New Law Limits the Use of Seclusion and Restraints in Schools, Requires Annual Data Report

December 2018
Number 90

The California Legislature recently passed a new law aiming to promote student rights and safety by imposing limits on the use of behavioral restraints and seclusion in schools. Assembly Bill (AB) 2657, which prohibits the use of restraint or seclusion for any student except in specified circumstances, becomes effective on January 1, 2019.

Current Law

Existing law limits the use of seclusion and restraints in schools for students with exceptional needs. Specifically, California school districts and nonpublic schools or agencies serving individuals with exceptional needs are prohibited from authorizing, ordering, consenting to, or paying for certain types of behavior interventions, including electric shock, the release of toxic or noxious sprays or mists, mechanical restraints, except when mechanical restraints are used by trained personnel as a limited emergency intervention, or locked seclusion, except when seclusion is used as specified. Additionally, California law authorizes the use of emergency interventions for students with exceptional needs in limited circumstances. (See 2013 Client News Brief No. 39.)

California law also prohibits persons employed by or engaged in a public school from inflicting, or causing to be inflicted, corporal punishment upon a student. However, there are currently no other limitations on the use of seclusion or restraints for general education students.

New Law

AB 2657 establishes a student’s right “to be free from the use of seclusion and behavioral restraints of any form imposed as a means of coercion, discipline, convenience, or retaliation by staff.” The legislation limits the use of seclusion and behavioral restraints, which include both mechanical and physical restraints, for all students and establishes parameters for situations in which behavioral restraints or seclusion may be used. Specifically, school districts and nonpublic schools or agencies may use a behavioral restraint or seclusion “only to control behavior that poses a clear and present danger of serious physical harm to the pupil or others that cannot be immediately prevented by a response that is less
restrictive.”

The legislation also provides statutory definitions for behavioral restraint, mechanical restraint, physical restraint, and seclusion for the first time in the Education Code, adopted from the Office for Civil Rights’ guidance on the use of restraint and seclusion. Notably it states vehicle safety restraints when used as intended during the transport of a student in a moving vehicle are not mechanical restraints, and physical escorts are not physical restraints.

School districts and nonpublic schools or agencies are prohibited from using a behavioral restraint for longer than is necessary to contain the behavior that poses a clear and present danger of serious physical harm. The legislation clarifies what types of interventions are not allowed, and emphasizes the need to avoid restraints and seclusion whenever possible. Specifically, it bans the use of locked seclusion unless the facility is otherwise licensed or permitted to use a locked room, physical restraint techniques that obstruct the student’s respiratory airway or impairs the student’s breathing or respiratory capacity, behavioral restraints that restrict breathing, and placing a student in a facedown position with the
student’s hands held or restrained behind the student’s back. A student placed in seclusion must be under constant, direct observation at all times.

AB 2657 also requires school districts and nonpublic schools or agencies to collect and report data on the use of restraints and seclusion to the California Department of Education (CDE) annually, no later than three months after the end of the school year. The report must include the number of students subjected to mechanical restraint and the number of times it was used, the number of students subjected to physical restraint and the number of times it was used, and the number of students subjected to seclusion and the number of times it was used. The information must be disaggregated by race or ethnicity, and gender, with separate counts for students with an individualized education program (IEP), students with a
504 plan, and students without an IEP or 504 plan. The legislation requires CDE to annually post the data from the report on its website within three months after the report is due to CDE.

Takeaways

School districts should note the new limitations on the use of restraints and seclusion for all students, effective January 1, 2019. This legislation does not repeal or replace existing laws that provide parameters and procedures for the use of seclusion and restraint for students with exceptional needs. School districts should consider updating their policies and procedures relating to pupil discipline, in light of the new rules for general education students, while continuing compliance with existing law related to seclusion or restraint that applies only to students with exceptional needs.

If you have any questions about AB 2657 or restraint and seclusion laws applicable to California school districts, 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:

Marcy Gutierrez

Partner

Amanda E. Ruiz

Senior Counsel

Amanda J. Cordova

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.

Two New Laws Require Educational Agency Actions to Enhance Student Access to Health Services

December 2018
Number 92

Governor Jerry Brown recently signed two Assembly Bills (AB) into law, designed to increase student access to health services. Both laws focus on mental health services for students.

AB 2022: Bi-Annual Notice Requirement Regarding Access to Student Mental Health Services

AB 2022 adds Education Code section 49428 and requires public schools, including charter schools, to provide students and their parents or guardians at least twice per school year with information regarding how to access student mental health services on campus and/or in the community. This new notice requirement must be implemented beginning in the 2019-2020 school year.

Schools must notify parents or guardians by including the information in at least two of the following formats:

  • Electronic or hardcopy letter;
  • Parent handbook distributed at the beginning of the school year; or
  • School’s website or social media page.

Schools must notify students by including the information in at least two of the following formats:

  • An electronic or hardcopy document or school publication;
  • Pupil orientation materials at the beginning of the school year, or a pupil handbook; or
  • The school website or social media page.

Counties may use funds from the Mental Health Services Act to provide grants to school districts, charter schools or county offices of education. In order to access such funds, school districts, charter schools and county offices of education should apply for grants from their respective counties.

AB 2315: CDE Guidelines for Providing Telehealth Technology in Public Schools

AB 2315 adds Education Code section 49429 and requires the California Department of Education (CDE) to develop guidelines for the use of telehealth technology in public schools, including charter schools, for the provision of mental health and behavioral health services to students oncampus. Telehealth is the provision of health care services from a distance using information and communication technologies. Examples of telehealth may include video conferencing, phone and email communications, remote monitoring, and online patient portals. The CDE guidelines must be posted on the CDE’s website by July 1, 2020, as long as sufficient funds are made available for this purpose. The guidelines must cover a number of topics including, but not limited to, the following:

  • Qualifications of individuals authorized to assist students in accessing mental health and behavioral health services via telehealth technology;
  • Qualifications of individuals authorized to provide mental health and behavioral health services to students via telehealth technology;
  • Potential sources of funding for schools to implement telehealth technology;
  • Legal requirements for parental consent to treatment of minors via telehealth technology; and
  • Measures necessary to protect pupil and medical data transmitted via telehealth technology.

Takeaways

Both of these new laws are aimed at enhancing student access to health services with a specific focus on mental health. Schools should prepare to provide the notices required under AB 2022 beginning in the 2019-2020 school year. Counties should be prepared to process funding requests and provide funding to schools for the notifications required under AB 2022. With respect to AB 2315, public schools should be on the lookout for CDE’s guidelines, which should be issued by July 1, 2020. These guidelines will provide schools with a roadmap to use technology for mental and behavioral health services on campus.

If you have any questions regarding these new laws or any other student matter, 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:

Marcy Gutierrez

Partner

Maryn 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.

Pregnant and Parenting Pupils Afforded New Accommodations Beginning January 1, 2019

December 2018
Number 91

Beginning January 1, 2019, significant amendments to the Education Code provide pregnant and parenting pupils with new rights and accommodations designed to afford them the opportunity to succeed while protecting their health and the health of their children.

In 2015, over 24,000 children were born to individuals between the ages of 15 and 19 in California. Fewer than 4 in 10 young mothers graduate from high school by the age of 18, and 70 percent of young parents nationwide are “pushed out of school.” Assembly Bill (AB) 2289 works to allay some of these obstacles.

AB 2289

First, AB 2289 adds the following guidance:

A local education agency may:

  • Require any pupil to obtain the certification of a physician or nurse practitioner that the pupil is physically and emotionally able to continue participation in the regular education program or activity.

A local education agency must:

  • Treat pregnancy, childbirth, false pregnancy, termination of pregnancy, and recovery therefrom in the same manner and under the same policies as any other temporary disabling condition.

A local education agency shall not:

  • Apply any rule concerning a pupil’s actual or potential parental, family, or marital status that treats pupils differently on the basis of sex.
  • Exclude or deny any pupil from any educational program or activity, including class or extracurricular activity, solely on the basis of the pupil’s pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom.
  • Require pregnant or parenting pupils to participate in pregnant minor programs or alternative education programs. Those pupils who voluntarily participate in alternative education programs shall be given educational programs, activities, and courses equal to those they would have been in if participating in the regular education program.

Next, AB 2289 requires 1) notification to pregnant and parenting pupils of their rights and options through annual welcome packets and independent study packets; and 2) annual notification to parents and guardians of pupils at the beginning of the regular school term of the rights and options available to pregnant and parenting pupils.

Third, AB 2289 ensures specific accommodations to pregnant and parenting pupils:

  • Parental Leave
    • 8 weeks of allowed parental leave. Parental leave may be taken before childbirth if there is a medical necessity and after childbirth during the respective school year of birth. This is inclusive of any mandatory summer instruction. While pupils or those holding a pupil’s educational rights should notify the school if electing to exercise this right, failure to do so does not waive it.
    • More than 8 weeks of parental leave if deemed medically necessary by the pupil’s physician.
    • Excused absences from the pupil’s regular school program during the period of parental leave.
    • No requirement to complete academic work or other school requirements during the period of parental leave.

  • Return from Parental Leave
    • A pupil may resume the course of study at the school in which he or she was enrolled before taking parental leave.
    • A pupil is entitled to opportunities to make up work missed during his or her leave and reenrollment in courses.
    • A pupil may opt for a fifth year of high school instruction if necessary to complete state and local graduation requirements.
    • A pupil may elect to attend an alternative education option in lieu of returning to the school in which he or she was enrolled prior to parental leave. Such program shall provide educational programs, activities, and courses equal to those of the pupil’s regular education program.


The new law provides that the use of the above listed accommodations shall not result in academic penalty to any pregnant or parenting pupil. Complaints of noncompliance are to be processed under the Uniform Complaint Procedures (UCP).

AB 2289 also amends the definition of excused absences. Effective January 1, 2019, absences to care for a pupil’s sick child without proof of a doctor’s note must be excused.

Takeaways

School districts and other educational entities should amend their board policies and administrative regulations to account for the new requirements, including updating procedures regarding excused absences. Districts should also Amend notices to pupils and parents to include the newly required notifications, including notification of rights and options of pregnant or parenting pupils, and notices regarding additional grounds for filing complaints under the UCP. Finally, districts should consider any necessary training for staff regarding these changes.

If you have any questions regarding AB 2289 or about student rights 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:

Sarah L. Garcia

Partner

Michelle N. Sliwa

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 Impacting Media Literacy, Financial Aid Applications and the “A-G” Course List Will Soon Go into Effect

December 2018
Number 89

Governor Jerry Brown recently signed several bills into law that impact student instruction for public schools. Senate Bill (SB) 830 and Assembly Bills (AB) 2015 and 2239 relate to media literacy, instruction regarding the Free Application for Federal Student Aid (FAFSA) and the California Dream Act Application, and the addition of courses to the “A-G” course list.

SB 830

Recognizing the influence of social media and the proliferation of false news stories, SB 830 intends to increase media literacy skills among young adults. SB 830 requires that, by July 1, 2019, the California Department of Education include on its website a list of resources and instructional materials on media literacy. The new law defines “media literacy” as “the ability to access, analyze, evaluate, and use media and encompasses the foundational skills that lead to digital citizenship.”

AB 2015

AB 2015 concerns the FAFSA and California Dream Act Application. The FAFSA is an application to determine student financial aid eligibility. The California Dream Act Application allows undocumented students, who meet certain requirements, to apply for state student financial aid.

AB 2015 specifies that, starting with the 2020-2021 school year, school districts and charter schools must ensure that each student receives information on how to complete and submit the FAFSA and the California Dream Act Application before the student starts the 12th grade. School districts and charter schools will have discretion in determining the manner in which this information is provided to the students. However, AB 2015 states that the information to be provided in materials must include:

  • The documentation and personal information that student financial aid applications require.
  • Explanations of the definition used for each application (for instance, the definition of “legal guardianship” and “household size”).
  • Eligibility requirements related to student financial aid.
  • The application timelines and deadlines.
  • The importance of the student submitting applications early, in particular when student financial aid is awarded on a first-come basis.

In addition, AB 2015 requires that school districts and charter schools ensure that paper copies of the FAFSA and California Dream Act Application are provided to each student when requested by the student or parent/guardian of the student.

AB 2239

The University of California and California State University have established a uniform set of academic standards for high school classes, which are referred to as the “A-G” subject requirements. To satisfy college admission requirements, high school classes that are used to satisfy the “A-G” subject requirements must be approved by the University of California and included on the “A-G” course list.

AB 2239 applies to schools that offer world language classes (also known as foreign language classes) designed for native speakers which are not already approved “A-G” courses. This bill encourages school districts and charter schools to seek to include these world language classes designed for native speakers on the schools’ “A-G” course list.

Takeaways

SB 830, AB 2015, and AB 2239 all impact various aspects of student instruction. School districts and charter schools should review their policies and practices to ensure compliance with these new bills.

If you have any questions regarding these bills, 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:

Edward J. Sklar

Partner

Aria Link

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 on Enrollment Offer Students More Flexibility and Stability and Require Website Posting by January 1, 2019

December 2018
Number 88

Through Assembly Bills (AB) 2826 and 2949, California lawmakers demonstrated a concerted effort to make the interdistrict transfer process more accessible to families, as well as provide additional protections to students of military families, who are often subject to frequent school changes.

Assembly Bill 2826 – Pupil Enrollment: Interdistrict Attendance:

AB 2826 strives to make the interdistrict transfer process more transparent and timely for families. Under the new law, which amends Education Code sections 46600 et seq., school districts have the following obligations starting on January 1, 2019:

  • Post the district’s interdistrict transfer procedures on the district’s website, including:
    • A link to the district’s policies on interdistrict transfers;
    • The date when the district will accept and process requests for the subsequent school year;
    • The reasons for approval or denial of a request;
    • Any information or documents that must be submitted as supporting evidence in a request;
    • If applicable, the process and timelines by which a denial may be appealed within the school district;
    • Notice that failure to adhere to timelines will be deemed an abandonment of the request;
    • The conditions for when an existing permit may be revoked or rescinded; and
    • Applicable timelines for processing a request, including those set out below.
  • Process Interdistrict Transfer Requests as follows:
    • Notify the parent submitting a current year request of its final decision within 30 calendar days of receipt;
    • Notify the parent submitting a future year request of its decision as soon as possible, but no later than 14 days after the start of the instruction in the school year for which the transfer is sought;
    • Provide written notice of the parents’ right to appeal to the county board of education within 30 calendar days from the final date of a denial;
    • Provisionally admit students to a requested district, based on their evidence that a final decision is pending with a district of residence, proposed district, or county board of education.

Assembly Bill 2949 – Pupil Residency: Pupils of Military Families:

Existing law provides an exception to the residency requirements for a student whose parent is transferred to or is pending transfer to a military installation within the state while on active military duty pursuant to an official military order. AB 2949 adds section 48204.6 to the Education Code to require a local educational agency to permit a student who meets certain criteria to continue attending the student’s “school of origin” during that school year, regardless of any change of residence of the military family. If the student’s status changes due to end of military service, then the student is allowed to stay in the school of origin for the remainder of the academic year if he or she is between grades 1-8, or through graduation if the student is enrolled in high school. The new law effectively mirrors the laws related to protecting foster youth and homeless children, who are also susceptible to frequent school changes.

Takeaways

By January 1, 2019, school districts must post the required interdistrict transfer policies and information on their website. School districts must also ensure compliance with the new response timelines and notice of parent’s right to appeal a transfer denial.

Local educational agencies must permit students of military families to continue to attend their schools of origin, despite changes in residence and changes in military status. Local educational agencies may seek appropriate reimbursement to comply with these provisions, consistent with the state’s rules of reimbursement for mandated costs.

If you have any questions about AB 2826 or 2949 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.

PERB Admonishes School District for Blanket Prohibitions on Distributing Union Literature

December 2018
Number 87

On October 22, 2018, the Public Employment Relations Board (PERB) upheld an administrative law judge (ALJ) decision finding that the Petaluma City Elementary School District/Joint Union High School District (“District”) interfered with employee and organizational rights by: (1) directing employees not to distribute literature “of a political or union nature” on District property, including during non-work time and in on-work areas; and (2) directing employees not to distribute any pamphlets “during the workday” without regard to breaks or other non-work time during the day.

Background

On September 5, 2014, the District administration emailed a memo to school administrators advising them of the “rules for staff handing out flyers.” A school site principal forwarded this memo to teachers at his school site. The memo said:

Teachers may hand out flyers after school when they finish their work obligations. They may not hand them out before school as they are to be in their classroom 30 minutes prior to school starting. They cannot hand out flyers of a political or union nature. They must be off school property when they hand out flyers, not in a driveway or walkway on school campus. The sidewalk in front of a school is public property and they may hand them out there.

On October 10, 2014, a different school site principal sent an email to at least one teacher, saying, in relevant part:

It is my understanding that handing out pamphlets can only happen outside of your work day. I know the long hours you all put in and that an official ‘work day’ is not defined. Since an official teacher duty begins at 7:55, we can safely call that the start of your work day. And at the end of the day, the final teacher duty ends around 2:45 so that can be considered the end of your work day. Please hand out pamphlets outside of your work day.

The Petaluma Federation of Teachers, Local 1881 filed an unfair labor practice charge alleging the September 5 and October 10 emails interfered with union members’ right to engage in protected activity – i.e., distribute flyers and pamphlets containing union information. An ALJ found that the union proved its allegations and held that both emails constituted interference with protected activity.

In its appeal to PERB, the District made two arguments. First, with regard to the September 5 email, the District challenged the union’s evidence of interference, claiming that the union failed to prove “actual harm” to the teacher. PERB rejected this argument. UnderCarlsbad Unified School District (1979) PERB Dec. No. 89 (Carlsbad), the appropriate inquiry “is an objective one which asks not whether any employee felt subjectively threatened or intimidated or was actually discouraged from engaging in protected activity, but whether, under the given circumstances, the employer’s conduct had discouraged, orreasonably would discourage, employees from engaging in present or future protected activity.”

PERB will apply a heightened level of review when an employer explicitly bans “union” activity. Specifically, the employer must show anoperational necessity for the ban, or that there wasno alternative available to the ban. (Long Beach Unified School District (1980) PERB Dec. No. 130.)

Second, with respect to the October 10 email, the District took exception with the ALJ’s finding of interference because the email prohibiting the distribution of pamphlets never mentioned anything about the union. PERB also rejected this argument, holding that an employer’s directive may be unlawful even without an explicit reference to union or protected activities. Rather, it is unlawful if a union member would reasonably construe the District’s directive to prohibit protected activity. Since the October 10 email came soon after the memo was distributed, it was reasonable for the teacher to construe the email to mean it prohibited the distribution of pamphlets containing union information.

PERB further stated that an employee’s right to “join, form and participate” in union activities protects “not only union-related speech, but broader categories of employment-related speech, including employees’ communications with one another about their wages, hours and working conditions.” Accordingly, an employer’s rule banning a general category of conduct, that includes both protected and unprotected activity, is presumptively unlawful because “employees should not have to decide at their own peril what information is not lawfully subject to such a prohibition.”

Takeaways

  • Where a District’s directive reasonably would discourage a union member from engaging in protected activity, no showing of actual harm is required to establish interference.
  • A general directive that prohibits both protected and unprotected activity presumptively violates the Educational Employment Relations Act because the onus cannot be on union members to interpret which prohibitions are lawful or unlawful.
  • Public employers should be careful when crafting directives that may unintentionally affect an employee’s ability to engage in protected activity.

For more information about PERB’s decision or to discuss protected activity and employee rights 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 Facebookor Twitteror download our Client News Brief App.

Written by:

Darren C. Kameya

Partner

Carolyn L. Gemma

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

#MeToo Movement Leads to Increased Harassment Prevention Training and Related Requirements for California Employers

December 2018
Number 86

Effective January 1, 2019, California employers, including public agencies, will be required to comply with new requirements aimed at preventing sexual harassment in the workplace as a result of the #MeToo movement that began in 2017. On September 30, 2018, Governor Jerry Brown approved Senate Bill (SB) 1300 and SB 1343, which both make significant changes to the California Fair Employment and Housing Act (FEHA).

Background

Under FEHA, it is unlawful to harass persons based on their sex or other protected characteristics in the workplace, and employers must take immediate and appropriate corrective action when such harassment occurs. An employer’s liability for sexual harassment under FEHA extends to the conduct of non-employees towards its employees, applicants, unpaid interns, volunteers, and certain contractors. In addition, employers with 50 or more employees are required to provide at least two hours of training and education regarding sexual harassment, abusive conduct, and harassment based on gender identity, gender expression, and sexual orientation, to all its supervisors every two years.

Summary of Changes to FEHA

SB 1300 and SB 1343 make the following changes to FEHA:

  • Supervisor Training. Now, employers with 5 or more employees, including temporary or seasonal employees, must provide two hours of specific training and education regarding sexual harassment, abusive conduct, and harassment based on gender identity, gender expression, and sexual orientation, to all its supervisors. The training must occur within six months of initial employment in a supervisory position and every two years
    thereafter.
  • Nonsupervisory Employee Training. Employers must also provide one hour of training to all nonsupervisory employees. Employers have until January 1, 2020 to provide the required training. The Department of Fair Employment and Housing (DFEH), which enforces the FEHA, is required to develop online training courses on the prevention of sexual harassment and post them on its website, as well as develop related resources. Again, the training must occur
    within six months of initial employment and every two years thereafter.
  • Bystander Training. Further, an employer may, but is not required to, provide “bystander intervention training” that includes information and practical guidance to help bystanders recognize potentially problematic behaviors and to motivate them to take action.
  • Release and Non-Disparagement Agreements. An employer cannot require an employee to release his or her claims under the FEHA or sign a document that limits the employee from disclosing information about unlawful acts in the workplace, including, but not limited to sexual harassment, as a condition for a raise, bonus, employment, or continued employment. However, this new part of the law does not apply to a settlement agreement resolving a claim an
    employee has already filed in court or before an administrative agency, or is being resolved or handled through alternative dispute resolution or through an employer’s internal complaint process. The settlement agreement must be voluntary, deliberate, and informed, and it must provide consideration of value to the employee. The employee must be given notice and an opportunity to retain an attorney.
  • Heightened Legal Standards. The California Legislature approved of three court decisions regarding harassment in the workplace that ruled as follows. First, an employee does not have to prove his or her productivity declined as a result of harassment, but rather, the harassment made it more difficult for an employee to do his or her job. Second, a discriminatory remark, even if it was not made by a decision maker or directly in the context of an employment decision, may still be relevant, circumstantial evidence of discrimination. Third, it is “rarely appropriate” to dispose of harassment cases at the summary judgment stage of litigation. The Legislature also rejected two court decisions to the extent they decided a single incident of harassing conduct could not establish the existence of a hostile working environment and that the legal standard for sexual harassment may vary by the type of workplace.
  • Conduct of Non-Employees. Employers are now liable for the unlawful harassment of its employees, applicants, unpaid interns, volunteers, and certain contractors by non-employees. An employer’s liability for such conduct of non-employees is no longer limited to “sexual” harassment but can include any basis of unlawful harassment such as race, ethnicity, disability, etc.

These changes to FEHA serve as a reminder that taking steps to prevent sexual harassment in the workplace is critical. These steps include, but are not limited to, implementing effective trainings and policies and promptly addressing any inappropriate conduct in the workplace. Employers should consult with an attorney before entering into any agreement with an employee that may waive their rights and claims under FEHA.

For more information about SB 1300, SB 1343, or best practices related to the prevention of and addressing sexual harassment 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:

©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 Limits School District Collection of Debts from Students and Penalties for Debts

December 2018
Number 85

The California Legislature recently passed Assembly Bill (AB) 1974, which places new prohibitions and restrictions on the collection of debt owed by parents to public schools, including state special schools and charter schools, and school districts, including county offices of education (all referred to herein as school districts). The new law prohibits the practice of punishing students for the failure of their parents to pay debt owed to the school district, adds additional requirements for the collection of student debt, prohibits the sale of such debt, and allows school districts to offer alternative, nonmonetary forms of payment to settle the debt. Importantly, the new law will not impact existing law regarding the imposition of charges for willfully damaged school property or failing to return loaned school property, or the consequences of not paying those charges.

Background

Parents are responsible for the fees and debts incurred by their minor child. School districts can no longer take negative actions against students for their parents’ failure to pay debt. While parents may still be held accountable for the failure to pay permissible student fees (such as fees for transportation to and from school), the student cannot. Schools districts are now barred from imposing the following consequences as a result of the unpaid debt:

  • Denying full credit for any assignments for a class;
  • Denying full and equal participation in classroom activity;
  • Denying access to on-campus educational facilities, including, but not limited to, the library;
  • Denying or withholding grades, transcripts, or a diploma;
  • Limiting/barring participation in an extracurricular activity, club, or sport; and
  • Limiting or excluding from participation in an educational activity, field trip, or school ceremony.

Significantly, the new restrictions do not apply to “debt owed as a result of vandalism or to cover the replacement cost of public school or school district books, supplies, or property loaned to a pupil that the pupil fails to return or that are willfully cut, defaced, or otherwise injured.” This exception relates directly to Education Code section 48904, which permits the imposition of charges under such circumstances, and so long as adequate due process is provided to the student, authorizes the withholding of grades, diploma, and transcripts of a student where the charge has not been paid. The above exception does not apply to a student who is a current or former homeless youth, or current or former foster youth. As such, school districts must ensure against imposition of consequences against these categories of students, even where the debt is imposed for school property which is not returned or willfully damaged.

AB 1974 imposes the following requirements when collecting the debt from parents owed to the school district:

  • Provide an itemized invoice for any amount owed by the parent or guardian before pursuing payment of the debt;
  • Provide a receipt to the parent or guardian or former student for each payment made to the school or district for any amount owed by the parent or guardian on behalf of the student or former student; and
  • The invoice must include references to school policies relating to debt collection and the rights established under Education Code sections 49014 and 49557.5.

In addition, the school district may offer the student or former student, with the permission of the parent or guardian, alternative, nonmonetary forms of compensation to settle the debt. This alternative must be voluntary and conform to all Labor Code provisions. Further, a school district is prohibited from selling the debt owed by a parent or guardian. Finally, the school district may still contract with a debt collection agency to collect the debt, but the debt collection agency cannot report the debt to a credit agency.

Takeaways

When AB 1974 goes into effect on January 1, 2019, public schools, including state special schools and charter schools, school districts, and county offices of education, will not be able to take negative actions against a student, or former student, for debts owed by the student’s parent or guardian-with the exception of debt imposed as a result of vandalism or for failure to return school property, which is itself limited relative to current or former homeless youth, or current or former foster youth. As school districts and county offices of education look forward to 2019, a review of existing debt-collection practices is recommended, which may lead to the need to modify, establish or eliminate existing policies
and practices to ensure compliance with this new law.

For more information about AB 1974 or about school fees 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.

Legislature Further Limits the Ability to Consider Expunged, Dismissed, or Sealed Convictions in Hiring Decisions

December 2018
Number 84

Senate Bill (SB) 1412, which takes effect on January 1, 2019, builds on prior law limiting consideration of expunged, dismissed, or sealed convictions in hiring decisions. SB 1412 prevents employers from requiring job applicants to disclose certain criminal convictions that have been expunged, dismissed, sealed, or statutorily eradicated. SB 1412 also provides that employers may only consider particular expunged convictions that are enumerated in the law when making hiring decisions. Exceptions to this prohibition remain for employers-like public school districts and certain other public agencies-that are prohibited from hiring individuals with certain convictions even if the conviction has been dismissed, expunged, or sealed.

Background

In recent years, the Legislature has focused on limiting the types of convictions that may be considered by employers when making hiring decisions. For example, in 2016, AB 1843 was passed generally prohibiting employers from seeking or using information about an applicant’s juvenile convictions in hiring decisions. (See 2016 Client News Brief No. 86.)

Separate from the use or consideration of juvenile convictions in hiring, existing law prevents employers from requiring applicants to disclose convictions that have been expunged, dismissed, or sealed, subject to several exceptions. These exceptions include situations where: (1) the employer is required by law to obtain information regarding an applicant’s convictions; (2) the applicant is applying for a job that would require him to possess or use a firearm; (3) the law prohibits an individual convicted of a crime from holding the position, even if the conviction is expunged, sealed, or dismissed; or (4) the law prohibits the employer from hiring an applicant who has been convicted of a crime. Aside from the above exceptions, once a conditional offer of employment has been made to an applicant, an employer may consider an expunged, dismissed, or sealed conviction.

Since January 1, 2018, California’s Fair Employment and Housing Act also prohibits similar conduct, with specified exemptions. (See 2017 Client News Brief No. 80; 2016 Client News Brief No. 86.)

Under the above legal protections for job applicants, concerns were raised that employers have been broadly rejecting applicants with expunged convictions, regardless of the nature of these convictions or their relevance to the job or future job performance. With SB 1412, the Legislature narrows the aforementioned exceptions so employers may only consider expunged, dismissed, sealed, or statutorily eradicated convictions that are enumerated in the law. Specifically, this bill provides that employers may only consider such convictions if: (1) the employer is required by law to obtain information regarding the particular conviction of the applicant, regardless of whether the conviction has been expunged, sealed, dismissed, or statutorily eradicated; (2) the applicant would be required to possess or use a firearm in the course of his or her employment; (3) the law prohibits an individualwith that particular conviction from holding the position sought, regardless of whether the conviction has been expunged, sealed, dismissed, or statutorily eradicated; or (4) the employer is prohibited by law from hiring an applicantwho has that particular conviction, regardless of whether that conviction has been expunged, sealed, dismissed, or statutorily eradicated.

Takeaways

Employers should note that the Legislature has instituted additional protections for the consideration of expunged convictions in the applicant screening process. Under the SB 1412, employers can only ask an applicant about or consider expunged, sealed, or dismissed convictions to the extent permitted by law; they cannot simply withdraw an offer merely because an applicant has a conviction that was dismissed, expunged, or sealed. Keep in mind that public school employers are prohibited from hiring individuals convicted of certain crimes, even if such convictions have been dismissed, expunged, or sealed. The laws concerning the use of criminal convictions in hiring public school staff is highly technical and should be carefully reviewed before making a hiring decision based on a conviction, even if it has been dismissed, expunged, or sealed.

If you have any questions about SB 1412, 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:

Gabriela D. Flowers

Partner

Benjamin Brown

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 Bills Remove Obstacles to Graduation for Migrant and Immigrant Students

December 2018
Number 83

Assembly Bills (AB) 2121 and 2735 will make it easier for migrant students and English learners to access courses in core curriculum subjects and obtain course credit necessary for graduation. Both bills were signed by Governor Jerry Brown in September 2018. AB 2121 will become effective on January 1, 2019, while AB 2735 will take effect at the beginning of the 2019-2020 school year.

AB 2735

Existing law requires schools to ensure that students with limited English proficiency, or English learners (ELs), participate in the standard instructional program of a school. Schools may do this by either providing ELs with access to the standard instructional program along with English language support, or by placing ELs in separate educational programs intended to allow ELs to develop proficiency in English before being transferred to the standard instructional program. However, as cited by the author of AB 2735, several studies have found that many ELs who have been placed in separate programs become, in essence, trapped in the programs, unable to access courses in math, science, and English language arts,
despite their proficiency in English, until they are reclassified as non-ELs.

AB 2735 was enacted to solve this problem by prohibiting local education agencies, including county offices of education, public school districts, and charter schools, from denying ELs enrollment in core curriculum courses and courses required for high school graduation. This bill applies to ELs in middle and high school. The new law does not apply to students enrolled in “newcomer programs” designed to meet the academic and transitional needs of newly arrived immigrant pupils. AB 2735 creates new California Education Code section 60811.8.

AB 2121

Minimum course requirements for high school graduation are specified by state law and supplemented at the local level. However, Education Code sections 51225.1 and 51225.2 have historically provided a number of exemptions to local graduation requirements, including requiring the acceptance of partial credit, for certain students who move frequently, including foster youth, homeless children or youth, former juvenile court school students, and certain children of military families.

AB 2121 extends these exemptions to “migrant children,” defined to include children who have recently moved from one school district to another in order for the child or the child’s family to secure temporary or seasonal employment in an agricultural or fishing activity. AB 2121 will also extend benefits to children who are participants in a newcomer program.

Charter schools must comply with this statutory scheme, as well.

Takeaways

Both AB 2735 and AB 2121 were enacted to address the disparate rate of high school graduation and academic performance of English learner and immigrant populations, as compared to all other students in California. These new laws will allow these students to more easily access core curriculum course credits, while exempting them from certain local graduation requirements.

School Districts, charter schools, and county offices of education should review their courses, programs, and services offered to English learners to ensure that they do not prohibit English learners from accessing core curriculum subjects in violation of new Education Code section 60811.8. Likewise, public school districts and charter schools should be prepared to provide migrant students and students enrolled in newcomer programs with all of the necessary notifications and information regarding exemptions from local graduation requirements.

For more information on how school districts can prepare for the effects of these new laws, 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:

Edward J. Sklar/a>

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.

SEC: Bank Loans and Other Private Placements to Trigger 10-Day Continuing Disclosure Reporting

November 2018
Number 82

The Securities Exchange Commission’s (SEC) Rule 15c2-12 requires that an issuer of publicly offered municipal securities, such as bonds or certificates of participation, commit to disclosing certain material events that occur while those securities are outstanding. Now, the SEC has added two new items to the list of events requiring disclosure. They are: (1) an incurrence of a material financial obligation, or an agreement to events of default, remedies, priority rights, or other similar terms of a financial obligation, if material; and (2) events occurring in connection with a separate financial obligation that reflect financial difficulties of the issuer (e.g., default, event of acceleration, termination event, modification of terms, etc.). All such material events must be disclosed within 10 days.

In other words, the existence of a private financing unrelated to the securities, such as a vehicle lease financing, or solar panel lease purchase agreement, or any event resulting from those unrelated financings that suggests “financial difficulties,” must be reported.

What is a “financial obligation”?

The term “financial obligation” is defined as (i) a debt obligation; (ii) a derivative instrument entered into in connection with, or pledged as security or a source of payment for, an existing or planned debt obligation; or (iii) a guarantee of either of the foregoing. Esoteric jargon aside, the term “financial obligation” is commonly read to include private bank loans and other private and direct purchases, municipal leases, capital lease financings, and other types of financial obligations of the issuer. Municipal securities for which a final official statement has already been provided to the Municipal Securities Rulemaking Board (MSRB) are not included in the definition of “financial obligations.” Thus, going forward, issuers must now disclose any new, non-publicly offered loans and equipment financings to the owners of their outstanding publicly-available municipal securities.

The new requirements take effect on February 27, 2019, and are meant to increase disclosure of an issuer’s potential or actual financial difficulties.

Although issuers who adhere to standards of the Governmental Accounting Standards Board and its generally accepted accounting principles likely already include such financial obligations in preparing audited annual financial statements, now such items must be disclosed contemporaneously. All such “material events,” under the Rule, must be disclosed within 10 days of occurrence, by filing notice with the MSRB’s Electronic Municipal Market Access (EMMA).

The absence of meaningful guidance from the SEC regarding which financial obligations are considered “material” under the amendments and, thus, trigger a disclosure requirement, will pose a challenge for issuers.

Agencies who have issued publicly available securities, such as bonds or certificates of participation that remain outstanding, and plan to incur a new financial obligation, such as a capital lease or private bank loan, should consult with counsel to determine whether such event must be disclosed

Lozano Smith serves as bond and disclosure counsel to school districts, community colleges, and other public agencies throughout California and would be happy to provide guidance regarding these developments. If you have any questions regarding initial or continuing disclosure compliance, 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

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.