Education Matters: January 2024 by lcwlegal

January 2024

Education Matters

Table Of Contents 03

Civil Rights

First Amendment

Labor Relations

Benefits Corner

Facilities Construction / Environmental Impact Report

Consortium Call Of The Month

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

Stephanie J. Lowe Senior Counsel | San Diego Gabriella Kamran Associate | Los Angeles

Connect With Us! Copyright © 2024 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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Coach’s Bullying Behavior Towards Women’s Soccer Team Could Constitute Sexual Harassment, Even If Harassment Was Not Of A Sexual Nature And Could Not Be Compared To Behavior Towards Men. Neil McGuire, the head coach of UC Berkeley’s women’s soccer team, recruited Renee Thomas to come to UC Berkeley and play in the 2018-2019 season. McGuire knew at the time that Thomas had already committed to play soccer for the University of Colorado, which had offered her an athletic scholarship. McGuire met with Thomas and her mother and assured them that Thomas would be on the UC Berkeley soccer team for four years. Thomas turned down her scholarship to the University of Colorado to accept a non-scholarship spot on UC Berkeley’s soccer team. Thomas would later allege that, at the recruitment meeting, McGuire misrepresented himself as a kind and encouraging coach. She also claimed that McGuire failed to inform her that factors beyond her performance on the team could impact her continued status as a team member. Thomas alleges that during the 2018-2019 season, McGuire created a culture of fear and intimidation on the soccer team. McGuire lost his temper at athletes and would single them out and berate them in front of the team. He called them names, cursed at them, and in one instance he belittled a player’s physique in front of the team and called her “weak.” McGuire also berated a player for having what he perceived as a hickey on her

January 2024

civil rights neck. McGuire yelled at Thomas in front of the team, kicked her off the field, told her she did not belong in the program, and berated her for being undisciplined. Players and their parents complained about McGuire’s conduct to Jim Knowlton, the UC Berkeley athletic director, and other administrators. In March 2018, McGuire’s assistant athletic trainer made a complaint that McGuire was physically and psychologically abusing his team. In April 2019, three women’s soccer team players made a complaint to Knowlton about McGuire’s behavior. In December 2019, a player complained to the office for the prevention and harassment of discrimination (OPHD) about McGuire’s hickey comment. The player was offered supportive services, but nothing was done to intervene. On April 29, 2019, McGuire released Thomas and four other non-scholarship players from the team. In September 2020, Thomas filed a lawsuit against McGuire, Knowlton, and UC Berkeley. She brought claims against McGuire and Knowlton for violation of the Unruh Civil Rights Act and negligence, and against McGuire for breach of fiduciary duty and fraud. Thomas argued that UC Berkeley was liable for the actions of its employees under Government Code Section 815.2. The trial court dismissed the case. The trial court held that Thomas failed to state causes of action for violation of the Unruh Civil Rights Act or the Civil Code Section 51.9, negligence, or breach of fiduciary duty. The trial court also held that the fraud claim against UC Berkeley was barred by governmental immunity under Government Code Section 818.8, which states that public entities are not liable for an employee’s misrepresentation. The trial court held that Thomas had failed to state a claim against McGuire for fraud and negligent misrepresentation, and that McGuire was entitled to

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public employee immunity for any misrepresentation under Government Code Section 822.2. Thomas appealed. The court of appeal analyzed whether Thomas had alleged the type of conduct described in Civil Code Section 51.9 and, if not, whether an amendment to her complaint could cure any deficiencies. The court of appeal explained that Civil Code Section 51.9 is not part of the Unruh Civil Rights Act, it is a separate civil rights statute. It prohibits sexual harassment when there is a business, service, or professional relationship between the plaintiff and defendant. This includes relationships where the defendant is a teacher, physician, therapist, executor, landlord, elected official, lobbyist, or other similar position. Civil Code Section 51.9 applies to professional relationships outside the workplace but was enacted to conform with workplace sexual harassment law, such as Title VII and the Fair Employment and Housing Act (FEHA). In the employment context, liability for sexual harassment claims occurs when there is quid pro quo harassment, or when the harassment is so pervasive that it creates an abusive work environment. The court of appeal held that Thomas’s case involves the hostile environment form of harassment. To create a hostile environment, the harassing conduct must be pervasive and severe. It does not need to be sexual in nature nor explicitly gendered. The plaintiff only needs to show that gender is a substantial motivating factor and the plaintiff would have been treated differently if they were another gender. The court of appeal held that Thomas had sufficiently plead a claim for sexual harassment. Thomas described a hostile bullying environment and she alleged that it was based on gender. Proof of discriminatory intent often depends on inferences rather than direct evidence. Therefore, very little evidence of discriminatory intent is necessary to survive summary judgment. The inability to compare McGuire’s behavior towards women with

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his behavior towards men did not defeat the claim of sexual harassment. It just meant Thomas must use other means to prove discriminatory intent. Further, some of Thomas’s allegations could support an inference that the harassment was based on gender. McGuire berated an athlete for having a hickey, which was a reference to sexual activity, and he called another player weak, which could implicate gender-based stereotypes. The fact that much of the conduct was direct at other teammates, rather than Thomas, did not undermine her hostile environment claim. The court of appeal noted that Thomas would still need to prove that McGuire’s conduct was based on gender rather than just a gender-neutral function of his coaching style. However, the allegations were sufficient to state a cause of action under Civil Code Section 51.9 and withstand demurrer. Thomas’s mistake in framing her claim as a violation of the Unruh Civil Rights Act could be cured by amendment and the trial court erred in dismissing without allowing her leave to amend. The court of appeal affirmed the trial court’s dismissal of Thomas’s claims for negligence, breach of fiduciary duty, and fraud. The claims against athletic director Knowlton were dismissed because he was not McGuire’s employer. The negligence claim against UC Berkeley failed because a university is not obligated to protect students from nonphysical harm. The breach of fiduciary duty claim failed because there was no confidential relationship between Thomas and McGuire. Statutory immunity under Government Code, Sections 818.8, and 822.2 defeated the fraud claim. Public entities and employees are statutorily immune from misrepresentation related to financial interests and Thomas’s lost University of Colorado scholarship was a financial interest. The court of appeal remanded the case to the trial court to allow Thomas’s sexual harassment lawsuit to continue. Thomas v. Regents of University of California (2023) 97 Cal. App.5th 587.

Consortium

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January 2024

new to the Firm! Tevon F. Edwards is a Labor Relations Consultant in the San Francisco office of where he provides advise and counsel in employment and labor related matters. Tevon also serves as an experienced negotiator.

Allison Berquist is an Associate in the Los Angeles office of where she provides advice and counsel on a variety of issues.

Lucy Goodnough is an Associate in the San Francisco office where she practices in labor and employment law matters.

Whitney Lauren Tolar is an Associate in the San Francisco office, specializing in labor and employment law matters.

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labor Employee’s Service As A Union Officer Was Protected Activity But The District Was Justified In Terminating Her For Numerous Errors.

22, 2018, two weeks after the board meeting, the District placed Ramirez on leave pending an investigation. The District did not immediately inform Ramirez of the reason for the investigation. The leave notice prohibited Ramirez from entering VUSD property and contacting staff or students about the investigation. Two months later, the superintendent allowed Ramirez to attend union meetings.

Ramirez was employed as a secretary at Visalia Unified School District for more than 20 years. Between 1997 and 2012, Ramirez received positive work evaluations. Starting in 2013, her evaluations became negative. In 2015, the District issued Ramirez multiple reprimand letters due to errors and performance issues, and then initiated termination proceedings. The parties settled in 2016 and Ramirez agreed to transfer to a position with Visalia Charter Independent Study (VCIS). VCIS is part of the District and operates independent study programs.

The investigation concluded that Ramirez had falsified records, created numerous errors, and her errors had created incorrect permanent student records. The investigation concluded that her mistakes exposed VCIS to potentially $750,000 in liability for misreporting attendance to the state.

In late 2016, Ramirez was nominated to serve as a union officer. The VCIS principal urged Ramirez not to accept the nomination and expressed concern that union activity would impact Ramirez’s work performance. Rameriz began service as her local union chapter’s vice president in January 2017. Ramirez’s responsibilities at VCIS included entering student absences into a computer program. The program defaulted to full attendance, so she only needed to enter absences, not attendance. The attendance records were reported to the state and corresponded to funding for the school. In December 2017 or January 2018, a parent complained that a student was erroneously marked as absent. The VCIS principal investigated the complaint and discovered additional attendance entry errors. Ramirez had made over 100 incorrect attendance entries between September 2016 and January 2018. The principal reported the findings to the superintendent. On January 9, 2018, Ramirez attended a school board meeting where she criticized District policy and the superintendent. The superintendent was at the meeting. The superintendent directed the VCIS principal to investigate deeper into Ramirez’s errors. On January

The District initiated termination charges against Ramirez based on falsifying information, incompetency, inefficiency, neglect of duty, insubordination, discourteous treatment of the public, and violation of rules, policies and procedures. Ramirez contested the charges and received a hearing. At the hearing, the VCIS principal testified regarding Ramirez’s recent mistakes and performance issues. The superintendent testified regarding Ramirez’s previously settled termination charges and longer history of performance issues. The hearing officer substantiated all charges except for falsifying records. The District school board voted to terminate Ramirez’s employment. The California School Employees Association (CSEA) filed an unfair practice charge with the Public Employment Relations Board (PERB). CSEA alleged the District violated Government Code Section 3543.5, subdivision (a), by firing Ramirez in retaliation for engaging in protected union activity. PERB then formally issued a complaint. The District argued that simply being a union officer was not protected activity, CSEA failed to prove retaliation, and the District would have terminated Ramirez regardless for inadequate performance. PERB found in Ramirez’s favor. First, PERB overturned prior PERB precedent and found that serving as a union officer is protected activity. Second, PERB held that the District retaliated against Ramirez for her union activity. PERB looked at multiple factors but particularly focused on the close timing between Ramirez’s criticism of the superintendent and the subsequent investigation. Finally, PERB found the District

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failed to prove it would have terminated Ramirez for performance had she not engaged in protected union activity. PERB ordered the District to reinstate Ramirez to her position or its equivalent. The District appealed. The District argued on appeal that, rather than initiating a PERB case, Ramirez should have appealed the board’s termination decision by seeking a writ under Civil Procedure Section 1094.5. The court of appeal disagreed with the District and held that PERB has exclusive jurisdiction to adjudicate antiunion action. Education Code Section 45113 gives school boards the power to determine whether there is sufficient cause to terminate an employee. PERB has the exclusive right to resolve disputes under the Educational Employment Relations Act (EERA), such as arguments that an employer retaliated against an employee for union activity. Next, the District argued that Ramirez’s status as a union officer did not constitute protected activity without some additional action. The court of appeal affirmed PERB’s decision that holding union office was protected activity. The court of appeal accepted PERB’s conclusion that the District terminated Ramirez in retaliation for her protected activity. PERB based its retaliation finding on six factors. The court of appeal found that PERB’s conclusions as to four of those factors were reasonable. First, the timing between Ramirez’s critical comments and placement on leave was suspect. Second, the District placed Ramirez on leave without immediately telling her what the investigation was about. Third, the investigation was rushed. Fourth, the District demonstrated union animosity by first discouraging Ramirez from taking union office and then prohibiting her from entering District property and communicating with union members while on leave. However, the court of appeal disagreed with two of the factors that PERB relied upon in its retaliation analysis. The court of appeal held that PERB was wrong to find the District subjected Ramirez to disparate treatment and disproportionate punishment. PERB

January 2024

relations had found disparate treatment because the District had never previously audited attendance reporting nor terminated an employee for misreporting attendance. The court of appeal held this did not support a finding of disparate treatment because there was no evidence that another employee had ever misreported attendance. PERB’s disproportionate punishment finding was also unreasonable. Ramirez’s errors were serious so the District was not required to engage in progressive discipline. Additionally, the District was allowed to use the parties’ prior settlement as evidence of a long history of misconduct and performance issues. If an employer has antiunion motives, the employer will not be liable for violating the EERA if it can show it would have discharged the employee anyway for legitimate business reasons. The court of appeal held the District successfully proved it would have terminated Ramirez regardless of any antiunion motives. The court of appeal stated that the District would have uncovered Ramirez’s numerous errors, even if she had not engaged in union activity. The investigation originated in a parent’s legitimate complaint. PERB and CSEA had argued that Ramirez should not have been terminated because her mistakes were minor, the District corrected them, and no harm occurred. The court of appeal disagreed. It found the errors were serious, numerous, and occurred over several years. Ramirez’s mistakes could affect VCIS’s funding and student permanent records. The District was legitimately concerned the state could shut down VCIS for misreporting attendance. The District was not required to continue to employ a person who repeatedly committed serious errors and might continue to do so in the future. The court of appeal overturned PERB’s order to reinstate Ramirez and ordered PERB to dismiss the complaint against the District. Visalia Unified School Dist. v. Public Employment Relations Bd. (Jan. 9, 2024, No. F084032) ___Cal.App.5th___ [2024 Cal. App. LEXIS 13].

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facilities construction / Environmental Impact Report Environmental Impact Report Did Not Need To Consider In Detail An Alternative Plan That Would Have Placed A New Hospital At A Different Campus. UC San Francisco (UCSF) created a plan for revitalizing its Parnassus Heights campus in order to expand its capacity to treat more patients and to maintain UCSF’s position as a leading health science institution both nationally and internationally. The hospital had to turn away 40% of the requested transfers because it lacked capacity and hospital beds. Additionally, one of the hospitals on campus would not meet seismic standards that take effect in 2030. The plan included building a new hospital, changing the existing hospital into a location for research and rehabilitation, expanding campus housing, and updating facilities in other manners. When a public agency undertakes a project that may have a significant impact on the environment, the California Environmental Quality Act (CEQA) requires that the agency prepare an environmental impact report (EIR). An EIR must consider a range of reasonable alternatives to a project that would feasibly attain most of the project’s basic objectives but avoid or substantially lessen the significant effects of the project.

The Regents of the University of California (Regents) prepared an EIR. The EIR found that the UCSF revitalization plan would have significant environmental impacts. These impacts included increased wind hazard in pedestrian areas due to the new larger hospital building, air pollution from increased use of the area, and noise during the construction phases of the project. The plan would also involve demolition of several historic buildings. Several neighborhood groups opposed the plan because it would increase development. They wanted the new hospital to be placed on one of UCSF’s other campuses, rather than on the Parnassus campus. Three neighborhood groups filed lawsuits against the Regents, challenging the adequacy of the EIR. The groups were San Franciscans for Balanced and Livable Communities; Yerba Buena Neighborhood Consortium, LLC; and Parnassus Neighborhood Coalition. They argued the EIR did not adequately consider the option of building the hospital on another campus. The trial court denied each of their lawsuits in three identical orders. The three organizations appealed, and the court of appeal consolidated the appeals and issued one decision. The court of appeal held that CEQA did not require that the EIR consider in detail the option of placing the new hospital on another campus. The plan’s main goals were to revitalize the Parnassus campus and expand its capacity to treat patients. An EIR should not exclude an alternative from detailed consideration merely because it would impede some degree of the project objectives. However, the EIR does not need to examine in detail alternatives that are infeasible or do not meet the most basic project objectives.

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January 2024

An agency may reject an alternative as infeasible that is impractical or undesirable from a policy standpoint. The court of appeal also held that the EIR’s truncated discussion of traffic delays was sufficient. Guidance from the Governor’s Office of Planning and Research (OPR) directs that traffic delays are not a significant environmental impact and an increase in transit users is not an adverse effect. The court of appeal held that UCSF did not have to preserve certain historically significant buildings merely because it was possible to restore and repurpose them. Additionally, the visual impact of the new hospital was not significant because the plan qualified as an employment center project on an infill site in a transit priority area and zoning allowed for commercial use. Finally, the court of appeal held that UCSF’s wind mitigation measures did not have to include measures that would significantly change the size of buildings or interfere with their operation. The court of appeal affirmed the trial court’s judgment denying the neighborhood association’s lawsuits. Yerba Buena Neighborhood Consortium, LLC v. Regents of University of California (2023) 95 Cal.App.5th 779 [313 Cal.Rptr.3d 701].

Congratulations to our 2024 Southern California Super Lawyers!

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first amendment Public Protest and Harassment Law in 2024. In a much-publicized congressional hearing on December 5, 2023, the presidents of Harvard, MIT, and the University of Pennsylvania faced pointed questions by the House Education and Workforce Committee regarding antisemitism on college campuses. Several exchanges—and public debate thereafter—focused on whether certain violent or politically-charged speech would violate the universities’ Code of Conduct, particularly the sections prohibiting harassment and discrimination. These three private universities certainly aren’t the only institutions facing challenging questions regarding students’ and employees’ political speech. In fact, the issue is more challenging for public institutions. The hearing raises an opportunity for a refresher on public agencies’ and public schools’ legal obligations when it comes to the tangled intersection of free speech and unlawful harassment and discrimination. Below are a few broad principles to keep in mind. Free Speech vs. Harassment and Discrimination Public agencies, including public schools and colleges, are subject to the First Amendment of the U.S. Constitution, which prohibits them from infringing on employees’ or students’ free speech rights. (For more on public employees’ right to free speech, see this LCW blog post.) At the same time, these entities are subject to a variety of laws that require them to act to address harassment and discrimination based on an employee’s or student’s protected status. These are distinct but overlapping legal obligations. On the one hand, freedom of speech does not absolve a school or agency from responding to reports of

harassment or discrimination. If the speech is sufficiently severe or pervasive to create a hostile environment under the applicable anti-discrimination law, the entity has a duty to take prompt and effective steps to eliminate the hostile environment and prevent the harassment from reoccurring. On the other hand, disciplining speakers or preventing them from expressing protected speech can violate the Constitution. Moreover, if an organization’s written policies prohibiting harassment, discrimination, or bullying are too expansive—for example, a bullying policy that contains a prohibition on “offensive” speech—there is a risk that a court could find the policies vague and overbroad and thus invalid under the First Amendment. Public schools and colleges, as well as other agencies, must balance these legal obligations. Whether the speaker had a First Amendment right to say something— in a classroom, at a protest, or elsewhere—is a crucial question, but the inquiry should not end there. Even if the school, college, or agency chooses not to shut down the speech or discipline the speaker, the institution can take creative measures such as issuing a statement to the community or offering students and employees alternatives to exposure to the speech. Conduct and Targeting an Individual Are Not Prerequisites for Taking Action One point of confusion that arose from the congressional hearing is whether speech must cross over into conduct in order to constitute harassment. Under federal and state anti-discrimination laws, the answer is no. Speech based on protected status, including epithets, chants, derogatory comments, slurs, and jokes, can rise to the level of unlawful harassment if it sufficiently alters the conditions of employment or interferes with a student’s access to educational benefits or opportunities.

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January 2024

Moreover, speech need not target an individual in order to constitute harassment under anti-discrimination laws. Speech issued to the public—for example, a chant at a rally or media published online—can rise to the level of harassment if it meets the legal criteria for creating a hostile work or educational environment. The Importance of Enforcing Policies Consistently As if the above reminders are not complicated enough, public schools and colleges should also be mindful that enforcing harassment and discrimination policies inconsistently will almost certainly give rise to legal challenges. An individual subject to discipline may claim impermissible viewpoint discrimination under the First Amendment if they can point to a circumstance in which the entity did not similarly enforce its policies against a speaker who expressed a different viewpoint. There is an additional risk of a discrimination claim if these differing viewpoints are tied to a protected status—for example, if an entity imposes discipline for or restrains speech denigrating one ethnic or religious group but not another.

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benefits By: Stephanie J. Lowe New Student Loan Matching Program Benefit. There’s a brand new benefit employers may establish beginning in plan years during 2024. Under the Setting Every Community Up for Retirement Enhancement (SECURE) 2.0 Act, employers have the option of making matching employer contributions to certain types of employer-sponsored retirement plans based on employee’s student loan repayments. This includes 457(b) and 403(b) plans. Under this new benefit, as employees pay down their student loans, their employer will provide matching contributions to their retirement plan even if the employee is not making their own retirement contributions. The underlying purpose of these new student loan matching programs is to help employees who have student loan debt and who may not have the financial means to contribute to their retirement plan when they have to prioritize paying down student loans. Before SECURE 2.0 was passed, employers started to ask the Internal Revenue Service whether they could make employer matching contributions to retirement plans for employees who are paying down their student loans as a recruitment and retention tool. SECURE 2.0 now establishes this new benefit. The key requirements for the new student loan matching programs are: • Employer matching contributions must be based on qualified student loan payments (QSLP), which are payments on a qualified higher education loan that was incurred to pay for qualified higher education expenses at an eligible education institution.

• A QSLP includes a loan to pay higher education expenses of the employee, the employee’s spouse, or the employee’s dependent. • The employee must provide certification of their student loan payments at least annually. An employer can rely on an employee’s certification. • Even if the employer typically makes matching contributions on an employee’s elective deferrals to a 457(b) or 403(b) plan throughout the year, matching contributions based on a student loan matching program are only required to be made once a year. • An employer can only make matching contributions for student loans on behalf of employees who are or would be eligible to receive matching contributions on elective deferrals. • The matching contributions must be made at the same rate as matching contributions on the employee’s own contributions. The matching contributions must also vest in the same way as the employee’s elective deferral contributions. • Matching contributions are limited to the amount of an employee’s student loan payments. • Student loan matching contributions to a 457(b) plan are also limited to the amount of the 457 plan deferral limit ($23,000 for 2024) or the employee’s compensation if less, minus any plan contributions made by the employee for the year. If your agency is interested in learning more about this new benefit, please reach out to us.

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Reminder: Flexible Spending Account Dollar Limits For 2024. The employee salary reduction contribution limit for health flexible spending accounts (health FSAs) has increased to $3,200 for 2024 (up from $3,050 from 2023). Health FSA funds are tax-free dollars that may be used to pay medical expenses not covered by other health plans. While $3,200 is the new limit set by the IRS, employers should also review the limits set by their own Section 125 cafeteria plan documents. Some cafeteria plan documents may set a lower limit, or may need to be revised if an employer would like to allow employee to make salary reduction contributions up to the IRS limit as it adjusts on an annual basis. The increase to the 2024 health FSA contribution limit also means the IRS will permit employees to carry over up to $640 of unused health FSA funds at the end of a 2024 plan year to the following 2025 plan year. Employers should verify whether they have adopted a carryover option for their health FSA under their Section 125 cafeteria plan, and if so, should check the maximum amount that may be carried over per the terms of their cafeteria plan document. The maximum amount of DCAP benefits does not change year-to-year and remains at $5,000 (or $2,500 if married filing separately) for 2024.

January 2024

corner otherwise covered by health insurance but it does not provide health insurance coverage on its own. It is not going to meet the ACA’s requirements for providing minimum essential coverage. Further, some public agencies offer employees cash in lieu for opting out of employer-sponsored group health insurance. If an agency offers cash in lieu under the terms of an eligible opt out arrangement (which is recommended), then the employee will need to attest that they have alternative minimum essential health coverage for themselves and their entire tax family in order to receive the cash in lieu. Coverage that is not health insurance, such as a medical sharing cost plan, is not minimum essential coverage and will not satisfy the requirements of the eligible opt out arrangement.

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

ACA Compliance Question:

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

Question: If an employee enrolls in a private medical cost sharing plan, will it count as alternative health insurance that meets the Affordable Care Act’s requirements?

• 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.

Answer: No. A medical cost sharing plan helps individuals pay for their medical costs that are not

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Did You Know? 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.

Consortium Call Of The Month

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.

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January 2024

Question: A Community College District asked how long they should maintain a recruiting file for a President/ Superintendent search that includes information on all the applicants who went through the interview process.

Answer: The attorney explained that Title 5 governs retention periods for records of California Community College Districts. These regulations have typically longer retention periods than statutes that are not specific to Community College Districts. Under Title 5, Section 16022, the superintendent, or designee “shall review documents and papers received or produced during the prior school year and classify them as Class 1-Permanent, Class 2-Optional, or Class 3-Disposable.” Section 16023 mandates that the District classify certain employee records as Class 1-Permanent and retain those records indefinitely. Class 1-Permanent records includes the following: “All detail records relating to employment, assignment, amounts and dates of service rendered, termination or dismissal of an employee in any position, sick leave record, rate of compensation, salaries or wages paid, deductions or withholdings made and the person or agency to whom such amounts were paid.” Title 5, Section 16022(b) provides that for records of a continuing nature, i.e., active and useful for administrative, legal, or fiscal purposes, the District shall not classify them until such usefulness has ceased. When the usefulness of these records ceases, the District may consider classifying them as Class 3-Disposable and can destroy them after three school years. Here, all recruitment files pertaining to the District’s current President/Superintendent should be retained permanently because they relate to the employment of an employee so they are Class-1 Permanent records. The Fair Employment and Housing Act (FEHA) requires employers to maintain and preserve applications and personnel records for at least four years after the records are initially created or received. Therefore, the legal usefulness of the recruitment files pertaining to the unsuccessful (not hired) candidates for President/Superintendent ceases after four years. The District can then classify those materials as Class 3-Disposable and can destroy them after three years. So, the District can destroy these materials after seven years of the receipt of these materials (four years for the FEHA retention period + three years under Title 5). • www.lcwlegal.com •

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