Education Matters: October 2023 by lcwlegal

October 2023

Education Matters

Table Of Contents 03

Civil Rights

Regulatory Action

Business & Facilities

First Amendment

Benefits

Firm Victories

Student Issues

Retirement

Did You Know?

Legislation

Disability

Consortium Call Of The Month

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

Christopher Fallon Partner | Los Angeles Madison Tanner Associate | San Diego

Connect With Us! Copyright © 2023 Requests for permission to reproduce all or part of this publication should be addressed to Cynthia Weldon, Director of Marketing and Training at 310.981.2000. Cover Photo: Attributed to pexels.com

Education Matters is published monthly for the benefit of the clients of Liebert Cassidy Whitmore. The information in Education Matters should not be acted on without professional advice. To contact us, please call 310.981.2000, 415.512.3000, 559.256.7800, 916.584.7000 or 619.481.5900 or e-mail info@lcwlegal.com.

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Community College Did Not Commit Age Discrimination Against Student Who Was Not Accepted To Mandatory Clinical Internships.

Gregory Steshenko, a student over the age of 50, enrolled in the medical laboratory technician program (MLT program) at De Anza College. The MLT program required students to complete a six-month clinical internship to graduate. De Anza College contracts with local clinical laboratories at hospitals and medical centers to provide internships to students in the MLT program.

October 2023

Civil Rights

were mainly interested in trying to exploit the students’ phlebotomy skills without paying them. He complained that the programs discriminated against him based on his age. In August 2017, Steshenko filed a complaint claiming that the District discriminated against him based on age. Lorrie Ranck, De Anza’s Associate Vice President of Instruction, responded to Steshenko that the MLT program had no power to force a clinical site to accept a student for an internship. Ranck also told Steshenko that the District takes allegations of discrimination seriously and that his complaint was referred to the Dean of Student Development. She told him to communicate with the Dean if he wished to pursue his discrimination claim further.

The MLT program student handbook stated that securing placement in the clinical training portion of the program was a competitive process. Students were required to interview with clinical affiliates for training positions though placement was not guaranteed. If a clinical training facility rejected a student’s application, the MLT program director would work with the student to improve their chances. If a student was unable to secure clinical training within two years of completing the academic portion of the MLT program, they would no longer be eligible for placement.

In August 2017 Steshenko applied to a third clinical program and they rejected him. He later alleged the interviewer said, “Look around, does anyone here look like you?” He claims that only young people staffed the laboratory.

In May 2017, Steshenko applied to two programs and both programs rejected him. The MLT program director, Patricia Buchner, reached out to one of the interviewers, Un Sil Lee, for feedback on Stechenko’s interview. Lee responded that Steshenko lacked enthusiasm for working in all areas of the laboratory, such as the phlebotomy area. Buchner relayed this to Stechenko and advised him to keep the clinical sites’ needs in mind. Buchner invited Stechenko to participate in interview coaching, but he declined. Stechenko wrote to Buchner that the clinical programs

Steshenko sued the District for age discrimination, breach of contract, and intentional infliction of emotional distress. He asked the court to award monetary damages and to force the District to allow him to graduate from the MLT program. He argued that the clinical affiliates discriminated against him based on his age and that the District authorized or acquiesced to their discrimination. The District denied the allegations and asked the trial court to dismiss the case, through a motion for summary judgment.

The District notified Steshenko of other opportunities to apply for internships. Steshenko refused to apply to other clinical placements. He also declined to apply to placements that had a long commute and said he could no longer afford to work an unpaid internship.

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The Trial Court agreed with the District and granted the motion for summary judgment. The Trial Court held that the District could not have committed age discrimination because there was no employment relationship between Steshenko and the District. The Trial Court also held that the District had not breached any contract because there was no evidence that a contract existed, implied or otherwise. The Trial Court also agreed that the District had not committed intentional infliction of emotional distress because the District had not engaged in extreme and outrageous conduct. Steshenko appealed the decision. The Court of Appeals agreed with the Lower Court that there was no employment relationship between Steshenko and the District. The District did not exercise control over students’ work for the clinical affiliates and the clinical affiliates were not the District’s agents. The Court of Appeals examined the contracts between the District and the clinical affiliates. The contracts stated there was no relationship of agent or employee between the school and the clinical affiliates. They also specified that clinical affiliates supervised the students and had the sole discretion to select or dismiss students. Additionally, the District had made clear to students through the MLT handbook and other communications that the external clinical placements were competitive and not guaranteed. The Court of Appeals rejected Steshenko’s argument that the District’s MLT program was a “training program leading to employment” as defined in California’s Fair Employment and Housing Act. The District’s MLT program prepares students to pass the educational requirement for the medical laboratory technician license, but students still need to pass other state requirements such as a state licensing exam, then seek employment independently. The Court of Appeals held that Steshenko’s claims under Government Code and Education Code anti-

discrimination statutes failed because the District had not acted with deliberate indifference to his complaint. Ranck elevated his discrimination complaint to the Dean of Student Development and instructed Steshenko to contact the dean if he wished to pursue his complaint. He did not. Also, the District had reason to believe that Steshenko’s rejection from the programs had been for reasons other than age discrimination, such as not wanting to perform the phlebotomy work that the internships required. The District attempted to help Steshenko better prepare for interviews and notified him of additional opportunities until he eventually expressed that no unpaid placement would be acceptable. The Court of Appeals also rejected Steshenko’s argument that the District had breached an implied contract to ensure his timely graduation from the MLT program in exchange for his satisfactory performance and payment of fees. The Court of Appeals held that this implied contract did not exist. Graduation was contingent on completing the MLT program requirements and there was no implied contract that contradicted that. Finally, the court of appeals held that the District had not committed intentional infliction of emotional distress because the District’s conduct was not “extreme and outrageous.” The District had no power to force the clinical programs to admit Steshenko nor to waive the requirement of practical training, which is legally required for approved educational programs leading to a medical laboratory technician license. The Court of Appeals upheld the trial court’s decision to dismiss the case on summary judgment and rejected Steshenko’s request for a new trial. Steshenko v. Foothill-De Anza Cmty. Coll. Dist. (July 26, 2023, No. H049871) ___Cal.App.5th___ [2023 Cal. App. Unpub. LEXIS 4330].

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October 2023

new to the Firm! Dana Segal, an Associate in the Los Angeles office, provides advice and counsel on all employment law and litigation related matters. Prior to joining LCW, Dana served as a Deputy District Attorney in the Los Angeles District Attorney’s Office.

Louis Lee, an Associate in the San Francisco office, provides advice and counsel to our clients in all matters pertaining to labor and employment law. Louis has experience in all phases of litigation and has handled matters ranging from investigations and antitrust class actions to administrative actions and False Claims Act suits.

Kelsey Ridenhour, an Associate in the Los Angeles office, provides labor and employment law expertise in matters pertaining to our public agency clientele. Prior to joining LCW, Kelsey served as a Judicial Clerk with the Central District of California.

Jacqueline “Jackie” Lee, an Associate in the Los Angeles office, provides advice and counsel on all employment law and litigation related matters. Prior to joining LCW, Jacqueline externed for the Honorable Edward J. Davila at the United States District Court, Northern District of California.

Belinda Tommarello, an Associate in the Los Angeles office, provides litigation expertise in labor and employment law matters. Prior to joining LCW, Belinda was a Senior Litigation Associate at an Orange County based law firm.

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first amendment News Organization Was Engaged In Protected Free Speech Activity When It Issued A Public Records Request For A Professor’s PostPublication Communications.

The Trial Court denied CSI’s anti-SLAPP motion. The Court held that Iloh’s petition to prevent UC Irvine’s disclosure of her communications did not “arise from” protected activity. CSI’s protected activity of newsgathering may have led to or been incidental to the disclosure that Iloh was trying to prevent, but it was not the basis of Iloh’s claims. CSI appealed that order.

Constance Iloh worked at UC Irvine’s School of Education from 2015 to 2021, first as a postdoctoral fellow and then as an assistant professor. During her time as a UC Irvine professor, Iloh published four articles in academic journals that were unaffiliated with UC Irvine. The journals later retracted or corrected her articles because they had concerns about possible plagiarism and inaccurate citations.

The Appeals Court agreed with CSI. The Appeals Court held that Iloh’s lawsuit arose out of CSI’s protected free speech activity, so it was subject to CSI’s anti-SLAPP motion.

The Center for Scientific Integrity (CSI) is an organization that reports on academic retractions and accountability. CSI wrote an article about Iloh’s retracted and corrected articles. CSI sought to further its investigation, so it sent UC Irvine a records request under the California Public Records Act (CPRA). CSI requested Iloh’s postpublication communications (1) between UC Irvine and Iloh regarding the articles published in the four journals, and (2) between UC Irvine or Iloh and the four journals regarding Iloh’s articles. Iloh filed a petition against the UC Regents and asked the trial court to prevent them from disclosing her communications to CSI. CSI filed an anti-SLAPP motion and asked the court to dismiss Iloh’s case because she was trying to prevent them from engaging in protected free speech. Anti-SLAPP motions allow courts to quickly dismiss lawsuits that try to prevent people from exercising their First Amendment protected free speech rights. First the court decides whether the lawsuit arises from a person’s protected right to free speech or their protected right to petition the government. Then the court decides if the person bringing the lawsuit has facts and a legal theory that could allow them to win. If they fail that second step in the analysis, the case is dismissed.

First, Iloh argued that CSI could not bring an anti-SLAPP motion because CSI was not a named defendant. Iloh was trying to stop UC Irvine’s production of records, not CSI’s request for records. The Court of Appeals disagreed. In this case, CSI’s ability to access the records was the focus of the lawsuit, so CSI had a direct interest and could bring the antiSLAPP motion. The Court of Appeals held that CSI’s public records request was a protected free speech activity. Protected free speech includes written or oral statements made in a public forum or place open to the public, connected to an issue of public interest, including newsgathering. The records requested by CSI concern an issue of public interest because the public has an interest in knowing how a public university handles integrity challenges. Next, the Court of Appeals examined whether Iloh’s lawsuit arose from CSI’s protected free speech activity. Iloh’s petition sought to prevent UC Irvine from disclosing the records to CSI. Thus, the purpose of the lawsuit was to challenge the propriety of CSI’s public records request. The Court of Appeals determined the action arose from protected activity. Ultimately, the Court of Appeals remanded the case to the Trial Court to determine whether Iloh was likely to prevail on her claims. Iloh v. Regents of University of California (2023) 94 Cal.App.5th 947 [312 Cal.Rptr.3d 674].

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October 2023

Introducing LCW's New Partners!

Amy Brandt

Nathan Jackson

Alexander Volberding

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student Transgender Parental Notification Policies. Six California school districts have recently passed parental notification policies that require schools to notify parents and guardians if a student asks teachers to refer to them by a different gender or name, or if they use a bathroom or program that does not align with the gender on their official records. The districts include Rocklin Unified School District, Orange Unified School District, Temecula Valley Unified School District, Anderson Union High School District, Murrieta Valley Unified School District, and Chino Valley Unified School District. Placentia-Yorba Linda Unified School District adopted a parental notification policy that would notify parents if a student posed a “clear and present danger” to themselves or others. The policy does not contain the words “gender identity” or “transgender,” but opponents have expressed fears that schools might use the policy to out transgender students against their wishes. The September edition of Education Matters reported that Attorney General Rob Bonta has filed a lawsuit asking the San Bernardino County Superior Court to overturn Chino Valley Unified School District’s new parental notification policy. The Attorney General argues that the District’s policy violates antidiscrimination laws and violates students’ civil rights and constitutional rights to privacy. The judge ordered the District to temporarily stop enforcing the new policy and litigation is ongoing.

Federal District Court Stops Enforcement Of School District’s Gender Identity Policy. Escondido Union School District recently adopted a gender identification policy where: (1) there is schoolwide recognition of any student’s newly expressed gender identification and (2) when communicating with a student’s parents, there is an enforced requirement

of faculty confidentiality and non-disclosure regarding a student’s newly expressed gender identification. The result of this policy is that a teacher ordinarily may not disclose to a parent the fact that a student identifies as a new gender or wants to be addressed by a new name or new pronouns during the school day. This policy only permits communication with parents about the student’s gender identify if the student first gives consent to the school. A teacher who knowingly fails to comply may be considered to have engaged in discriminatory harassment and subject to discipline. At the start of the 2022 school year, two teachers sought religious accommodations in response to the policy. The District did not contest the sincerity of their religious beliefs, but did not grant the accommodations. The two teachers filed suit in Federal District Court, asking the Court to issue a preliminary injunction to stop the District from taking adverse employment actions against them in the event they violated the policy. The teachers argued that they maintain sincere religious beliefs that communications with a parent about a student should be accurate; communications should not be calculated to deceive or mislead a student’s parents. The teachers also argued that parents enjoy a federal constitutional right to make decisions about the care and upbringing of their child. The teachers stated they had a well-founded fear of adverse employment action should they violate the policy. The Court concluded that the confidentiality and nondisclosure of a student’s gender identity to parents is not conducive to student health. The Court relied on certain medical experts who indicated that when a child presents a desire to use a new name or pronoun, the first step should be careful assessment by a mental health professional with expertise on the topic. The Court quoted a medical expert’s testimony that mental health practices should not drive a wedge between parents and children, because this creates distrust and tension. The Court also considered that parental consent is required to provide medical and psychological treatment to minors.

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The Court referenced the United States Supreme Court’s continued position that parents have a right, grounded in the U.S. Constitution, to direct the education, health, and upbringing, and to maintain the well-being of, their children. The Court considered that the Family Educational Rights and Privacy Act (FERPA), which requires schools to provide parents the opportunity and right to inspect and review their child’s educational record, likewise speaks to the importance of parental involvement in their child’s education. The Court was not persuaded that a child has a right to privacy surrounding their name and pronouns, especially because one element of a right to privacy is a reasonable expectation of privacy. The Court held that a student who announces the desire to be publicly known in school by a new name, gender, or pronoun, does not have a reasonable expectation of privacy. The Court considered a child’s right to privacy as a quasi-right, in that, certain parental rights, including the parental right to know, and the parental right to control and direct the activities of their child, are superior to a child’s rights to privacy. The Court finally considered whether the policy impacted the teachers’ free speech rights. The teachers argued that their right to speak freely on matters of public concern does not end at the school doors, and that the policy forces them to adhere to an ideology with which they directly disagree, as a condition of their employment. The Court declined to rule on the free speech claim because it could grant the preliminary injunction based on the teachers’ free exercise of religion claim.

October 2023

issues Court concluded that the teachers faced an unlawful choice to lose their faith and keep their job or keep their faith and lose their job. In light of these findings, the Federal District Court denied Escondido Unified School District’s motion to dismiss and granted the teachers’ request for a preliminary injunction. This means the case will continue and, in the meantime, the District cannot enforce the policy against the teachers who brought the lawsuit. Mirabelli v. Olson (S.D.Cal. Sep. 14, 2023) 2023 U.S.Dist. LEXIS 163880. Note: The August edition of Education Matters reported on the Regino v. Staley case. In that case, a parent sued the Chico Unified School District because the District’s policy prevented teachers from notifying her when they began referring to her child by a different name and gender pronouns, because they did not have her child’s consent to share that information with her. In that case, a different federal district court ruled in favor of the District and said that the District’s policy did not violate the mother’s constitutional parental rights. The mother has appealed the decision which is pending before the Ninth Circuit Court of Appeals.

The Court considered whether the policy impacted the teachers’ free exercise of religion. The teachers argued that the policy violated their freedom of religion because they believe the relationship between parents and children is an inherently sacred and life-long bond, ordained by God, and that God forbids lying and deceit. The District argued that the policy does not require lying, which the Court did not find persuasive. The

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Legislation Native-Language Courses In Community Colleges.

The Governor signed Assembly Bill 1096, which authorizes community colleges to offer courses taught in languages other than English without requiring students who enroll in those courses to concurrently enroll in an English as a Second Language (ESL) course. Previously, students could only pursue coursework taught in languages other than English if they were concurrently enrolled in an ESL class.

In-state Tuition For Mexican Residents. Governor Newsome signed Assembly Bill 91, which will create a pilot program to allow low-income Mexican residents who live within 45 miles of the Mexico-California border to pay in-state tuition at one of nine participating community colleges in the San Diego and Imperial Valley region. These community colleges include Cuyamaca College, Grossmont College, Imperial Valley College, MiraCosta College, Palomar College, San Diego City College, San Diego Mesa College, San Diego Miramar College, and Southwestern College. The bill allows a maximum of 150 students at each of the colleges to receive an exemption from the nonresident tuition fee.

LGBTQ Student Issues. Governor Newsom signed the following bills that affect LGBTQ students in public school and college settings: • Assembly Bill 760 prohibits CCDs, CSUs, and UCs from requiring legal documentation of a legal name or gender change in order to have a student’s chosen name be the only name listed on the student’s diploma. Current law prohibits CCDs from charging higher fees to update or reissue documents or records to reflect an affirmed name or gender identification than the fee it charges for correcting, updating, or reissuing that document or record generally. AB 760 expands this rule to cover CSUs and UCs as well. • Assembly Bill 5 sets deadlines for teachers and staff to undergo LGBTQ cultural competency training. By July 1, 2025, the California Department of Education must finalize the development of an online training curriculum to provide LGBTQ cultural competency training for teachers and other certified employees. The new law directs that, between 2025 and 2030, each local educational agency serving pupils in grades 7 to 12 must require teachers and other certified employees to annually complete the online training or an in-service alternative. • Senate Bill 760 requires public schools serving students in grades K-12 to have at least one all-gender bathroom.

Fentanyl Overdoses. Governor Newsom signed Senate Bill 10, called “Melanie’s Law”, to address the increase in fentanyl overdoses. The law requires school districts and county offices of education serving students in grades 7 to 12 to include protocols in their school safety plans for responding to opioid overdoses. The law also requires the State Department of Education to curate and maintain informational materials and safety advice on its website on how to prevent opioid overdoses.

New Requirement To Teach Cursive. Governor Newsom signed Assembly Bill 446 into law. This new law requires public schools to teach cursive in grades 1 through 6. Current law requires English instruction to include instruction in handwriting. The new law requires handwriting instruction in grades 1 through 6 to include instruction in cursive or joined italics.

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October 2023

regulatory Action Proposed Enforcement Guidance On Workplace Harassment.

The U.S. EEOC has issued a proposed Enforcement Guidance on Harassment in the Workplace that is open for public comment until November 1, 2023. The Guidance presents a legal analysis on standards of harassment and employer liability under federal law and includes a resource to assist employers to prevent and address harassment. The proposed Enforcement Guidance on Harassment in the Workplace can be found on the federal register website.

Register for our Upcoming Complimentary Webinar! The Basics of Community College Student Residential Agreements Tuesday, November 7, 2023 10:30 a.m. - 11:00 a.m.

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benefits By: Stephanie J. Lowe California State University Not Subject To Labor Code Reimbursement Requirement For Telework Expenses. In March 2020, California State University ordered professors to teach classes remotely due to the COVID-19 pandemic. California State University - Los Angeles (CSU) Biology Professor Patrick Krug incurred expenses for a computer and other equipment for his remote work, which CSU refused to reimburse. Krug filed a lawsuit against CSU’s Board of Trustees on behalf of himself and similarly situated faculty, alleging that California Labor Code Section 2802 required CSU to reimburse employees for necessary work-related expenses. He alleged that he also incurred expenses for electricity, postage, internet service charges, use of personal phones for work-related expenses, office supplies, printers, ink and toner, and computer monitors. Section 2802 requires employers to indemnify (or reimburse) employees for all necessary expenses incurred in the discharge of duties. CSU’s position was that it was exempt from Labor Code provisions that infringe on its sovereign powers as a department of the state. The trial court agreed with CSU, and Krug appealed. The Court of Appeal (Court) affirmed that Section 2802 did not apply to the CSU. The Court applied the “sovereign powers doctrine” in making its decision. The Court explained that a traditional rule of statutory construction is that governmental agencies are not included within the general words of a statute unless there are express words to the contrary. The Court also stated this traditional rule applies when subjecting a governmental agency to the Labor Code provision would infringe upon sovereign governmental powers. The Court ran a three-part test for its analysis. First, the Court looked for “express words” referring to

governmental agencies in the statute. The Court determined that there were express references to governmental agencies in Section 2802. Second, the Court looked for “positive indicia” of a legislative intent to exempt governmental agencies from the statute. The Court stated there was no positive indicia of a legislative intent to exempt government agencies from the statute. There was legislative silence on this matter. Moving on to the third part of the test, the Court assessed whether applying the statute would infringe upon sovereign governmental powers. This part asks whether the statute would affect the functions and responsibilities the Legislature has given to the public employer. The Court recognized the Education Code grants extensive powers to CSU, as a state agency, to govern affairs related to education. The Court analyzed two provisions of the Education Code vesting CSU with broad authority over the purchase of supplies, equipment, and employee expense reimbursements. Education Code Section 89036 authorizes CSU to enter agreements and prescribe policies and procedures for acquiring supplies and equipment. Education Code Section 89500 authorizes CSU to set matters of equipment allowances and expense reimbursements notwithstanding any other provision of law. The Court found that the expenses Krug sought fell directly within CSU’s authority to set its own rules for equipment allowances and expense reimbursements. The Court also assessed that a violation of Section 2802 for failure to reimburse necessary expenses subjects employers to attorneys’ fees awards. The Court stated the Legislature is aware of the “stringent revenue, budget, and appropriations limitations affecting all agencies of government” and as a result, courts cannot presume the legislature intended to force governmental agencies to pay large additional amounts from lawsuits, which would “interfere significantly with governmental agencies’ fiscal ability to carry out their public missions.” In discussing Section 2802 and other types of governmental agencies, the Court noted that a prior

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Krug v. Board of Trustees of the California State University, 2023 Cal. App. LEXIS 654.

New ACA Affordability Percentage For 2024 Is 8.39%. The IRS has set the new Affordable Care Act (ACA) affordability percentage to an unprecedented low 8.39% for 2024. This new affordability percentage is 0.83% lower than the current 2023 affordability percentage (from 9.12% to 8.39%). While the Internal Revenue Code originally set the affordability threshold to 9.5%, the Internal Revenue Service (IRS) retains the authority to release an adjusted percentage each year. (See 26 U.S.C. Section 36B(c)(2) (C)(i)). From 2015 to 2022, the IRS set an affordability percentage above 9.5%, going as high as 9.86% in 2019. Last year, the IRS dropped the affordability percentage below 9.5% for the first time by setting it at 9.12%. For 2024, the IRS is dropping it even lower. Applicable large employers are advised to check whether their offers of employer-sponsored health coverage are affordable using the 8.39% threshold. When the affordability percentage decreases (while health insurance premiums for employee-only coverage increase), the potential impact is that some offers of coverage may not be affordable unless the employer provides a higher employer contribution.

To determine whether an offer of health coverage is affordable, an employer must run an affordability calculation to determine whether an employee’s “Required Contribution” toward the premium for the lowest cost employee-only coverage exceeds or does not exceed 8.39% (2024) of the employee’s household income for the taxable year. Since employers typically do not know the total household income of each of their employees, the ACA provides three affordability safe harbor options an employer may adopt and apply on a reasonable and consistent basis:

October 2023

case, In re Work Uniform Cases (2005) 133 Cal. App.4th 328, held that Section 2802’s work expense reimbursement requirement did not apply to counties, cities, or the state. However, the Court also stated that it did “not hold that Section 2802 never applies to public employers, only that it does not apply in this case because the Legislature vested CSU with sovereign authority with which Section 2802 would interfere.”

1. Under the Form W-2 Safe Harbor, coverage is affordable if the employee’s Required Contribution is less than or equal to 8.39% (2024) of the employee’s wages reported in Box 1 of Form W-2. 2. Under the Rate of Pay Safe Harbor, coverage is affordable if the employee’s Required Contribution is less than or equal to 8.39% of the monthly wage amount for hourly employees (the hourly rate multiplied by 130 hours), or the monthly salary for salaried employees. 3. Under the Federal Poverty Line Safe Harbor, coverage is affordable if an employee’s Required Contribution does not exceed 8.39% of the Federal Poverty Line for a single individual. There are additional factors, such as health flex contributions and cash in lieu, that can impact the amount of an employee’s Required Contribution and the affordability calculation. For more information about how to run the affordability calculation and whether your agency needs to revise its employer contribution to maintain affordable offers of health coverage, please reach out to us.

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Happy Fall!

retirement

Please note: We will be providing Legislative Roundups this month in lieu of a November newsletter. There will be no regular newsletter.

Payroll Employee Forfeited Years Of CalPERS Benefits Upon Her No Contest Plea. In April 2016, Elaine Estrada, a payroll employee with the City of La Habra Heights, was charged with unauthorized computer access, misappropriation of public funds, and embezzlement by a public officer for removing payroll deductions, resulting in her not paying the required employee share for dependents covered on her health insurance plan. The misconduct occurred between 2007 and 2009. She subsequently entered into a plea agreement, which involved: pleading no contest to the unauthorized access to a computer system or network, but sentencing would be delayed for six months, at which time the felony plea would be vacated and a misdemeanor plea of no contest would be entered in its place. Additionally, she would return to the City the amount of money she owed and serve one year of probation starting on the date of her sentencing. Estrada verbally acknowledged that she understood these terms and that a plea of no contest would be treated as a finding of guilt. Estrada’s plea was entered in June 2017. Estrada complied with her plea agreement and the charge was reduced from a felony to a misdemeanor. After serving one year of probation, the criminal case against her was dismissed in March 2019. Meanwhile, the City submitted a forfeiture of benefits form to CalPERS that stated that Estrada had been convicted of a job-related felony. CalPERS notified Estrada that because

of her felony conviction, a portion of her accrued retirement benefits was subject to forfeiture. Government Code Section 7522.72, which was enacted as part of California's pension reform in 2013, provides that if a public employee is convicted of a felony for conduct arising out of or in the performance of official duties, the employee forfeits certain accrued retirement benefits, which “shall remain forfeited notwithstanding any reduction in sentence or expungement of the conviction.” Estrada was also ineligible to return to CalPERS-covered employment or accrue further CalPERS benefits. Estrada appealed the forfeiture action, arguing that she was not convicted of a felony because her felony had been replaced by a misdemeanor. An Administrative Law Judge issued a proposed decision denying the appeal, and the CalPERS Board of Administration adopted that decision which found that Estrada forfeited benefits from September 1, 2007, the earliest date of the commission of the felony, through June 28, 2017, the date of her felony conviction. Estrada then filed a writ in Superior Court, which was also denied. She appealed. The California Court of Appeal agreed with all the prior decisions. It found that while the term “conviction” isn’t defined in Government Code Section 7522.72, it is recognized in California that a plea of guilty (and therefore, a plea of “no contest”) constitutes a conviction. As a result, once Estrada pled no contest to a felony charge related to the scope of her employment, she was effectively convicted of a felony at that time, for purposes of Section 7522.72, even if the felony was later reduced to a misdemeanor. Estrada v. Public Employees’ Retirement System, 2023 Cal. App. LEXIS 727 (Cal. Court of Appeal, 9/21/23).

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October 2023

disability The Americans With Disabilities Act Applies Only To Physical Places.

Dominick Martin and Rusty Rendon are both blind and serve as “testers” to assess whether places of public accommodation are compliant with the Americans with Disabilities Act (ADA). They filed suit against Thi E-Commerce, alleging among other things, that the company’s website contained numerous access barriers that prevented visually impaired individuals from equal access to the site. They further alleged that Thi failed to correct these barriers, even after receiving notice from Martin and Rendon. The trial court dismissed the case, noting that websites are not public accommodations under the ADA unless barriers present in the website impede a disabled person’s access to benefits at the website holder’s physical facility. No such physical facility was alleged here. Martin and Rendon then appealed. The California Court of Appeal affirmed. Title III of the ADA provides, “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” The law provides 12 categories with specific examples to help define a “place of public accommodation.” The Court concluded that a “place of public accommodation” requires a physical location for several reasons. First, it is the most natural usage of the phrase “place.” Second, the examples provided in the law are places that traditionally operate out of a physical location open to the public. And third, other relevant regulations define the phrase in terms of a “facility” which is explicitly defined in terms of physical structures. The Court noted that while the existence of websites was not considered in 1990 when the Act was established, there were other types of businesses in operation at that time that were not traditional brick-and-mortar buildings, such as mail order catalogues. The Court concluded that Congress intentionally used “place” to exclude business without a physical presence. Because this website did not involve or implicate benefits at a physical facility associated with the website, its failure to provide services to assist the visually impaired did not constitute a violation of the ADA. Martin v. Thi E-Commerce, LLC (2023) 95 Cal.App.5th 521.

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Printed Name At The Bottom Of An Email Is Not A Valid Electronic Signature.

Inaccurate Employee Retention Credit Claims May Be Withdrawn.

A California Court of Appeals recently affirmed a trial court’s decision that an employment agreement was not modified by a series of emails simply because the emails include the employee’s printed name in the email signature block.

On October 19, 2023, the Internal Revenue Service (IRS) announced a withdrawal process for employers who have submitted Employee Retention Credit (ERC) claims. This process is yet another step the IRS has taken to address the significant number of scams associated with aggressive marketing companies misleading employers regarding ERC credits and causing them to file ineligible claims. Filing ineligible claims can result in employers being required to repay the credit and being assessed penalties and fees.

In analyzing whether the employee had agreed to a modification of his employment agreement, the Court evaluated whether the employee’s email signature block was a valid electronic signature. The employer contended that because the employee’s email included his full name, title, address, two phone numbers, email address and webpage URL, it satisfied the requirements under the Uniform Electronic Transactions Act (UETA). (Civil Code Sections 1633.1 et seq.) Under the UETA, an electronic signature has the same legal effect as a handwritten signature, if it meets certain requirements. Significant for the case here, under Civil Code Section 1633.2, in order to be effective an electronic signature must be “executed or adopted by a person with the intent to sign the electronic record.” The Court stated that attributing the name on an email to a particular person and determining the printed name is the act of this person is a necessary perquisite, but is insufficient, by itself, to establish that it is an electronic signature. Further, that the UETA only applies to situations where both parties have agreed to conduct business by electronic means. The evidence in this case demonstrated that the employee’s emails merely represented thoughts and discussions; there was no evidence to show that the employee’s emails were intended to execute a final modified agreement as required under the UETA. This case serves as an important reminder that in order for an electronic signature to be binding, it must strictly comply with the requirements of the UETA. An email signature block in and of itself is likely insufficient.

Employers that are eligible to withdrawal an ERC claim must satisfy all of the following: 1. They made an ERC claim on an adjusted employment return; 2. Their only purpose of filing the adjusted return was to claim the ERC (i.e. no other adjustment was requested); 3. They seek to withdraw the entire amount of the ERC claim; and 4. They have not yet received payment on their ERC claim or have not yet deposited or cashed the IRS refund check. If qualified, an employer can submit a withdrawal by following the IRS instructions found here. Withdrawal procedures vary depending on how the ERC credit was initially submitted, if an employer is currently being audited by the IRS, or if an employer has already received but not cashed a check for the ERC credit. Employers that are ineligible for a withdrawal, but have identified an error in their ERC claim, may reduce or eliminate their claim by filing an amended return. The announcement of this withdrawal process follows the IRS’ September 14, 2023, announcement of a moratorium on processing new claims for at least the rest of the year. The IRS is continuing to process ERC claims received

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before September 14, 2023, but has slowed processing due to the increase in claims submitted by ineligible employers. The IRS also warns that even with the current moratorium, marketers and scammers are still targeting employers. The IRS is now observing scammers offering employers costly up-front loans in anticipation of receiving an ERC credit. We recommend continuing to remain vigilant in the event you are contacted by a marketer proposing to assist you in submitting an ERC credit, and to seek out the assistance of your trusted tax professional before submitting an ERC claim. LCW attorneys can assist employers in negotiating agreements with companies seeking to advise on submitting an ERC claim, and can also advise employers who have submitted an ERC credit, but may need to submit a withdrawal.

Congratulations to

Scott Tiedemann for being awarded an

Ally of the Year

by Corporate Counsel's 2023 Women, Influence and Power in Law Awards!

• www.lcwlegal.com •

firm victories LCW Partner Adrianna Guzman Convinces Union Steward That He Could Not Allege Facts To Support His UPC.

explained that the UPC did not: describe any protected activities that the Union steward had participated in; or include a statement demonstrating how his protected activities were causally related to the oral warning about seatbelt violations. The warning letter allowed the Union steward a limited time to file an amended charge.

Around November 2022, a District installed GPS systems in all its vehicles to monitor vehicle emissions and to identify safety or maintenance issues. The District had notified the Union local a month prior that the GPS program would also provide information about driver performance and would trigger corrective action for any employee-drivers who violated the District’s vehicle use policy. After meeting and conferring, the parties reached an agreement.

Although the Union steward timely attempted to withdraw the UPC himself, his designated representative did not. The PERB Regional Attorney spoke with the representative by telephone, followed up with two telephone messages, and emailed. When the representative did not formally withdraw by the deadline, the Regional Attorney dismissed the UPC based on all the reasons in the warning letter.

Early in 2023, the GPS program indicated that one employee – a Union steward – had a seatbelt violation of 15% during a three-month period. The Union steward received an oral warning that continued violations of the seatbelt policy could result in the loss of a “safety day” – a cash reward equivalent to nine hours’ pay or a day off for having a full year without a safety violation.

LCW Partner Adrianna Guzman And Associate Daniel Seitz Win Dismissal of Union’s Grievance.

A Deputy Sheriff ’s Union (Union) filed a grievance against the Sheriff ’s Department for failing to properly compensate one of its Deputy Sheriffs for work he allegedly performed as a Bonus I Field Training Officer The Union steward filed an unfair practice charge (UPC) with the Public Employment Relations Board (PERB) that (FTO). The Deputy was assigned as a FTO at various alleged that the District violated the Meyers-Milias-Brown times between August 2017 and February 2019, but the Deputy did not have a formally assigned trainee or Act (MMBA) by retaliating against him for his protected activities as a Union steward. Notably, the Union itself did sufficient coverage time as a “relief ” FTO to qualify for not file the UPC on the Union steward’s behalf. However, the bonus pay for that entire period. The Department inadvertently overpaid the Deputy for a seven-month the Union steward subsequently designated a Union period due to a late notification that his trainee organizer to serve as his representative in the matter. assignment had ended. The Department then issued a letter requesting a return of the overpayment. Following LCW’s submission of the District’s response, which identified numerous deficiencies in the UPC, The Union’s grievance argued that the alleged the PERB Regional Attorney issued the Union steward’s overpayment was inaccurate and the Deputy should owe representative a warning letter. The warning letter

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nothing. The Union further argued that a failure to assign the Deputy trainees while the Deputy was in the Bonus I FTO position was a “de facto removal” from that assignment. The Arbitrator disagreed. The Arbitrator first found that the MOU language stated that Bonus I FTO pay will only be issued when the FTO has assigned a trainee. The MOU accounted for situations, such as this one, where a Deputy held a Bonus I position but was not assigned a trainee. Moreover, the three individual days of random relief assignments the Deputy took on were not sufficient to qualify the Deputy for the Bonus I FTO pay, because the MOU required 20-day relief assignments to qualify for payment of the training bonus. Finally, the fact the Deputy was assigned a trainee after the period when the Deputy alleged he had been removed from the FTO position showed that he had not been “de facto removed” from his position, as the Union alleged. The Arbitrator decided the Department did not violate the MOU, and was contractually entitled to seek the overpayment.

Did You Know?

Whether you are looking to impress your colleagues or just want to learn more about the law, LCW has your back! Use and share these fun legal facts about various topics in labor and employment law. • Effective January 1, 2024, Government Code Section 12945.7 requires an employer of five or more to grant a request by any employee to take up to five days of bereavement leave upon the death of a specific categories of family members. • Pregnancy Disability Leave (PDL) provides leave for employees disabled by pregnancy, childbirth, or a related medical condition. California employers with five or more full-time or part-time employees are required to provide PDL for an employee with a qualifying pregnancy-related disability. Employers with five or more employees must also comply with the CFRA but not the FMLA. An employer must have 50 employees to be covered by the FMLA. • The U.S. Department of Education issued a report that outlines strategies for increasing diversity and opportunity in high education in light of the Supreme Court’s recent affirmative action decision. The report calls on K-12 and higher education institutions, especially those serving low-income students, communities of color, and first-generation students, to establish relationships with one another and create outreach and pathway programs. This, in turn, will increase college applications from underserved students. The report also stresses the importance of quantity and quality of high school counselors.

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The 411 On Consortiums:

Consortium Call Of The Month If you would like to receive more information about our Consortium services or would like to join, please contact Francesca Savellano at fsavellano@lcwlegal.com.

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LCW has four community college district Consortiums across the state! Consortium members enjoy access to quality training throughout the year, discounts on other LCW products and events, and unlimited, complimentary telephone consultation with an LCW public education attorney on matters relating to employment and education law questions (including questions involving governance, business, facilities, and student matters!). We’ve outlined a recent consortium call and the provided answer below. Client confidentiality is paramount to us; we change and omit details in the ERC Call of the Month.

Question: A Community College District client asked what information CCDs must send to employees regarding the Public Service Loan Forgiveness (PSLF) Program.

Answer: The attorney explained that Education Code Section 87489 establishes notice requirements regarding the PLSF Program. It requires that CCDs distribute specific PLSF information created by the Chancellor’s Office annually to all faculty. Specifically, CCDs are required to provided the following information annually: • A one-page form letter with the following information: eligibility for the Public Service Loan Forgiveness Program, a brief summary of the program, information on what an eligible faculty employee is required to do in order to participate, and a recommendation that the faculty employee contact the faculty employee’s loan servicer or servicers for additional information. • A detailed fact sheet describing the Public Service Loan Forgiveness Program. • A document containing answers to frequently asked questions about the Public Service Loan Forgiveness Program. Additionally, CCDs must provide the above listed materials to any newly hired faculty within 30 days of their start of employment via mail, electronically, or during an in-person new employee orientation. Lastly, the CCDs must annually provide a faculty employee who is enrolled in PSLF with a notice of renewal and a copy of the employment certification form already completed. • www.lcwlegal.com •

Liebert Cassidy Whitmore