Legislature Expands Sexual Health Education Resources

November 2018
Number 79

In September 2018, Governor Jerry Brown approved a series of bills that expand on the instruction of comprehensive sexual health education for California public school students.

The California Healthy Youth Act requires that school districts ensure that pupils in grades 7 through 12 receive comprehensive sexual health education, including human immunodeficiency virus (HIV) prevention education, and information on sexual harassment, sexual assault, sexual abuse, and human trafficking. Commencing with the 2019-2020 school year, charter schools will be included in these requirements. (See 2018 CNB No. 57.)

Assembly Bill (AB) 1861 adds the requirement that school districts and charter schools provide pupils in grades 7 through 12 information on how social media and mobile device applications are being used for human trafficking.

AB 1868 authorizes school districts and charter schools to provide optional instruction on the potential risks and consequences of creating and sharing sexually suggestive or sexually explicit materials through cellular telephones, social networking Internet sites, computer networks, or other digital media.

Lastly, Senate Bill (SB) 1104 requires school districts and charter schools to identify the most appropriate methods of informing parents and guardians of pupils in grades 6 through 12 of human trafficking prevention resources and implement the identified methods by January 1, 2020.

The California Department of Education provides information on its website regarding comprehensive sexual health and HIV/AIDS instruction, and is in the process of revising the Health Education Curriculum Framework to be adopted in the spring of 2019.

If you have any questions about these new laws or about sexual education laws 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:

Roberta L. Rowe

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.

Deadline Looming for School Districts to Opt into the Classified Summer Assistance Program

November 2018
Number 80

The 2018 education omnibus trailer bill, Assembly Bill (AB) 1808, was approved by Governor Jerry Brown this summer. Among other things, the bill creates the Classified School Employee Summer Assistance Program for the 2019-2020 school year. The first deadline for this program is January 1, 2019. Therefore, the governing boards of local educational agencies (LEAs) must determine before the end of the 2018 calendar year whether or not to participate in the program.

The Classified School Employee Summer Assistance Program allows a classified employee of a participating LEA who meets specified requirements to withhold an amount up to 10% from his or her monthly paycheck during the 2019-2020 school year to be paid out during the summer recess period. AB 1808 provides state matching funds to participating employees, and requires the California Department of Education (CDE) to apportion funds to participating LEAs to provide the matching funds-up to $1 for each $1 that the participating classified employee has elected to have withheld for his or her monthly paycheck. The program has only been funded for 2019-2020, and it is not clear whether it will continue to be funded in future years.

Classified Employee Eligibility

To be eligible to participate in the program, a classified employee must:

  1. be employed with the LEA for at least one year at the time the employee elects to participate in the Classified School Employee Summer Assistance Program;
  2. be employed by the LEA for fewer than 12 months per fiscal year; and
  3. not earn more than two times the full-time pay for an entire school year of a person earning minimum wage, paid at the state minimum wage, at the time of enrollment.

2019-20 Program Timeline

AB 1808 sets forth the following deadlines concerning the Classified School
Employee Summer Assistance Program:

  • January 1, 2019-LEA must notify classified employees the LEA has elected to participate in the Classified School Employee Summer Assistance Program for the 2019-2020 school year. Once an LEA elects into the program, the LEA is prohibited from reversing its decision to participate for the 2019-2020 school year.
  • March 1, 2019-Employee must notify the LEA, in writing on a form developed by CDE that the employee elects to participate in the Classified School Employee Summer Assistance Program for the 2019-2020 school year.
  • April 1, 2019-LEA must notify the CDE, in writing on a form developed by CDE, that it has elected to participate in the Classified School Employee Summer Assistance Program for the 2019-2020 school year.
  • May 1, 2019-The CDE must notify the LEA, in writing, of the estimated amount of state-matched funding that a participating employee can expect to receive.
  • June 1, 2019-LEA must notify participating employees of the amount of estimated state matched funds participating employee can expect to receive.
  • No later than 30 days after the start of the 2019-2020 school year, an employee may withdraw his or her election to participate in the Classified School Employee Summer Assistance Program or reduce the amount to be withheld from his or her paycheck.
  • July 31, 2020-LEA must request payment from the CDE, in writing on a form developed by CDE, for the amount of employee pay that has been deposited into the Classified School Employee Summer Assistance Program fund.
  • Within 30 days of receiving a request for payment, CDE must apportion funds to participating LEAs.

Next Steps

LEAs must determine before the January 1, 2019 deadline whether or not to participate in the program. Many school districts have received “Demand to Bargain” letters concerning AB 1808 from their local union. LEAs should contact legal counsel regarding which aspects of AB 1808 are subject to negotiations, in order to ensure that any bargaining implications are addressed. We also recommend consulting with legal counsel regarding how and when to obtain board approval for participation in the program.

If you have any questions about this new program, 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 Levitan Kaatz

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.

Governor Approves New Public Safety Laws Affecting Cities, Schools and Other Public Agencies

November 2018
Number 81

In September 2018, Governor Jerry Brown signed three new bills addressing public agency response to disasters and emergencies including school violence.

Senate Bill (SB) 833: Emergency Alerts

In response to the unprecedented 2017 wildland fire disasters, SB 833 aims to improve California’s emergency alert system by requiring the Office of Emergency Services (OES) to develop guidelines for alerting and warning the public of an emergency. At a minimum, the Guidelines must include:

  1. Timelines for sending alerts during an emergency;
  2. Practices for sending advance warnings of an impending threat;
  3. Practices for testing, training on, and exercising a city’s or county’s (or joint) alert and warning system;
  4. Consideration for coordinating alerts with neighboring jurisdictions;
  5. Guidelines and protocols for redundancy and utilizing multiple forms of alerts;
  6. Guidelines and protocols for chain of command communications and accounting for staffing patterns to ensure a trained operator is always on call;
  7. Practices for effective notifications to the access and functional needs population;
  8. Message templates; and
  9. Common terminology.

The Guidelines must be developed in consultation with telecommunications carriers, the cable and broadband industry, radio and television broadcasters, the California State Association of Counties, the League of California Cities, the disability community, appropriate federal agencies, and the Standardized Emergency Management System Alert and Warning Specialist Committee. They must be completed by July 1, 2019, and then provided to all cities and counties in the state. Six months after the Guidelines are distributed, OES must develop training that includes:

  • Information regarding the evaluation, purchase, and operation of the Wireless Emergency Alert (WEA) and the Federal Emergency Alert System (EAS) equipment and software;
  • The technical capabilities of the WEA and EAS function within an alert system; and
  • The content of the Guidelines.

Further, to incentivize compliance with the Guidelines, SB 833 authorizes OES to condition certain grant funding on the grantee implementing an alert and warning system consistent with the Guidelines.

While the catalyst for the bill was the 2017 fire season, the Guidelines will likely have application to other natural and manmade disasters and emergencies, including terrorist threats/attacks, active shooters, etc. In addition, the bill and Guidelines are directly intended for “designated alerting authorities” (DAAs), which are agencies and entities that apply and are approved to use the WEA system. Presently, the list of approved DAAs includes cities, counties and other local or regional emergency assistance agencies, but not schools. Nevertheless, the Guidelines will likely be quite instructive for all public agencies, including schools and colleges, in crafting alert systems and strategies, whether wireless or
Cloud-based.

Assembly Bill (AB) 1747: School Safety Planning

All public schools are required to annual develop a comprehensive school safety plan in coordination with specified groups and including specific information. This bill adds the following new requirements:

  • All school staff must be trained on the safety plan. No specific direction is included as to what this training should include or how it should be provided, e.g., in person or on-line.
  • The school must now consult with fire officials and other first responders in the writing and development of the plan. Prior law only specifically required consultation with local law enforcement.
  • The District or school now has an obligation to share the plan with law enforcement, fire officials and other first responders.
  • The plan must include procedures for conducting tactical responses to criminal incidents.
  • The California Department of Education (CDE) must provide general direction to school districts and COEs on what to include in a building disaster plan.
  • CDE must develop and post on its website best practices for reviewing and approving school safety plans.
  • CDE must maintain, update as necessary, and post on its website a compliance checklist for developing school safety plans.

Finally, this bill now obligates charter schools to annually create and update a comprehensive school safety plan.

These changes are largely the result of the growing recognition that greater communication and coordination is needed between local, regional, state and federal agencies to adequately plan for and respond to incidents of school violence.

AB 3205: School Door Locks

For new construction, the law already requires (with some exceptions) school districts to install locks that allow doors to classrooms, and rooms with an occupancy of five or more persons, to be locked from the inside as a condition of receiving certain state funding. AB 3205 extends this requirement to modernization project for which the district seeks state funds if:

  1. The project consists of the modernization of a facility constructed before January 1, 2012;
  2. The application for funding is submitted on or after January 1, 2019; and
  3. The project is submitted to the Division of the State Architect for approval on or after January 1, 2019.

For more information on these bills or to discuss any other school safety requirements, 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:

Trevin E. Sims

Partner

Kyle A. Raney

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 Aim to Address Bullying and Suicide Prevention

November 2018
Number 78

Governor Jerry Brown recently signed a series of bills aimed at preventing bullying and suicide. These new laws require school districts to: 1) adopt procedures for bullying prevention; 2) provide suicide prevention hotline information on student identification cards; and 3) review and update policies on suicide prevention at least every five years.

AB 2291 – Bullying Prevention Training and Resources

In an effort to curb bullying and harassment in schools, Assembly Bill (AB) 2291 amends section 32283.5 of the Education Code to require the California Department of Education (CDE) to post on its website its training module and annually post an updated list of other available online training resources related to bullying or bullying prevention.

School districts, charter schools and county offices of education will also be required to make the CDE training module available to certificated school site employees and all other school site employees who have regular interaction with students.

Additionally, local educational agencies (LEAs) will be required to adopt procedures for preventing acts of bullying by December 31, 2019, per the newly codified Education Code section 234.4.

The procedures for bullying prevention would likely fit within LEAs’ existing prevention policies on bullying or within their comprehensive school safety plan. Existing law already encourages all school safety plans to include policies and procedures aimed at the prevention of bullying. Education Code section 234.1 already requires school boards adopt a bullying policy, since July 1, 2012. (See 2012 Client News Brief No. 22.)

SB 972 – Suicide Prevention Hotline on Student Identification Cards

Beginning July 1, 2019, Senate Bill (SB) 972 will require schools serving students in grades 7 through 12 and in higher education issue student identification cards to print a suicide prevention hotline number on the cards.

SB 972 adds section 215.5 to the Education Code, specifically providing that the National Suicide Prevention Lifeline, the Crisis Text Line or a local suicide prevention hotline telephone number can be printed on either side of the identification card. In addition, higher education institutions are also authorized to print the campus police or security telephone number, or the local nonemergency telephone number.

Schools with students in grades 7 through 12 and higher education institutions which already have a supply of unissued, noncompliant identification cards as of January 1, 2019, may continue to issue the noncompliant identification cards until the supply is depleted.

AB 2639 – Review Suicide Prevention Policies

AB 2639 builds upon AB 2246 (see 2016 CNB No. 82) which required schools to adopt suicide prevention policies prior to the commencement of the 2017-2018 school year. The new law, found at Education Code section 215, requires governing boards of LEAs that serve students in grades 7 through 12 to review their policies on suicide prevention at least every five years. Based on the original adoption deadline of July 1, 2017, districts should plan to review and update their policies no later than July 1, 2022.

The Legislature intends that suicide prevention policies be reviewed and updated regularly to ensure that those policies remain relevant and address youth suicide prevention.

Takeaways

Bullying prevention training posted on the CDE website will need to be made available to certificated school site employees and all other school site employees who have regular interaction with students. LEAs will need to adopt procedures for preventing acts of bullying by December 31, 2019.

Schools with students in grades 7 through 12 and higher education institutions that issue student identification cards will need to have a suicide prevention hotline number printed on the cards by July 1, 2019.

LEAs will need to review and, if necessary, update their suicide prevention policies at least every five years.

If you have any questions about bullying and suicide prevention, or wish to discuss these new legal requirements, 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:

Ruth E. Mendyk

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.

School Resource Officers Try to Teach Students a Lesson – and It Backfires

November 2018
Number 77

In Scott v. County of San Bernardino (9th Cir.) 903 F.3d 943, the Ninth Circuit Court of Appeals affirmed a district court’s summary judgment in favor of three students in an action alleging that two Sheriff’s deputies arrested a group of middle school students in violation of their Fourth Amendment rights and state law. The group of female students were handcuffed, arrested, and transported to the Sheriff’s station after a series of bullying and assault incidents between the students. The court found the arrest was unreasonable under the Fourth Amendment and lacked probable cause under state law, therefore violating state law against false arrest.

Background

The students had been involved in a series of incidents involving bullying and assault. The assistant principal asked a school resource officer, a Sheriff’s deputy, to counsel the students regarding the ongoing feud. The counseling session between the deputy and the students was recorded by the deputy. The audio tape of the incident reveals some whispering and quiet giggling, but mostly silence. After the deputy concluded the students were being unresponsive and disrespectful, he threatened to take them to jail to “prove a point that he wasn’t playing around” and to “make them mature faster.” All of the students were arrested, regardless of whether they were the alleged aggressors or the purported victims. The deputy then called for backup and together the two deputies handcuffed, arrested, and transported the students to the San Bernardino County Sheriff’s Department. The school did not take any disciplinary action against the students and no criminal charges were filed.

Under the Fourth Amendment, the school setting requires some easing of the restrictions to which searches/seizure by public authorities are ordinarily subject, and thus school officials may, under certain circumstances, conduct warrantless searches of students “under their authority.” In order to determine whether a search/seizure is permissible, two factors must be reviewed:

(1) Whether the action was justified at its inception; and

(2) Whether the seizure actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place.

Here, the arrest was unjustified because the deputies were only given generalized information about the students fighting. The Fourth Amendment requires particularized suspicion, and in this instance, there were no exigent circumstances that allowed for any exceptions. Here, the deputy clearly stated the motivation was to “prove a point” and to make students “mature a lot faster.” Furthermore, the seizure was not reasonably related in scope to the circumstances which justified the interference in the first place. The audio recording revealed some whispering and giggling, but mostly silence, which is not enough to justify the handcuffing, arrest, and transportation of the middle school girls.

Additionally, the deputies making the arrest were not entitled to qualified immunity, because they violated a constitutional right that was clearly established at the time of the violation. The seizure must not be excessively intrusive in light of the age and sex of the student, and the nature of the infraction. The court held that no officer could have reasonably believed that the law authorizes the arrest of middle school students in order to prove a point. The arrests were unreasonable and the deputies were denied qualified immunity.

Finally, Defendants tried to argue that they had probable cause to arrest the students under Penal Code section 415(1), which does not apply to school grounds. (Section 415.5 applies to unlawful fighting within any building or upon school grounds of any school, but expressly exempts registered students from its scope.) Defendants claimed the students’ behavior justified the arrest, because there was reason to believe the students were about to fight, however, the deputies did not have any evidence that the plaintiffs would be the aggressors. In fact, the deputy had minimally inquired about the facts and solely wanted to teach the girls a lesson. Thus, there was no sufficient probable cause for the deputies’ actions.

Takeaways

School administrators should be careful when involving law enforcement personnel in routine school discipline matters. The power to arrest a student or to charge him or her with a crime comes with great responsibility and should be used sparingly.

If you have any questions about this case, 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 R. Manniello

Partner

Marisa Montenegro

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.

FCC Threatens Public Agencies’ Local Control Over Next-Gen Cellular Deployment

November 2018
Number 76

In anticipation of the wave of next-generation cellular technology, the Federal Communications Commission (FCC) adopted a Declaratory Ruling and Third Report and Order significantly preempting state and local control over the use of public rights of way for the deployment of “small wireless facilities” (i.e., micro cellular antennas and equipment). The preemption order was published in the Federal Register on October 15, 2018, and will become effective on January 14, 2019, unless a petition for reconsideration or judicial review is filed. The FCC’s preemption has broad-ranging impacts on local jurisdictions’ ability to impose both application and recurring fees. It also dramatically reduces timeframes for application review (especially for multi-site applications), and places important restrictions on aesthetic and historical preservation regulations. Although the FCC does not directly address school districts or county offices of education – agencies that often site cell towers on their properties – failure of these entities to abide the FCC’s new state and local restrictions would likely invite the FCC to extend its preemption to these entities in the future, especially where the school agency has already established facilities.

Scope of Preemption

From 2006 to 2016, the wireless industry constructed approximately 308,000 “macro cell sites” across the country. Macro cell sites use technology that allows the cellular signal to traverse long distances, so the cell towers can be located hundreds of feet, if not miles, apart. Due to the exponentially fast-growing demand for wireless services, the need to ensure adequate bandwidth to accommodate that demand is compelling the wireless industry to “densify” cellular networks using fifth-generation (5G) ultra-high-frequency wave technology. Because the signals do not travel as far, 5G deployment will require many more “small cell” facilities than previously constructed.

In comments to the FCC, wireless carriers estimated they will need to construct at least 3 to 10 small cells for every macro cell previously built. Taken in the aggregate, some carriers estimate that the industry will need to construct hundreds of thousands of small cell facilities, more than doubling the number of macro cells that were constructed nationwide in the last decade. To put that in context, imagine processing 3 to 10 times the number of cell siting applications your agency processed in the last decade with significantly lower review and attachment fees, and doing it in much shorter timeframes.

The overall objective of the FCC’s preemption order is to restrict state and local measures that “materially inhibit” small cell facilities deployment. The FCC has concluded that states and cities have several regulatory tools they use to “materially inhibit” such deployment: purportedly unreasonable application fees, supposedly excessive recurring fees for access to or pole attachments in the public rights of way, lengthy review times, and onerous zoning and permitting requirements, which include, but are not limited to, minimum-spacing requirements between cells, undergrounding requirements, and ambiguous aesthetics review and regulation. The FCC addressed each of these types of regulations.

Application Review and Recurring Attachment Fees

The FCC’s order unambiguously preempts some state and local fees and creates “safe harbors” for others so long as they are set below “presumptively reasonable” rates. The FCC determined, for instance, that “per-facility fees” – as opposed to per-application fees for applications that propose multiple sites – are “effective prohibitions” on deployment that are now preempted. Similarly, “gross revenue fees” for occupying public rights of way (such as requiring the carrier to pay five percent of gross revenues derived from the site) are also preempted.

Although the FCC acknowledged that local jurisdictions may have unique community needs and that one fee structure will not meet the needs of all agencies, it established a framework for determining whether an agency’s fees are legal (i.e., if the fees do not meet all of these conditions, they are deemed illegal). That framework requires that the fees:

  • Reasonably approximate actual costs;
  • Are based only on objectively reasonable costs (e.g., excessive contractor or consultant fees are not “objectively reasonable” and may not be factored into the fees a local agency may charge); and
  • Are no higher than those charged similarly situated users of the right of way.

The FCC did not find it necessary to set a particular accounting or costing method for determining whether particular fees meet these criteria, but it will hold local agencies to these criteria.

As an alternative, the FCC established that, if a jurisdiction was to charges fees equal to or lower than a certain threshold, it would constitute a “safe harbor” against any legal challenges of reasonableness. The “safe harbor” would cover fees that are equal to or lower than:

  • A non-recurring application review fee of $500.00 for proposed construction of up to five small cells, plus $100.00 for each additional cell proposed in that application;
  • A $1000 non-recurring charge where proposed construction involves the deployment of a new pole in the public right of way; and
  • An annual recurring charge of $270 per micro cell for right-of-way access or pole attachment fees.

Application Review Times

In 2009, the FCC established what are called “Shot Clocks,” which are “presumptively reasonable periods” for local agency review of and action on a proposed wireless facility application. Those Shot Clocks allowed 90 days for review of applications proposing to collocate wireless equipment on existing poles with other equipment attachments, and 150 days for reviewing new siting applications. If an agency did not act within the Shot Clock period, that inaction was deemed a “failure to act” and the carrier could seek legal redress immediately in the courts.

In its preemption order, the FCC shortened the Shot Clocks for small wireless facilities applications while increasing the ease with which the carrier can secure injunctive relief directing the local agency to issue the permits if the agency “fails to act” timely. Specifically, the FCC reduced the application processing times from 90 to 60 days for applications proposing to collocate on existing poles, and from 150 to 90 days for reviewing new siting applications. In addition, the FCC stated that, not only would the carrier have the same access to court redress for an agency’s failure to act within the Shot Clock deadline, but the inaction is now defined as a “presumptive prohibition” against deployment, which allows for expeditious granting of injunctive relief directing the issuance of the permit(s).

Where this shortened review period becomes especially challenging at the local level is when carriers “batch” applications for processing. “Batched applications” involve two scenarios where a single application proposes multiple sites, or multiple applications for single sites are filed at the same time. Regardless of the number of sites proposed in batched applications, the Shot Clock deadlines remain the same: 60 days for collocated facilities and 90 days for new siting. The FCC’s reasoning is that, even if each siting application was filed separately but simultaneously, the deadlines would be the same for processing regardless. The only allowable exception would be where the local agency can show that the batch of applications resulted in a “legitimate overload on the agency’s resources.”

In addition, the local jurisdiction should be aware that the review period begins on the day the application is submitted, regardless of whether it is later deemed to be incomplete. If the local agency notifies the applicant within 30 days of the initial submission that the application is incomplete, the Shot Clock is paused until the carrier submits the necessary supplemental information. If the application is still incomplete after the supplemental filing, the local agency must notify the applicant within 10 days of the supplemental submission, at which point the Shot Clock will be tolled again. The FCC order does anticipate that these restrictive provisions will apply unless the agency and the carrier agree to a different tolling arrangement.

Other, Non-Fee Land Use Requirements

As noted above, local agencies have many cell siting concerns that are unrelated to siting application fees and processing times. These concerns include aesthetic considerations – like avoiding unsightly overhead clutter – undergrounding of facilities, and historical preservation. First, the FCC ordered that any local requirement that all small wireless facilities must be undergrounded is an effective prohibition against deployment and is, therefore, preempted. All other non-fee land use requirements will be evaluated regarding whether they “materially inhibit” deployment. The only “safe harbor” for non-fee land use requirements is where they (1) preserve and advance “Universal Service,” (2) protect public safety and welfare, (3) ensure the quality of telecommunications service(s), or (4) safeguard consumer rights. To the extent a community wishes to maintain aesthetic review of these applications, it must clearly articulate the criteria by which the application will be judged, and it must publish those criteria in advance of an application being filed.

Non-Discriminatory Treatment

The FCC also prohibited discriminatory treatment between different types of right-of-way users, including macro cell versus small cell facilities. The FCC set out two types of discriminatory treatment that it specifically prohibits. First, a local agency may not charge new entrants right-of-way fees that it does not charge incumbent users. Second, the range of fees charged to one type of user (e.g., small wireless facilities users) cannot deviate significantly from the range of fees charged to other users with similar right-of-way uses (e.g., utility users versus small cell users). These non-discrimination concerns apply to both one-time, non-recurring charges and to recurring use fees.

Takeaways

All local agencies that regulate land use for cell siting, including counties, cities, and school districts that already have cell towers, must reevaluate their siting practices to conform to the FCC’s preemption order or face the further loss of local control over the public rights of way. Our team of land use and technology attorneys can assist with your review and update of siting practices to include development of a “safe harbor” fee structure, establishing process times that meet or beat the “Shot Clock,” tolling agreements that may relieve some of the Shot Clock pressure, and aesthetic review criteria that will withstand legal scrutiny.

For more information on the FCC’s action or for land-use or cellular facilities questions generally, 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:

William P. Curley III

Partner

Lee Burdick

Senior Counsel

©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 Updates Bidding Preferences for Various Public Agencies

November 2018
Number 75

The Legislature has significantly expanded local agencies’ ability to use a small business preferences on a public works projects, and has expanded the use of preferences for small businesses, disabled veterans businesses and social enterprises in some counties. This new law seems to indicate the Legislature is responding to the desire of local agencies to support local businesses.

Assembly Bill (AB) 2762, signed by Governor Jerry Brown, increases the small business preference from five percent to seven percent for all local agencies, including counties, cities, school districts, and other districts. The bill limits the value of a preference to a maximum of $150,000 on any contract, no matter the value of that contract. The small business preference authorizes a local agency, in facilitating contract awards to small businesses, to provide for a small business preference in construction, the procurement of goods, or the delivery of services.

AB 2762 also authorizes local agencies in the counties of Alameda, Contra Costa, Lake, Los Angeles, Marin, Napa, San Francisco, San Mateo, Santa Clara, Solano, and Sonoma, to adopt preferences for disabled veteran businesses and social enterprises, and provides for the preferences to be a maximum of seven percent for an individual preference and up to fifteen percent for a single bid having two or more preferences. In these counties, an agency’s ability to use a small business preference is not different from agencies outside those counties.

This new law defines a social enterprise to include a nonprofit or for-profit business whose primary purpose is to benefit the economic, environmental, or social health of the community and which uses the methods and disciplines of business and the power of the marketplace to advance its social, environmental, and human justice agendas. The business must also have been in operation for at least one year providing transitional or permanent employment to a transitional workforce or providing social, environmental, or human justice services.

Under AB 2762, each local agency within the specified counties that chooses to utilize a disabled veteran business or social enterprise preference is authorized to define a disabled veteran business and social enterprise and to define their eligibility for the purposes of these preferences and goals. The statute granting authority in certain counties to utilize preferences is set to expire in 2024. However, the statute permitting small business preferences by all local agencies in the state has no expiration date.

To help local agencies meet these preferences, the new law permits a prime contractor, with the approval of the local agency, and subject to meeting specified conditions, to substitute one subcontractor for another, if doing so will help meet the preference adopted by the agency. This provision seems to create a scenario where a subcontractor could be substituted solely in the interest of meeting the agency’s adopted preference, but the new law explicitly states that subcontractors are still afforded all the protections of the Subletting and Subcontracting Fair Practices Act.

Takeaways

AB 2762 demonstrates a greater interest by the Legislature in allowing public agencies to adopt preferences for certain types of businesses. Agencies wishing to adopt such preferences should first review their existing policies and bidding practices for any needed updates to comply with the new law.

For more information on AB 2762, or preferences in bidding generally, including for assistance in drafting policies and bid documents to implement preferences, 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:

Devon B. Lincoln

Partner

Alyse A. 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.

New Law Indefinitely Extends Community College Use of Best Value Process in Bidding

November 2018
Number 74

An expiring law allowing special bidding procedures for community college districts has been amended and extended. Although competitive bidding is the default rule for procurement of personal property and non-construction related services by community college districts and other public agencies, under Public Contract Code section 20651.7, a community college district is allowed to award bids on the basis of “best value,” if the district determines that it can expect “long-term savings through the use of life-cycle cost methodology, the use of more sustainable goods and materials, and reduced administrative costs.” This allows community college districts to use factors other than price to determine the lowest responsible bidder for contracts that are competitively bid.

To utilize this method for awarding contracts, a community college district is required to establish policies and procedures for determining “best value,” and in doing so is required to consider certain factors like pricing and service levels. Community college districts are also permitted to consider a number of additional factors, including the economic benefits to the local community and job creation and retention. This alternative method was set to expire on January 1, 2019. However, Assembly Bill (AB) 3186, signed by Governor Jerry Brown, extends the requirement indefinitely to community college districts, as well as to the University of California. AB 3186 also deletes the requirement that the use of best value procurement be reported by the district to the Legislative Analyst, which then would report to the Legislature.

For more information on this bill or on best value procurement generally, 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:

Devon B. Lincoln

Partner

Alyse A. 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.

Mandatory Prequalification on Certain School District Projects is Here to Stay

November 2018
Number 73

California has extended a school district prequalification requirement that was nearing sunset. Prequalification of general contractors and mechanical, electrical, and plumbing engineers on certain school district projects has been mandatory since January 1, 2015. Specifically, under Public Contract Code section 20111.6, prequalification is required on all lease-leaseback projects and on other school district public works projects when all three of the following factors are met:

(1) the project will entail a projected expenditure of $1,000,000 or more;
(2) the school district has an average daily attendance of at least 2,500; and
(3) the school district intends to use state bond funds, either immediately or by potentially seeking reimbursement from state bond funds in the future.

Prequalification requires that a prospective bidder submit a prequalification questionnaire and financial statement, under oath, as part of the bidding process and requires each prospective bidder to submit a bid by completing and executing a standardized proposal form. This requirement was set to expire on January 1, 2019 (see 2015 Client News Brief No. 51). However, AB 2031, signed by Governor Jerry Brown, extends the requirement indefinitely.

For more information on this bill, or for assistance with the prequalification process, 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:

Devon B. Lincoln

Partner

Alyse A. 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.

Directory and Personal Information Must Be Withheld from Board Meeting Minutes upon Request

November 2018
Number 72

Governor Jerry Brown has signed into law Senate Bill (SB) 1036, which will allow parents and adult pupils to prevent the governing board of a local education agency from including the directory and personal information of a student and/or the student’s family in the governing board’s meeting minutes. SB 1036 is set to take effect on January 1, 2019.

Federal and State law define the extent to which local educational agencies (LEAs), including schools districts, charter schools, community college districts, and county offices of education, can collect and distribute information about students and their families. Under the federal Family Educational Rights and Privacy Act (FERPA) and California law, LEAs are generally prohibited from releasing a student’s “educational” or “pupil” records without written consent.

However, both Federal and State law exclude “directory information” from the definition of “educational” and “pupil records.” Directory information includes a student’s name, address, telephone number, date of birth, email address, major field of study, and dates of attendance.

SB 1036 was proposed to protect directory and personal information of students and their parents or guardians at school board meetings by not allowing their information to be published in the minutes of the meeting upon request. According to the author of the bill, some students and parents feel that the release of their information presents the potential for intimidation, harm, or other harassment based on their testimony during meetings. For this reason, SB 1036 authorizes students and their families to prevent their directory and “personal information” (defined to include a person’s address, telephone number, date of birth, and email address), from being disclosed in the minutes of an LEA board meeting if a student who is age 18 or older, or the parent or guardian of a student, so requests in writing to the secretary or clerk of the LEA governing body.

Takeaway

While SB 1036 provides students and their families with some basic protections against public disclosure of personal information, it is by no means a guarantee that such information will be protected. As stated by the Assembly Committee on Education, given the public nature of LEA meetings, excluding names from meeting minutes is not a guarantee of anonymity, as the names of speakers can be obtained from other meeting participants and attendees, other written reports, and video or audio tape recordings. Further, the new law explicitly states that the provision is not intended to affect the public’s right of access to information pursuant to any other law (e.g., the California Public Records Act or the Brown Act). Entities and individuals should, therefore, be aware of the limits of SB 1036.

Further, LEAs should make sure their staff are aware of SB 1036, and should consider adopting practices and procedures allowing them to properly respond to written requests from parents or adult students. LEAs should also ensure that their board policies pertaining to the release of directory information are updated to be consistent with the new requirements of SB 1036. Finally, school districts may consider alerting parents and the public of SB 1036 through their annual parental notification.

If you have any questions about SB 1036 or about data privacy laws 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:

Manuel F. Martinez

Partner

Bradley R. Sena

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.

Legislature Clarifies CEQA Lead Agency’s Scope of Consideration in Authoring EIR

November 2018
Number 71

The California Legislature has amended the California Environmental Quality Act (CEQA) in an effort to clarify a lead agency’s ability to consider both the broad benefits of a project and the negative impacts of denying the project when evaluating environmental impacts.

Under existing law, CEQA requires state and local agencies to assess the environmental impacts of projects they undertake. Unless an exception applies, the lead agency on the project must prepare one of three types of environmental review documents: a negative declaration, a mitigated negative declaration, or an environmental impact report (EIR). If the project will not have any significant effects on the environment or those effects can be mitigated to an insignificant level, a negative or mitigated negative declaration can be prepared. However, if the lead agency determines the project will have a significant environmental impact that cannot be mitigated, an EIR must be prepared. In preparing an EIR or mitigated negative declaration, the lead agency must identify each expected environmental impact and identify mitigation measures for those impacts. In addition, the lead agency must analyze and provide reasonable alternatives to the project, including the option of cancelling the project (known as the “no project alternative”).

If mitigation is not feasible for a given effect, the project is not necessarily prohibited. The CEQA guidelines provide that mitigation is not necessary if the lead agency determines, with support from substantial evidence in the record, that the “specific economic, legal, social, technological, or other benefits of a proposed project outweigh the unavoidable adverse environmental effects.” This is known as a “statement of overriding consideration.”

Assembly Bill (AB) 2782 adds a section to existing CEQA statutes that permits a lead agency authoring an EIR to:

“consider specific economic, legal, social, technological, or other benefits, including regionwide or statewide environmental benefits, of a proposed project and the negative impacts of denying the project. Any benefits or negative impacts considered pursuant to this section shall be based on substantial evidence in light of the whole record.”

The new language confirms that lead agencies may broadly consider all benefits of a project as well as any negative environmental impacts of denying the project. For example, canceling a bus lane improvement project could represent a missed opportunity to reduce greenhouse gas emissions as commuters drive their cars instead.

Senate and Assembly committee analysis points out that the language of AB 2782 allowing the lead agency to assess the broad benefits of a project is already reflected in the “statement of overriding consideration” section of the current CEQA guidelines. Similarly, the ability to consider the negative impacts of denying the project already exists in the “no project alternative” analysis. Thus, AB 2782 merely re-states and confirms a lead agency’s scope of consideration when preparing an EIR.

If you have questions about AB 2782 or CEQA issues 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:

Anne L. Collins

Partner

Jordan R. Fong

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.

Part-Time Playground Positions Now Part of Classified Service for All School Employers

November 2018
Number 70

Effective January 1, 2019, all part-time playground positions will become part of the classified service of school districts and community college districts, including those K-12 and community college districts that have incorporated the merit system. (For those unfamiliar with the terminology, a “merit system” district is a district that has adopted the systems of rules and procedures set forth in Education Code sections 45240 et seq. (K-12) and 88060 et seq. (community colleges), which govern the employment, pay and otherwise control the services of the district’s classified personnel.)

Prior to January 1, 2018, part-time playground positions were exempt from the classified service. This changed for K-12 public school districts with the passage of Assembly Bill (AB) 670 in 2017. Under AB 670, part-time playground employees joined the classified service, but only in school districts that had not incorporated a merit system. (For more information related to AB 670, see 2017 Client News Brief 76.) Recognizing that AB 670 created a difference in the treatment of the position depending on the type of employer, AB 2160 was passed to incorporate part-time playground positions into the classified service for merit system school districts and all community college districts.

AB 670 did not address when employees in part-time playground positions become permanent employees. AB 2160 now provides that part-time playground employees of school and community college districts that have incorporated a merit system, are deemed permanent without placement on an eligibility list or examination. This permanency language appears to require that any part-time person covered by AB 2160 become permanent on January 1, 2019, regardless of whether or not they have served the required probationary period as of that date. Therefore, school districts and community colleges should review a list of which employees will become permanent so that employees who are not meeting standards are identified and decisions may be
made about their continued employment.

As with AB 670, AB 2160 provides employees in part-time playground positions with due process rights in termination proceedings, statutory rights related to layoff and reemployment and all other rights of classified service, as provided by law, including leaves, vacation pay and holidays.

The inclusion of part-time playground positions in the classified service does not automatically mean that employees in these positions will become part of a classified bargaining unit. Depending upon the terms of its existing collective bargaining agreement, a union may need to seek a unit modification to include these positions within the bargaining unit. School districts should review the language of their collective bargaining agreements to determine the treatment of part-time playground positions under those the agreements.

To understand the potential fiscal impacts of these statutory changes, districts should analyze the increased cost of health benefits, leave rights, and other applicable rights and benefits.

For more information on AB 2160 and/or AB 670 or their impacts on classified service, 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 Levitan Kaatz

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.

New Law Could Reduce Public School Energy Costs

November 2018
Number 69

A new law aims to reduce the high costs public schools pay for energy. Throughout California, K-12 schools are spending a significant portion of their general fund-nearly $700 million-just to keep the lights on. This amount is nearly equal to what public schools dedicate to books and supplies for students. Assembly Bill (AB) 2068 seeks to reduce energy costs in the future by requiring public utilities to evaluate and report the feasibility and economic impacts of establishing discounted utility rates for public K-12 schools.

Electrical and gas corporations (public utilities), in conjunction with the California Public Utilities Commission (CPUC), establish the amount a utility can collect from its customers to cover anticipated costs and reasonable profit. Once this amount is established, the CPUC and utility then create customer “classes” and rates for each class. This division into separate classes and rates reflects a recognition that different general categories of customers place different demands upon the electrical system and therefore it is appropriate to charge users differently. Public schools have generally been placed in a “nonresidential” or “commercial” class rate, despite the fact that public schools have electricity use patterns that differ from the other users placed in their same class. For example, schools typically experience a significant reduction in electricity demand in the mid-afternoon through the next morning and during the summer months, while electricity demand for typical commercial users would not be subject to school day and school year fluctuation patterns.

AB 2068 will require public utilities to evaluate the feasibility and economic impacts of establishing a utility rate class specific to public schools that would reflect a discount from the current rate structure. Public utilities are required to submit their findings to the CPUC by no later than January 1, 2020, which will then be forwarded to the California Legislature.

While AB 2068 does not offer immediate relief to public schools, it at least demonstrates the Legislature’s awareness of the issue and may provide a path to reduced energy costs in the future. In the meantime, schools may still pursue other options for increasing energy efficiency, like taking advantage of remaining Proposition 39 funding or the recently enacted Clean Energy Job Creation Program for energy efficiency projects. (For further discussion of Proposition 39 or the Clean Energy Job Creation Program, see Client News Brief No. 42.)

If you have any questions about AB 2068, or any questions about current options for increasing energy efficiency, please contact the authors of this Client News Brief or 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:

Devon B. Lincoln

Partner

Travis E. Cochran

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 Promote Student Health and Safety

November 2018
Number 68

California lawmakers demonstrated a concerted effort to promote student health and safety by approving several bills this session. Assembly Bills (AB) 1798, 2435 and 2816 were passed to create or expand requirements or funding for school districts in relation to bus transportation, air quality, and pesticide use.

Assembly Bill 1798 – Passenger Restraint Systems on All School Buses by July 1, 2035

Existing law requires passenger restraint systems on certain classes of school buses manufactured on or after July 1, 2005, and July 1, 2004, depending on capacity and weight. AB 1798 amends section 27316 of the Vehicle Code to require that, on or before July 1, 2035,all school buses in use in California must be equipped with a passenger restraint system, effectively phasing-in the requirement as old buses are retired and new buses are manufactured. While the new law creates a state mandated cost, the bill itself provides that no reimbursement is required because violation of the law is a crime.

Assembly Bill 1840 – Delays Implementation of School Bus Safety Alert Requirements until March 1, 2019

Following a few well-publicized incidents where students with special needs were left on school buses, in 2016 the Legislature enacted Senate Bill 1072, which required local educational agencies (LEAs) to install child safety alert systems in school buses and other specified student transport vehicles by the beginning of the 2018-19 school year. Many LEAs were unable to meet the original deadline due to a variety of factors, including the inability of manufacturers and installers to meet the demand for these devices. In response to these issues, the Legislature included a provision in the Education Budget Trailer Bill, AB 1840, that extends the deadline to install these safety devices until on or before March 1, 2019, with an additional six month extension for LEAs with average daily attendance of less than 4,000, or until September 1, 2019.

Assembly Bill 2453 – Air Quality

AB 2453 amends section 17074.25 of the Education Code and adds section 44391.3 to the California Health and Safety Code to expand the use of certain State aid apportionments to school districts, allowing modernization grant money to be used to update air filtration systems in order to limit student exposure to harmful air pollutants. The bill also authorizes schools and school districts located in communities with a “high cumulative exposure burden” to work with air districts to identify schools sites in need of air quality improvement and to be eligible for grants as part of a community emission reduction program. Improvements may include, but are not limited to, air filter installation or upgrade and vegetation buffer planting.

Assembly Bill 2816 – Report on Pesticide Use

The purpose of AB 2816 is to evaluate certain existing rules related to the use of pesticides at school sites, ostensibly in order for lawmakers and regulators to make improvements. Under the Healthy Schools Act of 2000 (the Act), school districts are required to follow the preferred method of managing pests, keep records of pesticide use for four years, and to notify staff and parents about expected pesticide use at school sites. The Act also requires the Department of Pesticide Regulation to establish a training program that must be annually completed by any person who intends to apply a pesticide at a school site. AB 2816 adds Section 17614.5 to the Education Code, directing the Department of Pesticide Regulation to submit a report to the Legislature on or before January 1, 2021, evaluating the implementation of the Act and providing recommendation for improvement. This new law will become inoperative on July 1, 2021, and be repealed on January 1, 2022.

Takeaways

Districts now have additional time to install child safety alert systems in their school buses and other student transport vehicles. Although these other new laws do not require immediate action on the part of local educational agencies, school districts should be mindful of future compliance with bus seatbelt requirements and opportunities for air quality funding. In connection with pesticide management, school districts should continue careful monitoring and compliance with existing law while awaiting the Department of Pesticide Regulation’s forthcoming report.

If you have any questions about AB 1798, 2453, or 2817 or about laws applicable to local educational agencies 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:

Ruth E. Mendyk

Partner

Nicholas G. Felahi

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.

Updates to Food Service and Nutrition Laws Affecting Students

November 2018
Number 67

Numerous California laws surrounding food service funding and nutritional guidelines for school districts, charter schools, and county offices of education are set to change next school year. Assembly Bills (AB) 2271 and 3043 will increase or expand the use of available state funding for food service equipment and other food services, and will modify certain pupil nutrition guidelines.

Existing State Aid Expansion and New State Matching Grant for Equipment

Existing state law requires public schools with students in grades K-12 to provide one nutritionally-adequate meal each school day to each student eligible for a free or reduced-price meal. The school is authorized to use funds available from any federal program, including the federal National School Lunch Program (NSLP), or state program, to comply with these meal requirements.

Starting July 1, 2019, contingent upon appropriation by the Legislature and allocations provided by the federal Consolidated Appropriations Act, AB 2271 will require the California Department of Education (CDE) to provide a state matching grant of up to $100,000 to a school food authority participating in the NSLP that applies for and is awarded a federal Equipment Assistance Grant for School Food Authorities. A “school food authority” is the governing body that is responsible for the administration of one or more schools and that has the legal authority or approval to operate the NSLP at that school or schools, which is usually a school district board or county board of education. The state appropriation will be for a minimum of two years, and the school food authority may use the federal and state grants for up to five individual school sites, or combine the federal and state grants for one purpose, such as creating a centralized industrial kitchen. The state matching grant must be competitively awarded, giving priority to high-need schools where 50 percent or more of the enrolled students are eligible for free or reduced-price meals, and must align with the federal Equipment Assistance Grant requirements.

Expanded use of Cafeteria Funds

Existing law prohibits expenditures from a school district’s cafeteria fund to pay costs associated with cafeteria or kitchen facilities, but starting July 1, 2019, AB 3043 will authorize districts to use cafeteria funds to purchase mobile food trucks, which will expand student access to meals.

Additionally, starting on July 1, 2019, AB 3043 will allow school districts, county offices of education, private nonprofit schools, charter schools, and residential child care institutions (together, educational entities) that participate in the federal School Breakfast Program to provide universal breakfast, meaning for all students, and use the entity’s cafeteria fund to cover the costs. Educational entities that do not currently qualify to provide universal meals must submit

specific documentation to CDE prior to using their cafeteria fund to pay for school breakfast programs, certifying that the entity will provide breakfasts at no charge to all pupils and cover costs of providing those breakfasts above the amount provided in federal reimbursement with nonfederal funds.

Pupil Nutrition Guidelines

Prior to AB 3043, the Education Code required CDE to maintain nutrition guidelines according to the California Daily Food Guide. Beginning July 1, 2019, the nutrition guidelines for breakfast and lunch must instead mirror nutrition guidelines for federal School Breakfast Program, and the NSLP, respectively, which are based on more recent nutrition studies.

If you have any questions about AB 2271 or AB 3043 or about other laws applicable to educational entities, 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

Kate S. Holding

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.

Bathrooms Are No Longer Acceptable Lactation Accommodations

November 2018
Number 66

Beginning January 1, 2019, employers will have to make reasonable efforts to provide employees with the use of a room or location, other than a bathroom, as a lactation accommodation.

Existing law already requires employers to make reasonable efforts to provide employees the use of a room or location, other than a single toilet stall, in close proximity to the employee’s work area for the purpose of expressing milk in private. Under these requirements, employers could provide space in a bathroom as an accommodation. Assembly Bill (AB) 1976, which was signed into law by Governor Jerry Brown on September 30, 2018, amends existing Labor Code requirements to expressly state that employers will now have to designate space other than a restroom facility for this purpose. Employees may still use the room or location where they normally work, such as a private office.

AB 1976 creates exceptions to the above requirements in limited circumstances. Relevant to districts and public agencies, an employer who can demonstrate the requirements impose an undue hardship relative to the size, nature, or structure of the employer’s business, may remain legally compliant by providing a room or location, other than a single toilet stall, to an employee wishing to express milk in private.

While AB 1976 narrows employers’ ability to create legally compliant permanent lactation accommodations, it also further amends Labor Code section 1031 to allow employers to create temporary lactation locations, so long as the following conditions are met:

  • The employer is unable to provide a permanent lactation location because of operational, financial, or space limitations.
  • The temporary lactation location is private and free from intrusion while an employee expresses milk.
  • The temporary lactation location is used only for lactation purposes while the employee expresses milk.
  • The temporary lactation location otherwise meets the requirements for state law concerning lactation accommodation.

Because the provisions of AB 1976 take effect January 1, 2019, and violations are subject to a civil penalty, public agencies should take steps now to amend their board policies and administrative practices, and update employee handbooks regarding provisions interpreting Labor Code sections 1030 and 1031 to ensure they are compliant.

If you would like to discuss what might constitute an acceptable permanent or temporary lactation accommodation location, the process to be considered for an exception, or any other matters related to employee accommodations, 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 Grantham

Partner

Michelle N. Sinks

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.