Private Education Matters: June 2023

Private Education Matters

Legal updates

The Pregnant Workers Fairness Act (PWFA).

The Pregnant Workers Fairness Act (PWFA) is a new federal law that requires covered employers – which includes private employers with 15 or more employees – to provide “reasonable accommodations” to an employee’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation would cause the employer an “undue hardship.”

The PWFA goes into effect on June 27, 2023.

The PWFA makes it an unlawful employment practice for a covered employer to do any of the following:

1. Require a qualified employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation other than any reasonable accommodation arrived at through the interactive process;

2. Deny employment opportunities to a qualified employee if such denial is based on the need of the covered employer to make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of the qualified employee;

3. Require a qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of the qualified employee; or

4. Take adverse action in terms, conditions, or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation to the known limitations related to the pregnancy, childbirth, or related medical conditions of the employee.

The Equal Employment Opportunity Commission (EEOC) enforces the PWFA. The EEOC will be releasing regulations to carry out the PWFA in the near future. In the meantime, the EEOC has issued guidance on the law through an FAQ webpage. The EEOC will start accepting charges from aggrieved employees under the PWFA on June 27, 2023, for any violation occurring on or after June 27, 2023.

The PWFA does not preempt federal, state, or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions. California law provides broad protections for employees affected by pregnancy, childbirth, or related medical

conditions. California schools may be required, for example, to make reasonable accommodations for employees who have workrelated limitations stemming from pregnancy, childbirth or a related condition. Those accommodations may include, but are not limited to, temporary transfer to a less strenuous or less hazardous position, upon the advice of her health care provider. California schools should keep in mind that they must comply with both federal and California law, but that the laws impose very similar obligations.

PUMP For Nursing Mothers Act Expands Federal Protections For Lactating Employees.

On December 22, 2022, President Biden signed the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) into law. The PUMP Act moderately expands the federal protections for lactating employees in the workplace. The PUMP Act went into effect on April 28, 2023.

What did Prior Federal Law Require?

Under prior federal law, employers were required to:

1. Provide a reasonable break time for an employee to express breast milk for the employee’s nursing child for one year after the child's birth each time the employee has need to express milk; and

2. Provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which the employee may use to express breast milk.

What is New Under the PUMP Act?

The PUMP Act expressly sets forth three circumstances under which an employer must compensate an employee for break time spent expressing breast milk. Those are when:

• Required by a separate federal law, state law, or municipal ordinance;

• The employee is not completely relieved from duty during the entirety of the break time; or

• The employer provides other paid breaks to employees.

Employees need not complete any special procedure before bringing a private lawsuit to enforce the Act’s reasonable break time requirement, or to file a complaint with the Department of Labor’s Wage and Hour Division regarding any violation of the PUMP Act. However, before an employee may commence a private lawsuit for violation of the Act’s requirement to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public,” the employee must both:

1. Notify the employer of the failure to provide the place; and

2. Provide the employer with 10 days after such notification to come into compliance.

An employee may commence a private lawsuit for violation of the Act’s “place” requirement without notification if any of the following apply:

1. The employee has been discharged because the employee made a request for break time or a place to express milk or because the employee opposed any employer conduct related to the Act; or

2. The employer has indicated that the employer does not intend to provide a place to express breast milk.

The PUMP Act also modifies the consequences for employers who violate an employee’s right to reasonable break time and space to pump breast milk and/or who retaliate against an employee in violation of the Act. Now, an employer who violates an employee’s right to reasonable break time and space to pump breast milk or who retaliates against an employee in violation of the Act, will be liable for legal or equitable remedies. Those remedies could be very broad, and may include reinstatement, promotion, the payment of wages, lost wages, and punitive damages.

As with the prior law, there are limited exceptions for employers with less than 50 employees.

How does the PUMP Act Compare to California Law?

California law provides broad protections for lactating employees in the workplace. Under California law, employers must, among other things:

• Provide employees reasonable amount of break time to express breast milk for the employee's infant child each time the employee has need to express milk.

• Provide an employee with the use of a room or other location for the employee to express milk in private, that meets the following requirements:

• Not be a bathroom;

• Close proximity to the employee's work area;

• Shielded from view;

• Free from intrusion while the employee is expressing milk;

• Be safe, clean, and free of hazardous materials;

• Contain a surface to place a breast pump and personal items;

• Contain a place to sit; and

• Have access to electricity or alternative devices, including, but not limited to, extension cords or charging stations, needed to operate an electric or battery-powered breast pump.

• Provide employees desiring to express breast milk access to a sink with running water, and either a refrigerator or another cooling device (e.g.,

employer-provided cooler) suitable for storing milk in close proximity to the employee's workspace.

• Develop and implement a lactation accommodation policy that includes certain elements.

California law provides that the break time will, if possible, run concurrently with any break time already provided to the employee, and any break time for an employee that does not run concurrently with the break time already provided to the employee will be unpaid.

California law also provides limited exceptions for employers who employ fewer than 50 employees. Such employers may be exempt from a specific requirement of the lactation laws if the employer can demonstrate that the requirement would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business.

Similar to federal law, California law provides remedies for employees who believe employers denied reasonable break time or adequate space to express milk or retaliated against them.

There are two provisions of California lactation accommodation law that differ from federal law. First, California law provides that an employer is not required to provide lactation break time if to do so would seriously disrupt the operations of the employer. Since federal law may be more favorable to the employee, California schools should comply with the federal requirement. Second, California law provides that if an employer cannot meet the break time or location requirements as requested by the employee, then the employer must provide a written response to the employee. Since California law is more favorable to the employee in imposing this written notice requirement on employers, schools should comply with California law. California schools should note, however, that any denial of an employee’s request for a lactation accommodation must be consistent with applicable law, which provides very limited, narrow bases for denial.

new to the Firm!

Jordan Carman, an Associate in our Los Angeles office, provides labor, employment, and education law expertise to our public and private education clientele. Prior to joining LCW, Jordan worked at The Child Care Law Center in Berkeley, CA where she secured childcare subsidies for low-income clients and provided technical assistance to the Department of Social Services on the drafting of regulations and sub-regulatory guidance affecting families and childcare providers.

High School’s Admissions Process Deemed Non-Discriminatory.

Thomas Jefferson High School for Science & Technology (TJ) is a magnet school located in Alexandria, Virginia and operated by Fairfax County Public Schools (FCPS). TJ is a specialized public school that is focused on advanced studies and requires students to apply for admission. The majority of TJ’s students reside in Fairfax County, but TJ also accepts applications from students in four other nearby counties.

The admission process standards are established by the Fairfax County School Board, a 12-member elected body that oversees the public schools of Fairfax County. Prior to 2020, applicants seeking to enroll at TJ in the ninth grade were required to reside in one of the five participating school divisions; to possess a minimum GPA of 3.0; and to have taken a course in algebra. After paying a $100 application fee, applicants had to take three standardized tests. Those applicants who achieved certain rankings on the standardized tests would proceed to a semi-finalist selection round where they would sit for an additional examination comprised of various writing prompts and a problem-solving essay. The semi-finalists also had to submit two teacher recommendations. At the conclusion of the process, students were selected from the semi-finalist group based on a “holistic review” of their application materials.

Under this process, students were typically from a limited group of middle schools and included very few low-income students, few English-language learners, few special education students, and few Black, Hispanic, or multiracial students.

To address student body diversity, the Board made changes to the admission system. Under the new holistic review standard, each public middle school within TJ’s participating school divisions is allocated a number of seats in the incoming freshman class equal to 1.5% of the school’s eighth grade student population. Within each middle school, prospective students are evaluated on the basis of GPA, the student “portrait sheet” (i.e., description of applicant’s skills), a problem-solving essay, and four “Experience Factors” (i.e., special education status, eligibility for free or reduced-price meals, status as an English-language learner, and attendance at a historically underrepresented public middle school). After each middle school's allocated seats are filled, all remaining applicants — regardless of their attending middle school, and including private-and home-school students — compete under the same criteria for the roughly 100 remaining seats. In adopting this new policy, the Board resolved that the process must only use race-neutral methods that do not seek to achieve any specific racial or ethnic max, balance, or targets. The applications, therefore, do not include candidate name, race, ethnicity, or sex.

In the Spring of 2021, the number of applications for TJ’s class of 2025 increased by nearly 1,000 students, with a mean GPA higher than had been in five years, and in terms of demographics, the class of 2025 included markedly more lowincome students, English-language learners, and girls. All 28 middle schools in Fairfax County sent students in TJ in 2021, whereas in 2020, eight of the County’s middle schools had received zero offers. Slightly less than half of TJ’s applicants in 2021 identified as Asian American (48.59%), and 54.36% of the offers extended went to those students, far outpacing the proportion of seats awarded to the other racial and ethnic groups.

The Coalition for TJ, an advocacy organization of Fairfax County public school parents, filed suit against the Board alleging that the new admissions policy runs afoul to the Equal Protection Clause. The Coalition argued that, although the policy is facially race-neutral, the Board adopted the policy with a racially discriminatory purpose in that it intended to reduce the percentage of Asian American students who enroll at TJ and intended for the policy to act as a proxy in order to racially balance TJ.

The Board argued that there is no evidence of intentional discrimination against Asian American applicants because comparing the data before and after the new admissions program does not indicate a “disparate impact” to Asian American applicants. The Board also argued that there is no evidence that the Board adopted the policy in order to intentionally reduce the number of Asian American students enrolled at TJ.

The trial court agreed with the Coalition and ruled that the new admissions policy had a disparate impact on Asian American applicants because, when comparing the before and after data, there was a significant proportional decline in offers extended to Asian American students. The trial court also ruled that the Board sought to racially balance the class of 2025, increasing the school’s representation of Black and Hispanic students at the expense of Asian American students, which revealed a discriminatory intent.

To succeed on an Equal Protection challenge, the plaintiff must show that (1) the policy exacts a disproportionate impact on a certain racial group, and (2) that impact is traceable to an “invidious” discriminatory intent. The Court of Appeals ruled that the “before and after” comparison of Asian American admissions was not the proper measure for disparate impact. Rather, the proper comparison is how Asian American applicants fared in obtaining admission compared to other

racial or ethnic groups. Here, Asian American students accounted for 48.59% of the applications and 54.36% of the admission offers for the class of 2025. By contrast, 10% of TJ applicants in 2021 identified as Black, while only 7.9% of offers went to black students; Hispanic students compromised 10.95% of the applicant pool and received 11.27% of offers; white students represented 23.86% of applicants and received 22.36% of offers; and 6.6% of applicants were “multiracial/other,” whereas only 4.91% of the offers extended went to hose students. Asian Americans produced the highest admissions “success rate” of any group.

The Court of Appeals also ruled that there was no “invidious” discriminatory intent. The Board was not motivated by disadvantaging Asian American students and the policy itself is not only raceneutral, it is fully race-blind. Applicants name, race, ethnicity, and sex are all excluded from the applications. The Court of Appeals reversed the trial court’s judgment and ruled for summary judgment for the Board.

Coalition for TJ v. Fairfax County School Board (4th Cir. 2023) __ F.4th__ [2023 WL 3590055].

Note:

The U.S. Supreme Court is expected to issue its ruling sometime this month as to whether the affirmative action programs at Harvard and the University of North Carolina run afoul to the U.S. Constitution. That decision will likely be limited to higher education and schools who receive federal funding. This Thomas Jefferson case deals with a public school, but it provides relevant guidance at the K-12 level, and we anticipate that admissions programs will continue to be a topic ripe for litigation in the coming years.

student searches

U.S. Department Of Justice Determines Traffic Stop Of Black Student Athletes Was Not Violation Of Title VI.

In May 2022, the United States Department of Justice (DOJ) received a complaint of race discrimination against the Liberty County Sheriff’s Office (LCSO). In that complaint, Delaware State University, a historically Black university, alleged that LCSO discriminated against its hired driver, athletic coaches, and students based on race when it conducted a racially discriminatory traffic stop in violation of Title VI of the Civil Rights Act.

Following the traffic stop of the Black bus driver, the University alleged that subsequent searches of the personal belongings of the primarily Black passengers, including the use of a drug-sniffing dog, violated the civil rights of the passengers.

Title VI prohibits discrimination based on race, color, and national origin for those who accept federal funding. DOJ investigated the matter, including conducting numerous interviews of those individuals involved in the stop, viewed body camera footage from multiple officers present during the stop, and reviewed publicly available documents.

LCSO also conducted an internal investigation into the traffic stop and concluded that the officers acted consistent with applicable law and policies of LCSO. In particular, LCSO’s investigation found no evidence that its officers relied upon race in stopping the bus or in deciding the scope and substance of related investigatory activities.

Similarly, the DOJ did not find discrimination occurred. Nonetheless, DOJ and LCSO agreed to continue to comply with Title VI and refrain from discrimination against individuals based on race, national origin, or color. Among the initiatives, the parties agreed to have DOJ review LCSO’s policies, and revise them where appropriate; for LCSO have a facilitated dialogue with the students, driver, and coaches involved with the traffic stop; for LCSO to strengthen ties with the community; for LCSO to continue undergo mandatory training on non-discriminatory and anti-bias policing for all employees; and for LCSO to enhance tracking and reporting incidences or patterns of biased-based profiling.

The full agreement between the DOJ and LCSO can be found here

Note:

Title VI only applies to schools who receive federal funding. Nonetheless, schools should be aware of the potential discriminatory impact of performing student searches.

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Non-Profit Breached Mutual Non-Disparagement Provision Of Severance Agreement.

Dr. Terri Wright was the Vice President of Program and Community at the Eugene and Agnes E. Meyer Foundation, a non-profit that promotes social and racial equity in the Washington D.C. area.

During Wright’s first year at the Foundation, she received a favorable performance evaluation and a raise. At the same time, the CEO criticized Wright for her “interpersonal skills and communication issues,” feedback she had not received from anyone else at the organization. Wright alleges this criticism was pretext to mask the CEO’s discriminatory animus. Wright also described a general culture of racial inequity at the Foundation. During a round of internal company discussions about racial equity in the workplace, several employees of color shared their own concerns and experiences regarding race issues within the Foundation.

In October 2019, without any notice or opportunity for discussion, the CEO terminated Wright. Wright and the Foundation signed a severance agreement, which included a release of employment-related claims against the Foundation and employees, and a mutual nondisparagement clause. The mutual non-disparagement clause included language that the Foundation would direct its officers, directors, and employees with direct knowledge of the severance agreement not to make any false, disparaging or derogatory statements about Wright.

About a month after Wright was fired, the CEO told another non-profit leader that Wright was let go because she was “toxic” and created a “negative environment,” and that two-thirds of the Foundation staff would have quit if Wright stayed. Wright sued the Foundation and the CEO for breaching the severance agreement, for doing so in a racially discriminatory manner in violation of 42 U.S.C. Section 1981, and for defamation.

The trial court dismissed all three claims, finding the non-disparagement clause obligated the Foundation only to direct its employees not to disparage Wright, but the Foundation and its officers and employees were free to disparage her. The trial court found that the Section 1981 claim failed because it was based on a breach of the severance agreement. The trial court found there was no defamation because the CEO’s statements were protected by the common interest privilege because they were made by the CEO in her capacity as the Chair of the Board of a separate non-profit organization to the CEO of that organization.

In regard to the breach of contract claim, Wright argued that the non-disparagement clause’s promise to direct officers, directors, and employees to not disparage her was a promise that the Foundation itself would also not disparage her. The CEO herself signed the severance agreement. The Foundation and CEO argue that their duty began and ended with the promise to direct its employees not to disparage Wright.

The Court of Appeals found that the severance agreement was ambiguous, and reasonably capable of Wright’s interpretation. The clause was titled as a mutual nondisparagement agreement and the clause contained words such as “mutual” and “likewise,” indicating a corresponding duty to not disparage Wright. The Court of Appeals found it would be unreasonable to follow the Foundation’s interpretation, which would provide that the Foundation could send an email to all employees and Board members directing them not to make false, disparaging, or derogatory comments about Wright, and then only minutes later, release a public statement disparaging Wright.

The Court of Appeal then turned to the Section 1981 claim. Section 1981 protects the right to make and enforce contracts free from discrimination. To prevail, Wright must establish a prima facie case of discrimination: (1) that she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination.

The Court of Appeals concluded that Wright alleged a prima facie case of discrimination. Wright clearly met the first two prongs because she is African American, and therefore a member of a protected class, and she was terminated, meaning she suffered an adverse employment action. Wright successfully alleged that the action gave rise to an inference of discrimination because the Foundation did not defame her predecessor, a white man who was also separated from the company, nor any other non-African American employee. Additionally, the CEO praised Wright’s performance during her first year, indicated that Wright’s communication and relationship with her team was improving, and gave Wright a raise. The praise was specific and detailed. The CEO’s criticism, on the other hand, was vague and subjective, stating that Wright was “too busy in the weeds,” and terminating Wright without notice or warning, inconsistent with her performance record.

The Court of Appeals then considered the defamation claim. The Foundation and CEO argued that Wright’s defamation claim failed because the CEO’s statements were protected by the common interest privilege because the CEO and other non-profit leader were leaders of the same non-profit organization at the time the statements were made. The Foundation and CEO also argued that the statements were opinions and therefore not capable of defamation.

For the common interest privilege to apply, the statements must be made in good faith, on a subject in which the party communicating has an interest, to a person who has a corresponding interest. The Court of Appeals found that the common interest privilege did not apply because the statements were made in malice. Wright had a favorable performance evaluation and a raise, and the CEO acknowledged that Wright had been working on her communication. The CEO had raised Wright’s performance to the other non-profit leader unprompted because the CEO was feeling backlash over the firing. The CEO used unprofessional language to describe Wright, calling her toxic and claiming that two-thirds of the staff would quit if Wright remained. The Court of Appeals also found the statements were not opinions because they had an implicit factual basis.

The Court of Appeals reversed the trial court’s decision to dismiss the three claims.

Wright v. Eugene & Agnes E. Meyer Foundation (D.C. Cir. 2023) __ F.4th __ [2023 WL 3589084.

Note:

This case is an important reminder that mutual nondisparagement clauses can create risk for a school because a court may hold the school accountable for anything employees say, even those who are unaware of a settlement agreement.

Severance Agreement Was Valid Because It Did Not Actually Release Employer From Unknown, Future Claims.

Elizabeth Castelo worked for Xceed Financial Credit Union as its Controller and Vice President of Accounting. In November 2018, Xceed informed Castelo she would be terminated effective December 31, 2018. On November 19, 2018, the parties entered into an agreement entitled “Separation and General Release Agreement,” in which Xceed agreed to pay Castelo a severance in exchange for a full release of all claims, including “a release of age discrimination claims that she has or may have under federal and state law, as applicable.”

The release extended to all claims known and unknown “arising directly or indirectly from Employee’s employment … [and] the termination of that employment” including claims for wrongful discharge, violations of public policy, and violation of FEHA.

Castelo and Xceed signed the Separation Agreement on November 19, 2018. Castelo continued to work through the date of her separation, which was December 31, 2018. The parties intended that Castelo would sign another release covering this extra period of employment on the date of her separation. However, Castelo mistakenly signed the extension release the same day she signed the Separation Agreement.

The following year, Castelo filed a complaint against Xceed alleging age discrimination and wrongful termination in violation of FEHA. The parties stipulated the action would be submitted to binding arbitration.

The arbitrator decided that, despite Castelo signing the extended release prior to her last day of employment, the release was valid throughout Castelo’s employment. The arbitrator also examined California Civil Code Section 1668, which prohibits a person from releasing future violations of law. The arbitrator decided that the release did not violate California Civil Code Section 1668. The Arbitrator declined to permit Castelo— who accepted the benefits under the Separation Agreement—to use her mistakenly-premature signing of the second release to leverage Section 1668 as a weapon against Xceed.

Castelo asked the trial court to vacate the arbitration award. The trial court denied to do so. Castelo asked the Court of Appeal to further examine whether the release for the final month of Castelo’s employment violated California Civil Code Section 1668. The Court of Appeal noted that “… courts have interpreted Section 1668 as precluding releases of liability only for future violations of law, … [when] the facts giving rise to the offense have not yet occurred.” The Court

of Appeal added that the future violations of law that are not allowed to be released are generally unknown future violations of law.

At the time Castelo signed the Separation Agreement and the extension, Xceed had already made the decision to terminate her. Castelo already knew the facts that would later form the basis for her wrongful termination and age discrimination claims. Castelo testified that by the time she signed the releases, she believed she was being wrongfully terminated and the wrongful termination was based on age discrimination. Castelo also did not allege any new, independent acts of discrimination after the date she signed the second release.

The only violations of law that cannot be released by an agreement between two parties are unknown future violations of law. The Court of Appeal sided with Xceed and upheld the judgment of the arbitrator and trial court.

Castelo v. Xceed Financial Credit Union (2023) 91 Cal.App.5th 777.

Note:

The employer was fortunate that the employee did not allege any new discrimination after the date she signed the releases. Severance agreements that release an employer from future, unknown violations of the law are not valid.

LCW In The News

To view these articles and the most recent attorney-authored articles, please visit: www.lcwlegal.com/news

• LCW Partner Michael Blacher and Attorney Hannah Dodge authored an articled titled "Federal Agency Places New Restrictions on Severance Agreements" which was recently published in the May 31, 2023 National Association of Independent Schools (NAIS) Bulletin as the Legal Tip of the Week. This article examines a recent NLRB decision that restricts certain provisions in severance agreements offered by schools. The case involved overly restrictive non-disparagement and confidentiality clauses, which the NLRB deemed impermissible as they hindered employee rights and violated federal law. The article advises schools to consider this ruling carefully when creating severance agreements, outlines exceptions to the NLRB's jurisdiction, and suggests monitoring the case on appeal.

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NLRB Returns To Previous Test For Determining Independent Contractor Status.

Section 2(3) of the National Labor Relations Act (NLRA) excludes independent contractors from coverage. To determine whether a worker is an employee or independent contractor, the National Labor Relations Board (NLRB) considers 10 different factors, including, among other factors: the extent of control the employer exercises over the details of the work; whether the work is done under the direction of the employer or without supervision; whether the employer is engaged in a distinct occupation or business; how much skill is required; whether the employer supplies the tools and place of work; and the method of payment, whether by the hour or by the job.

In 2019, the NLRB ruled in SuperShuttle DFW, Inc., that the 10 different factors should be evaluated through the “prism of entrepreneurial opportunity.” In other words, entrepreneurial opportunity should be the animating principal of the test, and afforded special weight relative to the other factors. The more opportunity workers possess, the more likely they are independent contractors.

On June 13, 2023, the NLRB ruled in Atlanta Opera, Inc. that it would return to the prior, more employee-friendly standard for determining whether workers are employees or independent contractors by applying a holistic analysis of the 10 factors. Under the holistic method, “entrepreneurial opportunity” is one of several non-dispositive factors, and the analysis should be fact-intensive.

In this case, the issue before the NLRB was whether makeup artists, wig artists, and hairstylists (collectively known as stylists) are employees of The Atlanta Opera or independent contractors. The Make-up Artists and Hair Stylists Union, Local 798, IASTE filed a petition to represent the stylists. The Opera asserted that the stylists are independent contractors and therefore not covered by the act.

For each production at the Opera, the director chooses a wig and makeup designer, who is part of the director’s design team and who works closely with lighting and costume designers to effectuate the director’s vision. The wig and makeup designer works with a wig and makeup department head, who seeks out other qualified hair, wig, and makeup artists to execute the styles for each character.

These stylists do not work pursuant to written contracts; they agree to an hourly pay rate and fill out timesheets accordingly. Stylists are not on the Opera’s payroll, receive different rates of pay, and are designated as vendors. Each stylist must fill out a W-9 tax form and a direct-deposit form. The Opera keeps financial records regarding the work of the stylists, but not any other records or personnel files for them. The Opera does not provide any training or orientation and the stylists generally do not wear uniforms, except that they are expected to wear black for the productions to minimize their visibility to the audience. Stylists are not subject to the Opera’s rules and regulations except for the Opera’s infectious disease policies. The stylists’ schedules are dictated by the Opera’s rehearsal and performance schedule and selected based on their availability for the entirety of a production.

Typical job responsibilities include applying makeup; preparing, fitting, and fastening wigs; styling performers’ natural hair; creating special makeup effects (e.g., wounds, aging, or facial hair); working with the audio department to attach microphones; working with the wardrobe department to integrate wig styles with costumes; and removing performers’ makeup, wigs, and microphones after the performances.

Applying the 10 factors in a holistic manner, the NLRB determined that the stylists are employees and not independent contractors. Specifically, the NLRB said that the following factors point toward employee status: the Opera controls the details of the stylists; the Opera directs stylists’ work via continuous feedback from the director; the Opera supplies the tools, instruments, and places of work; the Opera pays the stylists an hourly rate with a fixed number of working hours; the stylists’ work is part of the regular business of the employer; and the Opera is in the same business as the stylists. The factors weighing in favor of the stylists being

independent contractors were their distinct occupation, their skill, and their length of employment. However, considering the various factors holistically, the NLRB concluded that the evidence showing an employment relationship outweighed the evidence supporting independent contractor status.

Atlanta Opera House, Inc., 371 NLRB No. 45 (June 13, 2023).

Note: This test for determining independent contractor status is important for schools to consider when determining whether the NLRA applies to certain workers. California has a separate independent contractor test for determining whether certain California laws, including importantly wage and hour laws, apply to workers. California’s test has more stringent requirements for a worker to be considered an independent contractor.

Non-Compete Clauses Deemed Violation Of NLRA.

On May 30, 2023, the General Counsel of the National Labor Relations Board (NLRB) issued a memorandum clarifying that requiring employees to sign non-compete agreements to obtain or keep their jobs, or as part of severance agreements, interfere with employees’ exercise of their rights under Section 7 of the National Labor Relations Act (NLRA).

Section 7, in particular, protects employees’ right to self-organization, to form, join, or assist labor organizations, and to bargain collectively. The General Counsel said that non-compete provisions are overbroad and reasonably tend to chill employees in exercising their rights under Section 7 when the provisions deny employees the ability to quit or change jobs. For example, the provisions interfere with Section 7 if they cut off employees’ access to other employment opportunities that they are qualified for based on experience, aptitude, and preferences as to type and location of work.

Generally speaking, this denial of access to employment opportunities is a violation of Section 7 activity because employees know they will have greater difficulty replacing their lost income if they are discharged for organizing and acting together to improve working conditions. In addition, an employer’s former employees are unlikely to reunite at a local competitor’s workplace, and therefore be unable to leverage their prior relations to encourage each other to exercise their rights to improve working conditions in their new workplace.

The General Counsel also noted that non-compete provisions can be construed as denying employees the ability to quit or change jobs by cutting access to other employment opportunities.

The full opinion letter can be found here

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FMLA

Employee Notified Of Imminent Termination Prior To FMLA Leave Did Not Have Right To Reinstatement.

On November 3, 2020, Jeff Lyde was elected Sheriff of Clay County, Texas. Following his election, Lyde made personnel decisions for his upcoming administration, including replacing many incumbent supervisors within the Clay County Sheriff’s Office. On November 16, 2020, Lyde sent employees individual emails letting them know they would be terminated in two weeks’ time, on November 30, 2020, when Lyde assumed office.

Linda Byrd was one of these employees. Byrd denied ever seeing the email on November 16, 2020. On the same day, Byrd reached out to the County about the possibility of receiving leave pursuant to the Family and Medical Leave Act (FMLA). Byrd received the paperwork from the County on November 18 and completed her leave application on November 25, 2020. A County employee, unaware of the plans to terminate Byrd, approved the leave. Byrd’s leave concluded in January 2021 and the County declined to reinstate her.

Byrd sued Clay County under the FMLA for interfering with, restraining, or denying the exercise of her FMLA rights. Subject to certain limitations, one right under the FMLA is the right to reinstatement after return from leave. Byrd argued that the County should have offered her employment at the conclusion of her leave in January

2021. The trial court disagreed and granted summary judgment in favor of the County.

The Court of Appeals agreed with the trial court and reasoned that employees do not have a right of employment that they would not have been entitled to had the employee not taken leave. The Court of Appeals said that denying reinstatement to an employee who had already been terminated had she not taken the leave does not violate the FMLA. The Court of Appeals expressed concern that if they ruled differently, employees would immunize themselves from legitimate termination by taking FMLA leave.

The Court of Appeals said that Byrd was not able to dispute that her termination was imminent, and therefore nothing could change the outcome of the case. Byrd did not need to know that her job was ending when she applied for the leave, it mattered only that it was in fact ending.

Byrd v. Clay County, Texas (5th Cir. 2023) __F.4th__ [2023 WL 3122462].

Note:

Terminating an employee while they are on protected leave, such as FMLA or CFRA leave, can be risky. Nonetheless, this case confirms that the FMLA does not protect employees on leave from termination unrelated to their leave.

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 Jaja Hung at jhung@lcwlegal.com.

Our Model Policies have been updated to meet the new requirements for 2023.

Students’ Anti-Semitic Conduct Towards Teacher Can Create

Hostile Work Environment.

Jacob Rabinowitz was hired to teach math at St. Joseph’s Regional High School during the 2017-2018 school year. The Roman Catholic Archdiocese of Newark (Archdiocese) is a Catholic organization that is responsible for the administration of the School. Rabinowitz is a Jewish individual, who, at the start of the school year, began to experience issues in the classroom. For example, Rabinowitz’s classroom had a swastika carved into the chalkboard, swastikas were on desks and a bookshelf, and anti-Semitic statements were written on desks. Rabinowitz could not identify any students who drew the graffiti in the classroom.

Students also threw coins at Rabinowitz while his back was turned to the class, and at least one student was under the impression that the coin-throwing occurred because of Rabinowitz’s Jewish identity. Students blew kisses at Rabinowitz, told him they loved him, and called him “cute.” One student in Rabinowitz’s class stood on a desk and mimicked the murder of a Jewish person from the film Schindler’s List. Although Rabinowitz imposed discipline in certain instances and communicated with parents school administration regarding student misbehavior, he did not mention any anti-Semitic incidents.

When Rabinowitz’s classroom was observed, administrators provided feedback that students were not engaged and seemed confused. The administrators and other teachers did not observe any anti-Semitic graffiti or conduct.

In February 2018, the School administration decided to transfer one of Rabinowitz’s classes to another teacher. One week later, an administrator sat in and provided criticisms of Rabinowitz’s teaching performance. In response, Rabinowitz reported the anti-Semitic graffiti and conduct to the administration. Rabinowitz sent two letters, one of which described the swastikas, the

German slogan, the coin-throwing, and the reenactment of the scene from Schindler’s List The letter also attached photos of the swastikas, and explained that the behavior had been ongoing since the start of the school year, and requested the School take appropriate action. Rabinowitz said he feared speaking up because did not want to signal himself as a trouble-maker or draw attention to the incidents.

In response, the principal noted that Rabinowitz only brought these concerns forward after Rabinowitz received the observation report and that the School could not fix problems that it was unaware even existed. The principal encouraged to bring future reports up as they arose and suggested that the letter was a direct reflection of Rabinowitz’s inability to manage a classroom setting. Soon after, the School notified Rabinowitz that it would not renew his contract due to a variety of issues with classroom management that directly impacted instruction of students. The principal did not interview any students, discussed with other administrators that nothing could be done because the students could not be identified, and contacted the superintendent for high schools at the Archdiocese, but the organization did not provide any advice.

In April 2018, Rabinowitz reported to the vice principal that a student discussed “getting a cake” for that Friday, and that during the discussion, it was revealed that Friday was Adolf Hitler’s birthday. The vice principal commenced an investigation, interviewing eight students. Some students described witnessing anti-Semitic conduct, including the Nazi salute, but the vice principal did not request further descriptions of what was perceived or who was responsible. When the investigation concluded, the School notified Rabinowitz that the he was encouraged to come forward with any additional concerns and confirmed that the swastika on his chalkboard was removed. No additional anti-Semitic conduct occurred through the end of the school year. However, a student found swastikas in at least five out of seven of his classrooms, even after Rabinowitz left the school, and students found swastikas in bathrooms, refrigerators, hallways, and a table in another classroom.

Rabinowitz sued the School and Archdiocese under Title VII and New Jersey law for religious discrimination, unlawful retaliation, and hostile work environment. The School and Archdiocese moved for summary judgment for the hostile work environment claim, arguing that the discrimination that Rabinowitz suffered was not severe or pervasive, rather it was episodic, and that a reasonable Jewish person would not have been detrimentally affected by the discrimination.

The Court disagreed with the School and Archdiocese and concluded that summary judgment was not appropriate because there were genuine issues of material fact as to whether a hostile work environment existed. The Court reasoned that a jury could find that swastikas, graffiti, coin throwing, the Schindler’s List reenactment, and the Hitler’s birthday incident amounted to severe or persistent discrimination. At least one student associated the coin throwing with Rabinowitz’s Jewish identity and the swastika remained in the classroom despite numerous opportunities to address it.

The Court also reasoned that a jury could find that these acts would have detrimentally affected a reasonable Jewish person. Even if the source of the misconduct was students, there is still the potential of a hostile work environment claim.

The Court dismissed the motion for summary judgment and allowed the case to proceed.

Rabinowitz v. St. Joseph's Regional High School (D.N.J., May 23, 2023) 2023 WL 3597633 (slip opinion).

Note:

On May 25, 2023, The Education Department’s Assistant Secretary for Civil Rights issued a Dear Colleague Letter about the nationwide rise in reports of anti-Semitic harassment, including in schools. The letter discussed schools’ legal obligations under Title VI of the Civil Rights Act of 1964 to provide all students, including Jewish students, a school environment free from discrimination based on race, color, or national origin. Although Title VI only applies to schools who receive federal funding, the Dear Colleague Letter may help private schools recalibrate how they respond to claims of anti-Semitism. The Dear Colleague Letter can be found here

Employee Lacked Any Medical Condition That Exempted Her From Employer-Mandated Vaccination Policy.

Deanna Hodges began working for Cedars-Sinai Medical Center in 2000 as an administrator with no patient care responsibilities. In 2017, Cedars announced a new policy requiring all employees, regardless of their role, to be vaccinated by the beginning of flu season. This was the latest expansion to Cedars’ longstanding efforts to limit employee transmission of flu, which had become more urgent following multiple patient deaths relating to flu.

As required by law, Cedar’s policy made exemptions for “valid medical or religious” reasons. Cedars established a very thorough exemption evaluation process through which a panel would grant an exemption only for a “recognized medical contraindication”. Hodges did not want to get the flu vaccine, despite not having any contraindication to the flu vaccine. Hodges and her doctor merely stated on the exemption form that Hodges has a “History of multiple allergies post treatment for colorectal cancer with chemoradiation. Extreme unwell state results from injections and immunizations. No direct patient contact.” Hodges’ doctor stated in his deposition that he was not communicating that Hodges had a recognized contraindication to the flu vaccine.

Hodges submitted her form. She was informed that her form was illegible and she would be suspended and terminated if she did not agree to get the flu vaccine. Hodges attempted to convince a variety of personnel that her exemption request was valid and should be granted. The panel denied her exemption request. Hodges’ doctor then attempted to persuade her to receive the vaccine. Hodges steadfastly refused and was terminated effective November 9, 2017.

Hodges filed a lawsuit against Cedars alleging: (1) disability discrimination; (2) failure to engage in the interactive process; (3) failure to accommodate a disability; (4) retaliation; (5) failure to take reasonable steps to prevent discrimination, harassment, and retaliation; and (6) wrongful termination. Cedars received summary judgement and Hodges appealed to the California Court of Appeal.

After a thorough review of the evidence, including depositions, declarations, and exhibits, the Court of Appeal decided that Hodges did not have a medically

valid contraindication that constituted a disability. Even if she did, the Court of Appeal stated, Cedars terminated Hodges for a legitimate nondiscriminatory reason—noncompliance with a bona fide employer policy aimed at protecting and saving lives.

Hodges v. Cedars-Sinai Medical Center (Cal. Ct. App. 2023) 2023 WL 3558767.

Note:

In this case, the court ruled for the employer because the hospital was able to show that their reason for terminating the employee was based on a legitimate nondiscriminatory reason, and was not based on the employee’s medical condition.

ON-DEMAND TRAINING

retaliation

Cal Supreme Court Says Whistleblower Statute Protects All Employees Who Report Wrongdoing And Not Just The First Employee To Report.

From May 2010 to April 2014, a woman with the initials ACR worked as a bartender at Kolla’s, a nightclub in Orange County. On April 5, 2014, ACR complained to the owner, Gonzalo Estra-da, that she had not been paid wages owed for her previous three shifts of work. Estrada re-sponded by threatening to report ACR to immigration authorities (hence the initials instead of her full name), terminating her employment, and telling her never to return.

In June 2014, ACR filed a complaint against Estrada and Kolla’s with the California Division of Labor Standards Enforcement (DLSE), which opened an investigation. After determining that Estrada’s immigration-based threats and termination of ACR violated California law, DLSE no-tified Estrada and Kolla’s of proposed remedies, including payment of lost wages to ACR, rein-statement of ACR’s previous position, and payment of civil penalties to ACR and DLSE. After Estrada and Kolla’s declined to accept DLSE’s proposed remedies, the Labor Commissioner

sued them for violations of the Labor Code, including retaliation in violation of Section 1102.5(b).

The trial court granted judgment for DLSE but ruled against DLSE on the Section 1102.5(b) claim. The Court of Appeal upheld this ruling and the DLSE thereafter appealed to the California Supreme Court.

Labor Code Section 1102.5 prohibits employers from retaliating against employees for “disclos-ing information” concerning suspected violations of the law, either internally or to government or law enforcement agencies. The crux of this case revolved around what it means to disclose in-formation. Some California courts have held that the report of information that was already known does not constitute a protected disclosure because the ordinary meaning of the verb “to disclose” is to reveal something that was hidden and not known.

It is for this reason that the trial court and Court of Appeal held against DLSE; they both opined that because Estrada was the owner of Kolla’s, he already knew that he had not paid ACR and thus her telling him this was not a disclosure under Labor Code Section 1102.5(b).

On the other hand, other California courts have held that using this definition of “disclose” would defeat the legislative purpose of the law,

which is to encourage and protect whistleblow-ing employees. If only the first employee to blow the whistle was protected, employees would be unwilling to report unlawful conduct for fear that another employee had already done so.

The California Supreme Court found that the Court of Appeal’s definition of “disclose” would defeat the law’s purpose. The Court first noted that dictionary definitions of disclose include “to make openly known” and “to open up to general knowledge.” The Court surmised that these definitions do not require that the topic of disclosure be unknown to the recipient.

The Court also made clear Labor Code Section 1102.5 was intended to protect every employee, not just the first employee to report. The protection should also not be dependent on whether the information was already known to the wrongdoer.

People ex rel. Garcia-Brower v. Kolla's, Inc. (Cal. 2023) 308 Cal.Rptr.3d 388.

Note:

This case makes it clear that the protections of Labor Code Section 1102.5(b) extend to all reports of wrongdoing regardless of previous knowledge and whether another employee had re-ported the misconduct. Schools should respectfully receive any information of potential misconduct or unlawful acts.

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.

Change Orders – Over Budget – How Did This Happen!

By: Abigail Clark

A change order is a modification to an existing construction contract that changes the original project scope by either adding or deducting scope, which potentially impacts project time and contract costs.

Change orders are the most frequent cause of cost overruns for construction projects, and frustrating for many owners who strive to keep projects on time, and on budget. However, a clear understanding of why change orders occur, and careful planning, can help reduce the need for change orders and keep your project on track.

Change orders occur for a variety of reasons, including unforeseen conditions such as underground differing site conditions, weather delays, inaccurate architectural plans, unanticipated increases in the costs of labor or materials, lack of experienced construction personnel, and design changes.

Although sometimes a change order is unavoidable, understanding potential causes of change orders and advance planning during preconstruction can help minimize issues during the project. A project team who anticipates problems can address them upfront in the project design, timeline, budget, environmental assessment, and contract drafting. Some best practices include the following:

• Assess the nature of your project: Certain construction projects are more likely to generate change orders because some conditions cannot be anticipated until you put shovel to dirt. For example, laying a parking lot without significant grading is not a project that is likely to generate change orders. However, creating a building with an underground parking lot has the potential to encounter significant unforeseen underground differing site conditions. It is important for the latter project to conduct a thorough site investigation, utility survey and geotechnical assessment to help identify potential issues or surprises.

• Understand what you want to accomplish with your project: Sometimes change orders occur because the School has not spoken to key constituencies to confirm everyone agrees about project goals and objectives. It is important to seek out input from the School board members, administrators and teachers, before the project begins to confirm everyone is on the same page.

• Hire experienced and skilled personnel: It is important to hire an experienced contractor and architect who understand how to properly plan and budget for a school project. Experienced project personnel can also help anticipate and plan for any delays, including scheduling long lead times for certain materials.

• Integrate Project Delivery: Frequently, contractors attempt to blame the architect when change orders arise citing errors and omissions in the architectural plans and specs. One way to avoid this is to hire a contractor who will perform pre-construction work to ensure that your architect and contractor work together from the beginning of the project, and coordinate project delivery.

• Allow for Contingencies in Your Construction Plan: A well-planned construction project should anticipate weather delays, allow for unforeseen conditions, and may offer alternatives, which the parties can agree upon as the project progresses. For example, weather frequently impacts a construction project. It is smart to include a certain number of rain or snow days in the contract to account for weather related delays.

• Establish a Change Order Procedure: The contract documents should establish a formal change order application and approval process, which can streamline the handling of potential changes, thereby reducing their overall project impact.

did you know...?

• The California Department of Education announced that, beginning with the 2023-2024 school year, and annually thereafter, the Private School Affidavit (PSA) filing system will be available from August 1, 2023 through June 30, 2024. The statutory filing period is October 1 through 15; however, the filing system remains open throughout the school year, starting on August 1, to accommodate new schools. This change allows for early PSA filings for new private schools and parents choosing to withdraw their children from public schools.

• The Department of Labor recently issued an opinion letter about how to calculate the amount of leave used when an employee takes leave under the Family and Medical Leave Act (FMLA) during a week with a holiday. The opinion letter confirms that when a holiday falls during a week when an employee is taking a full workweek of FMLA leave and is not expected to work on the holiday, the entire week is counted as FMLA leave. For example, an employee who works Monday through Friday and takes leave for a week that includes a holiday would use one week of leave and not 4/5 of a week, even though the employee used only four days of FMLA leave that week. On the other hand, when an employee takes FMLA leave in increments of less than one week during a week that includes a holiday, the holiday generally does not count against the employee’s FMLA leave entitlement, unless the employee was required to report for work on the holiday.

• The Equal Employment Opportunity Commission (EEOC) has issued updated guidance on COVID-19 and the Americans with Disabilities Act, the Rehabilitation Act, and Other Equal Employment Opportunity Laws. With the end of the COVID-19 Public Health Emergency, the EEOC updated 30 questions including questions on disability-related inquiries; confidentiality of medical information; hiring and onboarding; disability and reasonable accommodation; pandemic-related harassment due to national origin, race, or other protected characteristics; return to work; vaccinations; and the definition of “disability” under the ADA/Rehabilitation Act as it relates to COVID-19 and Long COVID.

• This month, the state of Oklahoma approved what would be the nation’s first religious charter school. The school, St. Isidore of Seville Catholic Virtual School, is an online school that will be run by the Roman Catholic Archdioceses of Oklahoma City and the Diocese of Tulsa, with religious teachings included in the curriculum. As a charter school, the school will be funded by taxpayer dollars but managed independently. This decision will face legal challenges over the proper role of church and state. LCW will monitor this matter for future developments.

lcw best timeline

JUNE

Conduct exit interviews.

Conduct at the end of the school year for employees who are leaving (whether voluntarily or not). These interviews can be used to improve the organization and can help defend a lawsuit if a disgruntled employee decides to sue.

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.

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.

If you would like to receive more information about our Consortium services or would like to join, please contact Jaja Hung at jhung@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:

Should schools include an AI policy in their family handbook?

Answer:

The attorney advised that schools are choosing to address this issue in their own unique ways. Some schools are adding language to their academic dishonesty policies, to reference AI and programs like ChatGPT, stating that use of these types of services are prohibited unless explicitly permitted and assigned by the teacher for an assignment. This caveat is included because some classes and teachers may purposefully have students use these type of services as part of the lesson. If schools have an existing policy regarding academic dishonesty and plagiarism that might be a good place to add language about the rules the school wishes to implement. The attorney advised that the summer is a good time for LCW to review handbooks and include these types of updates.

Liebert Cassidy Whitmore