State Law Limits Impact of Contraceptive Coverage Rollback on California Employers

October 2017
Number 60

The Trump Administration has issued a significant rollback of Affordable Care Act (ACA) rules that require employers to include cost-free contraceptive coverage in health insurance plans offered to employees. The changes, however, do not apply to most government agency employers and will have a limited impact on California employers. California is one of four states with laws that mandate contraceptive coverage in employer-offered health insurance plans.

The new federal interim rules, which were issued on October 6, 2017 and became effective immediately, permit all non-governmental employers, health plans and third party administrators, as well as colleges and universities that provide student health insurance, to seek an exemption from the requirement that they provide contraceptive coverage if doing so violates a “sincerely held” religious belief. Employers may invoke the exemption to avoid covering some or all of the Food and Drug Administration (FDA)-approved contraceptive services health plans are required to cover under the ACA.

The interim rules also extend the contraceptive coverage exemption to nonprofit organizations, for-profit entities that have no publicly traded ownership interests, health insurance issuers and colleges and universities if providing such coverage would violate a “sincerely held” moral conviction. While not included in the federal interim rule, the Administration is seeking comments on whether this contraceptive coverage exemption should be expanded to cover publicly traded corporations and non-federal government plan sponsors.

The interim rules also permit employees who do not want contraceptive coverage due to their religious beliefs or moral convictions to ask their employer to provide alternative health coverage that does not include coverage for contraceptives. The new rules permit any willing insurer or employer, including government agency employers, to provide such alternative coverage.

Prior ACA rules only permitted houses of worship and integrated auxiliary institutions to exempt themselves from the contraceptive mandate. Those rules created an accommodation for other nonprofit religious organizations and closely held corporations that objected to providing such coverage for religious reasons that required insurers to continue to provide contraceptive coverage without cost and also established mechanisms for repayment. The prior federal accommodation is now optional for employers who are eligible for an exemption on religious or moral grounds.

While the new federal rules may reduce access to contraceptives across most of the country, they will have little impact in California, which requires most employers to provide contraceptive coverage at no cost to insured employees.

California’s Contraceptive Coverage Equity Act of 2014 (the Act) requires health plans and insurers doing business in California, including Medi-Cal managed care plans, to cover FDA-approved contraceptive drugs, devices and products for women, as well as related counseling and follow-up services and voluntary sterilization procedures, without cost. This California law applies to health care service plan contracts and health insurance policies issued, amended or renewed on or after January 1, 2016.

The Act exempts religious employers, defined as a house of worship or integrated auxiliary institution for which (1) the inculcation of religious values is the purpose of the entity; (2) the entity primarily employs persons who share the religious tenets of the entity; (3) the entity serves primarily persons who share the religious tenets of the entity; and (4) the entity maintains nonprofit status. The Act does not apply to grandfathered health plans.

The Act does not address the interim federal provision that allows certain employees to request alternate health benefits without contraceptive coverage, and based upon current law, it is unclear whether government agency employers may consider such requests.

The federal interim rules regarding contraceptive coverage are temporary and are subject to a comment period that is open through December 5, 2017. The interim rules on religious belief exemptions may be viewed here, and the interim rules on accommodations and exemptions for moral convictions may be viewed here.

For more information on the federal government’s interim contraceptive coverage rules, state coverage rules or health care coverage in general, 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.

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Rescission of DACA: What Public Agencies Need to Know

October 2017
Number 57

On September 5, 2017, the Trump Administration announced plans to end the Deferred Action for Childhood Arrivals (DACA) program. The program temporarily permitted some 800,000 undocumented immigrants who arrived in the United States as children to lawfully stay, attend school, and work in the U.S. without the threat of deportation. The Administration is phasing out the program over a six-month period that will end on March 5, 2018, unless Congress enacts legislation extending DACA’s protections.

The Department of Homeland Security’s (DHS) official memorandum rescinding the program provides the following:

  • New Initial DACA Applications: New initial DACA applications will no longer be accepted.
  • Pending Initial DACA Applications: Pending initial DACA applications submitted before September 5, 2017will still be adjudicated and processed on a case-by-case basis.
  • New DACA Renewal Requests: Requests for DACA renewals from current beneficiaries whose benefits expire between September 5, 2017 and March 5, 2018 are eligible for a two-year extension, but the applications must be sent in by October 5, 2017. For individuals whose renewal date is after March 5, 2018, the individual’s current work permit expiration date will be his or her last day of DACA status and employment authorization-no renewals will be allowed.
  • Pending DACA Renewal Requests: Renewal requests from current beneficiaries that were accepted by DHS as of September 5, 2017 will still be adjudicated and processed on a case-by-case basis.
  • Existing DACA Beneficiaries: DHS will not terminate previously issued DACA removal protections or revoke work authorization for the remaining duration of their validity periods.

The Administration’s decision has raised many concerns. According to an August 2017 report by the Migration Policy Institute, the vast majority of DACA recipients are employed or attending school, with one quarter of recipients juggling both college and work. Thus, the end of DACA is poised to have significant impacts on both public employers and schools. Below we highlight some of the implications for public agencies, and note a few measures that agencies can take now to prepare for the upcoming changes.

Implications for Employers

Proving Authorization to Work

Federal law prohibits employers from employing an individual when the employer knows that the individual is not authorized to work in the U.S. Within three days of hire, all employees must fill out an employment eligibility verification Form I-9, regardless of the employee’s immigration or citizenship status, in order to verify identity and employment eligibility. DACA beneficiaries granted work authorizations are issued Employment Authorization Documents (EADs) by U.S. Citizenship and Immigration Services (USCIS). An EAD card issued to a DACA recipient is one of the acceptable identification and work authorization documents listed on Form I-9. EADs are issued to foreign nationals with different types of legal status (e.g., refugees and asylum recipients), not just DACA beneficiaries, and employers are not permitted to ask employees for specific details regarding their immigration status.

Reverification

Once an employee has completed Form I-9 or the E-Verify work eligibility process, an employer should not ask to see the employee’s work permit or other identity or employment eligibility verification documents until the document the employee provided expires or is about to expire. When an employer asks to see such a document again, the process is called “reverification.” Based on USCIS guidance, in order to continue to employ an individual whose EAD has expired, employers will need to reverify the employee no later than the date of expiration. If the reverification process is not completed by the expiration date, the employee may not continue to work and should be put on leave of absence or terminated, in accordance with the employer’s policy.

Avoiding Discriminatory Practices

Although it is unlawful to continue to employ DACA recipients after the expiration of their EADs, it is also unlawful to subject them to greater scrutiny than other employees for reverification purposes, or fire them prematurely based on having a permit that will expire in the future. Under both the federal Immigration and Nationality Act (INA) and Title VII of the Civil Rights Act, employers are prohibited from discriminating against work-authorized individuals based on their nationality or their citizenship or immigration status. It is unlawful, for example, for an employer to selectively reverify the employment eligibility of one employee or a group of employees based on their country of origin, citizenship or immigration status. Employers are also prohibited from discriminating in the verification and reverification process by requesting additional or different documents than are required for verification, demanding a specific document, or refusing to accept a document because of an unfounded suspicion that a document is fraudulent. In addition, authorized workers are protected from intimidation, threats, coercion and retaliation for having filed a discrimination charge against their employer.

Employers should have an established, periodic practice of internally reviewing their employees’ Form I-9 paperwork in order to ensure compliance with federal laws. A best practice is for employers to keep track of all temporary work authorizations that are about to expire and then give employees advance notice that they will soon need to show proof of updated work authorization when their permits are about to expire. USCIS suggests establishing a calendar notification system for employees whose EADs will expire and providing those employees with at least 90 days’ notice prior to the expiration date. Employers without a current practice of internal reviews should consider implementing such a practice.

Implications for Schools

Public schools have an obligation to provide K-12 students a free public education, regardless of their citizenship or immigration status. The rescission of DACA does not change a public school’s obligations to educate and provide a safe learning environment for all students. In addition, undocumented students are afforded protections under the Family Educational Rights and Privacy Act (FERPA) and the McKinney-Vento Homeless Assistance Act. Under FERPA and California student records laws, schools may not provide information from a student’s education record to federal immigration agents unless they obtain parental consent or receive a warrant, court order or lawfully issued subpoena for the information. Immigrant students may also be protected under the federal McKinney-Vento Homeless Assistance Act, which provides certain educational rights for displaced and migrant children. For college students, undocumented status does not affect a student’s ability to attend California colleges, qualify for exemptions of non-resident tuition, or to apply for financial aid. Thus, the rescission of DACA has minimal impact on students’ eligibility for school attendance and financial aid.

Takeaways

While pending federal lawsuits and various companies and organizations are actively urging the reinstatement of DACA, the future for DACA beneficiaries remains uncertain. As public agencies wait for further guidance from Congress and the courts, there are some proactive measures that employers and schools can take now, including:

  • Avoid discriminatory practices, such as engaging in unfair verification and reverification; prematurely terminating employees before work authorization expires; treating individuals differently based on their nationality, immigration or citizenship status; or intimidating or retaliating against employees for having filed discrimination charges;
  • Have an internal practice of consistently tracking work authorizations, and provide an employee with at least 90 days’ notice prior to the expiration of his or her work authorization that he or she will need to show proof of updated authorization; and
  • Inform students and parents of DACA students’ education and privacy rights, which include the right to attend college and the right to apply for financial aid, regardless of immigrations status.

If you have any questions about the federal government’s rescission of DACA or its impact on public agencies, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Dulcinea A. Grantham

Partner & Co-Chair

Sloan R. Simmons

Partner & Co-Chair

Sara E. Santoyo

Associate

©2017 Lozano Smith

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

Significant New Title IX Guidance on Handling Sexual Misconduct: What Schools Need to Know

October 2017
Number 56

New guidance on schools’ responsibilities for addressing claims of sexual misconduct under Title IX places greater emphasis on the rights of those accused of sexual misconduct. The new guidance marks a significant departure from prior guidance but lacks details, creating the potential for many issues requiring legal consultation.

On September 22, the United States Department of Education issued interim guidance on schools’ responsibilities in addressing sexual misconduct and rescinded a 2011 Dear Colleague Letter (DCL) and a 2014 Q&A document, which were both intended to provide more support for those making sexual misconduct complaints. The Department plans to go through a notice and comment period before putting new, permanent guidance in place.

Separately, California lawmakers are seeking to return to the standards laid out in the 2011 DCL in Senate Bill (SB) 169, which was approved by the Legislature and is awaiting Governor Jerry Brown’s signature or veto. If the bill is signed, educational institutions may wish to consult with legal counsel regarding potential conflicts between federal guidance and state law.

Title IX and Sexual Misconduct

Title IX requires educational institutions, including school districts, county offices of education and community college districts, to do the following:

  • Designate a Title IX coordinator to accept reports of sexual misconduct and to oversee Title IX compliance;
  • Investigate and respond to allegations of sexual misconduct involving students;
  • Prior to investigating a complaint, offer assistance to complainants such as counseling, medical services and class schedule modifications;
  • Provide both parties with an equal opportunity to present evidence;
  • Notify parties of the outcome of the complaint; and
  • Take steps to prevent recurrence of sexual misconduct and to remedy its discriminatory effects.

What Does the Interim Guidance Do?

The interim guidance, released as a Q&A document (2017 Q&A), changes how the Department will evaluate whether schools’ procedures satisfy Title IX’s procedural requirements. For example, it could loosen the time frame for investigating sexual misconduct claims and raise the standard of evidence required to prove them. It may also provide new rights for the accused, including the right to interim measures (described below) and written notice of the accusations against them.

Interim Measures

The 2017 Q&A makes it clear that interim measures must be extended, as appropriate, to both accused and complainants. Interim measures are temporary measures that are put into place to stop sexual misconduct, protect involved parties and preserve the integrity of the investigation. The 2014 Q&A had emphasized interim measures that avoided impact to the complainant’s educational environment. The 2017 Q&A states that interim measures should “avoid depriving any student of his or her education” and that “a school may not rely on fixed rules or operating assumptions that favor one party over another, nor may a school make such measures available only to one party.” The 2017 Q&A does not provide specific examples for evaluating the appropriateness of interim measures, but the revised wording and enhanced focus on the rights of the accused suggest that the Department may be more critical of procedures that do not give equal consideration to the interim needs of the accused and the complainant.

Investigation Time Frame

The 2017 Q&A provides that there is no fixed time frame in which schools are expected to complete an investigation. As a result, the suggested 60-day “safe harbor” period contained in the withdrawn guidance will apparently no longer be the bar against which the promptness of investigations is measured. Instead, while schools must still establish reasonable timelines, whether an investigation was in fact conducted timely will be measured on a case-by-case basis. Schools should be mindful of timelines that may apply to sexual misconduct complaints under their internal policies and state law, including the Uniform Complaint Procedures and Title 5 of the California Code of Regulations.

Disclosure of Information and Confidentiality

The 2017 Q&A provides that initial disclosures regarding allegations of sexual misconduct should be made to the accused if an educational institution initiates an investigation. The disclosure should be in writing and should include:

  • The identities of the parties involved;
  • The specific section of the code of conduct allegedly violated;
  • The precise conduct allegedly constituting the potential violation; and
  • The date and location of the alleged incident.

The 2017 Q&A does not include procedures that would allow a complainant to request confidentiality. However, the Department’s 2001 Revised Sexual Harassment Guidance, which remains in effect, provides that the institution should consider a student’s request for confidentiality and evaluate the request in conjunction with its duty to provide a safe environment for all students. Educational institutions should consult with legal counsel prior to issuing this type of written notice to a responding party in cases where a student has requested confidentiality.

Informal Resolution and Mediation

The 2017 Q&A clarifies that informal resolution of complaints, including through a mediation process, may be deemed appropriate by a school if the parties involved agree to such a voluntary resolution after receiving full disclosure of the allegations and options for formal resolution. The 2011 DCL had expressly stated that mediation was not appropriate in cases of alleged sexual assault. The new guidance appears to grant schools discretion, with the consent of both complainant and accused, to use mediation even in cases of alleged sexual assault.

Standard of Proof

The 2017 Q&A provides discretion to educational institutions regarding the standard of proof to use in making findings of fact. Educational institutions may choose to apply either a preponderance of the evidence standard (i.e., more likely than not) or a more rigorous clear and convincing evidence standard (i.e., substantially more likely than not). While an educational institution has the discretion to apply either standard, the 2017 Q&A provides that the standard selected for Title IX investigations should be consistent with the standard the school applies in all other student misconduct cases.

Written Reports/Notice of Findings of Fact

The 2017 Q&A provides that a written report summarizing the relevant evidence should be completed at the conclusion of each Title IX investigation. No specific guidance is provided in the 2017 Q&A regarding notice to the parties of the factual findings resulting from the investigation, other than to state that notice is required and that parties must have timely and equal access to any information that will be used during disciplinary proceedings that follow.

Disciplinary Hearings

The 2017 Q&A makes it clear for the first time that the investigation report must be offered to both parties if it will be used during any informal or formal disciplinary meeting or hearing, and that the parties should be given the opportunity to respond to the report in writing in advance of the decision of responsibility or a hearing to decide responsibility. The Department had not previously issued any guidance related to the disclosure of an investigation report in Title IX matters.

Educational institutions still have the option to offer the right to appeal the decision on responsibility and/or any disciplinary decision to both the complainant and the accused, though the 2017 Q&A permits schools to limit the right to appeal only to the accused. Similar to prior guidance, the 2017 Q&A recommends that written notice of the outcome of disciplinary proceedings be issued to both parties concurrently.

Going forward, the Department has said that in addition to the 2017 Q&A, schools may continue to rely its 2001 Revised Sexual Harassment Guidance as well as its 2006 DCL on Sexual Harassmentas it solicits input on new, permanent guidance. Additionally, any existing resolution agreements that educational institutions entered into with the Department’s Office for Civil Rights will not be impacted by the change in guidance and will continue to be binding.

For questions about the significant changes made by the new guidance or Title IX obligations to address sexual misconduct 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:

Michelle L. Cannon

Partner

Trevin E. Sims

Partner & Co-Chair

Stephanie M. White

Associate

©2017 Lozano Smith

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

New Law Broadens List of Sex Offenses that Lead to Immediate Suspension of Teaching Credential

September 2017
Number 52

State lawmakers have revised the list of sex offenses that mandate the immediate suspension of a teaching credential. These changes take effect on January 1, 2018.

Assembly Bill (AB) 872 adds several sex offenses to the list of offenses that lead to immediate suspension of a teaching credential, contained in Education Code section 44010. The new list includes all sex crimes requiring registration under the Sex Offender Act, as spelled out in subdivision (c) of section 290 of the Penal Code, and sending sexual text messages to a minor.

The bill was intended to close a loophole in current law where not all sex offenses that lead to credential revocation result in an automatic suspension of credentials by the Commission on Teacher Credentialing (CTC). Under existing law, employees can be charged with a sexual offense that could lead to a revocation action by the CTC, but remain able to teach because their credential is not suspended. This legislation broadens the list sexual offenses for which CTC can immediately suspend a credential pending revocation.

The new law also expands the circumstances under which a district is required to place an employee on a mandatory leave of absence when the employee is charged with a sex offense.

This amendment impacts multiple statutes, including those requiring a mandatory leave of absence, a mandatory denial of a credential application and mandatory suspension and revocation of a credential. For example, Education Code section 44425 states that whenever a holder of a teaching credential has been convicted of or has entered a plea of no contest for a sex offense under the definition provided by Education Code section 44010, the CTC shall suspend the credential. When the conviction becomes final or when the imposition of a sentence is suspended, the CTC shall immediately revoke the individual’s credential.

If you have any questions regarding AB 872 or suspension of teacher credentials in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Dulcinea A. Grantham

Partner

Janae D. Lopes

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 School Funding Scheme Does Not Eliminate Immunity From Federal Damage Claims

August 2017
Number 46

Changes to California’s school funding scheme did not eliminate local school district and county office of education immunity from federal claims for damages, the Ninth Circuit Court of Appeals has ruled.

In Sato v. Orange County Department of Education (9th Cir. 2017) ___ F.3d ___, the Ninth Circuit affirmed that California school districts and county offices of education retain their absolute defense to claims for damages in federal court due to sovereign immunity under the United States Constitution’s Eleventh Amendment, regardless of changes to California’s school funding scheme resulting from Assembly Bill (AB) 97’s creation of the Local Control Funding Formula (LCFF).

The Eleventh Amendment

The Eleventh Amendment bars federal lawsuits for damages against California and “arms of the state.” While the Eleventh Amendment “sovereign immunity” defense does not extend to counties and municipal corporations, it does extend to California community college districts, school districts, and county offices of education.

Background

Michael Sato was a systems database architect for the Orange County Department of Education (OCDE). After OCDE fired Sato within weeks of starting his job, he filed a federal lawsuit alleging breach of contract, wrongful termination and various federal constitutional claims. The district court granted OCDE’s motion to dismiss Sato’s constitutional claims for damages based on its sovereign immunity under the Eleventh Amendment. Sato subsequently dismissed his state law breach of contract claim voluntarily and appealed the dismissal of his federal claims to the Ninth Circuit, which affirmed the district court’s ruling and held that AB 97 did not abrogate sovereign immunity for school districts and county offices of education as previously established inBelanger v. Madera Unified School District (9th Cir. 1992) 963 F.2d 248 and Eaglesmith v. Ward (9th Cir. 1996) 73 F.3d 857.

The central question before the Ninth Circuit in Sato was whether, after AB 97’s establishment of the LCFF, school districts and county offices of education retained their status as “arms of the state” entitled to Eleventh Amendment immunity. In concluding that such entities, including OCDE, remain arms of the state, the court analyzed five factors:

  • Whether a money judgment would be satisfied out of state funds;
  • Whether the entity performs central governmental functions;
  • Whether the entity may sue or be sued;
  • Whether the entity has the power to take property in its own name or only the name of the state; and
  • The corporate status of the entity.

Since state and local revenue for schools remain commingled in a single fund under state control, even under the new funding system, the court determined that any use of commingled funds to satisfy a judgment necessarily amounts to the use of state funds. The court also held that OCDE performs central government functions, relying on prior case law that says that California law treats public schooling as a statewide or central government function. The court held that the first and second factor weighed in favor of Eleventh Amendment immunity and that AB 97 did not impact the analysis of the remaining three factors.

Applying the five-factor test, the Ninth Circuit upheld the trial court’s decision and found that AB 97, which significantly reformed the financing and governance of California public schools, did not change the fact that school districts and county offices of education remain entitled to sovereign immunity under the Eleventh Amendment, thus barring claims for damages against them in federal court-whether based upon state or federal law.

Takeaways

Sato presented a novel argument: that the passage of AB 97, which reformed public education financing and decentralized education governance, abrogated previous Ninth Circuit decisions supporting that school districts and county offices of education are entitled to state sovereign immunity. However, the court held in Sato that school districts and county offices of education remain arms of the state and cannot be sued for damages in federal court.

The Eleventh Amendment defense for California’s community college districts also remains undisturbed by the Sato opinion.

Lozano Smith represented the Madera Unified School District in theBelanger case, which first established Eleventh Amendment immunity for California school districts facing damage claims in federal court.

For more information on the Sato decision or on school district and county office of education immunity from federal damage claims, 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:

Sloan R. Simmons

Partner

Lauren A. Lymen

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.

Employers Must Provide Information on Rights of Domestic Violence, Sexual Assault and Stalking Victims

July 2017
Number 39

California employers with 25 or more employees must now inform their employees in writing about the legal rights of domestic violence, sexual assault and stalking victims. Employers, including public agencies, must provide this information using the form prepared by the California Labor Commissioner or in a notice that is substantially similar to the Labor Commissioner’s form in content and clarity. The form must be provided to new employees upon hire and to other employees upon request.

California law permits victims of domestic violence, sexual assault and stalking to take time off from work to seek court intervention to help ensure the health, safety or welfare of themselves or their children. Victims may also take time off to seek medical attention, to obtain psychological counseling and other support services or to participate in safety planning.

Victims must give employers reasonable advance notice of their intention to take time off, unless providing advance notice is not feasible. If a victim takes an unscheduled absence, his or her employer must not take any action if the victim, within a reasonable time, provides proof that the absence was covered under the law. Victims may also request reasonable safety accommodations at work, which employers must provide. Employers may not retaliate or discriminate against a victim for taking time off or requesting reasonable accommodations.

Assembly Bill (AB) 2337, which became effective January 1, 2017, introduced a new requirement that employers with 25 or more employees inform employees of these rights. Employers were excused from compliance with this requirement until the Labor Commissioner prepared an information form and posted it on its website. The Labor Commissioner recently published the form, entitled “Rights of Victims of Domestic Violence, Sexual Assault and Stalking,” which is available here (English) and here(Spanish).

Violations of the laws governing victims’ leave and accommodations can result in civil liability and, in some cases, criminal liability. If you have any questions regarding victims’ leave and accommodations or other employment-related matters, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Steven A. Nunes

Associate

©2017 Lozano Smith

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

New Law Requires Union Access to Employee Orientation Sessions

June 2017
Number 34

Governor Jerry Brown has signed legislation that requires public agency employers to give union representatives access to new employees during orientation sessions. The bill, which went into effect immediately after Brown signed it on June 27, is part of Assembly Bill (AB) 119, a budget trailer bill.

The bill is a product of the efforts by unions representing public employees to mitigate the impact of an anticipated United States Supreme Court decision that could make union dues in public agencies voluntary. Under current law, public agency employees who opt out of participating in their union may be required to pay fees to cover union services including collective bargaining.

AB 119 requires public agency employers to grant union representatives access to new employee orientations, which are defined as onboarding processes conducted in person, online or by other means in which new employees are advised of their employment status, rights, benefits, duties and responsibilities. The structure, time and manner of access is subject to negotiations. This new law also requires that negotiations must be conducted during the period between the effective date of the bill and the expiration of a union’s existing contract.

Public agency employers must give their unions at least 10 days’ notice of a new employee orientation session, unless the employer and the bargaining unit reach an alternate agreement or in specific cases where an urgent, unforeseeable need prevents it. It also requires public agency employers to provide the names, job and contact information for new employees to unions within 30 days of hire or by the first pay period of the month following a hire, even if the employee previously worked for the district. Public agencies must provide the same information about all bargaining unit members every 120 days, though public agency employers and unions may negotiate the provision of more detailed lists or different time intervals for providing the information regarding new employees or bargaining unit members.

If a public agency and a union are unable to reach an agreement on the structure, time and manner of access, the dispute is subject to compulsory interest arbitration which means that that arbitrator has the authority to dedicate the terms of the agreement. Alleged violations of the new law may be addressed by the Public Employment Relations Board (PERB).

The budget trailer bill is less prescriptive than last year’s Assembly Bill (AB) 2835, which would have required public agency employers to hold in-person new employee orientations every four months during work hours, and also to allow unions to conduct 30-minute presentations during the first half of these orientations. That bill would also have required public agency employers to provide contact and job description information about bargaining unit members to unions every 90 days.

AB 119 gives public agency employers the opportunity to work with their labor partners to negotiate terms for access to employee orientations that are workable for the employer and meaningful to the union. There are a variety of options for implementing the requirements of this legislation, including airing a videotaped presentation from the union during employee orientations or allowing for an in-person presentation by a union representative. Public agency employers are encouraged to review existing collective bargaining agreements to determine if existing language conflicts with AB 119 and negotiate any necessary change, or develop, through negotiations, language to implement the terms of AB 119.

Lozano Smith has been tracking this legislation and court cases on union dues closely and is ready to assist public agencies with the implementation of these new mandates. A Frequently Asked Questions document that offers more details on the bill is available below. For more information on these new mandates, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

FREQUENTLY ASKED QUESTIONS

Q: What does this bill require public agencies to do?
A: Assembly Bill (AB) 119 requires public agencies to provide unions with access to new employee orientation sessions. It also requires public agencies to provide unions with names and contact information of new employees in bargaining unit positions.
Q: What was the reason for this bill?
A: Unions representing public employees sought this legislation because there is at least one case pending before the United States Supreme Court that could result in the Court ruling that union dues are voluntary, which could greatly reduce revenues for public employee unions. Currently, public employees who opt out of union membership are often required to pay service fees to cover the cost of negotiations and other union-provided services.
Q: When does the bill go into effect?
A: The bill went into effect immediately after the Governor signed it on June 26, 2017.
Q: Does the bill require public agencies to conduct face-to-face orientations?
A: No. Orientations may be conducted in person, online or by other means.
Q: Does the bill spell out when and how access must be provided?
A: No. The structure, time and manner of access are all subject to negotiations. However, the bill does, in the absence of an alternate agreement, require public agency employers to give unions at least 10 days’ notice before holding an employee orientation, except in specific instances where there is “an urgent need critical to the employer’s operations that was not reasonably foreseeable.”
Q: When should negotiations over access take place?
A: Negotiations must take place between the effective date of the bill and the expiration of a union’s contract.
Q: What happens if we can’t reach an agreement with the union on the structure, time and manner of access?
A: If any dispute that occurs during negotiations over access is not resolved within 45 days after the first meeting of the parties or 60 days after the initial request to negotiate, either side may make a demand for compulsory “interest arbitration.”
Q: What is “interest arbitration?”
A: “Interest arbitration” is one in which the arbitrator has the authority to determine the terms that will resolve the dispute, i.e. dictate the terms of the resolution to the parties.
Q: Couldn’t unions demand to bargain their role in employee orientations prior to AB 119?
A: Yes, unions could bargain their role in employee orientations prior to AB 119 taking the position that such participation was necessary in order to fulfill their representational rights under the EERA and because it impacted terms and conditions of employment.
Q: My agency hires new employees continuously, which will make it difficult to provide the notice and access the bill requires. How can I comply?
A: The bill permits public agencies and unions to reach an agreement that differs from the requirements of the new law. For example, public agencies could seek to negotiate an arrangement with their labor unions to provide access via a video aired at all in-person orientations or provided along with other orientation materials if orientations are conducted online.
Q: What information does the bill require public agencies to provide to unions?
A: Public agencies must provide the union a new employee’s name; job title; department; work location; work, home and personal cell phone numbers; personal email addresses on file with the agency; and home address, within 30 days of hire or by the first pay period of the month following the hire, even if the employee previously worked for the district. The bill also requires public agencies to provide the same information about all bargaining unit members every 120 days, though public agency employers can negotiate agreements with their unions to provide more detailed lists of information or different intervals for providing information about new employees and bargaining unit members. Public agency administrators may wish to work with their human resources departments to find out whether the generation of these lists can be automated to save time and ensure consistent compliance.
Q: What if an employee doesn’t want to stay to hear from the union?
A: The law only requires public agency employers to provide unions with access to new employees and to information on new employees and bargaining unit members. It does not require that an employee stay to hear from the union. This would be the employee’s choice.
Q: What happens if the union believes the public agency is violating the law?
A: Disputes may be submitted to the Public Employment Relations Board (PERB).

Written by:

Louis T. Lozano

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.