AB 1266: Gender Identity Bill Now Law

February 2014
Number 14

On February 24, 2014, the California Secretary of State announced that the referendum effort to put Assembly Bill (AB) 1266 to a statewide vote failed to receive enough valid signatures to qualify for the November 2014 ballot. With the failure of the referendum, AB 1266’s nondiscrimination and access requirements are now law. Originally set to have an effective date of January 1, 2014, AB 1266 was put on hold due to the pending referendum challenge (see 2014 Lozano Smith Client News Brief No. 3). AB 1266 now amends Education Code section 221.5 to require schools to allow a student to participate in sex-segregated school programs and activities, and use facilities, consistent with the student’s gender identity regardless of the student’s biological sex (see 2013 Lozano Smith Client News Brief No. 47).

Proponents of the referendum are reviewing the final signature count in an effort to find improperly invalidated signatures, but it is not clear whether they will take any formal action regarding the signature count, or whether such actions will have any impact on the law.

Districts have several options to address the mandates of AB 1266. While some districts are choosing to adopt explicit policies and regulations related to transgender student access and accommodations, that is not required by the law and may not be the desired approach for all districts. Additionally, while model policies have been circulated, districts should be cautious about adopting a “one-size-fits-all” policy. Available model policy language may include provisions that are not required or derived from existing law, and districts should consider whether a more tailored approach to these issues is preferable.

For further information regarding potential policy options, or for best practices that can be implemented with regard to these issues, please feel free to contact 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

Michael Smith
Partner
Fresno Office
msmith@lozanosmith.com

Benjamin C. Rosenbaum
Associate
Fresno Office
brosenbaum@lozanosmith.com

©2014 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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CalSTRS Election Remedy – CalSTRS Issues Clarifying e-Bulletin

February 2014
Number 13

As specified in the November 25, 2013 Employer Information Circular, CalSTRS is currently allowing employers to use the employer correction statute (Education Code § 22308) to file an election form with a retroactive effective date. The retroactive election is allowed for any employee who was eligible to make such an election in the past but failed to do so because the employer did not provide the employee with the necessary information regarding his or her election rights. The deadline for submission is May 23, 2014, and we recommend all required documents be submitted prior to that date.

In our January 2014 Client News Brief (Number 9), we addressed several frequently asked questions regarding submission of the election form and required Justification Letter pursuant to the CalSTRS November 25, 2013 Circular. On January 27, 2014, CalSTRS issued an Employer Connect e-Bulletin further addressing the process and procedure for submitting these documents.

The CalSTRS e-Bulletin confirmed the following:

    • Who should submit the ES 372 Form and Justification Letter? The Justification Letter must come from the current employer and the completed ES 372 Form should be submitted with the Justification Letter as an enclosure.
    • Should an ES 372 Form and Justification Letter be completed for retirees? CalSTRS has indicated that forms and Justification Letters for retirees are not necessary at this time.
    • What is the proper effective date to be listed on the ES 372 Form? The effective date to be listed on the ES 372 Form is “the date of the first position requiring membership in a different retirement system . . . after the member’s last position performing creditable service.” In most instances, this will be the first date the employee entered a position at the district-office level.
    • How much work history should be included in the Justification Letter? The work history provided in the Justification Letter should begin with the current position and list all positions the employee held with all employers going back to the last school-site level position (i.e., the last position clearly providing creditable service).
    • What about employees who worked for more than one employer in a questionable position? The current employer should submit one ES 372 Form and Justification Letter for each affected employee, even if the employee held a questionable position with more than one employer.

The CalSTRS e-Bulletin provided new clarification regarding the following:

    • What is the role of the County Office of Education? The CalSTRS e-Bulletin clarified that the County Office of Education’s signature is not required if your district is a CalSTRS independent report source. However, for most districts the ES 372 Form is routed through the county offices. Therefore, we continue to recommend collaborating with your county office regarding procedures for securing appropriate county signatures on the form. Districts should factor in additional time to work with their respective county office and obtain the necessary signatures in time to submit the form prior to the deadline.
    • What type of statement regarding the reason for the employee’s late election should be included in the Justification Letter? The CalSTRS e-Bulletin provided general language regarding the reason statement. However, concern regarding liability of the district for making any such statement still exists. Accordingly, to address this concern and keep the statement simple, we continue to recommend using a statement similar to the following:

“Without admitting any fault or liability, the District certifies that the member was not offered the opportunity to timely complete the election form because the District believed that the member was performing creditable service in a certificated position and therefore the member was not provided the opportunity to complete a Form ES 372 at the time he/she changed positions.”

    • Can the documents be faxed or emailed to CalSTRS? Pursuant to the CalSTRS e-Bulletin, CalSTRS will now accept ES 372 Forms and Justification Letters via fax or email, as well as regular mail. The documents can be faxed to (916) 414-5476 or emailed through the CalSTRS Secure Employer Website (SEW). Forms and Justification letters will still be accepted via regular mail as well at the P.O. Box number listed in the November 25, 2013 Circular.
    • Must provide notice to CalPERS.The CalSTRS e-Bulletin notes at the end that a copy of the election shall also be filed with the “other public retirement system” (i.e., CalPERS). The authority for this requirement is contained in Education Code section 22509(b). To comply, we recommend carbon copying CalPERS on the Justification Letter.

A copy of the CalSTRS November 25, 2013 Circular can be found here.

A copy of the CalSTRS Employer Connect e-Bulletin can be foundhere.

If you have any questions about whether your position is performing creditable service work or questions about how to complete the election form, you may contact the CalSTRS Employer Services Helpline at (877) 277-5778 or feel free to contact 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

Michael Smith
Partner
Fresno Office
msmith@lozanosmith.com

Thomas Manniello
Partner
Monterey Office
tmanniello@lozanosmith.com

Ashley N. Emerzian
Associate
Fresno Office
aemerzian@lozanosmith.com

©2014 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.

Final Regulations Implementing the Affordable Care Act Provide Employers Further Relief

February 2014
Number 12

The United States Department of Treasury and the Internal Revenue Service (IRS) issued final regulations on February 10, 2014, implementing the Employer Shared Responsibility Provisions of the Affordable Care Act (ACA). The final regulations push back significant deadlines for employers while also providing clarification regarding some of the existing rules and regulations.

Phase-In of Employer Responsibility Provisions
The ACA requires employers with at least 50 full-time or full-time equivalent employees to offer affordable, minimum value, minimum essential health care coverage to eligible employees and their dependants or risk paying a penalty (also known as an “Employer Shared Responsibility Payment”). In July 2013, the federal government announced that employers would not face penalties under the ACA for failure to offer health care coverage until January 1, 2015. The final regulations offer further transition relief by providing for gradual phase-in of the employer responsibility provisions:

    1. Employers with 50 to 99 employees will have to fulfill the employer reporting requirements in 2015, but will have until 2016 to offer health care coverage to qualifying employees before any penalties may apply.
    1. Employers with 100 or more employees may phase-in health care coverage of qualifying employees. Under this phasing-in process, employers who offer at least 70% of their qualifying employees health care coverage in 2015 will not face the associated penalties. For 2016, this percentage will rise to 95%.

In the case of a non-calendar plan year that begins in 2015, the above transition relief will continue through the portion of that 2015 plan year that falls within 2016.

Additionally, employers are not required to offer coverage to dependents until 2016 as long as they are taking steps in 2015 towards offering such coverage. However, this transition relief is not available to the extent the employer had offered dependent coverage in the 2013 or 2014 plan years but subsequently dropped that offer of coverage. Note that the ACA defines a dependent as an employee’s child under the age of 26, and expressly excludes spouses, step-children, and foster children.

Clarifications on Issues Impacting Employers
The final regulations provide a number of clarifications for employers. While some questions remain, others have been addressed. For instance, the final regulations shed light on how to treat volunteers and seasonal employees for the purposes of the ACA:

    • “Bona fide volunteers” do not count as full-time employees for the purpose of determining employer size or offering health care coverage. A “bona fide volunteer” is a volunteer who is an employee of a government entity or a 501(c) non-profit organization but whose only compensation from that entity or organization is reimbursement for reasonable expenses or reasonable benefits and nominal fees. For example, certain volunteer firefighters would fall under this exception.

 

  • The final regulations provide a definition for “seasonal employees,” which was noticeably missing from prior proposed regulations. A “seasonal employee” is defined as an employee in a position for which the customary annual employment is six months or less. The reference to “customary” indicates that the position must begin in the same part of the year each calendar year, such as summer or spring.

Other changes and clarifications address the safe harbor methods for determining affordability, employer reporting requirements, and methods for calculating hours of service. This Client News Brief is meant to provide a snapshot of some of the key changes implemented by the final regulations. The full text of the final regulations can be found on the Federal Register website.

The Treasury and the IRS have announced that the next step in ACA implementation will be to issue final regulations simplifying and streamlining the employer information reporting requirements.

For assistance in dealing with ACA matters, including navigating the complex and evolving rules and regulations, please feel free to contact 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

Karen Rezendes
Partner
Walnut Creek Office
krezendes@lozanosmith.com

Niki Nabavi Nouri
Associate
Walnut Creek Office
nnabavinouri@lozanosmith.com

©2014 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.

Emergency Regulations Adopted to Amend Standardized Testing Process

February 2014
Number 11

With the adoption of the Common Core State Standards (Common Core), the California Legislature has begun revising the way students take the standardized testing that measures California school districts’ academic achievement. The new program, the California Assessment of Student Performance and Progress (CAASPP), will permanently replace the Standardized Testing and Reporting (STAR) testing in the 2014-2015 school year. The new assessments, the Measurement of Academic Performance and Progress (MAPP), will be “field tested” in spring 2014.

The State Board of Education has adopted emergency regulations regarding the CAASPP. At the heart of the new assessment process is the adoption of the Smarter Balanced testing, which uses computer-based assessments aligned to the Common Core requiring students to analyze and solve problems. This is a change from STAR testing, which was criticized for only requiring students to perform rote memorization of facts. Due to insufficient time for permanent regulations to be enacted in time for CAASPP testing in spring 2014, and to meet statutory deadlines, the initial regulations needed to be adopted as emergency regulations. The emergency regulations will be followed by the adoption of permanent regulations over the next several months.

These regulations revise the definitions, requirements, responsibilities and guidelines for the administration, test security, reporting and apportionment related to the new CAASPP and will have an immediate impact on this spring’s field testing of standardized testing (“the test of the test”).

The emergency regulations include:

    • Removing references to STAR and former STAR statutory requirements and adding references to CAASPP and CAASPP statutory requirements;
    • Revising definitions, such as accommodations;
    • Specifying allowable variances in both paper-pencil and computer-based testing by listing acceptable accommodations, designated supports and universal tools;
    • Revising testing periods; and
    • Making changes to the responsibilities and duties of testing coordinators at both the local educational agency and test site levels.

For further information regarding the new emergency regulations, please feel free to contact 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

Edward Sklar
Partner
Walnut Creek Office
esklar@lozanosmith.com

Ileana Butu
Associate
Sacramento Office
ibutu@lozanosmith.com

©2014 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.