Cyberbullying: New Bill Confirms that Students May be Disciplined for Either Creating or Sending Electronic Bullying Content

July 2015
Number 39

Addressing an inadvertent drafting error in prior legislation, a new bill was recently signed by Governor Brown that clarifies that a student may be disciplined for either the creation or transmission of electronic bullying content while on or off of school grounds. Assembly Bill (AB) 881, effective January 1, 2016, further amends the definition of “electronic act” in Education Code section 48900 by changing the phrase “creation and transmission” to “creation or transmission.” This edit takes away an argument that a student must be both the creator and the transmitter of the bullying content to be subject to discipline under the Education Code.

AB 881 follows numerous amendments to Education Code section 48900 regarding bullying (see Lozano Smith Client News Brief Nos. 77 (2013), 42 (2012), 62 (2011), and 32 (2011)), and continues the legislative focus on electronic misconduct by students. While this statutory clarification assists school districts in protecting students against bullying in the online world, it does not eliminate the complicated due process, jurisdiction, and free speech issues that must be considered when carrying out a suspension or expulsion for cyberbullying activity. Bullying discipline cases will remain fact-specific, and tied very closely to finding one of the four statutorily required harmful effects related to the misconduct.

Through both our Student Practice Group and our Technology and Innovation Practice Group, Lozano Smith continues to provide school districts with comprehensive trainings and advice to address legal needs related to students and technology. If your district has questions regarding its policy framework related to discipline for bullying, or you are interested in one of the many trainings provided by Lozano Smith regarding student and technology issues, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

Written By

Thomas Manniello
Partner
Monterey Office
tmanniello@lozanosmith.com

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

©2015 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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California Law Now Requires School Districts to Provide Affordable Care Act Enrollment Information to Parents and Guardians of New Students

July 2015
Number 38

Starting in the 2015-2016 school year, Assembly Bill (AB) 2706 requires school districts to provide information about health care coverage options and enrollment assistance to the parents and legal guardians of newly enrolled kindergarten and transfer students. The requirements of AB 2706, which added Education Code section 49452.9, apply to the 2015-2016 through 2017-2018 school years.

The federal Patient Protection and Affordable Care Act (PPACA) requires that individuals and their dependents have minimum essential health care coverage for each month of the calendar year. To this end, AB 2706 requires school districts to add an informational item to their enrollment forms or amend an existing enrollment form to provide the parent or legal guardian of newly enrolled students with information relating to health care coverage. To meet the law’s requirements, districts may do any of the following:

  • Use the template informational item developed by the California Department of Education (CDE), which must be made available on the CDE’s website no later than August 1, 2015; or
  • Independently develop an informational item, or amend an existing enrollment form to provide information about health care coverage options and enrollment assistance.

Under the new law, districts may also include a fact sheet in conjunction with either of the chosen options above, or use the CDE created fact sheet (also to appear on the CDE’s website no later than August 1, 2015) explaining basic information about PPACA coverage options and enrollment assistance.

Assembly Bill 2706 only requires school districts to provide the parents and guardians of new enrollees with the required information pertaining to health care coverage. However, nothing prohibits districts from providing the information to all its students. Looking to future school years, a school district may include the required informational item and fact sheet as part of its annual notice and/or parent-student handbook. Finally, while the CDE has yet to post on its website the template informational item form or fact sheet described above, the CDE has partnered with All In For Health Care and endorsed the forms created by that organization intended to fulfill AB 2706’s requirements.

For more on information on AB 2706 and its implications for your school district, please contact one of our nine 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

Carey Hawkins Ash
Associate
Sacramento Office
cash@lozanosmith.com

©2015 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.

Significant Changes to California Family Rights Act Regulations

July 2015
Number 37

The California Family Rights Act (CFRA) is the state law that allows qualifying employees to take up to 12 weeks of leave in a 12 month period to care for an employee’s family member or for the employee’s own medical condition, or in connection with the birth, adoption or fostering of an employee’s child. To qualify for CFRA leave, several threshold requirements must be met: (1) an employer must employ 50 or more employees; (2) an employee must work at a worksite with at least 50 employees within a 75 mile radius; (3) an employee seeking CFRA leave must have worked 1,250 hours for that employer in the 12 consecutive months prior to the leave; and (4) an employee must have been employed by the employer for at least 12 non-consecutive months before the requested leave.

The Family Medical Leave Act (FMLA) is the federal law that allows employees annually to take 12 weeks of leave for reasons that include those allowed under CFRA. While there are significant differences between CFRA and FMLA, the CFRA regulations have recently been changed to align the application of CFRA leave rights more closely with the application of FMLA leave rights. These revised CFRA regulations are effective July 1, 2015. Laws regarding leaves of absence, including CFRA and FMLA, can be complex and may overlap in various ways. Employers should consult with legal counsel when any specific questions of implementation arise.

Some of the significant amendments to the CFRA regulations include:

Eligibility Requirements
The CFRA regulations now align with FMLA regulations, which allow an employer to disregard the months worked by an employee before a break in employment of seven years or more when determining if an employee has worked for at least 12 months for the employer. However, employees who are ineligible for CFRA because they have not satisfied the 12 month requirement at the start of their leave may later become eligible for CFRA while on another leave (such as sick or vacation) regardless of whether that leave is paid or unpaid.

Employer Response
An employer previously had 10 calendar days to respond to a CFRA leave request. The CFRA regulations now align with the FMLA and require the employer to respond to a leave request within 5 business days.

Intermittent Leave
The CFRA regulations provide much greater detail regarding how intermittent CFRA leave may be taken and how it is counted against an employee’s 12 week leave allotment. For example, partial-day absences must be counted against the allotted CFRA leave amount in the shortest period of time that the employer’s payroll system uses to track leaves or absences, but the minimum increment cannot exceed a one-hour period.

Medical Information
The CFRA amendments limit an employer’s ability to obtain additional medical information regarding an employee or an employee’s family members. Under the new regulations, an employer is limited to only contacting the health care provider for the sole purpose of receiving authentication of a medical certification.

An employee must also cooperate with the employer’s requests for necessary medical information. An employee’s failure to respond to permissible employer inquiries may cause the employer to deny CFRA leave rights and protections. This may happen if the employer cannot determine if the leave that the employee is requesting is CFRA-qualifying. The employer may set a deadline for providing medical certifications no later than 15 calendar days after the employer has requested the information. The employer must give the employee notice of the consequences of non-compliance. Absent extenuating circumstances, the employer may deny CFRA leave protections following the 15-day time period until the employee produces sufficient certification.

Under the CFRA regulations, an employer may demand that an employee obtain the opinion of a second health care provider when it has a “good faith, objective reason” to doubt the validity of the initial certification. A third health care provider may be used only when the second opinion differs from the first health care provider’s certification.

Health Coverage, Benefits, and Seniority
With a few exceptions, an employer must maintain group health plan coverage for an employee while the employee is on CFRA leave. The employee is responsible for maintaining timely payment of their premiums for their health plan coverage while on CFRA leave, and the revised CFRA regulations provide specific and limited circumstances under which an employer may discontinue coverage prior to reinstatement.

If an employer provides a new or different health plan or benefits during an employee’s CFRA leave, the employer must give the employee notice that he or she is subject to the terms of the new or changed plan or benefits. Additionally, the CFRA regulations now expressly protect an employee from losing any seniority or longevity “credit” that he or she would have accrued without having taken a CFRA leave.

Reinstatement Rights and Obligations
An employee returning from CFRA leave is entitled to reinstatement to the same or comparable position upon his or her return to the workplace. The revised regulations clarify that the employee’s position of reinstatement must be “virtually identical” in terms of pay, benefits, shift, schedule, geographic location, and working conditions including privileges, perquisites, and status. The regulations also expressly authorize an employer to accommodate an employee’s request for a different position for personal reasons, promotion, or as a disability accommodation.

When an employee returns to work after a continuous CFRA leave, the employer may require the employee to produce a medical release to return-to-work, but only if it is required from other employees returning to work after illness, injury, or disability, and is not prohibited by a collective bargaining agreement. A medical release is not required upon return from every intermittent CFRA leave, but may be required every 30 days based upon reasonable safety concerns for the employee. A fitness-for-duty examination cannot be required as a condition of reinstatement, but it may be required after an employee returns to work if it is job-related and consistent with a business necessity.

Retaliation
The amended regulations provide much greater detail regarding prohibited “retaliation” and “interference” with an employee’s exercise of CFRA rights. Prohibited conduct by an employer includes: interfering with an employee’s right to take CFRA leave, retaliation or discrimination against an employee for requesting or taking CFRA leave, or requesting that employees “waive” their CFRA leave rights. Notably, the CFRA regulations now expressly affirm that an employee loses his or her reinstatement rights if the employee obtained or used CFRA leave on a fraudulent basis.

The application of CFRA and other leave laws requires a fact specific inquiry and an analysis of each individual employee’s unique circumstances. Employers should consult with legal counsel if any questions arise regarding an employee’s entitlement to CFRA leave or the employer’s CFRA obligations.

For more on information on the CFRA regulations, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

Written By

Darren C. Kameya
Partner
Los Angeles Office
dkameya@lozanosmith.com

Inna Volkova
Associate
Fresno Office
ivolkova@lozanosmith.com

©2015 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.

Controversial New Immunization Requirements for School-Age Children

July 2015
Number 36

On June 30, 2015, the Governor signed Senate Bill (SB) 277 into law. SB 277 eliminates personal belief and religious exemptions for vaccine requirements for school children. Previously, students attending public and private schools, including preschools and day cares, did not have to meet immunization requirements under Education Code section 48216 and Health and Safety Code sections 120325 et seq. if their parents chose to opt-out of certain vaccinations due to personal or religious beliefs. SB 277 becomes the strictest mandatory vaccination law in the country. Many, even including some vaccination supporters, have argued that the new law infringes on constitutionally protected parental and religious rights.

SB 277 does not take effect until January 1, 2016, and until such time, schools must continue to honor parent and guardian personal belief and religious exemptions. Under SB 277, school districts should be aware of the following:

  • Students may still be exempt from the immunization requirements for medical exemptions provided by a doctor;
  • SB 277 includes a “grandfather clause,” which allows children who are already enrolled with personal belief or religious exemptions to remain in school until check point years. These checkpoints occur when a child first enrolls in a new school, when a child reaches kindergarten, or when a child reaches 7th grade;
  • Students not previously immunized may continue in school as a “conditional entry,” by obtaining a written plan from their doctor that outlines when any missing vaccines will be completed;
  • Students who have an individualized education plan are not subject to the immunization requirements;
  • Homeschooled students are not subject to the immunization requirements; and
  • The list of mandatory vaccines required for school is shorter than the number of vaccines on the Center for Disease Control schedule.

Finally, opponents of SB 277 have begun the referendum process, seeking to have SB 277 overturned by a popular vote. The matter will be put to the voters on the state-wide general election ballots in November of 2016 if the requisite number of signatures is obtained on the referendum petition. We will continue to monitor and update districts on the status of SB 277. This may impact upcoming annual Parental Notices. School districts should consult with their legal counsel regarding any necessary updates.

If you have questions regarding the new immunization requirements or other student obligations, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

Written By

Roberta L. Rowe
Partner
Fresno Office
rrowe@lozanosmith.com

Jessica Gasbarro
Associate
Sacramento Office
jgasbarro@lozanosmith.com

©2015 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.

Court Rules That Data From Automated License Plate Reader Searches Are Not Discoverable Under The Public Records Act

July 2015
Number 35

An appellate court recently held that data generated from automated license plate recognition systems are exempt from disclosure under the Public Records Act. The Public Records Act exempts certain types of records from disclosure, including records of law enforcement investigations under Government Code section 6254, subdivision (f). In American Civil Liberties Union Foundation of Southern California et al. v. Superior Court (2015) 2015 Cal.App. Lexis 378, the court examined whether the functions performed by the Automatic License Plate Reader (ALPR) system can properly be characterized as records of law enforcement investigations under Government Code section 6254, subdivision (f). The appellate court held that, because section 6254, subdivision (f) does not distinguish between investigations to determine if a crime has been or is about to be committed and those that are undertaken once criminal conduct is apparent, the automated license plate recognition system data are records generated in the course of performing investigations into suspected crimes and thus fall under the Public Records Act exemption.

For more than a decade, the Los Angeles Police Department (LAPD) and Los Angeles Sheriff’s Department (LASD) have used ALPR technology to check license plates to determine whether a vehicle is stolen or otherwise wanted in connection with a crime. The ALPR systems consist of specialized cameras mounted to patrol cars or stationary structures that scan license plates in their immediate vicinity and record the license plate number together with the time and location of the scan. At virtually the same time, the ALPR system checks every license plate number it scans against a list of known license plates associated with suspected crimes (a “hot list”). If the system registers a hit, patrol officers are immediately notified that a hot list vehicle is in their vicinity.

The American Civil Liberties Union Foundation of Southern California and Electronic Frontier Foundation (collectively “ACLU”) sent a California Public Records Act (CPRA) request for the policies and guidelines concerning the use of ALPR technology, as well as all ALPR plate scan data collected during a single week in August 2012. LAPD and LASD agreed to produce the policies and guidelines, but refused to disclose the week’s worth of ALPR data, citing the law enforcement investigative records exemption under the CPRA and privacy concerns. The ACLU sought to compel production of the ALPR data under the CPRA; however, the trial court denied their request. The trial court concluded that the records were exempt as records of law enforcement investigations under section 6254, subdivision (f).

On review, the appellate court affirmed the trial court’s order denying the ACLU’s request for production of the ALPR data. The appellate court concluded that the ALPR system’s core function is to investigate suspected crimes, and the records generated in the course of performing that function are records of these investigations. The ALPR data, therefore, is exempt from disclosure pursuant to section 6254, subdivision (f). The court relied on prior precedent from the California Supreme Court holding that section 6254, subdivision (f) does not distinguish between investigations to determine if a crime has been or is about to be committed and those that are undertaken once criminal conduct is apparent.

The court further held that the scans performed by the ALPR system are precipitated by specific criminal investigations; namely, the investigations that produced the “hot list” of license plate numbers associated with suspected crimes. The ALPR system replicates a type of investigation that officers routinely perform. This process constitutes an investigation, even though it is automated.

Finally, the court determined that retention of the ALPR data is irrelevant to whether the records qualify under section 6254, subdivision (f) as an investigative record. Although the LAPD and LASD retain the records in a database for years after the initial hot list check, nothing in section 6254, subdivision (f) places a time limit on the exemption for investigative files. As a result, the LAPD and LASD met their burden of establishing that the requested ALPR records were exempt from disclosure, pursuant to section 6254, subdivision (f), as investigative records.

At this time, it is unclear whether the ACLU will appeal this decision to the California Supreme Court. If they do, and review is granted, public agencies will not be able to rely on the decision until the California Supreme Court decides the matter.

For further information about this case, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

Written By

Jenell Van Bindsbergen
Senior Counsel
Fresno Office
jvanbindsbergen@lozanosmith.com

Roy C. Santos
Associate
Fresno Office
rsantos@lozanosmith.com

©2015 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.

Fees for Adult Education Classes in English and Citizenship are Impermissible as of July 2, 2015

July 2015
Number 34

On July 2, 2015, school districts will no longer be permitted to charge a fee for adult education classes in English and citizenship. As previously reported by Lozano Smith, Assembly Bill (AB) 189 amended Education Code section 52612 to allow school districts to charge a fee for adult education classes in English and citizenship from January 1, 2012 until July 1, 2015. (Please see Client News Brief No. 56, October 2011.) Such fees were allowed to prevent these classes from being eliminated due to categorical flexibility.

Because Education Code section 52612 returns to its pre-AB 189 form as of July 1, 2015, school districts will need to eliminate any fees for adult education classes in English and citizenship, as well as update their policies and regulations regarding student fees to reflect this change in law.

If you have any questions or concerns regarding permissible or impermissible student fees, or about adult school issues, please contact one of our
nine 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

Amber M. Bridges
Associate
Fresno Office
abridges@lozanosmith.com

©2015 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.