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

November 2018
Number 70

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

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

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

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

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

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

For more information on AB 2160 and/or AB 670 or their impacts on classified service, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Sarah Levitan Kaatz

Partner

©2017 Lozano Smith

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

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Bathrooms Are No Longer Acceptable Lactation Accommodations

November 2018
Number 66

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

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

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

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

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

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

If you would like to discuss what might constitute an acceptable permanent or temporary lactation accommodation location, the process to be considered for an exception, or any other matters related to employee accommodations, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Dulcinea Grantham

Partner

Michelle N. Sinks

Associate

©2017 Lozano Smith

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

New Law Expands the Four-Year Evidentiary Window in Permanent Certificated Discipline Cases Involving Allegations of Sexual Misconduct

October 2018
Number 62

Assembly Bill (AB) 2128, effective January 1, 2019, will allow evidence and testimony outside the current four-year time window when a certificated employee is accused of sexual misconduct with a student or minor.

Generally, Education Code section 44944 prohibits testimony, evidence, or a dismissal or suspension decision relating to matters that occurred more than four years before the date a permanent certificated employee is served with a notice of disciplinary action. While there are exceptions to this rule when allegations of sex offenses and acts of child abuse and neglect are charged against a permanent certificated employee, existing law does not expressly allow consideration of testimony or evidence for other misconduct of a sexual nature, if the evidence relates to matters that occurred more than four years prior.

AB 2128 exempts from the four-year window testimony, evidence, or a dismissal or suspension decision regarding allegations of behavior or communication of a sexual nature with a student that is beyond the scope or requirements of the educational program, for purposes of a disciplinary proceeding based on similar conduct. The new law will also exempt testimony, evidence, or a dismissal or suspension decision regarding allegations of specified offenses involving lewd and lascivious acts and certain types of contact or communication with minors, for purposes of any disciplinary proceeding.

It should be noted that separate and apart from AB 2128, in Atwater Elementary School District v. California Department of General Services (2007) 41 Cal.4th 227, the California Supreme Court held that, with regard to Education Code section 44944, “the four-year time limitation is not absolute” and consideration of allegations outside the four-year window may be permitted if the employing school district demonstrates that an equitable tolling doctrine applies. AB 2128 simply provides express grounds permitting consideration of certain older evidence and testimony without having to prove and rely upon an equitable tolling theory.

Takeaways

AB 2128 provides additional opportunities for school districts that initiate disciplinary proceedings against permanent certificated employees to demonstrate patterns of inappropriate behavior with students.

For more information about this new law or about the certificated discipline process 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 orTwitter or download ourClient News Brief App.

Written by:

Gabriela D. Flowers

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.

Legislature Enhances Minor Witness Protections in Employee Discipline Proceedings

October 2018
Number 63

Assembly Bill (AB) 2234, which becomes effective January 1, 2019, provides a comprehensive set of requirements for the presentation of testimony by minor witnesses at administrative disciplinary proceedings initiated under the egregious misconduct hearing process for permanent certificated employees, and for discipline hearings involving allegations of egregious misconduct for permanent classified employees of merit or non-merit system school districts. As a reminder, in 2014 the legislature passed AB 215, which made significant changes to the permanent certificated dismissal and suspension process. Among these changes was to provide an expedited hearing process when a certificated employee is charged exclusively with egregious misconduct, a specific type of immoral conduct defined in the Education Code.

The new bill, AB 2234, authorizes an administrative law judge (ALJ) to allow a minor witness to testify at specified disciplinary proceedings by two-way closed-circuit television instead of being present in the hearing room with the employee. The ALJ must make specific findings set forth in the Education Code to make such an order.

Minors who are witnesses in these disciplinary proceedings must also be assigned a support person to be present with them while they testify. It is presumed that a parent or guardian is qualified to serve as the student’s support person. However, an ALJ can select and appoint a support person if the ALJ determines that the minor’s parent or guardian is not qualified.

AB 2234 also requires the ALJ to take special care to protect minor witnesses or dependent persons with a substantial cognitive impairment from undue harassment or embarrassment, and to restrict the unnecessary repetition of questions. Further, the bill requires ALJs to take special care to ensure that questions are stated in a form that is appropriate to the age and cognitive level of the witness.

While ALJs already possess the discretion to accommodate testifying minor witnesses in a manner that ensures accurate and complete testimony, AB 2234 makes clear this discretion is available in permanent certificated dismissal cases under the egregious misconduct hearing process and in the permanent classified discipline process where allegations of egregious misconduct are alleged.

AB 2234 also requires school districts to take specified action to ensure the confidentiality of student information upon issuance of a court order or subpoena for pupil contact information of minor witnesses. In this situation, AB 2234 requires the school district to make a reasonable effort to enter into an agreement with the entity that obtained the court order or subpoena, requiring that the pupil’s contact information be maintained in a confidential manner. The bill specifies that a party that obtains pupil contact information shall not use or disseminate that information for any purpose except as authorized by the court order or subpoena.

It is important to note that AB 2234 requires appointment of an ALJ where allegations against a permanent classified employee include egregious misconduct involving a minor. This new law may require school districts to review board policies and collective bargaining agreements to determine whether the discipline hearing process for permanent classified employees requires revision to comply with AB 2234.

For more information about this new law or about the employee discipline process 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:

Gabriela D. Flowers

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.

New Law Requires Paid Time Off for Union Stewards and Officers

October 2018
Number 65

Effective January 1, 2019, Senate Bill (SB) 1085 requires public agency employers in California to grant, upon the request of a union, “reasonable” paid leaves of absence to employees serving as stewards or officers of the union or of any statewide or national employee organization with which the union is affiliated.

While on such leave, employees must suffer no loss of compensation or benefits and retain reinstatement rights, meaning they have the right to return to the same position and work location held before the leave, or if this is not feasible, a substantially similar position without loss of seniority, rank, or classification. Benefits while on leave also include retirement fund contributions and service credit. Unions must reimburse the employer within 30 days for all compensation paid to employees while on leave, unless negotiated otherwise.

“Steward” is defined very broadly as:

[A]ny employee designated by the exclusive representative as a representative for unit employees, whether for the unit as a whole or at a particular site, department, or other division of the employer’s operations, regardless of whether the employee is referred to by the exclusive representative as a steward or by a different title.

In other words, the designation of an employee as a “steward” for purposes of this new law is left up to the union, or potentially up to the negotiation process.

The bill faced opposition from many public agency employer groups who argued that it creates a highly expansive form of protected leave for employees without consideration of the potential burdens on employers. Opponents further argued that such leave is traditionally negotiated at the bargaining table where both parties are better positioned to have their interests equally represented.

The new law also provides that employers are not liable for any acts, omissions, or injuries by employees on leave. In the event that liability arises, the union is required to indemnify the employer and hold the employer harmless.

The actual procedures for requesting and granting leave are still left up to negotiations and the mutual agreement of the employer and the union. Generally, the law as written contains significant ambiguities that will likely need to be resolved at the bargaining table, such as what is considered “reasonable.”

This new State legislation may have been intended to counter the effect of the decision issued in Janus v. AFSCME earlier this year. (See 2018 Client News Brief No. 27.) In Janus, the United States Supreme Court held that public

employees may not be compelled to pay fair share fees to public sector unions, as such fees violate the First Amendment. SB 1085 offers a layer of protection for labor organizing at a time when unions are feeling threatened and fear low participation rates.

Existing Law

Protected paid time off for public employees for labor-related reasons is not a new concept. The paid time off granted by SB 1085 is in addition to leave entitlements provided to employees by negotiated agreement and by the various collective bargaining laws in California. Most of the public sector collective bargaining laws in California guarantee employee representatives the right to receive reasonable periods of release time without loss of compensation when meeting and negotiating or conferring and for purposes of processing grievances. This includes, but is not limited to, the Educational Employment Relations Act (EERA) (covering K-12 and community college public school districts), the Higher Education Employer-Employee Relations Act (HEERA) (covering public institutions of higher education), the Ralph C. Dills Act (covering state government employees), and the Meyers-Milias-Brown Act (MMBA) (covering local public agencies). Going beyond these minimum release time entitlements, the Education Code also requires public school or community college districts to grant paid time off to specified represented employees to serve as elected officers or attend important organizational activities; and the MMBA provides paid time off for public agency employees to testify or appear in certain conferences, hearings, and general matters before a personnel or merit commission.

SB 1085 addresses what some may identify as an inconsistency with regard to existing statutory paid time off allowances by creating an entitlement that applies uniformly to stewards of public employee unions (however steward may be defined for the particular organization).

Next Step: Negotiation

With some exception, SB 1085 leaves the technical details up to the employer and union and does not invalidate existing negotiated agreements, which must be reopened for negotiations on the subject of this new leave entitlement upon request of the union.

Public agency employers are encouraged to review their existing collective bargaining agreements to determine if existing language conflicts or can be harmonized with SB 1085 and consider their interests in anticipation of the inevitable requests and proposals that will likely come in from the unions representing their employees.

If you have any questions about SB 1085, contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Thomas R. Manniello

Partner

Niki Nabavi Nouri

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 Districts to Pay Employees on Parental Leave at Least 50% of Their Salaries

October 2018
Number 64

Starting January 1, 2019, California school and community college districts will be required to pay certificated, classified, and academic employees eligible for parental leave under recently enacted laws at least 50% of their salaries once they exhaust their sick leave and begin taking differential leave. This requirement applies regardless of the rate districts pay substitute employees to fill in for the employees on parental leave. The new law is a result of Assembly Bill (AB) 2012, which was approved by Governor Brown on September 30, 2018, and is the latest in a series of bills which expanded protections for employees taking parental leave.

Current Law

Prior to AB 2012, employees electing to take up to twelve weeks of parental leave under recently enacted additions to the California Education Code must first exhaust their paid sick leave, after which time they are compensated according to their districts’ established practices for differential leave. (See Client News Brief No. 56 &, Client News Brief No. 84.)

Currently, there are two systems available for establishing the pay rate for employees on differential leave, whether the leave is due to parental leave, illness or accident. Under the first system, school and community college districts pay certificated and academic employees the difference between their regular salaries and the amount the districts pay or would have paid a substitute hired to fill in for the employee during his or her absence. For classified employees, this system requires that that districts actually hire a substitute employee in order to deduct a portion of the employee’s regular salary. This system allows employees to potentially receive only a small percentage of their salary while on differential leave
if the substitute’s rate of pay is close to the employee’s regular salary.

Alternatively, some school and community college districts have negotiated a system under which employees on extended sick are compensated at no less than 50% of their regular salary, regardless of the rate paid to a substitute.

New Law

AB 2012 amends the law to require that, regardless of the type of pay system used by school and community college district to compensate employees on extended illness and accident leave, all certificated, academic and classified employees taking up to 12 weeks of parental leave must be paid no less than 50% of their regular salary. Employees will still be required to exhaust their fully paid sick leave before receiving differential pay for parental leave.

Takeaways

AB 2012 only affects the differential pay system for employees on parental leave. School and community college districts should maintain their current

system for determining the pay rate of employees on differential leave due to illness or accident. Furthermore, to the extent districts have a practice of providing employees on parental leave with more than 50% of their salary, districts should continue to maintain their current practice. AB 2012 is not intended to decrease the amount of compensation provided to employees on parental leave.

If you have any questions about AB 2012 or parental leave laws applicable to California school and community college districts, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitteror download our Client News Brief App.

Written by:

Dulcinea Grantham

Partner

Jennifer Ulbrich

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 Aims to Protect Public Employers and Unions from State Lawsuits to Recover “Fair Share” Fees

September 2018
Number 54

A new law provides public employers and public sector unions with legal immunity under state law from claims to recover the deduction of mandatory agency fees, or “fair share” fees, collected before the United States Supreme Court issued its decision in Janus v. AFSCME on June 27, 2018. Senate Bill (SB) 846 is effective immediately.

Background

Prior to the Janus decision, the United States Supreme Court previously held that it was constitutional for public sector unions to collect agency fees from nonunion members to defray the cost of collective bargaining and other activities, so long as nonunion members were not required to pay for a union’s political or ideological activities. In Janus, the United States Supreme Court overturned this precedent and held that public employees may not be compelled to pay fair share fees to public sector unions, as such fees violate the First Amendment. (See 2018 Client News Brief No. 27.)

SB 846, which adds section 1159 to the Government Code, seeks to provide legal protection to public employers and public sector unions that relied on prior Supreme Court precedent and state law when deducting and collecting fair share fees. SB 846 provides that public employers and employee organizations are not liable under state law for “requiring, deducting, receiving or retaining” fair share fees from public employees if the fees were legally permitted at the time and paid prior to June 27, 2018. SB 846 states that this new statute clarifies current state law, and does not change it. In addition, Government Code section 1159 applies to claims and actions that are pending on the effective date of the statute, in addition to claims and actions filed after that date.

Takeaways

Since the Janus decision, employees aided by organizations opposed to agency fees have filed lawsuits seeking the return of the employees’ fair share fees from the unions. As SB 846 is limited to claims or actions under state law, it does not impact lawsuits filed in federal court alleging a violation of federal law.

If you have any questions about SB 846, contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Dulcinea Grantham

Partner

Aria G. Link

Associate

©2017 Lozano Smith

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