Principles for Public Safety Employment

A LL A BOUT THE A UTHORS

With offices in Los Angeles, San Francisco, Fresno, San Diego and Sacramento, the law firm of Liebert Cassidy Whitmore represents public agency management in all aspects of labor and employment law, labor relations, and education law. The Firm's representation of cities, counties, special districts, transit authorities, school districts, and colleges throughout California, encompasses all phases of counseling and representational services in negotiations, arbitrations, fact findings, and administrative proceedings before local, state and federal boards and commissions, including the Public Employment Relations Board, Fair Employment and Housing Commission, Equal Employment Opportunity Commission, Department of Labor and the Office for Civil Rights. The Firm regularly handles a wide variety of labor and employment litigation, from the inception of complaints through trial and appeal, in state and federal courts. The Firm places a unique emphasis on preventive measures to ensure compliance with the law and to avoid costly litigation. For more than forty years, the Firm has successfully developed and presented training workshops and speeches on all aspects of employment relations for numerous public agencies and state and federal public sector coalitions, including the National League of Cities, National Association of Counties, International Personnel Management Association, United States Government Finance Officers Association, National Employment Law Institute, National Public Employer Labor Relations Association, California Public Employer Labor Relations Association, County Couns els’ Association of California, League of California Cities, California State Association of Counties, Public Agency Risk Management Authority, the Association of California School Administrators, the California School Boards Association, and the California Association of Independent Schools.

This workbook contains generalized legal information as it existed at the time the workbook was prepared. Changes in the law occur on an on going basis. For these reasons, the legal information cited in this workbook should not be acted upon in any particular situation without professional advice.

Copyright © 2022 Liebert Cassidy Whitmore. All rights reserved. No part of this publication may be reproduced, stored, transmitted, or disseminated in any form or by any means without prior written permission from Liebert Cassidy Whitmore.

T ABLE OF C ONTENTS

8-22 S

S ECTION 1 Introduction ..................................................................................................................................................................8 S ECTION 2 Hiring Practices .............................................................................................................................................................8 A. Peace Officer Background Investigations .......................................................................................................8 1. Overview..................................................................................................................................................8 2. Responding to Requests for Information from Other Public Safety Agencies.......................................12 B. Fire Personnel Background Investigations ....................................................................................................13 C. Legal Restrictions on Background Investigations Imposed by the Fair Credit Reporting Act and/or the California Investigative Consumer Reporting Agencies Act ........................................................................13 D. Legal Restrictions on Access to Medical Information in the Hiring Process ................................................15 1. Overview................................................................................................................................................15 2. Pre-Conditional Offer Inquiries and Examinations ................................................................................16 3. What is a “Medical Examination”? ........................................................................................................18 4. Post Conditional Offer Inquiries and Examinations...............................................................................21 5. Denial of Employment Based on Results of Medical Examination .......................................................22 E. Legal Restrictions on Access to Social Media Information in the Hiring Process ........................................24 S ECTION 3 Administrative Investigations ......................................................................................................................................25 A. Overview of the POBR and the FBOR..........................................................................................................25 1. The POBR..............................................................................................................................................25 2. The FBOR..............................................................................................................................................30 B. Who is Entitled to Protection Under the POBR and FBOR? ........................................................................34 1. Employees Covered Under the POBR ...................................................................................................34 2. Employees Covered Under the FBOR ...................................................................................................37 C. Unique Issues Regarding the Application of the FBOR................................................................................38 1. Events and Circumstances Involving the Performance of Official Duties .............................................38 2. Investigations and Discipline by Licensing/Certifying Agencies ..........................................................39 D. Investigations of Emergency Medical Technicians .......................................................................................39 E. Issues to Consider When Beginning an Investigation for Administrative Misconduct .................................41 1. Deciding When to Start an Investigation ...............................................................................................41 2. When Should a Public Safety Employee Be Advised that He/She is the Subject of an Administrative Investigation? .........................................................................................................................................43 3. Subject Employee’s Status While Under Investigation..........................................................................43 4. Selecting an Investigator ........................................................................................................................43 5. General Format for Conducting an Investigation ...................................................................................45 6. Investigations by Outside Agencies .......................................................................................................46 F. Interrogation of the Subject Employee..........................................................................................................46 1. When is Contact with an Employee Considered an “Interrogation”? ....................................................47 2. Pre-Interrogation Discovery Rights........................................................................................................49 3. Timing of the Interrogation ....................................................................................................................51 4. The Right to Representation...................................................................................................................51 5. Who May Be Present During the Interrogation on Behalf of the Department?......................................53 6. What Must an Employee Be Told About the Nature of the Investigation Prior to Interrogation? .........53 7. Recording of Interrogation .....................................................................................................................54 8. Offensive Language/Threats ..................................................................................................................54 9. Restrictions on Employees’ Discussion/Disclosure Concerning the Investigation ................................55 10. Disclosure of Information/Materials ......................................................................................................55 G. Special Considerations When Criminal Charges are Possible.......................................................................56

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1. Responding to the Arrest of a Public Safety Employee .........................................................................56 2. Advisement of Constitutional Rights Prior to Interrogation ..................................................................57 3. Immunity for Firefighters.......................................................................................................................58 H. Privacy Restrictions on Investigations ..........................................................................................................59 1. Workplace Searches ...............................................................................................................................60 2. Financial Disclosure...............................................................................................................................61 3. Lie Detector Tests ..................................................................................................................................61 4. Political Activity ....................................................................................................................................61 I. The Investigation Report ...............................................................................................................................61 1. Contents of the Report ...........................................................................................................................61 2. Attachments to the Report......................................................................................................................62 J. Time Limitations for Completion of Investigation and Notification to Public Safety Employee of Proposed Disciplinary Action .......................................................................................................................................62 1. The General Rule: The POBR and FBOR Have a One Year Statute of Limitations..............................62 2. The Exceptions.......................................................................................................................................64 3. Specificity of the Notice of Proposed Discipline ...................................................................................66 K. Public Safety Employees’ Rights to Investigation Materials ........................................................................66 L. Remedies for POBR or FBOR Violations.....................................................................................................67 S ECTION 4 Imposition of Discipline ..............................................................................................................................................68 A. Grounds for Discipline ..................................................................................................................................68 1. Checklist of Sources for Disciplinary Grounds......................................................................................68 2. “Good Cause” Checklist ........................................................................................................................69 3. Case Studies ...........................................................................................................................................70 4. Determining the Severity of Discipline..................................................................................................80 B. Documents Imposing Discipline ...................................................................................................................81 1. Notice of Intent ......................................................................................................................................81 2. Time Limitations for Providing the Public Safety Employee with Final Notice of Discipline ..............82 3. Final Notice of Discipline ......................................................................................................................83 4. If the Skelly Officer Decides to Sustain the Proposed Discipline...........................................................84 5. If the Skelly Officer Decides to Modify the Proposed Discipline ..........................................................84 6. If the Skelly Officer Decides to Reject the Proposed Discipline ............................................................86 S ECTION 5 Administrative Appeals ...............................................................................................................................................86 A. When is a Public Safety Employee Entitled to an Administrative Appeal under the POBR and FBOR?.....86 1. After a punitive action ............................................................................................................................86 2. What Constitutes a Punitive Action Giving Rise to an Administrative Appeal? ...................................87 a. Actions that Are Considered Punitive ....................................................................................................87 b. Actions that are Not Considered Punitive ..............................................................................................88 B. What is the Procedural Scope of an Administrative Appeal?........................................................................89 1. Administrative Appeals Under the POBR..............................................................................................89 a. Review of Discipline..............................................................................................................................89 b. Authority to Hear Pitchess Motions .......................................................................................................91 2. Administrative Appeals Under the FBOR..............................................................................................91 S ECTION 6 Fitness for Duty Examinations ....................................................................................................................................97 A. When is a Fitness for Duty Examination Allowed (or Required)?................................................................97 1. Firefighters .............................................................................................................................................98 2. Peace Officers ........................................................................................................................................98 B. What Information is an Employer Entitled to Receive Following a Fitness for Duty Examination? ............99

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C. The Health Insurance Portability and Accountability Act of 1996................................................................99 D. What Information Can the Employer Give a Doctor? ...................................................................................99 E. Can the Doctor Have an Employee’s Prior Medical Records?....................................................................100 F. What Happens if a Public Safety Employee is Found Not Fit for Duty? ....................................................100 S ECTION 7 Labor Code Section 4850 and Disability Retirement ................................................................................................101 A. Overview of Labor Code Section 4850 Benefits .........................................................................................101 1. Employees Who are Eligible for 4850 Benefits ...................................................................................102 2. Employees Who are Excluded .............................................................................................................103 3. Scope of 4850 Benefits ........................................................................................................................103 B. Workers’ Compensation Benefits for Off-Duty Acts ..................................................................................104 C. Separation from Service for Disability is Prohibited if the Employee Qualifies for a Disability Retirement .....................................................................................................................................................................104 D. Retirement in Lieu of Termination and CCW Permits ................................................................................105 E. Applying for a Disability Retirement for a Public Safety Employee ..........................................................105 1. Forced Retirement: When the Employee Does Not Consent ...............................................................105 2. Determination of Eligibility for Disability Retirement May Be Made by a “Duly Authorized Official” of the Agency .......................................................................................................................................108 3. Disability Retirement May Not Be Used In Place of Disciplinary Termination ..................................108 4. A Public Safety Employee May Appeal an Agency’s Determination of Disability.............................109 F. When A Disabled Employee Qualifies for a Disability Retirement and a Service Retirement ...................109 G. Advanced Disability Payments ...................................................................................................................109 1. Reimbursement for Advanced Disability Payments.............................................................................109 2. Effect of Sick Leave Policy..................................................................................................................109 H. Steps to Limit Payment of 4850 Benefits ....................................................................................................109 S ECTION 8 Personnel Files...........................................................................................................................................................110 A. Recordkeeping Requirements for Public Safety Employees’ Personnel Records .......................................110 1. Adverse Comments ..............................................................................................................................110 2. Public Safety Employees Have the Right to Review Their Personnel Records ...................................112 3. Requests to Correct “Inaccurate Information” .....................................................................................113 4. Retention of Personnel Records ...........................................................................................................113 B. Disclosure of Public Safety Employees’ Personnel Files............................................................................113 1. California Public Records Act..............................................................................................................113 2. Union Access to Personnel File Information........................................................................................117 C. Special Considerations for Peace Officer Personnel Files ..........................................................................118 1. Overview of California Statutes Governing Peace Officer Personnel Records....................................118 2. Rules Regulating the Disclosure and/or Discovery of Peace Officer Personnel Records ....................121 3. “Pitchess” Motions to Discover Peace Officer Personnel Records ......................................................125 4. The Brady Rule ....................................................................................................................................129 5. The Impact of Brady on Your Decision-Making .................................................................................130 6. Tips for Managing Peace Officer Personnel Files................................................................................131 D. Reporting to POST ......................................................................................................................................131 S ECTION 9 Conclusion ..............................................................................................................................................................133

E NDNOTES .................................................................................................................................................................134

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Section 1 I NTRODUCTION Regular areas of concern for public safety agencies include:

 Hiring practices, including background investigations and pre-employment inquiries;  The interplay between disciplinary investigations, disciplinary actions and the rights of public safety employees under the Public Safety Officers Procedural Bill of Rights Act and the Firefighters Procedural Bill of Rights Act;  Fitness for duty examinations;  Labor Code section 4850 and its interplay with the disability discrimination and disability retirement laws; and  Handling of public safety employees’ personnel records.

This workbook is not designed as a comprehensive legal guide on the above topics. Rather, the workbook focuses on new issues as well as troublesome issues which arise repeatedly in the context of public safety employment and identifies options for addressing those issues.

Section 2 H IRING P RACTICES

A. P EACE O FFICER B ACKGROUND I NVESTIGATIONS

1. O VERVIEW Penal Code Section 13651 requires law enforcement agencies to review the job description of peace officers and make changes that emphasize community-based policing, familiarization between law enforcement and community residents, and collaborative problem solving, while de-emphasizing the paramilitary aspects of the job. 1 When hiring peace officers, the law mandates that a thorough background investigation be performed. Government Code section 1031 mandates that each class of public officers or employees declared by law to be peace officers shall meet all of the following minimum standards:  Be fingerprinted for purposes of search of local, state, and national fingerprint files to disclose any criminal record.  Be of good moral character, as determined by a thorough background investigation.

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 Be found to be free from any physical, emotional, or mental condition which might adversely affect the exercise of the powers of a peace officer. Physical condition shall be evaluated by a licensed physician and surgeon. Emotional and mental condition shall be evaluated by a licensed physician and surgeon or by a licensed psychologist who has a doctoral degree in psychology and at least five years of postgraduate experience in the diagnosis and treatment of emotional and mental disorders.

Effective January 1, 2021, Government Code section 1031 was amended to require that the mental evaluation also include whether the candidate has bias against race or ethnicity, gender, nationality, religion, disability, or sexual orientation. 2 This amendment was inadvertently repealed by passage of AB 1096, which removed the word “alien” from all California statutes, and which used the pre-amendment language when making this revision to Government Code section 1031. AB 1096 did not repeal section 1031.3, requiring that POST promulgate regulations implementing the bias-screening requirement, and it is expected that AB 2229, which would re-enact the bias screening requirement, will pass the Legislature and be signed by the Governor. The California Commission on Peace Officers Standards and Training (“POST”) has instituted regulations in furtherance of the requirements imposed by Government Code section 1031. With regard to peace officer background investigations, the California Code of Regulations 3 provides that: Every peace officer, other than reserve peace officers, employed by a department shall be selected in conformance with the following requirements:  Felony Conviction. Government Code section 1029, subdivision (a)(1). Employment of convicted felons is prohibited.

 Fingerprint and Criminal History Check. Government Code sections 1030 and 1031(c). Fingerprinting and search of local, state, and national files to reveal any criminal records.  Citizenship. Government Code sections 1031, subdivision (a) and 1031.5. Citizenship requirements for peace officers. Government Code section 24103. Citizenship requirements for deputy sheriffs and deputy marshals. Vehicle Code section 2267. Citizenship requirements for California Highway Patrol officers.  Age. Government Code section 1031, subdivision (b). Minimum age of 18 years for peace officer employment.  Moral Character. Government Code section 1031, subdivision (d). Good moral character as determined by a thorough background investigation. The background investigation shall be conducted as prescribed in the P.O.S.T. Administrative Manual, or PAM, section C-1. The background investigation shall be completed on or prior to the appointment date.

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 Education. Government Code section 1031, subdivision (e). United States high school graduation, passage of the General Education Development Test (GED) or attainment of a two-year or four-year degree from a college or university accredited by the Western Association of Colleges and Universities.  Medical and Psychological Suitability Examinations. Government Code section 1031, subdivision (f). Examination of physical, emotional, and mental conditions. The examinations shall be conducted as prescribed in the PAM, section C-2.  Interview. Be personally interviewed prior to employment by the department head or a representative(s) to determine the person’s suitability for law enforcement service, which includes, but is not limited to, the person’s experience, problem solving ability, communication skills, interest/motivation, interpersonal skills, and community involvement/awareness. This regulation may be satisfied by an employee of the department participating as a member of the person’s oral interview panel.  Reading and Writing Ability. Be able to read and write at the levels necessary to perform the job of a peace officer as determined by the use of the POST Entry-Level Law Enforcement Test Battery or other job-related tests of reading and writing ability. 4 tribunal for committing an offense that would have been a felony if committed in California, whether or not the person received a criminal conviction for the offense.  An individual convicted of a felony, including by a guilty plea or a plea of nolo contendere, will remain disqualified even if a later court sets aside, vacates, withdraws, expunges, or otherwise reverses the conviction, unless the court specifically finds the person to be factually innocent of the crime for which they were convicted.  An individual convicted of any one of several specific enumerated crimes of dishonesty, or conduct in another jurisdiction that would have constituted one of those crimes if committed in California. The listed crimes include, but are not limited to, bribery, corruption, perjury, falsifying evidence, witness tampering, forging or falsifying government records, tampering with a jury or the jury selection process. The pertinent sections of the POST Administrative Manual, referenced in the above regulation as “PAM,” can be found at the POST website (www.post.ca.gov). Notably, Senate Bill (SB) 2 provides additional grounds for a candidate’s disqualification. Effective January 1, 2022, Government Code section 1029 is amended to disqualify:  An individual discharged from the military after adjudication by a military

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 An individual adjudicated to have committed acts that would constitute one of those enumerated crimes in an administrative, military, or civil judicial process that requires at least “clear and convincing evidence.”  An individual whose POST certificate was revoked (or denied) or who voluntarily surrendered the certification.  An individual whose name appears in the National Decertification Index or any similar database designated by the federal government and the individual’s certification as a law enforcement officer was revoked for misconduct, or if the individual engaged in serious misconduct that – had they been employed in California – would have resulted in POST revoking their certificate. 5

SB 2 also amended section 1029 to require the California Department of Justice to supply POST with any disqualifying felony or misdemeanor conviction data for all persons known to be current or former peace officers. 6 POST regulations regarding peace officer and public safety dispatcher selection standards specify what criteria must be satisfied when: 1) a reserve officer becomes a regular officer, and 2) an officer whose employment is terminated successfully appeals the termination and is reinstated. Local agencies/departments may set standards for the selection process that exceed the minimum requirements imposed by law. Peace officer applicants may be subjected to additional evaluations and/or assessments required by individual law enforcement agencies. These additional requirements may include physical ability testing, drug screening, a polygraph examination or voice stress analysis, and/or a pre-offer personality test. 7 POST has considered the advantages of adding personality testing to the regimen of pre-offer tests that should be administered to applicants for entry-level peace officer employment. Scores on pre-employment personality tests – particularly those measuring conscientiousness, emotional stability, agreeableness, and integrity – may aid in the prediction of on the job performance. Unlike psychological examinations, properly administered personality tests are not considered medical examinations and may lawfully be administered before extending a conditional offer of employment. POST has published a resource guide which provides law enforcement agencies with the information necessary to weigh the costs and benefits of adding a personality test to the pre offer phase of the peace officer hiring process. This resource guide can be found at: https://post.ca.gov/Portals/0/Publications/Peace_Officer_Pre-Offer_Personality_Testing Resource_Guide.pdf?ver=2019-07-12-131131-617 A full copy of the regulations regarding peace officer and public safety dispatcher selection standards can be found at: https://govt.westlaw.com/calregs/Browse/Home/California/CaliforniaCodeofRegulations?guid=I DF540AC0D45111DEB97CF67CD0B99467&originationContext=documenttoc&transitionType =Default&contextData=(sc.Default).

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Additionally, if the employee is required to carry a firearm, s/he must be able to do so without violating the federal Gun Control Act of 1968, as amended in 1996. 8 This federal law prohibits possession of a firearm or ammunition by a person who has been convicted of a felony, or of a “misdemeanor crime of domestic violence.” The Gun Control Act defines a “misdemeanor crime of domestic violence” as “any conviction which “(i) is a misdemeanor under Federal, State, or Tribal law; and (ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by . . . a person with whom the person shares a child in common, [or] by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian.” In Shirey v. Los Angeles County Civil Service Commission , 9 the Court of Appeal held that a misdemeanor battery conviction under Penal Code section 242 did not qualify as a “misdemeanor crime of domestic violence” under the federal Gun Control Act, and therefore did not disqualify a deputy sheriff from carrying a firearm, where there was no evidence in the record that the touching supporting the misdemeanor conviction was more than de minimis. The court found that Penal Code section 242’s definition that “battery is any willful use of force or violence upon the person of another” was broader than the definition in the Gun Control Act, in that some “use or force or violence” such as the one committed by the deputy at issue was less than a “use or attempted use of physical force.” The Court of Appeal in Hernandez v. State Personnel Board held that a correctional sergeant’s partner in a dating relationship of five or six months in length in which the couple spent four or five nights per week together was “similarly situated to a spouse,” making the sergeant’s nolo contendere plea to misdemeanor infliction of bodily injury on a spouse or cohabitant charge a crime of domestic violence under the Gun Control Act, disqualifying the sergeant from carrying a firearm and justifying his termination. 10 2. R ESPONDING TO R EQUESTS FOR I NFORMATION FROM O THER P UBLIC S AFETY A GENCIES Pursuant to Penal Code section 832.12, subdivision (b), any agency seeking to make a lateral hire of a peace officer is required to request and review that officer’s file from any agency that has previously employed that officer. Government Code section 1031.1 mandates that employers provide information about an applicant for employment with a law enforcement agency, whether or not for a peace officer position, to a prospective employer’s background investigator. But this requirement is only triggered if a notarized authorization releasing the former employer from liability is executed by the applicant and presented by an authorized representative of the prospective employer. 11 The notarized authorization provides a former employer an absolute defense to a legal action based on libel, slander or similar tort claims. 12 Employment information which is disclosed by an employer to an initial requesting law enforcement agency is confidential. However, the initial requesting law enforcement agency may disclose this information to another authorized law enforcement agency that is also conducting a background investigation, whether for a peace officer or non-sworn employee. 13

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Employers may charge reasonable fees to cover actual costs incurred in copying and furnishing documents to law enforcement agencies conducting background investigations of peace officer applicants. 14 B. F IRE P ERSONNEL B ACKGROUND I NVESTIGATIONS In contrast to peace officers, there are no statutes that specifically delineate how background investigations of fire personnel should be conducted. But employers should ensure that the background investigations only seek information that is job-related and consistent with business necessity. Organizations may publish standards and procedures, but they do not have the effect of law and must be tailored to suit the unique needs of the individual agencies applying them. C. L EGAL R ESTRICTIONS ON B ACKGROUND I NVESTIGATIONS I MPOSED BY THE F AIR C REDIT R EPORTING A CT AND / OR THE C ALIFORNIA I NVESTIGATIVE C ONSUMER R EPORTING A GENCIES A CT The federal Fair Credit Reporting Act (“FCRA”) and the California Investigative Consumer Reporting Agencies Act (“ICRAA”) are two consumer protection laws which impact the conduct of background investigations, even in the public safety context. 15 While the scope of the FCRA and ICRAA are not addressed fully in this workbook, these laws place onerous restrictions on background investigations, particularly for investigations conducted by third parties. For example, the FRCA generally precludes the use of the following information in background reports prepared by third parties:  Bankruptcy actions which are older than ten years from the date of the background investigation;  Civil suits, civil judgments, and records of arrest that, from the date of entry, antedate the report by more than seven years or until the governing statute of limitations has expired, whichever is longer;  Paid tax liens which, from date of payment, antedate the report by more than seven years.  Accounts placed for collection or charged to profit and loss which antedate the report by more than seven years.  Any other adverse item of information, other than records of convictions of crimes which antedates the report by more than seven years. 16 Similarly, the ICRAA precludes the use of the following information in background checks performed by third parties:  Bankruptcies that, from the date of adjudication, antedate the report by more than ten years;  Civil suits and satisfied judgments that antedate the background report by more than seven years;

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 Unsatisfied judgments which antedate the report by more than seven years;  Unlawful detainer actions where the defendant was the prevailing party or where the action was resolved by settlement agreement;  Paid tax liens which antedate the report by more than seven years;  Accounts placed for collection or charged to profit and loss that antedate the report by more than seven years;  Records of arrest, indictment, information, misdemeanor complaint, or conviction of a crime that, from the date of disposition, release or parole, antedate the report by more than seven years.  Any other adverse information that antedates the report by more than seven years. 17

With respect to the above referenced restrictions, California law exempts employers from these requirements if the employer is required by a regulatory agency, e.g., POST, to consider such information. 18 However, the efficacy of the ICRAA’s exception is questionable since there is no parallel provision in the FCRA and federal law supersedes state law. In light of the above, an agency may consider performing background investigations in-house rather than hiring a third party. Nonetheless, while the FCRA’s restrictions do not apply to in house background investigations at all, the ICRAA still imposes burdens on background investigations conducted in-house by California employers, including public safety employers. 19 For example, unless an applicant/employee has elected not to receive them, an employer must provide a copy of any public record which is obtained for employment purposes within seven days after receipt of the information, whether the information is received in a written or oral form. 20 Under the ICRAA, a public record includes records which document an arrest, indictment, conviction, civil judicial action, tax lien or outstanding judgment. 21 The election to receive or not to receive any public records is valid only if it is on a form provided by the employer which contains “a box that, if checked by the consumer, permits the consumer to waive his or her right to receive a copy of any public record obtained.…” 22 Labor Code section 1024.5 (a) prohibits an employer or prospective employer from using a consumer credit report for employment purposes unless the position of the person for whom the report is sought is any of the following: (1) a managerial position; (2) a position in the state Department of Justice; (3) a sworn peace officer or other law enforcement position; (4) a position for which the information contained in the report is required by law to be disclosed or obtained; or, in subsections (5) through (8), access to certain types of private information, the employer’s accounts, or cash totaling $10,000 or more.

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If a non-peace officer employee of a public safety agency does not fit into one of the other enumerated categories, a consumer credit report should not be used as part of the pre employment process. If an agency is provided with Criminal Offender Record Information (CORI) data by the California Department of Justice, the DOJ must also provide a copy of the data to the current or prospective employee to whom the information relates. 23 D. L EGAL R ESTRICTIONS ON A CCESS TO M EDICAL I NFORMATION IN THE H IRING P ROCESS 1. O VERVIEW Public safety employees obviously must meet certain physical fitness requirements to perform their jobs effectively. In order to evaluate whether an applicant or employee meets the physical requirements of a job, a public safety employer will need access to confidential medical information of an applicant. While most law enforcement agencies properly rely on the POST Medical Screening Manual for guidance in this area, many departments are unaware that federal and state law restrict the timing of an employer’s acquisition of medical information about the medical conditions and impairments of applicants and employees. To ensure that employers do not improperly consider disabilities when evaluating applicants, both the federal Americans with Disabilities Act (“ADA”) 24 and the California Fair Employment and Housing Act (“FEHA”) 25 restrict an employer’s ability to ask questions about an applicant’s medical condition and/or to require an applicant to undergo a medical examination until after a “conditional offer of employment” has been made. Employers are also restricted from asking questions about disabilities prior to making a conditional offer of employment. 26 These laws apply to most employers, including public safety departments. According to the Equal Employment Opportunity Commission (“EEOC”), a “conditional offer of employment” is a “real” job offer that: 1) is made after the employer has evaluated all relevant non-medical information which could reasonably have been obtained and analyzed prior to making the offer; and 2) is conditioned upon acceptable medical information, such as passing a physical or psychological examination, that is directly related to job performance and business necessity. 27 An employer may not conduct medical examinations nor make medical inquiries of applicants until after the employer has evaluated all non-medical information in order for a conditional job offer to be considered a “real” offer. 28 In most cases, if an employer is still waiting for the results of, for example, a background check, that offer may not be considered a conditional offer of employment for purposes of the ADA. 29 In the very limited case where an employer can show it could not have reasonably obtained the non-medical information earlier, the employer would be allowed to collect such information after a conditional offer. 30 The EEOC has indicated that a polygraph examination for a peace officer applicant might be an example of a procedure that is

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too costly to perform before a conditional offer is made. 31 Another example of a procedure that might not be reasonable to perform before a conditional offer is a test for illegal drugs. Employers should also note that if an applicant signs any instrument relating to the obtaining or holding of employment, such as a conditional offer, the employer must give a copy of that instrument to the employee if requested. 32 Leonel v. American Airlines 33 Flight attendant applicants who provided written applications and participated interviews, were extended a conditional offer of employment subject to passing a background investigation and a medical examination. Immediately following the interview, the applicants were directed to undergo a medical examination during which some of their blood tested positive for HIV, which was undisclosed by the applicants. The airline withdrew the conditional offers and the applicants brought suit for violations of FEHA and ADA. On appeal, the Ninth Circuit Court of Appeals sided with the applicants. The Court concluded that the comprehensive analysis by the airline’s medical personnel of the applicants’ blood samples beyond that normally undertaken as part of post conditional offer medical exams, without notice to or consent from the applicants, could constitute a violation of their privacy rights under California Constitution Act I, Sec. 1. Government Code section 1031.2 allows law enforcement agencies to collect non-medical or non-psychological information regarding peace officer applicants even after an agency has issued a conditional job offer if an employer can demonstrate that the information could not have reasonably been collected prior to the offer. 34 The EEOC has similarly provided informal guidance stating that a law enforcement agency may complete certain non-medical or non psychological portions of a background investigation after a conditional offer if an agency can demonstrate that waiting will cause an unreasonable delay in completing the entire hiring process. 35 An unreasonable delay may exist where a government agency is requested to provide records, e.g. criminal history records, and waiting for these records will significantly increase the length of the entire hiring process. 36 2. P RE -C ONDITIONAL O FFER I NQUIRIES AND E XAMINATIONS The “pre-offer stage” encompasses any hiring activity that occurs prior to making a conditional offer of employment, including but not limited to written job applications, employment interviews, background investigations, and the like. At this stage, an employer may not make a “disability-related inquiry.” Such an inquiry is defined “as a question (or a series of questions) that is likely to elicit information about a disability.” 37 Moreover, the restrictions on medical After Leonel , if an employer intends to do a medical examination, it should conduct its background investigation and other “non-medical” inquiries before extending a conditional offer of employment, unless the employer can demonstrate it could not have reasonably obtained the non-medical information earlier.

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inquiries apply equally to inquiries made of third parties about the applicant, such as the applicant’s family, friends, and former employers. 38 a. Acceptable Inquiries Before a Conditional Offer is Issued A job applicant may be asked to describe or demonstrate how, with or without reasonable accommodation, the applicant will be able to perform job-related functions. 39 Examples of acceptable inquiries include:  “This job requires that you to be able to lift 50 pounds, can you do that?”  “What are your qualifications and skills?”  “Do you ever use illegal drugs?” 40  State the attendance requirements for the job and ask if applicant can meet them. 41 Even if the employer is aware of an applicant’s disability, the employer may not ask about its nature or severity. 42 Applicants with obvious disabilities, or who volunteer information about a disability, can be asked to describe or demonstrate how they would perform the job functions affected by the disability. 43 A criminal justice agency, unlike most employers, may conduct a criminal background check before extending a conditional offer of employment. 44 b. Impermissible Inquiries Prior to a Conditional Offer It is unlawful to include general questions regarding disability status on an application form or pre-employment questionnaire or in the course of the selection process. 45 An employer may not ask an applicant about their workers’ compensation history, as it is likely to impermissibly elicit information about the severity of an applicant’s impairment. 46 At the pre-offer stage, an employer cannot ask direct or indirect questions that are likely to elicit information about a disability. Examples of unacceptable inquiries include:  “Do you have any particular disabilities?” 47  “How serious is your medical condition?  “Have you ever been treated for any of the following diseases and conditions?”  “Do you take any medications?” But some innocuous questions about lawful drug use are not likely to elicit information about disability. The EEOC has offered the following example: During her interview, an applicant volunteers that she is

coughing and wheezing because her allergies are acting up. The interviewer, who also has allergies, tells the applicant that he

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finds a particular over-the-counter antihistamine to be effective and asks the applicant if she has tried it. 48

3. W HAT IS A “M EDICAL E XAMINATION ”? As indicated, an employer is prohibited under the ADA and FEHA from conducting a “medical examination” of a job applicant until a conditional offer of employment has been made. According to the EEOC, a medical examination is a procedure or test that seeks information about an individual’s physical or mental impairment or health. 49 The EEOC has indicated that the following factors are helpful in determining whether a procedure or test is a medical examination:  Is it administered by a health care professional?  Are the results interpreted by a health care professional or someone trained by a health care professional?  Does it measure an applicant’s performance of a task (permissible), or does it measure the applicant’s physiological responses to performing the task (not permissible)?  Is it normally given in a medical setting (for example, a health care professional’s office)?  Is medical equipment used? 50 Medical Examination Guidelines If the agency decides to require an applicant to pass a medical examination, the following rules should be followed: 1) Medical exams must be job-related and consistent with business necessity; 2) Medical exams must follow a conditional offer of employment and prior to the commencement of work; 3) All entering employees in the same job classification are subject to the same inquiry; 4) Keep the results confidential; 5) Provide the examining doctor with a copy of the job description; 6) Require the examining doctor to notify the agency of all tasks the employee cannot perform without undue risk of harm to self or others. a. Tests Considered to be “Medical Examinations” Tests considered by the EEOC to be medical examinations include, but are not limited to, the following:  vision tests conducted and analyzed by an ophthalmologist or optometrist;  Is it designed to reveal an impairment of physical or mental health?  Is it invasive (for example, does it require the drawing of blood, urine or breath)?

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