PERB Decision Provides Guidance Addressing “Public Hearing” Requirement

March 2019
Number 17

In a recent decision, the Public Employment Relations Board (PERB) addressed the public hearing requirement an agency must satisfy before implementing its last, best, and final offer (LBFO), after completing applicable impasse procedures. In City of Yuba City (2018) PERB Dec. No. 2603-M, PERB upheld an administrative law judge decision dismissing an unfair practice charge brought against the City of Yuba City (City) by Public Employees Union Local 1 (Local 1) alleging violation of the Meyers-Milias-Brown Act (MMBA).

Background

Local 1 alleged that the City unlawfully failed to hold a public hearing before imposing a LBFO in violation of section 3505.7 of the MMBA. Government Code section 3505.7 provides that after completing any applicable impasse procedures, and no earlier than 10 days after the parties receive the factfinding report, the agency “may, after holding a public hearing regarding the impasse, implement its [LBFO]….” This case marks the first time PERB has considered violation of the public hearing requirement as a potential standalone violation of the MMBA.

Local 1’s allegations specifically charged that, by identifying the item on the City Council’s agenda as “Local 1 imposition,” rather than as a public hearing regarding the impasse, and by focusing on the need to impose terms rather than on the disputed issues, the City failed to follow the statutory procedures prescribed by the MMBA.

In rejecting this argument, PERB noted that the agenda and staff report described the parties’ bargaining history, and notified the public that the parties had reached impasse and exhausted impasse procedures. Additionally, the union admitted it had the opportunity to prepare for the Council meeting and had received the agenda and staff report. Further, the Mayor “opened up the public hearing” during the public portion of the meeting. Based upon these facts, PERB concluded that the City had satisfied section 3505.7’s requirement to conduct a public hearing regarding the impasse.

Local 1 also argued that the City did not intend to hold a public hearing regarding the impasse because (1) the “Local 1 imposition” item did not appear on the agenda where public hearings were required to be listed per the City’s local rules and (2) the City failed to provide adequate notice required under the Brown Act of a public hearing regarding the impasse. PERB also rejected this argument on the basis that the City had adequately informed the public that the City Council would be considering imposing the LBFO and the opportunity for public comment had been provided.

In other words, the fact the item was not described as a “public hearing” on the agenda at a particular location on the agenda did not establish a violation of section 3505.7’s public hearing requirement under the facts. Rather, PERB clarified that section 3505.7’s public hearing requirement is satisfied when the agency (1) provides adequate notice to the public that it intends to consider imposing terms and conditions on employees (the LBFO) and (2) allows public comment concerning the proposed imposition of the LBFO.

Takeaways

While the PERB’s decision was dependent upon the facts in this case, there are some important takeaways:

  1. After completing impasse procedures and before imposing an LBFO, agencies should ensure that section 3505.7’s public hearing requirements are met. To reduce exposure to similar claims, the agenda should clearly describe the item as a “public hearing regarding impasse pursuant to Government Code section 3505.7,” or words to that effect. Local rules pertaining to agenda requirements (e.g. location of hearings on agenda and timely posting, etc.) should be followed. Please note the Educational Employment Relations Act does not appear to have a similar public hearing requirement.
  2. The staff report should describe the parties’ bargaining history, impasse, and compliance with applicable impasse procedures.
  3. The item should be considered and deliberated upon in open session during a regular meeting in which public comment is invited.
  4. The government agencies should ensure the union is provided with sufficient time to prepare for the public hearing by ensuring the agenda is timely posted and all documents supporting the agenda item are timely provided to the union.

For more information about this decision or about labor law questions 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:

Jenell Van Bindsbergen

Partner

Meera H. Bhatt

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.

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Court Clarifies Interplay Between Education Code Discipline And The Brown Act’s 24-Hour Notice Requirement

February 2019
Number 14

In Ricasa v. Office of Administrative Hearings, certified for publication on January 14, 2019, the California Court of Appeal attempted to harmonize an apparent dissonance between the Ralph M. Brown Act’s personnel exception, and the disciplinary procedures of the Education Code. The opinion constitutes the first time an appellate court has ruled on the Brown Act’s personnel exception in the context of community college districts, and the opinion’s implications reach to all public entities that discipline employees under the Education Code. Lozano Smith attorneys, including Mark Waterman (one of the authors of this news brief), successfully represented the community college on this appeal.

Background

Appellant Arlie Ricasa (Ricasa) served as the Director of Student Development for the Southwestern Community College District (Southwestern), while at the same time serving as an elected board member of a separate, but closely tied, entity, the Sweetwater Union High School District (Sweetwater). Ricasa was implicated in the Sweetwater scandal, which received substantial media coverage, and had criminal charges filed against her for counts that included bribery and corruption. As a Sweetwater board member, Ricasa voted on million-dollar vendor contracts while also receiving gifts from the contractors, including dinners and a scholarship for her daughter. She did not disclose the gifts on her required Economic Interest Form 700, and ultimately pled guilty to violating the Political Reform Act. Her guilty plea admitted she accepted gifts and failed to disclose them, and that the gifts were provided with the intent to influence her vote on business awarded to the contractor.

After Southwestern demoted Ricasa in compliance with the Education Code, Ricasa exercised her right to appeal the demotion to the Office of Administrative Hearings (OAH), but lost her appeal on the merits. Ricasa also filed petitions in trial court to challenge the demotion, including on the ground that Southwestern’s Board violated the Brown Act by meeting in closed session without first providing Ricasa 24-hour notice under Government Code section 54957. The Superior Court denied Ricasa’s petitions generally, but ruled that the Brown Act required the college to give her 24-hour notice of the Board’s closed session discussion. Both sides appealed, and the Court confirmed that the Brown Act must be interpreted consistently with the Education Code when determining whether 24-hour notice is required.

Education Code Discipline and 24-Hour Notice under the Brown Act

The Education Code governs discipline of community college district employees, which may occur under section 87732 for immoral or unprofessional conduct, or for conviction of a felony or any crime involving moral turpitude. The Education Code imposes specific procedural requirements for such discipline, including the board’s receipt of recommendations from the district’s superintendent/president, the receipt and consideration of certain information, the preparation of charges, and notice to the employee of the right to appeal the discipline via a full evidentiary hearing before an administrative law judge.

The Brown Act generally requires that board meetings be open to the public. Closed sessions may be conducted only if authorized by statute. The relevant statutory authorization, often referred to as the personnel exception, is found in Government Code section 54957. The personnel exception allows a board in closed session to “consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee by another person or employee unless the employee requests an open public session.” [Emphasis added.] For the latter category of actions, the employee must be given 24-hour advance written notice of his or her right to have the complaints or charges heard in an open session.

Ricasa argued, and the Superior Court held, that the Education Code’s disciplinary requirements transformed the closed session into a “hearing” for which 24-hour notice was required. The Court of Appeal rejected Ricasa’s theory and clarified the interplay between the Education Code and the Brown Act. The Court of Appeal held that the presentation of charges and a recommendation by the district president (who was not a percipient witness) did not transform the closed session into a “hearing” requiring 24-hour notice, nor did the length of the closed session, the lack of a post-session announcement, or the closed session debate as to whether the facts in the guilty plea sufficed to impose discipline. The Court ruled that Ricasa’s contrary “interpretation would eviscerate the personnel exception by preventing the governing boards of community colleges from engaging in the type of ‘free and candid’ discussions that the Legislature has deemed necessary for them to manage their personnel.”

Takeaways

Disciplining employees without violating the Brown Act’s 24-hour notice rule involves complex, nuanced legal evaluations for which counsel should be consulted. The Ricasa opinion confirms that for educational agencies the Brown Act must be interpreted in light of the Education Code and that compliance with the mandatory Education Code disciplinary requirements does not necessarily transform a board’s closed session into a “hearing” requiring 24-hour notice. While the Court did not rule that Education Code compliance forecloses 24-hour notice in all Education Code disciplinary matters, it provided substantial clarification for how the Education Code and the Brown Act must be interpreted together so as not to “eviscerate” the personnel exception.

For additional information regarding the Ricasa opinion and how it may impact disciplinary matters in your district, please contact the author 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:

Mark W. Waterman

Partner

Marisa Montenegro

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.

Employees’ Representation Rights Now Expand Beyond Oral Interviews

January 2019
Number 6

Three recent decisions by the Public Employment Relation Board (PERB) have expanded or highlighted employees’ rights to union representation when employees are asked to prepare a written statement or are searched unclothed.

Written Statements

In San Bernardino Community College District (2018) PERB Dec. No. 2599, PERB expanded the right to union representation to those circumstances where an employee is asked to provide a written statement. In this case, an employee was questioned by a community service officer (CSO) in the District’s police department concerning the employee’s location during the employee’s work shift. After verbally answering the CSO’s questions, the employee requested a union representative. The CSO agreed that the employee had a right to a union representative, but directed the employee to draft a written statement before he was relieved of duty. In its decision, PERB reiterated the rationale for the right to union representation in an investigatory interview, explaining:

The right to representation in an investigatory interview is based on the following rationale: A single employee confronted by an employer investigating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors. A knowledgeable union representative could assist the employer by eliciting favorable facts, and save the employer production time by getting to the bottom of the incident occasioning the interview.

PERB rejected the employer’s argument that the right to union representation only attached during an oral interview. Instead, PERB held that the right extended to a written statement as well because the employee reasonably believed that his written statement, like a verbal statement, could also be used for disciplinary purpose.

In County of San Joaquin (Sheriff’s Department) (2018) PERB Dec. No. 2619, PERB ordered the employer to rescind and expunge the disciplinary action taken as a result of the employee’s insistence on union representation at a meeting with his supervisor where the employee was asked to prepare a written statement. The employee made repeated requests for union representation, but was denied. The employee’s refusal to prepare the written statement without union representation escalated into an internal affairs investigation for insubordination, which concluded in discipline. PERB held that an employee is entitled to union representation prior to providing a written statement which the employee reasonable believed could result in disciplinary action, and that absent his request for union representation the employee would not have been disciplined. PERB also took the additional step of ordering the employer to rescind and expunge the disciplinary action taken as a result of the employee’s insistence on union representation.

Body Searches

InState of California Department of Corrections & Rehabilitation (2018) PERB Dec. No. 2598, PERB expanded the right to union representation to include unclothed body searches. In this case, the employer was tipped off by an inmate claiming that the employee was going to bring narcotic powder into the prison. A criminal investigation was initiated, during which the employee was told that the investigators would search her bags, vehicle, and person. The employee consented to the search of her bags and vehicle, but when the employee was told to remove her clothes for an unclothed body search, the employee demanded the presence of a union representative, a supervisor, or someone from peer support. The employer denied the employee a right to union representation twice on the basis that (1) she was “only being searched, not questioned,” and (2) she signed a consent-to-search form when she was first hired. PERB held that an invasive search of an employee’s person, including an unclothed body search, is the type of investigatory meeting which gives rise to the right to union representation. Further, PERB held that if an employer rejects an employee’s request for union representation, the employee cannot be found to have voluntarily waived his or her right to union representation. Moreover, an employee does not waive his or her right to union representation by signing an acknowledgement of the employer’s rule that he or she is subject to search at any time while on the employer’s grounds.

This case further emphasizes that PERB believes employees’ rights to union representation extend beyond oral questioning. Further, PERB is protective of employees when interpreting the waiver of employees’ rights to union representation.

Takeaways

These three cases demonstrate that PERB believes a public employee has a right to union representation when an employer conducts an invasive search or requires an employee to prepare a written statement that may lead to discipline. In light of these cases, public employers should evaluate their investigation procedures and directives. When an investigation calls for an invasive search, or an employee is directed to prepare a written statement which could lead to the discipline of the employee, public employers should provide employees the right to union representation.

For additional information regarding the three PERB decisions, please contact the authors of this Client News Brief, an attorney at one of our eight offices located statewide, or an attorney in Lozano Smith’s Investigative Services team. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Dulcinea Grantham

Partner

Jayme A. Duque

Associate

©2017 Lozano Smith

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

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.

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.

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

November 2018
Number 80

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

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

Classified Employee Eligibility

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

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

2019-20 Program Timeline

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

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

Next Steps

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

If you have any questions about this new program, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Sarah Levitan Kaatz

Partner

Jayme A. Duque

Associate

©2017 Lozano Smith

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