Legislative Update: Employers Can’t Ask, but Applicants Can Tell

October 2017
Number 68

Employers, including public agency employers, will be forbidden from asking job applicants for their salary history when Assembly Bill (AB) 168 becomes effective on January 1, 2018.

AB 168 explicitly prohibits public agency employers from asking job applicants for salary history information. However, when an applicant voluntarily and without prompting provides salary history information, employers may use the information as a factor in determining salary if the employer’s decision is supported by a bona fide factor other than sex, race, or ethnicity. Further, if the applicant’s prior salary history information is subject to public disclosure pursuant to federal or state law, employers may independently obtain the public information and use it as a factor in determining salary if the employer’s decision is supported by a bona fide factor other than sex, race, or ethnicity.

AB 168 also requires employers to provide a pay scale for an open position upon an applicant’s “reasonable request.” Employers that violate AB 168 are subject to monetary civil penalties under the Private Attorneys General Act.

The bill’s supporters argue that eliminating the practice of asking for salary history information will equalize pay for women and people of color. They claim that basing wages on market value instead of salary history will eradicate pay inequality.

Critics of AB 168 say the new law is gratuitous because there are already protections in place to prevent wage discrimination. For example, California Labor Code section 1197.5 prohibits an employer from using an applicant’s salary history, by itself, to justify a pay disparity. They argue that there are often legitimate reasons to ask about salary history, including unavailability of information regarding the market value for a newly created position. The new law may expose employers to litigation by creating another reason for applicants to sue prospective employers.

The availability of public agency salary information and the uniformity of wages paid to similarly situated workers may blunt the impact of AB 168 on the process of hiring rank-and-file employees and may minimize the need to ask applicants for salary history information. For school districts, the uniform salary schedule rule provides a rigid benchmark for certificated salaries that are paid uniformly based on an employee’s education and years of experience. Classified employee salary schedules are similarly uniform in nature. Applicants for both certificated and classified positions are placed on the salary schedules based upon standard criteria.

AB 168 will likely have a greater impact on the negotiation of salaries for management position applicants, because public employers are now required to produce a salary range for open positions upon request and cannot place new hires within the range based solely upon the applicant’s prior salary level. As a result, public employers may not have as much room to negotiate.

Takeaways

Public employers should ensure that their standard application forms do not include a request for prior salary information. Further, public employers should train employees who interview prospective employees to refrain from asking applicants about their salary history.

For more information about AB 168 or on hiring practices 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:

Darren C. Kameya

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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United State Supreme Court to Again Review Mandatory Union Fees

October 2017
Number 67

On September 28, 2017, the United States Supreme Court agreed to review the Illinois case Janus v. AFSCME, Council 31, which challenges the constitutionality of “fair share” or “agency” fees collected by unions. A decision in the case is anticipated by June 2018.

Janus challenges the constitutionality of fair share fees (a.k.a. agency fees) under Illinois law. Specifically, the Illinois Public Relations Act allows unions to collect fair share fees from non-union member employees on whose behalf the union also negotiates to cover the costs of negotiating and administering the contract. This law is similar to California law, which allows unions to collect a fair share fee from bargaining unit members who choose not to join the union.

In Janus, the plaintiff, a state-employed child support specialist, challenged the mandatory payment of fair share fees, claiming such arrangements are unconstitutional under the First Amendment.Janus claims that the fees support a mandatory advocacy group whose speech is designed to influence governmental policies in excess of employees’ actual support for the advocacy group and its agenda. The plaintiff seeks to overturn a 40-year old ruling inAbood v. Detroit in which the Court ruled that it was constitutional to require all employees to pay to support the cost of bargaining, so long as the fees paid by the workers are not used to cover the cost of political or ideological activities.

If the Supreme Court overturns the Abood ruling and finds that fair share fees or agency fees violate constitutional rights to free speech and association, employees would no longer be required to pay anything if they decline membership in the union. Proponents of the Abood ruling argue that without such fees, non-members reap the benefits of the union by using their services without bearing the cost.

The Janus case is not the first time that the Abood ruling has been challenged.Friedrichs v. California Teachers Association, a case involving California teachers, was on the brink of overturning the Abood ruling. The death of Justice Antonin Scalia in February 2015 left the Supreme Court without a ninth vote, and the Court split 4-4 when it decided the Friedrichs case. The appointment of Neil Gorsuch to the Supreme Court may provide the fifth vote needed to overturn theAbood case and to find mandatory fair share fees to be unconstitutional.

In addition to the Janus case under review by the Supreme Court, a case currently pending in a federal district court in California challenges fair share fees. That case,Yohn et al. v. California Teachers Association et al. (C.D. Cal., Case No. 8:17-cv-00202-JLS-DFM), in which Lozano Smith represents several involved school districts, claims that these fees violate the First Amendment’s individual speech rights. There was an unsuccessful attempt to fast-track Yohn to the Supreme Court to be considered with theJanus case. Thus, while the Yohn case is still pending, it is possible that the ruling in Janus will be dispositive of the major issues.

The Supreme Court’s agreement to review the Janus case does not impose any new obligations on public employers with respect to mandatory fair share fees. Rather, existing collective bargaining agreement provisions on fair share fees will remain in effect until a decision is issued by the Court.

Lozano Smith will be watching this case closely and will provide updates as they become available. For more information on the Janus case or on union dues 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

Jayme A. Duque

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.

Legislative Update: New Timelines for Interdistrict Transfer Appeals at Certain County Offices of Education

October 2017
Number 66

Under existing law, school districts enjoy wide discretion in setting the terms for rejection and revocation of an interdistrict transfer under Education Code section 46600 et seq. Terms of transfer revocation are typically clearly specified in a transfer agreement between two school districts. Rejection and revocation of interdistrict transfers cannot be based on any discriminatory or other unlawful basis. Students denied an interdistrict transfer may appeal the denial to the county office of education.

Due to a recent increase in the number of interdistrict transfer appeals heard by the Los Angeles County Office of Education, the Legislature passed Senate Bill (SB) 344 to provide a longer timeline for a county office of education to hear these appeals. This bill takes effect January 1, 2018. The Los Angeles County Office of Education now has 60 calendar days after an appeal is filed to consider whether a student should attend school where he or she desires.

Other large county offices of education (Alameda, Contra Costa, Fresno, Kern, Orange, Riverside, Sacramento, San Bernardino, San Diego and Santa Clara) now have 45 calendar days instead of 40 school days to make this determination. These new timelines are set to expire on July 1, 2023 for the Los Angeles County Office of Education and July 1, 2019 for these other large county offices of education.

If you have any questions about the implementation of SB 344, 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:

Roberta L. Rowe

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.

Legislative Update: Governor Approves Changes to Pre-Suspension Conferences

October 2017
Number 65

On October 3, 2017, Governor Jerry Brown signed Assembly Bill (AB) 667, which generally requires schools to inform students about other means of correction that were attempted before suspending a student at the mandatory informal disciplinary conferences. This bill takes effect January 1, 2018.

Education Code section 48911, subdivision (b), requires a student being suspended to be informed during the mandatory informal pre-suspension conference of the reason for the suspension and the evidence against the student. The student must be given the chance to tell his or her side of the story and to produce any evidence to support it. AB 667 will now also require that students be informed of the other means of correction that were attempted prior to suspension. Other means of correction, defined under Education Code section 48900.5, include, but are not limited to, referrals to a school counselor, a student study team, a restorative justice program, after-school programs and a special education assessment.

AB 667 does not change the law about when other means of correction must be attempted before a school district can suspend a student. Under Education Code section 48900.5, there are certain disciplinary violations or facts offense and before use of other means of correction.

AB 667 continues the Legislature’s desire to reduce the total number of suspensions and expulsions since the passage of AB 420 in 2014, which limited school districts’ ability to suspend and expel students for disrupting school activities or committing an act of willful defiance. (See 2014 Client News Brief No. 72.) These measures are rooted in studies which show over half of students with multiple suspensions are chronically absent, boys are three times more likely to be suspended than girls, and students of color, foster youth, and low-income students are disproportionately suspended. The California Department of Education has reported a 34 percent drop in suspensions and a 40 percent drop in expulsions since AB 420 was implemented.

School districts and county offices of education will need to update their disciplinary procedures to ensure that this new notice requirement at the informal pre-suspension conference is met.

If you have any questions about the implementation of AB 667, please contact the authors of this Client News Brief or an attorney at one of oureight offices located statewide. You can also visit ourwebsite, follow us onFacebook orTwitter or download our Client News Brief App.

Written by:

Roberta L. Rowe

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.

Legislative Update: New Immigration Laws Protect Undocumented Students

October 2017
Number 64

On October 5, 2017, Governor Jerry Brown signed a package of bills aimed at enhancing protections for immigrants. Three of the bills have significant implications for schools and students. The three bills become effective January 1, 2018.

Assembly Bill 699: Mandates New Supports and Policies for Immigrant Families

Assembly Bill (AB) 699 requires schools and school districts to provide an array of new supports for immigrant families and limits the assistance schools may provide with immigration enforcement activities. The bill’s major provisions are described below.

Discrimination:

The bill expressly prohibits discrimination on the basis of immigration status. Immigration status cannot be used as a basis to deny students access or opportunity within public schools.

Collection of private information:

School officials are prohibited from collecting or requesting information or documents regarding the citizenship or immigration status of students or their family members unless required by law, such as for student work permits or the federal school lunch program. The bill restates a recently enacted prohibition on asking for Social Security numbers or the last four digits of Social Security numbers.

Detained and deported parents:

A school should not contact Child Protective Services (CPS) to assist students whose parents have been detained or deported by immigration officials until it has exhausted all other avenues to ensure their care. Schools are required to pursue all contacts on the child’s emergency card or any other instructions provided by a parent or guardian prior to contacting CPS. The intent of this provision is to avoid the unnecessary placement of children in foster care.

Student and family support:

Schools must provide “Know Your Rights” information to parents. For example, students have the right to a free public education regardless of immigration status, and schools must advise parents of this right. This information and notification may be provided in a school or school district’s annual notice to parents, or by any other cost-effective means. The California Attorney General’s website includes Know Your Rights resources at https://oag.ca.gov/immigrant/rights.

Bullying and harassment education:

Under AB 699, schools must educate students about the negative impacts of bullying based on a student’s actual or perceived immigration status or their religious beliefs or customs. According to a Legislative analysis, there have been hundreds of reported incidents of bullying, harassment and intimidation across the country based on these factors this year. The California Department of Education is now required to ensure school districts adopt policies prohibiting discrimination and establish procedures for reporting and addressing such incidents. Schools may need to modify anti-bullying curricula and provide additional professional development to staff in order to address immigration status and religious practices and customs.

Safe Haven Policies:

By April 1, 2018, the California Attorney General must create model policies that address immigration agents’ requests to access school sites or for information about students or their family members. Schools must implement equivalent policies by July 1, 2018.

Report to Board:

Superintendents or charter school principals are required to timely report to their governing boards any law enforcement request for student information or for school site access for immigration enforcement.

Senate Bill 54: “Sanctuary State” Bill Limits Assistance with Immigration Enforcement

Informally known as the “Sanctuary State” law, Senate Bill (SB) 54 prohibits state and local law enforcement agencies, including school police and security departments, from assisting immigration enforcement in any way. Specifically, law enforcement agencies may not use money or personnel to investigate, interrogate, detain, detect or arrest persons for immigration-related offenses.

By October 1, 2018, the state Attorney General must publish model policies for limiting assistance to immigration enforcement and to ensure that public schools, public health agencies and courthouses remain safe and accessible to all California residents, regardless of immigration status. All public schools, California Community Colleges, California State Universities, public health centers and courthouses must adopt these policies and become “safe zones” for immigrants. Other organizations that provide services related to education or physical and mental health such as libraries, shelters and the University of California system, are encouraged to adopt similar policies.

SB 54 does not prevent Immigration and Customs Enforcement or the Department of Homeland Security from doing their work by using their own resources to enforce immigration laws. The law seeks to ensure effective policing to protect the safety, well-being, and constitutional rights of the people of California, and to direct the state’s limited resources to matters of greatest concern to state and local governments. Nothing in the new law prohibits California law enforcement agencies from asserting its own jurisdiction over criminal law enforcement matters.

Senate Bill 257: Residency Retention for Students Whose Parents are Detained or Deported

Existing law generally requires students to attend school in the district in which their parent or legal guardian resides. Senate Bill (SB) 257 adds section 48204.4 to the Education Code permitting students to meet residency requirements when both of the following requirements are met:

(1) The student’s parent or guardian has departed California against his or her will, and the student can provide official documentation evidencing the departure; and

(2) The student moved outside of California as a result of his or her parent leaving the state against his or her will, and the student lived in California immediately before moving outside the state. The student must provide evidence of enrollment at a public school in California immediately before moving outside of the state.

SB 257 also allows a parent who must depart against his or her will to designate another adult to attend school meetings and to serve as an emergency contact.

The bill defines a person who has departed against their will as either:

  • A person in the custody of a government agency who is transferred to another state;
  • A person subject to a lawful removal order, who was either removed or was permitted to voluntarily leave California before being removed; or
  • A person subject to any additional circumstances consistent with these purposes, as determined by the school district.

If you have questions about these new laws and their impact on schools, 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 L. Garcia

Partner

Sara E. Santoyo

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.

New Laws Enhance Role of Student School Board Members

October 2017
Number 63

On September 25, 2017, Governor Jerry Brown signed two bills aimed at giving a stronger voice to student board members of school district governing boards. Assembly Bill 261 confers voting rights upon all student board members, while Senate Bill 468 enhances a student board member’s access to board materials. Both bills go into effect on January 1, 2018.

Assembly Bill 261: Voting Rights for All Student Governing Board Members

Existing law requires the governing board of a school district with one or more high schools, upon the receipt of a pupil petition for pupil representation, to order the inclusion of at least one student board member. The petitioner may request that the board add either a nonvoting student member or a preferential voting student member. Preferential voting rights give a student board member the right to vote on motions before the other board members vote, but the student’s vote is not considered in determining whether a motion passes. Assembly Bill (AB) 261 amends Education Code section 35012, subdivision (d) to provide all student board members preferential voting rights.

The bill maintains the existing requirement that a student board member’s vote be cast before the official vote of the governing board. Even though the student board member’s vote does not count toward the final numerical outcome of the vote, it must be recorded in the meeting minutes. This procedural order is intended to ensure that student board members’ opinions are taken into account before a board vote.

Senate Bill 468: Students to Receive More Timely Access to Board Materials

Senate Bill (SB) 468 amends Education Code section 35012 to require that school districts provide open meeting materials to student board members at the same time as other school board members. The bill also requires school officials to invite student board members to any staff briefings provided to other board members, or to provide a separate staff briefing to student board members within the same time frame as other board members’ briefings. While the changes will provide student members more timely access to information, the bill’s provisions are limited to open meetings and do not provide student members the right to attend closed sessions or receive information related to closed sessions.

Takeaways

These new bills are intended to enhance the role of student school board members. Any school district that has a student board member will be required to grant him or her preferential voting rights and can no longer have student members who are nonvoting. The student board member’s preferential vote must be cast before the official board vote. Any open meeting materials or briefings that are provided to school district board members must also be provided to the student board member in the same time frame.

For more information on AB 261 or SB 468 or on board governance 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:

Harold H. Freiman

Partner

Mark Murray

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.

New Laws Update Nutrition Program Purchasing Rules

October 2017
Number 62

Governor Jerry Brown has signed four bills that update purchasing rules related to school food and nutrition programs and improve access to healthy food. Each of these bills will take effect January 1, 2018.

Senate Bill 544: Bill Offers Clarity on Food Contract Award Rules

Senate Bill (SB) 544 resolves an inconsistency between state and federal law regarding the award of contracts in support of child nutrition programs by clarifying that school districts can consider factors other than price in awarding these contracts. This new law provides school districts with flexibility in purchasing items and services for their child nutrition programs.

Existing state law requires school districts to award any contract involving an expenditure that is over the bid limit (currently $88,300) for the purchase of equipment, materials, supplies or services, other than construction services, to the lowest responsible bidder. As a condition of the receipt of federal funds for child nutrition programs, school districts must also comply with federal regulations that permit the consideration of factors in addition to price. The factors include contractor integrity, compliance with public policy, record of past performance and financial and technical resources. These differences between state and federal requirements have been a source of confusion for many districts.

SB 544 provides some clarity by modifying section 20111, subdivision (c) of the Public Contract Code to expressly allow school districts to follow federal regulations and to consider other factors in addition to price in awarding contracts in support of their federally-funded child nutrition programs. Under the new state law, price must be the primary consideration, but it does not have to be the only determining factor.

Senate Bill 557: Schools Permitted to Donate Uneaten Food

SB 557 will allow local educational agencies to provide “sharing tables” where faculty, staff and students can place prepackaged food items, uncut produce and unopened bags of sliced fruit and cartons of milk to be donated to a food bank or other nonprofit charitable organization. This bill exempts these foods from the current California Retail Food Code regulations, which prohibit food that is unused or returned after being served or sold and in the possession of a consumer, from being offered as food for human consumption. Food placed on sharing tables must first be offered to students during regular meal times before it can be donated. (See Ed. Code, §§ 49580 et seq. and Health & Saf. Code, § 114079.)

Senate Bill 730: State Will Monitor Compliance with “Buy American” Provision

SB 730 will require the California Department of Education to monitor whether school districts receiving a federal subsidy to provide free and reduced price meals are complying with the “Buy American” provision in the federal National School Lunch Act, which requires school food authorities to purchase, to the maximum extent possible, domestic commodities or products. This bill also requires the Department to provide requirements, resources and best practices on its website and to distribute federal guidance and regulations related to the Buy American provision. (See Ed. Code, § 49563.) This bill does not implicate the separate California Buy American Act that was found to be unconstitutional because it is preempted by federal law.

Assembly Bill 836: Schools May Dispense Juice from Vending Machines

Assembly Bill (AB) 836 authorizes the state Department of Public Health (DPH) to modify previous requirements of the California Retail Food Code that prohibit the dispensing of certain bulk foods from vending machines. Specifically, the bill requests that DPH modify this prohibition to permit juice stored in bulk containers to be dispensed from a vending machine under certain conditions. These specialty vending machines are purported to offer healthy food options to customers by making it easy and convenient to access freshly made vegetable and fruit juices. (See Health & Saf. Code, § 113936.)

For more information on these bills or on law governing school nutrition programs 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:

Kelly M. Rem

Partner

Alyse Pacheco

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.