Formerly Homeless Youth To Be Granted Priority Enrollment And Additional Resources At The Community College Level

November 2019
Number 72

Assembly Bill (AB) 806 was signed into law by Governor Newsom on July 31, 2019, extending the following postsecondary educational resources to formerly homeless youth:

  • Priority enrollment for community college districts and California State University.
  • The services of a Community College Homeless and Foster Student Liaison.
  • Access to the Community College Student Financial Aid Outreach Program and the Student Opportunity and Access Programs.
  • Eligibility for a community college enrollment fee waiver.

Previously, the resources listed above were made available to homeless youth, current and former foster youth, and youth from low-income households. Through this bill, Education Code section 66025.9 has been amended to define “homeless youth” and “former homeless youth” as a student under 25 years of age, who has been verified, in the case of a former homeless youth, at any time during the 24 months immediately preceding the receipt of the youth’s application for admission by a postsecondary educational institution that is a qualifying institution, as a homeless child or youth, as defined in subsection (2) of Section 725 of the federal McKinney-Vento Homeless Assistance Act (42 U.S.C. Sec. 11434a(2)). Education Code §66025.9 states that verification of “homeless youth” or “formerly homeless youth status” must be provided by one of the following:

  • A homeless services provider, as that term is defined in paragraph (3) of subdivision (d) of Section 103577 of the Health and Safety Code.
  • The director of a federal TRIO program or Gaining Early Awareness and Readiness for Undergraduate Programs program, or a designee of that director.
  • A financial aid administrator for an institution of higher education.
  • A homeless and foster student liaison designated pursuant to paragraph (1) of subdivision (a) of Section 67003.5 of the Education Code.

The priority enrollment provision of existing law was originally set to be repealed on January 1, 2020, but under AB 806, it has been extended indefinitely.

Takeaways

Community colleges must ensure that application forms allow students to identify as formerly homeless and that priority enrollment and fee waivers are made available to these students. A community college must ensure that its Homeless and Foster Student Liaison’s services are extended to any formerly homeless student. A community college’s Community College Student Financial Aid Outreach Program and Student Opportunity and Access Program must also ensure that services are available to formerly homeless youth.

If you have any questions about AB 806 or postsecondary educational student support, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Darren C. Kameya

Partner

Stephanie M. White

Senior Counsel

Peter Y. Sumulong

Associate

©2019 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.

Adult Education Students Pursuing High School Diploma Or Equivalency Certificate Allowed To Enroll As Special Part Time Students At Community Colleges

November 2019
Number 73

Senate Bill (SB) 554 was signed into law on by Governor Newsom on October 4, 2019. The law authorizes the governing board of a school district overseeing an adult education program, or the governing board of a community college district overseeing a noncredit program, to authorize an adult student pursuing a high school diploma or equivalency certificate to enroll as a special part-time student at a community college. Through the bill, the community college would be credited or reimbursed through the apportionment process for the student’s attendance at the college.

Existing law authorized school districts to allow pupils whom they determined would benefit from advanced scholastic or vocational work to attend community college as special part-time or full-time students, subject to parental permission. SB 554 extends special part-time student status to adult school students.

Takeaways

Community colleges must recognize the ability of adult school students to enroll as special part-time students, and must keep record of these students to ensure reimbursement.

If you have any questions about SB 554 or special part-enrollment at community college, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Darren C. Kameya

Partner

Stephanie M. White

Senior Counsel

Peter Y. Sumulong

Associate

©2019 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 Streamline Process For Participation In College And Career Access Pathways Partnership

November 2019
Number 74

Assembly Bill (AB 30) and Senate Bill (SB) 586 were signed into law by Governor Gavin Newsom on October 4, 2019. The two bills jointly revised Education Code section 76004 to simplify the requirements for high school pupil participation under a College and Career Access Pathways (CCAP) partnership. AB 30 and SB 586 require the board of a community college to consult with, and consider the input of, the appropriate local workforce development board in adopting a CCAP partnership agreement. Finally, AB 30 and SB 586 streamline the approval process for CCAP partnership agreements.

As revised, Section 76004 requires a high school pupil participating under a CCAP partnership to submit only one parental consent form and principal recommendation and would require the Chancellor of the California Community Colleges to revise the special part-time student application process to allow a student to complete one application for the duration of the pupil’s participation under the CCAP partnership. The changes in the law also allow the units completed by a pupil pursuant to a CCAP agreement to count towards determining a pupil’s priority for registration and enrollment at a community college.

The new law also requires the governing boards of a community college district and either the school district or charter school, as a condition of adopting a CCAP partnership agreement, to solicit and consider the input of the appropriate local workforce development board to better align the CCAP’s career pathways with regional and statewide employment needs.

Section 76004, as revised, now streamlines the approval of CCAP partnership agreements. Existing law required a two meeting process for presentation of a CCAP partnership agreement with presentation and public comment taking place over the course of two meetings. Under the revisions to Section 76004, only one open public meeting is necessary.

The revisions also require the CCAP partnership agreement to include a plan to ensure specified conditions are met, and eliminates the need for a certification of compliance by the college district. The new law extends the operation of Section 76004 until January 1, 2027.

Takeaways

Community college districts must now be aware that high school pupils participating under a CCAP agreement are only required to complete one application for the duration of their attendance. Community colleges must also count a high school pupil’s CCAP units towards priority enrollment at the community college. With respect to adopting a CCAP partnership, participating districts must remember to consult with and consider the input of the appropriate local workforce development board before adoption. Also, a community college district should be aware that only one meeting is now necessary for presentation, public comment, and action on a CCAP agreement.

If you have any questions about the above newly-enacted laws, or CCAP partnerships 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 subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Darren C. Kameya

Partner

Stephanie M. White

Senior Counsel

Peter Y. Sumulong

Associate

©2019 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.

Appellate Court Finds That Solar Energy Project Was Not Exempt From City’s Zoning Ordinance

November 2019
Number 75

A recent California appellate court ruling has clarified the requirements for a local agency’s compliance with city or county zoning ordinances. In City of Hesperia v. Lake Arrowhead Community Services District, the Fourth Appellate District held that a community services district did not qualify for zoning compliance exemptions as provided in sections 53091(e) and 53096(a) of the Government Code, after the district had adopted a resolution finding the exemptions applicable in preparation for constructing a solar energy facility.

Background

In City of Hesperia, the Lake Arrowhead Community Services District (District), sought to overturn a trial court’s decision that construction of a solar energy facility did not qualify for exemption from the City of Hesperia’s (City) zoning ordinances. The solar energy facility (Project) was to be constructed on property owned by the District within City limits. The property, which was already in use as a water reclamation facility, was zoned “Rural Residential.” The City’s municipal code provided that “solar farms” were only allowed on nonresidential and nonagricultural property with a conditional use permit and could not be located within 660 feet of agricultural or residential property. Over the City’s objections, the District passed a resolution finding that the City’s zoning ordinances did not apply to the Project, as it was both absolutely exempt and qualifiedly exempt under Government Code provisions specific to energy projects. The City filed suit and prevailed at the trial court level, and the District appealed.

Analysis

Government Code section 53091(a) provides generally that a local agency must comply with “all applicable building ordinances and zoning ordinances of the county or city in which the territory of the local agency is situated.” This case considers two exemptions from this general rule.

Government Code section 53091(e) provides an absolute exemption from local zoning ordinances for the “the location or construction of facilities… for the production or generation of electrical energy” unless the facilities are used for storage or transmission of electrical energy. While the Project was designed to produce energy, that energy was intended to be transmitted to the local utility’s electrical grid. The court concluded that because section 53091(e) does not exempt “transmission” of electrical energy from local zoning ordinances, the Project was not exempt from those ordinances under section 53091(e).

Government Code section 53096(a) provides a qualified exemption to local zoning regulations for a local agency that holds a public hearing and adopts a resolution determining that “there is no feasible alternative to its proposal.” In order to use this exemption, the local agency must properly determine through substantial evidence that no feasible alternatives exist for the location of the proposed facility. The court concluded that the District’s determination that there was no feasible alternative location for the Project was not supported by substantial evidence, and that the District had failed to provide evidence that it had considered “economic, environmental, social, or technological factors associated with an alternative location.” Thus, the Project was not exempt under section 53096(a).

Since the Project did not did not meet the requirements for exemption from the City’s zoning ordinances under either section 53091(e) or section 53096(a), the court ruled that it was not exempt from the City’s zoning ordinances.

Takeaways

The court in City of Hesperia took a narrow view of a local agency’s ability to exempt itself from local zoning ordinances in order to proceed with energy projects. In particular, this ruling makes clear that a local agency’s finding that “there is no feasible alternative to its proposal” must be supported by substantial evidence that the agency had carefully considered alternative locations for its project.

If you have any questions about the City of Hesperia v. Lake Arrowhead Community Services District decision or building and zoning 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 subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Claudia P. Weaver

Partner

©2019 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 Add Duties Regarding Student Sexual Harassment Policies And Domestic Violence Resource Information

November 2019
Number 71

The Governor has signed legislation that promotes student safety by providing additional resources for combating sexual harassment and domestic violence.

Assembly Bill (AB) 543: Student Sexual Harassment Policy Posters

Starting January 1, 2020, schools serving grades 9-12 must create and display posters that notify students of the school’s student sexual harassment policy. AB 543 requires that the posters be age appropriate, culturally relevant, no smaller than 8.5 by 11 inches, in at least 12-point font, and displayed in English and in any primary language spoken by 15 percent or more of the students enrolled at the school. Schools may partner with local, state, or federal agencies, or nonprofit organizations to design and create the poster. AB 543 applies to school districts, county offices of education and charter schools.

The posters must include, at a minimum: (1) the procedures and contact information of the appropriate schoolsite official for reporting sexual harassment; (2) the rights of the reporting student, complainant, and respondent; and (3) the schoolsite’s responsibilities under the policy.

The posters must be displayed prominently and conspicuously in each schoolsite bathroom and locker room. The governing board has full discretion to select other appropriate locations where it may choose to display the posters, such as in classrooms, hallways, gymnasiums, and cafeterias.

Currently, California educational institutions are required to display their sexual harassment policies in prominent campus locations where similar notices are posted, and copies must be distributed to parents at the beginning of the school year and as part of any orientation program for new students. Under AB 543, the policy must also be provided as part of any orientation program for new or continuing students at the beginning of each quarter, semester or summer session, as applicable.

Senate Bill (SB) 316: Student Identification Cards – Domestic Violence Hotline

Currently, the telephone number for the National Suicide Prevention Lifeline must be included on student identification cards issued by public schools, including charter schools, and private schools serving students in any of grades 7 to 12, and public and private colleges and universities that issue student identification cards. (See 2018 Client News Brief Number 78.) The Crisis Text Line, and a local suicide prevention hotline phone number may also be included. Colleges and universities may also include the campus police or security phone numbers, if applicable, or the local nonemergency phone number.

Beginning October 1, 2020, SB 316 requires schools serving students in any of grades 7 to 12, that issue student identification cards, to also print the telephone number for the National Domestic Violence Hotline, 1-800-799-7233, on either side of their student identification cards.

Similarly, commencing October 1, 2020, public and private colleges and universities that issue student identification cards must have printed on either side of their student identification cards the National Domestic Violence Hotline number or a local domestic violence hotline that provides confidential support services by telephone 24 hours a day.

These new requirements apply when student identification cards are issued for the first time or when lost or damaged cards are replaced.

Schools and colleges that have a supply of unissued student identification cards as of January 1, 2020, that do not include the new information, must continue to issue those identification cards until that supply is depleted.

It is worth noting that Assembly Bill 624 proposed that a sexual assault hotline number also be included on student identification cards, but this proposed act was vetoed by the Governor.

These new laws both take effect on January 1, 2020, and that is the date by which the student sexual harassment policy poster requirements under AB 543 must be implemented. October 1, 2020, is the deadline for carrying out SB 316’s new student identification card requirements.

If you have questions regarding fulfilling these new obligations or regarding student safety in general, please contact the author of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Ruth E. Mendyk

Partner

©2019 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 Safety: Bullying, Harassment, And Suicide Prevention

November 2019
Number 70

The Governor has signed legislation that promotes student safety by providing additional resources for suicide prevention and combating bullying and sexual harassment.

Assembly Bill (AB) 1767: Suicide Prevention Policies for Kindergarten and Elementary School Students

Currently, local educational agencies serving students in grades 7-12 are required to have adopted student suicide prevention policies pertaining specifically to students in those grades. AB 1767 amends Education Code section 215 to expand the requirement for the adoption of suicide prevention policies to local educational agencies serving students in kindergarten and grades 1-6.

Before the beginning of the 2020-2021 school year, governing boards of local educational agencies serving elementary school students, must adopt, at a regularly scheduled meeting, a suicide prevention policy for their K-6th graders. The policy must be age appropriate, and delivered and discussed in a manner that is sensitive to the needs of young students.

A policy pertaining to K-6th graders must be developed in consultation with school and community stakeholders, the county mental health plan, school-employed mental health professionals, and suicide prevention experts. The policy must address suicide prevention, intervention and postvention, and ensure coordination with the county mental health plan if a referral is made on behalf of a student who is a Medi-Cal beneficiary.

Suicide prevention policies applicable to any grade span must be reviewed and, if necessary, updated, at least every five years.

AB 34: Bullying, Discrimination, Harassment, and Suicide Prevention Website Information

Also, commencing with the 2020-2021 school year, local educational agencies will be required to provide specified bullying, discrimination, harassment, and suicide prevention information in a prominent location on their websites and in a manner that is easily accessible to students, parents and guardians.

AB 34 adds section 234.6 to the Education Code, which provides the full list of the required information that must be posted, including:

  1. The local educational agency’s:
    • Student suicide prevention policy for 7th-12th graders;
    • Student suicide prevention policy for K-6th graders;
    • Sexual harassment policy as it pertains to students;
    • Policy on preventing and responding to hate violence, if it exists;
  2. Anti-discrimination, anti-harassment, and anti-intimidation policies; and/or
  3. Anti-bullying and anti-cyberbullying policies and procedures.
  4. The definition of discrimination and harassment and copies of Education Code sections 230 (prohibited practices on the basis of sex) and 221.8 (list of rights under Title IX).
  5. The name and contact information of the Title IX Coordinator.
  6. The rights of students and the public, and responsibilities of the local educational agency, under Title IX.
  7. A description of how to file a Title IX complaint, including an explanation of the statute of limitations and how the complaint will be investigated, with weblinks to this information on the United States Department of Education Office for Civil Rights (OCR)’s website.
  8. A weblink to the federal regulations implementing Title IX from the OCR website.
  9. Social media bullying prevention and statewide and community resource information for students who have been victims of violence, bullying, discrimination, intimidation and harassment.

While some of these items are already required to be posted on the website, particular attention should be given to ensure that all of the required elements are included.

These new laws take effect on January 1, 2020, but they will need to be implemented by the start of the 2020-2021 school year. If your district would like staff or student training on any of these topics, please contact us.

If you have questions regarding implementing these new requirements or regarding student safety in general, please contact the author of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Ruth E. Mendyk

Partner

©2019 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 Prohibits Barriers To Charter School Enrollment

November 2019
Number 69

A new law is intended to discourage the improper recruitment and disenrollment of charter school students, particularly students who belong to certain protected classes. Recently signed by Governor Newsom, Senate Bill (SB) 75 adds a provision to California’s Charter Schools Act to prohibit charter schools from discouraging a student from enrolling or continuing to enroll in the charter school.

The law lists explicitly unlawful bases for “counseling out” students and their families, including nationality, race, ethnicity, sexual orientation, or if a student exhibits characteristics of: a disability; an academically low-achieving student; an English learner; a neglected or delinquent student; a homeless student; a student who is economically disadvantaged; or a foster youth. In furtherance of the law’s purpose, charter schools are also prohibited from requesting a student’s records, or requiring a parent, guardian, or student to submit the student’s records to the charter school, prior to enrollment. Historically, charter schools have always been required to accept all students that are California residents, regardless of academic achievement, disability, economic status, etc. Here, the California Legislature recognizes problems that have arisen, where certain groups of students were being discouraged from enrolling, or encouraged to disenroll, in some charter schools.

Under the law, the California Department of Education (CDE) is directed to develop a notice and complaint form stating the new legal requirements, and charter schools are required to post the notice on their respective websites. Charter schools also now have an affirmative duty to provide a copy of the CDE notice to parents, guardians, and students over age eighteen when the parent, guardian, or student over age eighteen inquires about enrollment; before conducting an enrollment lottery; and before the disenrollment of any student. In order to ensure enforcement, any member of the public has a right to file a complaint with the charter school’s authorizer, often the local school district, if the person suspects a charter school has violated the provisions of this law. CDE’s notice and complaint form can be found at https://www.cde.ca.gov/sp/ch/cscomplaint.asp.

Although the law creates a process for aggrieved families to complain to charter authorizers, it is silent regarding exactly what action a charter authorizer must take when it receives a complaint. The recently revised statutes regarding charter school renewals, which go into effect in July 2020, shed some light onto the complaint review process (See 2019 Client News Brief No. 49). The law now indicates that, when determining whether to renew a school’s charter, an authorizer must consider, along with other criteria, any substantiated complaints that the charter school has not complied with the new enrollment requirements described above. The determination of whether a complaint is “substantiated” is left to the charter authorizer, and thus the law infers that charter authorizers must develop their own complaint investigation processes. Still, some questions remain unanswered. For example, if the authorizer investigates the complaint and discovers a potential legal violation, what action is the charter authorizer supposed to take, aside from considering whether to revoke the charter? The new law does not appear to create an enforcement mechanism, aside from considering compliance during the charter renewal process.

Takeaways

Charter schools and charter authorizers should be careful to ensure that charter schools are not discouraging any student from attaining or maintaining charter school enrollment. Charter schools must be extra careful when dealing with students who are members of the groups specifically protected under the law. Since the law took immediate effect in July, charter schools should post the CDE notice and complaint form on their websites and implement clear policies for staff regarding the distribution of the CDE notice, in short order. Note that charter schools are still permitted to suspend or expel students for disciplinary reasons, so long as such discipline conforms to federal and state statutory and constitutional due process requirements, and is otherwise consistent with the law, and the processes laid out in the charter.

If you have any questions about SB 75, the amendments to the Education Code regarding charter schools, or charter school student enrollment 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 subscribe to our podcast, follow us onFacebook, Twitter and LinkedIn or download our mobile app.

Written by:

Edward J. Sklar

Partner

Sophia V. Cohn

Associate

©2019 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 Requiring Later Start Times For Middle Schools And High Schools Creates Uncertainty For Educational Agencies

November 2019
Number 66

Governor Gavin Newsom signed Senate Bill (SB) 328, which establishes new mandatory school day start times for most middle schools and high schools. SB 328 adds section 46148 to the Education Code, requiring high schools to set the beginning of the school day no earlier than 8:30 a.m., and middle schools at no earlier than 8:00 a.m. The reasoning behind this new law is based on studies showing increased academic performance, school attendance, and health for students at schools that started later in the day.

SB 328 raises several questions for school districts, county offices of education, and charter schools. Here are some of the areas which remain uncertain or will need to be addressed by school districts.

Implementation Date. The new start times must be implemented by July 1, 2022, unless the school district or charter school has a collective bargaining agreement that is operative on January 1, 2020 and expires after July 1, 2022; in that case, the new start times shall be implemented at the expiration of that collective bargaining agreement. Most school districts have two collective bargaining agreements, one with their teachers and certificated personnel, and the other with classified personnel. Unfortunately, SB 328 does not distinguish whether one or both collective bargaining agreements must expire for this start time mandate to be implemented.

Collective Bargaining. In addition to questions regarding when SB 328 will be implemented, collective bargaining may also be required to set new start and end times for employees, and districts affected by SB 328 will need to give notice and offer to negotiate these changes with their bargaining units.

Rural School Districts. SB 328 provides that rural school districts are exempted from the new school start time. However, the law does not currently provide a definition of a “rural school district,” a fact that was noted in the legislative analysis that accompanied the bill. This rural exemption only applies to school districts, but not to charter schools.

Enforcement. The text of the new statute is silent as to how SB 328 might be enforced to ensure compliance.

Middle School and High School. SB 328 lacks a definition of “middle school” and of “high school.” Does “middle school” cover grades 6 to 8 or 7 and 8 only, and does this mandate apply to elementary schools which serve grades ranging from kindergarten to eighth grade?

Other Considerations. Notably, it is still permissible to offer “zero” period classes or activities that start before the school day and do not count towards average daily attendance. Also, SB 328 does not appear to create any new obligations for secondary schools directly run by county offices of education, but would affect a charter school overseen by a county office of education.

Takeaways

SB 328 will have significant impacts on the operations of school districts, for both the students and the employees. School districts who rely on staggering their bus transportation times for secondary and elementary students may have to acquire more buses or push elementary school start times back. Districts may also need to consider the cost of expanding child care and other before-school programs, as well as changes to the scheduling of after school programs and extracurricular activities to later in the day; this may result in student-athletes missing more class time due to afternoon competitions. Many secondary schools open up their campus to outside groups through the Civic Center Act when school ends and the later start time may require renegotiating of arrangements with community groups for time slots after the school day. Finally, districts that are considering whether they qualify for exemption as “rural school district” may wish to contact legal counsel for assistance.

School districts should start planning now to address the issues raised by compliance with this new bill and work together with employees, parents, and other community stakeholders to determine how to best meet student needs within the parameters of SB 328.

For more information about SB 328, including questions about preparing for changes to school start times, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Ruth E. Mendyk

Partner

Joshua Whiteside

Associate

©2019 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 Will Impact Public Work Projects

November 2019
Number 65

Governor Gavin Newsom has signed two laws that will impact public works contracts in California. Assembly Bill (AB) 456 extends the operative date for the current contractor claims resolution process to January 1, 2027. AB 1768 expands the definition of “public works” for purposes of paying prevailing wage, regulating working hours, and securing worker’s compensation.

AB 456

The law as currently stated in Public Contract Code section 9204 prescribes a claims resolution process for any claim by a contractor in connection with a conovernor Gavin Newsom has signed two laws that will impact public works contracts in California. Assembly Bill (AB) 456 extends the operative date for the current contractor claims resolution process to January 1, 2027. AB 1768 expands the definition of “public works” for purposes of paying prevailing wage, regulating working hours, and securing worker’s compensation.

AB 456

The law as currently stated in Public Contract Code section 9204 prescribes a claims resolution process for any claim by a contractor in connection with a contract for a public works project entered into on or after January 1, 2017.

Under existing law, such a claim is defined as a separate demand by the contractor for one or more of the following:

  • A time extension for relief from damages or penalties for delay;
  • Payment of money or damages arising from the work done pursuant to the contract for a public work; or
  • Payment of an amount disputed by the public entity.

Upon receipt of a claim that is subject to this resolution process, a public entity must conduct a reasonable review of the claim and provide to claimant a written statement identifying what portion of the claim is disputed and what portion is undisputed. The public entity is required to provide this statement within 45 days.

The law requiring this claims resolution process was set to expire January 1, 2020. AB 456 extended the sunset date to January 1, 2027.

AB 1768

This bill specifies that preconstruction and postconstruction work fall within the definition of “public works” and, consistent with existing law, employees conducting such work must be compensated no less than the general prevailing rate of per diem wages as determined by the Director of Industrial Relations. This definition of “public works” is only for purposes of the Labor Code and prevailing wages.

Previously, “public works” included construction, alteration, demolition, installation or repair work done under contract and paid in whole or in part with public funds. Now, the definition of “construction” under Labor Code section 1720 has been expanded to specifically include work performed during the design, site assessment, feasibility study, and other preconstruction phases of construction, including but not limited to, inspection and land surveying work and work performed during the postconstruction phases of construction, including but not limited to all cleanup work at the jobsite. Furthermore, preconstruction work is considered “construction” regardless of whether any actual construction work is done at that phase. What this means is the scope of work covered by existing prevailing wage laws has grown.

Any willful violation of prevailing wage law is a misdemeanor, and because AB 1768 expands the application of an existing crime, it also imposes a state-mandated local program.

Takeaways

Public entities should be mindful that prevailing wage rights have been extended to all employees conducting pre and postconstruction services on public works projects. This may entail additional cost in contracts for those services. Public entities should also ensure that their contracts for construction include appropriate language regarding the claims resolution process.

If you have any questions about AB 456 or AB 1768, or public works projects in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Anne L. Collins

Partner

Peter Y. Sumulong

Associate

©2019 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.