CLIENT ALERT MEMORANDUM
February 2, 2000
To: All Police Chiefs and Sheriffs
From: Martin J. Mayer
Re: LABOR CODE SECTION 96 – UPDATE
As many of you are aware, we recently brought to your attention concerns regarding amendments to Labor Code Section 96 which, in essence, gave jurisdiction to the State Labor Commissioner regarding “claims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during non-working hours away from the employer’s premises.” In the preamble to that section, the Legislature stated that it “finds and declares that allowing any employer to deprive an employee of any constitutionally guaranteed civil liberties, regardless of the rationale offered, it is not in the public interest.”
There has been extensive discussion amongst a variety of individuals regarding the nature and intent of this newly added provision in Labor Code Section 96. Some indicated that it was not intended to effect public employees or peace officers and additionally others argued that a different Labor Code provision (L.C. Section 95(a)) gave the enforcement of this new section to a local personnel board or civil service commission. It was our position that the section would, in fact, impact upon public employees, including peace officers, and that the jurisdiction to hear appeals of these matters now rests with the Labor Commissioner and not with local personnel boards or civil service commissions.
Reasonable minds can always differ when it comes to the law, and, until an appellate court finally rules, there can always be disagreements regarding interpretation of the law. In this particular case, however, a recent communication from the State Labor Commissioner seems to resolve the matter for now. In a letter dated January 12, 2000, to the Personnel Manager of the San Diego Sheriffs Department, the State Labor Commissioner, Marcy V. Saunders and the Chief Counsel to the Labor Commission, Miles E. Locker, clarified their position regarding the issues which have been in dispute.
In their letter they stated that they were responding to an inquiry “as to whether Assembly Bill AB 1689 (which resulted in the amendment to Labor Code Section 96) applies to county employees, and particularly, to the peace officers employed by a county sheriff’s department.” The letter continues that “there is nothing in AB 1689 that would exempt public employees from its provisions.” The authors then set forth other sections of the Labor Code which specifically excluded local government from its provision. The letter continues by stating that “indeed, the legislative history of AB 1689 leaves little doubt that it was intended to cover all employees, both private and public.” It is then pointed out that the legislation was sponsored by the California Professional Firefighters and that “the members of the Legislature understood they were voting to enact legislation that would cover public employees.”
In our previous Client Alert Memo, we brought forth the concern that the amendment to Labor Code Section 96 would now prevent law enforcement agencies from regulating some off-duty conduct by peace officers which, heretofore, had been subject to regulations and which could have resulted in disciplinary action up to and including termination from employment. A classic example involves a peace officer who continuously engages in an off-duty relationship with someone with a known criminal history; that activity is prohibited by virtually all law enforcement agencies. While recognizing that fact, the State Labor Commissioner and her chief counsel stated in their January 12 letter that “while that may be true, AB 1689 vests the Labor Commissioner with authority to investigate and prosecute claims involving certain disciplinary actions resulting from an employee’s lawful off-duty conduct. We will process such claims in accordance with the discrimination complaint investigation procedures set out at Labor Code Section 98.7.” (Emphasis in the original).
It appears, therefore, that the concerns we raised initially were valid as noted by the Labor Commissioner and her chief counsel. The amendment does, in fact, apply to all public employees including peace officers and grants to the Labor Commission the authority to investigate and prosecute claims brought forth by employees regarding disciplinary action resulting from conduct which is prohibited by a department that is otherwise lawful, so long as it occurs off-duty and away from the department’s premises. It has already been brought to our attention that employee representatives and attorneys have begun to raise arguments that departments are prohibited from disciplining their clients for certain types of behaviors covered by this section. It is our belief that departments must proceed in imposing discipline in accordance with its policies since it appears this matter will be subject to judicial review, if not changed by legislative action.
It is also our recommendation that the appropriate entities representing the interests of law enforcement management attempt to secure an amendment to Labor Code Section 96 since it is our belief that it was not the intent of the author, or perhaps even the legislative body itself, to infringe upon law enforcement management’s obligation to insure that our peace officers conduct themselves in the manner consistent with standards and ethics which have regulated law enforcement personnel for decades.
As always, before taking any action regarding legal matters, we urge that you confer with your department’s designated legal advisor. Should you wish to discuss this matter in greater detail, please do not hesitate to contact any of us in the office at (562) 590-8280.
MJMT/sgc
*********
1a-Vol15#02 Website