Metropolitan News-Enterprise


Thursday, January 24, 2002


Page 3


High Court to Review Ruling Favoring ‘Outsourced’ MWD Workers


By a MetNews Staff Writer


The state Supreme Court yesterday agreed to review a Court of Appeal ruling that workers at the Metropolitan Water District who are employed through private service contractors are entitled to the same retirement and other benefits as MWD employees.

The vote to hear Metropolitan Water District v. Superior Court, Cargill RPI, 93 Cal.App.4th 1158D, was unanimous, a court official said..

This district’s Div. One ruled Oct. 17 that workers employed for MWD by Superior Staffing Services, Inc., Volt Management Corp., Fame Personnel Services, and other companies are entitled to enroll in the California Public Employee Retirement System.

The high court’s ruling could have a significant impact on other local government agencies which outsource a portion of their labor needs, typically to companies which provide significantly less in benefits than the agency does to its own employees.

Los Angeles County has already been named as a defendant in similar suits attacking outsourcing at the County Counsel’s Office and the Internal Services Department.

In the MWD case, the Court of Appeal agreed with Los Angeles Superior Court Judge Charles McCoy that the workers’ employment status had to be determined under the common-law “control” test.

To the extent that the outside contractors are basically payroll services and it is the MWD that controls the employees’ work, they are employees under the Public Employees’ Retirement Law and entitled to CALPERS benefits, the lower courts ruled.

While MWD and the providers argued that the providers hired and paid the employees, Court of Appeal Justice Reuben Ortega said they did so “only in the technical sense that MWD told each worker whether he would be ‘hired’ by MWD or a particular provider.”

Declarations submitted by several workers, the justice said, showed that they were interviewed and  hired by MWD personnel, and had no contact with the providers as to non-payroll matters. MWD, not the ostensible employers, set hours, made assignments, evaluated performance, determined promotions, and made decisions regarding termination, Ortega noted.

The unanimous vote to grant review doesn’t necessarily mean the Court of Appeal will be reversed, the MWD’s appellate counsel told the MetNews.

“I certainly hope [there will be a reversal],” Horvitz & Levy’s Jon Eisenberg said. But the importance of the issues, and the number of people affected, made it “so obvious” that the case was likely to be decided by the state’s highest court, regardless of who prevailed below, he said.

“We believed from the outset that this was a case of statewide importance,” Eisenberg said.

Eisenberg’s opposing counsel, Anthony Segall of Rothner, Segall & Greenstone, was not available late yesterday for comment.

The court also agreed to decide whether a statute making it a crime to falsely accuse a police officer of misconduct violates the First Amendment.

Div. Six of this district’s Court of Appeal ruled in People v. Stanistreet, 93 Cal.App.4th 469, on Oct. 31 that that Penal Code Sec. 148.6 selectively punishes speech.  “It is not a crime to knowingly make such an accusation against a firefighter, a paramedic, a teacher, an elected official, or anyone else,” Presiding Justice Arthur L. Gilbert noted for the appellate panel.

The panel overturned the convictions of Shaun Stanistreet and Barbara Atkinson on a misdemeanor charge of falsely accusing an Oxnard police officer of engaging in lewd conduct at a Police Activities League event. Gilbert said the law was a content-based regulation of speech, citing R.A.V. v. City of St. Paul, Minn. (1992) 505 U.S. 377.

The high court held in that case that an ordinance prohibiting cross-burning was  unconstitutional, Gilbert explained, “because it punished the use of only those fighting words that insulted or provoked violence on the basis of disfavored categories: race, color, creed, religion or gender,” while other types of fighting words were unregulated.

The Ventura County District Attorney’s Office, in seeking review, argued that the Court of Appeal should have narrowly interpreted the statute as prohibiting a false report of a crime and upheld it on that basis.

Sec. 148.6 has a civil counterpart, Civil Code Sec. 47.5, which creates an exception to the official-reports privilege and allows a peace officer to sue for defamation if a citizen files a false complaint with the officer’s employer. That section was held unconstitutional on Nov. 30 by the Fourth District’s Div. Two in Walker v. Kiousis, 93 Cal.App.4th 1432.


Copyright 2002, Metropolitan News Company