PERB Admonishes School District for Blanket Prohibitions on Distributing Union Literature

December 2018
Number 87

On October 22, 2018, the Public Employment Relations Board (PERB) upheld an administrative law judge (ALJ) decision finding that the Petaluma City Elementary School District/Joint Union High School District (“District”) interfered with employee and organizational rights by: (1) directing employees not to distribute literature “of a political or union nature” on District property, including during non-work time and in on-work areas; and (2) directing employees not to distribute any pamphlets “during the workday” without regard to breaks or other non-work time during the day.

Background

On September 5, 2014, the District administration emailed a memo to school administrators advising them of the “rules for staff handing out flyers.” A school site principal forwarded this memo to teachers at his school site. The memo said:

Teachers may hand out flyers after school when they finish their work obligations. They may not hand them out before school as they are to be in their classroom 30 minutes prior to school starting. They cannot hand out flyers of a political or union nature. They must be off school property when they hand out flyers, not in a driveway or walkway on school campus. The sidewalk in front of a school is public property and they may hand them out there.

On October 10, 2014, a different school site principal sent an email to at least one teacher, saying, in relevant part:

It is my understanding that handing out pamphlets can only happen outside of your work day. I know the long hours you all put in and that an official ‘work day’ is not defined. Since an official teacher duty begins at 7:55, we can safely call that the start of your work day. And at the end of the day, the final teacher duty ends around 2:45 so that can be considered the end of your work day. Please hand out pamphlets outside of your work day.

The Petaluma Federation of Teachers, Local 1881 filed an unfair labor practice charge alleging the September 5 and October 10 emails interfered with union members’ right to engage in protected activity – i.e., distribute flyers and pamphlets containing union information. An ALJ found that the union proved its allegations and held that both emails constituted interference with protected activity.

In its appeal to PERB, the District made two arguments. First, with regard to the September 5 email, the District challenged the union’s evidence of interference, claiming that the union failed to prove “actual harm” to the teacher. PERB rejected this argument. UnderCarlsbad Unified School District (1979) PERB Dec. No. 89 (Carlsbad), the appropriate inquiry “is an objective one which asks not whether any employee felt subjectively threatened or intimidated or was actually discouraged from engaging in protected activity, but whether, under the given circumstances, the employer’s conduct had discouraged, orreasonably would discourage, employees from engaging in present or future protected activity.”

PERB will apply a heightened level of review when an employer explicitly bans “union” activity. Specifically, the employer must show anoperational necessity for the ban, or that there wasno alternative available to the ban. (Long Beach Unified School District (1980) PERB Dec. No. 130.)

Second, with respect to the October 10 email, the District took exception with the ALJ’s finding of interference because the email prohibiting the distribution of pamphlets never mentioned anything about the union. PERB also rejected this argument, holding that an employer’s directive may be unlawful even without an explicit reference to union or protected activities. Rather, it is unlawful if a union member would reasonably construe the District’s directive to prohibit protected activity. Since the October 10 email came soon after the memo was distributed, it was reasonable for the teacher to construe the email to mean it prohibited the distribution of pamphlets containing union information.

PERB further stated that an employee’s right to “join, form and participate” in union activities protects “not only union-related speech, but broader categories of employment-related speech, including employees’ communications with one another about their wages, hours and working conditions.” Accordingly, an employer’s rule banning a general category of conduct, that includes both protected and unprotected activity, is presumptively unlawful because “employees should not have to decide at their own peril what information is not lawfully subject to such a prohibition.”

Takeaways

  • Where a District’s directive reasonably would discourage a union member from engaging in protected activity, no showing of actual harm is required to establish interference.
  • A general directive that prohibits both protected and unprotected activity presumptively violates the Educational Employment Relations Act because the onus cannot be on union members to interpret which prohibitions are lawful or unlawful.
  • Public employers should be careful when crafting directives that may unintentionally affect an employee’s ability to engage in protected activity.

For more information about PERB’s decision or to discuss protected activity and employee rights generally, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us Facebookor Twitteror download our Client News Brief App.

Written by:

Darren C. Kameya

Partner

Carolyn L. Gemma

Associate

©2017 Lozano Smith

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

Advertisements

#MeToo Movement Leads to Increased Harassment Prevention Training and Related Requirements for California Employers

December 2018
Number 86

Effective January 1, 2019, California employers, including public agencies, will be required to comply with new requirements aimed at preventing sexual harassment in the workplace as a result of the #MeToo movement that began in 2017. On September 30, 2018, Governor Jerry Brown approved Senate Bill (SB) 1300 and SB 1343, which both make significant changes to the California Fair Employment and Housing Act (FEHA).

Background

Under FEHA, it is unlawful to harass persons based on their sex or other protected characteristics in the workplace, and employers must take immediate and appropriate corrective action when such harassment occurs. An employer’s liability for sexual harassment under FEHA extends to the conduct of non-employees towards its employees, applicants, unpaid interns, volunteers, and certain contractors. In addition, employers with 50 or more employees are required to provide at least two hours of training and education regarding sexual harassment, abusive conduct, and harassment based on gender identity, gender expression, and sexual orientation, to all its supervisors every two years.

Summary of Changes to FEHA

SB 1300 and SB 1343 make the following changes to FEHA:

  • Supervisor Training. Now, employers with 5 or more employees, including temporary or seasonal employees, must provide two hours of specific training and education regarding sexual harassment, abusive conduct, and harassment based on gender identity, gender expression, and sexual orientation, to all its supervisors. The training must occur within six months of initial employment in a supervisory position and every two years
    thereafter.
  • Nonsupervisory Employee Training. Employers must also provide one hour of training to all nonsupervisory employees. Employers have until January 1, 2020 to provide the required training. The Department of Fair Employment and Housing (DFEH), which enforces the FEHA, is required to develop online training courses on the prevention of sexual harassment and post them on its website, as well as develop related resources. Again, the training must occur
    within six months of initial employment and every two years thereafter.
  • Bystander Training. Further, an employer may, but is not required to, provide “bystander intervention training” that includes information and practical guidance to help bystanders recognize potentially problematic behaviors and to motivate them to take action.
  • Release and Non-Disparagement Agreements. An employer cannot require an employee to release his or her claims under the FEHA or sign a document that limits the employee from disclosing information about unlawful acts in the workplace, including, but not limited to sexual harassment, as a condition for a raise, bonus, employment, or continued employment. However, this new part of the law does not apply to a settlement agreement resolving a claim an
    employee has already filed in court or before an administrative agency, or is being resolved or handled through alternative dispute resolution or through an employer’s internal complaint process. The settlement agreement must be voluntary, deliberate, and informed, and it must provide consideration of value to the employee. The employee must be given notice and an opportunity to retain an attorney.
  • Heightened Legal Standards. The California Legislature approved of three court decisions regarding harassment in the workplace that ruled as follows. First, an employee does not have to prove his or her productivity declined as a result of harassment, but rather, the harassment made it more difficult for an employee to do his or her job. Second, a discriminatory remark, even if it was not made by a decision maker or directly in the context of an employment decision, may still be relevant, circumstantial evidence of discrimination. Third, it is “rarely appropriate” to dispose of harassment cases at the summary judgment stage of litigation. The Legislature also rejected two court decisions to the extent they decided a single incident of harassing conduct could not establish the existence of a hostile working environment and that the legal standard for sexual harassment may vary by the type of workplace.
  • Conduct of Non-Employees. Employers are now liable for the unlawful harassment of its employees, applicants, unpaid interns, volunteers, and certain contractors by non-employees. An employer’s liability for such conduct of non-employees is no longer limited to “sexual” harassment but can include any basis of unlawful harassment such as race, ethnicity, disability, etc.

These changes to FEHA serve as a reminder that taking steps to prevent sexual harassment in the workplace is critical. These steps include, but are not limited to, implementing effective trainings and policies and promptly addressing any inappropriate conduct in the workplace. Employers should consult with an attorney before entering into any agreement with an employee that may waive their rights and claims under FEHA.

For more information about SB 1300, SB 1343, or best practices related to the prevention of and addressing sexual harassment in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

©2017 Lozano Smith

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

Legislature Further Limits the Ability to Consider Expunged, Dismissed, or Sealed Convictions in Hiring Decisions

December 2018
Number 84

Senate Bill (SB) 1412, which takes effect on January 1, 2019, builds on prior law limiting consideration of expunged, dismissed, or sealed convictions in hiring decisions. SB 1412 prevents employers from requiring job applicants to disclose certain criminal convictions that have been expunged, dismissed, sealed, or statutorily eradicated. SB 1412 also provides that employers may only consider particular expunged convictions that are enumerated in the law when making hiring decisions. Exceptions to this prohibition remain for employers-like public school districts and certain other public agencies-that are prohibited from hiring individuals with certain convictions even if the conviction has been dismissed, expunged, or sealed.

Background

In recent years, the Legislature has focused on limiting the types of convictions that may be considered by employers when making hiring decisions. For example, in 2016, AB 1843 was passed generally prohibiting employers from seeking or using information about an applicant’s juvenile convictions in hiring decisions. (See 2016 Client News Brief No. 86.)

Separate from the use or consideration of juvenile convictions in hiring, existing law prevents employers from requiring applicants to disclose convictions that have been expunged, dismissed, or sealed, subject to several exceptions. These exceptions include situations where: (1) the employer is required by law to obtain information regarding an applicant’s convictions; (2) the applicant is applying for a job that would require him to possess or use a firearm; (3) the law prohibits an individual convicted of a crime from holding the position, even if the conviction is expunged, sealed, or dismissed; or (4) the law prohibits the employer from hiring an applicant who has been convicted of a crime. Aside from the above exceptions, once a conditional offer of employment has been made to an applicant, an employer may consider an expunged, dismissed, or sealed conviction.

Since January 1, 2018, California’s Fair Employment and Housing Act also prohibits similar conduct, with specified exemptions. (See 2017 Client News Brief No. 80; 2016 Client News Brief No. 86.)

Under the above legal protections for job applicants, concerns were raised that employers have been broadly rejecting applicants with expunged convictions, regardless of the nature of these convictions or their relevance to the job or future job performance. With SB 1412, the Legislature narrows the aforementioned exceptions so employers may only consider expunged, dismissed, sealed, or statutorily eradicated convictions that are enumerated in the law. Specifically, this bill provides that employers may only consider such convictions if: (1) the employer is required by law to obtain information regarding the particular conviction of the applicant, regardless of whether the conviction has been expunged, sealed, dismissed, or statutorily eradicated; (2) the applicant would be required to possess or use a firearm in the course of his or her employment; (3) the law prohibits an individualwith that particular conviction from holding the position sought, regardless of whether the conviction has been expunged, sealed, dismissed, or statutorily eradicated; or (4) the employer is prohibited by law from hiring an applicantwho has that particular conviction, regardless of whether that conviction has been expunged, sealed, dismissed, or statutorily eradicated.

Takeaways

Employers should note that the Legislature has instituted additional protections for the consideration of expunged convictions in the applicant screening process. Under the SB 1412, employers can only ask an applicant about or consider expunged, sealed, or dismissed convictions to the extent permitted by law; they cannot simply withdraw an offer merely because an applicant has a conviction that was dismissed, expunged, or sealed. Keep in mind that public school employers are prohibited from hiring individuals convicted of certain crimes, even if such convictions have been dismissed, expunged, or sealed. The laws concerning the use of criminal convictions in hiring public school staff is highly technical and should be carefully reviewed before making a hiring decision based on a conviction, even if it has been dismissed, expunged, or sealed.

If you have any questions about SB 1412, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Gabriela D. Flowers

Partner

Benjamin Brown

Associate

©2017 Lozano Smith

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

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

November 2018
Number 80

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

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

Classified Employee Eligibility

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

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

2019-20 Program Timeline

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

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

Next Steps

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

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

Written by:

Sarah Levitan Kaatz

Partner

Jayme A. Duque

Associate

©2017 Lozano Smith

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

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.

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.