California
As we approach the initial
deadline to introduce bills for the 2012 legislative session, there
are several employment-related bills pending, including the following:
Expansion Proposed of Tax
Credits for Hiring Full-Time Employees (AB 1596)
Currently, California's Personal
Income Tax Law and Corporation Tax Law authorize "qualified employers"
(i.e., a taxpayer employing 20 or fewer employees) to obtain a credit
in the amount of $3,000 for each full-time employee hired. This
bill would expand the definition of "qualified employer" to mean
a taxpayer that employs 50 or fewer employees as of the last day of
the preceding taxable year. This bill has been referred to the
Committee on Revenue and Taxes.
Public Employees' Bill
of Rights Act Proposed (AB 1655)
California presently maintains
a Bill of Rights for State Excluded Employees that prescribes various
rights, terms and conditions of employment for "excluded employees,"
defined as certain supervisory, managerial, and confidential state employees.
This bill would enact the Public Employees' Bill of Rights to apply
to state employees other than excluded employees. Amongst other
things, this bill would provide that state employees shall be entitled
to priority over excluded employees or contractors in filling permanent,
overtime and on-call positions. It would also change from three
years to one year the period of time to serve any notice of adverse
action and to complete any investigation against any state employee
for any cause for discipline based on any civil service law.
Expansion of Meyers-Milias-Brown
Act Protections Proposed (AB 1808)
The Meyers-Milias-Brown Act
establishes procedures governing the resolution of disputes regarding
wages, hours, and other terms and conditions of employment between public
employees and pubic employee organizations. Under this act, "public
employees" (as defined) have the right to form, join, and participate
in the activities of employee organizations of their own choosing for
purposes of representation on all matters of employer-employee relations.
This bill would expand the definition of "public employee" to include
any person employed by an employer that is not a public agency, but
with which a public agency shares or co-determines decisions governing
essential employment conditions of that person. This bill would
also state that it is declaratory of existing law.
Public Utility Whistleblower
Protection Program Proposed (AB 1843)
Under California law, the Public
Utilities Commission has regulatory authority over public utilities
and the ability to establish rules for all public utilities. This
bill would require the Commission to establish a comprehensive whistleblower
protection program to protect public utility employees, former employees,
and third-party contractors and subcontractors from retaliation for
bringing information to the Commission or other public entities (as
specified) regarding safety and other enumerated issues.
Safe-Harbor Proposed to
Dissuade Employers from Checking Applicant's Social Media (AB 1844)
Under common law, employers
have a duty to exercise reasonable care in employing a person and are
required to use reasonable care to discover whether a potential employee
is unfit or incompetent. This bill would provide a safe-harbor
defense in negligent hiring claims and specify that an employer will
not be deemed negligent if it fails to discover whether a potential
employee is unfit or incompetent by the employer's failure to search
or monitor social media (as defined) before hiring the employee.
The proposed new Labor Code section 982 would also prohibit employees
or prospective employees to disclose a user name or account password
to access social media used by the employee or prospective employee.
"Familial Status" Protection
Proposed for FEHA (AB 1999)
This bill would amend the Fair
Employment and Housing Act (FEHA) and include "familial status"
as an additional basis upon which the right to seek, obtain and hold
employment cannot be denied. "Familial status" would be defined
as an individual who is, who will be or who is perceived to be a family
caregiver, with "family" meaning a child, a parent, a spouse, a
domestic partner, a parent-in-law, a sibling, a grandparent or a grandchild.
Meal Period Exemption Proposed
for Commercial Drivers (AB 2176)
Labor Code section 512 requires
employers to provide a meal period or periods to employees who work
a specified number of hours in a shift. This bill would amend
section 512 and provide an exemption from the meal period requirements
for commercial drivers operating a vehicle that is required to display
placards pursuant to specified provisions of the Vehicle Code.
Mandated Pension-Related
Reporting for Retired Corporate Executive Officers Proposed (SB 1208)
Presently, domestic and publicly-traded
corporations must annually file a report disclosing the compensation,
as specified, of each board of director member and its five most highly
compensated executive officers who are not members of the board, and
its chief executive officer. This bill would state the Legislature's
intent to enact legislation requiring these corporations to also report
all forms of compensation, including pensions and benefits from other
types of employee benefit plans, to the five most highly compensated
retired executive officers of the corporation.
Federal
Payroll Tax Reduction and
Unemployment Insurance Benefits Extension Signed into Law (HR 3630)
As expected, Congress has passed
and the President has signed into law the Middle Class Tax Relief and
Job Creation Act of 2012 which extends the payroll tax reduction and
unemployment insurance benefits until December 31, 2012. Specifically,
this bill extends the two percentage point reduction (from 6.2% to 4.2%)
on the payroll taxes paid by employees. This bill also extends
the current level of unemployment insurance benefits through 2012, but
reduces the maximum number of weeks of benefits individuals can receive
depending on the employment levels in their states. Individuals
residing in states with unemployment over nine percent would be eligible
to receive up to 73 weeks (down from 99 weeks) and individuals residing
in states with less than nine percent unemployment would be eligible
for up to 63 weeks.
AGENCY
California
State of California and
United States DOL Sign Agreement to Reduce Misclassification of Employees
as Independent Contractors
As discussed in prior newsletters,
the willful misclassification of employees as independent contractors
remains a top enforcement priority at the federal and state level.
Effective January 1, 2012, the state of California has a new law (SB
459) prohibiting the "willful misclassification" of employees as
independent contractors and providing significant new penalties for
such misclassification, including statutory penalties up to $25,000
per violation and additional posting requirements. On the federal
level, the United States Department of Labor (DOL) has unveiled its
Misclassification Initiative, which includes partnering with states
to prevent, detect, and remedy employee misclassification. More
information about the federal initiative is available at www.dol.gov/misclassification.
Consistent with this enforcement
emphasis, the DOL and the State of California recently entered into
a memorandum of understanding regarding the improper misclassification
of employees as independent contractors. (The DOL had previously
entered into similar agreements with eleven other states.) This
memorandum signals that the federal DOL and California will coordinate
efforts and target the misclassification of employees. The DOL's
press release concerning this new partnership is available at www.dol.gov/opa/media/press/whd/WHD20120257.htm.
Federal
NLRB Issues Second Report
Providing Guidance Concerning Workplace Social Media Policies
The National Labor Relations
Board (NLRB) Acting General Counsel has recently issued a second Operations
Management Memo recounting fourteen workplace social medial cases reviewed
by the NLRB. (The first report was issued in August 2011).
Half of these cases analyzed the propriety of the particular employer's
social media policies, and five were found unlawfully overbroad.
The remaining cases involved employees discharged for posting comments
to Facebook, and several terminations were found unlawful because they
resulted from unlawful policies. The full Operations Management
Memo is available at www.nlrb.gov/news/acting-general-counsel-issues-second-social-media-report.
The NLRB's Office of Public
Affairs also issued a summary memorandum (www.nlrb.gov/print/3418) regarding
this report, and underscored two main points:
- Employer policies
should not be so sweeping that they prohibit the kinds of activity protected
by federal labor law, such as the discussion of wages or working conditions
among employees;
- An employee's
comments on social medial are generally not protected if they are mere
gripes not made in relation to group activity among employees.
The NLRB's Counsel noted
the "new and evolving nature of social media cases" and has asked
all regional NLRB offices to send potentially meritorious cases to the
agency's Washington D.C. office to help develop a consistent enforcement
approach.
EEOC Extends Title VII Recordkeeping
Requirements to GINA
The Equal Employment Opportunity
Commission (EEOC) recently issued a Final Rule extending its existing
recordkeeping requirements under Title VII of the Civil Rights Act of
1964 (Title VII) and the Americans with Disabilities Act (ADA) to entities
covered by title II of the Genetic Information Nondiscrimination Act
of 2008 (GINA). Title II of GINA applies to employers with fifteen
or more employees and prohibits discrimination based on genetic information
(as defined by GINA). This Final Rule adopts the previously
proposed regulations without change and takes effect April 3, 2012,
and is available at 77 Fed. Reg. 5396 and www.gpo.gov/fdsys/pkg/FR-2012-02-03/pdf/2012-2420.pdf.
The Final Rule does not require
the creation of any new documents or impose any additional reporting
requirements; rather, it merely imposes the same record retention requirements
under GINA that currently apply under Title VII and the ADA through
29 CFR 1602. Simply summarized, private employers must retain
personnel and employment records for one year from the date of making
the record or the personnel action involved, whichever is later.
However, in the case of involuntary terminations, employers must retain
the terminated employee's personnel or employment records for one
year from the date of termination. Further, when a discrimination
charge is filed with the EEOC or a civil action is brought by the EEOC
or the Attorney General regarding Title VII, the ADA or GINA, the employer
must retain any relevant records until the final disposition of that
matter, which may be longer than one year. (The EEOC's Final
Rule estimates there will be approximately 200 new GINA charges filed
in 2012, compared to 245 in calendar year 2011 and 201 in calendar year
2010). A summary of these recordkeeping requirements is available
at www.eeoc.gov/employers/recordkeeping_obligations.cfm.
EEOC Clarifies Prior Opinion
Letter Concerning Interaction of ADA and High School Diploma Requirements
In November 2011, the EEOC
issued an informal discussion letter concerning how the Americans with
Disabilities Act (ADA) applies to job qualification standards, including
whether the requirement of a high school diploma violates the ADA.
This letter is available at www.eeoc.gov/eeoc/foia/letters/2011/ada_qualification_standards.html.
In response to considerable commentary, the EEOC has recently issued
a memorandum in question and answer format to clarify this interplay
between the ADA and high school diploma requirements. This memorandum
specified that employers are not prohibited from adopting a requirement
that a job applicant have a high school diploma, but they may have to
allow someone who says a disability prevented them from obtaining a
high school diploma to demonstrate qualifications for the job in some
other way. Even then, however, the employer is not required to
hire that individual, or to prefer that person over someone else, but
may hire the best qualified person for the position. This clarification
memo is available at www.eeoc.gov/eeoc/newsroom/wysk_high_school_ada.cfm.
EEOC Issues Revised Publications
on Employment of Veterans with Disabilities
The EEOC has also issued two
revised publications addressing veterans with disabilities and the ADA,
particularly the changes resulting from the ADA Amendments Act of 2008
which made it easier for veterans with a wide range of impairments to
obtain reasonable accommodation. The "Guide for Employers"
explains how protections for veterans with service connected disabilities
differ under the ADA and the Uniformed Services Employment and Reemployment
Rights Act (USERRA), and how employers can prevent disability-based
discrimination and provide reasonable accommodations. It is available
at http://www.eeoc.gov/eeoc/publications/ada_veterans_employers.cfm.
The "Guide for Wounded Warriors"
answers questions that veterans with service-related disabilities may
have about the protections they are entitled to when they seek to return
to their former jobs or look for civilian jobs. This Guide also
explains the kinds of accommodations that may be necessary to help veterans
with disabilities obtain and successfully maintain employment.
It is available at www.eeoc.gov/eeoc/publications/ada_veterans.cfm.
JUDICIAL
California
Appellate Court Decertifies
Wage and Hour Class Action Citing Flawed Trial Plan to Manage Large
Class
The court of appeal reversed
a $15 million verdict in a misclassification class action and decertified
a class of 260 bank employees because the trial court's plan to rely
only on evidence regarding twenty randomly-selected class members to
prove liability was "fatally flawed" and a violation of the defendant's
due process rights. After the class was certified, the trial court,
on its own initiative, proposed randomly selecting a sample of 20 plaintiffs
to testify at trial. (The defendant had proposed individualized hearings
before a special master, while the plaintiffs had proposed conducting
a class-wide survey followed by the selection of a random sample of
plaintiffs who would be the subjects of trial, a plan outlined by their
statistical expert.) The court selected the twenty "representative"
plaintiffs and five alternates by pulling names out of a hat, and four
of the selected plaintiffs subsequently opted out of the class.
They were replaced, over defendant's objection, with four alternates.
The trial court then granted a motion in limine prohibiting the introduction
of any evidence regarding any class members who were not included in
the random sample. The court prohibited the four plaintiffs who
had opted out from testifying regarding their own experience at the
bank, but allowed the two named plaintiffs (who were not members of
the random sample) to testify. Although defendant had deposition
testimony and declarations from absent class members suggesting that
at least one-third of the class was properly classified, the court prohibited
defendant from introducing the evidence. In a bifurcated bench
trial, the court concluded that all members of the class had been misclassified
and had worked overtime. The court entered judgment for $15 million.
Throughout the process, the defendant repeatedly and consistently objected
that the trial plan violated its due process rights.
The court of appeal reversed
the judgment, concluding that the defendant's due process rights were
violated when it was prevented from introducing relevant evidence in
support of an affirmative defense that had a reasonable probability
of limiting its liability. The court quoted the U.S. Supreme Court's
recent rejection of "Trial by Formula" in Wal-Mart Stores, Inc.
v. Dukes (2011) 564 U.S. ___, 180 L.Ed.2d 374, noting that "[w]hile
Wal-Mart is not dispositive of our case, we agree with the reasoning
that underlies the court's view that representative sampling may not
be used to prevent employers from asserting individualized affirmative
defenses in cases where they are entitled to do so." (Duran,
2012 Cal. App. LEXIS 107, at *102, n.65.) The court did
not explicitly reject the use of statistical sampling to prove liability
in any class action, but pointed out there was no authority in support
of such a plan, and expressed doubt that such a plan could pass muster.
In so doing, the court distinguished its decision in Bell v. Farmers
Insurance Exchange (2004) 115 Cal.App.4th 715, in part because that
decision had addressed the use of statistics to prove damages only,
not to establish liability.
The court also expressed concern
with the fact that the trial plan was put in place without any expert
recommendation and without complying with basic statistical principles.
For example, there was no evidence that 20 out of 260 class members
was a representative sampling; and the fact that four of the initial
20 plaintiffs opted out meant that the sample was no longer random.
The court did not state that a sample based on expert recommendation
and statistical principles would be a valid basis for determining class-wide
liability, but held that the trial court's plan (lacking these elements)
was "fatally flawed." The court also concluded that the trial
court erred in failing to decertify the class on defendant's motion
after the liability phase of the trial was completed because that decision
was based on the erroneous legal assumption that the trial court's
use of statistical sampling was valid. (Duran v. U.S. Bank National
Association (2012) ___ Cal.App.4th ___, 2012 Cal.
App. LEXIS 107.)
Prevailing Defendant Entitled
to Recover Expert Fees after Plaintiff's Refusal to Accept 998 Offer
California Code of Civil Procedure
Section 998 sets forth certain conditions under which a defendant may
recover expert fees after a plaintiff has rejected an offer to compromise.
"[T]he court . . ., in its discretion, may require the plaintiff to
pay a reasonable sum to cover the costs of the services of expert witnesses,
who are not regular employees of any party, actually incurred and reasonably
necessary in either, or both, preparation for trial . . . or during
trial . . . of the case by the defendant." In this case,
the defendant employer sought to recover the cost of deposing plaintiff's
expert witness. After deposing the expert, defendant successfully
filed a motion in limine, excluding the expert from testifying at trial.
Plaintiff argued the expert fee was not "reasonably necessary,"
since the expert never testified at trial thanks to the in limine motion.
The court held the deposition was "reasonably necessary," because
without it, defendant would not have been successful in moving to exclude
his testimony.
Plaintiff also argued section
998 only permits reimbursement for fees paid to defendant's own expert.
The court disagreed, holding that based on the plain language of the
statute, which allows for recovery of costs incurred for "the services
of expert witnesses," and the statute's broad policy of encouraging
settlements, the legislature did not intend to reimburse only fees paid
to defendant's own expert. (Chaaban v. Wet Seal, Inc.
(2012) 203 Cal. App. 4th 49.)
Appellate Court Addresses
Interplay between PAGA and IWC Wage Order
A local union sued on behalf
of its member bus drivers alleging their employer violated provisions
of the Labor Code requiring employers to provide meal and rest periods
for their employees. The court of appeal addressed several issues
involving the interplay between the Private Attorneys General Act of
2004 ("PAGA") and IWC Wage Order No. 9.
The court of appeal first addressed
whether plaintiffs could recover PAGA penalties under both Wage Order
9 and Labor Code section 558 for failing to provide meal and rest periods
or compensation in lieu of meal and rest periods. Wage order 9
provides certain civil penalties for employers who violate the provisions
of the wage order, and Labor Code section 558 provides civil penalties
for any violation "of a section of this chapter or any provision regulating
hours and days of work in any order of the [IWC]." The court
held plaintiffs could not recover PAGA penalties under both Wage Order
9 and Labor Code section 558, because PAGA only permits recovery of
civil penalties for violations of the California Labor Code (which Wage
Order 9 is not), and allowing plaintiffs to recover PAGA penalties under
both the wage order and section 558 would be an impermissible double
recovery for the same act. The court reasoned that while PAGA
can serve to indirectly enforce certain wage orders by enforcing
statutes that require compliance with wage orders (e.g., Labor Code
§ 1198, which prohibits longer work hours than those fixed by wage
order or employment under conditions prohibited by a wage order), but
PAGA does not create any private right of action to directly
enforce a wage order.
The court next addressed the
circumstances under which PAGA penalties may be reduced. PAGA
provides that in any action by an aggrieved employee seeking recovery
of a civil penalty, the court may award a lesser amount than the maximum
penalty where, "based on the facts and circumstances of the particular
case, to do otherwise would result in an award that is unjust, arbitrary,
oppressive, or confiscatory." The court of appeal upheld the
trial court's ruling, which ordered a thirty percent reduction to
the maximum civil penalty. The court noted that in this case,
the union never filed a grievance with the company regarding meal periods,
and it actually objected to the implementation of mandatory meal and
rest periods beginning in July 2003. In addition, the evidence
showed the defendant was unable to pay the penalties from ongoing revenues
because it had lost a major contract. Based on the facts and circumstances
of this case, the court found that a thirty percent reduction was not
an abuse of the trial court's discretion.
The court also addressed whether
unpaid wages under Labor Code section 558 amounts to a civil penalty
and are thus recoverable under PAGA. Section 558 provides a civil
penalty of $50 or $100 "for each underpaid employee for each pay period
for which the employee was underpaid in addition to an amount sufficient
to recover underpaid wages. . ." (emphasis added.) Defendants
argued that section 558 distinguished between civil penalties and restitution
for unpaid wages, and that unpaid wages are an independent remedy in
addition to the civil penalty. The court disagreed, holding that
section 558 provides a civil penalty of both the statutory amount ($50
or $100), and any underpaid wages, with the underpaid wages going entirely
to the affected employees, and the $50 or $100 being distributed between
the State (75%) and the aggrieved employees (25%). The court based
its reasoning on the plain language of the statute, along with dictum
from a prior supreme court opinion.
Finally, the court addressed
whether Labor Code Section 558 permits recovery of civil penalties for
missed rest periods. As stated above, the language of section
558 permits civil penalties for violations of "a section of this chapter
or any provision regulating hours and days of work in any order of the
IWC." Defendants argued no section in Chapter 1 of the Labor
Code, consisting of sections 500-558, contain a requirement to provide
rest periods. In addition, they argued Wage Order 9's rest period
requirement was not an order "regulating hours and days of work,"
as "hours and days of work" refers only to overtime and alternative
workweek schedules. The court disagreed, stating the legislature
in section 516 authorized the IWC to "adopt or amend working condition
orders with respect to break periods." This provision strongly
indicates the legislature intended that violations of such orders be
subject to a civil penalty provided by section 558. Moreover,
the court said the language of section 558 is broad, applying to "any
provision regulating hours and days of work in any order."
Since rest periods implicate hours of work in the ordinary sense, it
falls within the gambit of section 558. (Thurman v. Bayshore
Transit Mgmt (2012) ___ Cal.App.4th ___, 2012 Cal. App. LEXIS 223.)
Appellate Court Invalidates
Arbitration Agreement Requiring California Employee to Arbitrate in
New York and Waive Otherwise Available Remedies
As discussed in prior newsletters,
both federal and California law express a presumption in favor of arbitration,
and federal and California courts have upheld the enforceability of
arbitration agreements in the employment context provided they are not
"unfair" or "unconscionable." The practical reality, however,
is plaintiff's counsel and seemingly some judges are hostile to such
agreements and courts are increasingly willing to invalidate agreements
that contain provisions contrary to the law and/or that provide unique
advantages to the employer who drafted the agreement.
In this FEHA sexual discrimination
and wage and hour case, the appellate court refused to enforce an arbitration
agreement finding it procedurally and substantively unconscionable.
The court first rejected the employer's argument that the arbitrator,
rather than the court, should determine the agreement's enforceability.
The court noted the general rule is that a trial court determines whether
an agreement is enforceable, and that while the parties may agree to
have an arbitrator make such a determination, this intent must be shown
by "clear and unmistakable" evidence. In this case, the agreement
was silent regarding having the arbitrator, rather than the court, determine
enforceability so the general rule applied.
The court also found the agreement
procedurally unconscionable because it was presented without an opportunity
to negotiate its provisions, it failed to inform the employee about
the heightened costs of arbitrating in New York (rather than California)
before a three-judge panel, and it referenced but did not attach the
AAA and NASD rules, such that the employee did not understand the rules
that would apply. The court found the agreement substantively
unconscionable because it required New York law to apply, it required
the employee to waive substantive remedies available under California
law, and it precluded the employee from recovering attorneys' fees
while obligating her to pay the employer's attorneys' fees if it
prevailed. Given the number of substantively objectionable terms,
the appellate court declined to sever these provisions and instead refused
to enforce the entire agreement. (Ajamian v. Cantorco2e, L.P.
(2012) ___ Cal.App. ___, 2012 Cal. App. LEXIS 148.)
(NOTE: this decision does not
change the general rule regarding the enforceability of arbitration
agreements, but simply underscores the importance of careful drafting
for such agreements).
Appellate Court Refuses
to Enforce Arbitration Agreement Referencing but Not Attaching AAA Rules,
and Authorizing Prevailing Employer to Recover Attorneys' Fees
The Federal Arbitration Act
and the California Arbitration Act specifically provide that a trial
court may decline to enforce an arbitration agreement on the same grounds
equally applicable to other contracts, including on the ground that
it is "unconscionable." For unconscionability purposes, the
agreement must be both "procedurally" unconscionable (i.e., it involves
oppression and surprise) and "substantively" unconscionable (i.e.,
it contains one-sided provisions and/or unfairly allocates risks in
an objectively unreasonable manner). These elements need not be
present in equal degree; instead, a "sliding scale" of sorts is
used such that the more substantively oppressive the agreement is, the
less procedural unconscionability is required and vice-versa.
In this FEHA disability discrimination
case, a California court of appeal declined to enforce a mandatory arbitration
agreement on the grounds it was procedurally and substantively unconscionable.
The court concluded a high-degree of procedural unconscionability existed
because it was drafted by the employer and presented to the employee
without an opportunity to negotiate its provisions, and it mentioned
AAA's rules would govern, but it did not specify which AAA rules and
it did not provide the employee with a copy of the AAA rules.
The court also found the agreement substantively unconscionable because
it authorized the arbitrator to award costs and attorneys' fees to
the prevailing party, including presumably the employer. The court
concluded this provision substantively disadvantaged the employee because
FEHA generally only entitles prevailing employers to recover their attorneys'
fees when the employee's claims were frivolous, unreasonable or brought
in bad faith. (Mayers v. Volt Mgmt Corp. (2012) ___ Cal.App.4th
___, 2012 Cal. App. LEXIS 227.)
Federal
Appellate Court Refused
to Apply Agreement's Choice of Georgia Law Provision in Analyzing
Whether Plaintiffs were Independent Contractors
This federal appellate court
decision analyzed whether California or Georgia law should apply in
determining whether a class of truck drivers were properly classified
as independent contractors. Truck Drivers for defendant, a Georgia
based company, entered into an agreement designating them as independent
contractors. The agreement provided that Georgia law should apply
in the event of a dispute. The drivers sued for violations of
the FLSA and California Labor Code, alleging they were improperly classified
as independent contractors. Choice of law had significant implications
in this case, because the burden of proof was different depending on
which law applied. Under Georgia law, where a contract designates
the parties' relationship as independent contractor, the burden rests
on the plaintiff to overcome the independent contractor presumption.
In California, by contrast, the plaintiff need only produce evidence
that he provided services for an employer, then the burden shifts to
the employer to overcome the presumption the plaintiff was an employee
of the company. The appellate court applied California's choice
of law analysis and determined that California law should apply.
The court reasoned that Georgia law's presumption in favor of independent
contractors is contrary to a fundamental policy in California of protecting
employees. The court also held California had a greater interest
in the outcome of the case, because the drivers were domiciled in California,
completed their deliveries in California, and entered into the agreement
in California. (Ruiz v. Affinity Logistics (9th Cir. 2012) 2012
U.S. App. LEXIS 2450.)
"Policymaker" Exception
to First Amendment Does Not Apply to Orange County Lieutenant Officer
The First Amendment ordinarily
prohibits an elected official from firing or retaliating against an
employee for his political opinions, memberships, or activities.
The United States Supreme Court carved out an exception to this general
prohibition in Elrod v. Burns (1976) 427 U.S. 347, generally
known as the "policymaker" exception. Courts employ a nine-factor
test to determine whether an employee falls within the "policymaker"
exception. Ultimately, the dispositive issue is whether party
affiliation is an appropriate requirement for the effective performance
of the public office involved. This case involved a former lieutenant
officer with the Orange County Sheriff's department who was demoted
three ranks after he campaigned against and lost a close election for
Orange County Sheriff. The plaintiff sued under 42 U.S.C. § 1983
alleging violations of the First and Fourteenth Amendments. The
appellate court upheld the jury's determination that plaintiff did
not fall within the policymaker exception, as his job as lieutenant
officer did not require political loyalty, and none of his actions during
the campaign disrupted the efficient operations of the sheriff's department.
Specifically, plaintiff did not have policymaking authority over any
area of policy; he did not formulate or substantially influence any
department-wide policy; he did not have authority to speak with the
media without prior approval; and he lacked any power to hire or promote
officers. Since plaintiff did not fall within the policymaker
exception, the demotion violated the First Amendment. (Hunt
v. County of Orange (9th Cir. Cal. 2012) 2012 U.S. App. LEXIS 2815.)
