Service In County’s Work Release Program Is Not Employment Under The FEHA

CATEGORY: Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room, Public Education Matters
DATE: Aug 06, 2020

LCW Partner Jesse Maddox and Associate Attorney Sue Ann Renfro recently obtained a victory for Fresno County in a published Fair Employment and Housing Act (FEHA) case.

Ronald Talley is physically disabled and has to wear a foot brace to walk. He pleaded nolo contendere, or no contest, to a criminal offense.  Instead of serving his 18-day sentence in Fresno County Jail, Talley was eligible to participate in the Adult Offender Work Program (AOWP) administered by Fresno County’s Probation Department.  Talley was injured while performing work in the AOWP and received workers’ compensation benefits. Talley then sued Fresno County alleging, among other things, that the County violated the FEHA by failing to both accommodate his physical disability and to engage in the interactive process with him.

Because the FEHA generally protects employees only, Talley’s claims rested on the theory that AOWP participants are County employees for the purposes of the FEHA.  However, the County argued that because Talley was not paid for his time in the AOWP, he was not an employee under the FEHA.  The County also argued that Talley’s non-FEHA claim was barred by workers’ compensation exclusivity.  The trial court agreed and entered judgment in favor of the County on all of Talley’s claims.  Talley appealed.

On appeal, the California Court of Appeal affirmed the trial court’s decision to enter judgment in favor of the County on all of Talley’s claims.    The Court of Appeal found that being paid is an essential condition to establish employee status under the FEHA.  Because Talley did not receive direct or indirect pay, he was not an employee for purposes of the FEHA.

Talley v. County of Fresno, 2020 WL 3888093 (Cal. Ct of Appeal 2020).


This published decision clarified who is considered an employee under FEHA so that employers can better understand when workers who do not fit within the traditional category of a paid employee are covered by FEHA.  Because the County prevailed at the appellate level, it was awarded its costs on appeal.