Education Matters: February 2024

Education Matters

employee discipline

University Could

Terminate

A

Professor For Off Campus Sexually Abusive Conduct Towards Two Women Who Were Not Students.

Gopal Balakrishnan was a tenured professor at the University of California, Santa Cruz (UCSC). In 2006, he became an associate professor in UCSC’s History of Consciousness Department. In 2015, UCSC granted him tenure. In 2017, an anonymous letter was published online, accusing Balakrishnan of sexual intimidation, harassment, and assault against women and gender nonconforming people during his time as a UCSC professor. The letter contained six anonymous firsthand accounts and called on UCSC to act. Balakrishnan denied the accusations. UCSC issued a statement that it was aware of the letter and asked individuals with relevant information to contact the Title IX office to assist in its investigation.

The Title IX office received multiple complaints and decided to investigate four of them. One complaint came anonymously from a poet and academic, referred to as Jane Doe. Doe did not wish to participate in the investigation. However, UCSC was able to identify and speak with an eyewitness, a professor referred to as Witness 1. Doe met Balakrishnan in 2013 at a three-day Poetry Summit in Berkeley. Doe and Witness 1 stayed at another professor’s house and shared a room. The professor hosted a party, which Balakrishnan attended. After Doe and Witness 1 had retired to bed, Doe awoke to find Balakrishnan drunkenly trying to get into bed with her. She made him leave the room. Later, she awoke again to find him crawling into her bed naked. Doe and Witness 1 forced Balakrishnan from the room and barracked the door.

Another complaint came from Anneliese H. In June 2013, Anneliese participated in her UCSC graduation ceremony. Two days later, she attended a graduation party at a friend’s off-campus apartment. The friend had taken a class with Balakrishnan and invited him to the party in an effort to obtain his mentorship. Anneliese became sick from drinking and was on the verge of blacking out. Balakrishnan offered to walk her home. Anneliese experienced memory lapses, and “came to” find Balakrishnan attempting to have sex with her. She repeatedly told him to leave, yet he persisted. He eventually left after she pushed him away several times.

Another complaint came from Brian G., a former UCSC student. Brian reported that in 2009, when he was 18 years old, he attended a party at Balakrishnan’s residence. At the party, Balakrishnan gave Brian and other attendees cocaine and alcohol. Balakrishnan then drove Brian home while under the influence of alcohol and drugs. On several other occasions, Balakrishnan bought him alcohol at local bars, although he was underage.

A fourth complaint came from Patrick M. In 2015, Patrick M. was a Ph.D. candidate in the History of Human Consciousness Department and Balakrishnan was his advisor. One day, Patrick and Balakrishnan had a heated discussion about the direction of Patrick’s dissertation. Balakrishnan became verbally and physically aggressive. Patrick attempted to leave Balakrishnan’s office, but Balakrishnan blocked his way by lunging at him and grabbing him. Patrick reported the incident to the department chair. The department chair assigned Patrick a new advisor and made Balakrishnan promise to have no contact with Patrick.

The investigator found that all four complainants were likely telling the truth. The investigator found that Balakrishnan’s actions towards Doe and Anneliese were

prohibited by the UC Policy on Sexual Harassment. However, the investigator did not substantiate a policy violation in regards to Doe, because the policy only applied to harassment of “members of the University community.” The investigator found that Anneliese was still a member of the University community. Although she had walked in graduation, UCSC had not yet conferred her degree.

The investigation reports were forwarded to UCSC’s Charging Committee, to assess whether there was enough evidence to initiate disciplinary action. The Charging Committee found probable cause to discipline Balakrishnan for each of the four complaints. While UC sexual harassment policy did not apply to Doe since she was not a member of the USCS community, the Charging Committee found that Balakrishnan’s conduct towards Doe violated the Faculty Code of Conduct. The Faculty Code of Conduct stated that faculty members could be disciplined “for conduct which is not justified by the ethical principles, and which significantly impairs the University’s central functions…” It further stated that “serious misconduct, not specifically enumerated [in the policy], may nonetheless be the basis for disciplinary action…”

On November 14, 2018, Executive Vice-Chancellor (EVC) Marlene Tromp issued Balakrishnan a notice of intent to discipline, recommending dismissal and denial of emeritus status. Balakrishnan participated in a formal administrative hearing before the Committee on Privileges and Tenure (PT Committee), which was composed of three UCSC professors. The PT Committee dismissed the Brian G. charges, based on insufficient evidence. It also dismissed the Patrick M. charges based on a three-year limitations period set forth in the Faculty Code of Conduct. With respect to Doe, the PT Committee found that Balakrishnan violated the Faculty Code of Conduct. With respect to Anneliese, the PT Committee found Balakrishnan violated both the UC Policy on Sexual Harassment and the Faculty Code of Conduct. The PT Committee recommended termination and denial of emeritus status based on the Doe and Anneliese charges.

On August 15, 2019, UCSC Chancellor Cynthia Larive adopted the PT Committee’s findings and recommendations. On August 23, 2019, UC President Janet Napolitano recommended that the UC Regents dismiss Balakrishnan. In September 2019, the Regents unanimously voted to dismiss Balakrishnan and deny him emeritus status.

On October 2, 2020, Balakrishnan filed a petition for a writ of administrative mandate, asking the trial court to overturn the Regent’s decision. The trial court denied his petition. Balakrishnan appealed.

On appeal, Balakrishnan argued the UCSC lacked jurisdiction to discipline him for his actions towards Doe and Anneliese, because they were not University students. In the case of Doe, he argued that he could not be disciplined for violating general ethical principles and there was no evidence his conduct significantly impaired the University’s central functions. In the case of Anneliese, he argued he could not be disciplined for violating the Faculty Code of Conduct, because it was not one of the charges listed in his notice of intent to discipline, so he had not received proper notice. Finally, he argued that that dismissal and denial of emeritus status was an excessive punishment.

The court of appeal affirmed the trial court’s decision, holding that it was reasonable for UCSC to dismiss Balakrishnan and deny him emeritus status. The court of appeal found the PT Committee’s reading of the Faculty Code of Conduct was consistent with its plain meaning. Balakrishnan’s actions towards Doe created an unsafe environment that was not conducive to the sharing of knowledge and values. It was reasonable for the PT Committee to conclude that other academics and members of the public would not want to engage with UCSC if Balakrishnan’s behavior had no consequences. Additionally, the PT Committee was composed of three UCSC professors, who would be both knowledgeable of and sensitive to the needs of the department and the university population to which the policy applies.

The court of appeal rejected Balakrishnan’s argument that, in the Anneliese case, he had no notice of the charge that he had violated the Faculty Code of Conduct. The PT Committee had added the violation of the Faculty Code of Conduct to the Anneliese case. But in the Anneliese case, the Regents ultimately only disciplined Balakrishnan for violating the sexual harassment policy. Finally, the court of appeal held that the punishment of termination and denial of emeritus status was not an excessive punishment given that Balakrishnan had egregiously sexually abused two women.

Balakrishnan v. Regents of University of California (2024) 99 Cal. App.5th 513.

How to Customize LCW’s Model

Workplace Violence Prevention Plan (“WVPP”) and Implement the Required WVPP Training for Employees

In 2023, in order to address growing concerns about violence in the workplace, the legislature passed and the Governor signed into law Senate Bill 553. The new law amends Labor Code section 6401.7 and adds Labor Code section 6401.9, requiring California employers to establish and implement by July 1, 2024 a Workplace Violence Prevention Plan (“WVPP”) and provide effective training to employees on the requirements of the new law and the employer’s WVPP.

This package includes LCW’s model WVPP and template training materials. The webinar will provide valuable insight and explanation as to how to customize the WVPP for your unique workplace specific issues as well as how to implement and maintain an effective WVPP moving forward. This training will also provide detailed guidance regarding the customization of LCW’s training materials to effectively train your employees on issues specific to your workplace(s).

Registration Includes:

• Model Workplace Violence Prevention Plan (with notes on how to customize for your organization).*

• Checklist of plan/training requirements.

• Slides you can customize and use to train your workforce.

• Ninety-minute webinar that will cover how to customize both the Plan and the training.

• Three-month access to the recording of the webinar.

• The Department of Industrial Relations (DIR) has indicated that they might issue guidance on these requirements. Should they do so prior to June 30, LCW will provide one update to both the model plan and template training documents. *DIR changes/updates after plan effective date is not included.

Who Should Attend:

Department Heads, Managers, Supervisors, Human Resources, and Risk Management.

College Could Expel Student For Repeating Sexual Assault Allegations That An Investigation Found To Be False.

Saniyyah Rasheed attended Mt. San Antonio College on and off from 1975 to 2019. On December 4, 2017, the College held a Disciplinary Conference for Rasheed. At the Disciplinary Conference, Rasheed accused faculty member Grace Hansen of sexually assaulting her in Fall 2016. In January 2018, the College began an investigation into Rasheed’s sexual assault allegations. In May 2018, the investigator concluded that the faculty member had not engaged in the alleged conduct. The College gave Rasheed a summary of the investigative report and informed her of her right to appeal the decision. Rasheed did not appeal.

However, Rasheed continued to accuse Hansen of sexual assault. On October 18, 2018, the College warned Rasheed that repeating statements that the investigation had found to be false could violate the College’s Standard of Conduct and be grounds for discipline. On August 18, 2018, Rasheed attended a class she had been dropped from. Police and Campus Security instructed her to

leave the classroom, but she refused. On September 6, 2018, the College held a Disciplinary Conference with Rasheed regarding the classroom incident. On October 17, 2018, the College suspended Rasheed and began expulsion proceedings. On December 5, 2018, the Student Conduct Board held a hearing to address the classroom incident and Rasheed’s continued accusations against Hansen. On July 3, 2019, the College notified Rasheed that she was expelled.

Two years later, on June 28, 2021, Rasheed filed a lawsuit in federal court against the College and Board of Trustees. Rasheed argued that her expulsion was unlawful retaliation in violation of Title IX, the First Amendment of the US Constitution, the California Constitution, and Education Code section 66301. The College asked the trial court to dismiss Rasheed’s claims through summary judgment. The trial court agreed.

To state a claim for Title IX retaliation, Rasheed would need to show that (1) she engaged in protected activity, (2) she experienced an adverse action, and (3) there was a causal link between the two. The trial court held that Rasheed failed to show a causal link between protected activity and her expulsion.

first amendment

Next, the trial court dismissed Rasheed’s First Amendment and California Constitution free speech retaliation claims, because her continued accusations were not constitutionally protected speech. The College’s Standards of Conduct said the College could discipline students for libel and slander. The trial court held the College’s enforcement of this rule was reasonable and did not violate constitutional free speech rights. Colleges may enforce viewpoint neutral rules that limit speech, so long as they are reasonable.

Finally, the trial court dismissed Rasheed’s claim under Education Code section 66301. Section 66301 prevents UCs, CSUs, and CCDs from disciplining students solely based on speech that would be constitutionally protected if it occurred off campus. The trial court dismissed Rasheed’s section 66301 claim because libel and slander are also prohibited outside of the College.

Rasheed appealed the trial court’s dismissal of her Title IX and Education Code section 66301 claims to the Ninth Circuit Court of Appeal. For the Title IX claim, Rasheed argued that the trial court applied an overly strict standard when it held that she had failed to establish a causal link between her accusations and expulsion. The Ninth Circuit held that even if the trial court had applied an overly strict standard for

the causation element, the dismissal was still proper because Rasheed failed to establish that her continued accusations were protected activity. In a Title IX retaliation claim, the plaintiff must have reported conduct that they reasonably believed was unlawful. She did not produce any evidence indicating that she had a reasonable belief that Hansen had engaged in unlawful conduct. The Ninth Circuit also pointed to the fact that Rasheed never appealed the College’s investigation findings.

Finally, the Ninth Circuit dismissed Rasheed’s claim under Education Code section 66301. First, as in the Title IX claim, Rasheed failed to establish that her continued accusations were protected speech. Second, even if the speech was protected, Rasheed was expelled for both her continued accusations and the unrelated classroom disruption incident. Section 66301 only prevents colleges from imposing student discipline “solely on the basis of” the protected speech.

The Ninth Circuit affirmed the trial court’s dismissal of Rasheed’s case.

Rasheed v. Mt. San Antonio Coll. (9th Cir. Dec. 12, 2023, No. 23-55129) 2023 U.S. App. LEXIS 32735.

Congratulations to Brett Overby for her promotion to Senior Counsel!

hiring

Applicant Could Not Challenge University’s DEI Statement Requirement Because He Never Applied

For Position.

In approximately 2016, the University of California established the Advancing Faculty Diversity (AFD) program to support projects that increase racial and gender balance on University campuses. The AFDfunded pilot program at University of California, Santa Cruz (UCSC) encouraged search committees to use Diversity, Equity, and Inclusion (DEI) statements in the faculty selection process and engage in more indepth discussion with applicants about their statements. UCSC created detailed rubrics for evaluating diversity statements. UCSC published a scoring rubric and also provided a list of “common myths” about DEI faculty recruitment and a page for resources on Antiracism.

John D. Haltigan holds a Ph.D. in Development Psychology and was previously an Assistant Professor at the University of Toronto. On July 21, 2022, UCSC posted an open hiring announcement for a tenure-track position in Developmental Psychology. The Psychology Department required a DEI statement to apply and urged each candidate to review the scoring rubric posted on UCSC’s website. The posting stated that the initial screening of candidates would only look at the DEI statement and a research statement.

Haltigan alleged that he desired a position at UCSC, but that the DEI statement requirement made his application futile due to his views. Haltigan alleged that if he were to apply for the July 2022 opening or any other openings at UCSC, he would be compelled to alter his behavior and either remain silent or recant his views to conform to the beliefs of the University administration. In light of these concerns, Haltigan did not apply or prepare any application materials for the July 2022 opening.

In May 2023, Haltigan filed a lawsuit in federal court against the President and Chancellor of UCSC, the Chair of the UCSC Psychology Department, and the UCSC Dean of Social Sciences (collectively referred to here as “UCSC”). Haltigan asked the court for a preliminary injunction to stop UCSC from enforcing the DEI statement requirement against him.

UCSC filed a motion to dismiss for lack of standing. UCSC argued that Haltigan did not suffer an injury because he only expressed a future intention to apply to the position, and never submitted himself to the application process he sought to challenge. Haltigan argued that he was ready and able to apply but that any application submitted would be futile. The trial court was not persuaded.

First, the trial court found that a general interest in applying did not create standing. Haltigan had not undertaken any preparations in anticipation of applying for the July 2022 position or any other future UCSC positions. Haltigan had applied to other positions with less stringent DEI requirements. However, the trial court determined that this was not enough to show an imminent or concrete injury arising from UCSC’s application process.

Second, the trial court determined that Haltigan had not submitted himself to the process and the University’s policies did not unambiguously show that an application would have been futile. The application process was subjective, and it was possible that UCSC may have accepted Haltigan’s application on the basis of his standalone qualifications or relevant research background. The Court dismissed Haltigan’s claims.

Haltigan v. Drake (N.D.Cal. Jan. 12, 2024) 2024 U.S.Dist.LEXIS 6944.

Note:

Hiring practices that prioritize DEI statements must be carefully applied. While this case was dismissed for procedural reasons, other lawsuits have challenged the use of mandatory faculty DEI statements. If you have questions about how to lawfully utilize this strategy, please consult legal counsel.

Daily Journal awards Partner Brian Walter as 2024 "Leading National Litigators"

U.S. Supreme Court Declines To Hear Case On Admissions Policy.

The Supreme Court denied certiorari in Coalition for TJ v. Fairfax County School Board, a case involving public high school admissions policies. Thomas Jefferson High School for Science and Technology (TJ) is a highly ranked magnet school in Alexandria, Virginia. In 2020, TJ altered their admission criteria in order to diversify the student body. The majority of students were Asian-Americans who came from a handful of affluent neighborhoods.

The new admissions system removed the application fee and allocated most slots proportionally among the school district’s middle schools, with applicants given a holistic evaluation based on GPA, the student “portrait sheet” (i.e., description of applicant’s skills), a problem-solving essay, and four “Experience Factors” (i.e., special education status, eligibility for free or reduced-price meals, status as an English-language learner, and attendance at a historically underrepresented public middle school).

The Coalition for TJ, an advocacy organization of Fairfax County public school parents, filed a lawsuit alleging that the new admissions policy violated the Equal Protection Clause. The Coalition argued that, although the policy was facially race-neutral, the policy was adopted with a racially discriminatory purpose. The Coalition argued that the new policy intended to reduce the percentage of AsianAmerican students who enrolled at TJ and act as a proxy in order to racially balance TJ.

In May 2023, the Fourth Circuit Court of Appeals found no violation to the Constitution’s Equal Protection Clause because Asian-Americans produced the highest admissions “success rate” of any group under the new admissions policy, with Asian-American students accounting for 48.59% of the applications and 54.36% of the admission offers. The Court of Appeals also ruled that there was no discriminatory intent under the new policy. TJ was not motivated by disadvantaging Asian-American students and the policy itself was not only race-neutral, it was fully race-blind. Each applicant’s name, race, ethnicity, and sex were excluded from the applications.

The Supreme Court’s decision declining to hear this case means that TJ can continue with their current admissions policy.

Justice Alito and Justice Thomas dissented from the Supreme Court’s decision, warning that TJ’s admissions model creates a blueprint for schools to evade the Supreme Court’s recent decision striking down affirmative action in college admissions.

Coal. for TJ v. Fairfax Cnty. Sch. Bd. (2024) ___U.S.___ [___L.Ed.2d___].

transfer admissions

New Prison To Cal State Transfer Program.

Mount Tamalpais Community College is located within San Quintin State Prison and became the first accredited institution created entirely within a state prison. In September 2023, the college and Cal State system signed a memorandum of understanding to create a transfer program that would guarantee Cal State transfer admissions to Mount Tamalpais graduates. The program is still in the planning stages.

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. March 14 & 21, 2024 - Communication Counts!

2. April 4 & 11, 2024 - The Rules of Engagement: Issues, Impacts

3. May 16 & 23, 2024 - Nuts & Bolts of Negotiations

DISABILITIES

Department Of Education Releases Disability Resources.

The Department of Education’s Office for Civil Rights (OCR) issued a press statement on February 20, 2024, announcing it released four new resources on serving students with disabilities. The new resources address common medical conditions that can be disabilities for purposes of Section 504: asthma, diabetes, food allergies, and gastroesophageal reflux disease (GERD). These resources are applicable to all levels of education, including higher education. They explain when these medical conditions trigger protections under Section 504, what kind of modifications an educational institution may need to take to avoid unlawful discrimination, and what an institution may need to do to remedy past discrimination.

STUDENT HEALTH

Department of Education Requests Information Regarding Mental Health And Substance Use.

The Department of Education has published a Request for Information (RFI) on Mental Health and Substance Use Disorder Needs in Higher Education

The Department seeks information, research, and suggestions for supporting student mental health and/ or substance use disorders. Comments were due on or before February 25, 2024.

public Records

Peace Officer Record Disclosure Law Supersedes Contrary Secrecy Laws.

Penal Code section 832.7 was amended to promote transparency and public access to certain peace officer records. Under section 832.7(b), records relating to officers who commit specified types of harmful or unlawful conduct are public records under the California Public Records Act (CPRA).

The First Amendment Coalition and KQED Inc. (the Requestors) filed CPRA requests for records with the California Attorney General and the Department of Justice (Department) relating to: 1) a peace or custodial officer’s discharge of a firearm at a person; 2) a peace or custodial officer’s use of force that resulted in death or great bodily injury; and 3) a sustained finding of dishonesty or sexual assault against an officer. These categories of records are among those that section 832.7(b) makes available for public inspection.

A portion of the CPRA (Gov. Code section 7927.705), however, states that public agencies generally do not have to disclose records that are exempted or prohibited from disclosure under “state law.” Relying on that part of the CPRA, the Department withheld some records that were either exempted or prohibited from disclosure by Government Code section 11183, Penal Code sections 6126 and 6126.3, and/or Unemployment Insurance Code section 1094. In response, the Requestors filed a motion to get the withheld records. The Requestors lost in the trial court and appealed.

The California Court of Appeal held that Penal Code section 832.7(b) supersedes conflicting state law disclosure exemptions. The Court reasoned that to interpret the new law otherwise would “nullify” its application to a significant swath of officer-related records.

The Court found support for its interpretation in Penal Code section 832.7(b)’s legislative history. That history emphasized that the public has a right to know all about serious police misconduct, as well as about officer-involved shootings and other serious uses of force. Concealing officer violations of civilians’ rights, or inquiries into deadly use of force incidents, undercuts the public’s faith in the legitimacy of law enforcement, makes it harder for hardworking peace officers to do their jobs, and endangers public safety.

First Amendment Coalition et al v. Superior Court, 98 Cal.App5th 593 (2023).

business & Facilities

Child Care Licensing Requirement For Facility Capacity Is Based On

Attendance, Not Enrollment.

A group of parents, Plaintiffs, filed a class action lawsuit against Pacific Oaks Children’s School, alleging that Pacific Oaks failed to comply with the Department of Social Services1 (DSS) childcare licensing requirements. Specifically, that Pacific Oaks enrolled more children than permitted by their license, which set a capacity of 77 children. The parents asserted claims based under the false advertising laws, the unfair competition law, and for common law fraud.

The Plaintiffs relied on Health and Safety Code section 101161, subdivision (a) in making their claims, it states, “a licensee shall not operate a child care center beyond the conditions and limitations specified on the license, including the capacity limitation.” Plaintiffs argued that the term “capacity limitation,” refers to enrolled children, not how many are present at any given time. It was not in dispute that Pacific Oaks enrolled more than 77 children.

The Court interpreted the statute by examining its plain, common sense meaning and by looking at the purpose of the section because there is no California decision or administrative interpretation that exists for this section. By taking this approach, the Court analyzed the definitions contained in the Act itself, which define capacity to mean, “the maximum number of children authorized to be provided care and supervision at any one time in any licensed child care center.” Further, the

1 The Department of Social Services regulates preschools in California by carrying out the California Child Day Care Facilities Act. It is also responsible for issuing licenses, monitoring compliance, and administering corrective action as needed.

legislative intent provides that the section’s purpose is to ensure a quality childcare environment.

In its interpretation of the definition and legislative intent, the Court provided an example of a facility that has a capacity limitation of 20 and provides care to 15 children in the morning and a different 15 children in the afternoon. Under the Plaintiff’s argument, this hypothetical facility would be in violation of its license. However, it shows that capacity and enrollment numbers can be different while still ensuring that children are receiving proper supervision.

Accordingly, the Court ruled in favor of Pacific Oaks and held that the capacity set on a childcare facility license means the number of children being cared for at the facility at a given time, not the aggregate number of students enrolled.

Since it is a common practice for preschool and daycare facilities to operate a number of different programs throughout the day, this case is significant to show that facilities can comply with their capacity limitations as long as they are not caring for children in excess of the capacity at any given time.

Baker v. Pacific Oaks Education Corp. (2024) 99 Cal.App.5th 77.

By: Stephanie J. Lowe

Employees Terminated For Data Theft Still Entitled To COBRA Coverage.

Deborah Johnson and Rodney Johnson were spouses and long-time employees of the City of Kewanee, Illinois. Deborah was the Account and Finance Director and Rodney was the Public Works Operations Manager. In September 2020, the Johnsons provide notice of their intent to retire from the City in January 2021. Shortly after the retirement notice, the City accused Deborah of stealing data files that belonged to the City by taking or copying information from a City computer. When the City asked Deborah to collect her belongings and sent her home, Deborah removed a flash drive from her computer and took it with her. Thereafter, the City was unable to locate certain files on Deborah’s computer and retained an outside information technology specialist to investigate. The Johnsons eventually brought several flash drives to the police station. The flash drives contained approximately 55,000 files and included personally identifiable information of City residents and employees, such as social security numbers and bank account numbers. The Johnsons denied improperly taking any City files.

The City terminated both Johnsons in December 2020 and did not provide them with a notice of Consolidated Omnibus Budget Reconciliation Act (COBRA) continuation coverage. In March 2021, the Johnsons filed a complaint against the City alleging that it had failed to provide them with the COBRA notice.

Under the federal Public Health Services Act, governmental group health plans are required to provide qualified employees with the option to continue their health coverage when the employee experiences a qualifying event, such as termination of employment. However, there is an exception for termination of employment for an employee’s gross misconduct. The City denied that it had any obligation to provide a COBRA notice in this situation because the Johnsons were terminated for gross misconduct for stealing City property. The City filed a motion for summary judgment.

The Court found that the City did not provide sufficient evidence to prove the Johnson’s committed theft of the City’s data files, which would constitute “gross misconduct” under the COBRA standard. The Court assessed that none of the City’s witnesses had personal knowledge of what files were missing from Deborah’s computer or the City server.

The Court also wrote that even assuming arguendo that the Johnsons had taken the data files from the City and deleted them, the Court was not convinced that these actions would constitute gross misconduct as a matter of law. COBRA does not define “gross misconduct.” Courts look to the ordinary meaning of the phrase, which is defined as outrageous, extreme, or unconscionable misconduct. The Johnsons denied committing criminal theft. Deborah claimed she was an authorized user of the data and had no intent to permanently depriving the City of any files. The Court stated that whether Deborah was authorized to access and use the files in the way she was alleged to have used them was a factual question.

The Court denied the City’s motion for summary judgment and found the City was not exempt from providing COBRA continuation coverage notice in this situation. The Court also found that the City presented no admissible evidence that would allow the City to impute any misconduct by Deborah to her husband Rodney.

Johnson v. City of Kewanee (2023) 2023 U.S.Dist. LEXIS 208408; 2023 WL 8091963.

Note:

The decision to not provide a COBRA notice to a terminated employee should not be made lightly. The Court in Johnson cited cases that found gross misconduct where an intoxicated employee crashed an employer vehicle, another where an employee called a coworker a racial slur and also threw an apple toward her, and finally, where a supervisor beat his employee to the point that she required five days of hospitalization. While there is an exception where an employer does not need to provide a COBRA notice to an employee who has been terminated for gross misconduct, there is a very high standard for what actually constitutes gross misconduct. It is a higher standard than termination for cause.

corner

The Department Of Labor Proposes

Rescinding The Association Health Plans Rule.

The U.S. Department of Labor (DOL) has proposed rescinding the Association Health Plans rule (AHP Rule) it created in 2018. The AHP Rule relates to multiple employer group health plans. The AHP Rule established criteria for determining when a group or association of employers is acting “indirectly in the interest of an employer” to constitute a bona fide group or association for purposes of sponsoring a single, multiple employer group health plan covered by Employee Retirement Income Security Act (ERISA). The intent of the AHP Rule was to expand access for affordable health coverage for employees of small employers and certain self-employed individuals by lessening the restrictions to create an association health plan, which would be subject to the less regulated large group market.

Prior to the DOL’s proposal to rescind the AHP Rule, the AHP Rule had previously been set aside due to the lawsuit New York v. United States Department of Labor filed in the U.S. District Court for the District of Columbia. The District Court found the AHP Rule to be inconsistent with the ERISA’s intent to have employee benefits arise out of employment relationships since the AHP Rule extended the definition of “employer” to include non-employment relationships. For example, the definition included business owners who had no common-law employees but were members of an employer association.

The DOL is rescinding the AHP Rule because it is now of the view that the AHP Rule does not align with ERISA. Prior to a final decision about rescinding the AHP Rule, the DOL is taking public comments from interested parties until February 20, 2024.

Any small public agency employers who are providing employees with health coverage through an associate health plan are advised to review the proposal to rescind the AHP Rule and assess any potential impact on its health benefits.

2024 Standard Mileage Rate.

The updated standard mileage rate for the use of a car for business purposes is 67 cents per mile. This amount is 1.5 cents higher than the 2023 rate. The 67 cents per mile rate applies to all types of vehicles, including gasoline, diesel-powered, electric, and hybrid vehicles. For more information, please see IRS Notice 2024-08.

ACA Compliance Question:

Question: For the ACA reporting Form 1095-C, what is the difference between Code 1A and Code 1E on Line 14?

Answer: Codes 1A and 1E are similar and often get confused with each other. Code 1A reports that the applicable large employer has offered affordable minimum essential to the employee and their dependents using the federal poverty line safe harbor. Code 1E, while similar to Code 1A, is for applicable large employers to report an offer of minimum essential coverage to an employee and their dependents that can be affordable under any one of the three types of safe harbors. The three types of safe harbors are: (1) the federal poverty line safe harbor; (2) the rate of pay safe harbor, and (3) the Form W-2 safe harbor. While Code 1A specifically indicates the use of the federal poverty line safe harbor, any of the safe harbors may be used with Code 1E. Employers who use vendors to assist them with reporting should make sure that the vendor is reporting the correct code based on the affordability safe harbor the employer has selected.

LCW BENEFITS BEST PRACTICES TIMELINE

Each month, LCW presents a monthly benefits timeline of best practices. This timeline is intended to apply to agencies that are applicable large employers for Affordable Care Act purposes.

February

• Prepare for the March 1, 2024 deadline to furnish Form 1095-C to employees.

• Prepare for the April 1, 2024 deadline to e-file Forms 1094-C and 1095-C.

• If agency would like an automatic 30-day extension to file Forms 1094-C and 1095-C, agency must submit Form 8809 on or before the due date of the returns.

Check Out Our On-Demand Class

Public Service: Understanding the Roles and Responsibilities of Public Employees

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

• The difference between public vs. private sector employment

• The responsibilities and role of a public employee

• Common labor laws for public employees

• Ethical obligations of public servants

• Efficient use of public resources

• Providing customer service

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

Consortium Call Of The Month

Members of Liebert Cassidy Whitmore’s consortiums are able to speak directly to an LCW attorney free of charge to answer direct questions not requiring in-depth research, document review, written opinions or ongoing legal matters. Consortium calls run the full gamut of topics, from leaves of absence to employment applications, student concerns to disability accommodations, construction and facilities issues and more. Each month, we will feature a Consortium Call of the Month in our newsletter, describing an interesting call and how the issue was resolved. All identifiable details will be changed or omitted.

Question:

A Community College District asked whether student workers, short-term employees, and professional experts are required to have a TB Risk Assessment completed in the same way that faculty, classified employees, and managers do.

Answer:

The attorney advised the CCD that pursuant to Education Code section 88006, the TB risk assessment requirement does not apply to student workers, but it does apply to short-term employees and professional experts.

Liebert Cassidy Whitmore