The legal problems that can arise from employees who drive during their employment are too numerous and varied to mention. This workbook is designed to touch upon some of the more common issues and problems employers encounter from employees who drive.

This workbook will provide a general overview of such issues as licensing requirements, drug and alcohol testing, the employer pull notice program, mileage reimbursement, insurance, driving policies to prevent accidents, and employer liability for accidents. This is only meant as an overview and the appropriate course of action for any employer is usually best determined on a case-by-case basis.

Topics Include:

• Licenses in General: What Type is Required?
  • Basic Class C Driver’s License
  • Commercial Class C Driver’s License
  • Commercial Class B Driver’s License
  • Noncommercial Class B Driver’s License
  • Commercial Class A Driver’s License
  • A Special Word About Emergency Vehicles
  • Motorcycle Licenses
• Commercial Drivers Licenses
  • Inter-Play of California Law and Federal Law
  • General Outline of the FMCSA’s Commercial Driver’s License Standards, Requirements and
  • Penalties Applicable to California Commercial Driver’s Licenses
  • Medical Examination Report
• Employer Pull Notice (EPN) Program
  • Mandatory Enrollment and Employer Responsibilities under EPN
  • Voluntary Participation in EPN Program
  • Employee Removal from Driving Position Based on Information in EPN Program
  • Confidentiality of EPN Program Records
• Adverse Action Based on Motor Vehicle Violations or Inability to Operate a Motor Vehicle
  • Addressing Employees with Motor Vehicle Violations or Restrictions
• Reimbursement for Employee’s Use of Personal Vehicle at Work  
  • Does California Labor Code Section 2802 Apply to Public Agencies?
  • Proper Reimbursement Procedures Under California Labor Code Section 2802
• Insurance, Accident Reports & Defending Your Employee
  • California’s Financial Responsibility Laws
  • Accident Reporting
  • Insurance Coverage
• Preventing Accidents & Driving Distractions
  • Internal Preventative Policies for Employers
  • Policies for Employees that Drive Vehicles
  • A Special Word About 15-Passenger Vans
  • California’s Hands-free Cell Phone Use Law
• Employer Liability for Employee-Related Accidents
  • “Respondeat Superior” – Employer Liability for Actions Taken by Employee Within Course and Scope of Employment
  • Monitoring Employee Movements While Driving
• DOT Drug and Alcohol Use and Testing
  • Federal Motor Carrier Safety Administration (FMCSA) Drug and Alcohol Testing Rules
  • Drug and Alcohol Testing Under the Federal Transit Administration (FTA)
  • When an Employee is Covered by the FMCSA & FTA Drug and Alcohol Testing Requirements
• Non-DOT Drug and Alcohol Use and Testing
  • Drug & Alcohol Testing for Non-Commercial Licensed Employees

In order to manage public employees, today's supervisors and managers need to be aware of the many laws, rules and policies affecting the workplace.  The United States and California constitutions and statutes, case law, ordinances, administrative policies, labor agreements, and personnel rules all shape the relationship between labor and management, the employer and employee.

This workbook is intended as a guide to assist supervisors and managers in identifying and addressing common personnel issues in the workplace.  This workbook discusses management rights, grievances, performance evaluations, the disciplinary process, personnel files, and discrimination.  The sections include an overview of these subjects, with checklists and sample forms.  This information will help you make important personnel decisions with confidence.

Topics Include:

• A Survival Guide for Supervisors and Managers
• Management Rights/Past Practice
  • Management Rights
  • Restrictions on Management Rights
• Employee Grievances
  • What is a Grievance?
  • What is a Grievance Procedure?
  • Scope of the Grievance Procedures
  • Purpose of Grievance Procedure
  • Steps in Grievance Handling
  • Checklist On How to Avoid Grievances
  • Checklist:  Handling Grievances at the Initial Step
  • Sample Grievance Record
• Employee Performance Evaluations
  • Performance Management
  • Why Do Performance Evaluations?
  • Prepare and Follow Through
  • Timing
  • Identify Objective Criteria
  • Know the Employee’s Job Requirements
  • Communicate Often
  • Prepare the Written Evaluation
  • Summary of Recommendations for Solid Evaluations
• Implementing the Disciplinary Process
  • Legal Parameters
  • Significant Punitive Action
  • Pre-Discipline Procedural Requirements
  • Written Notice is Required
  • Employees Must Be Allowed a Reasonable Time to Respond
  • The Opportunity to Orally Respond Should Not Be a Formal Hearing
  • Manager Reviewing Employee Response Should Be Appropriate to Level of Employee Responding
  • The Liberty Interest (“Lubey”) Requirements
  • Remedies for Failure to Provide Pre-Discipline Due Process
  • Issuance of Final Notice of Discipline
  • Reduction of Discipline
  • “Last Chance” Settlement Agreements
  • Post-Disciplinary Appeal Hearing
  • Supervisor’s Checklist for Hearing Preparation
  • Documentation
  • Criteria for Success at the Hearing
  • “Good Cause”
  • “Good Cause” Checklist
  • Conducting the Disciplinary Counseling Interview Checklist
  • Sample Letter Confirming Verbal Reprimand
  • Sample Written Reprimand
  • Sample Notice of Rejection of Probationary Appointment
  • Sample Notice of “Lubey” Hearing
  • Sample Notice of Intent to Discipline
  • Sample Notice of Termination (or Suspension or Demotion)
• Personnel Files
  • Inspection Checklist
  • Internal Disclosure
  • Duty to Maintain Confidential Medical Information
  • Disclosure to Non-Employees
  • Avoiding Lawsuits by Permitting Inspection of Personnel Files
  • Supervisor’s Files
• Eliminating Harassment, Discrimination and Retaliation in the Workplace
  • Supervisors Are Individually Liable for Harassment Under State Law But Not for Discrimination or Retaliation
  • Discrimination
  • Harassment
  • Protected Status Defined
  • Retaliation
  • Preventing Harassment, Discrimination and Retaliation
  • Anti-Discrimination Laws Do Not Immunize Employees From Discipline When Warranted
  • Developing an Anti-Harassment, Discrimination, and Retaliation Policy
  • Training Employees to Prevent Harassment, Discrimination and Retaliation
• Accommodating Disabled Employees
  • The Applicable Law
  • Who is Covered by Disability Laws?
  • Individual Liability
  • What Discrimination is Prohibited?
  • What is a Disability Under the ADA?
  • What is a Disability Under FEHA?
  • Who is an Individual with a Disability under the ADA and FEHA?
• The Interactive Process/Reasonable Accommodations
  • Triggers to Engage in the Interactive Process
  • The Steps of the Interactive Process
  • EEOC Interactive Process Guidelines
  • Documentation and Follow Up
  • Due Process Considerations (What if the Interactive Process Yields No Reasonable Accommodation?)
  • Reasonable Accommodation Applies only to Known Disabilities
  • Documentation of a Disability
  • What Types of Accommodations are Reasonable?
• The Application and Hiring Process
  • Applications
  • Pre-Employment Testing
  • Conditional Job Offers
  • Pre-employment Medical Exams
  • Reasonable Accommodations

This workbook is geared towards District Administrators with 1-3 years of experience.

Topics Include:

• Hiring and Recruitment
  • Overview
  • The Prohibition Against Discrimination
  • The Diversity Commitment Post-Proposition 209
  • Diversity Hiring Pursuant to Federal Grants
• Lawful Hiring Strategies for Maximizing Diversity
  • Institutional Commitment at All Levels
  • Well Trained Selection Committees
  • A Reputation for Fostering an Inclusive Environment
  • Updated and Modern Job Descriptions & Qualifications
  • Maximizing a Global Perspective in All Disciplines and Departments
  • Proactive, Frontloaded and Long-Range Recruitment Strategies
  • Retention Strategies
  • Monitoring and Reporting
• Legal Obligation to Meet and Negotiate in Good Faith
  • “Scope of Representation” Defined [Gov. Code § 3543.2]
  • Bargaining “in Good Faith” Defined [Government Code section 3540.1(h)]
  • A Note on Shared Governance
  • Jurisdiction of PERB
  • Negotiation Process
  • Collective Bargaining Agreements
  • Confidential Employees
  • Impasse Procedures
• Personnel Files
  • The Right to Inspect:  Labor Code Section 1198.5
  • The Right to Review Derogatory Information:  Education Code Section 87031
• Classified Employees
  • Which Employees Are Classified and Which Are Not?
  • Probationary Period for Classified Employees
  • Classified Employee Disciplinary Procedures
  • Classified Employee Overtime
  • Leaves for Classified Employees
  • Layoffs of Classified Employees
• Academic Employees
  • Employment of Contract Faculty Members
  • Evaluation of Faculty
  • Sick Leave for Academic Employees

This workbook is geared towards District Human Resources Staff with more than 3 years of experience.

Topics Include:

• Hiring and Retaining Employees with Criminal Records
  • Introduction
  • Defining Terms
  • Classified Employees
  • Student Employees—87406.5
• Employment of Temporary Faculty Members
  • Employment of Academic Employees in Categorically Funded Projects
  • Employment of Adjunct Faculty
• Leaves for Academic Employees
  • Industrial Injury Leave—87787
  • Family Sick Leave and Personal Necessity Leave
  • Sabbatical Leave
• Catastrophic Leave
  • Overview
  • Requirements for Donating Leave
  • Donation and Use of Eligible Leave Credits
  • Adoption of Rules and Regulations
  • Collectively Bargained Catastrophic Leave Policies
• Termination of Academic Employees
  • Overview and Grounds
  • The 90-Day Notice:  Prerequisite to Charging Unprofessional Conduct or Unsatisfactory Performance
  • Immoral Conduct
  • Evident Unfitness for Service
  • Persistent Violation of or Refusal to Obey the State’s School Laws or Reasonable Regulations
  • of the Board of Governors or the Board of Trustees (Insubordination)
  • Steps in the Disciplinary Process
  • The Four-Year Rule
  • Hearing Rights:  Arbitrator or Administrative Law Judge
• Layoffs of Academic Employees
  • Grounds for Academic Layoffs
  • Composition of the List:  Who Gets In and Who Does Not
  • Order of the List: Calculating Faculty Seniority
  • Implementation of the List
• Status and Rights of Child Development Center (CDC) Teachers
  • Overview
  • CDC Teachers are Academic Employees, but Not Faculty
  • CDC Teachers may Acquire Permanent Status, but Not Tenure
  • The Layoff and Reemployment Rights of CDC Permit Teachers
• Personal Service Contracts
  • Overview
  • Personal Service Contracts to Achieve Cost Savings
  • Personal Service Contracts for Unique or Specialized Services
  • Collective Bargaining Issues
• Administrator Contracts
  • Employment by Assignment or Contract
  • Nonrenewal of Administrator Contracts
  • Substitute or “Acting” Administrators
  • Discipline and Dismissal of Administrators
• Disability Allowance and Disability Retirement
  • Overview
  • Differences Between Disability Allowance and Disability Retirement
  • Reinstatement
  • Disability Allowance Generally
  • Disability Retirement Generally
  • District Obligations
  • Education Code Sections Cited

This workbook is designed to provide district administrators with practical tools and information for administering layoffs.  These include information on the latest changes to the law relating to the reduction of certificated and classified workforces; step-by-step timelines for administering certificated, academic and classified layoffs; concrete applications of difficult concepts such as calculating hire dates and displacement rights; and model forms.

However, Liebert Cassidy Whitmore cautions that this information should not be viewed as a substitute for early planning and preparation, and cannot replace the critically important assistance of counsel.  Certificated or academic layoffs, in particular, present districts with complex and challenging procedures to implement.  Districts faced with convoluted and intricate steps to follow and the consequences of errors can be sweeping.  Therefore, districts are urged to be mindful of their statutory deadlines; engage in advanced planning and address disputes early; maintain and update seniority lists regularly, and utilize the assistance of counsel.

Topics Include:

• What is a Layoff?
  • Non-Renewal Versus Layoff
  • Grounds for Certificated and Academic Reductions in Service
• Procedural Steps: What to Do and When
  • Laying the Groundwork: Pre-March 15 Steps
  • The March 15th Notice
  • The Administrative Procedures Act Process
  • Post-Hearing Procedures
• Certificated Employee Layoffs
  • Composition of the List: Who Gets on and Who Does Not
  • Order of the List: Calculating Teacher Seniority
  • Implementation of the Certified Layoff List: Reverse Order of Seniority, with Skips and Bumps Along the Way
  • Reemployment Rights
• Community Colleges: Academic Reductions in Force
  • Composition of the List: Who Gets on and Who Does Not
  • Order of the List: Calculating Faculty Seniority
  • Implementation of the List: Reverse Order of Seniority, with Skips and Bumps Along the Way
• Authority and Grounds to Lay Off Classified Employees
• Notice Requirements
  • Expiration of a Specially Funded Program
  • Bona Fide Reduction/Elimination of the Service Being Performed
  • Lack of Funds/Emergency Situation
• Calculating Seniority and Determining the Order of Layoff
  • Creating Current, Accurate, and Complete Seniority Lists
  • Applying the “In a Class Plus Higher Classes” Language
  • Defining Length of Service: “Hours in Paid Status” versus “Hire Date”
  • Seniority and Displacement Rights
  • Voluntary Demotion or Decrease in Assignment in Lieu of Layoff
• Reinstatement
• Collective Bargaining Requirements
• Steps and Timelines
  • Pre-Layoff Procedures and Preliminary Steps
  • Layoff Initiation and Implementation Procedures
  • Hearing rights

As the Court of Appeals in Haase v. San Diego Community College District (1980) aptly observed:

"Entry into the Education Code is painful."

The complex web of laws that is the Education Code can be daunting to decipher. The provisions relating to the employment of part-time, temporary faculty to meet a community college district's ongoing instructional and non-instructional needs, and employment and classification of non-academic community college district employees specifically exempt from the classified service, are no exception.  This workbook focuses on simplifying and de-mystifying the provisions regarding hiring adjunct faculty and provides guidance to community college districts regarding when and why districts can hire temporary non-academic employees.

The workbook addresses important questions pertaining to the employment of adjunct faculty members such as:

• How often can they be employed?
• Under what circumstances do they acquire tenure?
• How is their tenure calculated?
• How many hours a week can they work?
• How can they be utilized flexibly but without exploitation?
• Should they be required to maintain office hours?
• Can they accrue vacation?
• Can they be employed in different disciplines?
• Can they be employed in categorically funded programs?

Likewise, the workbook addresses important questions pertaining to the employment of non-academic community college district employees and those relating to positions specifically exempt from classification such as:

• Why go outside the classified service?
• When can you go outside the classified service?
• When can a community college district employ personal service contracts?
• Under what circumstances can an exempt employee become a classified employee?

Topics Include:

• General Principles
  • Limitations on the Number of Temporary Faculty Members
  • Classification of Temporary Faculty Members
• Historical Background
• Case Law Since Peralta
• Basic Rules
• When Temporary Hours May Advance an Employee Toward Tenure
• Other Relevant Education Code Statutes
• Impact of Collective Bargaining Agreements   
  • Provisions in Collective Bargaining Agreements Are Not Preempted by the Education Code
  • Obligation to Bargain Reemployment Preferences for Part-Time, Temporary Faculty
• Impact of ACA on Temporary Faculty Members
  • Who is a Full-Time Employee?
  • How Should Districts Calculate “Hours of Service” for Temporary Faculty Members?
• What is the Classified Service?
  • Non-Academic Employees
  • Definition of “Classification”
  • Rights and Responsibilities of Classified Employees
• Why Go Outside the Classified Service?
• When Can You Go Outside the Classified Service?
  • Merit vs. Non-Merit Distinction
  • Temporary Employment Positions Specifically Excluded from Classified Service
  • Employee in Regular Status Who Reduces Time
  • Must All Work That is Neither Academic nor Exempt Be Performed by Classified Employees?
  • A Note on Employees in Categorically Funded Programs
• Personal Services Contracts
  • To Achieve Cost Savings When All of the Following Conditions Are Met:
  • Contract Mandated by the Legislature
  • Services Not Available Within the District
  • Services Incidental to a Contract for Purchase or Lease of Real Property
  • Contracts Necessary to Accomplish Community College District Goals and Purposes
  • Emergency Appointments
  • Equipment or Materials Not Available from District
  • Services are of Urgent, Temporary, or Occasional Nature
• Under What Circumstances Can a Temporary (Exempt) Employee Become a Classified Employee?

Employment relationships are similar to personal relationships; rarely do they end to both parties' satisfaction.  One party often would like the relationship to continue, while the other party has a beneficial interest in severing the relationship and moving on to greener pastures. If done correctly, a "break-up" will allow both parties to move forward with no or relatively few feelings of resentment.  Conversely, a "bad break-up" may leave one party harboring resentment and looking for retribution or money.  Unlike in personal relationships, retribution for a "bad break-up" in an employment relationship may lead to a lawsuit, which could lead to liability and certainly will lead to spending money litigating, settling or both.

There are two ways an employment relationship ends:  involuntarily and voluntarily.  For purposes of this workbook, an involuntary separation occurs when the employer severs the employment relationship with an employee who otherwise desires to continue working for the employer.  Voluntary separations occur when an employee elects to end the employment relationship.  While liability most often arises out of involuntary separations, it can arise out of voluntary separations if an employer does not protect itself.  The purpose of this Workbook is to provide public employers with guidance regarding the best practices and procedures to use when involuntarily or voluntarily ending the employment relationship with an employee or group of employees.  The majority of the workbook focuses on involuntary separations; however, parts of the workbook touch on best practices for avoiding liability in voluntary separations, such as when an employee elects to retire.

When using this Workbook, it is important to consider that it is only a guide and cannot be relied upon for definitive legal advice regarding a specific situation.  Ending the employment relationship with an employee often requires a unique, fact-intensive analysis.  The analysis can change with the absence or addition of a single fact.  Therefore, we advise you to consult an attorney when dealing with a situation that could lead to future liability.

Topics Include:

• Terminating an Employee
  • Follow Rules and Procedures for Termination
  • Consider the Nature of the Employment Relationship
  • Permanent, or “For Cause,” Employees
  • Part-Time Employees
  • Contract Employees
• Legal Ramifications to Consider Prior to Ending the Employment Relationship
  • Discrimination Claims
  • Retaliation Claims
  • Termination for Private Conduct
• Termination for a Disability that Cannot be Accommodated
  • Interactive Process and Reasonable Accommodation
  • Defenses to Accommodation:  Health and Safety, and Undue Hardship
  • Inability to Accommodate
• Retirement and Retirement Incentives
  • Disability Retirement
  • Service Retirement
  • Early Retirement Incentives
• Layoffs
  • Layoff Rules
  • Duty to Meet and Confer Over Impact of Layoffs
  • Potential Legal Ramifications: Discrimination/Wrongful Termination/Retaliation
  • Layoffs In Lieu of Termination:  Due Process Concerns
• Legally Enforceable Settlement and Separation Agreements
  • Preliminary Issues
  • Common General Provisions
  • Variable Provisions
  • Sealing Personnel Documents
  • Taxation of Money Paid Pursuant to an Agreement
  • Discussion of Agreements at Public Meetings
• Post-Separation Obligations
  • Final Payment of Wages
  • Unemployment Insurance Benefits Requirements
  • Cobra Notification

Most California public employees have what is known as a constitutionally protected "property" interest in continued employment giving rise to their rights to pre-discipline and post-discipline "due process." At-will employees, however, are not vested by their public employer with a property interest in continued employment and serve at the "will" or "pleasure" of their employer. At-will employees tend to be high-level managers, department heads, executives, probationary employees, seasonal employees, and part-time/temporary employees.

This workbook explores issues related to at-will employees and serves as a helpful desktop reference for understanding the unique rights and benefits afforded to these employees. Specifically, this workbook discusses designation of at-will status, the rights of at-will employees, management's authority in dealing with at-will employees, and how to avoid litigation relating to the discipline and termination of at-will employees.

This workbook also discusses issues regarding independent contractors or contract workers. Typically, these workers provide skilled services to a public agency pursuant to a contract either between the agency and the worker or between the agency and an outside employment firm. Specifically, this workbook addresses what types of benefits and rights, if any, independent contractors or contract workers are entitled to.

Topics Include:

• At-Will Employment
  • Definition of At-Will Employment
  • Determining Which Employees are At-Will
  • Removal of Classified Employees
  • Probationary Employees
  • Rights of At-Will Employees
  • Evaluating and Disciplining At-Will Employees
  • Liberty Interest Hearing/Lubey Conference/“Name Clearing” Hearing
• Independent Contractors/Contract Workers
  • The Impact of the Cargill Decision on Public Agency Employers
  • Are Contract Workers Who Qualify for CalPERS Also Entitled to the Same Benefits and Rights as Regular Employees?
  • Do Contract Workers Have Skelly Due Process Rights?
  • Tax Implications
• Part-Time and Temporary Employees
  • Designating Part-Time and Temporary Employees as At-Will
  • Avoid Destroying the Designation
  • Part-Time and Temporary Employees and CalPERS
  • What Benefits Must an Agency Provide to Part-Time and Temporary Employees?
  • Temporary Employment of CalPERS’ Annuitants

This workbook is designed to provide district administrators with practical tools and information for administering layoffs.  These include information on the latest changes to the law relating to the reduction of certificated and classified workforces; step-by-step timelines for administering certificated, academic and classified layoffs; concrete applications of difficult concepts such as calculating hire dates and displacement rights; and model forms.

However, Liebert Cassidy Whitmore cautions that this information should not be viewed as a substitute for early planning and preparation, and cannot replace the critically important assistance of counsel.  Certificated or academic layoffs, in particular, present districts with complex and challenging procedures to implement.  Districts faced with convoluted and intricate steps to follow and the consequences of errors can be sweeping.  Therefore, districts are urged to be mindful of their statutory deadlines; engage in advanced planning and address disputes early; maintain and update seniority lists regularly, and utilize the assistance of counsel.

Topics Include:

• What is a Layoff?
  • Non-Renewal Versus Layoff
  • Grounds for Certificated and Academic Reductions in Service
• Procedural Steps: What to Do and When
  • Laying the Groundwork: Pre-March 15 Steps
  • The March 15th Notice
  • The Administrative Procedures Act Process
  • Post-Hearing Procedures
• Certificated Employee Layoffs
  • Composition of the List: Who Gets on and Who Does Not
  • Order of the List: Calculating Teacher Seniority
  • Implementation of the Certified Layoff List: Reverse Order of Seniority, with Skips and Bumps Along the Way
  • Reemployment Rights
• Community Colleges: Academic Reductions in Force
  • Composition of the List: Who Gets on and Who Does Not
  • Order of the List: Calculating Faculty Seniority
  • Implementation of the List: Reverse Order of Seniority, with Skips and Bumps Along the Way
• Authority and Grounds to Lay Off Classified Employees
• Notice Requirements
  • Expiration of a Specially Funded Program
  • Bona Fide Reduction/Elimination of the Service Being Performed
  • Lack of Funds/Emergency Situation
• Calculating Seniority and Determining the Order of Layoff
  • Creating Current, Accurate, and Complete Seniority Lists
  • Applying the “In a Class Plus Higher Classes” Language
  • Defining Length of Service: “Hours in Paid Status” versus “Hire Date”
  • Seniority and Displacement Rights
  • Voluntary Demotion or Decrease in Assignment in Lieu of Layoff
• Reinstatement
• Collective Bargaining Requirements
• Steps and Timelines
  • Pre-Layoff Procedures and Preliminary Steps
  • Layoff Initiation and Implementation Procedures
  • Hearing rights

Employment relationships are similar to personal relationships.  Rarely do they end to the satisfaction of both parties.  One party often would like the relationship to continue, while the other party has a beneficial interest in severing the relationship and moving on to greener pastures. If done correctly, a “break-up” will allow both parties to move forward with no or relatively few feelings of resentment.  Conversely, a “bad break-up” may leave one party harboring resentment and looking for retribution or money.  In the case of employment relationships, a “bad break-up” may lead to a lawsuit, which could lead to liability and certainly will lead to spending money litigating, settling or both.

Topics Include:

• Terminating an Employee
• Legal Ramifications to Consider Prior to Ending the Employment Relationship
• Termination for a Disability that cannot be Accommodated
• Retirement and Retirement Incentives
• Early Retirement Incentives
• Layoffs
• Legally Enforceable Settlement and Separation Agreements
• Post-Separation Obligations