Webcast 1 16 03

What You Should Know About Employee Rights : 

What You Should Know About Employee Rights Instructor: Mary Minow, J.D., A.M.L.S. LibraryLaw.com mm@librarylaw.com Infopeople Webcast Series 2: Third Thursday Thursday, January 16, 2002 12:00 noon to 1:00 p.m

Technical Housekeeping: 

Technical Housekeeping Question or comment? Use chat window at bottom of screen Technical trouble? Click “help” near chat bar help@horizonlive.com event ID: infopeople (212) 651-8060 Evaluation at end Handouts and archives at Infopeople website Infopeople webcasts http://www.infopeople.org/training/webcasts/

Legal Disclaimer: 

Legal Disclaimer Legal information Not legal advice!

Legal FrameworkCan Be Changed by Contract: 

Legal Framework Can Be Changed by Contract Union Contracts (and other contracts) can change default framework

Employee Rights: 

Speaking out Campaigning Harassment Email Privacy- none, get over it Disability accommodations – stay in California Employee Rights

Speaking Out: 

Speaking Out Starting Point: Who Are You? Who Is Your Employer?

Who Are You? I AM THE PUBLIC: 

Who Are You? I AM THE PUBLIC BROAD UMBRELLA of the First Amendment I have right to: Offensive Hate Speech … even Sexually explicit (not Legally obscene)

Who Are You?I AM A PRIVATE EMPLOYEE: 

Who Are You? I AM A PRIVATE EMPLOYEE Almost No Umbrella Virtually no right to speech Small hodgepodge of rights .. whistle blowing … concerted activities …public policy – a little protection

Who Are You?I AM A PUBLIC EMPLOYEE: 

Who Are You? I AM A PUBLIC EMPLOYEE SMALL UMBRELLA

Who Are You? I AM A PUBLIC EMPLOYEE: 

Who Are You? I AM A PUBLIC EMPLOYEE SMALL UMBRELLA Example: No right to sexually explicit material Urofsky v. Gilmore, 216 F3d 401 (4th Cir. 2000)

Who Are You?I’M AN OUTSIDE CONTRACTOR/VOLUNTEER: 

Who Are You? I’M AN OUTSIDE CONTRACTOR/VOLUNTEER Same protection (or more) as public employees Note to employers: be careful in hiring, training EVERYONE Rivero v. City and County of San Francisco, No. 00-17113 (9th Cir. 2002); Hyland v. Wonder, 117 F.3d 405, (9th Cir. 1997).

Public Employees - Background: 

Public Employees - Background 1892: A policeman “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” Oliver Wendell Holmes NO EMPLOYEE RIGHTS 1960s: Rights expanded for employees Today: Fewer rights Pendulum away from employee

Today Courts Look At:: 

Today Courts Look At:

Case: Union Member Criticized Library Director … reprimanded: 

Case: Union Member Criticized Library Director … reprimanded Library employee to Santa Ana City Council - library "barely" functioning” - employees "devoid of zest, with leaden hearts and wooden hands." librarians wearing anti-Richard buttons at work Lambert v. City of Santa Ana, 59 F.3d 134 (9th Cir. 1995), cert. denied 516 U.S. 1028 (1995).

Library Union Rep Won: 

Library Union Rep Won YES YES YES

Court: Public Concern in Library Management: 

Court: Public Concern in Library Management “Given that operation of a public library is among the most visible of the functions performed by city governments, Lambert had a Constitutional right - and perhaps a civic duty - to inform the council if library service was jeopardized by poor management at the top“ Lambert v. City of Santa Ana, 59 F.3d 134 (9th Cir. 1995), cert. denied 516 U.S. 1028 (1995). $30,000 Employee Won $30,000

Slide17: 

Almost Anything *especially shining light on govt corruption Individual grievances Is speech of public concern? YES NO

Case: Library Bookkeeper Complains About Accounts: 

Case: Library Bookkeeper Complains About Accounts Bookkeeper returned from maternity leave Unhappy with accounting Wrote letter to director, library board disclaiming responsibility Was asked to leave Stevens v. Bd. of Library Trustees of the Cherry Valley Public Library District, 1997 U.S. Dist. LEXIS 11167 (N.D. IL. 1997)

Library Bookkeeper Lost: 

Library Bookkeeper Lost Stevens v. Bd. of Library Trustees of the Cherry Valley Public Library District,1997 U.S. Dist. LEXIS 11167 (N.D. IL. 1997) No Next Step Is speech of public concern? NO Employee Lost “purely private interests”

Case: Archivist Blew Whistle … not promoted: 

Case: Archivist Blew Whistle … not promoted Federal archivist at Truman Presidential Library made 42 disclosures: unsecured classified works and unsecured vault Sued when she was not promoted, duties changed Briley v. NARA, 236 F.3d 1373, (Fed. Cir. 2001), cert. denied 121 S. Ct. 2596 (2001)

Slide21: 

Briley v. NARA, 236 F.3d 1373, (Fed. Cir. 2001), cert. denied 121 S. Ct. 2596 (2001) YES Is speech of public concern? Is speech the main reason for demotion etc? YES NO No Next Step Briley v. NARA, 236 F.3d 1373, (Fed. Cir. 2001), cert. denied 121 S. Ct. 2596 (2001) Employee Lost

Summary of Library Cases: 

Summary of Library Cases Employee Won Employee Lost

Public Employee Cases in California and 9th Federal Circuit: 

Public Employee Cases in California and 9th Federal Circuit Jesus in the cubicle Whistle blowing on porn Architect’s letter against commissioner Teacher creates pro-family bulletin board

Case: Speaking about religion? Jesus In Cubicle?: 

Case: Speaking about religion? Jesus In Cubicle? Computer analyst put “Servant of the Lord Jesus Christ” on his software outside his cubicle in talks with coworkers Department memo to everyone “None of this” Tucker v. State of California Dep't of Educ., 1996 WL 563608 (9th Cir. Oct. 3, 1996) SOTLJC

Court: No More Disruptive Than Others: 

Court: No More Disruptive Than Others Tucker v. State of California Dep't of Educ., 1996 WL 563608 (9th Cir. Oct. 3, 1996) YES YES YES Employee Won

Case: Firefighter Discharged after Reporting Porn on Coworkers’ Computers: 

Case: Firefighter Discharged after Reporting Porn on Coworkers’ Computers Reported porn on coworkers computers - violation of dept policy discharged Dept said disruption Hufford v. McEnaney, 2001 WL 536847 (9th Cir. May 22, 2001).

Court: Public Interest in Rooting Out Illegal or Unethical Conduct Outweighed Disruption: 

YES YES YES Employee Won Hufford v. McEnaney, 2001 WL 536847 (9th Cir. May 22, 2001). Court: Public Interest in Rooting Out Illegal or Unethical Conduct Outweighed Disruption

Case: State Engineer Demoted After He Wrote Letter to Bldg Standards Commission : 

Case: State Engineer Demoted After He Wrote Letter to Bldg Standards Commission Sharp letter about commissioner who questioned his dept’s fee increase Demoted Campbell v. State Personnel Bd., 57 Cal. App. 4th 281 (1997)

Court: State Letterhead –Could Be Disruptive: 

maybe maybe NO Employee Lost Campbell v. State Personnel Bd., 57 Cal. App. 4th 281 (1997) Court: State Letterhead –Could Be Disruptive

Represented the State: 

Represented the State Campbell v. State Personnel Bd., 57 Cal. App. 4th 281 (1997) Employee Lost

Slide31: 

Elected Officials …and their designees Who Speaks for the State?

Case: Teacher Removed Gay and Lesbian Bulletin Board Items; Posted Pro-Family: 

Case: Teacher Removed Gay and Lesbian Bulletin Board Items; Posted Pro-Family Teacher removed school Gay & Lesbian materials Downs v. Los Angeles Unified School District, 228 F.3d 1003 (9th Cir. 2000); cert. denied 2001 U.S. LEXIS 3238 (2001) Teacher put “Pro-Family” bulletin board outside classroom door

Represented the School District: 

Represented the School District Employee Lost Downs v. Los Angeles Unified School District, 228 F.3d 1003 (9th Cir. 2000); cert. denied 2001 U.S. LEXIS 3238 (2001)

Summary of Public Employee Speech Cases: 

Summary of Public Employee Speech Cases Employee Won Employee Lost Employee Lost

Campaigning: Schools CaseWearing Buttons: 

Campaigning: Schools Case Wearing Buttons School district could tell employees not to wear political buttons during working hours at work sites when engaged instructional activities … but could not prevent employees from doing so in noninstructional settings. California Teachers Assn. v. Governing Bd. of San Diego Unified School Dist. 45 C.A.4th 1383 (1996).

Noninstructional Settingsbuttons ok: 

California Teachers Assn. v. Governing Bd. of San Diego Unified School Dist. 45 C.A.4th 1383 (1996). Instructional Settings no buttons Noninstructional Settings buttons ok

Political Buttons Question: Can District Dissociate Itself?: 

Political Buttons Question: Can District Dissociate Itself? California Attorney General Opinion No.01-307, (July 12, 2001). Back to School Night: Parents and Teachers No “young and impressionable minds” Teachers may wear political buttons

Campaigning for Ballot Measures with Public Funds: 

Campaigning for Ballot Measures with Public Funds No hard and fast rule to distinguish between "campaign literature" and "educational materials.“ Factors: Style, tenor, timing 1990 Cal. AG LEXIS 43; 73 Op. Atty Gen. Cal. 25 (August 30, 1990).

Oregon Guidelines Helpful: 

Oregon Guidelines Helpful Inform, don’t persuade reader Use dispassionate, not enthusiastic tone Don’t use “will” when “would” offers choice “need” is emotionally charged “supermajority” when neutral language is “2/3 of voters” campaign slogans checkmarks (tells voter what to do) Go easy on photos (emotional) http://www.sos.state.or.us/elections/Publications/respubemp.html

Who May Testify Before the Legislature?: 

Who May Testify Before the Legislature? The legislative body of a local agency, directly or through a representative, may attend the Legislature and Congress and present information to aid or prevent the passage of legislation beneficial or detrimental to the local agency. Cal Gov Code Sect. 50023, 50024

Who May Testify Before the Legislature?: 

Who May Testify Before the Legislature? Cal Gov Code Sect. 50023, 50024 The legislative body of a local agency, directly or through a representative, may attend the Legislature and Congress and present information to aid or prevent the passage of legislation beneficial or detrimental to the local agency To represent a library as employee spokesperson, you must either be elected or chosen by elected official

Right to Harass?: 

Right to Harass? Employee does not have right to harass Employee has right to nonhostile work environment Workplace porn harasses Award: $230,000 Pornography scattered about the workplace by an employer is harassment Quinn v. Barry & Company, Los Angeles County Superior Court Not Efficient to Allow Harassment

Harassment by PATRONS:Library Management  Between a Rock and a Hard Place: 

Harassment by PATRONS: Library Management Between a Rock and a Hard Place BROAD UMBRELLA of the First Amendment Right to Nonhostile Work Environment

Federal Law: Title VII: 

Federal Law: Title VII Employer liable if knew (or should have known) and fails to take immediate corrective action. Folkerson v. Circus Circus Enterprises, 107 F.3d 754 (9th Cir. 1997). Considers: extent of control over nonemployees (29 C.F.R. § 1604.11(e)) Circus Circus case -gave mime a sign “don’t touch” -had installed closed circuit TV Employee Lost

California Law: 

California Law Court: California Legislature omitted provision making employers liable for customer harassment Salazar v. Diversified Paratransit 103 Cal. App. 4th 131 (October 28, 2002). Driver quit after sexually Attacked by passenger Employee Lost

Email and Voicemail PrivacyNone … Get Over It: 

Email and Voicemail Privacy None … Get Over It Valid Competing Interests Individual’s privacy vs Employers need to protect themselves and run efficient workplace

Employers Win: 

Employers Win What if my employer promises me privacy? Seminal case, Smyth v. Pillsbury, company repeatedly assured employees that e-mail was confidential, would not be intercepted, would not be used as a basis for discipline. Employee terminated and lost in court. Smyth v. Pillsbury, 914 F. Supp. 97 (E.D. Pa. 1996). Kill the backstabbing bastards

California Update: 

California Update Deborah Bowen SB 147 would prohibit an employer from secretly monitoring email Legislature passed 2-1 Vetoed by Governor Davis

Search of Public Employees: 

Search of Public Employees “In our view, requiring an employer to obtain a warrant whenever the employer wished to enter an employee’s office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine conduct of business and would be unduly burdensome. Imposing unwieldy warrant procedures in such cases upon supervisors, who would otherwise have no reason to be familiar with such procedures, is simply unreasonable.” O’Connor v. Ortega, 480 U.S. 709 (1987)(plurality opinion).

Search of Public Employees: 

Search of Public Employees “In our view, requiring an employer to obtain a warrant whenever the employer wished to enter an employee’s office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine conduct of business and would be unduly burdensome. Imposing unwieldy warrant procedures in such cases upon supervisors, who would otherwise have no reason to be familiar with such procedures, is simply unreasonable.” O'Connor v. Ortega, 480 U.S. 709 (1987)(plurality opinion). Criminal Investigations Work Related Searches

“But I want my (personal) email”: 

“But I want my (personal) email” Password not enough Deleting not enough =============== Go to public terminal (unless you need to sign-up) Go home

Do You Work From Home?: 

Do You Work From Home? If you work at home on employer provided computer, you’re susceptible to searches

What You Should Know About the California Public Records Act and the Brown Act : 

What You Should Know About the California Public Records Act and the Brown Act Instructor: Mary Minow, J.D., A.M.L.S. LibraryLaw.com mm@librarylaw.com Infopeople Webcast Series 2: Third Thursday Thursday, February 20, 2002 12:00 noon to 1:00 p.m Emails as Public Record

Employees with Disabilities: Federal: 

Employees with Disabilities: Federal June 1999 Supreme Court trilogy Summary: “disabled” defined by ADA as evaluating the individual with his/her corrective devices or mitigating measures Sutton v. United Airlines, 527 U.S. 471 (1999) Murphy v. United Parcel Service, 527 U.S. 516 (1999) Albertson’s v. Kirkingburg, 527 U.S. 555 (1999)

ADA California: 

ADA California “Substantially limits” major life activity 42 USC Sec. 12102(2)(1) “Working” broad class of jobs Toyota Motor Mfg v Williams __US__ Not disabilities: epilepsy, tobacco sensitivity, migraines, back conditions various case law “Limits” major life activity Govt Code Sects. 12926(k)(1) and (k)(1)(B)(i) “Working” can refer to particular job Govt Code Sect. 12926.1(c) Yes disabilities: Epilepsy, tobacco sensitivity, migraines, back conditions Govt Code Sect. 12926.1(c) and case law

ADA California: 

ADA California “Substantially limits” major life activity 42 USC Sec. 12102(2)(1) “Working” broad class of jobs Toyota Motor Mfg v Williams __US__ Not disabilities: epilepsy, tobacco sensitivity, migraines, back conditions various case law “Limits” major life activity Govt Code Sects. 12926(k)(1) and (k)(1)(B)(i) “Working” can refer to particular job Govt Code Sect. 12926.1(c) Yes disabilities: Epilepsy, tobacco sensitivity, migraines, back conditions Govt Code Sect. 12926.1(c) and case law California does not require a “substantial “ limitation

Resources for Reasonable Accommodations in the Workplace: 

Resources for Reasonable Accommodations in the Workplace Job Accommodation Network (JAN) 800-526-7234 Answers questions, has database of equipment Able-Data 800-346-2742 Has info on costs of equipment Pacific Disability Center and Business Technical Assistance Center 800-949-4234 or 510 465-7884 Info on accommodations in California

Summary Letter to City Council: 

Summary Letter to City Council Library mismanagement if strong case, can win – public concern, outweighs disruption concerns Criticism of City Council use your own stationery Vote for library measure use your own stationery or send educational brochure