Legal Updates: Apr 19th, 2004

Update on Overtime Rules: The U.S. Senate recently agreed to vote on a bill to block any new DOL regulations that would limit overtime pay to workers who currently receive it. Congress returns to session April 19.

Legal Updates: Dec 30th, 2003

Supreme Court To Clarify Harassment Law: The United States Supreme Court has agreed to hear a case that could clarify an important aspect of sexual and other harassment law. Currently, the law provides a defense to employers when an employee has not complained of harassment and has not suffered a tangible job action (e.g., has not been fired). Unclear, however, is whether constructive discharge (i.e., when an employee quits because he or she cannot endure harassment) is a tangible job action that denies the employer the right to claim the defense. If it does, it will be easier for employees to sue, and more difficult for employers to defend, workplace harassment lawsuits. The Court likely will issue its decision in the Spring of 2004.

California Supreme Court Clarifies State Harassment Law: Meanwhile, the California Supreme Court has been busy too. That Court, interpreting state law, ruled for the first time that employers are not automatically liable for acts of sexual harassment against workers. The Court essentially applied the federal defense (discussed above) to its state law. Thus, the Court ruled that employees have an obligation to report misconduct when it is reasonable to do so and that failure to do so might immunize the employer from liability. The ruling reverses one by the California Court of Appeals that had said the federal law defense did not apply under California state law.

POBR: Police Officer's Bill of Rights Sept 22nd, 2003

Overtime Exemption Changes At Risk: The United States Senate recently dealt a serious blow to the possibility of reform to the overtime exemption regulations of the Fair Labor Standards Act (FLSA). In March of 2003, the Department of Labor (DOL) proposed the first serious revisions to the white-collar exemptions in half a century. The proposed regulations would raise the income threshold for exemptions and simplify many of the job duty tests that apply to them. Since the time these new regulations were first proposed, unions and businesses have hotly debated whether they would increase or decrease the number of workers eligible for overtime. Spurred by an effective campaign led by the unions, legislators in Congress introduced bills to deny funding for the proposed regulations. The effort failed by just a few votes in the House of Representatives. But it succeeded, by just a few votes, in the Senate. Senators and Representatives must now meet and try to agree on compromise legislation, which may or may not include the ban on funding for the new regulations. President Bush has threatened to veto any bill that denies funding to the new regulations. DOL was supposed to release the final rules by December of 2003, but the fate of these proposals is now far from certain. Stay tuned for developments

Mandatory Counseling Is Working Time: Speaking of FLSA, a federal court in Illinois has ruled that mandatory psychological counseling is working time under that law. The case involved a police dispatcher whose employer required her to attend counseling. She sued, alleging the employer should pay her for the time involved. The court agreed that the time was compensable because it was time spent in physical or mental exertion controlled or required by the employer and pursued primarily for the benefit of the employer.

Cell Phone Case Goes To Trial: Is an employer liable for injuries caused by an employee who gets into a car accident while driving and talking on a cell phone? A jury in Virginia will be considering this question this week. The case involves a lawyer who struck a teenager while driving. The teenager's family alleges the lawyer was working at the time and thus also sued the law firm that employed her. Courts in other states have found employers liable in similar circumstances. Regardless of the outcome of this particular trial, prudent employers will develop policies to regulate employee use of cell phones while driving and working.

Discrimination Law Updates: Recently there have been some interesting developments in employment discrimination law.

** A federal appeals court has ruled that even an at-will employee can sue for race discrimination under a federal law that prohibits racial bias in the making or enforcement of contracts. The court ruled that at-will employment is still a contractual relationship and any discrimination related to the same could be remedied under this federal law. Unlike the employment discrimination law, the contracts discrimination law has no damages cap, applies to all employees regardless of size, and may have a longer statute of limitations.

** Another federal appeals court has ruled that states can be sued for retaliation under the federal employment anti-discrimination law. Other courts have held that states are immune from certain employment discrimination lawsuits.

** National SHRM has criticized proposed changes to the EEO-1 form, which must be filed annually by each employer with 100 or more employees and by certain federal contractors.

POBR: Police Officer's Bill of Rights Sept 22nd, 2003
By Bradley C. Gage & Christopher Brizzolara

INTRODUCTION:

Peace Officers in the State of California have a number of protections set out in the Government Code at Section 3300 et seq. Collectively, these are known as the Peace Officers Bill of Rights (POBR).

Until January 1, 2003, it was unclear whether or not a law enforcement department could be sued for actual damages, or civil penalties in connection with a violation of your rights.

The Legislature clarified the law by amending California Government Code, Section 3309.5 allowing law enforcement officers to collect actual damages, including emotional distress damages, attorneys fees and civil penalties up to $25,000 per violation.

This article focuses on what is the first known case to receive damages under this new section, and to provide you with information about this important new statute to protect you.

THE GLENDALE POLICE DEPARTMENT:

Bradley Gage of Goldberg & Gage was approached by female police officers who felt they were victims of harassment and other wrongs by their employer, the Glendale Police Department. The case was vigorously litigated beginning in December, 2001 when the complaint was filed until the jury reached a verdict for the three women in the sum of approximately $3.5 million.

One of the claims in trial for one of the officers was that when she was interviewed by the department as a witness (rather than as an accused) she was entitled to representation, either via a lawyer or an employee rep, or both. The City disagreed, compelling Officer Kerner to submit to interrogation without her counsel present. The events were tape recorded. The tape was played to a jury in our trial, and they obviously did not like the treatment my client received.

I immediately contacted the State Bar of California to complain that the City was using an attorney to conduct the investigation which is also a violation of Rules of Professional Responsibility as well as the Peace Officer's Bill of Rights. Simultaneously with my discussion with the State Bar, my client was threatened with termination if she did not answer questions, despite being denied a representative and she broke down in tears.

The State Bar Ordered the attorney to stop questioning my client after about 16 pages of questions. The Jury awarded $170,000 in damages to Officer Kerner for this event.

THE LAW:

Damages are authorized under Government Code Section 3309.5 and finally help Law Enforcement Officers to be on an equal playing field with their department.

The author of the amendment to Government Code Section 3309.5, Senator Romero, stated that the amendment to the statute was required since:

"When a supervisor of a peace officer intentionally violates POBR with the intent to injure an officer, there is very little in the way of remedy available to the officer. Under current law, the officer is limited to petitioning the court for injunctive relief to prevent current and future POBR violations of these types. However, there are no sanctions in place against the department or agency and the worst thing that can happen to the employer is for a court to tell the employer, "Don't do that." This bill would provide peace officers with the ability to protect their rights under POBR in a manner similar to the civil rights laws which allow private counsel for the plaintiff to act as attorneys general in enforcing and protecting these rights." (See SB1516 Senate Bill Analysis)

The Peace Officers Research Association of California indicated the following in supporting the amendment:

"Often times, an investigation is launched or charges are filed against an officer simply for personal reasons by management. Although that officer has appellate rights to fight the charges and is often reinstated to his or her original position, damage has been done to that officer and his or her family while working through this process. Many times, the courts have found absolutely no basis for the charges or the discipline imposed on the employee, yet there is no recourse against the agency or individuals representing

the agency for these false accusations, charges and discipline. (See SB1516 Senate Bill)

Therefore, the amendment to Government Code Section 3309.5 was and is specifically intended to provide adequate remedies for violations of the POBR, and was and is specifically remedial in nature.

GOVERNMENT CODE SECTION 3309.5 PROVIDES FOR ACTUAL DAMAGES WHEN THERE IS A VIOLATION OF YOUR RIGHTS.

Government Code Section § 3309.5(d) provides as follows:

(d) In addition to the extraordinary relief afforded by this chapter, upon a finding by a superior court that a public safety department, its employees, agents, or assigns, with respect to acts taken within the scope of employment, maliciously violated any provision of this chapter with the intent to injure the public safety officer, the public safety department shall, for each and every violation, be liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000) to be awarded to the public safety officer whose right or protection was denied and for reasonable attorney's fees as may be determined by the court. If the court so finds, and there is sufficient evidence to establish actual damages suffered by the officer whose right or protection was denied, the public safety department shall also be liable for the amount of the actual damages. ...".

Therefore, in regard to the damage provisions of Government Code Section 3309.5, the court serves as the initial "gatekeeper" in determining whether or not the law enforcement agency "maliciously violated any provision" of the POBR with the intent to "injure" the police officer. The statute does not state that the amount of actual damages is to be decided by the court. We were able to have the jury decide the issue and award damages for the protection of peace officers.

CONCLUSION:

Departments now are compelled to follow the law, and preserve your rights, or they may face penalties for those violations.

POBR: Police Officer's Bill of Rights

Recent amendments to California Government Code Section 3309.5 now allow for monetary damages up to $25,000 for violations of the POBR.

Please note the following operative language of 3309.5(d):

(d) In addition to the extraordinary relief afforded by this chapter, upon a finding by a superior court that a public safety department, its employees, agents, or assigns, with respect to acts taken within the scope of employment, maliciously violated any provision of this chapter with the intent to injure the public safety officer, the public safety department shall, for each and every violation, be liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000) to be awarded to the public safety officer whose right or protection was denied and for reasonable attorney's fees as may be determined by the court. If the court so finds, and there is sufficient evidence to establish actual damages suffered by the officer whose right or protection was denied, the public safety department shall also be liable for the amount of the actual damages.

U.S. Court of Appeals for Ninth Circuit

MIRANDA

Clark v. Murphy (CV-97-00560-ROS). Decision filed by the U.S. Court of Appeals for the Ninth Circuit on January 23, 2003.

The issue before the Court was whether a defendant had invoked his right to counsel by stating, " I think I would like to talk to a lawyer." The Court held that this was not an unambiguous and unequivocal request for counsel.

If a suspect indicates that they understand their rights, afforded them pursuant to the Supreme Court's ruling in Miranda v. Arizona, 384 U.S. 436 (1966), then they must "unambiguously request counsel."

Martinez v. City of Oxnard, 270 F.3d 852 (9th Cir.2001). This case is on appeal to the U.S. Supreme Court. Oral argument was heard in December of 2002.

A three-judge panel of the U.S. Circuit Court of Appeals for the Ninth Circuit held that an Oxnard P.D. Sergeant violated a defendant's constitutional rights when he questioned a suspect without advising him of his "Miranda" rights.

In this case, the suspect had been shot five times by the officers. Sergeant Chavez rode with the suspect to the hospital hoping to obtain a statement from him. As the suspect was being treated by emergency room physicians, Chavez continued to ask questions of the suspect. Testimony showed that the suspect mentioned at least eight times that he thought he was dying. He faded in and out of consciousness. At one point, a recording evidences a statement made by Chavez as follows: If you are going to die, tell me what happened. The suspect eventually confessed.

The court held that the confession could not be used by the City in connection with the suspect's civil rights lawsuit against the City. The Court held that Chavez should have known that questioning a person who had been shot five times, was receiving emergency medical attention and had been given no Miranda warning was a violation of his constitutional rights.

If a suspect is suffering from injuries and in need of emergency medical treatment, it is acceptable to ask them questions, but ONLY after, they have received their "Miranda" warning. You should use caution as there may be times when the person is incapacitated or otherwise unable to provide reliable statements due to their physical or emotional condition.

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