Education Matters: April 2023

Education Matters

Laborrelations

California Court Of Appeal Finds Substitute Teacher Did Not Have Statutory Right To Be Represented By Union.

Plaintiff Rebecca Wu was a substitute teacher for the Twin Rivers Unified School District. In her unfair practice charge filed with the Public Employee Relations Board (Board), Wu alleged that the District classified her as a substitute teacher, but her position as a home hospital instructor required a different classification under the Education Code. Wu sought to remedy this problem with the District and contacted the Twin Rivers United Educators (Union) for representation in doing so. The Union declined to represent Wu because the District classified her as a substitute teacher, and under the collective bargaining agreement between the Union and the District, substitute teachers are excluded from the Union’s membership.

Wu argued she has a constitutional right to union representation as a misclassified teacher and as a substitute teacher. Wu further argued that the Union breached its duty of fair representation to her when it refused to represent her. The Board’s general counsel dismissed Wu’s charge and found that because Wu was classified as a substitute teacher, she was excluded from the bargaining unit the Union represented and the Union did not owe any duty to represent her. Wu filed an appeal with the Board. The Board adopted its general counsel’s dismissal letter as its decision and ordered Wu’s unfair practice charge dismissed without leave to amend.

Wu filed a petition for preemptory writ of mandate in the trial court pursuant to Code of Civil Procedure sections 1085 and 1086 against the Board and the Union. Wu alleged the Board was wrong because it ignored the Education and Employment Relations Act (EERA) in finding she did not have a right to union membership as a misclassified employee or a substitute teacher. The trial court dismissed Wu’s petition. Wu appealed.

In cases involving the Board’s refusal to file an unfair practice complaint, the California Court of Appeal for the Third District noted that its review is limited to whether the Board violated the Constitution, misinterpreted a statute, or exceeded its authority. The Court of Appeal found that Wu did not have a constitutional right to Union representation because Wu did not establish a property interest in her position as a substitute teacher or as a misclassified employee such that the Union owed her a duty of representation. Wu argued because she worked the same hours and performed the same functions as a represented classroom teacher, the Union was required to represent her under the EERA. However, the Court of Appeal noted, and Wu acknowledged, the Union has no control over the classification of a teacher upon hiring because that decision is left to the school district that hired the teacher. Additionally, the Court of Appeal concluded that it was not an erroneous for the Board to find that the EERA permits substitute teachers to be excluded from units in which classroom teachers belong.

Wu v. Pub. Emp. Rels. Bd. 87 Cal. App. 5th 715 (2022), reh’g denied (Jan. 19, 2023), review filed (Feb. 21, 2023).

Ninth Circuit Finds School District Did Not Fairly Apply Policy Prohibiting Graduation Cap Decorations.

The Dysart School District (District) in Phoenix, Arizona had a graduation policy that prohibits students from decorating their graduation caps. Plaintiff Larissa Waln, a student at the District and a member of the Sisseton Wahpeton Oyate Native American tribe, asked the District to accommodate her religious practice by allowing her to wear an eagle feather on her cap during her high school graduation. The District declined Waln’s request on the ground that the District’s policy permits no exceptions. Despite this, Waln arrived at graduation wearing an eagle feather. District officials prohibited Waln from attending the graduation, but that same day, the District permitted other students to wear secular messages on their graduation caps.

Waln sued the District asserting, among other things, that the selective enforcement of the graduation cap policy violated her rights to the free exercise of religion and to free speech. The trial court concluded that Waln did not allege a plausible claim and dismissed the action with prejudice. Waln appealed.

The United States Court of Appeals for the Ninth Circuit disagreed with the trial court and found that Waln plausibly alleged the District selectively enforced its graduation cap policy in violation of her First Amendment rights. Waln’s complaint stated that other students were “permitted to adorn their graduation caps” in violation of the policy, but Waln was not. The complaint points to one student in particular who attended a high school graduation in the District on the same day and at the same venue wearing a “breast cancer awareness” sticker on his graduation cap, in apparent violation of the policy. However, the District did not enforce the policy to exclude this student’s secular message. The District argued that Waln and the other student are not comparable, noting that the two students attended different high schools (within the same District) and attended different graduation ceremonies. For that reason, the District asserted that different school officials made decisions regarding enforcement of the District’s policy for each student. The Ninth Circuit concluded that the District did not enforce its policy evenhandedly and Waln met her burden in showing that the District’s policy was selectively enforced. Therefore, the Ninth Circuit reversed the trial court’s decision and remanded the case for further proceedings.

first amendment new to the Firm!

Olga Y. Bryan, an associate in the San Diego office, advises clients on labor, employment, and wage and hour matters. She has defended employers in litigation claims for a variety of issues including discrimination, retaliation, harassment, wrongful termination, and wage and hour class violations.

Waln v. Dysart Sch. Dist. (9th Cir. 2022) 54 F.4th 1152.

U.S. Department Of Education Releases Proposed

Changes To Title IX Regulations Related To Students’ Eligibility For Athletic Teams.

On April 6, 2023, the Department of Education (DOE) released a Notice of Proposed Rulemaking (NPRM), which provides schools with a framework for developing eligibility criteria for students who seek participation in athletic opportunities. The proposed framework allows schools to create their own participation policies.

The proposed regulation would be added to section 106.41(b)(2) and states:

If a recipient adopts or applies sex-related criteria that would limit or deny a student’s eligibility to participate on a male or female team consistent with their gender identity, such criteria must, for each sport, level of competition, and grade or education level: (i) be substantially related to the achievement of an important educational objective, and (ii) minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.

According to the DOE, the proposed regulation would not permit schools to adopt or apply a “one-size-fits-all policy” banning

transgender students from participating on teams consistent with their gender identity. The DOE explains that this approach would allow schools flexibility to develop team eligibility criteria that ensure competition fairness or prevent sports-related injury, for example. The requirements would also have to account for the sport, level of competition, and grade or education level to which they apply. Additionally, the proposed regulation would not include a presumption to disapprove of transgender students or a desire to harm a particular student.

When applied to elementary schools, the DOE expects the proposed regulation will allow students to participate in school sports teams consistent with their gender identity. Moreover, the proposed regulation would make it difficult for a school to justify excluding students following elementary school from participating in teams consistent with their gender identity. For older students at the high school and college level, sexrelated criteria that limit the participation of some transgender students may be permitted when they enable the school to achieve an important educational objective, such as fairness in competition, and meet the proposed regulation’s other requirements.

The DOE’s proposed changes will be open for public comment for 30 days from publication.

business & Facilities

LEED Green Construction: What Is It And Is It Right For Your District?

As K-12 and community college districts plan for new construction or renovation projects on campus, or for upgrades to existing air, energy, water, or other systems in campus buildings, districts should consider whether LEED (Leadership in Energy and Environmental Design) Certification is right for them. LEED, which was developed by the U.S. Green Building Council (USGBC), is the world’s most extensively used green building rating system.

To achieve LEED Certification, a district, in consultation with its project team, first needs to assess its energy, efficiency, and sustainability goals, and then develop and apply strategies to achieve those goals in the following LEED categories:

• Integrative Process: Promotes reaching across disciplines to incorporate diverse team members during the pre-design period.

• Energy: Focuses on reducing energy demand through efficiency, then rewards renewable energy.

• Water: Addresses indoor use, outdoor use, specialized uses and whole-building-level water metering.

• Materials and Waste: Encourages using sustainable building materials and reducing waste and includes a special focus on usage, life-cycle and transparency.

• Location and Transportation: Includes an emphasis on advanced performance metrics to reward projects within relatively dense areas, near diverse uses, with access to a variety of transportation options, or on sites with development constraints.

• Sustainable Sites: Rewards decisions about the environment surrounding the building, and emphasizes the vital relationships among buildings, ecosystems and ecosystem services.

• Health and Human Experience: Focuses on providing high-quality indoor environments that enhance productivity, decrease absenteeism and improve the building’s value.

• Innovation: Recognizes innovative building features and sustainable building practices and strategies.

• Regional Impacts: Encourages project teams to focus on their local environmental priorities.

Applying strategies in the above LEED categories earns the project points, and the number of points the project earns determines whether the project achieves LEED Certification and, if so, the LEED Certification rating level (i.e., Platinum, Gold, Silver, or Certified).

The USGBC, and many other organizations and agencies promote the many benefits of being LEED Certified, including:

• Reducing environmental impacts and associated costs;

• Improving indoor air quality, including reducing allergens and respiratory irritants that can cause asthma and respiratory allergies;

• Using fewer resources and minimizing waste;

• Reducing energy and water use, which reduces utility costs;

• Reducing operating costs;

• Promoting environmental and sustainability education and literacy for students;

• Obtaining third party verification that a project will truly save the district energy, water, and other resources;

• Increasing daylight into indoor spaces, which can lead to increased productivity among students and employees;

• Eliminating the use of harmful chemicals in paints and other finishings;

• Reducing pollution and harmful emissions and improving outdoor air quality;

• Engaging in construction, renovation, and/or upgrades in a manner consistent with the district’s mission, philosophy, and core values;

• Sending a message to the community that the district is dedicated to sustainability and reducing harmful environmental impacts, which can promote positive public relations; and

• Potentially qualifying for tax or other incentives related to various green elements that may be included in the project.

Possible drawbacks of LEED Certification include that it may lengthen the planning stages and cost

of the project, and the fees associated with just the LEED registration and certification process.

Another consideration for districts that are analyzing whether LEED is right for them is that California has its own green building standards code that applies to the construction of new buildings or portions of new buildings and additions and alterations to existing buildings in the state. This green building standards code, commonly referred to as “CalGreen” (Part 11 of Title 24 of the California Code of Regulations), has similar goals and benefits to those of LEED, including reducing greenhouse gas emissions from buildings, promoting environmentally responsible, costeffective, and healthier places to live and work, and reducing energy and water consumption. Districts, therefore, should consider whether their sustainability, environmental,

energy, and other green building goals can be met through CalGreen alone, or whether the additional step of LEED Certification is right for them.

The benefits of being LEED Certified can be significant, and carefully considering whether this step is right for your district is recommended whenever construction, renovation, or system upgrades are on the horizon.

LCW Partner, Christopher Fallon, is a LEED Green Associate, meaning he has been accredited by Green Business Certification Inc. (GBCI) as a professional with extensive knowledge of green building practices, construction, and operations. Chris is available to provide advice and counsel to districts contemplating LEED Certification.

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ON-DEMAND TRAINING

Offering A Brand New On-Demand Class!

Public Service: Understanding the Roles and Responsibilities of Public Employees

This three-hour presentation is designed to provide an overview of what it means to be a public employee, the important role of a public servant and how to succeed in public service. The presentation will cover the following issues:

• The difference between public vs. private sector employment

• The responsibilities and role of a public employee

• Common labor laws for public employees

• Ethical obligations of public servants

• Efficient use of public resources

• Providing customer service

• Creating and maintaining a work environment of respect, dignity, and integrity for the citizens we serve

Who Should Attend?

Any and all public employees, including entry-level employees, general and lead workers, supervisors and managers. This workshop is also encouraged for any level of employee who is new to the public sector or who would benefit from a refresher workshop.

For more information, visit our website here!

firm victorY

LCW Attorneys Win Early Dismissal Of Fire Captain’s Case For Retaliation And Age Discrimination.

LCW Partners Jennifer Rosner and Joung Yim and Associates Marek Pienkos and Cara Strike succeeded on a City’s motion for summary judgment against a fire captain.

A City fire captain voluntarily participated in the unpaid Search and Rescue program. His lawsuit claimed that after he reported that the fire chief and battalion chief had allegedly misused funds, the City “demoted him” from Search and Rescue Coordinator to Search and Rescue Program Advisor, and that his Coordinator position was given to a much younger person. He also alleged he received a substandard performance evaluation.

LCW convinced the court that the City had not taken any adverse employment action, and therefore the fire captain’s claims for retaliation and discrimination lacked merit. First, the position he was allegedly “demoted” from was a voluntary, unpaid position and had no bearing on his actual employment, salary, or benefits. Second, the fire captain did not receive a substandard performance rating. He had been rated as “Standard” in all but three categories, in which he was rated “Above Standard.” LCW further showed that a rating of “Standard” meant “meeting or exceeding expectations” and these ratings were consistent with the fire captain’s performance evaluations from the prior 10 years.

The court rejected the fire captain’s speculative argument that the “demotion” damaged his reputation and would result in future earnings loss. Because the fire captain offered no evidence to support this speculation, the court found no reasonable trier of fact could find that his future career prospects had been affected.

Therefore, the court dismissed all claims.

LCW In The News

To view these articles and the most recent attorney-authored articles, please visit: www.lcwlegal.com/news

• Recently published in Benefits Magazine, LCW Senior Counsel Stephanie Lowe writes about the types of paid and unpaid leave options that employees may use to cover parental leave and discusses how employers may help employees understand and access these options.

• LCW Partner Shelline Bennett discussed AB 2188, which prevents employers from penalizing or firing an employee who uses marijuana on their own time. “The current drug testing that employers use are primarily drug tests that test for non-psychoactive cannabis metabolites,” Bennett said, adding that the current drug tests most employers have are prohibited by this law. “You have to be able to test for current impairment- THC and that's still being fine-tuned by the pharmaceutical companies."

• Recently published in the Fresno Business Journal, OC Register, The Mercury News, LA Daily News, San Gabriel Valley Tribune, and on SiliconValley.com, LCW Partner Shelline Bennett speaks on Assembly Bill 2188, which will go into effect on January 1, 2024. This legislation makes it unlawful for employers to discriminate against a person in hiring, terminating, or placing any term or condition of employment based upon the use of cannabis off the job and outside the workplace.

No Liability For Supervisor’s Off-Duty Sexting.

Hanin Atalla and Erik Lund met in fall of 2017, when Atalla shadowed Lund at Rite Aid during her pharmacy school rotations. When Atalla’s rotation at Rite Aid ended, she attended a celebratory dinner with Lund and his wife and the two kept in touch. Atalla later began work at Rite Aid as a graduate intern and then hourly staff pharmacist; Lund was her supervisor. Atalla and Lund became close friends, celebrated a Friendsgiving, joked regularly, and frequently went to lunch. They texted on their personal cell phones about a range of personal matters, including travel and vacations, exercise, food, weight loss, restaurants and getting together for meals, family and relatives, birthdays, fashion, drinking and alcohol, work issues, their respective spouses, pets, and social media. They also dined together as couples with their spouses, including once for Atalla’s birthday.

Approximately one month after Atalla’s birthday, while Atalla was at home and Lund was at a hotel for personal business, Lund began texting Atalla on their personal cell phones about the alcohol he was preparing to drink at the hotel. Shortly thereafter, Lund texted her a “Live Photo” of him masturbating, followed by a text that said, “I am so drunk right now.” He then texted, “Meant to send to wifey,” to which Atalla responded, “It’s ok, I deleted it before I end up in a divorce.” Lund then sent several more texts stating, “Both of us” and “Race to the bottom” accompanied by a photo of his penis. Atalla texted, “Erik, stop please,” to which he replied, “You are right.” The exchange ended.

Rite Aid promptly fired Lund and Atalla said she would not be returning to work. She filed a claim for violation of the Fair Employment and Housing Act (FEHA) for sexual harassment, failure to prevent sexual harassment, and hostile work environment, among other things. The trial court granted Rite Aid’s motion for summary judgment, and Atalla appealed.

The California Court of Appeal affirmed the trial court because Atalla had not raised a triable issue of material fact that Lund was acting in the capacity of a supervisor in during the text exchange. Rather, the Court agreed with the trial court and Rite Aid that Lund and Atalla had an extensive texting relationship that predated her employment, the exchange occurred outside the workplace and outside of work hours, and the exchange arose from their friendship (yet also ended it). Moreover, Atalla admitted that she and Lund were friends before she worked at Rite Aid and their friendship was not connected to her work at Rite Aid.

Because Atalla could not make the fundamental showing that Lund was acting in a supervisorial capacity, the Court affirmed the trial court’s ruling and dismissed the case against.

Atalla v. Rite Aid, 2023 WL 2521909 (Cal. Ct. Appeal).

Note:

Texting and drinking do not mix. This supervisor lost both his job and a friend. In addition, he could have been personally liable for damages had he been texting in his capacity as a supervisor.

Disability

Employee Defeats Summary Judgement Due To Evidence Of Discrimination In Lay Off Decision.

In June 1999, Kaiser Foundation Hospitals hired Suchin Lin as a data management associate. From 1999 to 2016, Lin was promoted or transferred several times and consistently received positive performance evaluations. In May 2017, Lin was transferred to another position. She received an overall rating of “successful performance” in her first year in that position. This was the same overall rating as her four, more experienced teammates in the same department.

Later in 2018, Lin again received a positive performance evaluation. But Lin was placed on a lay-off list in December 2018, along with 30 others.

On January 7, 2019, Lin fell in her workplace and injured her left shoulder. That same day, a doctor placed Lin on modified duty through January 11. This modified duty was later extended through March 25. On January 19, 2019, Lin’s supervisor Sridhar Manne discussed Lin’s performance with human resources and specifically discussed that Lin’s slower performance was possibly due to modified duty.

While Lin was dealing with her injury, Manne, his supervisor Douglas Monroe, and department head Wilson Henriquez were attempting to figure out who to lay off. In Janaury 2019 Henriquez asked Manne to rate his five employees on a scale of one to four in five different categories. Manne gave Lin a cumulative score of nine out of 20. The rest of Lin’s teammates received a score of 16 or above.

In February 2019, Manne met with Lin to discuss her performance. Manne stated that Lin’s “unavailability” had forced her teammates to complete her tasks and that Lin needed to work faster in light of her absences due to physical therapy appointments. He also pressured her to work unpaid overtime. Soon thereafter, Lin was placed

on medical leave through May 19. On April 24, Lin was notified that she would be laid off effective June 23, along with 16 other employees. Lin promptly sued Kaiser for disability discrimination.

Courts review Fair Employment and Housing Act (FEHA) disability discrimination claims under the McDonnell Douglas test. This test requires that the employee establish a prima facie case of discrimination: 1) the employee was a member of a protected class; 2) she was performing competently in the position she held; 3) the employer took an adverse employment action such as termination; and 4) some other circumstance suggests the employer acted on a discriminatory motive. The burden then shifts to the employer to produce admissible evidence of one or more legitimate, nondiscriminatory reasons for its adverse employment action. Finally, the burden shifts back to the employee “to attack the employer’s proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive.”

Kaiser moved for summary judgment and focused on its burden to show legitimate, non-discriminatory reasons for the layoff. Kaiser claimed that because Henriquez had made the decision to eliminate Lin’s position in December 2018, before Lin became disabled, there was no discriminatory animus. Lin opposed this motion by alleging that the initial decision to lay her off was not a final decision, as evidenced by the fact that the lay off list was gradually reduced from 31 employees to 17. She also argued that her ultimate termination was a result of Manne’s ratings, which only became negative after her disability and her request for accommodations.

The trial court agreed with Kaiser, and granted summary judgment. Lin appealed to the California Court of Appeal. The appellate court examined whether: 1) Kaiser’s December 2018 selection of Lin for the layoff list was tentative, or final; and 2) Kaiser’s ultimate decision to keep Lin on the layoff list and to terminate her employment was based, at least in substantial part, on Lin’s disability.

The Court of Appeal found that Kaiser’s initial list was tentative because of its changing nature. In addition, despite that Henriquez did not display any discriminatory animus, he relied upon Manne’s evaluations, which did carry discriminatory animus as shown by Manne’s conversation with human resources and the timing of the negative evaluations. The Court concluded that a reasonable jury could find that the negative evaluations Lin had received and her ultimate termination were substantially motivated by her disability. The Court of Appeal overturned the grant of summary judgment and allowed the case to go to trial.

Lin v. Kaiser Foundation Hospitals, 88 Cal.App.5th 712 (2023).

Note:

This case illustrates: 1) how a supervisor’s resentment toward an employee’s need for accommodation provided evidence of disability discrimination; and 2) that a higher-level manager must ensure a lower-level manager’s evaluations are legitimate and non-discriminatory in making a layoff decision. All supervisors must be trained that the law requires good faith in both the disability accommodation process and in the implementation of accommodations.

The LCW Labor Relations Certification Program is designed for labor relations and human resources professionals who work in public sector agencies. It is designed for both those new to the field as well as experienced practitioners seeking to hone their skills. Participants may take one or all of the classes, in any order. Take all of the classes to earn your certificate and receive 6 hours of HRCI credit per course!

Benefits of Certification to the Participant:

• Increase knowledge in all areas of Labor Relations

• Increase your value to your agency

• Increase respect and recognition in the field

• Increase opportunity for upward mobility

• Increase marketability and ability to compete in the job market

• Increase professional credibility

Benefits of Certification to the Agency:

• Increase the level of competency of the individual

• Encourage and improve job performance

• Acknowledge an individual who has developed a high level of professionalism

• Use as an aid for retention and recruitment

The use of this official seal confirms that this Activity has met HR Certification Institute’s® (HRCI®) criteria for recertification credit pre-approval.

Join our upcoming HRCI Certified - Labor Relations Certification Program Workshops:

1. May 18 & 25, 2023 - The Public Employment Relations Board (PERB) Academy 2. June 15 & 22, 2023 - Trends & Topics at the Table 3. July 20 & 27, 2023 - Bargaining Over Benefits

Visit our website: www.lcwlegal.com/lrcp

IRS Expands The E-Filing Requirement For 2024.

By: Stephanie J. Lowe

The Department of the Treasury and the Internal Revenue Service issued final regulations amending the rules for filing IRS returns electronically. The final regulations set new, lower thresholds for when employers are required to e-file, and thus reduce opportunities to file by paper. The final regulations go into effect for filings due in 2024.

Applicable Large Employers, as defined by the Affordable Care Act, are required to file Forms 1094-C and 1095-C to provide the IRS with information about health care offered to employees. Under the current regulations, employers are required to electronically file Forms 1094-C and 1095-C if they are filing 250 or more of these returns. The new final regulations drastically reduce the threshold number to just 10 returns in a calendar year.

Corner Did You Know?

The final regulations also change the method of counting the number of returns. Whereas, the current regulations apply the 250-return threshold separately to each type of information return, the new final regulations combine all types of returns when counting whether the employer meets the 10-return threshold. An employer must count the total number of all types of returns it files with the IRS for a particular tax year, which include, but is not limited to, the number of Form 1094-C, Form 1095-C, Form W-2, Form 1099, Form 940, and Form 945.

The impact of these changes is that nearly all public agencies will need to file returns electronically with the IRS. Only very small employers will still have the option to file by paper. According to the IRS, there has been tremendous growth in the use of e-filing in recent years and the IRS would like to reduce the volume and associated costs and burdens of paper filings. The final regulations carve out a hardship waiver for employers that would experience hardship in complying with the e-filing requirements.

Whether you are looking to impress your colleagues or just want to learn more about the law, LCW has your back! Use and share these fun legal facts about various topics in labor and employment law.

• The Board of Governors has declared April as “California Community Colleges” month, and many colleges have planned various events to celebrate, including meetings with legislative bodies and neighboring high schools.

• A threat of litigation or continued threats of litigation are not sufficient to receive a Workplace Restraining Order. Instead, there must be evidence of actual unlawful violence or a credible threat of violence that would put a reasonable person in fear for the safety of self and/or immediate family. (CCP Section 527.8.)

LCW has four community college district consortiums across the State! Consortium members enjoy access to quality training throughout the year, discounts on other LCW products and events, and unlimited, complimentary telephone consultation with an LCW public education attorney on matters relating to employment and education law questions (including questions involving governance, business, facilities, and student matters!). We’ve outlined a recent consortium call and the provided answer below. Client confidentiality is paramount to us; we change and omit details in the ERC Call of the Month.

Question:

We have a non-tenure track faculty member who was hired as a “temporary” employee under categorical funds that sunset June 30, 2023. Are we required to go through the lay-off process prior for the temporary categorical employee?

Answer:

No, you are not required to go through the layoff process for temporary categorical employees. The District can hire categorical employees under Education Code section 87470. The District must give the employee a written employment notice stating the temporary nature of their employment, their salary, and the length of employment before they start work, and then annually after that.

If District hired this employee properly and gave them the proper notice, the District can release the employee at the end of the program on June 30, 2023 without going through the layoff process or providing them a March 15 notice.

However, if the District plans to terminate the employee for some reason other than the end of the program or the end of the funding or to terminate them before the June 30, 2023 sunset date, then the employee would be treated like a probationary employee and must be given a March 15 notice.

Liebert Cassidy Whitmore