CLIENT ALERT MEMORANDUM
December 17, 1999
To: All Police Chiefs and Sheriffs
From: Martin J. Mayer and J. Scott Tiedemann
URGENT !!! Re: LABOR CODE SECTION 96
With little fanfare, the Governor recently signed legislation likely to have a significant impact on law enforcement. AB 1689, authored by Assemblyman Richard Floyd, amends Labor Code ’96 to prohibit any employer from demoting, suspending, or discharging any employee who engages in otherwise lawful conduct, Aduring nonworking hours [and] away from the employer=s premises.@
Upon discovering that Labor Code ‘ 96 was amended, we immediately notified the respective legislative lobbyists for the California State Sheriff=s Association, California Police Chiefs Association and California Peace Officers Association. Hopefully, additional legislation will be enacted which will make Labor Code ‘ 96 inapplicable to off-duty conduct of peace officers. The necessity for such an exemption is, quite frankly, significant.
Specifically, Labor Code ‘ 96 authorizes the Labor Commissioner to institute legal proceedings to recover lost wages on behalf of employees who are disciplined or discharged for off-duty conduct which, while it may violate an employer=s rules and regulations, is nevertheless legal. The justification offered for AB 1689 is that, Aallowing any employer to deprive an employee of any constitutionally guaranteed civil liberties, regardless of the rationale offered, is not in the public interest . . . [T]his act is necessary to further the state interest in protecting the civil rights of individual employees who would not otherwise be able to protect themselves.@ [Emphasis added].
Labor Code ‘ 96, which applies to all private and public employers, was not drafted with law enforcement agencies in mind. The apparent impetus for the legislation was the discipline of firefighters for off-duty political activity. Ironically, Labor Code ‘ 96 may have a larger impact on law enforcement than any other type of employment.
/ How does this effect your agency?
The courts have long recognized the need for, and appropriateness of, placing restrictions on the personal conduct of law enforcement officers. AThere are certain professions which impose upon persons attracted to them responsibilities and limitations on freedom of action which do not exist in other callings. Public officials such as . . . policemen . . . fall into such a category.@ Titus v. Civil Service Comm., (1980) 130 Cal.App.3d 357. See also, Thompson v. State Personnel Board, (1988) 201 Cal.App.3d 423 ( AThe occupation of law enforcement carries with it responsibilities and limitations on personal freedom >not imposed on those in other fields.=@) However, Labor Code ‘ 96, as amended by AB1689, appears to substantially limit your ability to regulate the off-duty conduct of your officers.
The biggest impact of Labor Code ‘ 96 is likely to occur in the context of discipline for conduct unbecoming a peace officer. Until now, an officer could be disciplined for conduct such as marching in a Ku Klux Klan rally or posing nude in a magazine, because doing so would bring discredit upon the employing agency. This was true despite the fact that the conduct in question was the type that is constitutionally protected. See, e.g., Connick v. Myers, (1983) 461 U.S. 138. However, as a result of AB 1689, conduct which is otherwise legal that occurs off-duty and off-premises, may not serve as the basis for discipline, regardless of the detrimental impact the conduct has on your agency.
It also appears that Labor Code ‘ 96 precludes restrictions on with whom officers associate, including restrictions on off-duty socializing with felons and inmates. While courts have previously upheld prohibitions on such associations (see, e.g., Arellanes v. Los Angeles County Civil Service Comm., (1995) 41Cal.App.4th 1208; Baily v. National City, (1991) 226 Cal.App.3d 1319; Keeney v. Heath, (7th Cir. 1995) 57 F.3d 579), the conduct itself is legal, indeed is constitutionally protected, and now, under Section 96(k), cannot serve as the basis for discipline.
Labor Code ‘ 96 may also have a relatively slight impact on the ability of agencies to regulate off-duty employment. The issue of off-duty employment is still governed by Government Code ‘ 1126. Nonetheless, Labor Code ‘ 96 at least raises the possibility of litigation where off-duty employment is prohibited based upon the context of the employment (e.g., officers are permitted to work as security guards during athletic events at the local sports arena, but are not permitted to work as security guards at nude dancing establishments) or where the off-duty employment involves the exercise of some constitutional right.
Unless and until Labor Code ‘ 96 is amended by the Legislature, you may be challenged regarding your agency=s rules and regulations affecting off-duty conduct. You also face a greater risk of litigation in cases where you attempt to regulate off-duty conduct or discipline officers for certain conduct which occurs off-duty. While Labor Code ‘ 96 only authorizes the Labor Commissioner to initiate legal proceedings to recover wages, plaintiffs= attorneys have already indicated that Labor Code ‘ 96 will be the basis for public policy lawsuits.
As always, if there are questions or you wish to discuss this issue in greater detail, please do not hesitate to call.
MJM:JST/sgc
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