In California, several authorities protect the right to freedom of expression.  First and foremost, the First Amendment to the U.S. Constitution sets the minimum standard of protection.  California lawmakers and government agencies cannot create any law, regulation or ordinance to diminish the protection afforded by the First Amendment.  They may, however, expand the protections.

California's Constitution also protects free expression.  Article 1, section 2, subdivision (a) states,

Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge the liberty of speech or press.

Some courts have determined that the free speech clause in California's Constitution is broader in some areas than the free speech clause of the First Amendment, such as in its application to private property.  However, California's Supreme Court has emphasized that it is not broader in all of its applications, thus California courts may draw on both state and federal precedent to conducting constitutional free speech analyses.

In addition to the state and federal constitutional protections afforded to speech in California, the Legislature has enacted specific statutes to ensure that free expression protections are extended to groups or individuals in circumstances or locations where speech might not otherwise be completely protected.  For instance, the Legislature has enacted California Government Code section 3203, which limits the restriction public agencies can place on the "political activities" of their employees.  These types of protections are discussed in more detail below.

The purpose of this workbook is to discuss the various free expression protections afforded to an employee of California public agencies.  It is also intended to explain how public agency governing boards and officials may regulate such expression.  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.  Free expression analyses are fact-intensive and the absence or addition of a particular fact can change an entire analysis.

Topics Include:

• 42 U.S.C. § 1983 Free Speech Claims
• Analyzing Free Expression 
  • Is the Expression Constitutionally Protected?
  • Forum Analysis
  • Forum Analysis Chart
  • Imposition of Reasonable Time, Place, and Manner Regulations
• Employee Expression
  • First Amendment Protection of Employee Speech
  • Retaliation Claims and the Five-Element Test
  • The Duty to Investigate Employee Speech
  • Off-Duty Conduct
  • Constitutional Right to Petition
  • Policy Making Employees and Patronage
  • Contractor and Third Party Claims
  • Free Speech Protection Under the California Constitution
  • Free Expression Implications of Stay-At-Home Orders Related to COVID-19
• Political Expression
• Religious Expression
• Expression on Union and Labor Relations Matters
• Employee Use of Computers and the Internet
  • Employer Electronic Communications Policies
  • Policy Drafting Considerations
  • Employee Use of Social Media
• Whistleblower and Other Statutory Laws Protecting Employee Speech
  • Anti-Retaliation Law in Discrimination and Protected Classification Statutes
  • Whistleblower Statutes
  • Working Conditions
• Limiting Expressive Personal Appearance:  Dress Codes, Tattoos, and Body Piercings
  • Creating a Policy to Avoid Hostile Work Environment Claims
  • Case Studies on Hostile Work Environment
  • Policy Must Consider Protection of Employee Safety
  • Policy Must Not Unduly Infringe Fourteenth Amendment Liberty Interest in Appearance
  • First Amendment Concerns May Subject the Dress Code to Higher Scrutiny
  • Case Studies Concerning First Amendment Rights of Employees – Dress and Tattoos
  • Religious Practices of Employees Must be Reasonably Accommodated as Long as to Do So Would Not Subject the Employer to Undue Hardship
  • Dress Codes and Tattoo/Piercing Policies Must Not Discriminate on the Basis of Race or Have a Disparate Effect on Those of a Particular Race
  • Enforcement of Dress Codes May Be an Issue Which Requires Meeting and Conferring with the employees’ Union
• How to Create Dress Codes to Deal With Your Specific Needs
  • Elements of a Dress Code Policy
  • Sample Dress Code Policy
  • Sample Tattoo Policy
  • Sample Piercing Policy

This workbook explains the requirements set forth by the Fair Labor Standards Act (FLSA).  It provides supervisors, managers, and administrators with an introductory look at the FLSA and its daily impact on employees.  The workbook also dispels myth from fact about the FLSA and offers practical tips to ensure compliance with the FLSA and overlapping state wage laws.

Topics Include:

• Overview of the Fair Labor Standards Act
  • Introduction and Summary of Requirements
  • What the FLSA Does Not Require
  • Remedies and Enforcement
• Who is Covered by the FLSA? (Or More Importantly, Who is Not Covered?)
  • Introduction to Coverage Issues
  • Limited Exclusion for Elected Officials, Their Staff and Certain Employees of Legislative Bodies
  • Independent Contractors
  • Trainees / Unpaid Interns
  • Volunteers
• The Work Period
  • Basic Workweek Principles
  • Public Safety 7(k) Work Periods
• Hours Worked
  • Introduction
  • Distinction Between Work Time and Paid Time
  • Employees Cannot Volunteer Work Time
  • Rounding and De Minimis Rules
  • Employees Working in Two or More Agency Jobs
  • Meal Periods
  • Rest Periods
  • Standby or On-Call Time
  • Pre and Post-Shift Activities
  • Travel Time
• Overtime Exemptions
  • The General “White-Collar” Exemptions
  • Special Exemption for Highly Compensated Employees
  • Special Exclusion for “First Responders”
  • Special Exemption for Computer Software Employees
  • Education Code Overtime Exclusions
• Compensatory Time Off
  • The Basic Requirements
  • Use of Accumulated FLSA CTO
  • Education Code CTO
• Record Keeping
  • Introduction
  • Information Required for Non-Exempt Employees
  • Information Required for 7(k) Law Enforcement Employees
  • Information Required for Exempt Employees
  • Timesheets For Exempt Employees
  • Posting Requirement
  • Preservation of Records
  • Notice Rights Related to the Affordable Care Act
  • Right to Express Breast Milk

This workbook is designed for supervisors and  managers who are responsible for investigating allegations or evidence of employee misconduct, including harassment.  The purpose of an investigation is to gather all of the facts needed to make a determination as to what occurred or did not occur.  The workbook provides a step-by-step guide for conducting an administrative investigation, including practice points specific to investigating complaints in K-12 and community college districts.  First, in applying the principles discussed in this workbook, both K-12 and community college districts must be mindful of any internal policies, regulations, and/or contract language that may affect the handling of employee complaints.  Second, Title 5 of the California Code of Regulations impose specific timelines and procedures on both K-12 and community college districts with regard to certain employee complaints. Finally, investigators in educational settings are often called upon to interview students.  These interviews raise particular challenges such as heightened fears of retaliation, eliciting credible information, and student safety.

Topics Include:

• When Should an Investigation Be Conducted?
  • When There is a Possible Violation of a Standard of Conduct
  • When There is Alleged or Suspected Discrimination OR Harassment
  • Before the Investigation Begins
• What Standard Does an Investigation Have to Meet?
• Who Should Be Assigned to Conduct the Administrative Investigation?
  • Selecting the Right Person for the Job
  • When to Use an Outside Investigator
  • Investigator Determines the Facts
  • Using an Attorney to Conduct an Investigation
  • Using an Attorney to Direct a Third Party Investigation
  • Must an Outside Investigator Be a Licensed Private Investigator?
• Beginning the Investigation
  • Preliminary Issues to Consider Prior to Starting the Investigation
  • When Do You Advise the Employee That He/She is the Subject of the Investigation?
  • What if the Subject Matter of the Investigation Relates to Criminal as Well as Administrative Misconduct?
  • Have a Good General Knowledge of District Policy Regarding the Conduct Alleged
• Gathering the Facts
  • Create a Binder
  • Background Documents
  • Documentary and Physical Evidence
  • Interviews
  • Administrative Searches
  • Polygraphs
  • Access to and Use of Criminal Records
  • Concluding the Investigation
• Evaluating the Facts
  • Review Your Investigation Binder
  • Make Factual Findings
  • Make Conclusions of Policy only– If Directed to Do So
• Writing the Report
  • Contents of the Report
  • Attachments to the Report
  • Confidentiality of Investigation Report: How Much Can or Should Be Disclosed to the Complainant or the Accused?
• Taking Corrective Action
  • Prompt and Effective Remedial Action
  • Type of Corrective Action

This workbook is designed to assist public employers in two broad areas – employee evaluations and employee discipline.

Topics Include:

• Performance Evaluation: An On-Going Process
  • Why Do Performance Evaluations?
  • The Ten Steps in Evaluating Performance
  • The Basic Rules for Preparing Written Evaluations
  • The Evaluation Meeting
  • Follow-Up:  If Improvement is Needed
• Counseling and Available Disciplinary Actions
  • Counseling
  • Progressive Discipline
• Frequent Disciplinary Problems
  • Excessive Absenteeism
  • Tardiness
  • Incompetence/Inefficiency
  • Insubordination
  • Falsification of Documents/Dishonesty
  • Employee Misconduct Outside Working Hours
  • Fighting
  • Harassment
• Issues to Consider Before Taking Disciplinary Action
  • Create a Record
  • Evaluate Sources of Authority to Impose Discipline
  • Conduct an Investigation
  • Evaluate the Likelihood that the Proposed Discipline Will be Sustained if the Employee Appeals
  • Consider Two Common Defenses To Discipline
  • Laying off or Eliminating a Position as an Alternative to Discipline
  • Consider Legal Issues Prior to Implementing Discipline
• Implementing Public Employee Discipline
  • What is “Skelly”?
  • Skelly Pre-Discipline Due Process Rights Apply Only to “Significant” Discipline Unless Agency
  • Rules or MOU’s Provide to the Contrary
  • Probationary and Other “At-Will” Employees Have Only Limited Due Process Rights – Lubey Conference
  • The Skelly Pre-Disciplinary Procedure
  • Final Notice of Discipline
  • Remedies for Violating a “Permanent” Employee’s Due Process Rights
  • Settlement
• Post Discipline Due Process: The Right to Administrative and Judicial Review of a Final Disciplinary Action
  • Post-Disciplinary Administrative Appeal
  • Appeal to the Courts: Judicial Review of the Administrative Appeal Decision

This workbook is designed for the community college administrator, supervisor or manager who is involved in labor relations on a day-to-day basis.

College administrators, managers, and supervisors often are faced with issues raised by union activity in the workplace.  This workbook is intended to instruct administrators and others in appropriate conduct when faced with union activity.  Our intent is to address the functional, philosophical and professional considerations inherent in the exercise of management's basic rights within the proper parameters of employee and organizational rights.

There are a number of fundamental principles in labor relations of which the manager/supervisor should be aware as he or she pursues a positive relationship with employee organizations.  Most of these principles originated in the private sector.

The law which governs community college district (and K-12 district) labor relations in the State of California is the Educational Employment Relations Act (EERA).  The EERA is based on fundamental precepts contained in federal statutes and governs the relationship between schools or community college districts and their employees.  The EERA is similar to the federal National Labor Relations Act, 29 U.S.C. §§ 151-169, also known as the NLRA, that governs labor relations in the private sector.  Other public agencies in California, such as cities, counties, and state agencies, are subject to different collective bargaining laws.  A copy of the EERA may be found in Appendix E of this workbook.

It is important to note here that the liability of the district extends to the acts of the employer's "agents."  In effect, this means the district may be held responsible for what one of its supervisors does, provided the supervisor is acting within the scope of his or her employment, (i.e., in the line of duty).  It is, therefore, important for the supervisor to be sensitive to his or her responsibility as the agent of the district in these matters.

A founding principle of labor relations is that employees have a right to organize into employee organizations (often referred to as associations or unions) and to bargain collectively with their employers relative to working conditions.  Once representation has been established, there are obligations which the union must assume, the most important of which is its obligation to fairly represent the members in the bargaining unit.  A union which has been designated and certified as the exclusive bargaining agent must represent all members of the unit without exception whether or not they are members of the union itself.

Handling grievances at the early stages of the grievance procedure is considered part of the supervisor's role in labor relations.  A valid and effective formal grievance procedure contributes to the orderly and peaceful redress of employee complaints.  This process is preferable to, and seeks to avoid, protracted legal actions, work stoppages, and other confrontational experiences at the workplace.  A positive management attitude, which respects the integrity of the grievance process, clearly serves the best interests of both labor and management and facilitates the ability of the administrator/supervisor/manager to work effectively under the provisions of the bargaining agreement and with representatives of the local employee organization.  We hope the contents of this workbook will assist first line supervisors and middle managers to meet their dual responsibilities of fairly and effectively implementing a grievance procedure and preserving and maintaining management's basic rights.

Topics Include:

• Subjects of Bargaining
  • Scope of Bargaining
  • Impacts and Effects Bargaining
  • Past Practice
  • Additional Obligations
  • Participatory Governance
• Labor Negotiations and the First Line Supervisor
  • The Labor Negotiations Process
  • Enforcing the Labor Agreement: First-Line Supervisor
  • The Relationship Between Supervisor and Union Representative
• Management Rights
  • Management's Rights to Operate Efficiently
  • Management's Communication with Employees About Union Membership
  • Management's Right to Discipline
  • Management Rights Clause
  • Restrictions on Management Rights
  • The First Line Supervisor's Role
• Union Rights and Activities
  • Union Organization
  • Union and Employee Rights After Representation is Certified
  • Union Responsibilities
• An Employee's Right to Representation
  • Representation in an Investigatory Interview (Weingarten Rights)
  • Representation in a Grievance Meeting
  • Representation in an Interactive Process Meeting
  • Right to Refuse Membership
• The Grievance Process
  • What Is a Grievance?
  • What Is a Grievance Procedure?
  • Grievance Procedures Require Support and Commitment to be Successful
  • Checklist: How to Avoid Grievances
  • Processing the Grievance
  • Checklist: Handling Grievances at the Initial Step
  • Important Follow-Up Steps After the Grievance Meeting
  • The Written Response to the Grievant
  • The Appeal and Arbitration Process
  • Preparing for the Arbitration/Appeals Hearing
  • Checklist for Testifying as a Witness
• Criteria Used by Arbitrators in Interpreting Agreement Language
  • The Criteria
  • Standards of Proof and Evidence
  • Effect of Binding Arbitration
• Issues and Challenges
  • Introduction
  • Grievance Issues