According to a recent court decision, "it depends."
On November 15, 2017, a California appellate court held in Whitehall 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 a...
Employers, including public agency employers, will be forbidden from asking job applicants for their salary history when Assembly Bill (AB) 168 becomes effective on January 1, 2018.
AB 168 explicitly prohibits public agency employers from asking job applicants for salary history information. However, when an applicant voluntarily and without prompting provides salary history information, employers may use the information as a factor in determining salary if the e...
In our technology-driven world, a California Public Records Act request typically seeks some form of electronic communication or record created using a computer and software program. Frequently, an agency’s response is to send an email attaching the requested record if it is not otherwise exempt from disclosure. Public agencies must be careful when responding to these requests. Without taking adequate precautions, this common response may actually reveal hidden electronic data, calle...
Governor Jerry Brown recently signed into law Senate Bill (SB) 1436, which impacts the process for approving the compensation of a local agency executive. To encourage transparency, SB 1436 requires that, before taking final action, a local agency's legislative body orally report a summary of the recommended compensation of a local agency executive. This report must be made during the same open meeting in which final action on the compensation is to be taken.
While school bullying is not a new phenomenon, the media attention upon school shootings and suicides alleged to involve bullying victims is greater than ever. According to the experts, school bullying has widespread and harmful impacts on victims and other students, and it can push a student down the path toward self-harm or causing harm to others. School districts now see bullying as a major concern that must be confronted, rather than avoided, and they have increased efforts to discourage,...
On May 23, 2016, the United States Department of Labor published updated overtime regulations that increase the minimum salary amount necessary for employees to be exempt from overtime pay requirements. The updated regulations (Final Rule) will take effect on December 1, 2016.
The federal Fair Labor Standards Act of 1983 (FLSA) requires an employer to pay an employee at an overtime rate if the employee works more than 40 hours in one week. Employees can be exempt from th...
California's Fair Employment and Housing Council (Council) is set to consider amendments to the Fair Employment and Housing Act (FEHA or Act) that the Council says will more explicitly spell out existing protections for transgender workers and bring those protections in line with federal guidance and state law.
The Council will discuss the proposed amendments at its June 27 meeting and is now accepting public comment. A date to consider approval of the proposed amen...
Last month, the U.S. Supreme Court held in Heffernan v. City of Paterson (April 26, 2016, No. 14-1280) 578 U.S. __ [2016 U.S. LEXIS 2924] that an employee may challenge an employer’s adverse action under the First Amendment even if the employer’s action was based on a mistaken perception that an employee engaged in political activity. The decision impacts government employers, including school districts, county offices of education, and local governments by giving g...
On April 4, 2016, Governor Jerry Brown signed into law Senate Bill (SB) 3, which amends California Labor Code section 1182.12 to increase California's minimum wage to $15 per hour by the year 2022. The legislation was approved by the State Assembly and Senate on party line votes. The bill ultimately gained the Governor's support after a compromise was reached to gradually phase in increases to the minimum wage over a five year period. The new law explicitly includes publ...
Serving the public is the main business of public agencies, and school and college districts must publish a reliable and predictable schedule of instruction each school year so that students, staff, and the community may plan around it. This has always created tension for public school employers as they must plan the non-negotiable instructional calendar for students and also bargain over the negotiable work year calendar for staff members.
In a recent decision,...
In Santa Maria Joint Union High School District v. Santa Maria Joint Union High School District Faculty Association (PERB Decision No. 2445), the PERB Board (Board) considered a school district's claim that a union attempted to cause it to violate Section 3543.5 of the Educational Employment Relations Act (EERA). While the EERA prohibits a public school employer from retaliating against a bargaining unit member for engaging in protected activities, it also prohibit...
The Public Employment Relations Board (PERB) recently held that a public school employer violated the Educational Employment Relations Act (EERA) by interfering with an employee's right to have union representation present during a meeting with her supervisor. (Capistrano Unified School District (2015) PERB Decision No. 2440.) In this case, the union alleged the district violated the employee's right to union representation by proceeding with the meeting despite th...
On October 1, 2015, Governor Jerry Brown signed Assembly Bill (AB) 375, which creates a right to twelve weeks of differential pay for certificated employees who take maternity or paternity leave under the California Family Rights Act (CFRA). Until this bill, the CFRA only provided for an unpaid leave of absence for baby-bonding.
Effective January 1, 2016, AB 375 adds Education Code section 44977.5 which establishes the right to differential leave for up to twelve...
This week, Governor Brown signed a new law (AB 215) that will prohibit school superintendent contracts executed on or after January 1, 2016 from providing more than twelve (12) months of severance pay if the superintendent's contract is terminated without cause. In recent years, several costly superintendent buyouts have gained great notoriety, and AB 215 was introduced in response to those situations.
A cap on superintendent severance payments actually predate...
On July 13, 2015, Governor Brown signed Assembly Bill (AB) 304 into law, which clarifies the provisions of the Healthy Workplaces, Healthy Families Act of 2014 (Act), also known as AB 1522 or the "paid sick leave law." The Act expanded the right to paid sick leave to cover many more part-time employees in California. AB 304 clarifies portions of the Act and adds new options for compliance with the requirements of the Act. AB 304 was passed as an urgency measure an...
The United States Supreme Court recently held that all states are required to license same-sex marriages and recognize same-sex marriages validly performed out of state. (Obergefell, et al. v. Hodges, (June 26, 2015) 2015 U.S. Lexis 4250.) While monumental on a national level, this ruling is just the latest event in the rapidly changing legal landscape relating to issues of sexual orientation and gender identity. These issues are commonly described as affecting indiv...
The California Court of Appeal recently held that an employee's inability to work with her supervisor due to stress and anxiety did not qualify as a disability protected under the Fair Employment and Housing Act (FEHA).
In 2010, Michaelin Higgins-Williams, a clinic assistant for Sutter Medical Foundation who had been diagnosed with adjustment disorder and anxiety, took an approved medical leave based on stress and anxiety caused by interactions with her manager. (...
The California Family Rights Act (CFRA) is the state law that allows qualifying employees to take up to 12 weeks of leave in a 12 month period to care for an employee's family member or for the employee's own medical condition, or in connection with the birth, adoption or fostering of an employee's child. To qualify for CFRA leave, several threshold requirements must be met: (1) an employer must employ 50 or more employees; (2) an employee must work at a worksite with ...
February 2015Number 3 The Public Employment Relations Board (PERB) recently held that a public school employer violated the Educational Employment Relations Act (EERA) when it issued a notice of paid administrative leave to an employee which directed him not to contact faculty, staff, or students during the employer's workplace investigation. (Los Angeles Community College District (2014) PERB Decision No. 2404-E.) In this case, Carlos Perez, an adjunct electronics instructor, was placed on p...
On September 10, 2014, Governor Brown signed into law Assembly Bill (AB) 1522, the Healthy Workplaces, Healthy Families Act of 2014. AB 1522 provides that an employee who, on or after July 1, 2015, works in California for 30 or more days within a year from the beginning of employment, is entitled to paid sick leave at the rate of at least one hour of paid sick leave for every 30 hours worked. AB 1522 includes part-time, seasonal, and temporary employees within its sc...
If a permanent certificated employee resigns from a school district and is reemployed within 39 months by the same school district, the school district must restore the employee to permanent status. (Ed. Code § 44931.) If the district hires the former employee as a substitute teacher, is it required to designate the teacher as permanent?
In Edwards v. Lake Elsinore Unified School District (October 30, 2014) __ Cal.App.4th __ 2014 WL 5474984, the court confi...
For several decades, California law has provided teachers with significant due process protections that, as a practical matter, have insulated them from suspension or dismissal except in rare cases. Many now contend that the current teacher dismissal process is cumbersome, expensive, and makes it difficult to dismiss teachers that should not be in the classroom. Assembly Bill (AB) 215 was recently passed and signed into law in an attempt to reform the teacher dism...
After a physician approves an employee's return from leave under the Family Medical Leave Act (FMLA) (29 U.S.C. § 2601 et seq.) and the employee returns to work, may the employer request a medical reevaluation? In White v. Los Angeles County (April 15, 2014, __ Cal.App.4th __ 2014 WL 1478701), a state court of appeal held that an employer may request a medical reevaluation after the employee has been reinstated to work.
In White, Susan White was employed as an i...
The Public Employment Relations Board (PERB) recently held that an employer may not use a "Side Letter" proposal to postpone negotiations on certain mandatory subjects of bargaining until after the parties reach agreement on other issues. According to PERB, such tactics amount to piecemeal bargaining and violate the duty to bargain.
In American Federation of State, County and Municipal Employees, Local 101("AFSCME") v. City of San Jose ("City") (2013) PERB Decisio...
In summer 2010, the general public first learned of a high profile controversy involving municipal leaders in the City of Bell, California, who allegedly approved unconscionable employment contracts and self-dealing transactions at a cost of millions of dollars to the City's taxpayers. State leaders proposed several "Bell bills" to respond to the controversy, including Assembly Bill (AB) 1344, which eventually became law. AB 1344, effective January 1, 2012, added ...
In Petersil v. Santa Monica-Malibu Unified School District (September 6, 2013) __ Cal.App.4th __ 2013 WL 4804287, the California Court of Appeal found that a school district's improper classification and release of a certified employee as "temporary" instead of "probationary" did not nullify the notice of non-reelection provided to the employee. According to the court, the board's decision not to reelect the employee while under the mistaken belief that she was a ...
Governor Brown recently signed Assembly Bill (AB) 449, a bill adding to and amending sections of the Education Code regarding reporting certificated employee misconduct. AB 449 adds section 44030.5 to the Education Code to clarify a school district superintendent's obligation to report a certificated employee's misconduct to the California Commission on Teacher Credentialing (CTC) as well as the potential penalties for failing to timely submit the report.
On August 12, 2013, Governor Brown signed into law Assembly Bill (AB) 226 and Senate Bill (SB) 292. AB 226 authorizes changes to the work schedule for school police departments and SB 292 changes the definition of "sexual harassment" to include conduct not motivated by sexual desire.
Assembly Bill 226
AB 226 authorizes the governing board of a school district or a county superintendent of schools to have a 12-hour-per-day, 80-hour-per-2-week work schedule, a...
In recent years, most school districts have used the certificated layoff process to reduce district expenses in difficult economic times. Until now, districts have been compelled by law to serve employees with a legal document with the undesirable title of "Accusation" even though the employees had not engaged in any wrongdoing. Likewise, the employees have been obligated to file a legal document called a "Notice of Defense" in order to challenge the layoff process.
The Public Employment Relations Board (PERB) recently expanded an employer's obligation to act when a union requests to bargain over the effects on a non-negotiable decision, holding that "clarification is essential."
In California School Employees Association & Its Chapter 477 v. Rio Hondo Community College District (2013) PERB Decision No. 2313 (Rio Hondo), the District informed CSEA that it intended to install security cameras in its new Learning Resource Ce...
Traditionally, school districts and community college districts have turned their attention to classified layoffs in late April or early May, after the rush of the certificated/academic layoff process is over. However, due to a change in Education Code sections 45117 and 88017, school and community college districts must now give notices no later than May 2nd in order for classified layoffs due to lack of work or lack of funds to be effective July 1, at the start of t...
In Sanchez v. Swissport Inc. (2013) 21 Cal.App.4th 1331, the California Court of Appeal considered a case of first impression regarding the interplay between pregnancy disability leave under the state Pregnancy Disability Leave Law (PDLL) and leave that may be granted to an employee as a reasonable accommodation pursuant to the California Fair Employment and Housing Act (FEHA). Specifically, the Court held that an employee who has exhausted her four-month entitleme...
For decades, employees have had a right to bring discrimination claims under California's Fair Employment and Housing Act (FEHA) based on claims that an employer's adverse employment action (such as termination) was due to the employee's protected class (e.g., race, sex, religion). One of an employer's available defenses has been that that, despite some evidence of a discriminatory motive, the employer would have taken the same adverse action for legitimate reasons if...
With the passage of Proposition 30 by voters in November 2012, many school districts are in a position where they may avoid certificated layoffs. In order to achieve this result, school districts may be planning to release all temporary certificated employees when their temporary employment agreements expire at the end of the 2012-2013 school year. In light of the Stockton Teachers Association v. Stockton Unified School District decision issued last year, administra...
Governor Edmund G. Brown, Jr., signed Senate Bill (SB) 1038 into law on June 27, 2012. Effective January 1, 2013, SB 1038 amends the Fair Employment and Housing Act (FEHA) to: (1) eliminate the Fair Employment and Housing Commission (FEHC); (2) create the Fair Employment and Housing Council ("Council"); (3) expand the powers of the Department of Fair Employment and Housing (DFEH) to manage complaints, mediations, and prosecutions; and (4) require that certain actions...
The use of email and other electronic communication between school administrators, professional staff, employees and the public has increased tremendously, raising complex issues with respect to communication, creation of information and systems, and retrieval and storage of electronic records. School districts often experience confusion over which content should be retained or destroyed according to existing district policies and regulations and disclosure rules un...
Over the past year, the impact of recent child abuse cases has affected educational institutions on local, state, and national levels. In California, state legislators proposed several changes to strengthen existing reporting laws and Governor Brown recently signed four such bills, one of which will become effective January 1, 2013. Although three of these bills, Assembly Bill (AB) 1435, AB 1434, and Senate Bill (SB) 1264 were signed into law, the new mandated repo...
Number 56The Governor recently signed into law Assembly Bill (AB) 2307, amending Education Code sections 45298 and 88117, which affects classified reemployment procedures for school districts and community colleges that have adopted the merit system. The existing statutory scheme for non-merit districts incorporates section 45298 and, therefore, the new legislation will also impact non-merit districts.
Under Education Code sections 45298 and 88117, school and community colle...
More classified employees at school and community college districts may take paid time off to carry out union activities under Assembly Bill 1203, recently signed by Governor Jerry Brown.
Taking effect on January 1, 2013, AB 1203 amends Education Code section 45210 (for school districts) and section 88210 (for community college districts) by allowing a classified union to request paid leave time for a reasonable number of unelected classified employees to attend ...
Effective January 1, 2013, high school coaches will be required to receive training on recognizing the signs of concussions and responding to them appropriately. Assembly Bill (AB) 1451 was signed into law by Governor Jerry Brown on August 17, 2012.
A study published in the Journal of Athletic Training found that an estimated 300,000 sport-related traumatic brain injuries, predominantly concussions, occur annually in the United States. In high school sports played...
In a recent decision, the Public Employment Relations Board (PERB) ruled that school districts and bargaining unit representatives cannot collectively bargain procedures to recoup wage overpayments if those procedures contradict state wage garnishment laws, and further held that the issue of recouping salary overpayments is a non-mandatory subject of bargaining under the Educational Employment Relations Act (EERA).
In Berkeley Council of Classified Employees v. Berk...
In a recent decision, Macy v. Holder (EEOC No. 012012821, April 20, 2012), the Equal Employment Opportunity Commission (EEOC) affirmed that a transgender individual's sex discrimination claims fall within the protections of Title VII of the Civil Rights Act of 1964 and the EEOC's jurisdiction.
Complainant, a former police detective, had applied for a crime laboratory position in the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), an agency within the Uni...
Last week, the California Supreme Court chose not to review a court of appeal case, Stockton Teachers Association CTA/NEA v. Stockton Unified School District (Mar. 1, 2012) __ Cal.App.4th __ (2012 WL 663158), that clarified when a school district may designate a certificated employee as a temporary employee under Education Code section 44909.
Earlier this year, the Third District Court of Appeal published its Stockton decision which limited a district's ability to r...
The California Supreme Court recently issued the decision Brinker Restaurant Corporation v. Superior Court (2012) ___ S.Ct. ___ (2012 WL 1216356) clarifying an employer's duty to provide non-exempt employees meal and rest periods and reminding employers to record and keep those wage and hour records. The Brinker decision offers welcome relief to private sector employers that must comply with state meal and rest period requirements. Public agencies have traditionally bee...
The Reporting by School Employees of Improper Governmental Activities Act (the "Reporting Act") protects school employees and other persons from retaliation for disclosing improper governmental activities. (Ed. Code §§ 44110-44114.) In the recent decision Hartnett v. Crosier (Apr. 26, 2012) __ Cal.App.4th __, 2012 WL 1434900, the California Court of Appeal applied and explained the Reporting Act in a case involving a claim by one management employee agains...
Under the Americans with Disabilities Act (ADA), employers are required to provide reasonable accommodations to disabled individuals who are qualified to perform essential job functions. The Ninth Circuit Court of Appeals recently considered the issue of job qualifications in the case of a disabled teacher who failed to maintain her teaching credential.
In Johnson v. Board of Trustees (9th Cir. 2011) ___ F.3d ___, an Idaho school district fired disabled teacher ...
In a recent decision, the Public Employment Relations Board (PERB) affirmed that, in order to file a "failure to bargain" charge, a public employee union must actually demand to bargain effects of a non-negotiable decision, even if the employer never gave formal notice of the decision. The case was decided under the Ralph C. Dills Act which applies to state employees; however, the decision was based on PERB precedent decided under the Educational Employment Relati...
Assembly Bill (AB) 1269, which was signed by Governor Brown on July 25, 2011 requires that, as of January 2012, the order of rehire for laid off classified employees be determined by seniority. Under the current language of Education Code section 45308, school districts have presumed that classified employees should be rehired in the reverse order that they were laid off. However, as explained more fully below, this conflicts with Education Code section 45298 whic...
On August 1, 2011, Governor Brown signed into law Senate Bill (SB) 272 which clarified the terms of Labor Code section 1510 relating to employee leaves of absence to donate an organ or bone marrow. Labor Code section 1510 previously provided employees with a right to up to thirty (30) days of paid leave, in any one-year period, for the purpose of donating an organ to another person. It also provided paid leave of up to five (5) days for bone marrow donations.
Under current law, city and county governments may establish a personnel or merit commission to administer personnel rules or a merit system. Assembly Bill (AB) 455, recently passed by Legislature, would have given employee unions a role in nominating appointees to these commissions. Under AB 455, a city or county's governing board would have appointed half of the commission members and selected the other half of the commission members from a list of nominees provide...
The Ninth Circuit Court of Appeals has reiterated in Lewis v. United States (9th Cir. 2011) (_____ F.3d _____) ("Lewis") that an employee must comply with the statutory medical certification requirements for leave under the Family Medical Leave Act (FMLA). (5 U.S.C. §§ 6382 et seq.) The Lewis court held that an employee's medical certification, for purposes of taking an FMLA leave for the employee's own health condition, must include a statement of "the appropriate m...
Pursuant to case law interpreting Education Code section 44929.21 ("section 44929.21"), a certificated employee on probationary status for the second consecutive year is deemed to have been reelected for the next school unless personally or actually notified by March 15 of the decision not to reelect the employee. In Sullivan v. Centinela Valley Union High School District (2011) ___ Cal.App.4th ___ ("Sullivan"), the court of appeal held that a second-year probationa...
In Neily v. Manhattan Beach Unified School District (Jan. 27, 2011) ___Cal.Rptr.3d ___ [2011 WL 242008], the court of appeal held that a school district employer's alleged failure to provide a "walk-on" coach with timely notice of the temporary nature of his employment did not render the coach a probationary employee, emphasizing that a temporary athletic coach does not fall under the same classification rules as a temporary classroom teacher.
In January 2002, ...