By Andreas Chialtas, Partner
and Lindsay Thorson, Senior Associate
Cerritos Office
Mounting financial pressure experienced by most K-12 school districts and community college districts throughout California necessitates more efficient use of district real property. Improved efficiency requires more than just knowing the law. The beneficial use and disposition of district property can take many forms such as selling property, generating lease income, decreasing the cost of operations and maintenance through shared use with other public agencies, or any combination of these. Given the myriad of options, it is clear that there is no “one-size-fits-all” approach. With this reality in mind, we recommend that district board members and trustees first get back to basics before undertaking the formal steps in any transaction, and follow some best practice approaches related to planning and community involvement. This will result in an outcome that can withstand public scrutiny while simultaneously providing financial relief.
So where to begin? First, districts should slow down…and plan. Tasked with momentous goals of educating students and improving student performance in these tough economic times, it is understandable that district decision-makers want to act quickly. Nevertheless, district board members and trustees should not rush to take action in this current market without sound planning. For example, in order to prevent sale or lease of properties at "fire sale" prices and to help districts maximize their options, we encourage good asset management and planning, an appropriate level of community outreach, and communication of districts’ desired goals.
Monday, April 30, 2012
Monday, April 23, 2012
Significant Private Sector Wage and Hour Decision Provides Guidance Regarding Employee Breaks and Meal Periods
By Lexe Davidson, Associate
and Tony De Marco, Partner
Irvine Office
On April 12, 2012, the California Supreme Court issued its long awaited decision in Brinker Restaurant Corporation v. Superior Court regarding an employer's duty to authorize and permit non-exempt employees to take rest periods, to provide meal periods to non-exempt employees, and the timing of each. The Brinker court held while employers "must afford employees uninterrupted half-hour periods in which they are relieved of any duty or employer control and are free to come and go as they please," employers are not required to "police" meal breaks. Further, the Brinker court clarified the amount of rest period time an employee is entitled to based on the length of his or her work day, and the timing of the rest period. The Court explained, "employers are subject to a duty to make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where practical considerations render it unfeasible." Importantly, the Brinker court held an employer is liable for wages for working during the meal period if the employer "knew or should have known" that the employee was working through the meal period.
The Labor Code sections analyzed by the Brinker court (sections 226.7 and 512) do not apply to public agencies. In 2009, in Johnson v. Arvin-Edison Water Storage District, the California Court of Appeal stated, "Unless Labor Code provisions are specifically made applicable to public employers, they only apply to employers in the private sector," including Labor Code section 512. The Johnson court further held IWC Wage Order 17 regarding "miscellaneous employees" not covered under other wage orders, does not apply to public employees. A year later, in California Correctional Peace Officers’ Association v. State of California, the Court echoed the Johnson decision. (Click here to see the Alert from AALRR's Employer Services Practice Group, and here to see its Labor and Employment Law blog post)
Despite the Brinker decision’s inapplicability to public school districts, county offices of education, and community college districts, the decision provides useful guidance regarding duty free meal and rest periods afforded to public school employees.
and Tony De Marco, Partner
Irvine Office
On April 12, 2012, the California Supreme Court issued its long awaited decision in Brinker Restaurant Corporation v. Superior Court regarding an employer's duty to authorize and permit non-exempt employees to take rest periods, to provide meal periods to non-exempt employees, and the timing of each. The Brinker court held while employers "must afford employees uninterrupted half-hour periods in which they are relieved of any duty or employer control and are free to come and go as they please," employers are not required to "police" meal breaks. Further, the Brinker court clarified the amount of rest period time an employee is entitled to based on the length of his or her work day, and the timing of the rest period. The Court explained, "employers are subject to a duty to make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where practical considerations render it unfeasible." Importantly, the Brinker court held an employer is liable for wages for working during the meal period if the employer "knew or should have known" that the employee was working through the meal period.
The Labor Code sections analyzed by the Brinker court (sections 226.7 and 512) do not apply to public agencies. In 2009, in Johnson v. Arvin-Edison Water Storage District, the California Court of Appeal stated, "Unless Labor Code provisions are specifically made applicable to public employers, they only apply to employers in the private sector," including Labor Code section 512. The Johnson court further held IWC Wage Order 17 regarding "miscellaneous employees" not covered under other wage orders, does not apply to public employees. A year later, in California Correctional Peace Officers’ Association v. State of California, the Court echoed the Johnson decision. (Click here to see the Alert from AALRR's Employer Services Practice Group, and here to see its Labor and Employment Law blog post)
Despite the Brinker decision’s inapplicability to public school districts, county offices of education, and community college districts, the decision provides useful guidance regarding duty free meal and rest periods afforded to public school employees.
Friday, April 20, 2012
Bill That Would Have Punished Student-Teacher Dating, Opposed by California Federation of Teachers, Fails
By Marisa Lincoln, Senior Associate
Penelope Glover, Senior Associate
and Chet Quaide, Partner
Pleasanton Office
On March 1, 2012, outrage erupted and national headlines were created when James Hooker, a 41 year old teacher at a high school in Modesto, California, announced that he quit his job, left his wife and family, and moved in with an 18 year old student, Jordan Powers. Both student and teacher have maintained that, while they met when the student was 14, their relationship did not become physical until she turned 18 years old. While this matter is still under investigation, the student's mother claims that phone records demonstrate the existence of an estimated 8,000 text messages between the teacher and student that date back to the summer of 2011, when the student was a minor.
California's age of consent is 18 years old. Thus, without any evidence that there was inappropriate contact between the student and teacher before the student turned 18, nothing illegal can be found about this odd and disturbing relationship. However, despite the fact the student is legally an adult, many are left feeling that the teacher's actions are ethically and morally wrong.
Penelope Glover, Senior Associate
and Chet Quaide, Partner
Pleasanton Office
On March 1, 2012, outrage erupted and national headlines were created when James Hooker, a 41 year old teacher at a high school in Modesto, California, announced that he quit his job, left his wife and family, and moved in with an 18 year old student, Jordan Powers. Both student and teacher have maintained that, while they met when the student was 14, their relationship did not become physical until she turned 18 years old. While this matter is still under investigation, the student's mother claims that phone records demonstrate the existence of an estimated 8,000 text messages between the teacher and student that date back to the summer of 2011, when the student was a minor.
California's age of consent is 18 years old. Thus, without any evidence that there was inappropriate contact between the student and teacher before the student turned 18, nothing illegal can be found about this odd and disturbing relationship. However, despite the fact the student is legally an adult, many are left feeling that the teacher's actions are ethically and morally wrong.
Wednesday, April 18, 2012
Proposed Revisions to the California Family Rights Act Will Expand the Circumstances Under Which Employees Could Take Protected Leave
By Tina Kannarr, Senior Counsel
Sharon Ormond, Senior Associate
and Aaron O'Donnell, Partner
Cerritos Office
The California Assembly is considering a bill, Assembly Bill 2039, that would amend Section 12945.2 of the Government Code relating to family and medical leave. Currently, the California Family Rights Act (CFRA), like the federal Family and Medical Leave Act (FMLA), makes it an unlawful employment practice for an employer to refuse to grant a request by an eligible employee to take up to 12 workweeks of unpaid protected leave during any 12-month period (1) to bond with a child who was born to, adopted by, or placed for foster care with, the employee, (2) to care for the employee’s parent, spouse, or child who has a serious health condition, as defined, or (3) because the employee is suffering from a serious health condition rendering him or her unable to perform the functions of the job. A "child" is currently defined to include a biological, adopted, foster, or stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under 18 years of age or an adult dependent child. The term "parent" is currently defined to mean the employee's biological, foster, or adoptive parent, stepparent, legal guardian, or other person who stood in loco parentis to the employee when the employee was a child.
Assembly Bill 2039, if passed, would expand the circumstances under which an employee will be entitled to protected leave pursuant to the CFRA only, by doing the following: (1) eliminating the age and dependency elements from the definition of "child," thereby permitting an employee to take protected leave to care for his or her independent adult child suffering from a serious health condition; (2) expanding the definition of "parent" to include an employee’s parent-in-law; and (3) expanding the scope of permissible family and medical leave to include leave to care for a seriously ill sibling, grandparent, grandchild, or domestic partner. The term "domestic partner" would have the same meaning as set forth in Family Code section 297, which defines domestic partners as "two adults who have chosen to share one another's lives in an intimate and committed relationship of mutual caring." This bill is similar to one that failed to pass several years ago that also would have expanded the definition of family member beyond those currently identified.
Sharon Ormond, Senior Associate
and Aaron O'Donnell, Partner
Cerritos Office
The California Assembly is considering a bill, Assembly Bill 2039, that would amend Section 12945.2 of the Government Code relating to family and medical leave. Currently, the California Family Rights Act (CFRA), like the federal Family and Medical Leave Act (FMLA), makes it an unlawful employment practice for an employer to refuse to grant a request by an eligible employee to take up to 12 workweeks of unpaid protected leave during any 12-month period (1) to bond with a child who was born to, adopted by, or placed for foster care with, the employee, (2) to care for the employee’s parent, spouse, or child who has a serious health condition, as defined, or (3) because the employee is suffering from a serious health condition rendering him or her unable to perform the functions of the job. A "child" is currently defined to include a biological, adopted, foster, or stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under 18 years of age or an adult dependent child. The term "parent" is currently defined to mean the employee's biological, foster, or adoptive parent, stepparent, legal guardian, or other person who stood in loco parentis to the employee when the employee was a child.
Assembly Bill 2039, if passed, would expand the circumstances under which an employee will be entitled to protected leave pursuant to the CFRA only, by doing the following: (1) eliminating the age and dependency elements from the definition of "child," thereby permitting an employee to take protected leave to care for his or her independent adult child suffering from a serious health condition; (2) expanding the definition of "parent" to include an employee’s parent-in-law; and (3) expanding the scope of permissible family and medical leave to include leave to care for a seriously ill sibling, grandparent, grandchild, or domestic partner. The term "domestic partner" would have the same meaning as set forth in Family Code section 297, which defines domestic partners as "two adults who have chosen to share one another's lives in an intimate and committed relationship of mutual caring." This bill is similar to one that failed to pass several years ago that also would have expanded the definition of family member beyond those currently identified.
Monday, April 16, 2012
While Insults About Teachers and School Administrators May Result in Injury, They Might Not Always Result in Student Discipline
By Marisa Lincoln, Senior Associate
and Chet Quaide, Partner
Pleasanton Office
The old adage, "sticks and stones may break my bones, but words will never hurt me" may not be so reassuring in a day and age when anyone can post an insult about someone on a public blog or social media site for a virtual universe of internet users to see. This is especially so if a student or students have posted insults about an administrator or a teacher on a public website that are viewed by other members of school staff, students, parents, and the community.
While school administrators are undoubtedly aware that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," student speech posted on the internet berating administrators and teachers can have the potential of being extremely offensive and demeaning and create embarrassment to those who are targeted. The question then becomes, when can a student's off campus speech in which insults about school administrators and teachers are posted on a social media or other public website be restricted?
and Chet Quaide, Partner
Pleasanton Office
The old adage, "sticks and stones may break my bones, but words will never hurt me" may not be so reassuring in a day and age when anyone can post an insult about someone on a public blog or social media site for a virtual universe of internet users to see. This is especially so if a student or students have posted insults about an administrator or a teacher on a public website that are viewed by other members of school staff, students, parents, and the community.
While school administrators are undoubtedly aware that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," student speech posted on the internet berating administrators and teachers can have the potential of being extremely offensive and demeaning and create embarrassment to those who are targeted. The question then becomes, when can a student's off campus speech in which insults about school administrators and teachers are posted on a social media or other public website be restricted?
Tuesday, April 10, 2012
Over-Identification and Misidentification Creates Unnecessary Headaches for Parents, School Districts and County Offices of Education
By Geneva Englebrecht, Associate
and Adam Newman, Partner
Cerritos Office
It is essential that IEP team members understand how to properly identify students who are eligible for special education and related services. There are times when a referral for an evaluation for special education is made by a parent or teacher for a student who is struggling academically but does not have a true disability or where a student has a medical diagnosis but does not require special education and related services and is consequently also not eligible for special education (and may or may not be eligible for a 504 plan). IEP teams should be sufficiently familiar with the eligibility requirements of federal and state law and avoid the potential harm of wrongly identifying a student as eligible for special education.
Consequences to the school district or county office of education will include limitations to disciplinary options available for the student’s misconduct and “stay-put,” which, subject to certain exceptions not mentioned in this article, require the school district or county office of education to continue providing the student special education placement and services pending the outcome of administrative and/or court litigation.
and Adam Newman, Partner
Cerritos Office
It is essential that IEP team members understand how to properly identify students who are eligible for special education and related services. There are times when a referral for an evaluation for special education is made by a parent or teacher for a student who is struggling academically but does not have a true disability or where a student has a medical diagnosis but does not require special education and related services and is consequently also not eligible for special education (and may or may not be eligible for a 504 plan). IEP teams should be sufficiently familiar with the eligibility requirements of federal and state law and avoid the potential harm of wrongly identifying a student as eligible for special education.
Consequences to the school district or county office of education will include limitations to disciplinary options available for the student’s misconduct and “stay-put,” which, subject to certain exceptions not mentioned in this article, require the school district or county office of education to continue providing the student special education placement and services pending the outcome of administrative and/or court litigation.
Tuesday, April 3, 2012
Employer-Employee Faceoff: Do You Really Want to Know What is on Your Employees’ or Applicants’ Social Media Sites?
By Penelope Glover, Senior Associate
and Marisa Lincoln, Senior Associate
Pleasanton Office
There has been a lot of buzz recently about whether employers can demand employees or prospective employees to provide passwords to their private social media accounts. The buzz was undoubtedly associated, in part, with a proposed amendment to the Federal Communications Commission Process Reform Act of 2012, which was approved by the House of Representatives on March 27, 2012. The amendment would have enabled the Federal Communications Commission to prohibit covered entities from requiring job applicants or employees to disclose confidential social networking passwords to their employers or prospective employers.
The proposed amendment was rejected by the House of Representatives. Thus, employers may arguably continue to search public social networking sites and request employee and applicant passwords for private social media sites. However, is this practice a good idea?
and Marisa Lincoln, Senior Associate
Pleasanton Office
There has been a lot of buzz recently about whether employers can demand employees or prospective employees to provide passwords to their private social media accounts. The buzz was undoubtedly associated, in part, with a proposed amendment to the Federal Communications Commission Process Reform Act of 2012, which was approved by the House of Representatives on March 27, 2012. The amendment would have enabled the Federal Communications Commission to prohibit covered entities from requiring job applicants or employees to disclose confidential social networking passwords to their employers or prospective employers.
The proposed amendment was rejected by the House of Representatives. Thus, employers may arguably continue to search public social networking sites and request employee and applicant passwords for private social media sites. However, is this practice a good idea?
Monday, April 2, 2012
Public Agencies Can Now Use Their Own Employees Through Force Accounts, or Hire Other Entities Through Negotiated Contracts or Purchase Orders for Construction Projects Under $45,000, if they Opt into the Uniform Cost Accounting Act
By Stephen McLoughlin, Associate
and Hugh Lee, Partner
Cerritos Office
The Uniform Cost Accounting Act at Public Contract Code section 22000 et seq. (“UCAA”) allows participating agencies to avoid the formal bidding procedure for projects that fall under certain cost thresholds. The UCAA includes two thresholds: 1) the "Direct Hire Threshold" which allows public agencies to hire their own employees through a force account or hire other entities directly through a negotiated contract or purchase order to perform public construction contracts and 2) the "Informal Bidding Threshold" which allows public agencies to use an informal bidding procedure. The threshold amounts set forth in the UCAA are periodically changed by the California legislature. As of January 1, 2012, the Direct Hire Threshold is $45,000, meaning any project costing $45,000 or less can be performed by the public agency's employees through a force account or the public agency can hire another entity directly through a negotiated contract or purchase order. The Informal Bidding Threshold is $175,000, meaning any contract costing $175,000 or less may be bid using the informal bidding procedure set forth in the UCAA. Any project over $175,000 must be let through formal bidding procedures.
Whenever the thresholds in the UCAA are changed, public agencies tend to reexamine whether opting into the UCAA is a good idea. In general, the UCAA is touted as a simplified bidding process. The ability to complete construction costs worth $45,000 or less without bidding is definitely appealing specifically to school districts when compared to the competitive bidding threshold of $15,000 under Public Contract Code section 20111. The informal bidding procedure, available for projects $175,000 or under, can also be a nice option as it allows school districts to avoid the formal bidding requirements of Public Contract Code section 20111. However, the UCAA does require public agencies to meet their own set of administrative requirements that can be laborious. Specifically, the public agency must pass a resolution opting into the UCAA and follow the notification procedures for informal bidding described in the UCAA.
and Hugh Lee, Partner
Cerritos Office
The Uniform Cost Accounting Act at Public Contract Code section 22000 et seq. (“UCAA”) allows participating agencies to avoid the formal bidding procedure for projects that fall under certain cost thresholds. The UCAA includes two thresholds: 1) the "Direct Hire Threshold" which allows public agencies to hire their own employees through a force account or hire other entities directly through a negotiated contract or purchase order to perform public construction contracts and 2) the "Informal Bidding Threshold" which allows public agencies to use an informal bidding procedure. The threshold amounts set forth in the UCAA are periodically changed by the California legislature. As of January 1, 2012, the Direct Hire Threshold is $45,000, meaning any project costing $45,000 or less can be performed by the public agency's employees through a force account or the public agency can hire another entity directly through a negotiated contract or purchase order. The Informal Bidding Threshold is $175,000, meaning any contract costing $175,000 or less may be bid using the informal bidding procedure set forth in the UCAA. Any project over $175,000 must be let through formal bidding procedures.
Whenever the thresholds in the UCAA are changed, public agencies tend to reexamine whether opting into the UCAA is a good idea. In general, the UCAA is touted as a simplified bidding process. The ability to complete construction costs worth $45,000 or less without bidding is definitely appealing specifically to school districts when compared to the competitive bidding threshold of $15,000 under Public Contract Code section 20111. The informal bidding procedure, available for projects $175,000 or under, can also be a nice option as it allows school districts to avoid the formal bidding requirements of Public Contract Code section 20111. However, the UCAA does require public agencies to meet their own set of administrative requirements that can be laborious. Specifically, the public agency must pass a resolution opting into the UCAA and follow the notification procedures for informal bidding described in the UCAA.
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