, please click on the survey link below to submit a nomination (members may nominate themselves). 

The top five finalists will be invited to attend this year’s Risk Management Educational Forum.  The achievements of the finalists will be recognized in front of their peers during the award ceremony.  One finalist will be selected to receive the Capstone Award in recognition of their outstanding professional risk management efforts.

All finalists will receive a travel stipend to attend the Forum and complimentary hotel accommodations at the Hyatt Regency Indian Wells Resort & Spa, located in Indian Wells, during their Forum stay.

Please click here to complete the Capstone Award nomination form.  Nominations will be accepted until Thursday, June 2, 2016.

Educational Forum Scholarship Opportunity

While there is no cost for member registration, the California JPIA is awarding a limited number of scholarships for lodging accommodation costs while attending the Forum.

The purpose of the scholarships is to assist members who are otherwise unable to attend due to financial constraints at their agencies.  The Executive Committee has authorized two nights lodging at the Hyatt Regency Indian Wells Resort & Spa during the Forum for each scholarship recipient.

This is a competitive process and will be awarded to the most deserving applicants.  To be eligible to receive a scholarship, an applicant must:

• Be an employee of a member agency of the California JPIA
• Have supervisor or management approval to attend
• Attend the forum in its entirety
• Be able to pay for any other related costs

Please click here to complete the scholarship application.  Applications must be submitted no later than Thursday, June 2, 2016.  Selected recipients will be notified by email on or before July 13, 2016.

For questions about the Capstone Award or the scholarship program, contact Abraham Han, Administrative Analyst.

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News: Worthy

The Only Constant Is Change: Are You in Compliance with the New FEHA Regulations?

By Traci I. Park and Kelly A. Trainer, Burke, Williams & Sorensen, LLP

On April 1, 2016, a comprehensive set of new regulations pertaining to the California Fair Employment and Housing Act (“FEHA”) went into effect.  While several of the regulations merely codify recent appellate decisions or previous legislation, some are substantively new.  The key obligations on employers imposed by the regulations are discussed below.  The full text of the regulations with the changes is available here.

Definitions And Coverage Under The FEHA

The new regulations broaden the concept of “applicants” (who are protected from discrimination under the FEHA) to include not only those who have actually submitted a written application, but also those who have indicated “a specific desire…to be considered for employment” and those who “can prove that he or she has been deterred from applying” due to an alleged discriminatory practice. (2 C.C.R. §11008(a)).

With respect to meeting the five employee threshold to determine applicability of the FEHA, the new regulations clarify that employees outside of California count towards meeting the threshold.  However, the regulations explain that employees outside of California are not themselves covered by the FEHA if the wrongful act occurred outside of California and if it was not ratified by decision-makers or participants located in California.  (2 C.C.R. §11008(d)(1)).  Similarly, employees in California who are on any kind of paid or unpaid leave of absence, including CFRA leave, or a disciplinary suspension, count towards meeting the minimum threshold for coverage under the FEHA.  (2 C.C.R. §11008(d)(2)).

Unpaid Interns and Volunteers

Consistent with recent legislation,[1] the new regulations confirm that unpaid interns and volunteers are entitled to protection from harassment and discrimination under the FEHA.  (2 C.C.R. §11009(e); 11019(b)(1)).  An “employment benefit” now includes the selection, training, or freedom from termination from an unpaid internship or other programs providing unpaid work experience.  (2 C.C.R. §11008(g)).  “Unpaid interns and volunteers” include any individual that works without pay for an employer in an internship or other program providing unpaid work experience, or as a volunteer.  (2 C.C.R. §11008(k)).  Unpaid interns and volunteers may or may not be considered “employees.”  However, for harassment claims, interns and volunteers are considered “employees.”  (2 C.C.R. §11019(b)).

Liability Under The FEHA

In 2013, the California Supreme Court declared that in order to prevail on a discrimination claim under the FEHA, an aggrieved employee must prove that the employer was “substantially motivated” by a discriminatory reason.[2]  Following suit, the Court of Appeal concluded that retaliation and FEHA-related wrongful termination claims were also subject to the substantial motivating reason standard.[3]

The new regulations now codify these holdings as follows: “Discrimination is established if a preponderance of the evidence demonstrates that an enumerated basis was a substantial motivating factor in the denial of an employment benefit…and the denial is not justified by a permissible defense.”  The regulations clarify that the substantial motivating factor standard applies to discrimination and retaliation claims, but excludes other causes of action, such as harassment, denial of a reasonable accommodation, failure to engage in the interactive process, and failure to provide leaves of absence provided under the FEHA.  According to the regulations, a substantial motivating factor is one that a “reasonable person” would consider to have contributed to the denial.  It must be more than a remote or trivial factor, although it does not have to be the only factor.  (2 C.C.R. §11009(c)).

The new regulations also clarify that while employers have an affirmative duty to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct, there is no such stand-alone private cause of action.  Rather, an aggrieved employee must first plead and prevail on an actionable claim for discrimination, retaliation or harassment in order to assert a companion failure to prevent or correct claim.  In contrast, the DFEH can seek non-monetary remedies for failure to prevent or correct unlawful conduct, even if the DFEH does not prevail on an underlying claim of harassment, discrimination or retaliation.  Whether or not an employer has complied with its affirmative duty to prevent and correct unlawful conduct requires an individualized assessment based on numerous factors sometimes unique to the particular employer, including but not limited to, the size of the workforce, budget, nature of the business, and the facts of the particular case at issue.  (2 C.C.R. §11023(a)(1)-(3)).

With respect to personal liability for harassment, the new regulations confirm the long-standing rule that an employee who engages in unlawful harassment is personally liable, regardless of whether the employer knew or should have known about and/or failed to take appropriate corrective action.  (2 C.C.R. §§11019(b)(6); 11034(f)(2)(C)(4)).  They likewise confirm that an employer is strictly liable for harassment by a supervisor or agent, regardless of whether the employer knew or should have known about the conduct.  (2 C.C.R. §11034(f)(2)(C)(1)).  When the harassment is committed by a non-supervisory employee or non-employees, the employer is only liable  if it knows or has reason to know about the conduct and fails to take immediate and appropriate corrective action.  (2 C.C.R. §11034(f)(2)(C)(2)-(3)).

Workplace Harassment Policy And Investigation Mandates

Maintaining a comprehensive anti-harassment, discrimination and retaliation policy is no longer simply a best practice.  Under the new regulations, employers are required to develop and disseminate a written policy that lists all current protected categories and specifies that unlawful conduct by employees and third parties is prohibited.  The policy must also include a complaint procedure which provides for confidentiality to the extent possible, a timely response, impartial and timely investigations by qualified personnel, documentation and tracking for reasonable progress, appropriate options for remedial actions and resolutions, and timely closures.  The policy cannot require the employee to make a report to his or her direct supervisor; rather, they must be able to communicate with other designated employee representatives (such as human resource manager, EEO officer, or other supervisor), via a complaint hotline, or through access to an ombudsperson.  The DFEH and EEOC must also be identified as additional avenues for employees to lodge complaints.  The policy must also instruct supervisors to report any complaints of misconduct to a designated company representative so that the employer can try to resolve the claim internally.  (2 C.C.R. §11023(b)(1)-(6)).

With respect to investigating complaints, the policy must indicate that when an employer receives allegations of misconduct, it will conduct a fair, timely and thorough investigation that provides all parties with appropriate due process and reaches reasonable conclusions based on the evidence collected.  The policy must state that confidentiality will be kept by the employer to the extent possible and not indicate that the investigation will be kept completely confidential.  The policy must also provide that if the investigation concludes misconduct occurred, appropriate remedial measures will be taken.  The policy must specifically notify employees that those who make complaints or participate in an investigation will not be subject to retaliation.  (2 C.C.R. §11023(b)(7)-(10)).

The new regulations also mandate that the policy actually be disseminated to employees, utilizing one or more of the following methods: (1) printing and providing a copy to all employees with an acknowledgement form; (2) sending the policy via email with an acknowledgement form; (3) posting current versions of the policies on an employer intranet with a tracking system ensuring all employees have read and acknowledged receipt; (4) discussing policies upon hire or during orientation; and/or (5) any other way that ensures employees receive and understand the policies.  (2 C.C.R. §11023(c)(1)-(5)).

Employers must translate the harassment policy into every language spoken by at least 10% of the workforce.  (2 C.C.R. §11023(d)).

Sex and Pregnancy Discrimination And Harassment

The new regulations expand the concept of “sex” discrimination and harassment to include conduct based on sex, gender identity, gender expression, pregnancy and medical conditions related to pregnancy, childbirth, and breastfeeding.  (2 C.C.R. §§11029(b); 11030; 11036).   The new regulations offer comprehensive definitions for gender expression, gender identity, sex, sex stereotype, and transgender.[4]  (2 C.C.R. §11030).  They also expand the definition of “disabled by pregnancy” to include a transgender individual who is disabled by pregnancy.  (2 C.C.R. §11035(f), (g)).

The new regulations also explain that sexual harassment does not have to be motivated by sexual desire.[5]  They also incorporate existing statutory law that an aggrieved employee does not have to prove a loss of tangible job benefits in order to establish harassment.  (2 C.C.R. §§11031(d); 11034(f)).  The new regulations also include explanations of quid pro quo and hostile work environment harassment.  (2 C.C.R. §11034(f)(1)-(2)). They also explain that a single act may be sufficiently severe to create a hostile work environment, the harassment must be subjectively and objectively offensive, and the victim does not have to be the direct target of the conduct.  (2 C.C.R. §11034(f)(2)(A)-(B).

Pregnancy Disability Leave

The new regulations clarify that pregnancy disability leave does not need to be taken in one continuous period of time, and employees are eligible for up to four months of leave per pregnancy, not per year.  (2 C.C.R. §11042(a)(1)).

The regulations also require employers to post requisite pregnancy disability leave notices “on its premises, in conspicuous place.”  The poster and the text must be large enough to read. Electronic posting is permitted if in a “conspicuous place or places where employees would tend to view it.”  The notices must explain the statutory leave requirements and provide information on how to contact the DFEH to file a complaint or learn more.  (2 C.C.R. §11049(d)(1)).  As with harassment policies, pregnancy leave notices must be translated into any language spoken by 10% or more of the workforce.  (2 C.C.R. §11049(d)(4)).

Religious Discrimination

The prohibitions against religious discrimination and the duty to provide reasonable accommodation for a person’s religion applies to individuals serving in an apprenticeship program, to unpaid interns, and to any other program that is to provide “unpaid experience,” as well as to employees and applicants.  (2 C.C.R. §11059(d)).

The regulations also clarify the duty to accommodate a person’s religion by providing that it is unlawful to fail to hire or to terminate an employee in order to avoid accommodating a religion.  (2 C.C.R. §11062).  It is also unlawful to discriminate or retaliate against a person for requesting a reasonable accommodation based on religion, regardless of whether the employer grants the accommodation.  (2 C.C.R. §11062(d)).  The regulations further clarify that an accommodation is not reasonable if it requires segregation of an employee from customers or the public, unless expressly requested by the employee.  (2 C.C.R. §11062(a)).

Disability Discrimination

The regulations now provide that it is unlawful for an employer to discriminate or retaliate against a person who requests reasonable accommodation for a disability, regardless of whether the accommodation is granted.  (2 C.C.R. §11068(k)).  The regulations provide additional guidance on what is required in an interactive process, specifying that the process requires an individualized assessment of both the job at issue and the specific limitation of the individual that are directly related to the need for reasonable accommodation.  (2 C.C.R. §11064(b)).

The regulations also provide some additional guidance on assistive animals as a reasonable accommodation by defining “support animal” to be an animal that provides emotional, cognitive, or other similar support to a person with a disability, including, but not limited to, traumatic brain injuries or mental disabilities, such as major depression.  (2 C.C.R. §11065(a)(3)).  Also, the regulations removed the requirement that the animal be “trained to provide assistance for the employee’s disability.”  (2 C.C.R. §11065(a)).

Discrimination Based On AB 1660 Driver’s License

In order to comply with AB 1660, which was effective January 1, 2015, the regulations prohibit an employer from discriminating against an applicant or employee because he/she has a driver’s license issued under section 12801.9 of the California Vehicle Code, which issues driver’s licenses to non-citizens.  (2 C.C.R. §11028(e)).

In addition, employers may only require an applicant or employee to hold or present a license issued under the Vehicle Code if possession of a license is required by state or federal law, or if the employer requires the possession of a license and is otherwise permitted by law.  An employer may violate the FEHA if the requirement to hold or present a driver’s license if the policy is not uniformly applied or inconsistent with legitimate business reasons (i.e., possessing a license is not required to perform an essential function of the job).

The regulations do not alter an employer’s obligations or rights under federal immigration law.

Harassment Prevention Training Compliance

The regulations clarify that employers must maintain the following records for at least two years:

• Names of all supervisors trained;
• Date of the training;
• Sign in sheets;
• All certifications of attendance or completion;
• The type of training;
• A copy of all written or recorded materials that comprise the training; and
• The name of the trainer provider.  (2 C.C.R. §11024(b)(2)).

There is also additional guidance on the required content of training.  Specifically, training must now specifically include information on how to identify behavior that may constitute unlawful harassment, discrimination, and/or retaliation under California and federal law, as well as the supervisors’ obligation to report harassing, discriminatory, or retaliatory behavior of which they are aware. (2 C.C.R. §11024(a)(9)).  In addition, the training must include information about abusive conduct in a meaningful manner; provide supervisors with information about implementing mechanisms to promptly address and correct wrongful behavior; highlight employer and individual liability in civil actions; and include information about taking appropriate remedial measures to correct harassment, including conducting an investigation. (2 C.C.R. §11024(c)).

Employer Take Aways

Employers should undertake an immediate review of their policies to ensure they comply with the new regulations.  Employers should also distribute their policies via one of the approved methods to all employees, volunteers, and unpaid interns.  Employers should also consider whether training is needed for Human Resources staff and/or supervisory employees to ensure compliance with the regulations – this may be training in addition to AB 1825 training.  Finally, employers should ensure that internal complaint and investigation procedures are in place and compliant with the FEHA.

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News: Worthy

New Instructor-Led Training Course:  Mandated Reporter

California’s Child Abuse and Neglect Reporting Act (Penal Code Sections 11164-11174.3) requires all employees whose duties require direct contact and supervision of children to report known or reasonably suspected child abuse or neglect.  California law also requires that certain individuals report elder and dependent adult abuse and neglect.  In total, California law identifies more than 40 distinct employment positions with mandated reporter responsibilities dealing with children, the elderly, and dependent adults.  The majority of public agencies will have one or more classifications meeting the definition of a mandated reporter, including all police department employees and public safety officers, youth day camp workers, recreation center employees, senior center employees, and parks and recreation staff.

The California JPIA has developed a 4-hour Mandated Reporter instructor-led training to meet the requirements of the law.  The course provides participants with information and training related to the legal obligation of certain individuals to report the suspected abuse and neglect of children, elders, and dependent adults. The training is intended to inform participants about types of abuse, signs of abuse, reporting obligations and procedures, protections afforded to mandated reporters, and ramifications of failing to report. It will also highlight best practices for completing a report of suspected abuse and neglect utilizing lecture, discussion, group, and individual activities to deliver course content.

Participants who complete the course will learn to:

• Identify the capacity in which employees of their agency are or are not mandated reporters of child, elder, or dependent adult abuse and neglect.
• Recognize conduct that constitutes abuse or neglect, identify other concerning behaviors that are indicators of potential abuse or neglect, and recognize persons who can be potential abusers.
• Describe when their personal legal obligation to report child, elder, or dependent adult abuse or neglect is in effect.
• Discuss the procedure for reporting and demonstrate best practices for documenting reasonable suspicion.
• State the protections afforded to the mandated reporter and ramifications for failing to report.

Please visit the Course Calendar or Course Catalog at http://www.cjpia.org/risk-management/training for additional details on this training course or to register for future trainings.  For further information on training opportunities, please contact Michelle Aguayo, Training Coordinator.

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Risk Solutions

Summertime

By Alex Mellor, Risk Manager

With summer just around the corner, this is the perfect time to start planning for increased use of public facilities such as parks and playgrounds, and it is time to ensure that agency staff and volunteers are up to date with important training.

Parks & Playgrounds
Ensuring the safety of our children while they explore the parks and playgrounds in our communities is of paramount importance to every California JPIA member. This is a great time of the year to review your Park and Playground Inspection and Maintenance Program, ensure that periodic inspections are being conducted and documented, and take any needed corrective measures.

A written Park and Playground Inspection and Maintenance Program template is available through the California JPIA website. The template was significantly revised in 2015. If you do not yet have a written program, consider using the template as a starting point to develop your own. A written program is critical for directing inspection and maintenance activities, and can form the basis for a sound defense in the event of a liability claim.

First Aid/CPR
Larger crowds coupled with an increase in temperatures during summer months makes it more likely that agency staff will have to respond to an ill or injured member of the public or fellow employee. The odds of a favorable outcome can be improved by ensuring that key staff are formally trained in First Aid, CPR and AED use. The California JPIA offers American Heart Association (AHA) First Aid, CPR and AED training to members at no additional cost. The AHA requires re-training every two years, so if it has been a while since your employees received this training, it would be a good idea to review your records and determine if certifications have expired.

Volunteers
Many agencies increase their reliance on volunteers during the summer. Volunteers are an excellent resource for public agencies, but do present certain exposures which can result in significant losses if not managed correctly. Consider taking the following steps regarding your agency’s management of volunteers:

• Adopt a resolution extending workers’ compensation coverage to volunteers. Doing so makes workers’ compensation the exclusive remedy for volunteers in the event they are injured “on the job.” Dealing with the workers’ compensation system is considerably more cost effective and predictable than a civil lawsuit.
• Develop and implement a volunteer manual. Such a manual communicates the expectations and requirements of your agency to new volunteers, and ensures all volunteers receive the same important information. A volunteer manual template is available through the California JPIA website.
• Provide volunteers with appropriate training. Untrained or poorly trained volunteers pose the same risks as untrained or poorly trained employees. Mitigate this risk by ensuring volunteers receive training appropriate to the work they will be performing on behalf of your agency. Volunteers are always welcome to attend California JPIA trainings along with your employees.

Special Events Program
Summertime brings with it an increase in the number of special events in which public agencies are involved. Event organizers or members of the public wishing to use agency-owned facilities may have difficulty obtaining minimum liability insurance limits recommended by the California JPIA (typically $1 million per occurrence). This is where our Special Events Program can help. The program provides liability insurance when member-owned premises are used for special events or short-term activities. Examples include weddings, art festivals, parades, yoga classes, and member-sponsored events such as fairs, carnivals, and swap meets. There is no deductible for this coverage, and members are automatically added as additional insured.

For more information, visit the Special Events page of the California JPIA’s web site: http://www.cjpia.org/protection/coverage-programs/special-event-program.

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Legislative Update

The 2016 Legislative session is well underway and members of the California JPIA team participated in the annual California Association of Joint Powers Authorities (CAJPA) Legislative Action Day on Wednesday, April 6.  Norm Lefmann, Assistant Executive Officer; Alex Smith, Finance Director; Jeff Rush, Workers’ Compensation Program Manager; and Carl Sandstrom, Business Projects Manager, were part of a group that visited the offices of various legislators in Sacramento to promote CAJPA’s positions on the following pending legislation:

Public safety officers and firefighters: investigations and interviews (AB 651)
This bill would expand the Firefighters Procedural Bill of Rights and Public Safety Officers Procedural Bill of Rights Acts by allowing a firefighter or peace officer who is not formally under investigation but is interviewed as a witness in an investigation of another firefighter or peach officer to have representation.  CAJPA has opposed this bill as it would delay an agency’s investigation and could ultimately discourage officers from cooperating in such investigations.

Emergency medical care: epinephrine auto-injectors. (AB 1386)
This bill would allow local government agencies to procure and store Epi-Pens, and authorizes physicians and pharmacies to furnish Epi-Pens to agencies.  It maintains the qualified civil immunity from damages resulting from administration of an Epi-Pen.  CAJPA supports this bill as it would maintain immunities for public agencies while ensuring the availability of Epi-Pens.

Workers’ compensation: permanent disability apportionment. (AB 1643)
This bill would prohibit apportionment of permanent disability, in cases of physical injury, from being based on pregnancy, menopause, osteoporosis or carpal tunnel syndrome.  Additionally, it would prohibit apportionment of permanent disability, in cases of psychiatric disability, from being based on psychiatric disability or impairment caused by the above conditions.  CAJPA opposes this bill as it would lead to employers paying for permanent disability that results from non-industrial factors and could also result in increased litigation costs.

Workers’ compensation. SB 897
This bill would allow certain employees of local public agencies, including police officers and firefighters, an additional year of leave of absence without loss of salary (per Labor Code 4850) when injured by a catastrophic injury at the hands of another.  CAJPA opposes this bill which would burden public agencies with up to two years of full salary and cause additional litigation.

The Authority will continue to monitor these bills and others identified by CAJPA as the legislative session continues.  If you have any questions, please contact Jeff Rush, Workers’ Compensation Program Manager.

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Coverage Matters

Property Damage Recovery Program

by Jim Thyden, Insured Programs Manager

The Property Damage Recovery Program assists members in recovering damage to property when there is no insurance coverage or the damage is below the deductible. All members have access to this program whether or not they participate in the Authority’s property insurance program.

Members can choose between two third-party administrators (TPA) with whom the Authority has negotiated fees and rates. The TPAs are VeriClaim which adjusts claims for the property program, and Carl Warren & Company which adjusts claims for the liability program. Both have staff who are expert in seeking the maximum recovery from the responsible party.

Members should request recovery assistance as soon as they know there may be a recovery possibility. Early intervention by the TPA will allow them to document damage and establish liability, which will increase the chances of recovery. Once the member has contacted the TPA, they will set up a file and contact the member to obtain all the pertinent information, contact witnesses, and visit the scene, if necessary. They will then contact the responsible party to make an appropriate settlement demand and continue negotiations until it is resolved or an impasse is reached. The TPA will then contact the member to determine whether the best option is to settle, file suit by the TPA, or refer the case to an attorney.

If you need these services you can contact the TPA directly or contact the Authority to determine which TPA is best suited to seek recovery.

More information is available on the Authority’s website at http://www.cjpia.org/protection/coverage-programs/property-damage-recovery-program or by contacting Jim Thyden, Insurance Programs Manager.

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