Public Sector Case Notes

• Jurisdiction: California,United States
• Author: By J. Scott Tiedemann and Kaylee E. Feick
• Publication year: 2021
• Citation: Vol. 35 No. 3

PUBLIC SECTOR CASE NOTES

By J. Scott Tiedemann and Kaylee E. Feick¹

Scott Tiedemann is the Managing Partner of Liebert Cassidy Whitmore, California's largest public sector labor, employment and education law firm. He is the author of the CPER Pocket Guide to the Firefighters Procedural Bill of Rights, as well as a chapter on that topic in California Public Sector Employment Law. Kaylee Feick is an Associate in Liebert Cassidy Whitmore's Los Angeles office, where she provides representation and counsel to clients in all matters pertaining to labor, employment, and education law. She provides support in litigation claims for discrimination, harassment, retaliation, wage and hour disputes, and other employment matters. Kaylee can be reached at (310) 981-2735 or kfeick@lcwlegal.com.

CITY SANITATION WORKERS ARE NOT IN THE "TRANSPORTATION INDUSTRY" UNDER WAGE ORDER 9

Miles v. City of Los Angeles, 56 Cal. App. 5th 728 (2020)

The City of Los Angeles employed wastewater collection workers to remove city debris and storm water and transport them to collection and treatment facilities. Drivers of the trucks must hold a commercial driver's license in order to operate trucks classified as commercial vehicles. The work involved substantial driving each day of about 100 miles to ninety different work and disposal sites.

Three wastewater collection crew members sued the city on behalf of themselves and all other wastewater employees, alleging the city denied them years of meal and rest breaks in violation of California Labor Code sections 226.7 and 512, as well as Wage Order 9. The employees alleged the city restricted their meal and rest breaks by requiring them to "remain on-call at all times," to refrain from "sleeping on the job," "returning to their yard," "leaving the work locations," using city "vehicles for personal business, including traveling to lunch breaks," "congregating" with other employees, and "leaving their work vehicles" during their shifts. In general, Wage Order 9 explicitly requires public entities to provide meal and rest breaks to commercial drivers in the transportation industry.

Years later, the city moved to dismiss the employees' Wage Order 9 claims, arguing the regulation did not apply because they did not work in the transportation industry. Alternatively, the city asserted that Wage Order 9 applied only to those wastewater collection employees permitted to drive the city's commercial vehicles. The trial court concluded that Wage Order 9 applied only to workers in the transportation industry, and that the sanitation division's primary purpose was to maintain the city's sanitary and storm sewer systems. Noting that any driving performed was incidental to that primary objective, the trial court entered judgment for the city and denied the employees' new federal claims.

On appeal, the court affirmed. The appellate court reasoned that the main purpose of the business, and not the job duties of the employee, determines which wage order applies. The court relied on the language of Wage Order 9, which states that a business whose purpose is transportation is considered to be in the transportation industry. To conclude that the incidental activities the wastewater employees performed involved transportation "would read the word 'purpose' right out of the order." Because the purpose of the wastewater division was to clean city sewers, the appellate court affirmed the trial court's judgment for the city.

PURGE OF NEGATIVE PERSONNEL RECORDS AFTER ONE YEAR VIOLATED THE PUBLIC POLICY SUPPORTING THE STATE'S MERIT SYSTEM

Dep't of Human Res. v. Int'l Union of Operating Eng'rs, 58 Cal. App. 5th 861 (2020)

The California Department of Human Resources entered into a memorandum of understanding (MOU) with the International Union of Operating Engineers (union) regarding terms and conditions of employment for state employees classified as bargaining unit 12. MOU, Article 16.7(G) stated that "materials of a negative nature" placed in an employee's personnel file shall, at the request of the employee, "be purged . . . after one year." This provision did not apply to "formal adverse...