Tuesday, March 27, 2012

Bullying at California Public Colleges and Universities is Target of New Law

By Aaron O'Donnell, Partner
and Sharon Ormond, Senior Associate
Cerritos Office

As has been widely reported in the media, earlier this month a Rutgers University student was convicted of bias crimes for homophobia-motivated webcam spying on his roommate, who committed suicide after learning of the spying. The case has focused attention on the phenomenon of bullying on college and university campuses.

A new California law calls on the state's public colleges and universities to address this issue as well.

Monday, March 26, 2012

The "Secret" Exemption to the Brown Act Enjoyed by California K-12 School and Community College Districts

By Chet Quaide, Partner
Pleasanton Office

School district administrators aren’t used to “thanking” Sacramento too often, given the annual slew of additional mandates and reduced funding from the Legislature. When the “Rodda Act,” the set of laws that provides for collective bargaining by school district employees in California, was enacted in 1975, however, the Legislature provided a little known exemption from the normal requirements of the Brown Act relating expressly to negotiations.

Specifically, Government Code section 3549.1 provides that the following activities are completely exempt from the Brown Act:
  1. Any meeting and negotiating discussion between a public school employer and a recognized employee organization.
  2. Any meeting of a mediator with either party or both parties to the meeting and negotiating process.
  3. Any hearing, meeting, or investigation conducted by a fact-finder or arbitrator.
  4. Any executive session of the public school employer or between the public school employer and its designated representative for the purpose of discussing its position regarding any matter within the scope of representation and instructing its designated representatives.
Consider the following two scenarios:

Tuesday, March 20, 2012

Some Thoughts on Special Education/Student Discipline – Knowing How to Apply “The 10 Day Rule” and Other Interesting Tid-Bits

By Geneva Englebrecht, Associate
and Adam Newman, Partner
Cerritos Office

Students who are eligible for special and related services are entitled to additional protections when subjected to disciplinary removals that are deemed a "change of placement" under federal law, i.e., the IDEA and its corresponding regulations. At the point where disciplinary removals become a "change of placement" the IDEA and its regulations require that a manifestation determination IEP team meeting be held to determine whether the alleged misconduct in question is a manifestation of the student's disability or not. A change of placement is deemed to occur (hence triggering the requirement for convening a manifestation determination IEP team meeting), where the disciplinary removal is for 10 cumulative school days or more during a school year, or where a series of removals constitutes a pattern. While the legislation seems straight forward, upon a first or even several reads, many questions arise.

School Day Removals

Keep in mind that in most cases, LEA’s can treat disabled students the same as non-disabled students for purposes of suspension for the first 10 days of suspension in a school year, and hence not trigger the need for a manifestation determination IEP team meeting. Nevertheless, disciplinary removals that trigger the need to hold a manifestation determination IEP team meeting need to take into account both partial day and full day removals. In the case of partial day removals, the Office of Special Education Programs (OSEP) has defined "portions of a school day" as counting a disciplinary removal (i.e. a suspension) for a half day or less as a half day, and counting a suspension or removal for more than a half day as a whole day.

Tuesday, March 13, 2012

Proposed Revisions to FMLA will Implement Recent Amendments to Military Leave Provisions

By Cathie Fields, Senior Associate
Irvine Office
and Jabari Willis, Associate
Cerritos Office

On February 15, 2012, the U.S. Department of Labor’s Wage and Hour Division issued a “notice of proposed rulemaking,” describing proposed revisions to regulations under the Family and Medical Leave Act of 1993 (FMLA). These regulations are proposed primarily to implement recent amendments to the military leave provisions.

The FMLA entitles eligible employees to take job-protected, unpaid leave, for up to a total of 12 workweeks in a 12-month period for certain serious health conditions of the employee or specified family members, or the birth or adoption of a child. The FMLA was amended by the enactment of the 2008 National Defense Authorization Act (NDAA), which allows eligible employees to take FMLA leave because of any “qualifying exigency” when the employee’s spouse, son, daughter, or parent is called to active duty in the Armed Forces in support of a contingency operation. Additionally, the 2008 amendments provide up to 26 workweeks of “military caregiver leave” in a single 12-month period for an eligible employee to care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember. These two leave entitlements are referred to as “military family leave.”

Friday, March 9, 2012

The Importance of Preserving Electronic Data When Disputes Arise

By Peter Sturges, Associate
Pleasanton Office

During the every day course of business, actual or potential disputes may arise that could lead to later legal action. In these situations, the preservation of electronically stored information can be overlooked.

In addition, litigation discovery rules provide that parties in litigation must take necessary measures to preserve electronic evidence. If appropriate measures are not taken in that regard, a party could be subject to evidence and issue sanctions, together with a counter-claim based on "spoliation of evidence."

Tuesday, March 6, 2012

Community College Districts Must Take Note of Court Ruling on K-12 Categorically Funded Certificated Employees

By Aaron O'Donnell, Partner
Cerritos Office

As noted in a recent AALRR alert, the March 1, 2012, decision of the Court of Appeal in Stockton Teachers Association v. Stockton Unified School District held that certificated employees hired into categorically funded positions pursuant to temporary contracts may nevertheless have the rights of probationary employees with respect to seniority, eligibility for tenure, and rehire rights after layoff. Although the case involved certificated employees of a K-12 district, the case has significant implications for community college districts as well in both the short- and long-term.

Employees heretofore considered to be temporary based on categorical funding may now have new arguments available to claim the rights of contract or tenured faculty. In the short term, the case will require community college districts to reassess their plans for layoffs and release of temporary employees, in order to determine whether, in light of the court’s holding, any additional resolutions should be adopted or notices sent by March 15, 2012. In the longer term, the case may require some districts to re-think their approach to the use of categorically funded temporary employees as a means of maintaining staffing flexibility.

Friday, March 2, 2012

Court Finds County Committee On School District Organization Did Not Violate The California Voting Rights Act And Confirms Trial Court’s 90% Reduction In Award Of Attorneys’ Fees

By David Soldani, Senior Associate
Fresno Office
Todd Goluba, Partner
and Chet Quaide, Partner
Pleasanton Office

On February 28, 2012, the court in Maria Esther Rey v. Madera Unified School District (February 28, 2012) held that a county committee on school district organization may not be held liable under the California Voting Rights Act ("CVRA," Elections Code § 14025 et seq.) when the county committee has taken no action to impose or apply an election method on behalf of one of its school districts. The court also upheld the trial court’s decision to reduce by over 90%, the amount of attorneys’ fees awarded to plaintiffs in the case.

The district was represented by Atkinson, Andelson, Loya, Ruud & Romo attorneys David Soldani, William Woolman and Jennifer Cantrell.