Proposition 64: Legal and Practical Considerations

December 2016
Number 87

On November 8, 2016, California voters passed the “Control, Regulation and Tax Adult Use of Marijuana Act” (“Prop. 64”), legalizing recreational marijuana use for those 21 years old and older. The new law, effective immediately, among many other provisions does the following related to marijuana:

  • Establishes a regulatory scheme for cultivation, distribution, sale, testing and use;
  • Allows for personal cultivation of up to six plants inside a private home;
  • Prohibits public use;
  • Prohibits all use in vehicles and maintains existing laws about driving while impaired;
  • Prohibits use within 1,000 feet of a school, day care center or youth center (unless it is in a private residence within that radius and the smoke cannot be detected at the school or center);
  • Allows cities and counties significant local control over regulation related to sale, manufacturing, production, cultivation and related businesses, including the authority to ban certain activities within the agency’s jurisdiction;
  • Allows public and private employers to prohibit use, possession, purchasing, transporting, obtaining or giving away marijuana on their premises and to establish and enforce drug- and alcohol-free workplace policies;
  • Imposes penalties for public use, use in prohibited school or tobacco-free zones or for having an open container; and
  • Provides for drug prevention education and community service for offenders younger than 18 years.

The Act also establishes the Bureau of Marijuana Control, a division within the Department of Consumer Affairs, which will oversee the licensing, regulation and taxation of all marijuana businesses beginning January 1, 2018. Thus, provisions related to licensing and taxation are not effective until January 1, 2018. However, the provisions allowing personal use and cultivation of marijuana inside a private residence are effective immediately.

The impact of federal law on enforcement of Prop. 64 is uncertain. Marijuana continues to be a Class 1 narcotic under the federal Controlled Substances Act, but the U.S. Department of Justice indicated in a 2013 memorandum that it would defer enforcement for marijuana violations to states that had established “strong and effective regulatory and enforcement systems.” It is uncertain whether the Department of Justice’s current practice will remain in effect or be altered when a new presidential administration takes office in January.

The passage of Prop. 64 raises many issues for public agencies responsible for school and child safety, public health and safety, law enforcement, and for maintaining safe and drug-free workplaces. These issues include, but are not limited to:

  • Employees possessing, using or sharing marijuana in or near the workplace;
  • Establishing a defensible drug-free workplace policy, including a drug-testing protocol; and
  • Dealing with employees and/or students who are suspected of being under the influence.

Lozano Smith is currently working with our municipal, school district, community college and special district clients to address these and other issues related to the enactment of Prop. 64. For more information on how the new law impacts your agency, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit ourwebsite, follow us on Facebook or Twitter or download our Client News Brief App.

 
Written by:

Lee Burdick

Senior Counsel

©2016 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.

Labor and Employment Legislative Update, Part Two

December 2016
Number 86

Governor Jerry Brown considered several bills this legislative season that will affect the rights of public employees and their employers. In this second part of a two-part series, Lozano Smith summarizes seven new laws with the greatest potential impact on public employers in 2017.

Assembly Bill (AB) 2248: Expedited Authorizations for Out-of-State Teachers with Bilingual Authorization

AB 2248 seeks to address California’s teacher shortage and expedite the ability of schools to place qualified bilingual teachers (i.e., teachers authorized to deliver content instruction in a pupil’s primary language) in California classrooms. Under existing law, teachers who hold an out-of-state credential authorizing instruction of English learners are allowed to earn an English learner authorization to teach in California. However, current law does not extend that authorization to out-of-state bilingual teachers. Instead, out-of-state bilingual teachers must take professional tests and coursework to obtain a bilingual authorization in California regardless of their qualifications. AB 2248 amends Education Code section 44253.4 so that a teacher who holds an out-of-state bilingual authorization can earn an equivalent bilingual learner authorization in California by simply submitting an application and a fee.

Senate Bill (SB) 1001: New Prohibitions on Employer Review of Employment Authorization Documents

On September 28, 2016, Governor Jerry Brown signed SB 1001 into law. SB 1001 adds section 1019.1 to the Labor Code, which will prohibit employers from engaging in certain practices when reviewing employment authorization documents in order to verify, as required by federal law, whether an individual is authorized to work in the United States. Pursuant to SB 1001, an employer is prohibited from: (1) requesting more or different work authorization documents than are required under federal law; (2) refusing to honor documents that on their face reasonably appear to be genuine; (3) refusing to honor documents or work authorization based upon the specific status that accompanies the authorization to work; and (4) attempting to re-investigate or re-verify an incumbent employee’s authorization to work using an unfair immigration-related practice. The new code section also provides for sanctions against employers who violate its provisions, including monetary penalties imposed by the state Labor Commissioner of up to $10,000 per violation. In addition, job applicants and employees can bring a complaint with the Division of Labor Standards Enforcement to address violations of this new law. Employers should be mindful of these new prohibitions when reviewing employment authorization records to ensure compliance with the law.

SB 1180: Additional Leave Rights for Military Veterans

On September 28, 2016, Governor Brown signed SB 1180 into law. The bill, which adds sections 44978.2 and 45191.5 to the Education Code, is intended to provide disabled veterans who are new school employees with additional leave benefits during their first year of employment. Pursuant to SB 1180, certificated and classified employees hired on or after January 1, 2017 who are military veterans with a military service-connected disability rated at 30 percent or more by the U.S. Department of Veterans Affairs are entitled to a leave of absence for illness or injury with pay of up to 10 days (certificated) or 12 days (classified) during their first year of employment for the purpose of undergoing medical treatment for their military service-connected disability. This new leave is in addition to other leave already provided by existing law.

AB 1676 and SB 1063: Amendments to California’s Fair Pay Act

Existing law prohibits an employer from paying any employee “at wage rates less than the rates paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.” Willfully doing so is a misdemeanor punishable by a fine of up to $10,000 and/or six months imprisonment. (Lab. Code, §§ 1197.5, 1199.5.) The law contains specific exceptions, including where the pay differential is based on (1) a seniority system, (2) a merit system, (3) a system that measures earnings by quantity or quality of production or (4) a bona fide factor other than sex, such as education, training, or experience. These factors must be reasonably applied and account for the entire wage differential. (Lab. Code, § 1197.5.)

AB 1676 amends Labor Code section 1197.5 to provide that an employee’s “prior salary,” by itself, is not sufficient to justify any disparity in compensation. That is, an employer who relies solely on the employee’s prior salary to explain a pay differential will not qualify for the “bona fide” factor exception.

SB 1063 amends Labor Code sections 1197.5 and 1199.5 so that in addition to pay differentials based on sex, employers are prohibited from paying employees “at wage rates less than the rates paid to employees of another race or ethnicity.” Willfully paying employees less based on race and ethnicity is a misdemeanor. Local agencies and school districts are not entitled to reimbursement from the state for any costs they may incur as a result of SB 1063.

AB 1843: Juvenile Record Off Limits in Employment Decisions

With some exceptions, under existing law set forth in Labor Code section 432.7, when making employment decisions, an employer cannot inquire about or consider information concerning an arrest or detention that did not result in a conviction, a referral to or participation in any pretrial or post-trial diversion program or a conviction that has been judicially dismissed or ordered sealed. AB 1843 amends Labor Code section 432.7 to prohibit employers from asking a job applicant to disclose, or from utilizing as a factor in determining any condition of employment, information concerning or related to an arrest, detention, processing, diversion, supervision, adjudication or court disposition that occurred while the person was subject to the process and jurisdiction of juvenile court law. In addition, the definition of “conviction” in Labor Code section 432.7 will expressly exclude any adjudication by a juvenile court or any other court order or action taken with respect to a person who is under the process and jurisdiction of the juvenile court law.

AB 2028: Reinstatement of PERS Benefits

AB 2028 adds section 20969.3 to the Government Code and applies it to all active Public Employees’ Retirement System (PERS) school and local agency members. Pursuant to AB 2028, a member who is involuntarily terminated on or after January 1, 2017 and is later reinstated to that employment pursuant to an administrative, arbitral or judicial proceeding – including proceedings before school boards – is entitled to reinstatement with all retirement benefits that the member otherwise would have accrued. In addition, PERS contributions must be made, and service credit given, for any period for which salary is awarded in the proceeding. The reinstatement of benefits is effective as of the date from which salary is awarded. Employers are required to notify PERS of the final decision ordering the member’s reinstatement within five days of the date the decision becomes final.

For more information on these new laws, please contact the authors of this Client News Brief or an attorney at one of our 10 offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Marisa Lincoln

Partner

Sarah Starcevich Miller

Senior Counsel

Nicholas Smith

Associate

©2016 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.

Labor and Employment Legislative Update, Part One

December 2016
Number 85

Governor Jerry Brown considered several bills this legislative season that impact the rights of public employees and their employers. In this first part of a two-part series, Lozano Smith examines four new laws with the greatest potential impact on public employers in 2017, plus two major bills the Governor vetoed.

Assembly Bill (AB) 1918: County Offices of Education May Issue Temporary Certificates to Teachers Working in Nonpublic Schools while their Credential Applications are processed

AB 1918, signed into law on August 17, 2016, enables county offices of education to issue temporary certificates to certificated employees whose credentials are being processed by the California Commission on Teacher Credentialing (CCTC), including persons who have a certificate from another state and certificated employees of nonpublic schools. Prior to issuing a temporary certificate, a county office of education is required to obtain a certificate of clearance from the CCTC for the employee. The new law goes into effect on January 1, 2017.

Senate Bill (SB) 916: CCTC May Now Issue Single Subject Teaching Credentials in Dance and Theater

SB 916 authorizes the CCTC to issue two new single subject teaching credentials, in dance and theater. The bill, which the Governor signed on September 26, 2016, goes into effect on January 1, 2017. Existing law requires teachers to possess a single subject English credential in order to teach theater. Similarly, to teach dance, a teacher is required to possess a physical education teaching credential. In addition to the new credentials, the bill also permits current holders of physical education and English credentials, or persons who pursue such credentials before the establishment of a single subject teaching credential, to teach dance and theater, respectively. The Legislature made clear that these new provisions do not prohibit a school district from employing a teacher with a single subject teaching credential in another subject with an authorization to teach theater or dance.

Senate Bill (SB) 1413: Teacher Housing Act of 2016

The Teacher Housing Act of 2016 could make housing more affordable for school district employees throughout California. SB 1413, signed into law on September 27, 2016, will enable California school districts serving grades Pre-K through 12 to use federal tax credits and state and local funds to develop affordable housing for teachers and other school district employees. The Legislature anticipates SB 1413 will help address high teacher turnover rates that are driven, in part, by the increasing cost of housing in many California markets.

The stability of housing for school employees is critical to the overall success of California schools. Many believe that the current lack of affordable housing for educators negatively impacts teacher retention. The lack of affordable housing exacerbates the record low supply of new teachers in California, which disproportionately impacts schools serving low-income and minority students. According to the Legislature, both students and the community benefit from teachers living near their employing school district.

Under the new law, which goes into effect on January 1, 2017, districts may leverage federal low-income housing tax credits, along with state and local public and private funding, in order to establish affordable housing programs for district employees. The law also creates a new state policy, pursuant to the federal Internal Revenue Code, allowing district-owned land to be developed as affordable rental housing earmarked solely for district employees. In order to comply with SB 1413, a school district must offer a majority of the rents at levels that are affordable to low or moderate income levels. Affordable housing options on or near school sites will offer the added benefits of reducing employees’ commute time and time away from the home.

While SB 1413 does not address local zoning requirements for such housing, it is unlikely that local zoning laws could be overridden by the school district. SB 1413 signals an opportunity for school districts to seek out local housing developers interested in proposing options to develop affordable housing on District-owned property and shoulder the burden of any zoning variance required for such purpose.

Senate Bill (SB) 294: Military Service Retirement Credits for Public Employees

SB 294 requires school districts and other employers participating in the California Public Employees’ Retirement System (CalPERS) to inform military veteran employees of their right to receive CalPERS credit for periods of active service.

Under existing law, public employees participating in CalPERS are entitled to certain rights upon return to public employment following a leave of absence to perform active military duty. Such employees have the right to receive salary adjustments, retirement contributions and applicable employer-paid service credit in the retirement system to include the employee’s period of active duty. Veterans who performed active military duty prior to membership in CalPERS are also allowed to self-purchase additional military service credits. In order to receive service credits, eligible employees must properly file an application form with CalPERS.

Under SB 294, on or by March 31, 2017, school districts and other CalPERS employers must inform returning veterans of their rights to receive applicable service credits and, within 30 days of their return to state service, must provide veterans with the appropriate CalPERS application forms. Upon hire, CalPERS employers must also inform veterans of their right to purchase CalPERS credits for military service prior to employment and membership in CalPERS.

Currently, some veterans are unaware that they are eligible for this important CalPERS benefit, or do not know how to submit forms in order to apply for the benefit. With SB 294, the Legislature aims to simplify the benefits process and ensure military veterans and their survivors have a greater chance of receiving the retirement credits to they are entitled to.

Assembly Bill (AB) 2826: Governor Vetoes Law that would have Expanded Methods and Measures Available for Use in Teacher Evaluations

AB 2826, which was vetoed by Governor Jerry Brown on September 30, 2016, would have expanded methods and assessment tools available for use and consideration in the formal teacher evaluation process. The Education Code requires school districts to evaluate teachers according to standards relating to pupil progress toward certain academic standards, instructional techniques and strategies used and teacher adherence to curricular objectives.

AB 2826 would have added an Education Code section to specifically permit and encourage the use of certain student academic progress information and data in teacher assessment and evaluation. The bill also included specific measures for assessing instructional techniques and strategies and adherence to curricular objectives.

While some school districts already use student progress data in teacher evaluations, its use has been the subject of recent legal challenge. (See 2016 Client News Brief No. 80.) In his veto message, Governor Brown expressed his belief that the additional assessment factors would not “materially change current teacher evaluations in California.” Given the veto, it is likely that districts’ ability to use student assessment data in teacher evaluations will be decided by the courts rather than the Legislature.

Assembly Bill (AB) 2197: Unemployment Insurance for Classified Employees

AB 2197, which was vetoed by the Governor on September 30, 2016, would have made classified school employees eligible to receive unemployment benefits between school years, with or without a reasonable assurance of being employed the next academic year. Under the proposed law, classified employees would have been eligible to receive up to two weeks of unemployment benefits beginning July 1, 2017, increasing to eight weeks of benefits by July 1, 2020. In his veto message, the Governor declined to approve the bill due to conformity issues with federal unemployment insurance laws, potentially resulting in sanctions from the federal government and the loss of significant tax credits for California employers.

For more information on these new laws, please contact the authors of this Client News Brief or an attorney at one of our 10 offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Penelope Glover

Senior Counsel

Gabriela Flowers

Senior Counsel

Erin Hamor

Associate

 

©2016 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.