VERNON v. STATE OF CALIFORNIA, 116 Cal. App. 47th 114; 10 Cal. Rpt. 3d 121

Harry K. Vernon, an African-American male, had been employed as a firefighter by the City of Berkeley since 1978 and was affected with a chronic, hereditary dermatological disorder called psuedofolliculitis barbae, which affects African-American males, causing facial hairs to curl back into the facial skin. Treatment of the disorder requires a cessation of shaving, to avoid the pain and disfigurement caused by the condition. Upon the recommendation of the attending physician selected by Berkeley, Vernon wore a short beard during the performance of his employment.

Vernon and other firefighters were often required to wear a respirator known as a Self-Contained Breathing Apparatus (SCBA) while fighting fires. Neither Vernon or any other employee in the Berkeley Fire Department experienced any incident of a SCBA leaking due to a firefighter's visible facial hair, and when tested with a SCBA, Vernon met or exceeded the performance standards for respirator leak tests.

Between 1984 and 1999, Berkeley permitted Vernon and other firefighters to wear facial hair without incident or adverse consequence while actively engaged in fire suppression duties. In October of 1999, Berkeley implemented a new Respiratory Protection Policy that prohibited any person who had visible facial hair from taking a SCBA mask fit test. The effect of the policy was to preclude any employee with facial hair from working in fire suppression. The policy was necessitated by FED-OSJHA and Cal-OSHA regulations enacted in 1997 which specifically prohibit the use or testing of SCBA respirators by employees with visible facial hair.

Berkeley requested and was denied a variance. Berkeley removed Vernon from his firefighter position in fire suppression and terminated him. Vernon sued the State of California for employment discrimination under Gov. Code § 12940, and violation of his civil rights under 42 U.S.C. §§ 1981, 1983. The trial court sustained the State's demurrer without leave to amend on grounds that the State was neither an employer of Vernon nor an aider and abettor in any discriminatory employment practice.

The California Court of Appeal, First Appellate District, affirmed the trial courts holdings concluding that the State was not subjected to liability by Vernon.

The Appellate Court dismissed Vernon's argument that the State had "throughly dictated the City's employment policies" through the adoption of mandatory employment regulations and the refusal to grant an exemption to his direct employer, and that the State was "liable under the FEHA not only as an employer, but also under section 12940, subdivision (i), as an aider and abettor of the discrimination.

The court pointed out that the FEHA predicates potential "liability on the status of the defendant as an 'employer' (GC § 12926)." The court noted that Vernon was directly employed for over 20 years, solely by the City of Berkeley, with no direct interference or participation by the State in the employment relationship. The State also had no apparent authority to, or discretion to, discipline, promote, transfer, or terminate Vernon. The court found nothing in the allegation or record indicating that Vernon was covered by personnel policies that specifically govern State employees, nor that the State set Vernon's work schedule, determined the specific nature of the daily work he performed, or supervised the execution of his employment duties.

The court concluded that it was the City of Berkeley which made the final decision to implement a new respiratory protection policy that prohibited employees with visible facial hair from wearing respirators or taking a "mask fit test." The ultimate control over the means and manner of Vernon's employment was exercised separately and exclusively by the City of Berkeley Fire Department, not the State. To find that the State was Vernon's employer within the meaning of FEHA, merely by virtue of enactment of regulations that affect the conditions of employment, would effectively make the State the potential employer of any person employed by any business that must comply with state law. The necessity of compliance by an employee's direct employer with State regulations is not enough to create the requisite employment relationship with the State.

How this may affect your agency? Although employers must comply with State regulatory enactments the implementation policies and procedures are the employers responsibility.

LEEVER v. CITY OF CARSON CITY, 340 F. 3d 1014

Leaver was assigned to "canine" duty and was required to care for and kennel her assigned dog, "Scout," during her off-duty hours. Leever claimed that, on average, she spent 28 off-duty hours per week caring for and training Scout. The City knew and admitted that caring for, and training, Scout was compensable work under the FLSA. Rather than pay overtime wages, however, the City agreed to compensate Leever for her overtime work by way of a flat-fee salary differential.

The City and the Carson City Sheriff's Protective Association, the exclusive bargaining agent for the Sheriffs deputies, negotiated a salary differential of $60.00 per bi-weekly pay period as compensation for the off-duty hours spent by canine officers working with their dogs, which was incorporated into the Collective Bargaining Agreement.

The City did not ask Leever how much time she spent caring for Scout, or attempt on its own to approximate the number of off-duty hours worked by canine officers, when arriving at the salary differential. Rather, the City intended to establish a "flat-rate enhancement" for canine officers "in recognition of their jobs." In determining the amount of the salary differential, the City relied on figures it obtained from an informal survey of the compensation other Nevada law enforcement agencies provided to their canine officers.

Leever sued the City, alleging that she was entitled to over-time pay under FLSA for her off-duty hours spent working with Scout. The City moved for summary judgment on the ground that it was exempt from the overtime provisions of the FLSA because it has a "reasonable agreement" under 29 C.F.R. § 785.23. The district court granted the City's motion. Although the district court recognized that the salary differential was the equivalent of only one hour's pay per week, which was "insufficient for the tasks involved" in caring for and training Scout, if found that the agreement was reasonable as a matter of law primarily because it was negotiated at arms-length between the City and the Union.

The United States Court of Appeals, Ninth Circuit reversed and remanded.

The Court stated that it recognized that "[r]ather than providing employers with an exception to the FLSA over-time pay requirements, § 785.23 simply offers a methodology for calculating how many hours the employees actually worked within the meaning of the FLSA." The Court pointed out that the City has the burden of proving, "plainly and unmistakably," that (1) there was an agreement to compensate Leever for her over-time work caring for Scout, and (2) the agreement was "reasonable," having taken into account "all of the pertinent facts." Here, the City failed to show that its agreement with Leever was "unreasonable" as a matter of law, and although the Union was authorized to represent her, it could not waive rights guaranteed to her under the FLSA (Barrentine v. Arkansas-Best Freight Systems, Inc., 450 U.S. 728, 740 (1981).

The Court pointed out there was no evidence that either the City or the Union made any inquiry into the number of hours spent, or reasonably required to be spent, by Leever or other canine officers on canine care when negotiating the "canine officer" provisions in the CBA. In fact, the City admitted that it did not know how much time Leever spent caring for Scout during her off-duty hours. Rather, when determining the amount of the salary differential for canine officers, the City relied exclusively on an asserted "comprehensive parity study," which summarized the pay provided by other law enforcement agencies to their canine officers. The "study," however, consisted of nothing more then handwritten notes on a desk calendar. Because no author was identified, the sources of information were not made clear, and no dates were indicated. Nothing supported that the survey was based on reliable research methods or knowledgeable and accurate sources. The City made no showing that the canine officers employed by the agencies surveyed had hours or responsibilities comparable to Leever's, what non-monetary benefits they received, or that their over-time compensation agreements were "reasonable" for the purpose of § 785.23.

The Court stated that the salary differential in Leever's contract bore no resemblance to the compensation to which she would be entitled in overtime pay based on the number of hours she claimed she actually worked. The Court additionally noted that under Department of Labor regulations, employers are required to take into account "all the pertinent facts" when forming an agreement pursuant to § 785.23, and the number of hours actually worked is clearly "pertinent" to the question of how much compensation ought to be paid for that work.

The Court concluded that although the City was not required to account for the exact number of hours worked by its canine officers each day, it was required, at minimum, to make a reasonable investigation of the number of off-duty hours its canine officers generally spent working with their doge each pay period, and to take that figure into account when negotiating the agreement.

How does this affect your agency? It is the employer's responsibility to use reliable methodology before concluding what flat-rate compensation is to be offered personnel assigned to canine duty. This is also applicable to special assigned personnel who must use off-duty time for activities directly related to their assigned duties. It should be kept in mind that FLSA provisions are individual and cannot be negotiated away by the Union.

Officers May Enter Residence Without Warrant Under Emergency Aid Exception

MARTIN v. CITY OF OCEANSIDE, et al., 205 F. Supp. 1142

Dr. Ronald Trotman phoned Oceanside PD from Portland, Oregon with an urgent request to check the safety of his daughter, Traci Trotman, whom he had not been able to reach for several days. Trotman said he was "extremely concerned" about Traci's welfare, "and felt she could be in trouble." Dr. Trotman also gave an accurate description of Traci's car.

Acting on the "check the welfare" request, Officer Kelly arrived at Martin's home, where Traci was reportedly living as a roommate, Kelly knocked and rang the doorbell, but no one answered. Unbeknownst to Kelly, Martin and Traci were inside the home, but did not respond to his implicit request for an audience. Although there were aware that a uniformed police officer was at the door they mistakenly assumed that Martin's ex-wife had called the police and made a false accusation, and thus irresponsibly decided to ignore the officer's attempt to speak with them.

Observing Traci's car in the driveway, Kelly had dispatch call her phone number, which Traci and Martin ignored. While waiting for backup, Kelly checked with the neighbor who informed him she had seen a woman at the residence three days prior, and a man there the day prior. The woman added that because the cars were in the driveway, they should be at home.

When Officer Ekeland arrived, both entered the house through the garage with flashlights on and guns drawn. The officers quickly checked the downstairs, found no one, and then proceeded up the stairway to the second floor. When they got to the top of the stairs, Traci exited the bedroom at the other end of the hallway. The officers requested that Traci identify herself. After a short argument about the officers not having a warrant, she produced identification. The officers confirmed that she was safe, and left the house shortly thereafter.

Martin sued the City and officers under 42 U.S.C. 1983, alleging that the officers violated his Fourth Amendment rights when they entered Martin's home, without a warrant, in order to check on the welfare of an occupant. The district court determined that the officers were entitled to qualify immunity, and granted their motion for summary adjudication. The court also granted the City's motion, finding that the officers had not committed a constitutional violation.

The United States Court of Appeals, Ninth Circuit, affirmed, concluding that based on the facts alleged by Martin the "emergency aid" exception to the warrant requirement was applicable, and thus his constitutional rights were not violated.

The Ninth Circuit pointed out that the "emergency aid" exception had three prongs: (1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property; (2) The search must not be primarily motivated by intent to arrest and seize evidence; (3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.

The Ninth Circuit, in finding that the officer's entry into the home was reasonable, opined that Martin had ample opportunity to lean what the officer's purpose was, but he ignored it. "He and he alone was responsible for the officers' entry after he chose to play hide-and-go-seek with the authorities. His inexcusable behavior only added justification to believe that Traci's father's fears may have been well-founded. Had Martin simply responded, as a normal citizen, to the knock on his door, none of the events about which he complains would have happened. He is the "victim," not the officers, but of his own faulty judgment and behavior. Moreover, because he left the area and went upstairs and into a bedroom to make a phone call, his allegation that he did not hear the police announce themselves is insufficient to create a genuine issue of disputed fact as to whether they did so, as they aver they did."

How does this affec

t your agency? "Check the welfare" requests are frequently made and agencies should make sure that sufficient information is obtained from the requestor to allow the responding officer to make an informed judgment, based on not only the information dispatched but also the facts encountered upon arrival, to insure the situation meets the Court's three prong test should entry into a structure be required. Reports submitted in response to these types of requests should also address each prong of the test.

THE PEOPLE v. CONLEY, 116 Cal. App. 4th 566; 10 Cal. Rpt. 3d. 477

Christopher Conley was a Deputy Sheriff employed by the County of San Bernardino. Conley was asleep in the open bed of his truck when Mr. Jiminez approached and woke him by rocking the truck. After an exchange of words, Conley struck Jiminez and, as a result, Conley's employment was terminated.

A jury convicted Conley of one county of battery (§ 242/243 (a)) and the court granted him two years' probation. At sentencing, Conley petitioned under PC 12021 (c)(2) for an order relieving him of the 10-year firearm prohibition prescribed by PC §12021 (c)(1), and submitted evidence that he had been a good deputy sheriff prior to the incident and wished to return to a law enforcement career. The trial court granted the petition and The People appealed.

The California Court of Appeal, Fourth Appellate District, reversed the trial courts order granting Conley's petition.

The Court of Appeal pointed out that he Legislature carved a narrow avenue of relief from the 10-year ban by providing "the [10-year] prohibition in [subdivision (c)(1) may be reduced, eliminated, or conditioned as provided in {subdivision (c)(2)]." The Court went on to point out that Conley was convicted of violating section 243, thereby invoking the 10-year prohibition under section 12021 (c)(1). The plain language of subdivision (c)(2), the only legislatively-prescribed exemption available to Conley, permits certain peace officers who are "subject to the prohibition imposed by this subdivision because of a conviction under Section 273.5, 273.6, or 646.9" to seek the relief permitted under subdivision (c)(2). Conley was not subject to the prohibition based on a conviction of violating section 273.5, 273.6, or 646.9, and therefore under the plain language of the stature does not qualify for relief.

How does this affect your agency? This case stresses the need for offices to fully understand that there is no "blanket" relief that can be sought, to protect their employment as a peace officer, if they are involved in and subsequently convicted of any offense listed in PC § 12021(c)(1).