Private Education Matters: July 2023

Private Education Matters

covid-19

Employers Do Not Have Duty To Prevent Spread Of COVID To Household Members.

On May 6, 2020, Robert Kuciemba began working for Victory Woodworks, Inc. at a construction site in San Francisco. About two months later, Victory transferred a group of workers to the San Francisco site from another location where they may have been exposed to COVID-19. Victory made this transfer without taking precautions required by the county’s health order. After being required to work in close contact with the new workers, Robert was infected with COVID-19. Robert carried the infection home and transmitted it to his wife Corby. Corby was hospitalized for several weeks, and at one point, on a respirator.

On October 23, 2020, the Kuciembas sued Victory, asserting claims for negligence and premises liability. The trial court dismissed the case concluding that: (1) the claims that Corby contracted COVID-19 through direct contact with Robert were barred by California’s Workers’ Compensation Act’s (WCA) exclusive remedy provisions; (2) the claims that Corby contracted COVID-19 through indirect contact with infected surfaces were subject to dismissal for failure to plead a plausible claim; and (3) the claims failed because Victory’s duty to provide a safe workplace did not extend to nonemployees, such as

Corby, who contracted a virus away from the worksite. The Kuciembas appealed and the CA Supreme Court agreed to answer, among other questions, whether California Law imposes a duty of care on employers to prevent the spread of COVID-19 to their employees’ household members.

In response to this question, the CA Supreme Court noted that the general rule of duty in California establishes that each person has a duty to exercise reasonable care for the safety of others. There are exceptions to this rule, including when a person’s injuries are inflicted by a third party, not the defendant. Under these circumstances, there is no duty to control, warn, or protect unless there is a special relationship between the parties that gives rise to a duty. The Kuciembas allege that Corby was harmed by Victory’s misconduct in transferring potentially infected workers to Robert’s jobsite and forcing Robert to work in close proximity to them. The Kuciembas allege that Victory created a risk of harm by violating a county health order designed to limit the spread of COVID-19.

The Supreme Court determined that an employer does have a duty in the COVID-19 context not to create an unreasonable risk of the disease’s transmission.

The Supreme Court then considered whether there were any policy reasons to create an exception to

this duty, first considering whether it was foreseeable that there would be transmission to a family member and then considering whether the burdens on the community outweighed such a duty.

The Court determined that it was foreseeable that Victory’s failure to adhere to the workplace precautions against the spread of COVID-19 could result in transmission of the virus to employees’ households. The City and County of San Francisco’s health orders mandated specific health and safety precautions to prevent the spread of COVID-19 at construction jobsites, including, but not limited to screening workers for symptoms daily upon arrival and removing any infected worker from the jobsite immediately. An employee’s return home at the end of a workday was expected and predictable, and transmission could be attributed to the employer’s negligence in failing to take reasonable precautions to prevent workplace exposure.

Victory argued that due to COVID19’s highly contagious nature, it is impossible to trace an employee’s infection, and many factors could affect the likelihood that an employee would contract and transmit COVID-19. Employees may exercise varying levels of diligence in properly wearing a mask and avoiding crowds. The Court agreed that the connection between Victory’s wrongful conduct and injury was somewhat attenuated, but nonetheless, it is still foreseeable

that an employee exposed to the virus through the employer’s negligence will pass the virus to a household member.

The Court then considered whether the anticipated burdens on defendants and the community weighed against imposing such a duty. Victory expressed concern that recognizing a duty to employees’ household members would impose enormous and unprecedented financial burdens on employers, both in potential damages awards and litigation costs. The Court considered the cost to defendants of upholding the duty of care. Because it is impossible to eliminate the risk of infection, even with perfect implementation of best practices, the prospect for liability for infections outside the workplace could encourage employers to adopt precautions that unduly slow the delivery of essential services to the public. The Court also noted that imposing a duty to prevent secondary COVID-19 infections would extend to all workplaces, making every employer in California a potential defendant. The Court reasoned that the virus is extremely contagious, making infection possible after a relatively brief exposure. The pool of potential plaintiffs would be enormous. The Courts would be flooded with litigation, forced to decide fact-specific disputes that could be complex and timeconsuming.

The Court determined that the significant and unpredictable burden of imposing this duty of care on California businesses, the court system, and community at large weighed in favor if recognizing the exception. Although it was foreseeable that employees infected at work would carry the virus home and infect their loved ones, the Court determined that the dramatic expansion of liability had the potential to destroy businesses and end essential public services.

The Court concluded that employers do not owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members.

Kuciemba v. Victory Woodworks, Inc. (2023) __P.3d__ [2023 WL 4360826].

Note:

This case is a win for employers across California, including schools, because it acknowledges that employers have little control over the spread of COVID-19 to household members and establishes that employers do not owe a duty of care to employee’s family members in preventing the spread of COVID-19. We covered this case in a recent blog post and we covered the oral arguments in a recent edition of Private Education Matters

IBM Must Reimburse Employees For Costs Incurred While Working Remotely During Pandemic.

Paul Thai was employed by International Business Machines Corporation (IBM) in March 2020, when Governor Gavin Newsom issued a stay-at-home order due to the COVID-19 pandemic. Thai needed internet access, telephone service, a phone headset, a computer and accessories in order to perform his work. IBM provided these items to its employees in its offices. After the Governor’s order went into effect, IBM directed Thai and several thousand other employees to continue performing their regular job duties from home. Thai and his coworkers personally paid for the services and equipment necessary to do their jobs while working from home. IBM never reimbursed its employees for these expenses, despite knowing that its employees incurred them.

Thai filed suit, on behalf of him and his coworkers, arguing that he should be reimbursed for these expenses under Labor Code Section 2802(a). The trial court disagreed with Thai and determined that IBM’s instructions to employees to work from home were due to government orders and therefore did not need to be reimbursed as necessary business expenses. Thai appealed.

On appeal, Thai argued that the trial court’s ruling was contrary to the plain language of Labor Code Section 2802(a), which requires employers to reimburse employees for all necessary expenditures or losses that are a direct consequence of the discharge of their duties. The Court of Appeals agreed with Thai.

The Court of Appeals reasoned that Section 2802(a) is designed to protect workers from bearing the costs of business expenses incurred by workers doing their jobs. The elements of a Section 2802(a) cause of action are:

(1) the employee made expenditures or incurred losses;

(2) the expenditures or losses were incurred in direct consequence of the employee’s discharge of his or her duties, or obedience to the director of the employer; and

(3) the expenditures or losses were necessary.

The only element at issue here was the second element. IBM argued that Thai began to incur work from home expenses, not because his job duties changed, but because the government required him to stay at home. Therefore, IBM argued, they were not the direct cause.

Conversely, Thai argued that in a recent similar case in California involving Amazon, the federal trial court ruled that Amazon was liable to pay for the expenses because Amazon expected the plaintiff to continue to work from home after the stay-at-home orders were issued. This meant that Amazon had to pay the reasonable expenses incurred even if Amazon was not the “but-for” cause of the shift to remote work.

The Court of Appeals agreed with the Amazon case and likewise reasoned that even though the Governor’s order was the “but-for” cause of certain work-from-home expenses, there is no language in the statute that exempts an employer from the reimbursement obligation. Under the statute’s plain language, the obligation does not turn on whether the employer’s order was the proximate cause of the expenses, it turns on whether the expenses were actually due to the performance of the employee’s duties. The Court of Appeals reversed the trial court’s judgment and remanded the case for further proceedings.

Thai v. International Business Machines Corporation (2023) __Cal.App.5th.__ [2023 WL 4443934].

Note:

This case serves as an important reminder that if employees are expected to work from home, even due to situations such as a COVID-19 exposure or a stay-at-home order, schools must reimburse employees for the necessary expenses they incur to perform their job duties.

new to the Firm!

Peter Q. Nguyen, a Senior Labor Relations Consultant in our Los Angeles office, has extensive experience, having negotiated over forty master agreements and doing labor relations work across many jurisdictions, including municipalities, special districts, K-12, higher education, entertainment, and healthcare. He has also engaged in complex policy analysis, drafted legislation, and taught public policy at the university level.

Will Abramovitz, an associate attorney in Liebert Cassidy Whitmore’s San Francisco office, provides labor and employment law and litigation expertise to our clientele. Prior to joining LCW, Will was an associate at a major international law firm and a San Francisco based law firm where he obtained significant experience litigating and advising on labor and employment matters and complex commercial disputes in both state and federal courts through all stages of litigation.

U.S. Supreme Court Establishes Higher Standard When Denying Religious Accommodations Due To Undue Hardship.

Gerald Groff is an Evangelical Christian who believes for religious reasons that Sunday should be devoted to worship and rest. In 2012, Groff took a mail delivery job with the United States Postal Service (USPS). Groff’s position generally did not involve Sunday work, but that changed after USPS began facilitating Sunday deliveries for Amazon. To avoid the requirement to work Sundays on a rotating basis, Groff transferred to a rural USPS station that did not make Sunday deliveries. Soon, Amazon deliveries began at that station as well, so USPS redistributed Groff’s Sunday deliveries to other USPS staff. During peak season, Sunday deliveries that would have otherwise been performed by Groff were carried out by the rest of the USPS station’s staff. During other months, Groff’s Sunday assignments were assigned to the regional hub.

Throughout this time, Groff continued to receive progressive discipline for failing to work on Sundays. Eventually, Groff resigned. Groff sued under Title VII of the Civil Rights Act of 1964, asserting that USPS could have accommodated his Sunday practice without undue hardship on USPS’s business. Under Title VII, it is unlawful for covered employers to discriminate against any individual because of that individual’s religion. The EEOC has held that employers are required to provide reasonable accommodations to the religious needs of employees whenever that would not work an undue hardship on the employer’s business.

The trial court determined that USPS had a valid undue hardship defense and granted summary judgment to USPS. The Court of Appeals upheld the trial court’s decision, holding that requiring an employer to bear more than a de minimis cost to provide a religious accommodation is an undue hardship under the Court of Appeals’ current precedent.

The de minimis cost standard was a low standard to meet, and the Court of Appeals determined that exempting Groff from Sunday work imposed a cost on his coworkers, disrupted the workplace and workflow, and diminished employee morale. This was enough to establish undue hardship. The case was then appealed to the U.S. Supreme Court, and the Supreme Court granted certiorari.

The Supreme Court held that the de minimis cost standard did not suffice to establish undue hardship under Title VII. Rather, undue hardship is shown when a burden is substantial in the overall context of an employer’s business. This is a fact-specific inquiry. The Supreme Court noted that undue hardship is more severe than a mere burden and more than imposing some sort of additional costs on the employer, rather, it must rise to the level of excessive or unjustifiable. The Supreme Court also held that all relevant factors must be considered when evaluating reasonable accommodations, including the practical impact of the accommodations in light of the nature, size, and operating cost of the employer.

The Supreme Court remanded the case to the lower courts to apply the context-specific application of the standard.

Groff v. DeJoy (2023) __ S.Ct.__ [2023 WL 4239256].

Note:

Title VII generally applies to schools, though there are some exceptions for religious schools. Schools should make note of this decision and consult LCW when responding to religious accommodation requests, as schools will need to meet a higher burden if denying any requests.

Religious Organization Exempt From LGBTQ+ AntiDiscrimination Obligations.

Braidwood is a management company that employs workers at the Hotze Health & Wellness Center, Hotze Vitamins, and Physicians Preference Pharmacy International. Steven Hotze controls or owns these entities, and is the sole trustee and beneficiary of the trust that owns Braidwood. He is also the sole board member of Braidwood. Hotze runs his corporations as “Christian” businesses. He does not allow

Braidwood to employ individuals who engage in behavior he considers sexually immoral or gender non-conforming, nor does he allow Braidwood to recognize homosexual marriage. Braidwood enforces a sex-specific dress code, meaning that “biological” men must wear a tie if they have contact with customers, and “biological” women who have contact with customers may not wear a tie, but may wear skirts, blouses, shoes with heels, and fingernail polish. Dressing in a manner that the employer viewed as inconsistent with clothing commonly associated with the sex assigned at birth was strictly forbidden. There is no evidence of any applicant or employee claiming discrimination under these policies.

Bear Creek is a nondenominational church whose bylaws state that marriage is exclusively the union of one genetic male and one genetic female. Accordingly, the church will not hire “practicing homosexuals, bisexuals, crossdressers, or transgender or gender non-conforming individuals.” Employees who enter into a homosexual marriage will be fired.

Bear Creek and Braidwood require each employee to use the restroom of his or her biological sex.

In Bostock v. Clayton County, the U.S. Supreme Court determined that Title VII of the Civil Rights Act of 1964 forbids employers from discriminating against homosexuals and transgender persons, holding that this falls into the category of discrimination “on the basis of sex.” The Supreme Court gave little guidance on how courts should apply this ruling to religious employers.

In response, Braidwood and Bear Creek filed suit against the Equal Employment Opportunity Commission (EEOC), arguing that Title VII, as interpreted under the EEOC’s guidance and Bostock, prevents them from operating their places of employment in a way that is compatible with their Christian beliefs.

The two employers stated that they will not alter or discontinue their employment practices, and numerous policies and practices they follow (such as those about dress codes and segregating bathroom usage on biological sex) already clearly violate EEOC guidance.

The trial court ruled in favor of the employers and issued an order establishing nationwide exemptions to Bostock. Specifically, the trial judge ruled that Bear

Creek and other religious nonprofits fall under Title VII’s religious exemptions, and that Braidwood and other for-profit companies with a “religious element” are shielded from claims of sexual orientation and gender identity bias under the Religious Freedom Restoration Act (RFRA) and the First Amendment.

On appeal, the EEOC argued that they have not historically enforced Title VII’s prohibitions against religious entities’ engaging in potential discrimination against homosexuals and gender non-conformists. The EEOC argued that it counsels its investigators to respect employers’ religious liberties when deciding whether to bring an enforcement action. At the same time, the EEOC has stated that employers must treat homosexual marriage as the same as heterosexual marriage, and bathroom policies should be dictated by an employee’s asserted gender identity rather than their biological sex. There is no official guidance indicating exemptions for employers that oppose homosexual or transgender behavior on religious grounds.

The Court of Appeals ruled that even though no enforcement action had been brought against Braidwood or Bear Creek, the employers established a credible fear that such an action could be brought one day.

The Court of Appeals ruled that Braidwood is exempted from Title VII due to the RFRA because compliance with Title VII post-Bostock would substantially burden its ability to operate per its religious beliefs about homosexual and transgender conduct. Braidwood maintained it has sincere and deeply held religious beliefs that heterosexual marriage is the only form of marriage sanctioned by God, pre-marital sex is wrong, and men and women are to dress and behave in accordance with their Godordained, biological sexual identity. Under the RFRA, the federal government is prohibited from burdening a person’s free exercise of religion, even if that burden stems from a neutral law.

The Court of Appeals also found that the EEOC’s guidance burdened Braidwood’s religious practice because Braidwood was required to either violate Title VII and obey their convictions, or obey Title VII and violate their convictions. The Court of Appeals said that the EEOC did not provide a compelling interest in refusing Braidwood an exemption, and the Supreme Court has not yet held that preventing commercial business from discriminating on factors

specific to sexual orientation or gender identity is a compelling government interest that overrides religious liberty. As for Bear Creek, the Court of Appeals upheld the trial court’s ruling that Bear Creek is a religious organization not burdened by Title VII, and the statute can bar policies regarding bisexual conduct, gender reassignment surgery, and hormone treatment.

Note:

Although this is a 5th Circuit case and does not directly impact California schools, this case highlights that there is considerable debate over the laws that apply to religious institutions and how those laws interact with sex and gender discrimination.

FMLA

Supervisor And School Potentially Liable For Adverse Employment Actions Taken Against Employee While Employee Was On FMLA.

Clark, a private university, hired Randi Rousseau as a Cataloging Librarian in 2003 and promoted Rousseau to Head of Cataloging in 2012. During the 2019-2020 academic year, Rousseau also served as acting Head of Collections. From 2013-2019, Rousseau received positive performance reviews, with overall rankings of “Commendable” or “Satisfactory.” In 2020, the University hired Laura Robinson as the University Librarian. Robinson became Rousseau’s supervisor. Since Robinson was hired, Rousseau underwent three surgeries requiring use of medical leaves in June 2020, August-September 2021, and December 2021-February 2022.

Rousseau said that shortly after Robinson learned of Rousseau’s need for Medical Leave in December 2021, Robinson issued Rousseau a written warning, raising alleged dress code violations (i.e., wearing jeans and sneakers in the office) that had previously never been brought to Rousseau’s attention, and harmless interview questions asked by Rousseau to an internal candidate (i.e., whether the candidate would feel comfortable supervising her former supervisor).

During Rousseau’s leave in January 2022, Robinson requested a change of title for Rousseau to “Cataloging and Metadata Librarian,” due to the alleged needs of the library. This change removed Rousseau’s supervisory responsibilities.

When Rousseau returned from leave on February 7, 2022, she needed to attend approximately ten medical appointments upon her return and through June 2022. On June 13, 2022, the University terminated Rousseau. The termination letter noted that Rousseau had been given feedback multiple times and follow-up over the past months on several areas of poor performance, including poor communication, calendar management, time keeping inaccuracies, and failure to adopt a “more enthusiastic approach to projects specific to [her] new job description.” Rousseau alleged that these performance issues were not previously brought to her attention as issues worthy of discipline or termination, nor were they raised in her December 2021 written warning.

Rousseau filed suit against Robinson and the University alleging retaliation against, and interference with her exercise of rights under the Family and Medical Leave Act (FMLA). FMLA and its accompanying regulations prohibit an employer from interfering with, restraining, or denying the exercise of any FMLA right and from retaliating or discriminating against employees who

Braidwood Management, Incorporated v. Equal Employment Opportunity Commission (5th Cir. 2023) 70 F.4th 914.

have used FMLA. Rousseau argued that Robinson interfered with her FMLA rights and retaliated against her for exercising those rights.

To establish a case for interference with FMLA, Rousseau must show that (1) she was eligible for FMLA; (2) her employer was covered by FMLA; (3) she was entitled to leave under FMLA; (4) she gave her employer notice of her intention to take leave; and (5) her employer denied her FMLA benefits to which she was entitled.

Rousseau argued that Robinson interfered with her FMLA benefits by demoting her and stripping her of her supervisory responsibilities in the middle of her approved leave. Rousseau also argued that she was not reinstated to a position equivalent to the Head of Cataloging upon returning from leave. Robinson did not challenge Rousseau’s eligibility for FMLA, and instead argued that she is not an employer within the meaning of FMLA and therefore not individually liable. Robinson also argued that Rousseau’s new position upon returning from leave was equivalent to her former position.

The Court concluded that “employer” includes any person who acts, directly or indirectly, in the interest of an employer to any of the employees. Robinson exercised sufficient control over Rousseau to be considered an employer because she supervised Robinson and controlled the conditions of her employment by issuing Rousseau discipline, changing her job title and duties, and playing a role in terminating Rousseau.

The Court also concluded that the change in title impacted Rousseau’s status and job duties, in violation of Rousseau’s reinstatement rights under the FMLA. Rousseau lost her supervisory responsibilities, which plausibly reduced her workplace status. Rousseau’s termination letter identified her failure to adopt a more enthusiastic approach to her new job description as a reason for her termination. This acknowledgment of a “new job description” undercut Robinson’s argument that the position was equivalent to her former role.

To establish a case for retaliation, Rousseau must show that (1) she availed herself of a protected FMLA right; (2) she was adversely affected by an employment decision; and (3) there was a causal connection between her protected conduct and the adverse employment action. Robinson argued that

there was no causal connection between use of FMLA and the adverse employment actions (i.e., the written warning, the demotion, and the termination). None of Rousseau’s supervisors expressed displeasure at her use of FMLA or connected that use to adverse employment actions. Rousseau argued that a causal connection should be inferred due to the prior positive performance reviews and the short time between her exercise of FMLA rights and adverse actions.

Rousseau’s performance reviews from 2013-2019, prior to her leaves, were positive, and there were no performance reviews for the years immediately preceding the December 2021 to February 2022 leave. Then, shortly after learning of the need for medical leave in December 2021 and shortly before taking that leave, Robinson issued the written warning. The Court concluded that the timing of these events suggested that Robinson and the University retaliated against Rousseau for exercising her FMLA rights. The Court noted that the concerns raised in the termination letter were not brought to Rousseau’s attention prior to her exercise of FMLA rights, and the lack of performance reviews prior to her leave undercut the credibility of several potential legitimate reasons for Rousseau’s termination.

The Court denied Robinson’s motion to dismiss.

Rousseau v. Clark University (D. Mass., May 12, 2023) 2023 WL 3435570.

Note: This case is an important reminder that schools should be documenting any performance concerns as they arise. In this case, the employee was not aware of the performance concerns until after she had indicated her need to take FMLA, creating an inference that the adverse employment actions were in retaliation for taking protected leave. This case is also a good reminder that supervisors’ actions can potentially create liability for a school, as was the case here.

NLRB

Head Of School’s Emails That School Would Not Recognize Employee Union Deemed Violation Of Employees’ Right To Unionize.

Employees at the Blue School, a private 2nd through 8th grade school located in New York City, recently conducted an election to create an employee union for Blue School faculty and staff.

On October 19, 2021, the Head of School sent an email to all Blue School employees stating that he would not withdraw the eligibility challenges the School intended to file regarding the recent union election. The email went on to say that the School was challenging the eligibility of specific participants due to the managerial, supervisory, or confidential nature of their roles, which would put them at odds with being part of the union, and improper conduct during the election period. The email also stated that the National Labor Relations Board (NLRB) denied the School’s initial request for review, rejecting the concerns the School made, and that the School was evaluating next steps, including potentially appealing.

On November 5, 2021, the Head of School sent another email to all Blue School employees stating that the union ballot count took place but the full count did not happen, and the number of challenged ballots could be determinative, so there was no decision at this point. The Head of School said he was going to send an email to School families with the same information, which he then did.

On March 20, 2022, the Head of School sent another email to all employees, which stated that he would be representing the School at the ballot count the next day. The ballot was to take place in two stages – first, a representative would open up faculty ballots that were not counted in November to determine whether those teachers are in favor of a combined union for faculty and staff. Then, assuming the vote passes, there would be a second tally to count the combined votes for unionization. The Head of School predicted that the count would go in favor of a combined union that represented both faculty and staff.

The email then shared the Head of School’s reservations about a potential partnership with the United Autoworkers Union (UAW) and the election process in general. As a result, if the election was certified, he said the School would decline to recognize the union and would appeal the outcome. The email also said that faculty employment offers had just gone out, which reflected a 5% salary increase, renewed contributions to 401k plans, and in some specific instances, more substantial increases to ensure teachers with similar experience and credentials were compensated equitably.

The General Counsel for the NLRB argued that the Head of School’s language in the March 20th email interfered with, restrained or coerced employees in the exercise of rights guaranteed by the National Labor Relations Act (NLRA). The School argued that the language was used as part of a larger email in which the Head of School was trying to update colleagues on the actions the School was planning to take in the context of the Board election.

The Administrative Law Judge (ALJ) agreed with the General Counsel and ruled that the Head of School’s email was unlawful because it conveyed a message to employees that selecting a union would be futile, as the School would not bargain with the union if the union won the election. The ALJ noted that the Head of School did not include anything in his emails that if the appeal was unsuccessful, it would recognize and bargain with the union. The ALJ characterized the email as a threat to employees.

As a result of the violation, the School had to cease and desist from engaging in conduct in violation of the NLRA and the NLRB required the School to take affirmative actions that align with the NLRA.

Blue Sch. & Local 2110, Tech., Office & Prof'l Union, UAW (May 4, 2023) 2023 WL 3254439.

Note:

This case illustrates that emails from administrators to employees showing a lack of support for potential unionization can be a violation of the National Labor Relations Act.

To LCW!

Nancy López Business Development Manager

We are pleased to announce that Nancy López has joined the management team as our Business Development Manager. Nancy has extensive marketing experience, actively working in the field for over 25 years. She comes to us after serving in management level positions with advertising agencies, the world’s largest food company (consumer product goods), the former largest retail wholesaler in the Western United States, and most recently, at a private TK-12 grade school.

“I am thrilled to join LCW’s management ranks and be part of such a prestigious organization,” said Nancy on assuming her new position, “I look forward to leveraging my skills and expertise in marketing and business development to contribute to the continued success of LCW and help drive its growth in the legal industry.”

Student Who Reported Rape Can Be Sued For Defamation Due To University’s Disciplinary Procedures.

In fall of 2012, Saifullah Khan enrolled as an undergraduate student at Yale University. Jane Doe was a classmate of Khan’s, and on Halloween night in 2015, Khan and Doe, who were familiar with one another from prior campus encounters, met at an off-campus Halloween party. Later in the night, Khan escorted Doe to her room, and she asked him to come in and the two engaged in sexual intercourse. In the morning, Doe reported to friends that she had been raped. Doe went to the Yale Health Center later the next day seeking contraception and reported to a healthcare worker that she had engaged in unprotected consensual sex.

In the days later, Doe went public with her rape claim and issued a formal complaint against Khan. Khan was suspended and the Yale Police Department opened an investigation against Khan for first-degree sexual assault. Yale stayed the University’s disciplinary proceedings pending the outcome of the prosecution. Khan faced a jury trial in early 2018 for first, second, third, and fourth degree sexual assault, and was acquitted on all counts after less than one day of deliberations.

Following his acquittal, Khan sought readmission to Yale. More than 77,000 signatures protested his enrollment. Khan was eventually readmitted, though denied on-campus housing and treated as unwelcome on campus.

In November 2018, Khan returned to campus for the University’s disciplinary proceedings hearing for Doe’s 2015 sexual assault complaint. Doe had since graduated from Yale, was not present, and provided a statement via teleconference. Khan was not permitted to be in the room when the University hearing panel questioned Doe, and instead listened to the audio in another room.

Khan claimed he was denied an opportunity to confront his accuser, and, although Khan had counsel present, his attorney was not permitted to speak, question witnesses, or raise objections. A member of Yale’s legal team was present throughout to provide counsel to the University panel. Khan requested a transcript or recording of the hearing, which the panel denied. The University panel decided to expel Khan as a result of the hearing.

Following the expulsion, Khan brought a cause of action for defamation against Jane Doe for the accusations she made in the University proceeding. There is no question that, when Doe made accusations against Khan during Khan’s criminal trial, which was an official governmental proceeding with inherent procedural safeguards, Doe had absolute immunity in any subsequent civil action challenging her testimony as defamatory.

The question presented in this case was whether Doe’s statements during the University’s disciplinary proceedings were entitled to absolute immunity.

Doe argued that the University disciplinary proceeding was a quasi-judicial proceeding and her statements are therefore entitled to absolute immunity because such immunity furthers the important public policy goal of permitting alleged victims of sexual assault to speak candidly and frankly with university officials without fear of retaliatory lawsuits.

Khan argued that the University proceeding was not quasi-judicial because it was neither a governmental proceeding nor a proceeding with sufficient judicial-like procedures to protect against malicious and defamatory statements. Khan argued that if absolute immunity was afforded in these situations, individuals who are falsely accused have no recourse or protection against malicious and defamatory allegations.

The trial court ruled that the University proceeding was quasi-judicial in nature, and therefore, Doe enjoyed absolute immunity for the statements she made in that proceeding. Khan appealed.

The Court of Appeals noted that both parties’ arguments were compelling. In support of Doe’s position, one in four women, and one in fifteen men, will experience

sexual assault while attending college. These victims are often reluctant to report such crimes, and the Court of Appeals noted that there is a fundamental right to safety, especially on a college campus. At the same time, the Court of Appeals recognized the competing public policy interest that those accused of crimes, especially as serious a crime as sexual assault, are entitled to fundamental fairness before being labeled as a sexual predator. Statements made in sexual misconduct disciplinary proceedings that are offered and accepted without adequate procedural safeguards carry a great risk of unfair or unreliable outcomes. There is no benefit to society or the administration in granting immunity to those who make intentionally false and malicious accusations of sexual assault.

In order to balance these competing interests, the Court of Appeals ruled that a proceeding is quasi-judicial when the proceeding is specifically authorized by law, applies law to fact in an adjudicatory manner, contains adequate procedural safeguards, and is supported by a public policy in encouraging absolute immunity for proceeding participants. If a proceeding meets the definition of a quasi-judicial proceeding, absolute immunity is afforded to participants.

Here, the Court of Appeals determined that the University proceeding did not meet the conditions necessary to be considered quasi-judicial, and therefore, Doe was not entitled to absolute immunity from Khan’s defamation claim. The Court of Appeals reasoned that the proceeding lacked judicial-like procedures and other indicia of reliability. The University proceeding failed: (1) to require complainants to testify under oath or subject them to explicit and meaningful penalties for untruthful statements; (2) to provide Khan, or his counsel, the meaningful opportunity to crossexamine adverse witnesses in real time; (3) to provide parties a reasonable opportunity to call witnesses to testify; (4) to afford Khan the opportunity to have the active assistance of counsel during the hearing; and (5) to provide Khan any record or transcript of the proceeding that would assist him in obtaining adequate review of the decision or to expose the legitimacy or fairness of the proceeding to public scrutiny. The

collective absence of these features indicated that the proceeding did not ensure reliability or promote fairness, and therefore could not be deemed quasijudicial.

The Court of Appeals also concluded that a qualified privilege was available to alleged victims of sexual assault who report their abuse to proper authorities at institutions of higher education. Unlike qualified immunity, a qualified privilege protects only those allegedly defamatory statements that are not made maliciously.

Here, Khan alleged in his complaint that Doe made false accusations against him for the sake of trying to expel Khan as a part of a larger political movement and personal vendetta. Khan alleged that Doe made romantic advances towards him, and at first, Doe told a campus health care worker that she engaged in consensual unprotected sex. Khan alleged that Doe was ashamed of her sexual advances, and despite a jury dismissing his allegation, more than 77,000 people signed a petition protesting his readmission. The Court of Appeals determined that, at this stage of the case, Khan asserted enough facts to defeat the qualified immunity privilege.

Khan v. Yale University (2023) 347 Conn. 1.

Note:

This case illustrates the competing interests at play when schools conduct proceedings for student sexual misconduct. Many predict that the impact of this case will be that fewer survivors of sexual misconduct will come forward for fear of a defamation lawsuit. Although this case took place at Yale, the California Supreme Court is currently considering a University of Southern California case in order to provide clarity on the extent of an accused student’s right to receive the opportunity to cross-examine critical witnesses at an in-person hearing when facing disciplinary action. LCW has reported on this case previously and is awaiting the CA Supreme Court’s decision

Department of Education Resolves Investigation Into Student And Teacher Harassment Based On Student’s Gender Identity.

This month, the Department of Education’s Office for Civil Rights (OCR) resolved a sex-based harassment investigation in Rhinelander School District in Wisconsin.

OCR’s investigation reflects that during the 2021-2022 school year, a non-binary student and their parent reported to the district that students repeatedly mocked and targeted the student during multiple classes, while multiple teachers repeatedly used incorrect pronouns for the student, and one teacher removed the student from class on the grounds that the teacher could not protect the student from harassment by the other students.

OCR also reviewed evidence that students bumped the student in the hallways and called the student a derogatory slur for LGBTQI+ people. The district responded to these allegations of harassment by changing the student’s schedule to attend school inperson for only three classes and to take additional classes through self-directed study.

OCR determined that the district’s response to the persistent harassment limited the student’s participation in school activities and that the district did not take steps to ensure the student’s equal access to education with their peers. The district also failed to properly categorize and document the ongoing harassment, and did not coordinate a response consistent with Title IX.

OCR entered into an agreement with the district, where the district committed to:

• Evaluating whether compensatory services or other services are necessary for the student due to the instructional time the student missed when attending in-person classes on a part-time basis.

• Providing training to all administrators and staff regarding the district’s obligation to respond to complaints of sex-based harassment, in compliance with Title IX;

• Providing age-appropriate information programs for students to address sex-based harassment, including what students should do if they believe they or other students have experienced such harassment;

• Conducting a climate survey to assess the prevalence of sex-based harassment and obtain suggestions for effective ways to address harassment; and

The letter to the school district can be found here, and the resolution agreement can be found here.

Note:

Although Title IX only applies to schools receiving federal funding, this investigation shows how schools should respond to harassment based on gender identity. To note, the type of behavior this student was subjected to would also be a violation of many independent schools’ harassment prevention policy.

Premium Perks on Liebert Library!

Liebert Library is an online tool that provides our subscribers access to LCW’s extensive collection of reference materials. We offer 2 levels of subscription for Liebert Library at economical prices that will allow you to lower future legal costs for your school:

1. Basic Membership - access to digital and fully-searchable versions of our Administrator’s Guide to California Private School Law and its Compendium. You can search and reference the most up-to-date versions of these publications at any time. Consortium members receive a complimentary Basic Membership to the Library, where they can digitally access these materials.

2. Premium Membership - access to all of the benefits of our Basic Membership (see above), as well as the ability to download our entire collection of sample forms, policies and checklists in Word and PDF formats that can be used as templates for your school. We are also continually adding Model Policies that can be used to update existing school policies to our library. Premium Membership is only available to Consortium members. To learn more about the consortium program, contact Francesca Savellano at fsavellano@lcwlegal.com.

U.S. Supreme

Court Rules Litigation

Is Automatically Stayed When Appealing Denial Of Motion To Compel Arbitration.

Coinbase operates an online platform where users can buy and sell cryptocurrencies. When creating an account, individuals agree to the Coinbase’s User Agreement, which contains an arbitration provision and directs that disputes arising under the agreement will be resolved through binding arbitration.

This case involves a class action suit filed in federal court in California. The class representative sued on behalf of Coinbase users who allege that Coinbase failed to replace funds fraudulently taken from the users’ accounts. Coinbase filed a motion to compel arbitration, which the trial court denied.

Coinbase appealed to the U.S. Court of Appeals for the Ninth Circuit, and also moved to stay the trial court proceedings while the Court of Appeals resolved the arbitration issue. The trial court and Court of Appeals both declined to stay the proceedings based on prior precedent in the Ninth Circuit. By contrast, most other Circuit Courts of Appeals throughout the country have held that a trial court must stay the proceedings while there is an appeal on the question of arbitration. To resolve the disagreement among the Courts of Appeals, the U.S. Supreme Court took on the case.

The Supreme Court concluded that a federal trial court must stay its proceedings while the appeal as to whether the case can be arbitrated is going on. The Supreme Court reasoned that an appeal divests the trial court of its control over those aspects of the case involved in the appeal. Here, the question on appeal was whether the case belonged in arbitration or instead in the trial court, and therefore the entire case was essentially involved in the appeal. It would not make sense for trial to go forward while the Court of Appeals decided whether there should be a trial or whether the case should be resolved in arbitration.

The Supreme Court concluded that this decision reflected common sense. Without a stay, the parties could be forced to settle the case to avoid the trial court proceedings, and could give rise to potential coercion, especially in class action cases where the possibility of large liability can lead the parties to settle. Without a stay, there was also the potential that the trial court will waste scarce judicial resources, which could otherwise be devoted to other pressing criminal or civil matters, on a dispute that may ultimately end up in arbitration. The Supreme Court reversed the judgment of the Court of Appeals.

Coinbase, Inc. v. Bielski (2023) __ S.Ct.__ [2023 WL 4138983].

Note:

This decision establishes a uniform rule across the country and overturns the precedent in the Ninth Circuit, of which California is a part. Now, if there is a dispute about whether a case should be sent to arbitration, the trial court proceedings will be put on hold. This is relevant to schools who include an arbitration provision in employment agreements and/or enrollment agreements.

Cases To Watch

• On June 29, 2022, the Supreme Court issued its decision ruling that the race-conscious admissions programs at Harvard and University of North Carolina were unconstitutional. Our special bulletin discussing the impacts of this case can be found here. In the days following the decision, three groups in Boston – the Chica Project, the African Community Economic Development of New England, and the Greater Boston Latino Network, filed a complaint with the Department of Education’s Office for Civil Rights to investigate Harvard’s legacy admissions program, which favors children of Harvard alumni. According to the complaint, nearly 70% of donorrelated and legacy applicants at Harvard are white, and admitting more applicants in this group disadvantages applicants of color, in violation of Title VI of the Civil Rights Act. In light of the Supreme Court’s recent decision, we can expect to see more challenges to school’s admissions programs. LCW will monitor this case for developments.

• Antioch University, incorporated in Ohio, is challenging a California statute that allows California non-profit universities to treat adjunct professors as exempt from overtime requirements, while requiring non-profit universities who are incorporated outside of California to classify their adjunct professors as nonexempt. In other words, Antioch has to classify their adjunct professors as non-exempt and pay them by the hour with meal and rest breaks, and comply with overtime requirements. Antioch argues that setting different standards for adjunct professors’ payments based on where a university is located violates the U.S. Constitution’s commerce clause, which prohibits laws that treat in-state and outof-state economic interests differently. Antioch argues that this law limits Antioch’s ability to hire adjunct faculty who are experienced professionals in their fields. LCW will monitor this case for developments.

• The U.S. Department of Education recently filed their regulatory agenda for Spring 2023, which indicates that the Department of Education plans to issue a Notice of Proposed Rulemaking in December 2023 to amend its implementing regulations for Title VI of the Civil Rights Act to include harassment and other discrimination based on shared ancestry or ethnic characteristics. The filing notes that the Department of Education’s Office of Civil Rights has received complaints of harassment and assaults based on shared ancestry or ethnicity of Jewish, Muslim, Hindu, and other students. Although Title VI only applies to schools receiving federal funding, the updated regulations may help private schools recalibrate how to respond to claims of harassment and assault based on shared ancestry or ethnicity.

construction corner

LCW represents and advises private schools and colleges in various business, construction, and facilities matters, including all aspects of construction projects from contract drafting and negotiations to course of construction issues. Through this Construction Corner, LCW will be giving private schools and colleges monthly helpful tips on a variety of topics applicable to campus construction projects. LCW attorneys are available should you have any questions or need assistance with any construction projects no matter what phase you may be in currently.

California Construction Contracting - Role Of Your Architect.

By: Brett A. Overby

Architects serve an essential role in any construction project, from planning, development, and design through construction and project completion. Not only do architects design the project, prepare the plans and specifications, and ensure compliance with applicable codes and regulations, but architects can also serve key administrative and coordinative roles during the construction phase. Every construction project requires careful planning, and one of the most important things that a school should carefully plan is the role its architect will serve in its project. In doing so, schools should:

• Understand that the architect’s agreement may not adequately cover the duties the school needs the architect to fulfill, especially during the construction phase of the project, and take care to revise the architect agreement at the time of contracting to anticipate and meet the school’s needs. Some of the considerations include:

• The architect’s personal visit(s) to the project site prior to design to observe and visually verify any “asbuilt” conditions;

• The number and frequency of meetings the school wants the architect to attend;

• The number and frequency of site visits; and

• The architect’s obligations relating to responding to submittals and requests for information from the contractor.

• Understand that the contractor’s agreement may include roles and responsibilities for the architect that the school may not want the architect to fulfill. The school should revise the contractor’s agreement to accurately reflect the involvement of the architect so the school does not end up having to pay for unwanted services from the architect in order to comply with the contractor’s agreement. Some of the considerations include:

• Will the architect be certifying pay applications from the contractor?

• Will the architect be serving as the initial decision maker?

• Will the architect be approving submittals from the contractor?

• Will the architect be involved in approving change orders?

• Will the architect be involved in the final inspection?

• Understand that schools are legally responsible for the architect’s plans and specifications that are provided to the contractor, and so there is significant benefit to having the architect available during the construction phase to answer the contractor’s questions about the plans and specification and respond to any allegations from the contractor that the plans and specification contain errors, inconsistencies, or omissions.

• Take care to coordinate in the applicable contract documents, the responsibilities of the architect with those of the contractor to avoid overlapping or conflicting duties, which can lead to confusion on the job site, delays to the project, and extra costs.

Careful planning can help to clearly define the role of the school’s architect, and help to promote an efficient, cost-effective, and timely construction project.

did you know...?

• The Equal Employment Opportunity Commission (EEOC) announced it is delaying the 2022 EEO-1 Component 1 Report filing process. The EEO-1 Component 1 Data Collection had tentatively been scheduled to begin in mid-July 2023, but is now delayed to the fall of 2023. The EEO-1 Component Reports are required for all private sector employers with 100 or more employees, and task employers with providing a snapshot of their workforces, segmented by categories such as gender, race, and ethnicity. In light of this change, schools with 100 or more employees now have extra time to prepare their filings.

• The U.S. Internal Revenue Office of Chief Counsel issued a memorandum on whether developing paid name, image, and likeness (NIL) opportunities for collegiate student-athletes furthers exempt purposes under Section 501(c)(3) of the Internal Revenue Code. The memo concludes that many organizations that develop paid NIL opportunities for student-athletes are not tax-exempt under 501(c)(3) because the private benefits they provide to athletes are not incidental to any exempt purpose. The full memorandum can be found here

• The U.S. Supreme Court recently announced that it would not hear Charter Day School, Inc. v. Peltier, a case questioning whether a North Carolina K-8 charter school requiring girls to wear skirts is accountable to the same civil rights laws as traditional public schools. Last year, the Court of Appeals held that the charter school was a state actor and therefore subject to the Equal Protection Clause, and that the for-profit company responsible for the day-to-day operations of the school accepted federal funds and therefore subjected the school to Title IX. The Court of Appeals also held that the skirt requirement perpetuated harmful gender stereotypes that have adverse consequences to girls, including that girls are “fragile” and require protection from boys. Because the Supreme Court declined to hear this case, the Court of Appeals’ decision stands. We covered the Court of Appeals case in our June 2022 Private Education Matters, which can be found here.

lcw best timeline

MID-JUNE THROUGH END OF JULY

Update Employee and Student/Parent Handbooks:

• The handbooks should be reviewed at the end of the school year to confirm that the policies are legally compliant, consistent with the employment agreements and enrollment agreements that were executed, and current with the latest best practice recommendations. The school should also add any new policies that it would like to implement upon reflection from the prior school year and to prepare for the upcoming school year.

Conduct review of the school’s Bylaws (does not necessarily need to be done every year).

Review of insurance benefit plans:

• Review the school’s insurance plans, in order to determine whether to change insurance carriers. Insurance plans expire throughout the year depending on your plan. We recommend starting the review process at least three months prior to the expiration of your insurance plan.

ƒ Workers Compensation Insurance plans generally expire on July 1.

ƒ Other insurance policies generally expire between July 1 and December 1.

For more information on some of our upcoming events and trainings, click on the icons:

practices

Each month, LCW presents a monthly timeline of best practices for private and independent schools. The timeline runs from the fall semester through the end of summer break. LCW encourages schools to use the timeline as a guideline throughout the school year.

AUGUST

Conduct staff trainings, which may include:

• Sexual Harassment Training:

ƒ A school with five or more employees, including temporary or seasonal employees, must provide sexual harassment training to both supervisory and nonsupervisory employees every two years. Supervisory employees must receive at least two hours and nonsupervisory employees must receive at least one hour of sexual harassment training. (California Government Code Section 12950.1.)

• Mandated Reporter Training:

ƒ Prior to commencing employment, all mandated reporters must sign a statement to the effect that they have knowledge of the provisions of the Mandated Reporter Law and will comply with those provisions. (California Penal Code Section 11166.5.)

• Risk Management Training such as Injury and Illness Prevention and CPR.

Distribute Parent/Student Handbooks and collect signed acknowledgement of receipt forms, signed photo release forms, signed student technology use policy forms, and updated emergency contact forms.

Consortium Seminars Webinars

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.

LCW has four private education 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 private education attorney on matters relating to employment and education law questions (including business & facilities questions and student issues!). 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:

Answer:

The attorney advised that there is no statutory requirement that private school employees need First Aid/CPR training. Nonetheless, LCW typically recommends that all schools require teachers undergo the training since it is a requirement for employees in public schools and preschools. It is a safety issue and potentially a negligence issue if something happens to a student at school, so at a minimum, LCW thinks it is a good practice to keep up with this training every two years.

The attorney also advised that there are statutes requiring that private schools equip the school with a first aid kit to accompany pupils whenever they are taken on schoolsponsored field trips. (Cal. Educ. Code Section 32040.) When field trips are taken into areas commonly known to be infested by poisonous snakes, the first aid kit must contain medically-accepted snakebite remedies. The field trip must be accompanied by an agent of the school who has completed a course in first aid certified by the American Red Cross that emphasizes the treatment of snakebites. (Cal. Educ. Code Section 32043.)

As a private K-8 school, do you know what our requirements are for First Aid/ CPR training?

Liebert Cassidy Whitmore