Education Matters
Title ix Guidance
Court Vacates the 2024 Title IX Regulations Nationwide: California Educational Institutions Return to Pre-August 1, 2024 Anti-Sex Harassment and Discrimination Policies and Procedures.
On January 9, 2025, the U.S. District Court for the Eastern District of Kentucky issued a ruling in State of Tennessee v. Miguel Cardona, Civil Action No. 2:24-072-DRC, invalidating the U.S. Department of Education’s 2024 Title IX regulations. The decision marks a significant development in the interpretation of Title IX, a federal law designed to prevent sex discrimination by education institutions receiving federal funding. The 2024 Title IX regulations included provisions to safeguard individuals from discrimination based on gender identity and sexual orientation, while also introducing new procedures that extended beyond sexual harassment to address broader forms of sexbased discrimination. The 2024 regulations also reinforced existing protections for pregnant and parenting students by mandating clearer procedures for accommodations. The court set aside the 2024 regulations in their entirety, rather than opting to sever the language in the regulations challenged by the plaintiffs, finding that the regulations went far beyond the law’s original purpose.
U.S. Department of Education Office for Civil Rights Releases Guidance for How Schools Should Address Online and Digital Harassment Under Title IX.
On January 15, 2025, the U.S. Department of Education’s Office for Civil Rights (OCR) released a new resource to explain that Title IX regulations require schools to address sexual harassment in their education program or activity—even when such harassment occurs online or using emergent technologies such as artificial intelligence. The resource, titled Online or Digital Sexual Harassment under the 2020 Title IX Regulations: A Resource for Students, Families, and Educators, explains schools’ obligations under the 2020 Title IX regulations.
Title iV Guidance
U.S. Department of Education Releases Final Rules Regarding Distance Education Reporting and Revises Rules Regarding Student Withdrawal Under Title IV.
On January 3, 2025, the U.S. Department of Education (DOE) finalized regulations that amend Title IV of the Higher Education Act (HEA), addressing two substantive areas for institutions of higher education: distance education and return of Title IV funds (R2T4). The regulations are effective July 1, 2026.
Distance Education Regulations:
By July 1, 2027, institutions of higher education must report data to the National Student Loan Data System (NSLDS) on students receiving Federal financial aid who are enrolled in distance education or correspondence courses. The DOE added the statutory definition of a “Distance Education Course” to include in-person, non-instructional course components such as orientation, testing, and academic support services.
Streamlining Financial Aid Withdrawal Calculations
The regulations also amended section 668.22 of the HEA, which governs how institutions of higher education treat Title IV funds after a student withdraws.
When a recipient of Title IV grant or loan assistance withdraws from an institution during a payment period or period of enrollment in which the recipient began attendance, the institution is required to calculate the return of such funds using a statutory formula (R2T4). Under the final regulations, institutions do not have to perform an R2T4 calculation for a student if: (1) the student is treated as if they never attended the institution; (2) the institution returns all Title IV aid disbursed to the student; (3) refunds all institutional charges for that payment period or term; and (4) cancels or forgives any outstanding balance that the student owes for that period or term as a resulting from the return of Title IV aid to the DOE .
Institutions may choose to update their withdrawal policies by implementing this withdrawal exemption as early as February 3, 2025.
In addition, the regulations removed the option for institutions to use the “cumulative method,” which uses the number of hours a student would have completed cumulatively across multiple payment periods in calculating the percentage to Title IV aid earned in clock-hour programs for the purposes of R2T4 calculations. Institutions instead must only consider the scheduled hours that have elapsed during a payment period since the student began attendance in that payment period.
The regulations also clarify that a module is only included as part of the R2T4 calculation when a student begins attendance in the module.
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:
February 13 & 20, 2025 - Bargaining Over Benefits
March 13 & 20, 2025 - PERB Academy
April 17 & 24, 2025 - Trends & Topics at the Table
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
For more information on some of our upcoming events and trainings, click on the icons:
Employer liability for employee misconduct
District Found Liable for Teacher’s Sexual Misconduct Where Principal Did Not Thoroughly Investigate Student Complaints.
While A.H. was still in middle school, he began taking private tennis lessons from Normandie Burgos, a fulltime P.E. teacher and tennis coach at Tamalpais High School. A.H. considered Burgos a mentor. A.H. later attended Tamalpais High School and joined the tennis team as a freshman. In 2003, Burgos began sexually abusing A.H while he was a student at the high school.
One year prior, in 2002, the school had investigated a student complaint of sexual abuse against Burgos. A police detective notified the high school principal, Chris Holleran, that a student’s therapist had made a report that Burgos had sexually abused the student. The student, a wrestler, told Holleran that Burgos had touched his genitals during a body fat measurement test, while they were alone in Burgos’s office. Holleran told the court that Burgos acknowledged taking the student’s body fat measurements and admitted that it was possible he had brushed against the student’s genitals while measuring his thighs. When Holleran investigated the incident, he did not speak to any students about their experiences with Burgos. He also did not speak with any employees in the P.E. department about rules or policies regarding body fat testing.
In December 2002, Holleran wrote an “Incident Report/Letter of Warning” to Burgos, describing Burgos’s conduct as “careless, highly inappropriate, and unjustifiable.” Holleran wrote that Burgos’s conduct caused the student emotional distress and resulted in a hostile learning environment. Holleran directed Burgos “not to engage in similar activities under any circumstances” and “never to take body fat measurements of students in the thigh area.” Holleran also wrote that he would work with the P.E. department to create written protocol for all body fat measurements in the future.
Holleran did not place the warning letter in Burgos’s personnel file because he believed the complaint represented an isolated incident and because he felt he did not have evidence that Burgos had intended to touch the student inappropriately. Holleran did not tell the athletic director or any other P.E. teachers about the compliant. He did not tell his two assistant principals about the complaint and did not instruct them to supervise Burgos more carefully. Holleran claimed that he did not create a written protocol for body fat measurement tests because BMI measurements were becoming more common and body fat testing would soon be irrelevant. The only other measure Holleran took to prevent Burgos from abusing students was to increase his presence in the coaches’ office area by stopping by unannounced more frequently.
In 2020, A.H. filed a lawsuit against the Tamalpais Union High School District for negligent supervision in failing to protect him from Burgos. A.H. argued that District employees failed to properly investigate the 2002 student complaint or properly supervise Burgos following that complaint. A.H. argued the District’s response empowered Burgos, which lead to him sexually abusing A.H.
At trial, A.H. presented evidence that Burgos had sexually abused at least five other students between 1999 and 2001. Multiple students testified that they had discussed Burgos’s behavior with their classmates, and other students told them they had had similar experiences.
A.H. also produced evidence that another student submitted a complaint about Burgos in 2005. The complaining student and another student wrote statements about Burgos giving them invasive body fat tests. The complaining student reported that three of his friends had had similar experiences with Burgos. Other than the complaining student, Holleran did not speak to any other students about Burgos in 2005. In April 2005, the District issued Burgos a “Notice of Unprofessional Conduct and Improvement Plan,” directing him to refrain from taking body fat measurements or providing physical therapy or assisting with stretching. Holleran did not notify any teachers about the 2005 complaint and took no additional action to supervise Burgos more closely.
A.H. asked for $19.3 million with a 90 percent allocation of fault to the District and 10 percent allocation to Burgos. The District conceded that Burgos sexually abused A.H. but argued that the District’s negligence was not a substantial factor in causing harm to A.H. The District asked that a 75 to 90 percent allocation of fault be attributed to Burgos. The jury found the District negligent and awarded A.H. $10 million in damages. The jury found that the District’s negligence was a substantial factor in causing harm to A.H., and assigned 100 percent responsibility to the District and 0 percent to Burgos.
The District appealed. The District argued that the trial court improperly instructed the jury. The District also argued that the trial court erred in allowing A.H. to present inadmissible evidence of Burgos’s abuse of other students.
The District argued that the trial court improperly instructed the jury because it failed to instruct (1)
that the District could not be held vicariously liable for Burgos’s conduct of sexually abusing A.H. because such conduct is not within the scope of employment and (2) that the District could only be held liable for the conduct of its supervisory employees. The court of appeal found that the District failed to show that the jury instructions were erroneous. The court of appeal noted that the jury instructions stated that the District could be liable for a student’s harm only if one or more of its employees were negligent in supervising or retaining the teacher and that negligence was a substantial factor in causing the student’s harm. The court of appeal found that this instruction adequately conveyed the law.
The District also argued that the instructional error must have been prejudicial because the jury reached a “legally impossible” verdict by assigning 100 percent responsibility for A.H.’s harm to the District and 0 percent to Burgos. The court of appeal noted that the District did not separately claim insufficiency of the evidence as to the jury’s apportionment finding, so it had failed to raise the issue on appeal. Therefore, court of appeal declined to consider whether the jury’s apportionment of fault was supported by sufficient evidence.
The court of appeal also found that the trial court did not err in allowing A.H. to present evidence of Burgos’s inappropriate conduct that occurred before Burgos abused A.H. and after A.H. graduated. The evidence showed that Burgos’s misconduct was pervasive and well known among students. This evidence was relevant to show what District supervisory employees should have known about Burgos and would have discovered had Holleran properly supervised Burgos and conducted an adequate investigation following the 2002 complaint. Evidence of the 2005 complaint, which occurred after A.H. graduated, was relevant because it showed the District did not reasonably supervise Burgos following the 2002 complaint. It also rebutted Holleran’s claim that he did not create a written protocol for measuring body fat because the test was being phased out and replaced by BMI measurement. The court of appeal concluded that the trial court did not abuse its discretion in admitting this evidence.
The court of appeal affirmed the trial court’s judgment.
A.H. v. Tamalpais Union High School Dist. (2024) 105 Cal. App.5th 340
Campus hazing act
“Stop Campus Hazing Act” Imposes New Reporting and Policy Requirements on Higher Education Institutions.
On December 24, 2024, President Joe Biden signed into law H.R 5646, the “Stop Campus Hazing Act” (Act). The Act was passed to help strengthen campus safety by requiring postsecondary institutions to: (1) include hazing incidents in their annual security report (ASR) required by the Clery Act; (2) create and publish hazing education and prevention policies and programs; and (3) publish on their institutional websites summaries of hazing violations involving student organizations.
I. Prevention Programs and Policies
By June 24, 2024, colleges and universities must implement and publish: (1) anti-hazing policies; (2) policies for reporting hazing incidents; (3) hazing investigation procedures; (4) information on applicable local, state, and/or Tribal hazing laws; and (5) campus-wide hazing prevention and awareness involving students, staff, faculty, and other stakeholders.
II. Campus Hazing Transparency Report
By December 2025, colleges and universities must also publish on their institutional websites the names of officially established or recognized student organizations that have violated anti-hazing policies through a “Campus Hazing Transparency Report” (CHTR). The CHTR must include the name of the student organizations found responsible for hazing violations. The CHTR must also include summaries of the hazing incidents, including a general description of the violation, the date of the alleged incident, the date of the initiation of the investigation, the date the investigation ended with a finding, the sanction, and the date the institution provided notice to the student organization of the finding. The CHTR must be updated at least twice a year.
III. Inclusion of Hazing Statistics in the Annual ASR
The Act requires colleges and universities that participate in federal student aid programs and are subject to the Clery Act reporting requirements to disclose any hazing incidents that were reported to campus security authorities or local police in their annual ASR. “Hazing” for the purposes of Clery Act reporting is “[A]ny intentional, knowing, or reckless act committed by a person (whether individually or in concert with other persons) against another person or persons regardless of the willingness of such other person or persons to participate,” that is “committed in the course of an initiation into, an affiliation with, or the maintenance of membership in, a student organization;” and “causes or creates a risk, above the reasonable risk encountered in the course of participation in the institution of higher education or the organization (such as the physical preparation necessary for participation in an athletic team), of physical or psychological injury.”
Examples of hazing include but are not limited to: (1) whipping or beating; (2) causing, coercing, or inducing sleep deprivation, consumption of substances, or performance of sexual acts; and (3) any activity that places another person in reasonable fear of bodily harm using threatening words or conduct. Under the Act, a “student organization” means an organization (such as a club, fraternity or sorority, sports team, or student organization) in which two or more of the
members are students enrolled at the institution of higher education, whether or not the organization is established or recognized by the institution.
IV. Recommended Actions
While California law addressed hazing through criminal penalties and institutional policies, via Penal Code Section 245.6 (Matt’s Law) and Education Code Section 66300, it did not provide the comprehensive reporting and preventive measures required by the federal Stop Campus Hazing Act. California’s colleges and universities need to align their practices with these new federal standards. To comply with the Act’s requirements, we recommend colleges and universities undertake the following:
• Update or establish the institutions anti-hazing policies, and reporting and enforcement protocols by June 24, 2025.
• Review or establish current hazing prevention programs by June 24, 2025.
• Begin collecting hazing statistics to include in the next ASR due October 1, 2025.
• Prepare to establish a website to include information about hazing violations on or after July 1, 2025.
• Review student handbooks and other institutional materials that address hazing to ensure they align with the Act’s standards and definitions and provide offer clear, consistent, and unified details about the institution’s stance against hazing and the consequences of violating its anti-hazing policy.
new to the Firm!
Jessica Neighbors is an Associate in the Los Angeles office of Liebert
Cassidy Whitmore, where she provides advice and counsel on a wide range of labor and employment law matters.
Bryant S. Forster is an Associate in the Los Angeles office of Liebert
Cassidy Whitmore, where he provides counsel on labor and employment law matters and represents clients in litigation.
Disability
Ninth Circuit Allows Medical Act and Disability Discrimination Claims to Proceed Without Exhausting IDEA Administrative Remedies.
Hawaii Disability Rights Center (HDRC) is a federally authorized and funded protection and advocacy organization representing individuals in Hawaii with developmental disabilities, including children and young adults with autism. HDRC filed a lawsuit on behalf of children and young adults under 22 diagnosed with autism who required Applied Behavioral Analysis (ABA) services. HDRC alleged that Hawaii’s Departments of Education (DOE) and Department of Human Services (DHS) unlawfully deny students with autism access to ABA services during the school day, even when those services are medically necessary and prescribed. ABA is a form of individualized behavioral therapy focused on reinforcing positive behavior in individuals with autism and other developmental disabilities. Both parties agreed that ABA therapy is one of the few effective, evidence-based treatments available for autism.
HDRC alleged that DOE’s and DHS’s policies generally do not provide ABA services during the school day. Under these policies, a student with autism who has been medically prescribed ABA services cannot receive services during the school day unless DOE approves it, deems it educationally relevant, and has DOE-approved personnel provide the service. This is true even if the services are covered by insurance or parents and could be provided at no cost to DOE.
HDRC argued that this restriction results in some students receiving no ABA services during school, even when medically necessary. HDRC argued that other students receive inadequate ABA services that fail to address their social and medical needs because DOE limits the services to ensuring students can keep up with the educational curriculum.
HDRC sought injunctive and declaratory relief, alleging that DOE’s and DHS’s policies limiting access to medically prescribed ABA services during the school day violate the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act, the Medicaid Act, and the Individuals with Disabilities Education Act (IDEA).
Under the IDEA, the DOE must provide children with disabilities a free appropriate public education (FAPE), which might require special education and related services. Eligibility and services are determined by an Individualized Education Program (IEP) team, which includes school staff, district administrators, and the child’s parent or guardian. If an IEP team member disagrees with the IEP or lack thereof, they must first exhaust administrative remedies by filing a complaint and undergoing a due process hearing. A party may only bring a civil lawsuit regarding the complaint after obtaining a decision through the administrative hearing process. If a party files a lawsuit that does not explicitly claim a violation of the IDEA but seeks relief that is available under the IDEA, they must first exhaust all administrative remedies before proceeding with the lawsuit.
DOE and DHS moved for summary judgment, asserting that all claims required administrative exhaustion under the IDEA before proceeding with a lawsuit. The trial court granted the motion, concluding that the ADA, Section 504, and Medicaid Act claims were subject to IDEA’s exhaustion requirement because their “gravamen”, which mean the main part of the dispute, sought relief available under IDEA. The trial court rejected HDRC’s argument that protection and advocacy organizations were exempt from the exhaustion requirement and determined that none of the exceptions to IDEA’s exhaustion rule applied.
HDRC appealed. The Ninth Circuit Court of Appeal examined whether HDRC was required to exhaust administrative procedures available under the IDEA for each of its claims.
First, the Ninth Circuit examined HDRC’s IDEA claim. HDRC alleged that DOE violated the IDEA because it implemented policies and practices that failed to provide appropriate ABA services for students with autism. HDRC argued that DOE categorically failed to provide ABA services through qualified professionals, did not offer adequate ABA services, and prohibited ABA providers from delivering medically necessary ABA on campus during school hours. Additionally, HDRC claimed that DOE predetermined ABA services should not be included in IEPs, failed to provide a FAPE to students who needed ABA services during the school day, and did not adequately integrate students with autism into regular classrooms.
The Ninth Circuit held that HDRC, as a protection and advocacy organization, is authorized to represent its constituents in administrative proceedings under the Developmental Disabilities Assistance and Bill of Rights Act. HDRC argued that it was exempt from the IDEA’s administrative exhaustion requirement but the Ninth Circuit disagreed. The Ninth Circuit further determined that none of the recognized exemptions to exhaustion, such as futility, systemic applicability, or inadequacy of administrative remedies, applied to HDRC’s IDEA claim. The allegations focused on a specific component of the special education program (ABA services) rather than systemic flaws, and the Ninth Circuit found the administrative process was capable of addressing the issues that HDRC raised. Therefore, HDRC was required to exhaust administrative procedures for its IDEA claim before seeking judicial review.
Next, the Ninth Circuit summarized the purpose of the Medicaid Act. It explained that states participating in Medicaid and receiving federal funds must comply with federal regulations. In Hawaii, DHS administers Medicaid, including “Quest Integration” health plans offered through private health providers. Under the Medicaid Act, DHS is required to provide free screening and medically necessary treatment services to qualified individuals, including ABA therapy for Medicaid beneficiaries with autism. The Ninth Circuit pointed out that Medicaid Act prohibits DHS from “restrict[ing] payment . . . for medical assistance for covered services furnished to a child with a disability because such services are included in the child’s [IEP].”
HDRC’s Medicaid Act claim alleged that DHS failed to provide medically necessary ABA services during school hours, improperly delegated this responsibility to DOE (which does not accommodate ABA services), and failed to coordinate a system to ensure students with autism receive necessary services. HDRC argued these failures violated the Medicaid Act’s requirement to provide necessary services to children receiving Medicaid.
The Ninth Circuit explained that the ADA and Section 504 of the Rehabilitation Act require public entities to ensure equal access to benefits, services, and programs for individuals with disabilities. HDRC’s ADA and Section 504 claims alleged that DOE and DHS discriminated against students with autism by failing to provide reasonable accommodations, using discriminatory administrative methods, denying equal access to programs and services, and offering less effective services to students with autism compared to others.
The Ninth Circuit held that HDRC’s non-IDEA claims under the ADA, Section 504, and Medicaid Act did not seek relief for the denial of a FAPE, which is the only relief available under the IDEA. Therefore, HDRC was not required to exhaust the IDEA’s administrative procedures for those claims.
The Ninth Circuit affirmed in part and reversed in part the trial court’s summary judgment decision and remanded the case for further proceedings consistent with its opinion.
Hawai’i Disability Rights Ctr. V. Kishimoto (9th Cir. 2024) 122 F.4th 353
Employer Liability
Off Duty School District Police Officer Could Have Been Acting Within Scope of Employment When He Assaulted Man.
In February 2018, Antonio Juarez found a cellphone on the ground and placed it in his truck. Later that afternoon, Police Officer Alejandro Brown tracked his cell phone location to the home of Jose Hinojosa. Brown worked for the San Bernardino City Unified School District. Brown went to Hinojosa’s home and approached Juarez, Hinojosa, Jose Espinosa, and Maria Morfin (collectively, Plaintiffs).
Brown, carrying his firearm and displaying his badge, identified himself as a District police officer, and demanded that the group comply with his commands. Brown then pulled his firearm, cocked it, and aimed it at Juarez, Espinosa and Hinojosa, who were outside the home, while Morfin watched from inside. Brown demanded they turn over the cell phone and repeatedly asserted his authority as a police officer. Juarez retrieved the phone and attempted to hand it to Brown, but Brown ordered Juarez to put the phone on the ground. As Juarez went to do so, Brown struck Juarez in the face with his gun, causing Juarez to fall back, hit his head on the ground, and lose consciousness. Brown then took pictures of Juarez, Hinojosa, Espinosa, and Morfin and told them he knew who they were.
Brown later pled guilty in to assault by a public officer and threatening the Plaintiffs under color of law. Brown admitted that he had acted under the color of authority as a District police officer when he detained the Plaintiffs and assaulted Juarez.
The Plaintiffs then sued the District, alleging that the District was negligent and liable for harm Officer Brown caused. Plaintiffs argued Brown was acting within the scope of his employment based on: the vast authority the District gives its officers; and the fact that the incident occurred while Brown was investigating what he believed to be the theft of his cell phone.
The District demurred and the trial court dismissed the case. The court found that Plaintiffs failed to allege sufficient facts: (1) to hold the District directly liable for Officer Brown’s acts; (2) to find that Officer Brown acted within the course and scope of his employment; or (3) to find that Officer Brown was exercising arrest powers pursuant to the Penal Code at the time of the incident. Plaintiffs appealed.
The court of appeal reversed and remanded. The court of appeal found the Plaintiffs had plead facts sufficient to establish Officer Brown was acting within the scope of his employment. The court of appeal reasoned that Plaintiffs had established a connection between Officer Brown’s duties as a District officer and his misconduct because: (1) he had a duty to ensure the security of property; and (2) the District authorized and equipped him to use force to do so. Finally, the court of appeal concluded that whether Officer Brown was off duty at the time of the incident was not dispositive given the alleged breadth of his off-duty authority.
The court of appeal directed the trial court to vacate its order sustaining the demurrer, and conduct further proceedings.
Juarez v. San Bernardino City Unified School Dist., 106 Cal.App.5th 1213 (2024).
Discrimination
Flight Attendant Defeats MSJ Based on Evidence That Airline Discriminated and Retaliated.
United Airlines investigated and ultimately fired flight attendant Alexa Wawrzenski for failing to remove photos of herself in uniform and wearing a bikini on her social media account, which had a link to subscription-based content. Wawrzenski sued United, alleging that United employees subjected her to years of gender discrimination and harassment and that United retaliated against her for her complaints. She alleged that coworkers and supervisors made harassing, derogatory, and objectifying comments about her body and the way she looked in her uniform. She alleged that she heard these comments several times a month.
To show that United treated male employees differently, Wawrzenski submitted evidence of three male employees with social media accounts that included pictures of themselves in uniform and in “suggestive” poses. United only gave the male employees performance warnings or no discipline at all. She also produced evidence of United’s failure to investigate her complaints. She further alleged that United had a discriminatory atmosphere because a co-worker told her she would experience “a lot of hate” because she was a “young, attractive female” and that she should “get used to it.”
The trial court granted United’s motion for summary judgment and Wawrzenski appealed. The court of appeal held that the trial court had erred in dismissing Wawrzenski’s causes of action under the Fair Employment and Housing Act (FEHA).
The court of appeal concluded that Wawrzenski had sufficient evidence to make a prima facie case of FEHA gender discrimination, because she showed: 1) membership in a protected class; 2) competent work performance; 3) an adverse employment action, namely termination; and 4) other circumstances suggesting discriminatory motive. United conceded the first three elements of a prima facie case but contested the fourth.
The court of appeal found there was sufficient evidence to suggest a discriminatory motive because United treated at least three male employees with similar social media activities more favorably. That evidence created a factual dispute as to whether United terminated Wawrzenski based on discriminatory animus. The court of appeal also found sufficient evidence to suggest Wawrzenski was subjected to a hostile work environment.
The court of appeal determined that there was a triable issue regarding whether United retaliated against Wawrzenski for her complaints. The court of appeal also found that the trial court was wrong to exclude evidence of comments made before the limitations period for the purpose of establishing animus. The timing of Wawrzenski’s termination, just days after she complained about harassment, supported an inference of a retaliatory motive.
The court of appeal directed the trial court to vacate its order granting United’s motion for summary judgment on Wawrenski’s FEHA claims.
Alexa Wawrzenski v. United Airlines, Inc. (2024) 106 Cal.App.5th 663
Minimum wages
New Minimum Wage Increases Start on January 1.
Beginning on January 1, 2025, the statewide minimum wage will increase to $16.50 per hour for all employers, regardless of size. The state minimum wage rate is used to determine the salary threshold for administrative, executive, and professional exemptions. Because the threshold is set at two times the state minimum wage, schools will need to ensure that all exempt employees earn at least $68,640 annually in 2025.
In addition, beginning on January 1, 2025, the following California jurisdictions’ minimum wage rates are also increasing: Belmont, Burlingame, Cupertino, Daly City, East Palo Alto, El Cerrito, Foster City, Half Moon Bay, Hayward, Los Altos, Menlo Park, Mountain View, Novato, Oakland, Palo Alto, Petaluma, Redwood City, Richmond, San Carlos, San Diego (city), San Jose, San Mateo (city), San Mateo County, Santa Clara, Santa Rosa, Sonoma (city), South San Francisco, Sunnyvale, and West Hollywood. Employers in these locales should check their local ordinances to ensure they are complying with the increased wage and any notice, posting, and recordkeeping requirements.
Notice of proposed rulemaking
Notice of Proposed Rulemaking on NextUp Program.
The California Community Colleges, Chancellor’s Office has issued a proposed rulemaking titled “15-Day Notice of Modifications to Proposed Regulatory Action Regarding NextUp Program.” This proposed regulatory action follows the prior 45-day notice of proposed rulemaking related to the NextUp Program, which had a comment period that ended on December 20, 2024. The proposed regulations have been modified and the changes were submitted for an additional 15-day comment period which ended on January 8, 2025.
The proposed regulations can be found on the Office of General Counsel page of the Chancellor’s website at Office of General Counsel – Pending Regulatory Action. Questions and comments should be emailed to regcomments@cccco.edu. A public hearing was scheduled to be held during the Board of Governors meeting on January 14, 2025.
Disability Discrimination
U.S. Department of Education Office for Civil Rights Releases Guidance for Accommodating Student Disabilities.
On December 12, 2024, the U.S. Department of Education Office for Civil Rights (OCR) published four new resource documents regarding the rights of students with Inflammatory Bowel Disease (IBD), Migraine, Narcolepsy, and Stutter, and the corresponding responsibilities of institutions to accommodate these conditions under Section 504 of the Rehabilitation Act of 1973.
Federal student aid
Biden Signs FAFSA Deadline Act Into Law, Making October 1 the Official FAFSA Launch Date.
On December 12, 2024, President Biden signed the Free Application for Federal Student Aid (FAFSA) Deadline Act into law. The Act requires the Department of Education (ED) to make FAFSA available by October 1, every year, replacing the current January 1 deadline. The law requires that ED certify by September 1 that the FAFSA will be ready by October 1. If ED anticipates that the FAFSA will not launch on October 1, ED will need to testify before Congress to explain why and to estimate the anticipated financial impact the delay will have on students and families.
In previous cycles, the FAFSA has typically been released on October 1. However, the 2024-25 FAFSA was not released until late December last of 2023, and the 2025-26 FAFSA was officially launched in November of 2024.
AI and discrimination
U.S. Department of Education Office for Civil Rights Releases Guidance for Avoiding Discriminatory Use of AI.
On November 19, 2024, the U.S. Department of Education’s Office for Civil Rights (OCR) released a new resource, “Avoiding the Discriminatory Use of Artificial Intelligence,” that seeks to assist school communities in understanding how AI technologies, which have the potential to enhance educational opportunities, can also contribute to discrimination depending on how they are designed or used. The resource was published in response to Executive Order 14110: Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence, and provides information on the legal analyses the OCR uses to determine whether discrimination exists and various examples of conduct that could constitute discrimination. The resource explores the role of AI in race, color, or national origin discrimination, sex discrimination, disability discrimination, and multiple bases of discrimination.
benefits Corner
IRS Increases Standard Mileage Rate to 70 Cents for 2025.
On December 19, 2025, the IRS announced that standard mileage rate for vehicles driven for business purposes will increase to 70 cents per mile effective January 1, 2025. This is 3 cents greater than the 2024 rate. The standard mileage rate applies to fully-electric and hybrid vehicles, as well as gasoline and diesel-powered vehicles. Please see IRS Notice 2025-5 for more information.
Reminder: New PEMHCA Minimum for 2025 is $158.
If your district contributes the Public Employees’ Medical and Hospital Care Act (“PEMHCA”) minimum for your group health plans, the new PEMHCA minimum contribution amount is $158 per month effective January 1, 2025. This is $1 more than the PEMHCA minimum contribution for 2024.
Public Agencies Must Pay PCORI Fees for Health Reimbursement Arrangements.
Districts that provide a health reimbursement arrangement (“HRA”) benefit are required to pay an annual excise tax known as the Patient-Centered Outcomes Research Institute (“PCORI”) fee. The Affordable Care Act established the PCORI fee to help fund the Patient-Centered Outcomes Research Trust Fund’s research into health outcomes, clinical effectiveness, and risk and benefits of medical treatments and services. The PCORI fee applies to specified health insurance policies and plan sponsors of applicable selfinsured health plans. Since HRAs are self-insured health plans, the PCORI applies to them. This is regardless of whether the HRA is for current employee or retirees.
The annual PCORI fee may increase every year. For plan years ending between October 1, 2024 and September 30, 2025, the PCORI fee is $3.47 multiplied by the average number of lives covered by the HRA during the year. When counting the “average number of lives” the HRA covers, there is a special rule for HRAs that permits employers to only count the lives of employees, without requiring the inclusion of spouses or dependents who participate in the HRA. (26 C.F.R. section 46.4376-1(c)(vi).)
If your district is not currently reporting and paying the PCORI fee for an HRA, please take notice of the PCORI fee requirement. The PCORI fee is in effect every year through 2029 and is an annual fee that must be paid for HRAs. The PCORI fee is reported using IRS Form 720, which is due on July 31 of the year following the last day of the policy year or plan year. The PCORI fee payment is also due when the Form 720 is due. For HRA plans that have not reported and paid the fee, there is typically a 3-year statute of limitations for all open tax years.
Benefits Compliance Question.
Question: Can Medicare be accepted as a form of alternative minimum essential coverage to meet the requirements of an eligible opt out arrangement for cash in lieu?
Answer: Yes, Medicare qualifies as alternative minimum essential coverage for an employee who has opted out of an employer’s group health plan and would like to receive cash in lieu. An employer who has negotiated an eligible opt out arrangement for represented employees or adopted one for unrepresented employees can accept an employee’s proof or attestation of enrollment in Medicare to meet the requirement that the employee be enrolled in alternative minimum essential coverage. Although Medicare is not considered a group health plan, eligible opt out arrangements should be set up to accept the alternative “minimum essential coverage,”
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: Answer:
A Community College District reached out to LCW because they had an administrator employee whose performance evaluation process timeline overlapped with the employee’s parental leave period. The employee asked if the evaluation could wait until they returned from leave. The employee’s contract was silent on delaying evaluations based on approved leaves and the District reached out to LCW for advice.
An LCW attorney advised the District that if the administrator is on parental leave, that is protected and the District should accommodate. The attorney explained that in Hernandez v. Rancho Santiago Community College District (2018), the California Court of Appeal addressed the termination of Marisa Hernandez, a probationary administrative assistant who was dismissed while on medical leave during her one-year probationary period. The District argued that because she was probationary and they did not have time to evaluate her, they needed to terminate her. The court found that the District had failed to provide reasonable accommodation and did not engage in the required interactive process under the California Fair Employment and Housing Act (FEHA). It is a reasonable accommodation to move the evaluation commensurate with the amount of leave. The attorney explained that although the leave in this situation is parental leave, not medical leave, it is a protected leave under FEHA and the same principle would apply.
Liebert Cassidy Whitmore