Meet-and-Confer Requirement Does Not Apply to Pension Reform Measure Placed on Ballot through Voter Initiative Process

April 2017
Number 20

In Boling v. Public Employment Relations Board (Apr. 11, 2017, D069626) ___ Cal.App.4th ___ (Boling), the Fourth District Court of Appeal invalidated a decision by the Public Employment Relations Board (PERB) holding that a city council violated the Meyers-Milias-Brown Act (MMBA) by placing a voter initiative to amend the city’s charter on the ballot without first meeting and conferring with the unions representing affected city employees. In doing so, the court rejected PERB’s reasoning that the mayor’s public support of the initiative effectively transformed it from a voter initiative to a city council-sponsored ballot proposal subject to meet-and-confer requirements.

This case addresses a longstanding issue. In a 1984 case, People ex rel. Seal Beach Police Officers Assn. v City of Seal Beach, the California Supreme Court concluded that a charter amendment proposed by a governing body is subject to the MMBA’s requirements, but cautioned that the case did “not involve the question whether the meet-and-confer requirement was intended to apply to charter amendments proposed by initiative.” Three decades after Seal Beach, a California appellate court has addressed that question for the first time.

The Boling case traces back to a City of San Diego decision on an issue that rarely evades controversy: public employee pension plans. In 2010, the city’s mayor and a city councilmember separately announced plans to replace the city’s existing defined benefit pension plans with 401(k)-style defined contribution plans for new hires. Ultimately, supporters of the mayor’s proposal and of the city councilmember’s competing proposal joined forces to produce an initiative to adopt a charter amendment mandating changes to pension plans for new hires.

The California Constitution provides two options for proposing an amendment to a city charter: an initiative qualified for the ballot through signed voter petitions, or a ballot measure sponsored by the governing body of the city. Rather than pursuing a ballot measure sponsored by the San Diego City Council (City Council), which the mayor believed the City Council would not place on the ballot “under any circumstances,” he launched a citizens’ initiative for his pension reform proposal. The parties to the case never disputed the fact that the mayor and his staff assisted in drafting the proposal and in campaigning for the citizens’ initiative.

In the summer of 2011, proponents of the proposal circulated a voter petition to place the initiative on the ballot. Meanwhile, a municipal employees’ union wrote to the mayor and asserted that the MMBA required the city to meet and confer over the initiative before it could be placed on the ballot. The city disagreed and refused to do so. In November 2011, the county’s registrar of voters reviewed and certified the petition. Subsequently, the City Council passed a resolution of its intention to put the measure on the ballot.

In January 2012, the union filed an unfair practice charge. Other unions followed suit. Later that month, the City Council enacted an ordinance placing the initiative on the June 2012 ballot. Shortly thereafter, PERB issued a complaint against the city and ordered an expedited administrative hearing. PERB also filed a superior court action seeking a preliminary injunction to bar the city from putting the initiative on the ballot. The trial court denied PERB’s request for an injunction and the voters overwhelmingly approved the initiative in June 2012.

However, the proceedings before PERB continued and the case went to a hearing in July 2012. At the conclusion of the PERB hearing, the administrative law judge (ALJ) issued a proposed decision determining that the mayor, acting under the color of his elected office and with support of councilmembers and the city attorney, violated the MMBA by denying the unions the opportunity to meet and confer over the mayor’s decision to launch and pursue the initiative. The ALJ further determined that since the mayor was an agent of the city, and because the city ratified the mayor’s policy decision, the obligation to meet and confer extended to the city. PERB agreed and issued a decision consistent with the ALJ’s proposed decision.

The city and the initiative’s proponents filed separate petitions for writs of extraordinary relief with the Fourth District Court of Appeal challenging PERB’s decision, which the Court of Appeal consolidated for purposes of its decision.

The Court of Appeal disagreed with PERB’s conclusions and determined that the MMBA’s meet-and-confer requirement does not apply when a proposed charter amendment is placed on the ballot by citizen proponents through the initiative process. Instead, only a governing body-sponsored proposal willtrigger the meet-and-confer requirement.

Central to the court’s analysis was the principle that procedural requirements that govern city council action generally do not apply to citizen-sponsored initiatives. Unlike a charter amendment proposed by a city council, a voter-initiated charter amendment proposal must be placed on the ballot; the city council has no discretion to decide otherwise. (Elec. Code, § 9255.) In contrast, a city council’s vote to adopt a ballot proposal for submission to its voters is discretionary and is thus subject to certain procedural constraints, including the requirement to negotiate. Moreover, the court reasoned, the MMBA’s meet-and-confer provisions expressly refer to “governing body” proposals, which a voter initiative is not.

The court further determined that PERB erred when it applied legal theories regarding principal-agent relationships to transform the initiative from a citizen-sponsored initiative into a governing body-sponsored ballot proposal, even given the mayor’s role in developing and supporting the initiative. This was in part because under the express language of the city’s charter, the mayor had no authority to place a City Council-sponsored ballot proposal on the ballot without City Council approval, and there were no indicators that he obtained such approval. The court also rejected PERB’s arguments under the theories of apparent authority, respondeat superior, and ratification as legally erroneous.

This case resolves a major question regarding the balance of power between voter-driven initiatives and union collective bargaining rights, with the court deciding the issue in favor of the electoral process.

For more information on the Boling decision or a local government agency’s collective bargaining duties, please contact the authors of this Client News Brief or an attorney at one of ournine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Steven A. Nunes

Associate

©2017 Lozano Smith

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

Federal Court Holds Discrimination on the Basis of Sexual Orientation is Prohibited under Title VII

April 2017
Number 18

In Hively v. Ivy Tech Community College of Indiana (7th Cir., April 14, 2017, No. 15-1720) ___ F.3d ___ < http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit =Display&Path=Y2017/
D04-04/C:15-1720:J:Wood:aut:T:fnOp:N:1942256:S:0
>, a federal appeals court evaluated whether federal antidiscrimination laws protect an individual against discrimination on the basis of sexual orientation under Title VII (42 U.S.C. § 2000e-2(a)). In a landmark decision, the court held that under Title VII, such discrimination is unlawful.

Kimberly Hively was an openly lesbian adjunct professor at Ivy Tech Community College (Ivy Tech). After unsuccessfully applying for at least six full-time positions between 2009 and 2014, and after her part-time contract was not renewed in July 2014, Hively initiated legal action against Ivy Tech alleging that she was discriminated against based on her sexual orientation in violation of Title VII. Ivy Tech filed a motion to dismiss for failure to state a claim, arguing that sexual orientation is not a protected class under Title VII. The district court agreed with Ivy Tech and dismissed the complaint, and Hively appealed.

On appeal, the circuit court was not asked to determine if Ivy Tech had actually discriminated against Hively in its decision not to hire her as a full-time professor or in its failure to renew her part-time contract. Instead, the court was tasked with addressing the scope of sex discrimination under Title VII. The court held there is no difference between a claim based on sexual orientation and those cases finding sex discrimination due to gender nonconformity, such as women not getting jobs typically held by men. The court said that “a policy that discriminates on the basis of sexual orientation does not affect every woman, or every man, but it is based on assumptions about the proper behavior for someone of a given sex.”

The court also evaluated Hively’s claim under the theory of discrimination by association, which prohibits discriminating against an individual based on the characteristics of someone with whom they associate. These characteristics include sex, race, color, national origin and religion. In association discrimination, an individual would not be suffering the adverse action had the trait in question been different for one person in the relationship (male instead of female, for example). The court analyzed this issue by using the history of interracial marriage cases to show that discrimination based on those with whom one associates is not limited to race, but is also prohibited on the basis of sex. “The logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that endeavored to find and observe that line,” the court said.

While this is a groundbreaking decision under federal law, California’s Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) already explicitly prohibits employment discrimination on the basis of sexual orientation in this state. Nevertheless, this case is important because it reflects a possible shift in the federal courts’ treatment and view of employment discrimination based on sex by expanding the scope of prohibited discrimination.

It remains to be seen whether this case will be taken up to the United States Supreme Court and, if so, whether review will be granted. Lozano Smith will be closely tracking this decision for any subsequent action or associated federal legislation.

For more information on the Hively decision or anti-discrimination law in general, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Gabriela D. Flowers

Senior Counsel

Janae D. Lopes

Associate

©2017 Lozano Smith

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

IDEA Procedural Requirements Warrant a Second Look After Recent Ninth Circuit Decision

April 2017
Number 17

The Ninth Circuit Court of Appeals recently issued a decision inM.C. v. Antelope Valley Union High Sch. Dist. (9th Cir., Mar. 27, 2017, No. 14-56344) ___ F.3d ___ [2017 U.S.App. LEXIS 5347] that expanded procedural requirements in special education cases and opened the door for parents to add issues during a special education due process hearing. This decision appears to shift the balance in favor of parents’ attorneys throughout California and other Ninth Circuit states.

In Antelope Valley, the student suffered from a genetic disorder resulting in blindness and “a host of other deficits.” His parent filed for a due process hearing, taking issue with the school district’s Individualized Educational Program (IEP) documentation of “teacher of visually impaired” (TVI) services offered, the IEP’s omission of the types of assistive technology (AT) devices offered, and the lack of a 10-day response to the parent’s due process complaint, among other things. The Individuals with Disabilities Education Act (IDEA), the federal law governing special education, guarantees students with disabilities a free, appropriate public education (FAPE) and requires procedural and substantive compliance when crafting an IEP for a special education student.

Although the school district prevailed in the due process hearing and at the district court level, the Ninth Circuit overturned those decisions. In ultimately determining that the student was the prevailing party entitled to an award of attorney’s fees with regard to the most recent appeal, the Ninth Circuit came to a number of additional conclusions primed to impact those who serve special education students, while also remanding the case back to the district court for additional proceedings. The issues of note are summarized below.

Adequacy of Due Process Hearing Decision

First, the Ninth Circuit examined its standard of review of special education cases. The court decided that the duration of a due process hearing, the administrative law judge’s (ALJ) active involvement in a hearing and the length of an ALJ’s opinion issued did not necessarily determine that a “thorough and careful” fact finding had occurred. Even though the ALJ in the parties’ three-day due process hearing had questioned witnesses and wrote a detailed 21-page opinion, the Ninth Circuit found that “no thorough and careful” fact finding had occurred because the ALJ had disregarded evidence and failed to address all issues. As a result, the Ninth Circuit reviewed the entire case anew, based on the evidence in the record from the underlying due process matter.

Typographical Errors in IEP Documents and the IEP as a Contract

Second, the court concluded that a typographical error constituted a denial of FAPE, even though the error had resulted in no substantive loss of services. After the parent consented to the student’s IEP, the school district realized that it had inadvertently written in the IEP 240 minutes of TVI services per month instead of the agreed-upon frequency of per week. The school district provided at least 240 minutes of TVI services per week. The school district corrected the IEP a month later, but the parent first learned of the correction during the due process hearing. The Ninth Circuit determined that although no substantive harm may have occurred with the student receiving additional minutes of TVI services, the parent nonetheless suffered procedural harm because the mistakes necessitated the parent incurring legal fees to determine the actual level of services provided. This constituted a form of prejudice denying educational benefit.

In reaching this conclusion, the Ninth Circuit also ruled that “an IEP is a contract,” and that making a unilateral amendment is legally impermissible. When the school district in this case learned that the IEP did not reflect
the IEP team’s agreement, it was required to notify the parent and seek consent for amendment. “Absent such consent, the District was bound by the IEP as written unless it sought to re-open the IEP process and proposed a different IEP,” the court said. The “unilateral amendment” to the IEP was deemed a “per se procedural violation of the IDEA because it vitiate[d] the parents’ right to participate at every step of the IEP drafting process.”

Moreover, the court ruled that a unilateral IEP correction may serve as grounds for sanctions. Whether the school district had engaged in “mere bungling” or had deliberately attempted to mislead the parent by inaccurately recording the offer of FAPE must now be determined by the district court on remand. If it is the latter, the district court is ordered to impose sanctions on the school district sufficiently severe to deter any future such misconduct.

Monitoring and Enforcement of IEP as Part of Parental Participation

The court also concluded that the IDEA provides parents a right to participate in every step of the IEP drafting process, which includes IEP monitoring and enforcement. Although the parent had participated in drafting the student’s IEP, the typographical error obfuscated her knowledge of the actual offer made, and without knowing the actual offer, she could not adequately use the IEP to monitor and enforce the services provided. This constituted another procedural violation of the IDEA. Likewise, even though the IEP team discussed the types of AT devices offered, the school district’s failure to provide that discussion in writing “rendered the IEP useless as a blueprint for enforcement.” Thus, the failure to identify the AT devices in the IEP was an additional violation.

Shifting of Burden of Proof at Due Process Hearing

The court additionally held that failing to make a clear offer of FAPE can impact a party’s burden of proof in a due process hearing. The party alleging an IDEA violation typically bears the burden of proving that the services received did not amount to FAPE. Here, the court held that when procedural violations prevent parents from knowing the kind or duration of IEP services offered, it is impossible for them to assess the substantive reasonableness of those services, so the burden of proof must shift to the school district, even if it has not initiated the due process hearing.

Penalties for Failure to Provide Responses to Due Process Complaints

In addition, Antelope Valley has created significant penalties for school districts that fail to provide a timely 10-day response to a parent’s due process complaint. The court held that in such circumstances an ALJ must not go forward with the hearing but instead order the school district to provide a response, and “shift the cost of the delay” to the school district, regardless of the ultimate prevailing party.Antelope Valley makes it clear that a school district has an obligation to commit to a position within the first 10 days after a complaint is filed. In order for the Office of Administrative Hearings (OAH) to enforce this ruling, school districts must now provide OAH with a copy of the district’s response to the complaint.

Issues to be Tried at Due Process Hearing

Finally, after this decision, a party’s failure to object to an ALJ’s restatement of the issues will not be deemed a waiver of any issue “arguably encompassed in a due process complaint.” In this case, the school district argued that the parent had waived the issue of adequate TVI services because although alleged in the due process complaint, the ALJ had not included the issue in the subsequent framing of issues for hearing. The district court agreed, but the Ninth Circuit extended the concept that “issues are treated as if they were raised in the complaint if they are tried by consent” to the IDEA context, so as to find no waiver. In doing so, the Ninth Circuit admitted that “[w]hile we haven’t previously recognized this practice in IDEA cases, it’s often been applied in a variety of other agency adjudications … We see no reason IDEA cases should be treated differently.” Effectively, this means that any issue addressed at hearing without objection could be seen as “tried by consent,” regardless of whether it is memorialized in any statement of issues.

Antelope Valley greatly expands and shifts school district obligations. It reminds those serving special education students of the need to accurately and clearly record in an IEP the offer of FAPE made, to communicate with the parents regarding monitoring and enforcement of the IEP, and to timely respond to due process hearing requests, among other things. If it is not challenged in an expanded Ninth Circuit review or an appeal to the United States Supreme Court, this case will likely alter special education legal processes in California and the rest of the Ninth Circuit for the foreseeable future.

For more information on the Antelope Valley decision, IEP drafting, responses to due process hearing requests or special education law in general, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Roxana R. Khan

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.

California Public Records Act Applies to Private Accounts

March 2017
Number 11

Emails, text messages and other written communications sent to or from a public official’s private account may be subject to disclosure under the California Public Records Act (CPRA), the California Supreme Court ruled unanimously in a highly anticipated decision published on March 2, 2017. (City of San Jose et al. v. Superior Court (March 2, 2017, No. S218066) ___ Cal.5th ___ < http://www.courts.ca.gov/opinions/documents/S218066.PDF>.)

The court held that the public has a right under the CPRA to access texts, emails and other records discussing public business regardless of whether the records were created, received by or stored in a private account. “If public officials could evade the law simply by clicking into a different email account, or communicating through a personal device,” the court wrote, “sensitive information could routinely evade public scrutiny.”

This case had its origin in a 2009 lawsuit against the City of San Jose, its redevelopment agency and several city officials. The plaintiff in that case, a community activist, claimed that the city’s failure to provide certain records regarding a downtown redevelopment project and other city business violated the CPRA. The city had provided certain records, but declined to provide voicemails, emails and text messages that were sent and received by city officials on personal devices using personal accounts. In 2013, a trial court judge ruled against the city, finding that communications sent to or received from city officials regarding public business are public records regardless of what device or account was used to create and deliver them. ( See 2013 Client News Brief No. 17.)

The city appealed the decision, and in 2014, the Sixth District Court of Appeal reversed the decision. The appellate court ruled that the CPRA’s definition of public records as communications “prepared, owned, used, or retained” by a public agency did not include messages sent or received on individual city officials’ and employees’ private devices and accounts. ( See 2014 Client News Brief No. 21.) Distinguishing between a public agency as the holder of public documents and its individual elected officials and employees, the appellate court held that, as a practical matter, the city could not use or retain a message sent from an individual council member’s phone that was not linked to a city server or account. While acknowledging the potential for abuses, the court determined that it is up to the Legislature to decide whether to require public agencies to police officials’ private devices and accounts.

The community activist then appealed to the California Supreme Court, where the case languished for nearly three years before the high court overturned the appellate decision.

In its ruling, the Supreme Court disagreed with the appellate court because records “prepared” on private devices could still qualify as public records. The high court observed that the agency itself is not a person who can create, send and save communications; rather, any such communication would come from or be received by an individual. As such, the city’s elected officials and employees were in essence acting as the city, and to the extent that their emails pertained to city business, they were public records.

The court did narrow the type of records that are subject to disclosure, holding that records containing conversations that are primarily personal in nature are not subject to disclosure under the CPRA. The court also acknowledged that determining whether particular communications constitute public records is a heavily fact-specific process, and decisions must be made on a case-by-case basis. This will create challenges for public agencies as they attempt to follow the reasoning of this decision.

The court also addressed the practical challenges around retrieving records from personal accounts, including ways to limit the potential for invading personal privacy. For guidance, the court offered examples of methods for retrieving records from personal accounts including procedures adopted by federal courts applying the Freedom of Information Act and followed by the Washington Supreme Court under that state’s records law that allow individuals to search their own devices for responsive records when a request is received and to submit an affidavit regarding potentially responsive documents that are withheld. The court also discussed adoption of policies that would prohibit the use of personal accounts for public business, unless messages are copied and forwarded to an official government account. While these methods were offered as examples, the court did not endorse any specific approach.

The opinion did not address a host of other practical issues, such as how public agencies should proceed when employees refuse or fail to provide access to records contained in their private accounts.

The decision means that public agencies must now carefully consider how to retrieve business-related public records that may be located in employees’ and officials’ personal accounts. One approach is to create new policies that address the decision. However, public agencies should consider the implications such policies may have on issues such as collective bargaining, records retention, acceptable use policies and other policies concerning technology.

Lozano Smith attorneys can provide a wide array of CPRA services, including preparing policies to address this opinion, responding to CPRA requests, analyzing documents and assisting in related litigation. Lozano Smith has a model email retention policy, and is in the process of reviewing and updating this and other model policies to reflect the impact of this decision. In order to receive our existing retention policy, which addresses individual employees’ obligations in relation to electronic communications, or to request our upcoming board policy to address the court’s decision, you may also email Harold Freiman at hfreiman@lozanosmith.com or Manuel Martinez at mmartinez@lozanosmith.com. We will also be producing webinars about the City of San Jose case and electronic records under the CPRA.

For more information on the City of San Jose opinion or about the California Public Records Act application to personal technology in general, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

©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.

Proposition 64: Legal and Practical Considerations

December 2016
Number 87

On November 8, 2016, California voters passed the “Control, Regulation and Tax Adult Use of Marijuana Act” (“Prop. 64”), legalizing recreational marijuana use for those 21 years old and older. The new law, effective immediately, among many other provisions does the following related to marijuana:

  • Establishes a regulatory scheme for cultivation, distribution, sale, testing and use;
  • Allows for personal cultivation of up to six plants inside a private home;
  • Prohibits public use;
  • Prohibits all use in vehicles and maintains existing laws about driving while impaired;
  • Prohibits use within 1,000 feet of a school, day care center or youth center (unless it is in a private residence within that radius and the smoke cannot be detected at the school or center);
  • Allows cities and counties significant local control over regulation related to sale, manufacturing, production, cultivation and related businesses, including the authority to ban certain activities within the agency’s jurisdiction;
  • Allows public and private employers to prohibit use, possession, purchasing, transporting, obtaining or giving away marijuana on their premises and to establish and enforce drug- and alcohol-free workplace policies;
  • Imposes penalties for public use, use in prohibited school or tobacco-free zones or for having an open container; and
  • Provides for drug prevention education and community service for offenders younger than 18 years.

The Act also establishes the Bureau of Marijuana Control, a division within the Department of Consumer Affairs, which will oversee the licensing, regulation and taxation of all marijuana businesses beginning January 1, 2018. Thus, provisions related to licensing and taxation are not effective until January 1, 2018. However, the provisions allowing personal use and cultivation of marijuana inside a private residence are effective immediately.

The impact of federal law on enforcement of Prop. 64 is uncertain. Marijuana continues to be a Class 1 narcotic under the federal Controlled Substances Act, but the U.S. Department of Justice indicated in a 2013 memorandum that it would defer enforcement for marijuana violations to states that had established “strong and effective regulatory and enforcement systems.” It is uncertain whether the Department of Justice’s current practice will remain in effect or be altered when a new presidential administration takes office in January.

The passage of Prop. 64 raises many issues for public agencies responsible for school and child safety, public health and safety, law enforcement, and for maintaining safe and drug-free workplaces. These issues include, but are not limited to:

  • Employees possessing, using or sharing marijuana in or near the workplace;
  • Establishing a defensible drug-free workplace policy, including a drug-testing protocol; and
  • Dealing with employees and/or students who are suspected of being under the influence.

Lozano Smith is currently working with our municipal, school district, community college and special district clients to address these and other issues related to the enactment of Prop. 64. For more information on how the new law impacts your agency, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit ourwebsite, follow us on Facebook or Twitter or download our Client News Brief App.

 
Written by:

Lee Burdick

Senior Counsel

©2016 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.

Labor and Employment Legislative Update, Part Two

December 2016
Number 86

Governor Jerry Brown considered several bills this legislative season that will affect the rights of public employees and their employers. In this second part of a two-part series, Lozano Smith summarizes seven new laws with the greatest potential impact on public employers in 2017.

Assembly Bill (AB) 2248: Expedited Authorizations for Out-of-State Teachers with Bilingual Authorization

AB 2248 seeks to address California’s teacher shortage and expedite the ability of schools to place qualified bilingual teachers (i.e., teachers authorized to deliver content instruction in a pupil’s primary language) in California classrooms. Under existing law, teachers who hold an out-of-state credential authorizing instruction of English learners are allowed to earn an English learner authorization to teach in California. However, current law does not extend that authorization to out-of-state bilingual teachers. Instead, out-of-state bilingual teachers must take professional tests and coursework to obtain a bilingual authorization in California regardless of their qualifications. AB 2248 amends Education Code section 44253.4 so that a teacher who holds an out-of-state bilingual authorization can earn an equivalent bilingual learner authorization in California by simply submitting an application and a fee.

Senate Bill (SB) 1001: New Prohibitions on Employer Review of Employment Authorization Documents

On September 28, 2016, Governor Jerry Brown signed SB 1001 into law. SB 1001 adds section 1019.1 to the Labor Code, which will prohibit employers from engaging in certain practices when reviewing employment authorization documents in order to verify, as required by federal law, whether an individual is authorized to work in the United States. Pursuant to SB 1001, an employer is prohibited from: (1) requesting more or different work authorization documents than are required under federal law; (2) refusing to honor documents that on their face reasonably appear to be genuine; (3) refusing to honor documents or work authorization based upon the specific status that accompanies the authorization to work; and (4) attempting to re-investigate or re-verify an incumbent employee’s authorization to work using an unfair immigration-related practice. The new code section also provides for sanctions against employers who violate its provisions, including monetary penalties imposed by the state Labor Commissioner of up to $10,000 per violation. In addition, job applicants and employees can bring a complaint with the Division of Labor Standards Enforcement to address violations of this new law. Employers should be mindful of these new prohibitions when reviewing employment authorization records to ensure compliance with the law.

SB 1180: Additional Leave Rights for Military Veterans

On September 28, 2016, Governor Brown signed SB 1180 into law. The bill, which adds sections 44978.2 and 45191.5 to the Education Code, is intended to provide disabled veterans who are new school employees with additional leave benefits during their first year of employment. Pursuant to SB 1180, certificated and classified employees hired on or after January 1, 2017 who are military veterans with a military service-connected disability rated at 30 percent or more by the U.S. Department of Veterans Affairs are entitled to a leave of absence for illness or injury with pay of up to 10 days (certificated) or 12 days (classified) during their first year of employment for the purpose of undergoing medical treatment for their military service-connected disability. This new leave is in addition to other leave already provided by existing law.

AB 1676 and SB 1063: Amendments to California’s Fair Pay Act

Existing law prohibits an employer from paying any employee “at wage rates less than the rates paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.” Willfully doing so is a misdemeanor punishable by a fine of up to $10,000 and/or six months imprisonment. (Lab. Code, §§ 1197.5, 1199.5.) The law contains specific exceptions, including where the pay differential is based on (1) a seniority system, (2) a merit system, (3) a system that measures earnings by quantity or quality of production or (4) a bona fide factor other than sex, such as education, training, or experience. These factors must be reasonably applied and account for the entire wage differential. (Lab. Code, § 1197.5.)

AB 1676 amends Labor Code section 1197.5 to provide that an employee’s “prior salary,” by itself, is not sufficient to justify any disparity in compensation. That is, an employer who relies solely on the employee’s prior salary to explain a pay differential will not qualify for the “bona fide” factor exception.

SB 1063 amends Labor Code sections 1197.5 and 1199.5 so that in addition to pay differentials based on sex, employers are prohibited from paying employees “at wage rates less than the rates paid to employees of another race or ethnicity.” Willfully paying employees less based on race and ethnicity is a misdemeanor. Local agencies and school districts are not entitled to reimbursement from the state for any costs they may incur as a result of SB 1063.

AB 1843: Juvenile Record Off Limits in Employment Decisions

With some exceptions, under existing law set forth in Labor Code section 432.7, when making employment decisions, an employer cannot inquire about or consider information concerning an arrest or detention that did not result in a conviction, a referral to or participation in any pretrial or post-trial diversion program or a conviction that has been judicially dismissed or ordered sealed. AB 1843 amends Labor Code section 432.7 to prohibit employers from asking a job applicant to disclose, or from utilizing as a factor in determining any condition of employment, information concerning or related to an arrest, detention, processing, diversion, supervision, adjudication or court disposition that occurred while the person was subject to the process and jurisdiction of juvenile court law. In addition, the definition of “conviction” in Labor Code section 432.7 will expressly exclude any adjudication by a juvenile court or any other court order or action taken with respect to a person who is under the process and jurisdiction of the juvenile court law.

AB 2028: Reinstatement of PERS Benefits

AB 2028 adds section 20969.3 to the Government Code and applies it to all active Public Employees’ Retirement System (PERS) school and local agency members. Pursuant to AB 2028, a member who is involuntarily terminated on or after January 1, 2017 and is later reinstated to that employment pursuant to an administrative, arbitral or judicial proceeding – including proceedings before school boards – is entitled to reinstatement with all retirement benefits that the member otherwise would have accrued. In addition, PERS contributions must be made, and service credit given, for any period for which salary is awarded in the proceeding. The reinstatement of benefits is effective as of the date from which salary is awarded. Employers are required to notify PERS of the final decision ordering the member’s reinstatement within five days of the date the decision becomes final.

For more information on these new laws, please contact the authors of this Client News Brief or an attorney at one of our 10 offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Marisa Lincoln

Partner

Sarah Starcevich Miller

Senior Counsel

Nicholas Smith

Associate

©2016 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.

Labor and Employment Legislative Update, Part One

December 2016
Number 85

Governor Jerry Brown considered several bills this legislative season that impact the rights of public employees and their employers. In this first part of a two-part series, Lozano Smith examines four new laws with the greatest potential impact on public employers in 2017, plus two major bills the Governor vetoed.

Assembly Bill (AB) 1918: County Offices of Education May Issue Temporary Certificates to Teachers Working in Nonpublic Schools while their Credential Applications are processed

AB 1918, signed into law on August 17, 2016, enables county offices of education to issue temporary certificates to certificated employees whose credentials are being processed by the California Commission on Teacher Credentialing (CCTC), including persons who have a certificate from another state and certificated employees of nonpublic schools. Prior to issuing a temporary certificate, a county office of education is required to obtain a certificate of clearance from the CCTC for the employee. The new law goes into effect on January 1, 2017.

Senate Bill (SB) 916: CCTC May Now Issue Single Subject Teaching Credentials in Dance and Theater

SB 916 authorizes the CCTC to issue two new single subject teaching credentials, in dance and theater. The bill, which the Governor signed on September 26, 2016, goes into effect on January 1, 2017. Existing law requires teachers to possess a single subject English credential in order to teach theater. Similarly, to teach dance, a teacher is required to possess a physical education teaching credential. In addition to the new credentials, the bill also permits current holders of physical education and English credentials, or persons who pursue such credentials before the establishment of a single subject teaching credential, to teach dance and theater, respectively. The Legislature made clear that these new provisions do not prohibit a school district from employing a teacher with a single subject teaching credential in another subject with an authorization to teach theater or dance.

Senate Bill (SB) 1413: Teacher Housing Act of 2016

The Teacher Housing Act of 2016 could make housing more affordable for school district employees throughout California. SB 1413, signed into law on September 27, 2016, will enable California school districts serving grades Pre-K through 12 to use federal tax credits and state and local funds to develop affordable housing for teachers and other school district employees. The Legislature anticipates SB 1413 will help address high teacher turnover rates that are driven, in part, by the increasing cost of housing in many California markets.

The stability of housing for school employees is critical to the overall success of California schools. Many believe that the current lack of affordable housing for educators negatively impacts teacher retention. The lack of affordable housing exacerbates the record low supply of new teachers in California, which disproportionately impacts schools serving low-income and minority students. According to the Legislature, both students and the community benefit from teachers living near their employing school district.

Under the new law, which goes into effect on January 1, 2017, districts may leverage federal low-income housing tax credits, along with state and local public and private funding, in order to establish affordable housing programs for district employees. The law also creates a new state policy, pursuant to the federal Internal Revenue Code, allowing district-owned land to be developed as affordable rental housing earmarked solely for district employees. In order to comply with SB 1413, a school district must offer a majority of the rents at levels that are affordable to low or moderate income levels. Affordable housing options on or near school sites will offer the added benefits of reducing employees’ commute time and time away from the home.

While SB 1413 does not address local zoning requirements for such housing, it is unlikely that local zoning laws could be overridden by the school district. SB 1413 signals an opportunity for school districts to seek out local housing developers interested in proposing options to develop affordable housing on District-owned property and shoulder the burden of any zoning variance required for such purpose.

Senate Bill (SB) 294: Military Service Retirement Credits for Public Employees

SB 294 requires school districts and other employers participating in the California Public Employees’ Retirement System (CalPERS) to inform military veteran employees of their right to receive CalPERS credit for periods of active service.

Under existing law, public employees participating in CalPERS are entitled to certain rights upon return to public employment following a leave of absence to perform active military duty. Such employees have the right to receive salary adjustments, retirement contributions and applicable employer-paid service credit in the retirement system to include the employee’s period of active duty. Veterans who performed active military duty prior to membership in CalPERS are also allowed to self-purchase additional military service credits. In order to receive service credits, eligible employees must properly file an application form with CalPERS.

Under SB 294, on or by March 31, 2017, school districts and other CalPERS employers must inform returning veterans of their rights to receive applicable service credits and, within 30 days of their return to state service, must provide veterans with the appropriate CalPERS application forms. Upon hire, CalPERS employers must also inform veterans of their right to purchase CalPERS credits for military service prior to employment and membership in CalPERS.

Currently, some veterans are unaware that they are eligible for this important CalPERS benefit, or do not know how to submit forms in order to apply for the benefit. With SB 294, the Legislature aims to simplify the benefits process and ensure military veterans and their survivors have a greater chance of receiving the retirement credits to they are entitled to.

Assembly Bill (AB) 2826: Governor Vetoes Law that would have Expanded Methods and Measures Available for Use in Teacher Evaluations

AB 2826, which was vetoed by Governor Jerry Brown on September 30, 2016, would have expanded methods and assessment tools available for use and consideration in the formal teacher evaluation process. The Education Code requires school districts to evaluate teachers according to standards relating to pupil progress toward certain academic standards, instructional techniques and strategies used and teacher adherence to curricular objectives.

AB 2826 would have added an Education Code section to specifically permit and encourage the use of certain student academic progress information and data in teacher assessment and evaluation. The bill also included specific measures for assessing instructional techniques and strategies and adherence to curricular objectives.

While some school districts already use student progress data in teacher evaluations, its use has been the subject of recent legal challenge. (See 2016 Client News Brief No. 80.) In his veto message, Governor Brown expressed his belief that the additional assessment factors would not “materially change current teacher evaluations in California.” Given the veto, it is likely that districts’ ability to use student assessment data in teacher evaluations will be decided by the courts rather than the Legislature.

Assembly Bill (AB) 2197: Unemployment Insurance for Classified Employees

AB 2197, which was vetoed by the Governor on September 30, 2016, would have made classified school employees eligible to receive unemployment benefits between school years, with or without a reasonable assurance of being employed the next academic year. Under the proposed law, classified employees would have been eligible to receive up to two weeks of unemployment benefits beginning July 1, 2017, increasing to eight weeks of benefits by July 1, 2020. In his veto message, the Governor declined to approve the bill due to conformity issues with federal unemployment insurance laws, potentially resulting in sanctions from the federal government and the loss of significant tax credits for California employers.

For more information on these new laws, please contact the authors of this Client News Brief or an attorney at one of our 10 offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Penelope Glover

Senior Counsel

Gabriela Flowers

Senior Counsel

Erin Hamor

Associate

 

©2016 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.