California Adds “Nonbinary” Gender Option to Identification Documents, Impacting All Public Entities

March 2018
Number 13

On October 15, 2017, Governor Jerry Brown signed Senate Bill (SB) 179, known as the “Gender Recognition Act,” which adds a “nonbinary” gender option to state driver’s licenses, identification cards, and birth certificates. Most of this bill’s provisions are set to take effect on September 1, 2018, including a provision allowing an individual to petition a California court to recognize their gender as nonbinary, which would then allow them to subsequently request a new birth certificate reflecting their gender identity.

Public entities will need to address the nonbinary gender option now available to employees and students on official documents. Job application forms will likely require revision to allow the indication of nonbinary gender. Training may be necessary to inform employees about the new law and to re-instruct them about responding appropriately to new job applicants or existing employees who identify with a nonbinary gender, which could be included as part of a public entity’s sexual harassment training. SB 396, also passed in 2017, requires employers with 50 or more employees to conduct training on harassment based on gender identity, gender expression, and sexual orientation. Further, school employees will likely need guidance
on how to address potential issues that may arise on campus regarding nonbinary persons.

SB 179 follows Assembly Bill (AB) 1266, made effective January 1, 2014, which allows students to participate in school programs and activities and use facilities consistent with their gender identity. While AB 1266 is often considered in relation to transgender students, the law itself refers to gender identity, which includes those identifying as nonbinary.

School districts, community college districts, and charter schools should update student forms to ensure the indication of nonbinary gender is available for the 2018-2019 school year. The California Department of Education, in its guidance on AB 1266, states, “when a school district receives documentation that a legal name or gender has been changed, the district must update the student’s official record accordingly.” This would apply to all official student records including a gender designation, including but not limited to enrollment and registrations forms, IEPs, 504 plans, report cards, and transcripts. Districts should also contact their electronic student information system providers to ensure electronic systems are updated accordingly in advance of the 2018-2019 school year.

If you have any questions about the implementation of SB 179, 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

Sarah L. Garica

Partner

Joshua Whiteside

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.

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When Politics and Walkouts Come to the Workplace: Considerations for Teachers, Superintendents, and Governing Boards

March 2018
Number 8

The February 14 mass shooting at Marjory Stoneman Douglas High School has inspired a groundswell of political activism at K-12 schools across the country. Lozano Smith previously reported on considerations and implications of student activism surrounding this issue. (See 2018 Client News Brief No. 7.) School districts must also consider if and how to regulate and respond to employee speech surrounding the gun control debate and other controversial topics. Additionally, governing boards should consider the legal and political implications of engaging in speech on these types of hot-button issues.

Public schools face a difficult balancing act: how to preserve government neutrality and an employee’s First Amendment rights while fulfilling their core mission of education. Similarly, a public employer’s response to employee speech and activism is highly dependent on specific facts, and may take various forms.

Governing Board Speech Rights

School boards may take political positions, as long as they do not support a candidate or ballot measure. Individual board members may also make political statements, as long as they identify their expression as reflecting a personal viewpoint, and not the viewpoint of the governing board. Aside from any legal issues, taking a position on a controversial topic could result in both positive and negative reactions from the local community. Alternatively or in addition to taking a position on a topic of concern, governing boards can facilitate discussions about local solutions to serious problems like school safety in order to engage the staff, students, parents, and stakeholders without alienating the community.

Superintendent Speech Rights

Like board members, superintendents also should identify when they are speaking on a political issue in their personal capacity or in their capacity as a representative of the district. Boards may also direct the superintendent to make public statements on an issue on their behalf. However, a superintendent should be wary of taking a position on any controversial matter without clear direction from the board.

Teachers’ Speech Rights

Any analysis of restrictions on teachers’ political activities and speech depends on several considerations. As a general rule, schools cannot discipline or penalize teachers based on political speech or activities outside of work. However, there are exceptions when a teacher is speaking as a public school employee rather than as a private citizen. Analyzing political statements or activities in the workplace is more complex.

Limited First Amendment free speech protections apply to political statements in the workplace. The U.S. Supreme Court held inGarcetti v. Ceballos that public employees do not have First Amendment protections when making statements pursuant to their official duties. In a case before the Seventh Circuit Court of Appeals,Mayer v. Monroe County Community School Corp., the court held that a public school teacher was not entitled to share personal political viewpoints during a classroom session on current events, as the teacher’s viewpoint departed from the curriculum adopted by the school system. Many school districts have board policies regarding controversial issues.

Teachers also may not walk out of the classroom during on-duty time. Public employees have no right to abandon their work for political purposes. However, during off-duty periods like lunch breaks, public employees generally can engage in political expression subject to certain exceptions based on the location and manner of the speech.

Another potential form of speech is a “sick-out” among employees. This occurs when more employees than usual take sick leave to make a political statement. Sick-outs implicate a number of employment-related First Amendment and collective bargaining issues. Like student walkouts, districts must respond to the conduct, rather than the statement, at issue. Public employers generally cannot discipline employees for engaging in speech or conduct protected by the Constitution. In a case concerning a sick-out to protest school funding concerns, a Michigan court held that speech promoting or encouraging a sick-out was protected by the First Amendment, and not a call to strike.

Districts should prepare contingency plans for days when a large number of teachers is expected to be absent to ensure proper staffing levels. Schools can also work with their labor partners, student protest leaders, and other parties to anticipate concerns and staffing impacts of walkouts or sick-outs. Moreover, districts can refer to their collective bargaining agreements for information about how to verify sick leave absences for their employees.

With the exception for board or board-authorized speech noted above, public agencies themselves should generally refrain from adopting political stances. Public resources, including services, supplies or equipment, cannot be used to support or condemn a particular ballot measure or candidate, and students and employees must be treated equally no matter their political opinion. This holds true in the classroom, where discussion of current events (and associated opinions) is inevitable. Teachers can facilitate a discussion, but insertion of a teacher’s personal opinions is inappropriate. For example, offering extra credit or encouraging attendance at a pro-gun control rally would also be official support for a particular viewpoint, and improper. However, encouraging students to attend political rallies or events irrespective of the subject matter or viewpoint is viewpoint-neutral, and may be consistent with some curricula.

Lozano Smith is prepared to help school districts navigate options and responses tailored to the specific needs and concerns of their particular school community.

If you have any questions about student walkouts, or student free speech rights in general, please contact 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

Gabriela D. Flowers

Senior Counsel

Tilman A. Heyer

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.

School District Policy Prohibiting Active Strikers from Entering School Grounds Violated the First Amendment

February 2018
Number 6

A public school district’s policies prohibiting picketing and the display of signs and banners on District property violated the free speech rights of picketers and their supporters, the Ninth Circuit has ruled. (Eagle Point Educ. Ass’n. v. Jackson County School District No. 9 (9th Cir. Jan. 26, 2018, Nos. 15-35704, 15-35972) ___ F.3d ___.)

Background

Anticipating a teacher strike, the Jackson County School District No. 9 in Oregon adopted two resolutions that targeted would-be strikers and their supporters. One resolution prohibited picketing on any property owned or leased by the District, and also prohibited picketers from entering school facilities for any reason. The second disallowed signs and banners in or on facilities leased or owned by the District, unless written approval of the superintendent was obtained in advance.

The policies prevented striking teachers who were also parents from visiting their children at school on any day that they were in the picket line, and a striking teacher was turned away from attending a weekend flower sale at the local high school. A high school senior who drove onto campus with a sign on her windshield that read “I Support D9 Teachers” was prohibited from parking in the school parking lot, while several students were told not to come to school for a day after they voiced their support of the striking teachers on Facebook.

The union, a union member, and a student sued the District alleging that the policies violated their free speech rights under the First Amendment and the Oregon Constitution. Judgment was entered in their favor, and the District appealed.

In reviewing the case, the Ninth Circuit considered District facilities and school grounds to be non-public forums, meaning speech on the property could be restricted so long as the restrictions were reasonable and viewpoint neutral. But the court held that the District’s policies were not viewpoint neutral, adding that they were directly aimed at stifling disagreement with the District’s position on the strike. The court noted that the District made it known that they wanted to avoid sending “a garbled message to parents and taxpayers by allowing striking teachers access to school property to picket, chant, and display signs and banners.”

The District argued that the policies were reasonably necessary in order to keep school operating without issue during the strike, but the court disagreed, finding that the District offered no evidence to show that there was any risk of disruption or violence on campus due to potential picketing, signs, or banners. The court also noted that the restrictions were not tailored to address disruption of instructional time.

Takeaways

While this decision does not preclude public school districts from taking action to ensure normal school operations during a strike, it serves as a reminder that any restrictions imposed must be reasonable under the circumstances and must not be aimed at suppressing expressions of disagreement with district positions.

For more information about this ruling or about addressing student and staff free speech rights in general, please contact 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

©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.

Retiree Work Hour Limitation Suspended for Fire and Mudslide Response Work

February 2018
Number 4

Governor Jerry Brown has suspended the 960-hour per year work hour limit for retired annuitants who assist California counties battling fires and mudslides. CalPERS announced Brown’s suspension of the rule in a January 29 Circular Letter.

Governor Brown issued a pair of executive orders lifting the work hour limit and other rules in an effort to expedite hiring of emergency workers and to streamline the recovery of communities devastated by the disasters. In addition to suspending the work hour limitation for retired annuitants who assist in disaster response and recovery in the affected counties, the emergency orders exempt retired annuitants hired to expedite disaster recovery from separation and break in service requirements and also, limits on the duration of emergency appointments, the Circular Letter says.

Generally, CalPERS retirees may only work 960 hours per year. Retirees who have reached normal retirement age may only be employed with such an employer after their first 180 days of retirement have passed and only during an emergency to prevent stoppage of public business or because they have skills needed to perform work of limited duration, unless an exception applies.

Retirees who have not reached normal retirement age must have a bona fide separation in service. Normal retirement age is defined by CalPERS as the benefit formula age for a position, i.e. age 55 for the 2% at 55 retirement formula. For a bona fide separation to have taken place, the employee must have a 60-day separation from employment and there must not be a pre-determined agreement between employer and employee to work after retirement.

The suspension applies to hours worked to expedite disaster response and recovery in the affected counties beginning on the date a state of emergency was declared and remaining in place until the declaration is lifted. The Governor issued state of emergency declarations on the following dates:

  • Napa, Sonoma, Yuba, Butte, Lake, Mendocino, Nevada and Orange counties: October 9, 2017
  • Solano County: October 10, 2017
  • Ventura County: December 5, 2017
  • Santa Barbara County: December 7, 2017

Per the Circular Letter, all other provisions related to working after retirement will continue to apply, including the requirement that local government agencies continue to enroll and report retired annuitants to CalPERS, the limits on hourly compensation rates and the prohibitions on other forms of compensation in addition to the hourly pay rate, including any benefit, incentive, or compensation in lieu of benefits.

Any agency employing a retired annuitant pursuant to the waivers must notify the director of the California Department of Human Resources. Notification may be sent via email to wildfirerecovery2017@calhr.ca.gov.

In its letter, CalPERS said it will continue to monitor work hours for retired annuitants covered by the Governor’s executive orders and will communicate to confirm when a violation of the work order limitation is found and if it is accepted under the exception in the executive orders. Anyone with questions about the waivers may contact CalPERS’ Customer Contact Center at (888) 225-7377.

For more information about the impact of the Governor’s executive orders or about pensions in general, please contact 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

Michele Ellson

Paralegal

©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.

Opioid Testing Now Required for Employees in Safety-Sensitive Transportation Positions

December 2017
Number 86

Effective January 1, 2018, the federal Department of Transportation (DOT) will require safety-sensitive transportation employees, such as county, city, and school district bus drivers, to be tested for prescription opioids in an effort to tackle opioid abuse. The DOT’s final rule, which was published on November 13, 2017, amends the Code of Federal Regulations.

Under the new rule, the DOT will require safety-sensitive transportation employees to be tested for the following four “semi-synthetic opioids”: hydrocodone, oxycodone, hydromorphone, and oxymorphone. These opioids are commonly known as OxyContin, Percodan, Percocet, Vicodin, Lortab, Norco, Dilaudid and Exalgo. The employees will continue to be tested for other drugs, including marijuana, cocaine, and methamphetamine.

Six federal agencies, including the Federal Motor Carrier Safety Administration (FMCSA) and Federal Transit Administration (FTA), define safety-sensitive positions. Under the FMSCA, safety-sensitive positions include operators of commercial motor vehicles. The FTA provides that employees in safety-sensitive positions include those who operate, control, and/or maintain a revenue service vehicle; operate a vehicle that requires a commercial driver’s license; and those who carry a firearm for security purposes.

Under current law, an employee in a safety-sensitive position can only use prescription pain medications if a medical practitioner familiar with the employee’s medical history and job duties has advised the employee that the medication will not “adversely affect” his or her ability to safely perform their job duties. However, not all employees ask their medical practitioners if their medications will impact their ability to work or ask their employers whether they can continue working while using these pain medications.

The DOT’s new rule will increase the regulation of employees’ use of prescription pain medications. If employees test positive for these medications, they will still have an opportunity to provide a “legitimate medical explanation” to medical review officers, the independent physicians responsible for receiving and reviewing results from a drug test. According to the DOT’s new rule, a “legally valid prescription” can constitute a legitimate medical explanation, but a medical review officer is still required to interview the employee and review his or her medical records before deciding whether his or her result from a drug test is negative. Even if the result is ultimately negative, the medical review officer may have a responsibility to raise fitness-for-duty considerations with an employer.

The DOT’s new rule provides employers another opportunity to inform employees in safety-sensitive positions about the effect prescription pain medications may have on their ability to safely perform their job duties. For more information about the DOT’s new rule or drug and alcohol testing 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

Ameet K. Nagra

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.

When is Paid Administrative Leave an Adverse Employment Action?

December 2017
Number 84

According to a recent court decision, “it depends.”

On November 15, 2017, a California appellate court held inWhitehall v. County of San Bernardino that paid administrative leave can constitute an adverse employment action in certain circumstances. Even though the plaintiff employee was placed on paid administrative leave during the pendency of an investigation into her alleged wrongdoing, the court found that under the particular facts presented, the leave was an adverse employment action.

Background

Mary Anna Whitehall was a social worker for San Bernardino County. Whitehall was involved in a dependency case in which she was directed to withhold evidence and to submit altered evidence to the court. Whitehall believed these actions could endanger children and, through her own legal counsel, filed a motion to inform the court of the suspected fraud.

Six days after the motion was filed, Whitehall was placed on paid administrative leave for a two-month period. According to the county, Whitehall was placed on leave to facilitate an investigation of her alleged violation of the county’s rules against disclosing confidential information to unauthorized individuals. The county concluded that Whitehall violated the policy and acted to terminate her, but Whitehall resigned in lieu of termination.

Whitehall then sued the county, alleging it retaliated against her for her whistleblower activities. The trial court ruled in Whitehall’s favor and the appellate court upheld the trial court’s ruling. The Court of Appeal held that placing Whitehall on administrative leave and terminating her employment were acts of retaliation by the county. While administrative leave is not always an adverse action, the court said that it is an adverse action when it “materially affects the terms, conditions, or privileges of employment.”

The court acknowledged that “[r]etaliation claims are inherently fact-specific, and the impact of an employer’s action in a particular case must be evaluated in context.” Citing a previous appellate decision, the court noted that a lateral transfer to a position with equal pay could be an adverse action if it was “reasonably likely to impair [an employee’s] job performance” or likelihood of success. The court said that Whitehall’s administrative leave was an adverse action because she was placed on leave in the context of the county’s disciplinary investigation rather than as a reward or accommodation or at her request, and her leave coincided with the termination of the original social worker involved in the case. The court also noted that the county’s own evidence confirmed its intention to terminate Whitehall for disclosing the county’s attempt to manipulate evidence to the juvenile court.

Takeaways

Paid administrative leave is an important tool that allows an employer to temporarily remove an employee from the workplace in certain situations. Paid administrative leave should not be used as a punitive measure and, if used properly, will not constitute an adverse employment action. Employers must thoroughly evaluate the reasons for the administrative leave and assess the decision on a case-by-case basis.

This is especially important when paid leave is being considered for an employee who may have engaged in a protected activity (e.g., whistleblowing, union activism, filing of a grievance or claim) from which a retaliation claim could be alleged. Some questions employers should consider before using administrative leave in these cases include:

  • What articulable problems are likely to arise if the employee is not removed from the workplace?
  • Are there other ways to address the situation without placing the employee on leave?
  • Is placement on administrative leave a routine course of conduct in this situation?
  • What steps can the employer take to minimize the time spent on administrative leave?
  • Can the administrative leave be construed as a response to any protected activities conducted by the employee?
  • What benefits and/or opportunities will the employee lose out on while on leave, and can the employer mitigate the lost benefits or opportunities?

For more information on the impact of the Whitehall case or on the use of administrative leave 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:

Darren C. Kameya

Partner

Mayrn J. Oyoung

Associate

©2017 Lozano Smith

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

Asking Job Applicants about Criminal Conviction History: What You Need to Know about Assembly Bill 1008

December 2017
Number 80

Effective January 1, 2018, Assembly Bill (AB) 1008 amends the Fair Employment and Housing Act (FEHA) to restrict an employer’s ability to make hiring decisions based on a job applicant’s criminal conviction history.

Background

AB 1008 prohibits an employer from asking about criminal conviction history until the applicant has received a conditional offer of employment. After a conditional offer of employment has been made, an employer may conduct a
criminal conviction history background check. If the background check reveals that the applicant has one or more criminal convictions, then the employer must make an individualized assessment of whether the applicant’s criminal convictions have a direct and adverse relationship with the specific duties of the job the applicant is applying for.

If an employer wishes to rescind the conditional offer based solely or in part on the applicant’s criminal conviction history, the employer must inform the applicant of its preliminary decision in writing and allow the applicant an opportunity to respond. An employer must consider the applicant’s response when making its final hiring decision. If an employer ultimately decides to rescind the conditional offer, the employer must inform the applicant of its decision in writing and inform the applicant of the right to appeal its decision and the process for doing so.

While there are limitations on the reach of AB 1008, it creates significant liability implications for employers covered by the bill as it allows applicants denied employment to sue under the FEHA and also, to recover the broad range of damages available under the FEHA, including compensatory damages, attorney’s fees, and costs.

Below is a brief FAQ that explains how the new law will be applied to public agencies.

Does AB 1008 Apply to K-12 School Districts, Charter Schools and Community College Districts?

No, it does not. Newly created Government Code section 12952 contains two important exceptions. Specifically, the new law does not apply to:

  • “[A] position for which a state or local agency is otherwise required by law to conduct a conviction history background check” (Gov. Code, § 12952 (d)(1)); or
  • “[A] position where an employer or agent thereof is required by any state, federal or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history.” (Gov. Code, § 12952 (d)(4)).

The Education Code provides that applicants for all positions at a K-12 school district, charter school or community college district must undergo a criminal conviction history background check. The Education Code also restricts school employment based on criminal history. The applicable statutes support a conclusion that the new requirements imposed on employers by AB 1008 do not apply to K-12 school districts, charter schools or community college districts.

Does AB 1008 Apply to Local Government Agencies Such as Cities and Special Districts?

Yes, unless an exception covers the particular position the applicant is seeking. AB 1008 will generally apply to other local government agencies except in those cases where the agency is required to conduct a criminal conviction history background check or to restrict employment based on criminal history. For example, public safety and some health profession positions, which require criminal conviction history background checks, will be exempt from AB 1008. Local government employers should carefully assess which positions AB 1008 applies to and tailor their application materials for the individual requirements of each position.

Takeaways

Employers are not legally required to ask for criminal conviction history information on application materials. Rather, they are only legally required, in some circumstances, to conduct a criminal conviction history background check and/or to restrict employment prior to hiring an applicant. Employers that are covered by AB 1008 should remove questions regarding criminal conviction history from their applications, while those that are not may voluntarily choose to remove questions regarding criminal conviction history from their application materials.

Employers may be concerned that screening applicants for criminal convictions, even minor crimes and crimes from many years ago, may result in a discriminatory impact on minority groups such as African-American and Latino men. Therefore, employers not covered by AB 1008 that ask for criminal conviction history information on application materials may wish to make individualized assessments of an applicant’s prior convictions in order to ensure that the questions do not disproportionately screen out minority applicants.

For more information on AB 1008 or on job applicant screening 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:

Thomas E. Gauthier

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.