Message From the Chair

by

Message From the Chair

By Erich Shiners

Erich Shiners is a Board Member at the California Public Employment RelationsBoard, where he participates in deciding appeals, formulating regulations, and overseeing agency operations. Before his appointment to the Board, he represented public agency and nonprofit employers in labor and employment matters. He can be reached at e_shiners@u.pacific.edu.

The coming of Spring means the Section’s 26th Annual Public Sector Conference is just around the corner! I have been fortunate to be involved in planning some aspect of each Public Sector Conference since 2007. (For those who didn’t read my introductory column in the November issue, I’ve practiced almost exclusively in the public sector arena, both with the State and in private practice, for my entire legal career.) I look forward to the Conference every year for two main reasons: (1) it’s the only conference that specifically covers California public sector labor and employment law topics, and (2) it’s an opportunity to see and catch up with professional colleagues in a non-work setting. This year, the conference will be followed the next day by the Section’s full-day annual meeting packed with topics of interest to all labor and employment law attorneys. That means I’ll get to see and catch up with even more colleagues and meet even more new ones!

When I talk to labor and employment attorneys who practice only in the private sector, it sometimes feels like we’re speaking different languages. Those of us who work for government agencies or represent and advise them spend much of our time dealing with issues unique to the public sector. To help you ace your next conversation with a public sector practitioner, here are a few areas where public sector practice differs from representing employers, unions, or employees in the private sector.

Discipline and Discharge. Most private sector employees are "at will," meaning they can be disciplined or fired for any lawful reason. In contrast, most public employees may only be disciplined or fired for cause, and most have a property interest in continued employment that gives them constitutional due process rights. So, when a public employer wants to discipline or fire an employee, it must give the employee notice of the basis for any proposed discipline and an opportunity to respond before discipline is imposed. After the employee is disciplined or fired, the employee has a right to a hearing to challenge the action. In some jurisdictions, those hearings take place before a civil service commission. In others, the hearing is before an arbitrator pursuant to a collective bargaining agreement. Additionally, some groups of public employees have specific protections related to discipline and termination. For example, peace officers and firefighters have additional statutory rights when they are under investigation for misconduct. And the Education Code has a very detailed procedure for disciplining and firing K-12 public school teachers. Disciplining or firing a public employee is complicated, and that’s why the Public Sector Conference usually has a session on the topic. (This year, we have a panel discussing due process in workplace investigations.)

Wage and Hour. Most of the Labor Code’s wage and hour provisions, as well as corresponding provisions in IWC wage orders, don’t apply to public employees. Instead, most public employees fall under the federal Fair Labor Standards Act (FLSA). In my experience, two main issues arise under the FLSA for public sector employees: (1) whether a certain position meets the requirements for an overtime exemption, and (2) application of the special overtime rules for peace officers and firefighters. Other than those, most public sector wage and hour issues are governed by collective bargaining agreements or statutory provisions unique to certain classes of employees.

Retirement Benefits. The Employee Retirement Income Security Act (ERISA) does not apply to public retirement plans. Public employees in California are members of either a statewide retirement system (the California Public Employees’ Retirement System, the California State Teachers Retirement System, or the University of California Retirement Plan) or a local retirement system established by a city or county. Although these systems share commonalities, they also have important differences, such as how benefit amounts are calculated and how much employees must pay toward their benefits. Common issues that arise in this area include whether certain types of compensation may be counted toward pension benefits, whether an employee is entitled to disability retirement, and whether an agency can employ a retiree who is receiving pension benefits from a public retirement system.

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Labor Relations. Unlike the private sector, most California public employees are represented by a labor union. Because government employees are not covered by the federal National Labor Relations Act (NLRA), California has enacted statutes giving public employees the right to organize. Although these statutes are modeled on the NLRA and contain many of the same protections, California laws also contain unique provisions tailored to the particular employees covered. One of the most notable differences is that some of California’s laws allow supervisors and managers to be represented by a union. California also has its own administrative agency, the Public Employment Relations Board (PERB) (where I serve as a Board Member), that adjudicates unfair labor practice charges and handles union elections and other representation matters under some, but not all, of the state labor relations statutes. Although PERB follows a similar process as the NLRB, there are important differences to be aware of if you practice before PERB (some of which will be discussed during the PERB 101 panel at this year’s Public Sector Conference).

Litigation. Litigating a public sector employment case involves many unique nuances. Before suing a public agency for damages, the plaintiff first must present a damages claim to the agency using specific procedures outlined in the Government Code. Certain causes of action, such as wrongful termination in violation of public policy, cannot be brought against a public employer. Public agencies, also, have certain defenses not available to private employers, such as Eleventh Amendment immunity. Additionally, many issues must be litigated (at least initially) before an administrative agency, e.g., unfair labor practices, retirement and disability benefit determinations, discipline and termination, and, for some public employees, layoffs. (This year’s Public Sector Conference features a panel of state administrative law judges discussing what you most need to know for a successful administrative hearing.) Most of these administrative decisions may be challenged in court through a writ proceeding, while some causes of action may be brought directly to court via a petition for a writ of mandate. Because most public employees are covered by a collective bargaining agreement, many disputes end up before an arbitrator for resolution.

For private sector practitioners, I hope this thumbnail sketch of public sector labor and employment practice gives you some insight into what our public sector Section members deal with in their practice. As for public sector folks, I hope to see you on April 23rd at the Marriott City Center in Oakland for another fabulous Public Sector Conference! As always, feel free to email me with any questions or comments about the Section (my email address is next to my photo at the top of this article).

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