Lawmakers Declare April 10 Dolores Huerta Day

August 2018
Number 40

The Legislature has declared that April 10 is Dolores Huerta Day. Assembly Bill (AB) 2644, which dedicates the day to the activist and labor leader, becomes effective January 1, 2019.

The new law encourages public schools and other educational institutions to observe this day by conducting activities that commemorate the life and accomplishments of Dolores Huerta. However, the legislation does not create a new mandatory paid holiday.

Huerta is known for working to improve social and economic conditions for farmworkers and for defending civil rights. She has received many honors for her civil rights work, including receiving the Eleanor Roosevelt Human Rights Award in 1998 and being inducted into the California Hall of Fame in 2013.

For more information about AB 2644 or about days of special significance in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Sarah Levitan Kaatz

Partner

Carolyn L. Gemma

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

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New Law Clarifies Limits on Employer Use of Applicant Salary History

August 2018
Number 39

A new law clarifies recently enacted rules prohibiting employers from asking job applicants about their salary history. The changes included in Assembly Bill (AB) 2282, which becomes effective on January 1, 2019, eliminate some ambiguity concerning an employer’s limitations with regard to requesting an applicant’s salary history information.

Background

In 2017 lawmakers approved AB 168, which limits what employers, including public entity employers, can request from applicants in terms of salary history information and also how that information can be used. (See 2017 Client News Brief No. 68.) It added section 432.3 to the Labor Code, which prohibits employers from asking a job applicant for salary history information and from using an applicant’s salary history information as a factor in determining whether to offer the applicant employment or what salary to offer the applicant, except in specified circumstances.

AB 168 did permit employers to obtain salary history information that is legally required to be disclosed to the public, such as information that is subject to the California Public Records Act or federal Freedom of Information Act. Employers may also consider salary history information if the applicant voluntarily provides it.

AB 2282, makes the following changes to the above stated law:

  • An “applicant” or “applicant for employment” means “an individual who is seeking employment with the employer and is not currently employed with that employer in any capacity or position.”
  • A “reasonable request” means “a request made after an applicant has completed an initial interview with the employer.”
  • “Pay scale” means a “salary or hourly wage range.”
  • Employers may ask an applicant about his or her salary expectation for the position for which the applicant is applying.

Takeaways

Existing law prohibits an employer from paying any employee at a wage rate less than the wage rate paid to employees of the opposite sex for substantially similar work, under substantially similar working conditions, unless the employer demonstrates that one or more of the following factors, reasonably applied, account for the entire wage differential:

  • A seniority system;
  • A merit system;
  • A system that measures earning by quantity or quality of production; and/or
  • Education, training or experience not attributed to gender that fulfills a legitimate business purpose.

The Ninth Circuit Court of Appeals recently ruled that using an employee’s prior salary as a basis for establishing their initial salary is a violation of the federal Equal Pay Act. (See 2018 Client News Brief No. 25.) AB 2282 clarifies and reiterates that although prior salary cannot justify any disparity in compensation, an employer can make a compensation decision based on an employee’s current salary when the resulting wage differential is justified by one or more of the above stated factors. AB 2282 provides employers a safety net when there are legitimate business reasons for a wage differential between genders.

For more information about AB 2282 or about the use of salary history in the employment process in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Sarah Levitan Kaatz

Partner

Carolyn L. Gemma

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

The FBI and Secret Service Issue New Guidance on Addressing School Violence and Active Shooters

August 2018
Number 38

The Federal Bureau of Investigations (FBI) and the United States Secret Service’s National Threat Assessment Center (NTAC) have released two important documents that offer insight into the pre-attack behavior of shooters and advice to help prevent targeted school violence through the use of threat assessments.

The FBI report

The FBI report, which was issued in June, is part of an FBI initiative to understand why shootings in confined and populated areas, like schools, occur and how they can be prevented. The report attempts to identify specific pre-attack behaviors in order to help law enforcement, school officials, and others better identify, assess and manage individuals who may be on a path to violence.

The report makes 10 key findings. Notable among them as they relate to schools:

  • The 63 active shooters examined did not appear to be uniform in any way such that they could be readily identified prior to attacking based on demographics alone.
  • Active shooters averaged four to five pre-attack observable, concerning behaviors (e.g., strange interpersonal interactions, recklessness, violent media usage, impulsivity, firearm behavior, and physical aggression).
  • Active shooters under age 18 were more likely to have these concerning behaviors observed by student peers and teachers than their own family members at home.
  • The most common response by an individual observing a concerning behavior was to either approach the eventual shooter directly or do nothing.

The FBI intends the report to serve as a resource for schools and others to develop better threat assessment and mitigation strategies, including early and prompt threat assessment of students.

The NTAC Guide

NTAC is a branch of the Secret Service that conducts research, training, and consultation on threat assessments to prevent non-random acts of targeted violence. The NTAC guide, released in July, is the first phase of a federal initiative to provide updated research and guidance regarding prevention of school-based violence. Its purpose is to provide a model threat assessment process for schools, where the goal of threat assessment is (1) to identify students of concern, (2) assess their risk for engaging in violence or other harmful activities, and (3) identify intervention strategies to manage that risk. The guide provides a multi-step process for creating a comprehensive, targeted violence prevention plan that achieves this goal. The steps include:

  • Forming a multidisciplinary threat assessment team;
  • Defining prohibited and concerning behaviors;
  • Establishing a central reporting mechanism;
  • Determining the threshold for law enforcement intervention;
  • Establishing assessment procedures;
  • Developing risk management options;
  • Creating and promoting a safe school climate; and
  • Providing training to all stakeholders.

The guide cautions that there is no specific profile of a student attacker. Rather than focusing solely on a student’s personality traits or school performance, the guide suggests that much more can be learned about a student’s risk for violence by working through this threat assessment process.

Takeaways

Both documents are important new resources in addressing the unfortunate reality of violence in schools. School officials should consider the documents’ recommendations in conjunction with the annual school safety plan process, which includes a threat assessment component. Officials, however, should keep in mind that many of the recommendations in the report and guide may be subject to federal or state legal requirements, such as state law limits on school monitoring of student social media activity.

Finally, Assembly Bill (AB) 1747, which is making its way through the state Legislature, would make related changes to the requirements for school safety plans. In its current form, the bill would require schools to perform annual active shooter drills and require the tactical response portion of safety plans to include specific procedures for gun incidents at schools and school-related activities. Additionally, AB 1747 would mandate charter schools to develop comprehensive school safety plans. Lozano Smith is actively monitoring this legislation and will be prepared to offer specific guidance if it becomes law.

The FBI report, titled A Study of Pre-Attack Behaviors of Active Shooters in the United States Between 2000 and 2013, and NTAC operational guide, titled Enhancing School Safety Using a Threat Assessment Model: An Operational Guide for Preventing Targeted School Violence, can be found on the Public Safety Practice Group page of our website.

For more information about these new resources, legal requirements for school safety plans, or other school safety issues, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Trevin E. Sims

Partner

Joshua Whiteside

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

School Surveillance Video May be a Student Record, Triggering FERPA Obligations

August 2018
Number 37

School surveillance video can be considered a student record under certain circumstances, triggering a school district’s obligation under the federal Family Educational Rights and Privacy Act (FERPA) to allow parents to view it.

In an informal guidance letter, the director of student privacy policy with the U.S. Department of Education’s Family Policy Compliance Office (FPCO) concluded that a school surveillance video depicting eight students who were involved in a hazing incident is a student record under FERPA. (U.S. Dept. of Ed., Letter to Wachter (Dec. 17, 2017).) The guidance states that FERPA does not generally require school districts to provide parents or eligible students requesting student records with copies of the records. However, it does not address any obligations a school district may have under state public records law.

Background

The Wattsburg Area School District in Erie County, Penn. requested the guidance after a parent of one of the students who was disciplined for their participation in a hazing incident requested a copy of the surveillance video depicting it under the Pennsylvania Right to Know Act.

The district asked FPCO whether the video is an education record of each of the students disciplined for their involvement in the incident, if it is an education record of all the students involved, and whether the district is permitted to release it to an individual parent of an involved student without first obtaining consent from the parents of each student involved in the incident.

The district additionally noted that it could not afford software that would blur the faces of the other students in the video.

FERPA protects the privacy of students’ education records and specifically, the personally identifiable information they contain. “Education records” are those records that are both directly related to a student and maintained by an educational agency or institution or a by party acting on behalf of an educational agency or institution.

FERPA provides parents and eligible students the right to access their educational records, and provides them some control over disclosure of the personally identifiable information in their records. Under FERPA, schools are prohibited from disclosing student records or the personally identifiable information they contain without prior, written consent from the parent or eligible student unless the disclosure meets an exception to the consent requirement.

FPCO agreed that the surveillance video was an educational record because it was (1) maintained by the school administration in the offending students’ disciplinary files and not the school or district’s law enforcement unit, (2) was directly related to the hazing incident and the group of students involved in it, and (3) was used to discipline the students who perpetrated the hazing.

The guidance also concludes that the parent of an individual student disciplined for the incident should be allowed to view the video despite the fact that other students were depicted in it because it did not appear that the video could be segregated or redacted without destroying its meaning. If it is possible to disclose only a portion of the video in a way that would fully depict the student of the requesting parent’s involvement in the hazing incident, however, the guidance letter says that such segregation of the information of other students would be required.

The guidance letter confirms that FERPA generally does not require schools to provide copies of educational records unless circumstances prevent a parent or eligible student from exercising their right to inspect and review the records-for example, if the student does not live within commuting distance of the school-and the school does not make other arrangements that would allow the parent to do so. In these situations, the guidance recommends that the district obtain the written consent of the parents of other students depicted in the video before disclosing a copy.

While different facts will result in different outcomes under the guidance, the FPCO’s position is generally consistent with FERPA, which provides:

If any material or document in the education record of a student includes information on more than one student, the parents of one such student shall have the right to inspect and review only such part of such material or document as relates to such student or to be informed of the specific information contained in such part of such material.


(20 U.S.C. § 1232g, subd. (a)(1)(A); 34 C.F.R. § 99.12, subd.(a).)

This said, the conclusion that relevant parents be allowed to inspect and review joint records (1) despite the fact that other students are depicted, and (2) where the video is incapable of segregation or redaction without destroying its meaning, appears to constitute a different approach than previously advised by the FPCO in 2003, where guidance at that time provided: “In cases where joint records cannot be easily redacted or the information segregated out, the school district may satisfy a request for access by informing the parent about the contents of the record[,]” presumably through an oral or written summary of the record’s contents. (See Letter to Attorney for School District (Oct. 31, 2003).)

Takeaways

School districts should be reminded that the FPCO guidance is only informal. If a school district receives a request to provide access to any video surveillance, legal counsel should be contacted for further guidance.

Client News Brief App For more information regarding Letter to Wachter or FERPA in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our .

Written by:

Sloan R. Simmons

Partner

Aimee Perry

Senior Counsel

Kristy J. Boyes

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

PERB Reaffirms Importance of Meeting and Conferring with Unions

August 2018
Number 36

The Public Employment Relations Board (PERB) recently reaffirmed the importance of meeting and conferring with unions regarding information requests. In Department of State Hospitals (PERB Dec. No. 2568-S) (DSH), PERB concluded that an employer violated the Dills Act by refusing to provide relevant and necessary information to a union requesting such information in order to represent its member.

Background

A group of 14 patients filed a complaint against a DSH employee that included reports of suspected dependent adult/elder abuse. The complaint was investigated and findings letters issued. The employee received a letter directing her to be professional while interacting with staff and patients, and to not use profanity.

The union representing the employee asked to review the hospital’s supporting documentation for the formal corrective action. DSH refused to provide all of the requested documents and claimed the employee was only entitled to the documents if an adverse action issued.

Under applicable laws, an exclusive representative is entitled to all information that is “necessary and relevant” to the discharge of its duty to represent bargaining unit employees. An employer’s failure or refusal to provide such information violates the duty to bargain in good faith unless the employer proves the information is “plainly irrelevant” or raises a valid defense to production of the information.

DSH claimed its refusal to provide the documents was based on contractual waiver, confidentiality, and the non-existence of a list of employees who had received formal corrective actions. DSH argued the union waived its right to obtain information contained in the employee’s personnel and supervisory files because the information request did not indicate that the employee had authorized the union to review those materials, as required by the MOU. DSH also claimed the investigation materials were privileged and should be withheld to protect employee and patient confidentiality. Finally, DSH claimed it did not possess a list of bargaining unit members who had received formal corrective actions over the prior three years for incidents similar to the employee’s and was therefore not required to provide it.

PERB reasoned that privacy interests may limit a union’s right to obtain information. However, a claim that disclosure of requested information would implicate privacy interests must be made in a timely fashion so the parties can meet and confer over how to resolve the privacy concern. PERB found DSH’s delay in asserting patient and employee confidentiality deprived the union of the ability to negotiate over accommodating privacy prior to the deadline for filing a complaint. Further, DSH only asserted a confidentiality concern about the list of bargaining unit members who had received similar formal corrective actions and not about the investigation materials, which were the sole subject of DSH’s confidentiality defense before PERB. Because of the delay in asserting this defense, PERB found that the defense failed.

According to PERB, DSH correctly noted “an employer need not comply with an information request if the requested information does not exist.” When the requested information does exist in some form, however “the fact that the employer may have to compile it from various sources does not excuse the employer from producing it unless the employer can prove doing so would be unduly burdensome.” PERB declined to consider whether creating the list would be unduly burdensome because DSH did not assert this defense until the hearing. Just as with the confidentiality claim, an assertion that an information request is unduly burdensome must be timely raised so the parties can negotiate over eliminating or reducing the employer’s burden. PERB found the untimeliness deprived the union of the ability to negotiate over how the information might be provided in a less burdensome manner.

Takeaways

This decision provides a useful roadmap of the process an employer should follow before refusing to provide requested information to a union.

  • If the employer does not believe the information requested is “necessary and relevant,” it should ask the requesting union for an explanation.
  • Employers should disclose exceptions to information requests to the union up front. PERB will be less likely to side with the employer if the exception is first raised at the hearing.
  • Employers should meet and confer with the union about information requests to which exceptions are taken, compromising when possible and seeking resolution of the issues. PERB and other administrative bodies and courts will be more likely to side with an employer that attempts to resolve an issue directly with the union.

For assistance with union information requests or questions about the collective bargaining statutes in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Dulcinea A. Grantham

Partner

Cory R. Lacy

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Records Requesters May Recover Attorney Fees in Reverse-CPRA Actions

August 2018
Number 35

The stakes of asking a court to halt the disclosure of documents sought under a California Public Records Act (CPRA) request just got higher for private parties. California appellate courts have handed down a pair of decisions holding that private parties who sue to prevent the government agency from disclosing their personal information may be required to pay the requester’s attorney fees if they lose.

Background

The CPRA requires public entities to disclose public records unless there is a specific legal exemption. Under the CPRA, if a public entity has refused to produce documents and the matter is litigated, the plaintiff may recover attorney fees against the public entity if the plaintiff prevails.

In 2012, a court recognized private parties’ right to go to court to protect their records by filing a “reverse-CPRA” lawsuit. (Marken v. Santa Monica-Malibu Unified School District (2012) 202 Cal.App.4th 1250.) Until recently, private parties filing a reverse-CPRA suit were not required to pay the requester’s attorney fees if the requester prevailed. That has changed. Now, private parties must proceed with caution when seeking to protect their personal records or risk being ordered to pay a records requester’s attorney fees.

Pasadena Police Officers Association v City of Pasadena

In Pasadena, a newspaper sought to obtain records regarding a police shooting, including personnel records of the officers involved. The city refused to disclose the information, and the newspaper sued. The city was joined in the litigation by the police officers and their union, who filed a reverse-CPRA action to protect the officers’ private information. The newspaper prevailed, and the trial court ordered the city to pay the newspaper’s attorney fees pursuant to the CPRA. But the court denied the newspaper’s request to award attorney fees against the union and the police officers.

The Court of Appeal reversed, granting attorney fees against the union and the individual police officers. The court held that the union and police officers were responsible for attorney fees under California Code of Civil Procedure section 1021.5, the Private Attorney General Act (PAGA). The statute allows a court to grant attorney fees when certain criteria are met.

National Conference of Black Mayors v. Chico Community Publishing

In National Conference, a newspaper requested records which included communications between Sacramento’s mayor and a law firm representing his private organization. Unlike in the Pasadena case, the city was willing to release the records requested, but the mayor, in his private capacity, filed a reverse-CPRA action to prevent their disclosure. A court ordered the release of some of the records. However, the court denied the newspaper’s request for attorney fees from the city and the mayor, which it made pursuant to the CPRA.

The Court of Appeal affirmed the trial court’s decision not to award fees, stating that while the CPRA allows for attorney fees against a governmental agency, it does not allow recovery of attorney fees against a private party who files a reverse-CPRA action. Since the city was willing to disclose the records, it was not subject to attorney fees. The court specifically noted that the newspaper failed to challenge the trial court’s decision to deny fees under PAGA, adding that attorney fees would have been granted against the mayor under PAGA, consistent with the Pasadena ruling.

Takeaways

Pasadena and National Conference encourage private parties to think carefully before suing to prevent the release of their personal information pursuant to CPRA requests. Individuals who may otherwise have fought to keep their information private may now be inclined to allow release of their records to avoid the risk of being ordered to pay the requester’s attorney fees.

If you have any questions about Pasadena, National Conference, or the CPRA or PAGA in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Manuel F. Martinez

Partner

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Ninth Circuit Affirms Legislative Prayer Exception Does Not Apply to School Board Meetings

August 2018
Number 34

The Ninth Circuit Court of Appeals has upheld a federal district court ruling that school-sponsored prayer, Bible readings and proselytizing at school board meetings are unconstitutional. In Freedom from Religion Foundation v. Chino Valley Unified School District Board of Education, the Ninth Circuit upheld an injunction against a school board’s policy and practice of allowing school-sponsored religious exercise during board meetings.

This decision distinguishes prayer during public school board meetings from the legislative prayer exception for local government legislative bodies. The decision does not impact municipal legislative bodies, like cities and counties.

Background

The First Amendment to the Constitution states, “Congress shall make no law respecting an establishment of religion.” However, inMarsh v. Chambers and Town of Greece v. Galloway, the U.S. Supreme Court carved out an exception for the practice of opening legislative sessions with prayer, finding that prayer at the start of state legislative sessions and town board meetings fits within longstanding tradition and does not violate the Constitution’s Establishment Clause.

In September 2013, the Freedom from Religion Foundation (FFRF) sent the Chino Valley Unified School District Board of Education a letter requesting that it “refrain from scheduling prayers as part of future school board meetings.” One month later, the board adopted a policy regarding invocations at board meetings. During board meetings from 2013 to 2015, board members regularly endorsed prayer, read Bible verses, and reaffirmed their Christian beliefs. The record contained at least 14 instances in which a board member read Bible verses during the period set aside for board member comment.

In 2016, a federal district court concluded that the board’s actions were an unconstitutional endorsement of religion. (See 2016 Client News Brief No. 20.) The plaintiffs equated the board’s action with prayer in schools, which has been limited by the courts.

In finding that the board policy was not within the scope of the legislative prayer exception, the Ninth Circuit emphasized the presence of children at school board meetings. Students play a significant role in board meetings as this is where student accomplishments are recognized, decisions regarding student discipline are rendered and other administrative matters are settled.

The Ninth Circuit explained that unlike a session of Congress or a state legislature or a meeting of a town board, school board meetings function as extensions of the educational experience. The prayers took place before groups of students whose attendance was not truly voluntary. This is unlike the facts in Greece, where the solemnizing and unifying prayer was directed at lawmakers themselves and conducted before an audience of adults free from pressure to participate. Unlike legislative entities, school districts and school boards exercise control and authority over students.

The Ninth Circuit also found the board policy violated the test articulated in the Supreme Court decision Lemon v. Kurtzman. Under this three-pronged test, a government practice: (1) must have a secular legislative purpose; (2) its principal or primary effect must be one that neither advances nor inhibits religion; and (3) it must not foster an “excessive entanglement with religion.” The court determined that the board’s policy failed the first prong of the test because the policy lacked a secular purpose. Although solemnization was the stated motivation for the policy, shortly after the policy’s adoption, a board member publicly described the board’s goal as the furtherance of Christianity.

Takeaways

The Ninth Circuit ruling is binding law in California, so school boards should be cautious about holding religious invocations during school board meetings. This decision does not change the legislative prayer exception for municipal legislative bodies.

In 2017, a federal appellate court in Texas upheld a school board’s practice of permitting students to deliver a religious invocation at the beginning of board meetings. (
See 2017 Client News Brief No. 29.
) However, that court also acknowledged two pre-Greece cases where school district board meeting invocations were determined to be unconstitutional school prayer. In those cases, students were in attendance at board meetings in a formal role as student representatives, which was not true in the Texas case.

For more information about this decision or about the exercise of religion at public meetings in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

William P. Curley III

Partner

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.