Education Matters: December 2023 by lcwlegal

December 2023

Education Matters

Table Of Contents 03

Title IX

Workers Compensation

Public Records Act

Employee Discipline

Regulatory Action

Firm Victory

Student Loans

Labor Relations

Legislation

Consortium Call Of The Month

First Amendment

Contributors: Amy Brandt Partner | San Francisco Jordan Carman Associate | Los Angeles

Eileen O’Hare Anderson Partner | Fresno Victoria M. Gómez Philips Associate | Los Angeles

Connect With Us! Copyright © 2023 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.

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Court Of Appeal Allows Award Of Attorney Fees Because University’s Decision To Suspend Student Was Arbitrary.

From November 2019 to June 2020, John Doe, a student at University of California, Davis had a consensual sexual relationship with Jane Roe, another student. In November 2019, Doe took a one-second video recording of his own face while he and Jane Roe were having sex. Roe asked Doe to delete the video, and he did. About nine months after the video incident, Roe made a formal complaint against Doe for taking the video. UC Davis investigated the complaint pursuant to Title IX. Doe initially lied to the UC Davis investigator by claiming he was just “checking his phone during sex because he was getting a notification.” Ultimately, he admitted to taking the one-second recording of himself so he could “see what he looked like during the sex act.” The investigator determined that Doe had violated UC Davis’s Sexual Violence and Sexual Harassment Policy by recording a video “depicting [a] person’s nudity or sexual acts in a place where that person has a reasonable expectation of privacy” without consent. UC Davis issued a one-year suspension, from spring 2021 through spring 2022. Doe filed an internal appeal. Dr. Sheri Atkinson, the Associate Vice Chancellor of Student Affairs, rejected the appeal but reduced the suspension to summer 2021 through spring 2022, so that Doe’s spring 2021 coursework could count towards his degree. Doe filed a petition for writ of mandate against the Regents of the University of California (Regents, which includes UC Davis) and Dr. Atkinson. His petition asked the trial court to issue a writ ordering the Regents and Dr. Atkinson to overturn his suspension. The trial court found that UC Davis’s Title IX procedure was consistent with due process standards and did not violate Doe’s right. However, it held that the suspension was “objectively unreasonable” in light of Doe’s conduct and ordered the Regents and Dr. Atkinson to overturn the suspension. The trial court said the university’s

December 2023

Title ix

rationale for imposing the one-year suspension “fell short.” The trial court pointed out that UC Davis’s policy describes factors that should influence the weight of a penalty, but none of them were present in Doe’s case. There was no evidence that Doe had captured Roe in the video, visually or audibly; no evidence that he had shared the video; no evidence that he was violent or took advantage of Roe; and no evidence that he acted with ill intent. Also, a year suspension did not protect Roe since she had already graduated. The trial court stated that the Regents can and must include more information in the administrative record of their Title IX cases to explain why they imposed a particular form of discipline and why it was not disproportionate when compared to sanctions they imposed in other cases. Dr. Atkinson removed Doe’s one-year suspension but imposed a shorter suspension from summer 2021 through fall 2021. In April 2022, Doe filed a motion stating that UC Davis had violated the trial court’s order by imposing the shorter sanction. The trail court issued an order requiring UC Davis to remove the suspension entirely. Doe then filed a motion requesting attorney fees of $142,387.48 under California Code of Civil Procedure Section 1021.5 and $7,500 under California Government Code Section 800. The trial court denied Doe’s motion for attorney fees. To receive attorney fees under Section 1021.5, the case must enforce an important right affecting the public interest. It must also confer a significant benefit on the public or a large class of people, among other requirements. The trial court ruled that Doe’s case did not confer a significant benefit on the public, because it did not correct an overarching UC Davis policy. Section 800 allows courts to award attorney fees of up to $7,000 when a party appeals an administrative determination, and the court finds that the administrative determination was arbitrary and capricious. The trial court denied Doe’s request for attorney fees under section 800 because the investigation

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was not “wholly” arbitrary and capricious. The trial court held the one-year suspension was arbitrary, but the overall disciplinary process was generally appropriate and complied with due process. Doe appealed the trial court’s denial of attorney fees. The court of appeal upheld the trial court’s denial of attorney fees under Section 1021.5. The court of appeal agreed with the trial court that Doe’s case did not significantly benefit the public. It might encourage UC colleges to impose more reasonable sanctions in Title IX case, but the court of appeal said that would only affect a small number of students, those found guilty of sexual assault or harassment. The court of appeal overturned the trial court’s denial of attorney fees under Section 800. The court of appeal held a public entity’s administrative determination does not need to be “wholly” arbitrary or capricious for a court to award attorney fees under Section 800. Rather, the administrative decision just has to be “the result of arbitrary or capricious action or conduct.” Even though some aspects of the investigation and hearing process were reasonable, the decision to suspend Doe for a year was arbitrary and lacked justification. The court of appeal remanded the matter to the trial court to reconsider whether Section 800 entitled Doe to attorney fees, and if so, how much. Doe v. Atkinson (2023) 96 Cal.App.5th 667. Note: This case highlights the importance of following policies and documenting reasoning when imposing student discipline. Colleges should also consider how a given sanction compares to sanctions imposed in other cases. If one aspect of the process lacks justification, the student may be able to obtain attorney fees under Section 800.

New Webinar!

What Employers Need to Know: An Overview of FEHA’s Provisions against Discrimination due to Cannabis Use

Wednesday, January 10, 2024 10:00 a.m. - 11:00 a.m. Register here. 4

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December 2023

new to the Firm! Margarite M. B. Sullivan, an Associate in the San Diego office, provides advice and counsel in labor and employment law matters.

Duncan H. Dohmen, an Associate in the Los Angeles office, provides litigation expertise and employment law advice and counsel to our clients.

Phil N. Bui, an Associate in the San Francisco office, provides litigation expertise to our clients.

Madeline Cline, an Associate in the San Francisco office, specializes in employment law, labor relations and litigation matters.

Allison Ferraro, an Associate in the San Francisco office, provides employment and labor law expertise to our clients.

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employee University Had Legitimate Basis For Terminating At-Will Employee And Did Not Need To State The Reasons For Termination In Writing.

After the third investigation, E&D concluded that Martin had not engaged in gender discrimination, but his conduct fell below the standard expected of an employee in a leadership position. E&D issued a Notice of Investigation Outcome which prohibited Martin from retaliating against investigation participants and requested that he exercise discretion in disclosing information from the investigation.

Jorge Martin was Director of University Communications in the Marketing and Communications Department at California State University (CSU), Northridge. Several employees filed complaints against Martin for discrimination, harassment, and retaliation.

In May 2018, the university’s student newspaper published an article about the first complaint against Martin. That same month, the second complainant authored an opinion piece about her complaint. Martin was noticeably upset by the articles and angrily discussed both the articles and the investigations with his direct reports and colleagues, many of whom had participated in the investigations.

Between March 2016 and October 2017, three separate employees made complaints that Martin had discriminated against them. The first complaint alleged racial discrimination, the second complaint alleged sexual orientation discrimination, and the third complaint alleged gender discrimination. CSU’s Equity and Diversity Department (E&D) conducted three investigations and concluded that each of the discrimination allegations were not sustained. Although the complaints of harassment and discrimination were not sustained, E&D still found fault in Martin’s conduct. In the second investigation, E&D concluded that Martin had not discriminated against the employee based on her sexual orientation, but he had made inappropriate remarks that created a hostile work environment based on gender. Martin’s direct supervisor and the Vice President of University Advancement issued him a Memorandum of Counseling. It ordered Martin to complete sensitivity training and attend management coaching sessions with Human Resources. It also said “there must be immediate and sustained changes” in Martin’s interpersonal interactions and that a failure to change could have a negative impact on his position with the university.

Later in May 2018, one of Martin’s subordinates complained that Martin’s discussions of the investigations made her uncomfortable. She said he asked her if she was on his side approximately 10 times. Martin’s supervisor interviewed employees about Martin’s conduct and found that several others had concerns or found his conduct intimidating. CSU terminated Martin in June 2018. Martin sued CSU for discrimination and harassment in violation of the Fair Employment and Housing Act (FEHA). FEHA prohibits an employer from subjecting an employee to adverse employment action based on a protected status. Martin claimed that CSU fired him based on his status as a middle-aged, light-skinned, Mexican American, heterosexual, cis-gendered man. To bring a discrimination claim under FEHA, a plaintiff must show that: (1) he was a member of a protected class, (2) he was qualified for the position or was performing competently, (3) he suffered an adverse employment action, and (4) some other circumstance suggests discriminatory motive. There must be a connection between the adverse employment action and the protected status. An employer may have a case dismissed through summary judgment by showing that it acted for a legitimate, nondiscriminatory

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reason. If the employer puts forth a legitimate basis for the adverse employment action, the plaintiff can avoid summary judgment by showing that the employer’s stated reason was a pretext for unlawful discrimination. CSU asked the trial court to dismiss the case through a motion for summary judgment. The trial court agreed, concluding that CSU had legitimate non-discriminatory reasons for terminating Martin. Martin appealed and presented multiple arguments to show that CSU’s stated reasons for terminating him were mere pretext for discrimination. First, Martin argued that CSU had not provided a consistent explanation for his termination. In particular, his termination letter did not describe why he was being terminated. The court of appeal held that no law required CSU to list the reasons for termination in an at-will employee’s termination letter. Martin’s supervisor and the Associate Vice President of HR discussed the reasons with Martin in person. Their reasons for firing him were consistent and all related to their conclusion that Martin was unable to be an effective manager. Martin then argued that the investigations did not treat him fairly. He accused CSU of not doing enough to verify the truth of employee statements against him. He also claimed the E&D investigators were biased against him because he is a man and only women worked in the E&D office. He also sought to admit evidence that, since 2011, E&D had sustained more complaints against men than against women. The court of appeal held that such arguments were insufficient to show that CSU’s legitimate reasons for firing Martin were pretext for discrimination.

December 2023

discipline not similarly situated employees, she was a temporary subordinate and he was a manager expected to show leadership. Additionally, his supervisors had already warned him not to create a toxic environment or harass or retaliate against employees who participated in the investigations. Finally, Martin argued that CSU’s commitment to diversity was evidence of pretext against him. The court of appeal disagreed and held that CSU’s general commitment to diversity did not provide sufficient insight into the motivations of his supervisor or the VP of HR, the individuals who terminated Martin. The court of appeal affirmed the trial court’s grant of summary judgment, dismissing Martin’s discrimination and harassment claims. Martin v. Board of Trustees of California State University (2023) 97 Cal.App.5th 149 [315 Cal.Rptr.3d 117]. Note: In this case, the university was able to support termination because they had extensive documentation of performance concerns and notes of what they discussed in the termination meeting. Employers should build a record to support termination and contemporaneously document performance concerns prior to termination.

Martin further argued that he was silenced and fired for discussing the investigations and news articles. However, one of the complainants had also discussed the investigation with colleagues. The court of appeal pointed out that Martin and the complainant were

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Join us at LCW’s 2024 Public Sector Employment Law Conference! We're thrilled to announce that registration is now open for the 25th Annual LCW Conference taking place February 8-9, 2024, in San Francisco! 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: February 8 -9, 2024 Where: Hyatt Regency San Francisco Five Embarcadero Center San Francisco, CA 94111 2024 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!

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December 2023

We are also excited to announce three Optional Add-on Sessions! Wednesday, February 7 9:00 a.m. - 4:00 p.m. * Please note that you must register for an optional add-on session separately from the LCW Conference.

Option 1: Costing Labor Contracts 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 also part of our Labor Relations Certificate Program.

Option 2: Investigations and Discipline in Critical Incidents

The legal and political environment in which decisions about use of force investigations and discipline must be made is very different than it was just a few years ago. Civil liability is not necessarily the predominant concern anymore. This seminar will examine issues related to the investigation of critical incidents involving officers. More specifically, this seminar discusses the issues surrounding criminal, civil and administrative investigations of these matters, particularly the administrative investigative issues. In this training, you’ll hear from experienced public safety attorneys examine best administrative practices that your agency should follow and how to evaluate issues ranging from the implications of SB 2 to SB 16 to potential criminal prosecution of officers.

Option 3: Training Academy for Workplace Investigators

The Civil Rights Department (CRD) guidelines recommends that all investigators receive a full day of investigation instruction that covers information about the law shaping investigations, recommended practices, and skillbuilding exercises. This preconference session meets these CRD guidelines and recommended best practices. Presented by two leading workplace investigators, this session includes: • When to investigate • Standards for conducting a legally compliant investigation • Investigator qualifications • What to investigate • How to investigate • Core investigative skills • Skill-building exercises

Registration:

Click here to register for the Conference AND one of the optional add-on sessions. Click here if you are ONLY interested in attending a one day optional session.

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student loans

How (And Whether) To Respond To Student Borrower’s Defense To Repayment Applications. Students who take out loans from the Department of Education may submit an application requesting that the Department discharge their federal loans if the educational institution committed certain misconduct. These applications are known as Borrower’s Defense to Repayment Applications. While the regulations authorizing these claims have been in place since 1994, the Department has received in influx of applications in recent years, which has prompted litigation from both educational intuitions and student borrowers. As the Department is processing these Applications, it is requesting educational institutions to respond to the student borrower’s allegations. Alleged Misconduct To establish a claim, the student must show the educational institution acted inappropriately in influencing the student’s decision to attend, continuing to attend, or the decision to take out the loan. The institution’s misconduct must relate to graduate employment outcomes, the intuition’s educational programs, or the institution’s finance charges. A student may also establish a claim if it can establish that the educational institution breached its contract with the student. Responding to Claims Upon receipt of a notice of application from the Department, the educational institution has 60 days to respond. The educational institution should review each borrower’s allegations individually and respond to each of the claims individually. The educational institution should review the individual borrower’s records as well as its own internal information to develop a defense. The three most recent presidential administrations – Obama Administration (2016), Trump Administration (2019), and Biden Administration (2022) have each amended the Borrower’s Defense to Repayment rule. The different versions of the rule require the Department to place a different inference on the educational institution’s non-response. Under the

initial versions, the Department would not draw an adverse inference against an educational institution that does not respond. The 2022 Rule is applicable to all applications pending or filed as of July 1, 2023 and explicitly states that the educational institution’s failure to respond means the educational institution does not contest the borrower’s claim. However, the United State Court of Appeals Fifth Circuit granted a preliminary injunction on the 2022 rule which currently prevents the Department from enforcing that rule. Under the prior versions of the Borrower’s Defense to Repayment rule, which the Department is currently enforcing, the Department will not draw an adverse inference against an educational institution that does not respond. If the Court lifts the injunction, the Department will be able to enforce the 2022 rule against any pending claims, meaning that if an educational institution did not respond to a claim that is still pending at that time, the Department may draw an adverse inference against an educational institution that did not respond. Thus, it is important for the educational institution to respond because depending on when the Department originally dispersed the loan, when the borrower submitted the application, which version of the rules are applicable and when the Department actually processes the claim, the Department may, in certain instances, presume that the educational institution’s failure to respond means the educational institution does not contest the borrower’s claim. Department’s Right to Recoup the Costs If the Department discharges a student’s loan, the Department has a right to seek “recoupment” or reimbursement from the educational institution. The Department will determine whether to engage in a separate proceeding to recoup borrower defense costs from the educational institution. The educational institution may challenge any recoupment action. During that process, the Department will send a second notification to the educational institution with the student’s financial aid application and supporting documents, and set out the Department’s rationale for its decision to discharge the loan. Upon receipt of notice that a student has submitted a Borrower’s Defense to Repayment Application or the Department is seeking to recoup the costs from an educational institution, the institution should consult with legal counsel to identify the issues, prepare a defense, and ensure the educational institution protects its interests.

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December 2023

Legislation New Laws In Effect January 1, 2024.

The start of the new year brings with it new legislation. Here are some key laws that take effect January 1, 2024 that every public education employer should be aware of: • SB 616 - This law amends California’s paid sick leave law. This applies to employees not covered by a collective bargaining agreement and provided with a minimum level of sick leave as provided by this statute. Employees who receive sick leave through frontloading or an alternative accrual method will now be entitled to 40 hours or 5 days of sick leave per year, whichever is greater. Alternatively, employees may accrue sick leave at a rate of at least 1 hour of paid sick leave for every 30 hours worked (the 1:30 accrual method). Depending on how much they work, employees on the 1:30 accrual method might not accrue 5 days of sick leave per year. The new law also changes the amount that employers can cap on sick leave accrual, use, and carry over. • SB 848 - Employees will be entitled to “Reproductive Loss Leave.” Eligible employees are entitled to five days of unpaid leave following a reproductive loss event, which includes miscarriage, failed surrogacy, stillbirth, unsuccessful assisted reproduction, or failed adoption. • AB 2188/SB 700 - This law prohibits discrimination against an employee on the basis of that employee’s offthe-job marijuana use. Employers must ensure their employment-related drug tests do not screen for nonpsychoactive cannabis metabolites. • SB 497 - This law creates a rebuttable presumption of retaliation if an employee is disciplined or discharged within 90 days of engaging in certain activity protected by the California Labor Code and California’s Equal Pay Act. The presumption of retaliation makes it easier for an employee to establish a prima facie case of retaliation. The law also expands the maximum civil penalty, from $10,000 per violation, to $10,000 per employee for each violation, for any employer found to have retaliated against a whistleblower. For more information on new laws that were signed into law this year, please see LCW’s Public Education Legislative Roundup.

New Webinar!

All Those Wage and Hour Provisions in Your MOU – How To Make Sure They Are Working For You Tuesday, January 23, 2024 10:00 a.m. - 11:00 a.m. Register here. • www.lcwlegal.com •

workers compensation Workers’ Compensation Was Employee’s Exclusive Remedy For Cycling Injuries Sustained While Leaving Work But Still On Campus. Rose Jones worked as the Director of Scholarship Opportunities at the University of California, Irvine campus. At the end of her workday, she left her office and began biking home. A section of the bike path contained a trench that the university had cordoned off with caution tape. Jones swerved to avoid the obstacle, fell off her bike, and was injured. She sued UC Irvine for maintaining a dangerous condition. UC Irvine moved to have the case dismissed through summary judgment. UC Irvine argued that Jones could only seek recovery for her injury through workers’ compensation. Under the workers’ compensation exclusivity rule, workers’ compensation is generally an employee’s sole remedy against the employer for injuries sustained in the course of employment. An employee’s commute is not usually covered by workers’ compensation. However, UC Irvine argued that Jones’s injuries were subject to workers’ compensation under the premises line rule. The premises line rule extends the course of employment until an employee leaves the employer’s premises. Jones’s injuries occurred while she was still on UC Irvine’s premises. The trial court agreed with UC Irvine and granted it’s motion for summary judgement. Jones appealed the trial court’s ruling. Jones argued that a triable issue remained as to whether the premises line rule applied to the circumstances of her accident. The court of appeal disagreed with Jones and upheld the trial court decision. The court of appeal concluded that Jones’s injuries occurred within the course of her employment, so the workers’ compensation exclusivity rule barred her claim. It made no difference that the campus was large, that UC Irvine did not dictate Jones’s means of transportation, or that Jones was leaving work rather than arriving at work. The court of appeal pointed out that there is a triable issue of whether the premises line applies when employees live on premises. However, Jones did not live on the UC Irvine campus. The court of appeal affirmed the trial court’s grant of summary judgment. Jones v. Regents of University of California (2023) 97 Cal.App.5th 502.

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Department Of Education Issues “Dear Colleague” Letter On Shared Ancestry.

On November 7, 2023, the Department of Education released a “Dear Colleague” Letter on Shared Ancestry. The letter reminds schools and colleges of their Title VI obligations in light of “a nationwide rise in reports of hate crimes and harassment, including an alarming rise in disturbing antisemitic incidents and threats to Jewish, Israeli, Muslim, Arab, and Palestinian students on college campuses and in P-12 schools.” The letter emphasizes that Title VI of the Civil Rights Act of 1964 prohibits discrimination against students and others on campus, including those who are or are perceived to be Jewish, Israeli, Muslim, Arab, or Palestinian. This includes discrimination based on ancestry or ethnic characteristics, or discrimination based on citizenship or residency in a country with a dominant religion or distinctive religious identity. The letter states that harassing conduct can be verbal or physical and need not be directed at a particular individual. Schools and colleges must take immediate and effective action to respond to harassment that creates a hostile environment.

Department Of Education Releases Fact Sheet On New Tools To Tackle Antisemitism, Islamophobia, And Related Forms Of Discrimination And Bias.

December 2023

regulatory Action The fact sheet includes information about Title VI protections. It also states that the Office of Civil Rights (OCR) is available to provide technical assistance through trainings to school communities regarding Title VI, including its application to Jewish and Muslim students and its coverage of certain forms of antisemitic and Islamophobic discrimination. The fact sheet also includes links to the Department’s Antisemitism Awareness Campaign.

The Department of Education provides further guidance on its page on Frequently Asked Questions on Race, Color, or National Origin Discrimination. This includes information on how education institutions can balance their Title VI obligations with individuals’ free speech rights. It also describes the responsibilities of school districts, colleges, and universities to address racial and national origin harassment as follows: “When an educational institution knows or reasonably should know of possible racial or national origin harassment, it must take immediate and appropriate steps to investigate or otherwise determine what occurred. If an investigation reveals that the harassment created a hostile environment, the educational institution must take prompt and effective steps reasonably calculated to end the harassment, eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects.” Note: LCW can help Community College Districts navigate the process of investigating unlawful harassment and discrimination and provide counsel on how to promptly respond to unlawful conduct.

On November 14, 2023, the Department of Education released a Fact Sheet on New Tools to Tackle Antisemitism, Islamophobia, and Related Forms of Discrimination and Bias.

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r s n o b o

i a l elat r

Prohibiting Union-Related Insignia On University Vehicles Was Unlawful.

The University of California maintained a policy that prohibited decals, stickers, or signs on all University vehicles. Eduardo Rosales was an electrician who drove an assigned University truck. He was also a trustee for and President of Teamsters, the union that represented employees in the skilled trades. Rosales put a Teamsters magnet on the bumper of his University truck. The magnet had the union insignia and the message “We are Teamster Strong!” The University had a vehicle usage policy that forbade employees from placing decals, stickers, or other signs, to University vehicles. Rosales’s supervisor directed him to remove the magnet. Teamsters filed an unfair practice charge that alleged that the University interfered with Rosales’ protected rights by implementing a policy prohibiting a skilled trades employee from placing a union insignia magnet on a University vehicle. The administrative law

judge dismissed the allegation, finding the policy did not interfere with employee protected rights. PERB disagreed. PERB found that the Teamsters showed that the University interfered with union/employee rights because the University’s ban on union magnets contradicted years of PERB precedent. In addition, the record did not show that the magnet negatively affected the University’s operations. Even though Teamster’s unfair practice charge did not allege discrimination, PERB mentioned that the University’s selective enforcement of its vehicle insignia policy was discriminatory because the University did not ask employees to remove decals and signs related to sports, music, or restaurants.

Teamsters Local 2010 v. Regents Of The University Of California, PERB Decision No. 2880-H (October 24, 2023). Note: An employer cannot lawfully target union insignia for differential treatment.

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December 2023 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!

Join our upcoming HRCI Certified - Labor Relations Certification Program Workshops: 1. January 4 & 11, 2024 - Bargaining Over Benefits 2. February 7, 2024 - Costing Labor Contracts 3. March 14 & 21, 2024 - Communication Counts!

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

Visit our website: www.lcwlegal.com/lrcp

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first amendment 16

Government-Owned Event Venue Lawfully Designated Free Expression Zones. Burt Camenzind visited the Hmong New Year Festival hoping to distribute religious tokens to attendees. The festival, a privately organized event, took place within the state-owned California Exposition and State Fair (Cal Expo) fairgrounds. The organizers had leased the fairgrounds for the event. Cal Expo police officers told Camenzind that he could distribute his tokens in designated zones, referred to as Free Speech Zones, outside the entry gates only. Camenzind nevertheless purchased a ticket, entered the festival, and began handing out the tokens before officers removed him. Camenzind sued, alleging that Cal Expo’s conduct violated the First Amendment of the U.S. Constitution and the Speech Clause of our California Constitution. The district court determined that the area outside of the fence, the parking lots and sidewalks leading up to the entry gates, constituted a public forum under the California Speech Clause. In addition, Cal Expo’s establishment of Free Expression Zones near the entry gates was a permissible regulation of the time, place, and manner of speech. Conversely, the enclosed area was not a public forum under either constitution. Finally, the court determined that the prohibition on “free speech activities” inside the enclosed area was reasonable and content-neutral, so Carmenzind’s rights were not violated. Carmenzind appealed. The Ninth Circuit Court of Appeals agreed with the district court. The Ninth Circuit found that the enclosed portion of the fairgrounds was not a traditional public forum because: it was not a public thoroughfare; when Cal Expo leased the area, the public did not have free access to it; and patrons had to generally pass through a security checkpoint and purchase a ticket to gain entry. The fact that the boundaries of the space were clearly marked and surrounded by fencing signaled that the space was not intended for the exercise of First Amendment rights. While the Ninth Circuit found that the exterior, unticketed portion of the Cal Expo was a public forum under the California Speech Clause, Cal Expo’s designation of a part of the exterior area as a Free Speech Zone was a valid regulation of speech. In a public forum, a public entity “may impose reasonable restrictions on the time, place, or manner of protected speech.” Those restrictions must be content neutral, narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication. Cal Expo’s regulation was content-neutral because space in the zones was allocated on a first-come, first-served basis. And, the zones served a substantial government interest in public safety by preventing congestion. Finally, the zones did not “burden substantially more speech than [was] necessary” to achieve the government’s public-safety interest. Camenzind v. California Expo and State Fair, 84 F.4th 1102 (9th Cir. 2023).

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December 2023

public records act Pretrial Discovery Cannot Be Used To Produce the Very Documents Sought In The Underlying CPRA Request. In May 2021, Western Resources Legal Center (Western) submitted a public records request to San Benito County for records “about or related to” the Strada Verde Project. In August 2021, the County told Western it had produced all non-privileged records. In October 2021, Western submitted a second CPRA request relating to the County’s alleged “burying” of a report regarding a site adjacent to the Strada Verde Project. The County responded that it anticipated responding on a “rolling basis” beginning November 19, 2021. Western sued, alleging the County had not provided responsive records to its second request, nor conducted a reasonable or adequate search for the records. Western alleged the County was withholding responsive records and delaying public access to information. Within a month of commencing its CPRA litigation, Western sent multiple discovery requests to the County, including requesting all documents responsive to its CPRA request. Western also issued an interrogatory asking the County to explain in detail what action, if any, was taken to investigate certain allegations of misconduct and, if no action was taken, to explain “why not.” Following a motion to compel, the trial court ordered the County to produce the requested documents. The County appealed the adverse ruling on the motion to compel. The California Court of Appeal disagreed with the trial court. The Court concluded that a discovery request cannot be used for production of the same documents sought by the underlying CPRA request. The Court also found that the interrogatories seeking a narrative justification for the County’s past decisions were also improper. With respect to those issues, the Court of Appeal overturned the trial court’s ruling on the motion to compel. County of San Benito v. Superior Court (Western Resources Legal Center), 96 Cal. App. 5th 243 (2023).

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Seminars

Webinars 17

firm victory LCW Partner Alysha Stein-Manes And Associate Jordan Carman Win Three Year Workplace Violence Restraining Order To Protect Faculty From Disgruntled Former Student. In Summer 2023, a former student began sending threatening emails to Community College District faculty members. The student had attended one of the District’s campuses until Summer 2022. While the student was enrolled at the District, a faculty member reported to the District that they were disruptive and disrespectful in her class, and it got to a point where she feared them. The District ultimately removed the student from the faculty member’s class and they complete the course as an independent study. However, even after the student was removed from the class, they would sit outside the faculty member’s classroom while she taught and make derogatory comments about her to passing students. The student subsequently transferred to a community college outside of the District. Over a year after leaving the District, the former student began sending random, demeaning, derogatory, and threatening communications to and about the faculty member whose class they had been disruptive in. These emails included calling her a “bitch” and a “disgusting female” and were sent to the faculty member herself and to another District employee. The District conducted a threat assessment and determined that the former student posed a safety concern. In addition to these communications, the District learned that the former student had been accepted to a four year university, but the university later rescinded their acceptance because they had reported a grade on their

application that was inconsistent with their transcript. The former student reached out to a District transfer counselor for help. The transfer counselor initially attempted to help them, but it soon became clear that they could not provide further assistance. The former student became angry and sent the transfer counselor emails calling District employees “corrupt” and “ghetto-pigs” and demanded an apology for “trying to bring me down.” The former student also sent two emails threatening to “close down all Community Colleges in California.” Campus Safety sent the former student three cease-anddesist emails on behalf of the three District employees who they had sent threatening emails to. However, the student continued sending concerning emails. LCW assisted the District in filing a petition for a workplace violence restraining order (WVRO) to protect the faculty member and transfer counselor. In order for an employer to obtain a WVRO on behalf of an employee, the employer must prove by “clear and convincing” evidence that the respondent either engaged in unlawful violence or “made a credible threat of violence.” The “clear and convincing” standard is a higher burden than required in most civil cases, which require only that a plaintiff prove their claims by a “preponderance of the evidence” (i.e., more likely than not). LCW attorneys prepared District employees to testify and represented the District at the WVRO hearing. Not only did LCW secure a restraining order against the former student, the Court agreed to grant the restraining order for 3 years, which is the maximum amount of time allowable under the law. Note: LCW can help clients obtain workplace violence restraining orders to protect employees and their family members from threats of violence that occurred or could occur at work.

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Members of Liebert Cassidy Whitmore’s employment relations consortiums may speak directly to an LCW attorney free of charge regarding questions that are not related to ongoing legal matters that LCW is handling for the agency, or that do not require in-depth research, document review, or written opinions. Consortium call questions run the gamut of topics, from leaves of absence to employment applications, disciplinary concerns to disability accommodations, labor relations issues and more. This feature describes an interesting consortium call and how the question was answered. We will protect the confidentiality of client communications with LCW attorneys by changing or omitting details.

Answer: Question: A Community College District client asked how long supervisors should maintain their unofficial files on ex-employees.

The attorney recommended that supervisors destroy their supervisor file after transferring relevant information to the employee’s annual performance evaluation. Generally, a supervisor maintains a separate file with objective notes about the employee’s performance. The supervisor uses the information in the file to prepare the employee’s annual evaluation. Once the supervisor has transferred the information to the employee’s annual evaluation, the supervisor’s file does not need to be kept. Items included in the supervisor’s file, which the supervisor does not include in the annual evaluation, may also be destroyed since such items were likely not substantial enough to include in the performance evaluations. This does not include any written discipline or other documentation that may be necessary to include in a formal personnel file, or attached to an evaluation, disciplinary document, or the like. The official personnel file is a permanent record and may never be destroyed. • www.lcwlegal.com •

December 2023

Consortium Call Of The Month

Liebert Cassidy Whitmore