Schools May Discipline Students for “Liking” Offensive, Targeted Social Media Posts

December 2017
Number 87

December 2017
Number 87

A federal district court has ruled that schools may discipline students for “liking” offensive, targeted social media posts.

In Shen v. Albany Unified School District, a Northern California district court concluded that a school could discipline students for liking or for writing approving comments on racist and offensive social media posts targeted at other students, even if the posts were created off campus. However, the court also ruled that the school’s additional decisions to discipline other students who had simply followed the offensive social media account or had approved of more generally offensive posts not directed at any particular student were violations of those students’ free speech rights.

The Shen case is significant because it is one of the first cases coming out of California addressing a school’s ability to discipline students for off-campus expression on social media.

School’s Right to Regulate Off-Campus Speech

Not all off-campus speech is beyond the reach of school officials. In order to discipline (or otherwise regulate) a student for off-campus speech, the speech must meet the requirements of the off-campus speech test. That is, the speech must: (1) be tied closely enough (have some nexus) to the school, or it must be reasonably foreseeable that the off-campus speech would reach the school; and (2) substantially disrupt or materially interfere with the school environment or activities,or it must be reasonable to forecast that it will cause a substantial disruption of or material interference with the school environment or activities, or collide with the rights of students to be left alone in the school environment.

Each of these factors requires careful analysis, and school administrators should exercise caution and investigate thoroughly before proceeding with discipline. While every case is fact-specific, the district court’s analysis in Shen v. Albany Unified School District provides a framework for approaching these issues.

In Shen, a student was expelled after posting racist and derogatory content on an Instagram account, including images of nooses drawn around the necks of an African-American student and an African-American basketball coach. Even though the posts were made off campus, the court determined that because they targeted individual and identifiable students, were readily visible to other students, depicted school activities and responded to events that took place at school, the posts therefore had a close relationship to the school. Based on these factors, the court determined that administrators could reasonably expect the posts would reach the school because some of the targeted students would be affected by the content.

The offensive content was also found to have immediately caused a “substantial disruption.” After learning of the posts, students gathered in a hallway during the school day, intensely talking, crying, and yelling about the posts. Mental health counselors had to be called in to calm students down, classroom instruction was halted to discuss the posts, and several students struggled to attend school or perform schoolwork as a result of the posts. Based on these factors, the court determined that the district’s expulsion of the student who created the posts was appropriate.

Turning its analysis to the students who were suspended for liking and commenting in approval of the posts targeting other students, the court found that their behavior “meaningfully contributed” to the campus disruptions, justifying the discipline and regulation of speech. Online posts that denigrate a student’s race, ethnicity or physical appearance or that threaten violence-and any likes and comments expressly supporting those posts-interfere with a student’s right to be left alone, the court ruled.

Notably, the court reached a different conclusion regarding likes and comments favoring generally offensive, racist, or hateful speech that was not directed toward a specific student. While unsettling, this type of speech is protected under the First Amendment and does not constitute harassment or bullying, the court said. Further, disciplining the student who only followed the social media account, but did not like or comment in support of the offensive content, violated their free speech rights because the act of following is “completely devoid of any affirmative speech.”

Takeaways

While the Shen’s summary judgment order is issued by a federal district court and thus not controlling in California state courts or in other district courts throughout the state, it is one of the first legal opinions analyzing student speech in the context of social media, including reactions to social media posts and following social media accounts. It will, therefore, likely have persuasive effect, if and when relied upon by federal and state courts in California.

For more information regarding the discipline of students for off-campus, online speech, or about student free speech rights 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:

Sarah L. Garcia

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.

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Opioid Testing Now Required for Employees in Safety-Sensitive Transportation Positions

December 2017
Number 86

Effective January 1, 2018, the federal Department of Transportation (DOT) will require safety-sensitive transportation employees, such as county, city, and school district bus drivers, to be tested for prescription opioids in an effort to tackle opioid abuse. The DOT’s final rule, which was published on November 13, 2017, amends the Code of Federal Regulations.

Under the new rule, the DOT will require safety-sensitive transportation employees to be tested for the following four “semi-synthetic opioids”: hydrocodone, oxycodone, hydromorphone, and oxymorphone. These opioids are commonly known as OxyContin, Percodan, Percocet, Vicodin, Lortab, Norco, Dilaudid and Exalgo. The employees will continue to be tested for other drugs, including marijuana, cocaine, and methamphetamine.

Six federal agencies, including the Federal Motor Carrier Safety Administration (FMCSA) and Federal Transit Administration (FTA), define safety-sensitive positions. Under the FMSCA, safety-sensitive positions include operators of commercial motor vehicles. The FTA provides that employees in safety-sensitive positions include those who operate, control, and/or maintain a revenue service vehicle; operate a vehicle that requires a commercial driver’s license; and those who carry a firearm for security purposes.

Under current law, an employee in a safety-sensitive position can only use prescription pain medications if a medical practitioner familiar with the employee’s medical history and job duties has advised the employee that the medication will not “adversely affect” his or her ability to safely perform their job duties. However, not all employees ask their medical practitioners if their medications will impact their ability to work or ask their employers whether they can continue working while using these pain medications.

The DOT’s new rule will increase the regulation of employees’ use of prescription pain medications. If employees test positive for these medications, they will still have an opportunity to provide a “legitimate medical explanation” to medical review officers, the independent physicians responsible for receiving and reviewing results from a drug test. According to the DOT’s new rule, a “legally valid prescription” can constitute a legitimate medical explanation, but a medical review officer is still required to interview the employee and review his or her medical records before deciding whether his or her result from a drug test is negative. Even if the result is ultimately negative, the medical review officer may have a responsibility to raise fitness-for-duty considerations with an employer.

The DOT’s new rule provides employers another opportunity to inform employees in safety-sensitive positions about the effect prescription pain medications may have on their ability to safely perform their job duties. For more information about the DOT’s new rule or drug and alcohol testing 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

Ameet K. Nagra

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.

School District Bid Threshold Raised for 2018

December 2017
Number 85

School districts’ bid threshold for purchases of equipment, materials, supplies and services (except construction services) has been adjusted to $90,200, effective January 1, 2018. This represents an increase of 2.20 percent over the 2017 bid limit. The notice may be viewed here.

Under Public Contract Code section 20111(a), school districts must competitively bid contracts over the bid limit and award to the lowest responsible bidder, unless an exception applies. Contracts for amounts that fall under the bid limit may be awarded without competitive bidding.

The California Community Colleges Chancellor’s Office is expected to announce a similar adjustment to the bid threshold for community college districts’ purchases of equipment, materials, supplies and services except construction services, pursuant to Public Contract Code section 20651(a), sometime in the next few days. Once released, that information will be available here.

The bid limit for construction projects remains at $15,000.

The bid thresholds for cities, counties and special districts are not affected by the bid limits discussed here.

For more information on the new bid limits or bidding in general, please contact 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:

Ruth E. Mendyk

Partner

Michael Dunne

Paralegal

©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.

When is Paid Administrative Leave an Adverse Employment Action?

December 2017
Number 84

According to a recent court decision, “it depends.”

On November 15, 2017, a California appellate court held inWhitehall v. County of San Bernardino that paid administrative leave can constitute an adverse employment action in certain circumstances. Even though the plaintiff employee was placed on paid administrative leave during the pendency of an investigation into her alleged wrongdoing, the court found that under the particular facts presented, the leave was an adverse employment action.

Background

Mary Anna Whitehall was a social worker for San Bernardino County. Whitehall was involved in a dependency case in which she was directed to withhold evidence and to submit altered evidence to the court. Whitehall believed these actions could endanger children and, through her own legal counsel, filed a motion to inform the court of the suspected fraud.

Six days after the motion was filed, Whitehall was placed on paid administrative leave for a two-month period. According to the county, Whitehall was placed on leave to facilitate an investigation of her alleged violation of the county’s rules against disclosing confidential information to unauthorized individuals. The county concluded that Whitehall violated the policy and acted to terminate her, but Whitehall resigned in lieu of termination.

Whitehall then sued the county, alleging it retaliated against her for her whistleblower activities. The trial court ruled in Whitehall’s favor and the appellate court upheld the trial court’s ruling. The Court of Appeal held that placing Whitehall on administrative leave and terminating her employment were acts of retaliation by the county. While administrative leave is not always an adverse action, the court said that it is an adverse action when it “materially affects the terms, conditions, or privileges of employment.”

The court acknowledged that “[r]etaliation claims are inherently fact-specific, and the impact of an employer’s action in a particular case must be evaluated in context.” Citing a previous appellate decision, the court noted that a lateral transfer to a position with equal pay could be an adverse action if it was “reasonably likely to impair [an employee’s] job performance” or likelihood of success. The court said that Whitehall’s administrative leave was an adverse action because she was placed on leave in the context of the county’s disciplinary investigation rather than as a reward or accommodation or at her request, and her leave coincided with the termination of the original social worker involved in the case. The court also noted that the county’s own evidence confirmed its intention to terminate Whitehall for disclosing the county’s attempt to manipulate evidence to the juvenile court.

Takeaways

Paid administrative leave is an important tool that allows an employer to temporarily remove an employee from the workplace in certain situations. Paid administrative leave should not be used as a punitive measure and, if used properly, will not constitute an adverse employment action. Employers must thoroughly evaluate the reasons for the administrative leave and assess the decision on a case-by-case basis.

This is especially important when paid leave is being considered for an employee who may have engaged in a protected activity (e.g., whistleblowing, union activism, filing of a grievance or claim) from which a retaliation claim could be alleged. Some questions employers should consider before using administrative leave in these cases include:

  • What articulable problems are likely to arise if the employee is not removed from the workplace?
  • Are there other ways to address the situation without placing the employee on leave?
  • Is placement on administrative leave a routine course of conduct in this situation?
  • What steps can the employer take to minimize the time spent on administrative leave?
  • Can the administrative leave be construed as a response to any protected activities conducted by the employee?
  • What benefits and/or opportunities will the employee lose out on while on leave, and can the employer mitigate the lost benefits or opportunities?

For more information on the impact of the Whitehall case or on the use of administrative leave 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

Mayrn J. Oyoung

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 Law Squeezes Local Ballot Measures for Bonds

December 2017
Number 82

A significant new law will require local public agencies to include additional information in summary statements for local ballot measures that raise taxes, including school district general obligation bond measures. Assembly Bill (AB) 195 will amend section 13119 of the Elections Code by requiring summary statements for all local ballot measures that impose or raise a tax to include the amount of money the tax will raise annually and the rate and duration of the tax to be levied. The new law goes into effect on January 1, 2018, and affects measures already approved for an election to be held after that date.

This requirement will apply to all local tax measures, whether submitted to the voters by a local governing body such as a school district governing board or City Council or by citizens through the initiative process. In addition to general obligation bonds, AB 195 also applies to local sales and parcel tax measures.

According to its author, AB 195 was meant to fix a drafting error in an earlier ballot transparency bill, AB 809 (2015), which was intended to apply to all local measures but was found by a court to apply to citizen-backed initiatives only.

As a result of AB 195, the precious real estate of the summary statement, which is limited to 75 words, becomes less available as an opportunity to meaningfully communicate the purposes and works that will be funded by the taxes.

The new law could also pose compliance challenges for local agencies seeking to place bond measures on the ballot. Unlike a parcel tax measure, for which both the rate and duration of the resulting tax are ascertainable on Election Day, bond issues are subject to market forces that can make this information difficult to predict. While it would be possible to estimate tax rate and duration based on an estimated first series of bonds, because of future market conditions, changes in assessed value, construction costs, time of issuance, and size of issuance, efforts to quantify the rate and duration of a tax to fund anything beyond is extremely challenging. Public agencies will need to work closely with their bond counsel and consultants to address these and other issues raised by AB 195.

Lozano Smith has expertise in public finance matters, serving as bond counsel on more than $1 billion in school district and community college district bond issues. Lozano Smith will be conducting School Bond Workshops across the state, covering topics that include:

  • Elections: Timelines and requirements
  • Bonds: Types, validity and tax treatment
  • Roles and Responsibilities: Committees, consultants, and counsel
  • Disclosure and Record-keeping: Regulations and legal considerations
  • Statewide Bond: Matching and impact

If you have any questions regarding the applicability of AB 195 to your measures, compliance with AB 195, or about navigating a future bond campaign, 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:

Daniel Maruccia

Partner

©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.

State Adopts Comprehensive Housing Legislation

December 2017
Number 81

Facing one of the tightest housing markets in California history, state lawmakers have approved an extensive package of bills intended to maintain existing housing stocks and boost new housing construction. These bills become effective on January 1, 2018.

This legislative package will provide funding to stimulate housing production and will eliminate procedural hurdles to getting housing built. Alternatively, though, the bills also require more detailed justification and reporting on planning for and production of housing, limit local agencies’ ability to say no to development projects, and may increase local agencies’ infrastructure costs.

Summaries of the legislation are provided below.

Funding

Senate Bills 2 and 3: The Building Homes and Jobs Act and Veteran and Affordable Housing Bond

Senate Bills (SB) 2 and 3 provide funding opportunities for local housing projects and programs. SB 2 establishes a $75 fee for recorded documents, excluding commercial and residential real estate sales. During the first year the fee is collected, local governments will have access to half of the money collected to update planning documents and zoning ordinances, while the rest will be allocated to the Department of Housing and Community Development (HCD) to assist homeless people. After the first year, up to 70 percent of the fee proceeds will be allocated to local governments for purposes including development of affordable rental and ownership housing, creation of home ownership opportunities, and matching funds for localities that approve low-income housing projects.

SB 3 places a $4 billion general obligation bond for veteran and affordable housing and infill infrastructure on the November 2018 ballot.

Assembly Bill (AB) 571: Expands Funding Access for Farmworker Housing Projects

AB 571 expands the availability of the state’s Low Income Housing Tax Credit Program to aid farmworker housing development and redefines the term “farmworker housing” to mean “housing which is available to and occupied by not less than 50 percent of farmworkers and their households” rather than the prior 100 percent requirement. The bill also extends the occupancy period during which migrant farm labor centers are open from 180 days to 275 days.

Local governments, particularly those in rural districts, should prepare for additional housing developments for farmworkers. The reduction of the occupancy requirement for farmworker housing and the extension of the occupancy period during which migrant farm labor centers are open may result in increased costs to the migrant farm labor centers.

Approvals

Senate Bill 35: Streamlined Approval of Multifamily Residential Developments

SB 35 streamlines the development process for infill multifamily residential developments in communities that have not met their fair share housing goals. The bill makes approval of such developments on sites already zoned to accommodate them a ministerial action, eliminating public input and CEQA review and removing local discretion. A developer must pay prevailing wages on the projects fast-tracked under this bill. The bill sunsets on January 1, 2026.

Senate Bill 167 and Assembly Bills 678 and 1515: Higher Burden of Proof for Disapproval of Development

SB 167 and AB 678 make significant changes to the Housing Accountability Act (HAA), also known as the Anti-NIMBY Law. These amendments impose a heightened standard of proof on local agency governing bodies that vote no on housing projects, authorize the award of attorneys’ fees to housing advocates and project applicants who successfully challenge such disapprovals and allow courts to vacate local disapprovals and impose fines of $10,000 or more per housing unit within an affected project where a local government failed to comply with a court order.

Local agencies should be aware that if courts find that the agency acted in bad faith when it disapproved or conditionally approved a development, the agency could be subject to additional fines if it fails to abide by a court’s injunctive order. To prevent the imposition of fines, local agencies should ensure that their decision to disapprove or conditionally approve a development is based on sufficient evidence that meets the higher burden of proof.

AB 1515 strengthens the HAA by imposing a “reasonable person” standard for determining consistency, compliance, and conformity with any applicable plan or requirement for a housing development project or emergency shelter under the HAA. Concurrent with AB 678’s changes, this law makes it more difficult for localities to vote down housing projects or emergency shelters that comply with existing land use regulations. Per the bill’s author, AB 1515 gives courts a clear standard for interpreting the HAA in favor of building housing, thus weakening local government power to disapprove development.

Assembly Bill 1505: Restores Locals’ Right to Apply Inclusionary Ordinances to Rental Housing

AB 1505 restores a local agency’s right to require that at least 15 percent of units in a rental housing development be set aside as affordable to low-or moderate-income residents. The bill supersedes a 2009 appeals court decision that eliminated local governments’ ability to apply inclusionary policies to rental housing. In addition to restoring locals’ rights to apply inclusionary housing rules to rental housing developments, AB 1505 grants HCD authority to review such ordinances if they were approved or amended after September 15, 2017 and if the locality fails to meet certain housing production thresholds.

Local governments that already have inclusionary housing policies on the books should be prepared to re-familiarize themselves with their inclusionary policies and to apply them as necessary.

Housing Element

Senate Bill 166: Local Governments Must Perpetually Maintain Housing Site Inventory

SB 166 revises the “No Net Loss” zoning law to require local governments to maintain enough housing sites to meet their assigned housing needs at all times during a general plan housing element planning period. Existing law prohibits local agency governing boards from approving new housing development at significantly lower densities than are projected in the housing element of the local agency’s general plan without identifying other sites that could accommodate the lost units. SB 166 ensures that, as development occurs, local governments reassess their ability to accommodate new housing on remaining housing sites in their inventory and make adjustments to their zoning if needed. According to the bill’s author, prior law did not adequately ensure that local governments would maintain a supply of available land to accommodate unmet housing needs because land that was previously zoned for lower-income housing could later be developed into high-end market-rate housing or a commercial development. SB 166 requires local governments to maintain housing site inventory at each income level.

Local governments should maintain a log of adequate housing sites, which may or may not result in development of the sites that include affordable housing. Local governments should also be prepared to review their remaining housing sites and analyze zoning.

Assembly Bill 72: Permits HCD to Revoke Findings of Compliance with Housing Element

AB 72 enhances HCD’s authority to review any local government action or failure to act that it deems inconsistent with that local government’s housing element. HCD may revoke its finding that a housing element complies with state law and notify the local government entity and the state Attorney General that the entity is in violation of state law.

Assembly Bill 879: Mandates More Comprehensive Housing Element and Annual Report

AB 879 creates additional requirements for a local government’s housing element and the housing element portion of its general plan annual report and also applies the existing and new requirements to charter cities, which were previously exempt. Under the new law, the housing element must discuss efforts to address restraints to housing development, while the annual report must include:

  • The number of housing development applications received in the prior year;
  • Units included in all development applications in the prior year;
  • Units approved and disapproved in the prior year; and
  • A list of sites rezoned to accommodate that portion of the city’s or county’s share of the regional housing need for each income level that could not be accommodated on specified sites.

The bill also requires the housing element portion of the annual report to be prepared using standards adopted by HCD and requires that agency to conduct a study evaluating the reasonableness of local development fees.

Local governments should be prepared to create a more extensive general plan and to include a housing element that addresses constraints affecting development, maintenance, and improvement of housing for all income levels.

Assembly Bill 1397: Zoning for Realistic Housing Capacity

AB 1397 establishes higher standards and requires localities to conduct a stronger analysis before they may include sites with existing uses in their housing element, and limits reliance on potential housing development sites that are considered too large or too small or sites that have been recycled across multiple housing elements without development occurring. The bill also requires replacement of existing affordable housing slated for demolition with housing affordable to occupants at the same or lower income levels.

Local governments should be prepared to provide more evidence demonstrating the suitability of sites listed in a housing element for residential development, and particularly those expected to accommodate affordable housing development. Local governments may face funding difficulties in implementing the new mandates of AB 1397, such as bringing utilities to each identified site in the housing element.

Zoning

Senate Bill 540 and Assembly Bill 73: Establish New Zoning Designations

SB 540 allows cities and counties to adopt a specific plan establishing a Workforce Housing Opportunity Zone, which is intended to encourage workforce and affordable housing close to jobs and transportation. The zones may be created by preparing a specific plan and an environmental impact report, both of which would remain valid for five years. Approval of housing developments in these zones will be streamlined, with no further environmental review required, and the local agency will be mandated to approve projects meeting the plan criteria. HCD funds may be made available to create the zones. The developer of a project that takes advantage of this process must pay prevailing wages.

AB 73 creates a new type of overlay district intended to speed development of high density housing in areas with transit and existing infrastructure. Local governments that create such districts are eligible for state incentive payments when the districts are created and when housing is permitted. Local governments would conduct environmental review of a “housing sustainability district” in advance of any development proposals. Residential projects within a housing sustainability district would be subject to ministerial review that must be completed within 120 days. At least 20 percent of the units in a residential project to be built in a housing sustainability district must be affordable units, and such projects are subject to prevailing wage requirements.

Assisted Housing Developments

Assembly Bill 1521: Stricter Notice Requirement for Assisted Housing Development Owners

AB 1521 requires an owner of an assisted housing development to accept a bona fide offer to purchase from a qualified purchaser, if specified requirements are met. It also requires the HCD to monitor assisted housing development owners’ notice requirement compliance.

This bill is intended to help keep affordable housing available for low-income families and to reduce displacement of low-income residents. Owners who receive a market rate offer from a qualified preservation entity that intends to maintain the property’s affordability restrictions must either accept the offer or abide by the affordability restrictions for another five years.

Local governments should be aware of this notice requirement, as owners of assisted housing developments may fail to meet the requirement and would then be required by law to maintain the characterization of their property. Owners may turn to cities or counties to seek the ability to sell property for market rate conversion and cities and counties should be prepared for potential pushback.

Takeaways

This comprehensive housing package seeks to encourage a more residential development- and affordable housing-friendly environment in local communities. City and county planning staff should review the benefits of streamlining development approvals and work closely with their legal counsel to ensure that the streamlined procedures are in place. Additionally, staff should ensure that enhanced findings are included in staff reports to supplement records of housing project disapprovals. Local agencies should also prepare for housing advocates and HCD to conduct far more rigorous review of any decisions related to their housing element.

These new laws are complicated, presenting a double-edged sword to public agencies, and Lozano Smith stands ready to assist. For more information on these bills or on law governing housing projects 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 M. Freiman

Partner

William P. Curley III

Partner

James Sanchez

Senior Counsel

Lauren Kawano

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.

Asking Job Applicants about Criminal Conviction History: What You Need to Know about Assembly Bill 1008

December 2017
Number 80

Effective January 1, 2018, Assembly Bill (AB) 1008 amends the Fair Employment and Housing Act (FEHA) to restrict an employer’s ability to make hiring decisions based on a job applicant’s criminal conviction history.

Background

AB 1008 prohibits an employer from asking about criminal conviction history until the applicant has received a conditional offer of employment. After a conditional offer of employment has been made, an employer may conduct a
criminal conviction history background check. If the background check reveals that the applicant has one or more criminal convictions, then the employer must make an individualized assessment of whether the applicant’s criminal convictions have a direct and adverse relationship with the specific duties of the job the applicant is applying for.

If an employer wishes to rescind the conditional offer based solely or in part on the applicant’s criminal conviction history, the employer must inform the applicant of its preliminary decision in writing and allow the applicant an opportunity to respond. An employer must consider the applicant’s response when making its final hiring decision. If an employer ultimately decides to rescind the conditional offer, the employer must inform the applicant of its decision in writing and inform the applicant of the right to appeal its decision and the process for doing so.

While there are limitations on the reach of AB 1008, it creates significant liability implications for employers covered by the bill as it allows applicants denied employment to sue under the FEHA and also, to recover the broad range of damages available under the FEHA, including compensatory damages, attorney’s fees, and costs.

Below is a brief FAQ that explains how the new law will be applied to public agencies.

Does AB 1008 Apply to K-12 School Districts, Charter Schools and Community College Districts?

No, it does not. Newly created Government Code section 12952 contains two important exceptions. Specifically, the new law does not apply to:

  • “[A] position for which a state or local agency is otherwise required by law to conduct a conviction history background check” (Gov. Code, § 12952 (d)(1)); or
  • “[A] position where an employer or agent thereof is required by any state, federal or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history.” (Gov. Code, § 12952 (d)(4)).

The Education Code provides that applicants for all positions at a K-12 school district, charter school or community college district must undergo a criminal conviction history background check. The Education Code also restricts school employment based on criminal history. The applicable statutes support a conclusion that the new requirements imposed on employers by AB 1008 do not apply to K-12 school districts, charter schools or community college districts.

Does AB 1008 Apply to Local Government Agencies Such as Cities and Special Districts?

Yes, unless an exception covers the particular position the applicant is seeking. AB 1008 will generally apply to other local government agencies except in those cases where the agency is required to conduct a criminal conviction history background check or to restrict employment based on criminal history. For example, public safety and some health profession positions, which require criminal conviction history background checks, will be exempt from AB 1008. Local government employers should carefully assess which positions AB 1008 applies to and tailor their application materials for the individual requirements of each position.

Takeaways

Employers are not legally required to ask for criminal conviction history information on application materials. Rather, they are only legally required, in some circumstances, to conduct a criminal conviction history background check and/or to restrict employment prior to hiring an applicant. Employers that are covered by AB 1008 should remove questions regarding criminal conviction history from their applications, while those that are not may voluntarily choose to remove questions regarding criminal conviction history from their application materials.

Employers may be concerned that screening applicants for criminal convictions, even minor crimes and crimes from many years ago, may result in a discriminatory impact on minority groups such as African-American and Latino men. Therefore, employers not covered by AB 1008 that ask for criminal conviction history information on application materials may wish to make individualized assessments of an applicant’s prior convictions in order to ensure that the questions do not disproportionately screen out minority applicants.

For more information on AB 1008 or on job applicant screening 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:

Thomas E. Gauthier

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.