Court of Appeal Rejects Los Angeles Unified School District Settlement, Upholds Seniority-based Layoff Requirements

By Cathie Fields, Senior Associate
Irvine Office

The California Court of Appeal has just overturned the consent decree entered into by LAUSD and student-plaintiffs who sued the district in 2010 to prevent implementation of seniority-based certificated layoffs. In this much-publicized case, students at three schools alleged their constitutional equal protection rights were violated because of the disproportionate effect of the seniority-based reductions on their schools.

The parties ultimately negotiated a settlement in the form of a consent decree, which identified a “targeted subset” of up to 45 schools in LAUSD that were ranked in deciles 1, 2 or 3 in the API, had high teacher turnover, and demonstrated academic growth, and schools identified as likely to be disproportionately affected by teacher turnover. Under the settlement, all teachers at the 45 designated schools would be protected from layoff, regardless of their seniority, for three years.

UTLA opposed the settlement and appealed the trial court’s approval of the consent decree. The Court of Appeal overturned the trial court’s decision on the basis that the consent decree violated teachers’ seniority rights under the Education Code and the collective bargaining agreement. UTLA and its members, the court held, had the right to a hearing on the merits of the lawsuit.

In LAUSD and other large districts, the equal protection issue is likely to remain a focus of teachers’ unions and advocacy groups. AALRR will be following future developments in this case. For the time being, consistent with our prior advice, proper application of the statutory bases for deviating from strict seniority layoffs should be continued.

To read our more detailed Alert on the Reed v. United Teachers Los Angeles Court of Appeal decision, click HERE.

Pending Legislation Could Limit Access to Individuals’ Social Media Accounts by Employers, Colleges, and Universities

By Elizabeth Hearey, Senior Counsel
and Chet Quaide, Partner
Pleasanton Office

As an investigative device, some employers, colleges, and universities have been asking employees, applicants for employment, and students for passwords to their social media accounts. Others have asked employees to sit down with managers to review their social media content or fully print out their social media pages. The practice remains a hot topic in the news because social media accounts, such as Facebook and Twitter, often contain highly personal information which individuals want to keep out of the eye of employers or school officials. Will these investigative practices be allowed to continue in California?

Recently, there has been a push to pass both federal and state laws to deny access to private information on social network accounts. If SB 1349 and AB 1844 pass, California will be among the first states to deny employers and postsecondary educational institutions access to these accounts.

Certificated Employee is Entitled to Attorney Fees in Dismissal Process if Accusation is Withdrawn Following Initial Decision to Proceed to Hearing

By Paul McGlocklin, Associate
Riverside Office
and Mark Bresee, Partner
Irvine Office

In another blow to California school employers, a Court of Appeal has ruled that in a certificated dismissal or suspension proceeding, the employee is entitled to an award of expenses and attorney’s fees if the district withdraws its accusation against the employee after deciding to proceed to hearing, but before the hearing starts. The ruling clarifies that where an accusation is withdrawn it necessarily follows that the Commission on Professional Competence rule that the employee “should not be dismissed or suspended” within the meaning of Education Code section 44944(c)(1). Such a ruling entitles the employee to all expenses incurred defending against the accusation, including attorney’s fees.

In Boliou v. Stockton Unified School District the Governing Board of the Stockton Unified School District initiated dismissal proceedings against David Boliou, a classroom teacher who allegedly used duct tape to cover a talkative student’s mouth. In response to the charges filed against him, Boliou demanded a hearing pursuant to Education Code section 44943. Rather than drop the charges, the Governing Board decided to proceed and set a hearing before a Commission on Professional Competence as provided in Education Code section 44944. Following a number of unfavorable pre-hearing rulings, the Governing Board voted to dismiss the accusation one week before the hearing. The Commission on Professional Competence allowed the dismissal, but Boliou objected on the grounds that he was entitled to a ruling that he should not be dismissed (thus entitling him to expenses and attorney’s fees under Education Code section 44944(e)(2)). The Commission on Professional Competence declined to do so, stating instead that the accusation simply be dismissed.

US Supreme Court Requires Unions to Receive Consent from Non-Members for Special Fee Assessments and to Provide Extra ‘Hudson Notice’ for Special Fees

By Jabari Willis, Associate
Cerritos Office
and Mark Bresee, Partner
Irvine Office

In Knox v. Service Employees International Union, Local 1000 the United States Supreme Court held that California unions must receive "opt-in" consent of non-members before charging special fees for political purposes expenses, instead of the regular "opt out" practice. The Supreme Court also held that unions must provide an additional "Hudson notice" (a notice to service fee payers of the "fair share" amount and means of challenging the amount) -regarding the special assessment or dues increase.

The suit began in 2005 when former Governor Schwarzenegger requested a special election to consider several propositions, including Proposition 75, which required unions to obtain employees' affirmative consent before charging them fees to be used for political purposes. California unions, including SEIU Local 1000 (SEIU), opposed Proposition 75, and imposed a special assessment on its bargaining unit members to fight the proposition. The special assessment, named the "Emergency Temporary Assessment to Build a Political Fight-Back Fund," increased due and fees to 1.25% of gross salary (from 1%) and eliminated the existing fees and dues cap of $45 per month.

What Should You Do If Your Personnel Investigation Comes Down to a “He Said, She Said” Situation?

By Donna Matties, Partner
Sacramento Office

As an attorney who frequently conducts personnel investigations for clients, I often encounter situations where all that I have is a "he said, she said" situation without any other witnesses. This hurdle does not mean that I do not investigate the matter thoroughly. It is fairly well known that all investigations need to be prompt, thorough and effective. Personnel investigations may be eventually reviewed by the Department of Fair Employment and Housing (DFEH) and the Equal Employment Opportunity Commission (EEOC) if a complaint is brought to them. If you are involved in litigation over a personnel issue, your investigation may be reviewed by a judge or jury. Given the stakes involved, the lack of witnesses may mean that it is more crucial to make a determination on who is more credible in the particular matter.

In addition, I also encounter complainants who indicate that nothing was done regarding a prior personnel complaint because there were no witnesses, so everybody involved was just told to watch their step in the future.  Unfortunately, as is often the case, the inappropriate behavior continues and you are left with a matter that now has escalated in a variety of ways. In some cases, you cannot proceed with discipline when your investigation reveals that you are dealing with a case of one person’s word against another’s. However, it is usually less risky to make such disciplinary decisions based upon an investigation where a credibility analysis is prepared. This short review will give you an idea of how that can be accomplished.

Senate Bill Seeks Modification of Dismissal and Suspension Process for Certificated Employees

By Peter Schaffert, Associate
and Mary Beth De Goede, Partner
Fresno Office

In the wake of the sexual abuse scandal that rocked Los Angeles Unified School District in February of 2012, legislators introduced several bills to streamline the dismissal and suspension procedures for certificated public school employees, particularly for incidents involving sexual misconduct. The allegations of sexual assaults against elementary students at Miramonte Elementary School in South Los Angeles sparked public outcry over the certificated employee dismissal process when one of the alleged molesters, a third grade teacher, settled the teacher dismissal proceeding against him for $40,000. The settlement highlighted the difficulties school districts face in conducting dismissal proceedings, even in cases involving egregious allegations.

Senate Bill 1530, introduced by State Senator Alex Padilla (D - San Fernando Valley) seeks to streamline the process for suspending or dismissing certificated employees for serious offenses. Below we describe current law, and how SB 1530 would change it.

Ninth Circuit Decision Allows Intern Teachers to Temporarily Meet "Highly Qualified" Status Under NCLB

By Jabari Willis, Senior Associate
Cerritos Office
and Mark Bresee, Partner
Irvine Office

In Renee v. Duncan (Renee III), issued May 10, 2012, the federal 9th Circuit Court of Appeals determined that a Department of Education regulation allowing "intern teachers" to meet the No Child Left Behind ("NCLB") definition of highly qualified continued to violate the text of NCLB, but acknowledged that a 2010 action by Congress amended federal law, at least temporarily, to permit the Department of Education regulation to go into effect. As a result of the 9th Circuit's most recent decision, intern teachers who under the regulation "demonstrate satisfactory progress toward full certification" are considered "highly qualified" within the meaning of NCLB.

The Renee case is based upon a clash between the supporters of traditional teacher education and proponents of alternative-teaching programs. The original lawsuit (Renee I) was filed by a group of California activists and groups of minority parents and children, who argue that the regulation permitted a disproportionate number of teaching "interns" to teach in California schools with large proportions of minority and low-income students.

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.

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.

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.

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?

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:

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.”

Nonreelections and Year-End Performance Evaluations: Now is the Time to Think Ahead

By Sharon Ormond, Senior Associate

Aaron O’Donnell, Partner

Cerritos Office

and Lexe Davidson, Associate

Irvine Office

As we reach the approximate midpoint of the academic year, we believe it is important for employers to look ahead to nonreelections and year-end performance evaluations of permanent employees.  We therefore remind our readers of important procedural considerations in the evaluation process, and also offer some substantive tips in preparing evaluation documents.

All education employers should be making sure now that they are developing adequate information on which to base evaluations and decisions about continued employment, that this information has been adequately documented in the personnel file and the employee given a chance to respond, and also that any requirements for the evaluation process established by statute, policy, or collective bargaining agreements are being observed.  Don’t wait until the end of the year to address these issues!  By then, it may be too late.

Clearing the Smoke Surrounding California’s Compassionate Use Act (Medical Marijuana) and Its Effect on Employment and Student Discipline Law

By Amy Estrada, Associate
San Diego Office
and Mark Bresee, Partner
Irvine Office

Since voter approval of Proposition 215 in 1996 (enacting the the Compassionate Use Act ("CUA")), school districts have encountered issues regarding the discipline of students and employees who possess medical marijuana cards. Due to the tumultuous nature of the law, when asked how to proceed in such situations the responses have varied widely over the years. In light of the California Supreme Court’s decision in Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, however, it can be stated with greater confidence that the CUA will not insulate employees or students who happen to be qualified medical marijuana patients from discipline under the Education Code.

Under the federal Controlled Substances Act, the possession and use of marijuana is prohibited, even for medical users. (Gonzales v. Raich (2005) 545 U.S. 1, 26–29.) Federal law classifies marijuana as a "Schedule I" drug, meaning it has "no currently accepted medical use." (21 U.S.C. § 812(c).) The federal government therefore does not deem medical marijuana "prescriptions" valid.
 

New Law Imposing Limitations on Some School Administrator Contracts, and Governing Board Action on These Contracts, Leaves Many Unanswered Questions

By Chet Quaide, Partner
and Marleen Sacks, Senior Counsel
Pleasanton Office

Sometimes, when the Legislature attempts to impose restrictions on public entities across the board, it results in an “ill fitting” application to school and community college districts.  AB 1344, recently signed into law by Governor Brown, is the most recent example of this phenomenon.  This new law was designed to limit methods of public official enrichment that were utilized by City of Bell administrators, but it is not entirely clear how these limitations will apply both in general and to school administrators specifically.

The law specifically prohibits employment contracts for “Local Agency Executives” that contain built in salary increases of a specified amount from automatically “rolling over” without Board action.  Although the new law defines “Local Agency Executive” to include a school or community college district’s chief executive officer, it also includes in this definition “the head of a department of the local agency,” but explicitly excludes classified employees of school districts or community college districts from this definition.  Thus, it appears that this requirement would apply to an Assistant or Associate Superintendent of Personnel or Human Relations (providing the individual holding this position holds a teaching credential), while typically excluding positions such as Chief Financial Officer, or heads of Maintenance, Operations and Transportation, or Facilities.  With regard to community college districts, the law, on its face, appears to apply to “educational” (academic) administrators hired pursuant to Education Code section 72411.

Side Letters Do Not Necessarily Expire When Parties Subsequently Reach Agreement on a Collective Bargaining Agreement

By Jabari Willis, Senior Associate

Cerritos Office

and Mark Bresee, Partner

Irvine Office

In Palomar Community College District (2011) PERB Decision No. 2213-E, the Public Employment Relations Board (“Board”) clarified that a side letter of agreement between parties does not automatically expire when the parties reach agreement on a subsequent collective bargaining agreement ("CBA").

In Palomar, the employer issued a letter of reprimand based on a 2005 side letter addressing disciplinary procedures for certain employees, which did not contain an expiration clause. The following year the parties reached agreement on a CBA, which did not include a zipper clause or any other provision relating to the existence of the side-letter. The side letter was also not discussed during negotiations. As a result, the issue was whether the 2005 side letter expired and/or was superseded based on the 2006 CBA, making the employer's reliance on the 2005 side letter a unilateral change in policy and thus an unfair labor practice.

Are Your Acceptable Use Policies Up to Date?

By Peter Sturges, Partner
Pleasanton Office
and Anthony De Marco, Partner
Irvine Office

The adoption of acceptable use policies to establish the nature and limits of employee and student access to and use of computer systems is by now a common practice.  Once such policies are established, however, districts and county offices of education sometimes fail to review them to ensure they are current.  In today’s rapidly changing technology environment, these policies can quickly become outdated in the face of new technologies and means of communication, the most recent examples including social networking, micro-blogging, and cloud computing.  It is important that acceptable use policies be kept current to address the impacts of new technologies.

The importance of thoughtful, current policies has been demonstrated in the courts, which continue to grapple with technology-related issues in the employment relationship on a regular basis.  For example, in City of Ontario, Cal. v. Quon (2010) --- U.S. ----, 130 S.Ct. 2619 [see AALRR Alert here], one of the key factors in determining whether the employee had a right to privacy in text messages sent over an employer-owned cell phone was that the employer’s acceptable use policy established that such communications were not private.  Similarly, in Holmes v. Petrovich Development Company (2011) 191 Cal.App.4th 1047 [AALRR Alert here], the court concluded that ordinarily privileged communications between an employee and her attorney were not privileged because the employer’s use policy explicitly establishing to the contrary.  Appropriate acceptable use policies can, therefore, be key documents when legal issues arise.

Union Requests for Information: Has the Law Changed?

By Chet Quaide, Partner
and Marleen Sacks, Senior Counsel
Pleasanton Office

Recently, our clients have been getting bombarded with requests from local unions for information related to pending disciplinary cases and grievances, with the unions claiming that the information is “necessary and relevant” to the representation of their members.  No doubt this recent uptick in such requests is due the June 30, 2011 PERB decision in SEIU 1021 v. City of Redding, which held that it was an unfair labor practice for the City to deny the union a copy of a confidential investigation report into sensitive personnel matters.  Notably, the City recently appealed the PERB decision to the California Court of Appeals, so for the short term, the case is of no precedential value.

But regardless of how the case is ultimately decided by the Court of Appeal, the City of Redding case is actually not as compelling as the unions are claiming.  This is because any request for information dispute depends on its own set of facts.  As the City of Redding case itself noted, “Information request cases ordinarily turn on the particular facts involved, so each request is analyzed separately.”  (City of Redding, citing Chula Vista City School District (1990) PERB Decision No. 834.)

Community College Auxiliary Organizations, Educational Agency JPAs Now Subject to EERA

By Aaron O'Donnell, Partner
and Josh Morrison, Senior Counsel
Cerritos Office

On October 9, 2011, Governor Brown announced the signing of AB 501, subjecting community college auxiliary organizations and joint powers agencies comprised of educational agencies to the Educational Employment Relations Act (“EERA”).  These entities will now have the same obligations as school and community college districts and county offices of education in matters of labor relations and collective bargaining.

The law revises the statutory definition of a “public school employer” that is subject to the EERA to now include two categories of entities that were not previously covered:  (1) auxiliary organizations established pursuant to Education Code section 72670 et seq. (except auxiliary organizations solely formed or operating as a student body association or student union), and (2) JPAs that are created as a separate legal entity with their own employees, and that provide educational services or are comprised solely of educational agencies.  Insurance pooling JPAs are excluded.