Employee’s Immigration Status Does Not Bar Claims of Employment Discrimination, But Does Limit Recovery

July 2014
Number 37

In Salas v. Sierra Chemical Co. (June 26, 2014) __ Cal.4th __ 2014 WL 2883878, the California Supreme Court recently held that federal immigration law did not prevent unauthorized alien workers from bringing discrimination claims under the Fair Employment and Housing Act (FEHA) (Gov. Code, §§ 12940, et seq.), but did limit their ability to recover damages if they were unauthorized to work in the United States.

In 2003, Vicente Salas applied for a job with Sierra Chemical (Sierra) and provided his employer with a false social security number. In late 2004 or early 2005, Mr. Salas received a letter from the Social Security Department stating that his social security number did not match his name. Later in 2006, Mr. Salas injured his back and returned to work with modified duty. Mr. Salas filed a workers’ compensation claim but continued to work with modified duties until late 2006 when he was laid off during Sierra’s seasonal reduction of workers. On May 1, 2007, Mr. Salas was notified that Sierra was recalling laid-off employees and he could return with a note from his doctor releasing him back to full duty. Mr. Salas never returned to work.

In August 2007, Mr. Salas sued Sierra under FEHA claiming that Sierra discriminated against him based on his disability and failed to accommodate his disability. Mr. Salas also alleged that Sierra wrongfully denied him employment by retaliating against him for filing a workers’ compensation claim. Mr. Salas sought lost wages, compensatory damages for emotional distress, punitive damages, and attorneys’ fees.

Sierra argued that Mr. Salas was barred from bringing the lawsuit under the doctrines of after-acquired evidence and unclean hands because Mr. Salas fraudulently used another person’s social security number when obtaining employment with Sierra. The doctrine of after-acquired evidence refers to when an employer discovers information that would have justified lawful termination or refusal to hire after the individual claims that he or she was wrongfully discharged or not hired. The unclean hands doctrine provides that a plaintiff’s bad faith conduct should not permit him or her to obtain relief.

The federal Immigration Reform and Control Act of 1986 (IRCA) requires an employer to verify the identity and work eligibility of new employees and terminate any employee who is unauthorized to work in the United States. IRCA also subjects workers who use false documents to gain employment to civil fines and criminal prosecution. California’s Senate Bill (SB) 1818, however, states that state law protections, rights and remedies are available to all individuals regardless of immigration status. (Code of Civ. Pro., § 3339, Gov. Code, § 7285 et seq., Health and Safety Code, § 24000 et seq., Lab. Code, § 1171.5.)

The California Supreme Court considered whether SB 1818 was preempted by IRCA in private actions for damages under FEHA. The court determined IRCA did not completely preempt SB 1818, but found that IRCA did limit remedies available to employees who prevail in a private action against their employer under FEHA. Because IRCA prohibits an employer from continuing to employ a person whose immigration status renders the individual ineligible to work, any state law that “compensates an unauthorized alien worker for loss of employment during the post-discovery period directly conflicts with [IRCA].” Therefore, federal law does not allow an unauthorized alien worker to receive lost pay awards under FEHA for the period after the employer discovers that the employee is ineligible to work in the United States.

The court explained, however, that pay awards for the “prediscovery period” do not directly conflict with IRCA. “Although immigration law prohibits an unauthorized alien’s use of any false documents to get a job, that law does not prohibit an employer from paying, or an employee from receiving, wages earned during employment wrongfully obtained by false documents, so long as the employer remains unaware of the employee’s unauthorized status.”

If you have any questions regarding this decision or labor and employment issues in general, please 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

Gregory A. Wedner
Partner
Sacramento Office
gwedner@lozanosmith.com

Gabriela D. Flowers
Associate
Sacramento Office
gflowers@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.

Supreme Court to Law Enforcement: No Warrant, No Cell Phone Search!

July 2014
Number 36

The United States Supreme Court has concluded that a police officer may not search an arrested person’s cell phone data without first obtaining a search warrant. While officers are permitted to conduct limited searches of lawfully arrested persons without first obtaining a warrant, such searches should not include the data content of the arrested person’s cell phone.

Riley v. California (June 25, 2014) 573 U.S. ___, involved two cases where the evidence and criminal convictions were obtained as a result of warrantless cell phone searches.

The Fourth Amendment of the United States Constitution protects the public from unreasonable searches and seizures by the government. In general, the Fourth Amendment’s “reasonableness” requirement requires officers to obtain a warrant before conducting searches, unless an exception to the warrant requirement applies. One exception permits warrantless searches conducted in the course of a lawful arrest.

In a prior case, Chimel v. California (1969) 395 U.S. 752, the Court determined that an officer, without a warrant, may search an arrested person and the area within the arrested person’s immediate control, in order to remove any weapons that the arrestee might use to resist arrest or escape. The officer could also search for and seize any evidence on the arrested person to prevent its concealment or destruction. The Chimel rule is intended to provide for immediate protection of evidence and the parties involved in the arrest.

In Riley, the Court had to determine whether the exception set forth in Chimel also permits an officer to search the data content of a cell phone found on the arrested person. To answer this, the Court conducted a “balancing of interests” test and weighed the degree of intrusion upon the arrested person’s privacy against the degree to which the search is needed to promote a legitimate governmental interest, such as safety.

The Court determined that the government interest in a warrantless search of an arrested person’s cell phone data is minimal because the justifications for searches incident to an arrest are not implicated by cell phone data. The Court found that cell phone data cannot itself be a weapon to harm an officer or a tool to effectuate an escape or resist arrest. The Court also concluded that there is little to no increased risk of evidence being destroyed if an officer is first required to obtain a warrant before searching cell phone data because the officer can take possession of the cell phone without searching its data and a warrantless search does not remove the risk of the arrested person deleting data immediately prior to an anticipated arrest. Therefore, a warrantless search provides no significant government benefit.

Further, the Court ruled that an arrested person’s privacy interests demanded procedural protections. While an arrestee has a decreased expectation of privacy by virtue of being lawfully arrested, the Court found that cell phone data includes an extremely broad and private array of information. The Court recognized that the immense quality and quantity of information stored by most people on their cell phones was probably far greater than what they keep in their homes, and certainly greater than the few personal effects that may be kept on a person that have up until now been allowed to be subject to warrantless searches, such as a wallet or address book.

Because the arrested person’s privacy interest surpassed the government’s limited interest in a warrantless search, a warrantless search of cell phone data is not reasonable within the requirements of the Fourth Amendment. The Court, bowing to the realities of technology and the substantial societal changes that the use of cell phones have brought about, embraced and protected this nearly universal piece of hardware that often contains a full chronicle of ones life, including significantly private matters.

The Court’s decision does not directly address searches and seizures of student cell phones by school officials on school ground or during school-related activities. However, proponents of student privacy are likely to view the Court’s discussion of cell phone privacy as an arrow in their quiver and may turn to the Riley opinion to support a ban or limits on student cell phone searches by school officials. Generally, public school officials may search student cell phones when there is a reasonable suspicion of wrongdoing, although the scope of any search must be reasonably limited to discovering evidence of that wrongdoing. Even though Riley does not apply directly to the student cell phone-school context, the Court’s emphasis on the privacy interest in cell phone data makes it important to narrowly tailor student cell phone searches, restricting such searches to discovery of the suspected wrongdoing that justifies the search at its inception.

For more information on this ruling, municipal searches and seizures, or the search and seizure of student cell phones, please 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

William P. Curley III
Senior Counsel
Los Angeles Office
wcurley@lozanosmith.com

Tyler B. Dockins
Associate
Monterey Office
tdockins@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.

Parent Has Standing to Sue School District for Alleged Failure to Ensure that Students Are Not Discriminated Against, Harassed or Bullied

July 2014
Number 35

In Hector F. v. El Centro Elementary School District (June 24, 2014) ___ Cal.App.4th ___ 2014 WL 2854704, the California Court of Appeal held that the parent of a student could seek enforcement of a school district’s obligations to comply with statutory anti-discrimination and harassment provisions of the Government Code and Education Code. This case may signal an increase of civil actions against school districts in bullying cases.

Hector F. hinged on a procedural issue: whether the parent had standing to sue the school district. The parent’s case alleged that the student had been exposed to a pattern of repeated bullying, harassment and discrimination based upon the student’s ethnicity and disability. The complaint also alleged that the student reported the incidences of bullying, harassment and discrimination to school site personnel on at least two occasions, but the school district failed to respond appropriately.

The trial court dismissed portions of the complaint that asserted claims on behalf of the parent, reasoning that the student no longer attended district schools, the parent had no other student in the school district who was subject to bullying, harassment or discrimination, and the statutes the parent relied upon did not provide him a right to sue the district. The Court of Appeal reversed, finding that the statutes upon which the parent sued the district “articulate a well identified public interest in maintaining a system of taxpayer funded public education which is free of the destructive influence of discrimination, harassment and bullying.” As a result, the parent’s lawsuit was allowed to go forward.

Although Hector F. was a procedural decision, school districts may want to review their board policies, administrative regulations and school site safety plans to ensure compliance with anti-discrimination, harassment and bullying laws. Districts should also consider staff training on compliance with applicable policies, regulations and laws, in order to avoid litigation similar to Hector F.

If you have questions regarding the laws on non-discrimination, harassment, intimidation or bullying, or the policies or training for implementation of these laws, please 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

Sloan R. Simmons
Partner
Sacramento Office
ssimmons@lozanosmith.com

Aimee Perry
Associate
Sacramento Office
aperry@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.

California Court of Appeal Upholds Injunctive Relief to Keep Charter School Open and Funded During Revocation Appeal Process

July 2014
Number 34

In a decision favorable to charter school proponents, a California court of appeal has upheld a preliminary injunction that kept three charter schools open and funded during the appeal of the revocation of their charter petitions. In a high profile dispute, Oakland Unified School District revoked the charters of American Indian Model Schools’ (AIMS) three charter schools for fiscal mismanagement, improper use of public funds, and conflict of interest violations. Leading up to the revocations, AIMS had garnered significant media attention as a success story due to the high test scores of students whose neighborhood schools have traditionally underperformed. In American Indian Model Schools v. Oakland Unified School District (June 23, 2014) ___Cal.App.4th ___ 2014 WL 2811562, AIMS appealed the revocation decision to the County Board of Education and, subsequently, to the State Board of Education. AIMS also sought a preliminary injunction to stop the revocation of its charters from being implemented during the appeal process. In its decision upholding the trial court’s issuance of a preliminary injunction, the court of appeal interpreted several aspects of Education Code section 47607 involving the charter revocation process.

Under Education Code section 47607, the chartering authority must consider, as the most important factor in determining whether to revoke a charter, increases in pupil academic achievement for all groups of pupils served by the charter school. The court of appeal determined that this consideration must be supported by substantial evidence. The relevant statutory language regarding pupil academic achievement went into effect on January 1, 2013, only a few months before the AIMS charters were revoked in March 2013. Both the trial court and court of appeal found the record devoid of substantial evidence showing that the District considered pupil achievement. The court of appeal noted that “[t]he District must give extra weight and consideration to high test scores, but high test scores would not prevent revocation of a charter.”

Unfortunately, the court stopped short of offering guidance as to what constitutes substantial evidence of a district’s consideration of a charter school’s academic achievement. Nonetheless, the clear import of this holding is that a chartering authority must clearly document its consideration of the academic achievement of all pupil groups as the most important factor in its charter revocation decision. It is also important to note that this holding may reach beyond the revocation of a charter. The pupil academic achievement for all groups of pupils served by the charter school also must be considered as the most important factor in determining whether to grant a charter renewal.

The court further found that section 47607 does not prohibit a trial court from granting an injunction that continues funding to a charter school during the appeal of a revocation. Section 47607 explicitly provides that for revocations based on certain criteria, the charter school must continue to qualify as a charter school for funding purposes and may otherwise continue to operate. The statute, however, does not have a similar provision for revocations based on a failure to meet generally accepted accounting principles, fiscal mismanagement, or a violation of any provision of law. Nonetheless, the court found that the absence of such language did not mean that funding can never be continued by a court order. The court believed that public policy favored this interpretation.

Lastly, the court held that a trial court could grant a preliminary injunction staying a charter revocation, even where the charter school is still appealing the revocation decision, if the charter school can show that it will be irreparably harmed if a preliminary injunction maintaining the status quo is not granted. In this case, the court found that AIMS met this exception by showing that, in the absence of an injunction, it would lose its funding, faculty, and student body and that the students “would be deprived of the opportunity to obtain an education at schools that have enabled them to obtain high API and SAT test scores.”

As a result of this decision, charter schools that face revocation (or possibly nonrenewal of their charter) may increasingly turn to the courts for injunctive relief. Further, school districts and county boards of education that are chartering authorities should document their analysis of the academic achievement of all pupil groups as the most important factor in their consideration of whether to revoke a charter.

If you have questions regarding charter schools, please 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

Mark P. Bookholder
Associate
Monterey Office
mbookholder@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.

New Civic Center Act And Bidding Rules Effective July 1

July 2014
Number 33

New laws and regulations effective July 1, 2014 will impact the operations of school districts and other public agencies. These changes include new regulations for recovering costs of the use of school district facilities under the Civic Center Act, and new requirements for bidders on all public works projects.

Recovering Direct Costs for Use of Facilities

The California Department of Education has recently approved the long-awaited regulations that will provide guidance in calculating direct costs which a school district may recover for the use of its facilities under the Civic Center Act. (See Client News Brief No. 64, October 2013.) These new regulations were adopted in accordance with Senate Bill Number 1404 (2012), which amended the Civic Center Act to expand the types of direct costs that school districts may charge for the use of school facilities or grounds. (See Client News Brief No. 64, October 2012.)

The new regulations, which are codified as California Code of Regulations, Title 5, sections 14037 through 14042, provide for two types of direct costs: capital costs and operational costs. The regulations also provide a formula for calculating an hourly fee schedule for each user’s proportional share of these costs. We recommend that school districts review their facilities use policies in light of these new regulations in order to incorporate these new provisions and to recover costs related to the use of their facilities by third parties under the Civic Center Act.

Subcontractor License Numbers for Public Works Bidding

Last September, Governor Brown signed Assembly Bill (AB) 44, which will require a prime contractor to include the contractor’s license number for each subcontractor listed in its bid documents when submitting bids for any state or local government public works project. This requirement will apply to bids received by a public agency on and after July 1, 2014. According to its author, the purpose of AB 44 is to save public agencies time and to improve efficiency by making it easier to verify the identity and license status of each subcontractor listed in a bid package. This is especially helpful when multiple subcontractors have similar names, or when the use of abbreviations or poor handwriting on bid documents make it difficult to determine which subcontractor is listed.

Public agencies should review their bid documents to ensure that this new requirement for bidders is incorporated into the bid documents for projects that will be submitted on or after July 1.

If you have questions regarding these new laws and regulations, or any other issues regarding the Civic Center Act or public works bidding, please 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

Ruth Mendyk
Partner
Fresno Office
rmendyk@lozanosmith.com

Michael Dunne
Paralegal
Fresno Office
mdunne@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.

Staying Well Grounded While Computing in the Clouds

July 2014
Number 32

Before leaping into the technology cloud, taking a moment to look for the legal pitfalls really pays off. As cloud computing has grown, school districts have increasingly had to weigh the convenience of the new technologies against the potential challenges that come from sending confidential district information to third parties for cloud storage. Third party vendors often obtain extensive access to the district’s technology systems and student and employee information. This raises privacy concerns and issues concerning compliance with the Education Code and the Family Educational Rights and Privacy Act (FERPA) as well as state law. Parents and educators are often unaware of how this information is used, the reasons why such information is being collected or that it is being collected at all, and by whom. These issues are often overlooked in “boilerplate” contracts prepared by the cloud service providers.

Cloud computing is only one of many difficult legal issues that school districts face regarding technology. For example, companies, big and small, are racing to provide school districts with the latest education “apps,” tablets, websites, reminder services, virtual classrooms and chat rooms. These innovative tools are being developed for the classroom, district office and board room at a rapid pace, while the law on these questions has not developed as quickly. So how do these technologies fit with existing laws regarding privacy, student records, social media, open meetings, public records, employment issues, litigation and civil liberties? School districts increasingly must consider how these technology issues may create legal problems. Some of the questions that should be asked include:

  1. Are students and district staff required to “agree” to a user agreement? These agreements are also known as “click-wrap agreements,” and often pop-up in a window requiring users to click a box indicating that the user has read, and agreed to be bound by, a lengthy set of terms. Such “click-wrap agreements” are often non-negotiable and difficult to understand for the average user. Do these types of “click-wrap agreements” need board approval?
  2. Will the school district provide the vendor with access to confidential student or employee information? If so, does the particular arrangement comply with FERPA and state law (Ed. Code § 49073, et seq.)?
  3. How will the district’s information be used by the outside vendor or service provider? Will the vendor be allowed to “mine” data about students, parents or employees?
  4. Do the user agreements allow the company to sell, or share, the district’s information with other entities?
  5. Will the company store the district’s information overseas, or out-of-state, which potentially may weaken the district’s ability to protect its rights?
  6. What happens if a student’s confidential information is leaked or there is a breach in security?
  7. What happens if the technology is used by a district employee, or an employee of the technology company, to inappropriately contact a student, or worse?
  8. What happens to the data when the contract term ends? What about if the provider goes out of business?

Over the years, Lozano Smith has been on the forefront in advising school districts on how to use emerging technologies legally, while protecting student and employee information. We recognize that preparing students for the 21st century is sometimes hindered by 20th century laws, making it all the more important to give thought to how new technology can be used legally. Our Technology and Innovation practice area has years of experience in reviewing and drafting technology-related contracts, advising on social media issues, developing email retention and electronic communications policies, and providing counsel to school districts and municipalities on a wide array of technology matters. Lozano Smith continues to assist clients in navigating the legal barriers that impede the use of emerging technologies.

Recognizing these challenges, school attorneys from around the nation are working together to find solutions. Recently, the National School Boards Association’s Council of School Attorneys made available a new publication, “Cloud Computing and Student Privacy: A Guide for School Attorneys” (COSA Guide). The COSA Guide is an in-depth resource for school attorneys who advise districts on “how best to protect the privacy of student information while remaining legally compliant and minimizing potential liability in the district’s use of cloud-based applications.” Lozano Smith attorneys Michael Smith and Manuel Martinez were contributors to the COSA Guide. While the Guide is not generally available to non-COSA members, our attorneys are available to provide similar guidance to our school district and municipal clients.

Issues regarding student privacy and technology will also be addressed by Lozano Smith attorney Manuel Martinez at the upcoming 13th Annual California Association of Latino Superintendents and Administrators (CALSA) Summer Institute during his presentation “Head in the Clouds? Addressing Student Electronic Media Issues.” This workshop, scheduled for July 15, 2014, in San Jose, will cover the latest technology and legal issues that school districts face in today’s world. Later that day, at the same conference, Lozano Smith attorneys Steve Ngo and Manuel Martinez will address how technology impacts the Brown Act and Public Records Act during their presentation “How Do Electronic Communications Fit With Open Government?” These presentations follow similar ones that Lozano Smith attorneys have been proud to make available to the California School Boards Association (CSBA), California Association of School Business Officials (CASBO) and others in recent years. We remain committed to helping public agencies navigate the challenging intersection of law and technology.

If you have any questions regarding technology related matters, or if we can be of assistance in reviewing technology agreements, please 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

Harold M. Freiman
Partner
Walnut Creek Office
hfreiman@lozanosmith.com

Manuel F. Martinez
Associate
Walnut Creek Office
mmartinez@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.