Education Matters: December 2022

Education Matters

Copyright © 2022 Requests for permission to reproduce all or part of this publication should be addressed to Cynthia Weldon, Director of Marketing and Training at 310.981.2000. Cover Photo: Attributed to pexels.com Education Matters is published monthly for the benefit of the clients of Liebert Cassidy Whitmore. The information in Education Matters should not be acted on without professional advice. To contact us, please call 310.981.2000, 415.512.3000, 559.256.7800, 916.584.7000 or 619.481.5900 or e-mail info@lcwlegal.com.

COVID-19

California Court Of Appeal Affirms Ruling That School District May Not Require COVID-19 Vaccine For Students.

On November 22, 2022, a California Court of Appeal affirmed that state law prohibited the San Diego Unified School District (SDUSD) from mandating student COVID-19 vaccinations. The case has statewide implications for public schools.

SDUSD adopted a COVID-19 vaccine mandate for students in September 2021. It required vaccination of students 16 and older in order to attend school in person and to participate in extracurricular activities. SDUSD involuntarily placed unvaccinated students on independent study.

An organization called Let Them Choose, and separately a student enrolled in the District, brought suit. They asserted that SDUSD lacked the authority to require students to receive COVID-19 vaccinations as a condition of attending school because state law “occupied the field.” That is, state law set out the only mandatory vaccinations required for admission and preempted additional vaccinations. (Health and Safety Code section 120335). Absent the Legislature adding a COVID-19 vaccination to the list of mandatory student vaccinations, or the State Department of Public Health exercising its authority to add a new vaccination, a COVID-19 vaccine could not be required. A lower court agreed and SDUSD appealed.

The court first considered the statutory structure requiring mandatory vaccinations for attendance in California schools. Health and Safety Code section 120335 states in part: “The governing authority shall not unconditionally admit any person as a pupil of any private or public elementary or secondary school, child care center, day nursery, nursery school, family day care home, or development center, unless, prior to his or her first admission to that institution, he or she has been fully immunized.”

The statute then lists 10 required vaccinations. COVID-19 is not one of them. The court noted that in 2015, when considering whether to ban the personal beliefs exemption for student vaccinations, the Legislature deliberated whether mandatory vaccinations should be determined at a local level or on a statewide basis. It decided to impose a statewide standard. As a result, any position that expanded or contracted the statewide vaccination requirement would be invalid. The court explained that students who have received the mandatory vaccinations set out by statute “are entitled to attend California schools, and the ‘governing authority’ is not permitted to add its own vaccination mandates.”

The court also reviewed the State Department of Public Health regulation interpreting the mandatory vaccination statutes. That regulation states in part: “A school or pre-kindergarten facility shall unconditionally admit or allow continued attendance to any pupil age 18 months or older whose parent or guardian has provided documentation” of each immunization required for their age or grade. (17 CFR section 6025). The court determined that this regulation, like the related statute, prohibited a deviation from the immunizations set out by the Legislature.

SDUSD could not, therefore, require students who met the statutory vaccination requirements to be vaccinated for COVID-19 as a condition of attending school in person and participating in extracurricular activities.

Note:

This case is limited to COVID-19 vaccination requirements for students. The ability of employers to implement COVID-19 vaccination requirements for employees is covered by separate federal and state guidance.

Join us at LCW’s 2023 In-Person Public Sector Employment Law Conference!

We're thrilled to announce that registration is now open for the 24th Annual LCW Conference taking place March 16 - 17, 2023. After a couple of years of Zoom meetings and virtual hangouts, we're looking forward to seeing you in-person for the 2023 LCW Conference in San Diego!

The LCW Conference is California's premier public sector employment and labor relations educational event. Our speakers are California labor relations and employment law attorneys who have dedicated their careers to representing and supporting California's cities, counties, special districts, public safety agencies and public educational institutions.

When: March 16 - 17, 2023 Where: Hilton San Diego 1 Park Boulevard San Diego, CA 92101

2023 LCW Conference attendees will gain access to:

• Top-notch Employment and Labor Relations Presentations. As always, the LCW Conference will offer the best and most timely information on California employment and labor relations topics available presented by our expert speakers.

• MCLE, HRCI and POST Credit. Do you need MCLE, HRCI, or POST credit? Don't worry, we've got you covered!

• Fun Activities. It wouldn't be the LCW Conference with some fun activities mixed in! We're creating exciting ways for attendees to decompress and have some fun. Stay tuned!

REGISTER HERE.

We are also excited to announce two Pre-Conference Sessions!*

* Please note that you must register for a pre-conference session separately from the LCW Conference.

Costing Labor Contracts

March 15, 2023

The keys to successful negotiations include planning and costing. Just like planning a vacation, the amount of time and effort you put into planning and costing can determine the success of the trip. Costing contract proposals is similar to costing excursions on a vacation – they all sound like a good idea but can we afford them? Join us at this workshop to learn the importance of costing and the methods you can use to make costing easy. Participants will not only be provided with the tools to cost proposals, but will engage in interactive exercises where they set up an MOU Master Spreadsheet and proposals to cost. Bring your laptop and your Excel skills.

This workshop is our LCW Conference Pre-Conference session and is also part of our Labor Relations Certificate program.

We’ve added Bonus Content, since it is also our pre-conference session: CompensationSurveys&CollectiveBargaining!

As a bonus to this year’s pre-conference workshop, additional information on the development, impact, and usefulness of compensation surveys in collective bargaining will be highlighted and shared with attendees!

Register on our website here.

Human Resources Bootcamp

March 15, 2023

Whether you are new to public sector labor and employment relations, or an experienced practitioner, this pre-conference session ensures that you are up to date on the most significant legal updates and fundamental issues facing public sector Human Resource professionals, including:

Legal Tune up Leaves Disability Discipline Performance Management and Discipline

We hope you will join us for this informative, interactive day designed to help you learn and hone your knowledge and skills so that you can operate at peak efficiency in tackling the HR challenges ahead.

Register on our website here.

employee discipline

Assembly Bill 2413 – Prohibits Non-Merit Based School Districts And Community College Districts From Taking Certain Disciplinary Action Against A Classified Employee’s Pay Prior To The Hearing On The Charges Except In Limited

Situations.

On September 30, 2022, Governor Newsom signed Assembly Bill (AB) 2413. The bill impacts personnel management of the classified service employed by school districts and community college districts. The changes in the bill take effect January 1, 2023 unless the provisions are in conflict with a collective bargaining agreement signed before January 1, 2023. AB 2413 amends Education Code section 45113 applicable to school districts and Education Code section 88013 applicable to community college districts.

This bill does not apply to districts with a merit system, and only applies to districts that have not adopted the merit system.

The bill amends existing law to prohibit a district from taking the following disciplinary action against a permanent classified employee who has timely requested a hearing on charges against them, and a decision on the disciplinary appeal has not been rendered: suspension without pay, suspension with a reduction in pay, demotion with a reduction in pay or termination. There are two exceptions to this prohibition:

1. A district may take such disciplinary action before a decision in the hearing is rendered if the governing board or an impartial third-party hearing officer provided pursuant to a collective bargaining agreement finds that at the time discipline was imposed at the conclusion of a Skelly conference the employer demonstrated by a preponderance of the evidence that the employee engaged in criminal conduct, misconduct that presents a risk of harm to pupils, students, staff, or property or committed habitual violations of the district’s policies or regulations; or

2. A district may stop a permanent employee’s pay 30 days after the date the employee requested the hearing, if a hearing on the charges will be conducted by an impartial third-party hearing officer or the governing board pursuant to the terms of a collective bargaining agreement.

Districts with collective bargaining agreements that are in conflict with AB 2413 and that were entered into before January 1, 2023 do not have to comply with AB 2413 until the expiration or renewal of the collective bargaining agreement.

Districts that have not adopted a merit system should review their collective bargaining agreements to ensure compliance with AB 2413, which takes effect January 1, 2023.

boardvacancies

Attorney General Releases Opinion On Filling Vacancies

Before End Of Term.

The Education Code establishes a system governing elections of trustees to school boards. Although the Education Code provides a general process for filling vacancies on school boards, it does not have a specific procedure for filling vacancies that occur after a new districting system has been adopted, but before the end of a term that was governed by the old system.

In Opinion Number 22-502, the Office of the Attorney General addressed two questions related to filling vacancies on school boards before the end of a term. The first question presented was: “Where a school district changes from at-large elections of board trustees to bytrustee area elections (in which the district is divided into trustee areas, and trustees must live within specific trustee areas), and a vacancy arises in a seat held by a member who was elected at-large, do the new by-trustee areas apply in filling the vacancy?”

The Attorney General concluded that where a district has recently adopted by-trustee area elections, a vacancy should be filled according to the old boundaries until the next regular election for that term. In reaching this conclusion, the Attorney General examined Education Code sections 5021 and 5091, however these provisions do not state whether old boundaries or new boundaries should apply. The Attorney General then examined its own prior opinions on similar issues and concluded that the boundary rules that applied at the inception of a term are meant to continue for the duration of that term, even if the tenure of the term is interrupted by vacancy and a new incumbent.

The second question presented was: “Where a school district has revised the boundaries of its trustee areas following the decennial census, do the revised boundaries apply if a vacancy occurs during the term of a governing board member elected prior to revision of the boundaries?”

The Attorney General concluded that the boundaries in effect at the time of the previous election is used to determine eligibility to fill a vacancy for that seat. In the absence of specific

guidance from the Education Code, the Attorney General examined the legislative intent behind Education 5019.5 and 5091 and reasoned that the provisions demonstrate that the regular pattern of four-year terms should not be disrupted due to a vacancy. Therefore, the Attorney General concluded that where a school district governing board revises the boundaries of its trustee areas following the decennial census, the boundaries in effect at the time of the previous election should be used to determine eligibility to fill a vacancy occurring before the next regular election for that office.

Attorney General’s Opinion No. 22-502 (October 27, 2022).

new to the Firm!

Victor D. Gonzalez, an associate in the Los Angeles office, provides representation and counsel to clients in all matters pertaining to labor and employment law. Prior to joining LCW, Victor was an Agency Attorney at The New York City Commission on Human Rights.

Anthony Co, an associate in the Fresno office, advises public agency clientele on all matters pertaining to employment and labor. Anthony comes to LCW after gaining employment law experience through his internship at the Equal Employment Opportunity Commission, where he investigated claims at different points in the charge process.

Morgan J. Johnson, an associate in the Fresno office, focuses his practice on matters pertaining to employment, education, and labor law for public agencies. Prior to joining LCW, Morgan gained legal expertise through his time at a nonprofit where he conducted legal research, prepared legal memorandum, and drafted motions on labor union free speech issues.

Ashlyn Marquez, a Labor Relations Consultant in the San Francisco office, has dedicated her career to providing labor law advice and counsel to public and private employers. As an expert in labor relations, she not only supports in the development of labor proposals, bargaining strategies, and personnel policies but also regularly conducts complex workplace investigations.

Are you one of the many public agencies looking to address payroll processing issues through a payroll system upgrade? Or perhaps your agency just completed transitioning to a new system and are looking to ensure correct set up? Join Lisa Charbonneau, one of LCW’s FLSA specialists, for this one-hour webinar, which will go over some of the most common FLSA compliance problems with automated payroll systems, including overtime calculations, timely payment of compensation, alternative work schedules, work periods, and rounding / de minimis time. The webinar will also discuss best practices to ensure FLSA compliant automated payroll processing and how to self-audit for FLSA compliance.

Who Should Attend?

Finance/Payroll, IT, Human Resources, and Legal staff responsible for payroll systems and compliance with the FLSA.

Note: this webinar is geared toward the correct payment of non-exempt, overtimeeligible employees. Register here.

title 5

California Community Colleges Board Of Governors Release Revisions To

Title 5 Of The California Code Of Regulations.

In late fall of this year, the Board of Governors of the California Community Colleges released revised regulations adopted and filed with the Secretary of State. The revised regulations can be found on the California Community Colleges website under the “Regulations Adopted and Filed with Secretary of State” section. LCW previously released a special bulletin on the new Title 5 regulations related to Campus Climate Public Safety. The updates to the Title 5 regulations are summarized below.

1. Equal Employment Opportunity Plans

Revisions to Title 5 of the California Code of Regulations related to Equal Employment Opportunity (EEO) Programs, found in Sections 53000 through 53033, took effect on October 20, 2022 and apply to all community college districts.

This summary reviews and explains the most notable revisions to these regulations, including changes to the process for adopting and revising an EEO Plan; job announcements, screening, and selection procedures; and, EEO Plan components.

A. Adoption and Revision of EEO Plans

The Revisions to Title 5 contain a number of changes to how community college districts must adopt, review, and publish their EEO plans, as well as to what elements an EEO plan must contain. For example, a district’s governing board must review and adopt the district’s EEO plan at a regular meeting, and it must be “agendized as a separate action item, and not part of the consent agenda.” (Cal. Code Regs., tit. 5, § 53003, subd. (a)(2) [hereafter, “Section” and applicable provision].) A district must also submit its EEO plan to the Chancellor’s Office at least 90 days prior to its adoption and present any comments from the Chancellor’s Office to its governing board prior to adoption. (Section 53003(a)(4).) The regulations also

now require that districts post a copy of their EEO plan on its website. (Section 53003(d).)

Although EEO plans still cover a 3-year period, a district must now review its plan annually. (Section 53003(a)(3), (b).) This annual review must include assessment of the district’s “progress toward meeting EEO program goals.” (Section 53003(b).) And, if the “district has not met the program goals described in the EEO plan,” then it must “adopt a revised EEO plan that specifies the efforts it will employ to meet those goals.”

B. Pre-hiring, Screening, and Hiring for Jobs

The Title 5 revisions also codify requirements around certain pre-hiring, screening and hiring practices. For example, job announcements must now include, where applicable, “the possibility of meeting minimum qualifications through equivalency.” (Section 53022.)

Further, the regulations require certain actions by the District around monitoring and addressing applicant demographic data. As before, districts must first screen all initial applications for a position to determine which candidates satisfy the job specifications; those candidates that meet the specifications form the “qualified applicant pool.” The composition of the qualified applicant pool must still “be reviewed and compared to the initial applicant pool.” (Section 53023(b) & (d).)

If a district’s EEO Officer determines “that the composition of the qualified applicant pool may have been influenced by factors that are not job related,” the district must take “appropriate action.” As before, regulations do not define the term “appropriate action.” Now, though, districts must also “conduct an initial demographic review of the qualified applicant pool” before the application deadline for each position closes, and, “[i]f the pool’s candidate diversity is not consistent with the diversity goals of a district’s EEO Plan, the district may extend the search period.” (Section 53023(c).) EEO officers must now also monitor screening and selection techniques “to

detect and address any adverse impact which does occur for the monitored group.” (Section 53024(a) (4).)

Finally, governing boards can reject candidates, order further screening, or reopen the position “where necessary to further achievement of the objectives of the EEO plan or to ensure equal employment opportunity.” (Section 53024(f).) However, consistently “declining to hire qualified candidates from monitored groups against the recommendation of screening committees” could support an inference “that the selections are not consistent with the objectives of equal employment opportunity.” This could include supporting an inference that a governing board that exercises its authority under this subsection is impermissibly considering protected class as a factor in a hiring decision. Districts should therefore consult legal counsel before governing boards exercise such authority.

C. EEO Plan Components

a. Component 2 – Definitions

The revisions to Section 53001 contain a number of changes to key terms in EEO Plans. The regulations now include individuals from different gender identities as one of the categories of individuals who should be present and respectfully treated for diversity. In the definition of “equal employment opportunity” under subdivision (c) (1), the revisions added “reliance on preferred job qualifications that do not reasonably predict job performance” as an example of a non-job related barrier to employment. The revisions also added subdivision (c)(2) and notes that equal employment opportunity involves “updating job descriptions and/or job announcements to reflect accurately the knowledge, skills and abilities of the position, including a commitment to equity.” Also notable is that the revisions updated subdivision (e) to reflect that EEO programs “should be informed by a district’s longitudinal workforce and applicant analyses.”

b. Component 3 – Policy Statement

The revisions indicate that an EEO plan’s recommended policy statement must include the “district’s commitment to an EEO plan that is grounded in the principles of diversity, equity and inclusion set forth in sections 51200 and 51201” and recognize that EEO “includes not only a process for equal opportunity in hiring, but

also practices and processes that create inclusive, respectful work environments.” (Section 53002.)

c. Component 5 – EEO Advisory Committee

Instead of an EEO Advisory Committee having diverse membership “whenever possible,” the regulations now provide that a district EEO Advisory Committee must be comprised of a diverse membership, including members from “district stakeholder groups,” such as “students, faculty, and classified staff.” (Section 53005.)

d. Component 6 – Complaints

Revisions to the regulations require that complaints that allege violations of the EEO Programs requirement may be made and investigated pursuant to the procedures for unlawful discrimination complaints under Title 5. (Section 53026.)

e. Component 8 – Training

In addition to a district’s EEO Advisory Committee, all governing board members must now receive training on the following:

• EEO Programs requirements and the requirements of state and federal nondiscrimination laws;

• Identification and elimination of bias in hiring;

• The education benefits of workforce diversity; and

• The role of the EEO Advisory Committee and drafting and implement a district EEO Plan.

(Section 53005.) LCW regularly conducts these trainings for community college districts.

f. Component 11 – Underrepresentation

Analysis

Districts must continue to conduct and assess longitudinal data gathered in order “to identify and determine the cause of any underrepresentation, of monitored groups” in prehiring, hiring, and post-hiring processes. (Section 53006(b).) The revised regulations, however, now require that when “a district determines that significant underrepresentation or adverse impact of one or more monitored groups in recruitment may be the result of non-job related factors,” it must mitigate the issue by implementing additional strategies in its EEO plan. However,

Section 53006 no longer lists specific additional measures that districts must implement, providing flexibility to assess and implement strategies appropriate for that particular institution.

g. Component 13 – Implementation of EEO Strategies and Timelines

EEO plans must now not only identify what “specific pre-hiring, hiring, and post-hiring EEO strategies” it intends to implement, but also include a timetable for when it will do so in its EEO plan. (Section 53003(c)(1-2).)

2. Annual Audits

The revised regulation related to the Annual Audit Reports Due Date is found in Title 5 of the California Code of Regulations section 59106 and took effect on October 6, 2022. The prior regulation required each district to file their annual audit reports for the preceding fiscal year with the Board of Governors, the Department of Finance, and other regulatory agencies in accordance with Section 84040.5 of the Education Code no later than December 31.

The new regulation provides that each district “shall file an audit report with the Chancellor’s Office, and with other agencies specified in the Chancellor’s Contracted District Audit Manual, for the preceding fiscal year no later than December 31, unless this date is extended by the Chancellor’s Office.”

Accordingly, community college districts should file their annual audit report with the Chancellor’s Office and with other agencies specified in the Chancellor’s Contracted District Audit Manual no later than December 31 unless that date has been extended by the Chancellor’s Office.

3. Ethnic Studies Requirement

The revised regulation related to the Ethnic Studies Requirement is found in Title 5 of the California Code of Regulations section 55063 and went into effect on October 20, 2022. Whereas the prior regulations merely required ethnic studies to be offered in one of the areas described in the General Education (GE) Requirements section (Natural Sciences, Social and Behavioral Sciences, Humanities, English Composition, and Communication and Analytical Thinking), the new regulations elevate ethnic studies to a separate GE requirement on par with those other areas.

The new regulations provide that an associate degree requires satisfactory completion of a transfer-level course (a minimum of three semester units or four quarter units) in ethnic studies. This requirement may be satisfied by obtaining a satisfactory grade in a course in ethnic studies taught in or on behalf of other departments and disciplines.

4. Excused Withdrawal and Pass-No Pass Grading Option

The revised regulation related to Excused Withdrawal and Pass-No Pass Grading Option is found in Title 5 of the California Code of Regulations sections 55000 and 55024 and took effect on October 20, 2022.

The previous regulation defined “CR” as a symbol for “credit” used to denote that a student received credit for satisfactory work in a course taken on a “credit-no-credit basis” prior to the Fall 2019 term. The revised regulation expands the definition of credit to include credit given by a different institution which uses the “credit-no credit” symbol, and “pass” in a “pass-no pass” grading system. Similarly, the revised regulation expands the definition of “NC” or “no credit” to be the equivalent to a “no pass” in a “pass-no pass” grading system.

The revised regulation also clarifies that for courses in which students are evaluated on a “pass-no pass basis,” students may elect until the last day of instruction, as established by the district, whether to be evaluated on a “pass-no pass” basis or a letter grade. This differs from the prior regulation, which had a deadline of no later than the end of the first 30 percent of the term for students to decide whether they wanted to be evaluated on a “pass-no pass” basis or a letter grade. Students now have until the last day of instruction to decide whether they want to be evaluated on a “pass-no pass” basis or a letter grade.

Section 55024 addresses the changes made to procedures for student withdrawals from courses. It provides that districts must publish student withdrawal procedures in the course catalog and that students must notify the college registrar of the withdrawal. The revised regulation includes updated timeframes and further clarification for students who withdraw from a course during the term due to military orders or extenuating circumstances. Military withdrawals and excused withdrawals for extenuating circumstances are not counted in progress probation and dismissal calculations, or toward the permitted number of withdrawals or an enrollment attempt.

5. Chancellor’s Office Information and Data Requests

The regulation related to Chancellor’s Office Information and Data Requests is found in Title 5 of the California Code of Regulations section 52012 and took effect on October 20, 2022.

Section 52012 provides that a community college district must respond to a written request for information or data within ten days from the Chancellor, which expressly invokes the requirements of this section. The regulation further provides that the Chancellor’s request shall provide a statement identifying the information or data requested, the method and format of the required response, the purpose of the request, and a point of contact in the Chancellor’s Office with knowledge of the request. If the request requires the disclosure of student records, the request must also specify the legal basis for sharing that information or data. Districts must also provide the Chancellor with current contact information to receive information and data requests made pursuant to section 52012.

6. Distance Education

The revised regulations related to Distance Education are found in Title 5 of the California Code of Regulations sections 55005, 55200, 55204, 55206, and 55208 and took effect on November 4, 2022. Community college districts are now required to provide additional information to students related to publicizing course standards for distance education courses. The new regulations also provide further clarification on instructor contact, course approval, faculty selection and workload.

Section 55200 defines “distance education” as education that uses one or more of the technologies listed within the section to deliver instruction to students who are separated from the instructor and to support “regular and substantive interaction” between the students and instructor either synchronously or asynchronously. The definition of distance education does not include correspondence courses.

Prior to students enrolling in a course, a community college must disclose whether the course is offered in a distance learning format, and if so, it must also specify: (1) all online and in-person synchronous meeting days/dates and times; (2) any required asynchronous in-person activities; (3) any required technology platforms, devices and applications; and (4) any test or assessment proctoring requirements.

Districts must also ensure that courses conducted through distance education include regular and substantive interaction between the instructor and students. Under the revised regulations, substantive interaction means engaging students in teaching, learning, and assessment, consistent with the content under discussion, and also includes at least two of the following: (1) providing direct instruction; (2) assessing or providing feedback on a student’s coursework; (3) providing information or responding to questions about the content of a course or competency; (4) facilitating a group discussion regarding the content of a course or competency; or (5) other instructional activities approved by the institution’s or program’s accrediting agency.

The regulations at section 55206 specify that if any portion of the instruction is provided through distance education, the course outline of record or an addendum to the official course outline of record shall address how course outcomes will be achieved, and how the portion of instruction delivered via distance education meets the requirement for regular and substantive interaction. The course design and materials must also be accessible to every student, including students with disabilities.

Section 55208 clarifies that instructors of distance education courses are responsible for delivering course content that meet the qualifications for instruction established by an institution’s accrediting agency.

Community college districts offering distance education courses should ensure that their course outline of record addresses the changes in the regulations.

Community College Districts Student Housing Projects –Anti-Discrimination Laws And Regulations.

While a student housing project brings many legal considerations during the planning and construction phase, community college districts must also consider numerous state and federal anti-discrimination laws that apply to the operation of student housing after construction is complete.

Title IX of the Education Amendments of 1972 (Title IX)

• Title IX requires a district that receives federal funding to operate its education programs or activities free of discrimination based on sex, including sexual harassment based on gender, sexual orientation and gender identity.

• Title IX applies to every aspect of a district’s education programs or activities, including course offerings, counseling, financial assistance, student health and insurance benefits, housing, marital and parental status of students, physical education and athletics, and employment.

• If the district receives a complaint of sexual harassment in violation of Title IX, it must follow its grievance process, which includes an investigation and hearing.

Additionally, even if a complaint is not filed, the district should contact the students impacted by sexual harassment or other sexual misconduct to discuss the availability of supportive measures tailored to assist the impacted students continue their studies and activities. A district cannot take punitive action in providing supportive measures. Rather, the district’s supportive measures may include individualized services reasonably available that are non-disciplinary and do not unreasonably burden the other party. Supportive measures may include changes to housing location or increased security and monitoring of student housing facilities.

What this means: Student housing is part of a district’s education program or activity, as described in Title IX regulations. Accordingly, a district may not, on the basis of sex, apply different rules or regulations, impose different fees or requirements, or offer different services or benefits related to housing. A district may provide separate housing on the basis of sex if such housing is both proportionate in quantity to the number of students of each sex applying for the housing and comparable in quality and cost to the student. Furthermore, a district must respond to complaints of sexual harassment in its student housing facility using its policies and procedures on gender-based harassment.

Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act)

The Clery Act requires districts to report campus crime data, support victims of violence, and publicly outline the policies and procedures they have put into place to improve campus safety. Although districts are likely already familiar with many of Clery Act requirements, districts who provide on-campus housing facilities have additional responsibilities.

Specifically, the Clery Act requires that districts that maintain on-campus housing facilities establish a missing student notification policy and related procedures. The missing residential student notification policy applies when a student lives in on-campus housing, is reported missing, or there is a concern that they have not been seen in their residence room for over 24 hours.

Additionally, the Clery Act requires districts to disseminate a public annual security report (ASR). Districts must include statistics for specific categories of crimes that occur in specific geographic areas including anywhere on-campus and in on-campus student housing.

The Clery Act also designates members of the campus community as campus security authorities (CSAs). Examples of CSAs include a dean of students who oversees student housing or a student resident advisor. When these individuals become aware of a crime that occurred on or around campus, they have an

facilities

obligation under the Clery Act to report the information to a local law enforcement agency.

What this means: Districts should adopt policies and procedures regarding missing student notifications pursuant to the Clery Act requirement. Districts should review their annual security reporting processes to ensure it accurately reflects any Clery-reportable offenses that occurred in new on-campus housing. Districts should also identify CSAs with oversight of the student housing facility and ensure they understand their reporting obligations.

California Education Code

• The California Education Code requires certain district employees to report allegations of sexual harassment to the Title IX Coordinator promptly. Specifically, the Education Code Section 62281.8 requires that “responsible employees” which include residential advisors, housing directors, coordinators, or deans, and other employees to report allegations of sexual harassment to the district’s Title IX Coordinator.

• The California Education Code requires a district that maintains any on-campus student housing facility to provide annual training to residential life student and nonstudent staff, or their equivalent, on how to handle, in a trauma-informed manner, reports made to them of sexual

harassment or sexual violence, and situations in which they are aware of sexual harassment or sexual violence, in student residential facilities.

• The California Education Code also prohibits discrimination and harassment in employment or education by any educational institution receiving or benefiting from state funds.

What this means: Districts should ensure that all student housing employees are aware of their reporting obligations and participate in compliant anti-harassment training annually. Districts should ensure that their policies and procedures regarding housing are compliant with non-discrimination requirements found in state law.

The California Fair Employment and Housing Act (FEHA)

• FEHA prohibits discrimination, harassment, and retaliation in the workplace. FEHA protects any district employee, including student workers, assigned to manage the student housing facility from the unlawful behavior of other employees, students, or vendors.

• FEHA requires that a district take all reasonable steps necessary to prevent discrimination and harassment from occurring in the workplace, including a student housing facility.

What this means: Districts must follow their policies and procedures to respond to complaints of discrimination, harassment, or retaliation from all employees.

LCW’s Business and Facilities Practice group has a deep bench of experts who can help community college districts navigate compliance with federal and state laws and regulations governing student housing, including providing required training and preparing missing student, anti-discrimination, and harassment policies and procedures.

firm victorY

Police Officer Recruits Hired

Three employees who were non-sworn recruits before September 8, 2012, and who became sworn officers in December of 2012, brought an action before CalPERS to receive the previous 3% at 50 retirement formula, instead of at 55 under the new formula.

LCW Partner Jennifer Rosner and Associate Anni Safarloo defeated three police officer recruits’ claims that they should have received a more lucrative retirement formula.

On July 1, 1941, the City contracted with CalPERS to provide benefits, including retirement benefits, for its eligible employees. In an amendment effective December 19, 2009 (2009 Amendment), the City agreed to classify its police officers as local safety members. Under the 2009 Amendment, “normal retirement age” was set as 55 for local miscellaneous members and age 50 for local safety members. The retirement formula for all local safety members was 3% at age 50, regardless of their date of employment with the City or when they were sworn.

On August 7, 2012, CalPERS and the City amended its CalPERS Contract (2012 Amendment) to divide local safety members into two groups, effective September 8, 2012. For those entering membership in the safety classification for the first time on or before September 8, “normal retirement age” was still 50. For those entering membership in the safety classification after the effective date, the normal retirement age would be 55. The retirement formulas also changed. Those entering the safety classification before September 8, would receive 3% at age 50. Those entering after the effective date, would receive 3% at age 55. The 2012 Amendment followed the MOU between the City and the POA Union, which contained similar provisions.

CalPERS found that there was no reference in the MOU to retirement benefits owed to pre-service personnel. Although the recruits were hired with the expectation they would become sworn police officers, that did not make them eligible for sworn police officer benefits at the time they were hired as unsworn recruits. Because the MOU only pertained to “current sworn police personnel”, the recruits were not entitled to sworn police benefits.

Before Effective Date Of Lower Retirement Formula, But Sworn In After, Were Not Entitled To Higher Formula.

LCW In The News

To view these articles and the most recent attorney-authored articles, please visit: www.lcwlegal.com/news • Recently published in HR News, LCW attorney Nathan Jackson writes on the legal risks of using of Artificial Intelligence in hiring practices today. He notes that "AI and other types of automated decision-making tools run the risk of screening out applicants or employees based on protected characteristics or conditions, inadvertently replicating human biases or relying on data that serves as a proxy for protected characteristics or conditions."

Coming This January!

What’s New with SB 2: Peace Officer Employment in 2023

Tuesday, January 10, 2023

10:00 am - 11:00am

Recent years have brought seismic changes to the law enforcement profession in California. In particular, Senate Bill 2, enacted in 2021, dramatically transformed and expanded the role of the Commission on Peace Officer Standards and Training (POST), which is now effectively a peace officer licensing board with the ability to decertify officers, disqualifying them from employment as a peace officer anywhere in the state (and many other states too). It also creates new internal bodies within POST with the power to review agencies’ internal affairs investigations – or conduct new investigations – and to make recommendations to the Commission regarding suspension or decertification of officers. And the bill imposes new mandates and restrictions on individual state and local law enforcement agencies.

Most of the mandates and processes set forth in SB 2 are scheduled to take effect as of January 1, 2023, and POST is currently in the process of adopting regulations to implement the new law. Experienced public safety attorney Paul Knothe will lead an informative discussion focusing on the practical steps that agencies can or must take in light of the change in the law, from the hiring process through the end of the employment relationship, and beyond.

Who Should Attend?

Police Chiefs, Public Safety Management, Captains, Internal Affairs Personnel, Public Safety Human Resources Management, Public Safety Deans, and Public Safety Attorneys. Register here.

disability

Teacher Can Proceed With Disability Discrimination Claim

After District Called Her “A Liability”

When It Revoked Her Conditional Job Offer.

In 2003, La Vonya Price had a serious stroke that left her paralyzed. After years of physical therapy and hard work, Price slightly recovered and relearned how to speak, walk, and use her body. Price still had some permanent paralysis, limited mobility, and issues lifting and grasping objects.

In 2018, Price was working as a substitute Instructional Assistant for the Victory Valley Union High School District when a full-time position opened up. Price applied and received a conditional offer of employment, contingent on her passing a physical examination, a requirement that the District required of all full time hires. Price had not been required to pass a physical to work as a substitute in the same position.

Price failed this physical examination, which a third-party medical professional administered. The District rescinded her job offer, stating that she was a “liability.”

The District also stated in a letter to Price that her failure on the physical examination disqualified her from her current position as an Instructional Assistant and any future positions with the District.

Price sued the District for several claims, including disability discrimination in violation of the Fair Employment and Housing Act (FEHA). The trial court granted the District’s motion for summary judgment and entered judgment for the District. Price timely appealed.

The FEHA prohibits an employer from refusing to hire an applicant based on the applicant’s actual or perceived physical disability. To assess Price’s FEHA discrimination claim, the California Court of Appeal used the McDonnell Douglas burdenshifting framework. Under the McDonnell Douglas test, Price had the initial burden of establishing a prima facie case of disability discrimination by showing that she: 1) had a disability or was regarded as having a disability; 2) could perform the essential duties of a job with or without reasonable accommodations; and 3) was subjected to an adverse employment action because of the disability or perceived disability.

As to the first essential element of Price's claim for disability discrimination, the Court agreed that a jury could reasonably conclude that the District regarded Price as disabled. Price failed the “physical” test during her physical examination, and the doctor concluded that Price was not “medically suitable for the position.” Based on the doctor’s report, the District rescinded Price’s job offer. From this evidence, a jury could conclude that the District regarded Price as having, or potentially having, a physical disability that limited her workrelated abilities.

Second, a triable issue of fact also existed as to whether Price could perform the essential functions of the position with or without reasonable accommodation. The District argued Price could not perform the essential functions of a special education Instructional Assistant because Price could not run after students. As a substitute Instructional Assistant, however, Price successfully performed, even though she frequently had to run after students. Moreover, the District taught special needs students in five different settings. While the students in the emotionally disturbed setting might be runners, students in other settings would not be runners. Price possibly could have been placed in three special needs settings where students do not require any physical assistance or physical supervision.

Third, the parties agreed that the revocation of Price’s job offer was an adverse employment action. The Court found that there was a triable issue of fact as to whether Price’s disability was a substantial motivating reason for the District’s decision to rescind the offer. The District determined that Price was “NOT medically suitable for the position” because of the strength and balance deficits in her right leg. According to Price, when she asked for more of an explanation about that decision, the District told her several times, “you are a liability.” Taken together, a reasonable jury could find that the District rescinded Price’s job offer because of an actual or perceived disability or potential disability.

The Court of Appeal assumed, without deciding, that the District’s legitimate reason for rescinding Price’s conditional job offer was because of the doctor’s report that found she was not medically qualified.

The Court then examined the final step in the McDonnell Douglas framework, and found that Price raised a triable dispute as to whether the District’s reason for revoking her offer was a pretext. The Court agreed with Price that the fact that the District told her “you are a liability” several times during their meeting when the District rescinded her job offer was sufficient evidence of pretext to deny the District’s motion for summary adjudication.

Price v. Victor Valley Union High Sch. Dist., 2022 WL 16845113 (Nov. 9, 2022).

Note: This is another California Court of Appeal case that has found that calling an applicant or employee a “liability” is evidence of discriminatory animus on the basis of disability.

Did You Know?

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.

• SB 874 provides that in a school district or community college district that has adopted a merit system for its employees, a permanent employee who accepts a promotion and fails to complete a probationary period revert back to their previous position. The provisions of this bill do not apply to a conflicting collective bargaining agreement entered into before January 1, 2023, until the expiration or renewal of that collective bargaining agreement.

• SB 367 requires all community college districts to provide students with educational and preventive information provided by the State Department of Public Health about opioid overdose and the use and location of opioid overdose reversal medication. This information must be provided as part of establish campus orientations.

• The California Civil Rights Department (CRD), formerly known as the DFEH, publishes a variety of informative posters, guides and fact sheets that describe California’s civil rights laws. Most California employers are required to display “California Law Prohibits Workplace Discrimination and Harassment”. Most California employers, with five or more employees, also must display three other posters: “Transgender Rights in the Workplace”; “Your Rights and Obligations as a Pregnant Employee”; “Family Care and Medical Leave and Pregnancy Disability Leave.”

The 411 On Consortiums:

Consortium Call Of The Month

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:

Must a community college district pay faculty interns hired under Education Code Section 53502? If not, can the district provide them with a stipend?

Answer:

Under the Education Code, there are no strict requirements to pay or not pay faculty interns. If the District wishes to provide a stipend, it can, however overall the program must meet the factors outlined by the California Department of Labor Standards and Enforcement and federal Department of Labor in determining whether interns/trainees should be paid as employees. These factors include whether the training is similar to a vocational school, whether the training is for the benefit of the trainees or students, and whether the employer and trainees understand the trainees are not entitled to wages for the time spent in training. Generally, providing payment to interns could raise an argument they are employees, granting them additional rights. Therefore, districts should analyze each program on a case-by-case basis.

Liebert Cassidy Whitmore