Private Education Matters: May 2023

Private Education Matters

ministerial exception

Court Unsure Whether Ministerial Exception Applies To Part-Time Employee Working As Art Teacher And Office Administrator.

St. Cecilia is a Catholic elementary school within the Archdiocese of Los Angeles (ADLA). Frances Atkins was employed by St. Cecilia for approximately 40 years from 1978 to 2018 as a part-time secretary or office administrator until her employment was terminated at the end of the 2017-2018 school year. In 1999, Atkins began working as a part-time art teacher at the school as well, teaching studio art and art history. She also would serve as a substitute from time to time.

In 2012, Atkins signed a job application for a “non-teaching staff” position at St. Cecilia’s. This application was for the position as an office manager and Atkins checked a box indicating that she was “willing to maintain by word and actions, a position of role model and witness to the Gospel of Christ that is in conformity with the teachings, standards, doctrines, laws, and norms of the Roman Catholic Church as interpreted by the [ADLA].”

Atkins also signed a three-page job description, which included language that the position required one who

“actively supports and is expected to conduct themselves in accordance with the philosophy and mission of the Church/School while performing their work.” Atkins did not sign a job application or job description for her position as the part-time art teacher.

Atkins testified that while the students had Religion class each day, which she did not teach, she would discuss with the students what they were learning in Religion class and ensure that the students were acting in a “Christ-like” way. Atkins would incorporate religion when it had relevant application to an artist they were learning about. Atkins does not consider herself to be Catholic and has not taken any religious courses as part of her employment.

In 2017, about one year before Atkins was discharged, St. Cecilia’s principal hired a new office secretary. In the summer of 2018, Patrick Kelly became St. Cecilia’s new principal. Kelly met with Atkins to discuss her position. Atkins explained that she taught art and also worked in office administration. Kelly said during the meeting that Atkins was doing too much. About one week later, Kelly decided that St. Cecilia could no longer afford a fine arts teacher and the position should be eliminated. Kelly did not offer Atkins the opportunity to continue working in the office administration position.

Atkins sued St. Cecilia’s, alleging age discrimination in violation of the Fair Employment and Housing Act (FEHA). St. Cecilia’s filed a motion for summary judgment, arguing that Atkin’s claim for age discrimination was barred by the ministerial exception because in her role as an art teacher, the School entrusted her with educating and forming students in the Catholic faith. Atkins argued that she was not Catholic, and as the art teacher, did not teach religion or Catholicism to the students. She did not incorporate prayer into her teaching and did not personally place any Catholic symbols inside her classroom.

The trial court granted St. Cecilia’s motion for summary judgment, ruling that St. Cecilia presented extensive evidence that Atkins performed ministerial tasks, such as educating students in the Catholic faith and guiding students to live their lives in accordance with the religious tenets of the School. Atkins appealed.

The ministerial exception, which is grounded in the religion clauses of the First Amendment, precludes employment discrimination laws from applying to certain claims arising out of the employment relationship between a religious institution and its employees that serve religious functions.

The Court of Appeals ruled that the trial court wrongly granted summary judgment to St. Cecilia because there were triable issues of material fact as to whether the ministerial exception applied to Atkin’s former job as an art teacher and office administrator. For example, in her role as an office administrator, Atkins solely performed secretarial and clerical-related duties, such as answering the phones, photocopying, and maintaining student records. As an art teacher, she taught visual art and art history, teaching students about different artists and creating art projects based on their interpretation of the artists’ works. Atkins did not teach religion and there is no indication she was required to do so. While students did create some religious-themed art projects in the form of Christmas cards depicting the nativity scene, Atkins did not teach the students about any of the religious aspects of the nativity scene or Christmas. Atkins would only pray with the students at the end of class if she was teaching the last period of the day.

Additionally, there was no evidence that Atkins received a job description or job application for her teaching position. Therefore, there was no evidence that St. Cecilia entrusted her as a teacher with the responsibility of educating and forming students in the Catholic

faith. There was ambiguity as to whether Atkins sought to integrate the Catholic faith into her teaching by educating her students in the faith or whether Atkins simply encouraged her students to lead moral lives in a way that was consistent with the religious mission of the School. Finally, since Atkins held two positions with St. Cecilia, one of which involved no teaching, the Court of Appeals could not conclude that educating students in the Catholic faith lay at the core of Atkins’ job responsibilities.

The Court of Appeals reversed the trial court’s decision and remanded the case.

Note:

This case is relevant for religious schools in California and LCW will monitor this case for future developments. The ministerial exception prevents certain personnel decisions made by religious employers from judicial review, and is an important defense to consider whenever an religious school is faced with employment claims.

new to the Firm!

Brian Hawkinson, an Associate in our San Francisco office, provides legal expertise to public organizations concerning labor and employment matters. Prior to joining LCW, Brian worked for an Oakland based civil rights law firm where he actively participated in all stages of litigation: from screening clients, investigating claims, and filing complaints to engaging in discovery, resolving disputes with opposing counsel, and responding to dispositive motions.

Atkins v. St. Cecilia Catholic School (2023) __ Cal. Ct. App. __ [2023 WL 3142316].

Jaqueline

Abigail

Juliana

Longtime

Principal

Sues

For Defamation Following Communications To Parents About Her Termination.

St. Joseph’s School is a Catholic school operated by St. Joseph’s Church, an entity in the Roman Catholic Diocese of Des Moines. A priest administers the church and the school. The priest is appointed by the Bishop of the Diocese. The Diocese’s Personnel Handbook states that a school’s principal functions as the spiritual, academic, managerial, communications, and public relations leader of the school.

In the fall of 1999, Phyllis Konchar became the principal of St. Joseph’s Catholic School. She served in this role for nineteen years. Konchar’s contract allowed for her employment to be terminated for “cause,” which the contract defined to include “performance, conduct, or behavior on the part of the employee, which, in the sole opinion of the employer, adversely affects the desirability of continued employment.”

Bishop Richard Pates appointed Father Joseph Pins as St. Joseph’s Parish Priest in July 2017. This position gave Father Pins authority over staff at St. Joseph’s School, including Principal Konchar.

Soon after Father Pin’s appointment, he learned of several problems involving Konchar. For example, a gym teacher filed a written complaint against Konchar for harassment, and, when a music teacher decided to resign, she sent an email to Father Pins stating that it was Konchar’s bullying that made her leave. Current and former employees told Father Pins the work environment was “toxic.” Other concerns included Konchar hiring an employee for the school office after Father Pins specifically

told her not to; Konchar paying an employee extra money out of her own personal account; the Iowa Department of Education notifying the School that it would be audited concerning the free-and-reduced-lunch program; and a business manager believing Konchar had approved applications that were noncompliant because the families’ incomes had been too high to qualify for the program.

As a result, the Diocese’s human resources director began an investigation of Konchar in fall 2017, and Father Pins issued a performance improvement plan (PIP) to Konchar. The relationship between Father Pins and Konchard devolved, and in response, Bishop Pates suggested that Father Pins and Konchar try a form of mediation. During their mediation, Father Pins and Konchar created a document called “Building Agreements” on how to rebuild their relationship, including such items as keeping each other informed and supporting each other’s successes. Specifically, Father Pins agreed to offer his support, celebrate Konchar’s successes, help Konchar reach her leadership goals, and help Konchar reach her retirement plans on her terms. Konchar and Father Pins signed the document on February 22.

The Diocese’s human resources investigation concluded shortly thereafter, and found that Konchar engaged in conduct that exposed St. Joseph’s to risks associated with potential violations of the Iowa Wage Payment Collections Act and the Iowa Black Listing Law. The same day, Father Pins informed Konchar that her contract would not be renewed for the next school year. Konchar was able to finish the school year if she did not disclose this decision, however, Konchar chose to send a message to parents and staff about this decision.

On March 11, Father Pins sent an email to the St. Joseph’s parish and school community, stating that complaints were raised by current and former staff, and that with the assistance of the

diocese, the concerns were investigated. The email said there was a pattern of conduct that warranted choosing not to renew Konchar’s contract. Father Pins stated that the decision was not due to any animosity between Father Pins and Konchar and that the prior two pastors and Bishop Pates were consulted and approved the decision following the evaluation of past conduct.

The next day, Konchar sent out another message to parents and staff, stating that the Diocese’s investigation into two complaints determined the complaints were unfounded and that Father Pins terminated her because he did not like her. Konchar’s message said that Father Pins gave her a document on February 22 that stated he wanted Konchar to remain at St. Joseph’s until her retirement, and then terminated Konchar on March 9.

The same day, the Diocese issued a press release that stated the investigation pointed to serious irregularities in the School administration under Konchar’s direction, and Konchar was invited to remain in place for the remainder of the school year on the condition that the situation remain private, but she chose otherwise.

In May 2018, Konchar filed suit against Father Pins, St. Joseph’s Church, and the Diocese of Des Moines. She alleged fraud and defamation by all defendants, and breach of contract against Father Pins only. Konchar’s claims of fraud and breach of contract were based on statements in the “Building Agreements” document and her defamation claims were based on statements in Father Pin’s March 11 email and the Diocese’s March 12 press release.

The Defendants moved for summary judgment. The trial court denied the motion as to Konchar’s defamation claims, but granted summary judgment as to Konchar’s breach of contract claim, fraud claim, and defamation claim on the “prior two pastors and Bishop Pates” language in Father Pins March 11 email.

The case went to trial as to Konchar’s defamation claims on portions of Father Pin’s March 11 email and on the Diocese’s March 12 press release. The jury returned defense verdicts on both defamation claims. Konchar appealed, arguing that the trial court erred in granting summary judgment on her breach of contract claim and her defamation claims on the “prior two pastors” language.

The Court of Appeals agreed with the trial court’s ruling as to Konchar’s breach of contract claim. The Building Agreements document was not sufficiently definite or certain as to be enforceable, and said this document was bettered characterized as aspirational rather than contractual.

In regards to the “prior two pastors” defamation claim, the Court of Appeals upheld the trial court’s decision. It is undisputed that Father Pins consulted with the prior two pastors about Konchar, and both pastors shared concerns. Konchar argues that Father Pins consulted with the two pastors in fall 2017, but not in response to the investigation. Therefore, Konchar argues the statement was defamatory because it created a false appearance that Father Pins had valid reasons to fire her when, in fact, Father Pins simply did not like Konchar. The Court of Appeals declined to reverse the trial court decision because it would involve questioning whether a Catholic priest was justified in deciding that Konchar should no longer serve as principal of a Catholic school, which would run afoul to the First Amendment’s Free Exercise Clause. The Court of Appeals affirmed the trial court’s ruling.

Konchar v. Pins (Iowa, Apr. 14, 2023) 2023 WL 2939140.

Note:

The concurring opinion in this case brought up the ministerial exception, which was not invoked in this case because it is not part of Iowa’s case law. If this case were brought in California, where the ministerial exception is recognized, the case may have been dismissed sooner, avoiding a costly and lengthy trial.

misconduct

Court Upholds Decision To Terminate Tenured Professor For Alleged Sexual Harassment.

Professor John Heineke became a tenured professor of economics at Santa Clara University, a private institution, in 1972. His employment was subject to the faculty handbook, a part of his employment contract with the University. In 2015, Jane Doe, a Chinese national and MBA student, enrolled in one of Heineke’s classes. She repeatedly met with Heineke in his office outside of office hours, at her own request, for help with the course material. Doe received an “A” in the class and accepted an offer to serve as Heineke’s teaching assistant (TA) for the same course in fall 2015. Heineke and Doe had a friendly relationship and Doe sent complimentary emails to Heineke.

Heineke admits that he tried to “mentor” Doe in European/American culture, including once demonstrating the French style of greeting by pressing cheeks and kissing the air and hugging her several times. Heineke described the contact as brief, nonsexual, and at her request. Doe described the contact as extreme, extensive, and nonconsensual.

During the summer of 2015, Doe canceled a lunch and when Heineke asked to reschedule for later in the summer, Doe responded that she was unavailable during summer break. Despite Doe’s and Heineke’s agreement to defer a meeting until September, Heineke emailed Doe

multiple times over the summer to see if she was available to discuss the materials.

In September 2015, Doe responded to the emails, again stating her unavailability and alleging that Heineke had put his hands in her clothes, touched her body and skin, squeezed her bottom, kissed her mouth, pressed his penis against her, and sexually harassed her. Heineke emailed back denying the allegations and expressing shock and disbelief. Doe reported the sexual harassment to the University’s equal employment opportunity office. The University’s Director of Equal Opportunity and Title IX Coordinator Belinda Guthrie met with Doe about her claim, but Doe did not respond to Guthrie’s requests for more information and Guthrie did not pursue Doe’s claim. Guthrie did not initiate an investigation or advise Heineke of the complaint. Heineke did not tell anyone at the University about the emails and deleted them from his account because they “bothered him immensely.”

In January 2017, another female student from China (Student A) complained to Guthrie’s office that Heineke had sexually harassed her. Guthrie hired Michael Henry, an investigator with the National Center for Higher Education Risk Management Group (NCHERM) to investigate. When Henry interviewed Heineke, Heineke did not disclose Doe’s accusations and said “no” when asked if anything like this has ever come up before. Henry also interviewed Doe at length, and her

account was consistent with her September 2015 emails. After the interview, Guthrie authorized a separate investigation of Doe’s claim.

In May 2017, Henry interviewed Heineke and seven other witnesses about Doe’s accusations. Heineke again denied that anything like this had happened before. In May 2017, Henry issued a report concluding that Heineke had not sexually harassed Student A. In June 2017, Henry issued a report on the Doe investigation, finding it more likely than not that Heineke had harassed Doe.

Consistent with University policy, Henry’s report was sent to the Provost, Doe, and Heineke. Heineke indicated that additional relevant emails he previously deleted from his account might exist, and urged the University to consider them. The emails were retrieved and Henry prepared a supplemental analysis, which found that the tone of Doe’s emails were friendly in the first half of 2015, but this did not change the findings of the investigation. Again consistent with University policy, the Provost met with Heineke and accepted Heineke’s lengthy written response to Henry’s investigation addendum. The Provost concluded that it was more likely than not that Heineke violated the harassment policy, which amounted to gross misconduct, and the Provost imposed a dismissal and termination of tenure effective in two weeks. The Provost told Heineke that the University’s President would handle any appeal. Heineke appealed to the University’s President.

The President consulted with Doe, Heineke, the dean of students, and a member of the Faculty Judiciary Board (FJB), and affirmed the findings. Heineke petitioned the FJB for review. The FJB appointed a five-member hearing committee. Following the hearing, FJB affirmed the University’s finding of harassment and decision to dismiss Heineke.

In July 2018, Heineke filed an administrative mandamus petition, asking the Court to review the FJB testimony to determine whether FJB afforded Heineke a fair trial. The trial court reviewed the FJB testimony, agreed with the FJB’s conclusion that Heineke’s explanations were not credible, and agreed that Doe’s reasons for maintaining friendly relations with Heineke in the face of harassment were plausible. The trial court denied Heineke’s petition. Heineke appealed. The Court of Appeal determined that the University followed its procedures and that the record contained substantial evidence to support the finding of harassment. The Court of Appeal noted that the evidence did not definitively weigh in favor of one party, but the Court of Appeal declined to reweigh the evidence and reassess credibility, as this task is reserved for the trial court.

Heineke also sued the University for wrongful termination under the Fair Employment and Housing Act (FEHA) asserting a theory of age discrimination, denial of state constitutional right to due process, breach of contract, and defamation.

For Heineke’s wrongful termination claim, the trial court concluded the University made a prima facie showing of a legitimate basis for termination under the faculty handbook for sexual harassment. Heineke admitted he had no objective evidence that he was discriminated against or terminated due to his age, and thus failed to create a factual dispute. The trial court also found that the veracity of Doe’s allegations was immaterial to the question of whether the University genuinely believed, after conducting an investigation, that Heineke had harassed Doe. The Court of Appeals agreed. The Court of Appeals noted that Heineke did not provide any evidence of age discrimination. Heineke’s “evidence” of pretext was all speculation, hearsay and conclusory arguments.

For Heineke’s due process claims, the trial court held that Santa Clara University is not a state actor, meaning the University is not subject to the due process clause. On appeal, Heineke conceded that the University is not a state actor, and instead argued that he did not receive

a fair process. The Court of Appeals concluded that Heineke’s complaint did not plead a cause of action for denial of a common law right to fair process, and he could not amend his complaint at this stage on appeal from a summary judgment.

For Heineke’s breach of contract claim, the trial court held that the University complied with their faculty handbook terms permitting termination for misconduct, which includes sexual harassment. The handbook authorizes termination when “in the judgment of the Provost, reasons exist to dismiss and terminate the tenure of a tenured faculty member for misconduct.” Heineke argued that this interpretation renders the tenure clause illusory because the University could have its Provost falsely (and/or in bad faith) claim subjectively that a faculty member committed misconduct. The Court of Appeals upheld the trial court’s ruling and noted that the University afforded Heineke all of the processes he was entitled to in the faculty handbook, including a lengthy evidentiary hearing and a thorough decision where the FJB made credibility findings and explained its reasoning. The Court of Appeals upheld the University’s decision to terminate Heineke.

Heineke v. Santa Clara University (2023) __ Cal. Ct. App. __ [2023 WL 3116225].

Note:

Terminating a tenured professor at a college or university is typically higher stakes than terminating an employee at a primary, elementary, or secondary school. Nonetheless, this case is instructive because it shows the importance of following the process outlined in the employee handbook when terminating an employee for violation of a school policy.

NLRB Finds College Failed To Properly Bargain With Union About COVID-19 Mask Mandate And Return To In-Person Work.

Goddard College Corporation is a non-profit liberal arts college that provides educational services in Plainfield, Vermont, and Seattle and Port Townsend, Washington. Most of the administrative staff is based at the Plainfield campus.

An alumnus, Dechen Albero, expressed interest to Goddard’s former director of development about the advertised opening for the position of assistant director of development. Albero resides full-time in Sanibel, Florida, and was only interested in working remotely, which the director of development approved. Albero applied and was hired on September 28, 2020.

All full-time, regular part-time, and temporary administrative, clerical, technical, maintenance and service employees, employed at the Plainfield campus, excluding faculty, managerial, and confidential employees, guards and supervisors, are part of the staff bargaining unit.

In March 2020, Goddard directed all staff bargaining unit members to work remotely, wear masks on campus, socially distance, and refrain from coming to work if sick. The same month, the Governor of Vermont followed with similar mandates and recommendations. In June 2021, Vermont rescinded the mask mandate, but recommended the continuing wearing of masks in work areas. Goddard kept the mask mandate in place until September 10, 2021. During summer 2021, Goddard informed the Union of its intention to have staff bargaining unit members return to work at the Plainfield campus.

The Goddard representatives and the Union representatives met several times during August and September 2021, during which time the union

representatives expressed concerns regarding the continuing impact of the pandemic and instead proposed an October 18 return date, which Goddard rejected. The parties continued to negotiate the return to campus, and the union representative emailed a proposed Memorandum of Agreement, which included, among other things, a mask requirement when in public indoor spaces. Goddard wanted to downgrade the mask mandate to a mask recommendation, which the union representatives agreed to discuss with their members. The parties also negotiated over the amount of sick leave. Goddard said they would discuss further with President Hocoy. Goddard agreed to delay the return to work until September 27 while the parties continued discussions.

President Hocoy called the union representative on September 15, saying Goddard would defer to the relevant jurisdictions on the mask mandate. The union representative disagreed and explained the importance of the mask requirement to unit employees. A few minutes later, Goddard’s representative emailed the union leadership with Goddard’s last, best, and final offer, which included that Goddard would follow the mask and vaccination mandates of the relevant jurisdiction and that the return to campus date would be September 27, 2021. The parties met again on September 21, and the Goddard representative reiterated that the decision to eliminate the mask mandate was not subject to negotiation. The parties discussed but continued to disagree about the mask mandate, the union insisting that it provided vital protection against COVID, while Goddard asserting that vaccinations remained the primary protection against COVID and no employee was prohibited from wearing a mask.

On June 25, 2021, Albero’s supervisor, the director of development, resigned. The position remained vacant, and Albero continued to work remotely in his capacity as assistant director of development. President Hocoy, having inherited serious budget crises, decided that he wanted the assistant director of development to be on campus in order to engage donors in person. On October 13, Albero received an email from Goddard’s

representative, stating that his position would be required to be located on campus in Plainfield, Vermont starting on November 3, 2021. The union was not included on the initial communication to Albero, but two minutes after sending the email, Goddard’s representative forwarded the email to the union representatives.

Albero told Goddard that the union was filing an unfair labor practice charge challenging the legality of Goddard’s actions. The Goddard representative replied that if Albero did not report to campus, Goddard would consider Albero to have abandoned his job. Goddard locked Albero out of the network when Albero failed to report to campus on November 3.

The National Labor Relations Act requires an employer to provide its employees’ representative with notice and opportunity to bargain before instituting changes to mandatory bargaining subject matters. For the employer’s unilateral action to be determined unlawful there must be a material, substantial, and significant change in these terms and conditions. If a party is claiming an impasse as the basis for its unilateral action, the party has the burden of proving that an impasse in negotiations actually existed, which occurs when, despite the parties’ best efforts to reach an agreement, neither party is willing to move from its position.

Goddard argued that there was an impasse because they met six times to bargain over the return to work rules and sent their last, best, and final offer on September 15. The Board disagreed. Goddard’s representative never claimed on or before September 10 that the parties were at an impasse on any issue. There was movement between the parties on September 10, with agreement on one issue, tentative agreement on another issue, and disagreement on two issues. On the two issues where they disagreed, Goddard’s representative said she would discuss the matter with President Hocoy. This created a reasonable expectation by the union representatives that they would hear back. Goddard violated the National Labor Relations Act by implementing a return-to-campus policy that included a return-to-work date of September 27 and a change from a mask mandate to a mask recommendation, without first bargaining with the union to an overall good-faith impasse.

In regard to Albero’s termination, the Board noted that Albero’s remote work location was clearly a term and condition of his employment. He was assured he

could work remotely by his supervisor and he received an additional Remote Worker Stipend of $50.00 per month. The job description for the associate director of development did not mention where the position’s work was to be performed. President Hocoy changed a fundamental term of Albero’s employment before consulting the union. Although the union was notified shortly thereafter, the change was already implemented, and when the union asked for a timeout in order to bargain over this change, Goddard unlawfully rejected that proposal. Modifying Albero’s work location constituted a material change that was done without providing the union with timely notice and a meaningful opportunity to bargain. Goddard violated the National Labor Relations Act when it unilaterally changed Albero’s work location without first notifying and bargaining with the union.

Note:

This case emphasizes the importance of bargaining all material changes to employment with the appropriate union, and, when the parties cannot come to an agreement, bargaining changes to an impasse before implementing any changes. Goddard was issued a ceaseand-desist order, and, among other remedies, was required to reinstate Albero to his previous position, provide Albero back pay, compensate Albero for any tax consequences related to the back pay, and rescind all unilateral changes implemented by Goddard on September 15, 2021.

Goddard Coll. Corp. & United Auto Workers Local 2322, 372 NLRB No. 85 (May 3, 2023).

Court Declined To Reinstate Student Expelled For Bullying Incident.

A high school student at the Hill School, a residential boarding school in Pennsylvania, was required to withdrawal as a result of his participation in an encounter with a fellow student that the School deemed to be an incident of bullying. The incident involved the student dousing a sleeping classmate with water mixed with protein powder in the middle of the night, while two accomplices videotaped the incident and two other students watched from the doorway.

Before that incident occurred, the Plaintiff had been identified as a student who had problems with substance abuse, and as a result was enrolled in a health and wellness program at the School. The student claimed that he was wrongly expelled because his expulsion was influenced, in part, by conducted related to his substance abuse and therefore a breach of contract. The student also claimed that his expulsion violated the Americans with Disabilities Act. He sought injunctive relief, asking the Court reinstate him at the School. The Court found that the student did not meet the standard for reinstatement. In analyzing a claim for injunctive relief, the moving party must first show a probability of success on their claims.

For the breach of contract claim, the Court considered the terms of the Enrollment Contract, which referenced the rules and regulations in the Hill School Handbook, which governs student conduct. The Handbook has a description of the Immediate Care (I-Care) program, which provides an option for students to avoid discipline connected to substance abuse by participating in a process of therapeutic nature designed to divert them from continued “self-destructive behavior.” The I-Care program requires a student to enter into a contract with certain commitments, and as part of the consideration for student participation, the School agrees to forego discipline for actions related to the student’s substance abuse so long as the student complies with program requirements.

Here, the student argued that before the bullying incident, he received a retroactive suspension and was placed on a conduct warning, which provided notice that any additional violations would constitute grounds for immediate dismissal. This sanction was imposed because the student attempted to assist another student in avoiding a positive drug test result. The student argued that he was later expelled due to the bullying incident because of this prior discipline, which should not have been imposed under the I-Care program.

The Court found that the Handbook and Enrollment Agreement both contained language that the headmaster or his/her designee had the discretion to require a student to withdraw, without the need to call for a Disciplinary Committee meeting, if the student violated a major School rule, had an accumulation of minor School rules, was suspected or confirmed to be involved in criminal activity, and/or was dangerous, negative, or a detrimental influence on the school and/or its community.

The Court noted that the Handbook and Enrollment terms were clear in that the immunity of the I-Care program was only related to the student’s own substance use. Further disciplinary decisions rest with the discretion of school officials.

The Court also considered the discipline imposed on the five students as a result of the bullying incident: the two students who watched in the doorway were suspended and the three involved in throwing the water and videotaping the incident were expelled. The three students who were expelled had a prior disciplinary record. The Court noted that the School does not have a formula for disciplinary decisions, and the School has the absolute discretion to expel the student even in the absence of a prior disciplinary record. The Headmaster attested that the determining factor for expelling three of the five students was their active role in participating in the incident.

The Court concluded that the School did not violate its promises related to I-Care. The decision to suspend the student stemmed from his attempt to assist another student in circumventing the School’s drug testing program.

The student was aware that due to his participation in the drug testing circumvention, any further infraction could be grounds for dismissal. As a result, the student could not show success on his breach of contract claim. Similarly, the Court found that the student was not dismissed in violation of the Americans with Disabilities Act because the expulsion was based on his participation in the bullying incident, not substance abuse or any related disabilities. As a result, the Court denied the student’s request to be reinstated at the School.

Doe v. Hill School (E.D. Pa., Apr. 10, 2023) 2023 WL 2868016.

Note:

This case illustrates the importance of flexible disciplinary language in student handbooks and enrollment agreements. Here, the student’s argument that he was wrongfully expelled failed because the school administrators had the flexibility to determine disciplinary actions on a case-by-case basis in the sole discretion of the headmaster or the headmaster’s designee.

Additional Evidence Did Not Change Court’s Ruling To Uphold Student Expulsion.

A.R. was dismissed from the Hopkins School in October 2020 following a disciplinary hearing regarding his use of the N-word. Hopkins is a private school that requires all students to abide by its handbook as a condition of enrollment. The handbook explicitly prohibits offensive language and provides that verbal conduct by a student that results in an intimidating, hostile, or offensive school environment is prohibited. This includes the use of pejorative epithets and ethnic slurs.

Under the terms of the handbook, “very serious misconduct includes offensive language and/or behavior that is harassing, discriminatory, threatening, or directed at another individual based on any other protected class (e.g., race, religion, sex, etc.)” The N-word clearly falls within this category. Under the terms of the handbook, investigations and the disciplinary process are triggered when a report is made. The Discipline Committee proceedings take the form of a conversation and do not imitate legal proceedings.

In October 2020, the Dean of Students received a report from a student regarding concerns about A.R.’s use of the N-word. Subsequently, several other students came to the Dean of Students with similar reports. The School undertook an investigation, which included interviewing students about their reports. A.R.’s parents expressed concerns that the first student who reported the concerns coerced other students into falsely accusing A.R. Due to these concerns, each student was asked whether they were bullied or pressured into reporting A.R. All students denied this suggestion.

The matter was referred to the Discipline Committee and a hearing was held. A.R. admitted to openly using the N-word in the school cafeteria on one occasion, but denied using the N-word after that specific incident, and claimed the students who said otherwise were lying. The Discipline Committee did not find A.R.’s denials to be credible and determined the repeated, blanket denials of all reports and concerns precluded more serious reflection and profoundly affected the Committee’s determination that he should be dismissed. A.R. was given the opportunity to withdraw in lieu of expulsion. A.R. withdrew on October 26, 2020.

J.R. brought an action on behalf of his son A.R. against Hopkins alleging, among other claims, breach of contract. On July 1, 2022, the trial court granted the School’s motion for summary judgment. Now, J.R. moves for reconsideration of the trial court’s decision, arguing J.R. lodged certain exhibits with the court, the exhibits should have been fully considered by the court, and consideration of these exhibits would have resulted in a different outcome. The School argued that J.R. failed to demonstrate that the court overlooked or misapprehended any facts.

Among the exhibits that J.R. raised were:

• A timeline created by the first reporting student, which contained bullying and harassment conduct that A.R. reported about this student. The Court concluded that J.R. failed to provide evidence contradicting the facts that the School investigated A.R.’s claims of harassment and bullying.

• An affidavit from a black student, who reported A.R. for asking this student to participate in a rap song and say the N-word on it. This student states that she was not pressured or bullied to report A.R. and that she was not harmed or insulted by the conduct. J.R. argued this document raises questions regarding whether the School fully investigated the reports made against A.R. The Court concluded that one student’s subjective opinion or experience does not change the language in the School’s handbook.

• Three TikTok videos made by a student, where each video contains a song in which the N-word is used. These videos were presented by J.R. to show

that the School did not apply the procedures in its handbook fairly and to all students. The Court stated that these videos were unreported student conduct and addressed in the original summary judgment decision. There was no evidence these videos were brought to the School’s attention prior to the litigation, and since a report was never made, the School was not obligated to investigate these claims.

• Affidavits and depositions of other students stating that other Hopkins students used the N-word and were not disciplined. The Court concluded again that unreported student conduct had no bearing on A.R.’s discipline.

• A.R.’s disability accommodation letter, which J.R. argued that the School failed to provide requisite accommodations during the disciplinary hearing, including pushing A.R. beyond his endurance when his medications had worn off and not giving him any breaks. The Court concluded that A.R.’s official accommodation plan did not require breaks or mention medication management at all, so this exhibit did not contradict the Court’s findings.

The Court concluded that consideration of the exhibits at issue would not have made a difference in the Court’s decision to grant summary judgment in favor of the School, and therefore the Court upheld the motion for summary judgment.

Ranciato v. Hopkins School (Conn. Super. Ct., Apr. 3, 2023) 2023 WL 2888541.

Note:

LCW previously reported on an earlier decision in this case in the August 2022 Private Education Matters. The court in this case commended the school for following its handbook closely, and thoroughly investigating and taking appropriate action for each report of misconduct. The case is a reminder that private K-12 schools, colleges, and universities should closely follow their written policies and procedures in response to reports of student misconduct.

Mother Unsuccessfully Sues School After School Expels Child For Alleged Marijuana Use.

On October 4, 2022, Raven Griffin, who did not have a lawyer and was representing herself, filed a complaint against the Shining Star Christian Schools and the School’s executive director after her son was expelled

from the School for allegedly using marijuana. Griffin filed a motion for leave to proceed without prepaying the filing fee.

On October 24, 2022, the trial court denied the motion without prejudice because the motion was incomplete. The trial court gave Griffin the option of amending her motion or paying the filing fee in full. At this time, the trial court also preliminarily screened Griffin’s complaint and explained to Griffin that she could not represent her minor son for the alleged violation of her son’s rights.

On December 1, 2022, Griffin filed a motion for extension of time to retain an attorney, which the trial court granted. On December 21, 2022, the court received Griffin’s amended complaint, but not an amended motion for leave to proceed without prepaying the filing fee nor payment for the filing fee.

In her amended complaint, Griffin removed her minor son from the caption and sought one million dollars from the School under Title VI of the Civil Rights Act on the ground that the School expelled her son and intentionally discriminated against Griffin. Specifically, Griffin alleged that prior to the expulsion, her son complained to her that two school employees (not named as defendants) picked on him and released confidential information about him to other students. Griffin did not allege that she brought this to the School’s attention. Griffin insisted that her son was negative for drug testing and cited to the Shining Star Handbook, which states that a meeting will take place within five days of a student’s removal from the School. Griffin argued that she suffered stress, anxiety, embarrassment and emotional damage, and that she reported the misconduct to the Wisconsin Religious & Independent Schools Accreditation.

In regard to the filing fee, the trial court expressed concern that Griffin’s income and expenses were inconsistent across her several filings across the Eastern District of Wisconsin. Griffin had not paid the filing fee in one case and in three different filings, and her filings indicate different numbers of children in her household and different amounts of household expenses. The court concluded that Griffin was making deliberate misrepresentations and inconsistencies about her income and expenses. The court noted that alone is enough to dismiss the case.

However, even if the court did not dismiss the complaint for failure to comply with the court’s order, the trial court still would dismiss the complaint. In order to

file suit under Title VI, the plaintiff suing must be a participant or beneficiary in the program at issue, and the program or activity at issue must be a recipient of federal funding. Here, Griffin did not allege that she was excluded from participation in or denied the benefits of a program receiving federal financial assistance. Griffin’s allegation was that as a single black mother she suffered because her black son was singled out, targeted, and kicked out of school with no recourse. Griffin failed to allege that Shining Stars Christian Schools is a recipient of federal funding.

Griffin also alleged violations of her constitutional rights, particularly due process right based on the School’s failure to abide by the Student Bill of Rights or Student Handbook. The due process clause of the Fourteenth Amendment forbids state actors from depriving any person of life, liberty, or property without due process of law, but Griffin did not allege a due process violation by a state actor. Griffin had the opportunity to amend her complaint, and did not allege that either the School or its executive director acted under the authority of the state.

Finally, Griffin alleged general negligence and emotional distress, which are state law claims. The federal court hearing this case declined to exercise jurisdiction over the state law claims. The court dismissed the case for failure to comply with the court’s order of paying the filing fee or filing an amended motion.

Griffin v. Mattek (E.D. Wis., May 2, 2023) 2023 WL 3212863.

Note:

This case shows that the technicalities and costs of filing a complaint against a school can be burdensome for parents. It is possible that the school in this case did not follow its processes in expelling the student, but without a properly pleaded complaint, the case was dismissed.

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

libel

Students Sued For Libel After Posting Flyers Of Professor And Student Around Campus.

Gregory Smith, a professor of political science and philosophy at Trinity College, a private liberal arts college in Hartford, Connecticut, circulated a letter criticizing Trinity policies. The letter alleged that Trinity was creating a new form of racism and classism at Trinity, with a new form of original sin being loaded on white, suburban students. Smith was also critical of Trinity’s “cultural houses,” which he described as “tribal enclaves,” opining that houses that integrate students by interest and academic subject matter would be more promising and lead to less division and hostility. Smith sent this letter to his fellow faculty members, but some students also received access to the letter in March 2019.

In March 2019, several undergraduate students at Trinity created the Churchill Club and applied for formal recognition and funding from the Trinity Student Government Association (SGA). Smith served as the faulty advisor. The club was “inspired” in part by the Churchill Institute, which is a non-profit corporation founded by Smith that focuses on the study of Western civilization, philosophy, and tradition. In connection with the club’s application for formal recognition, the club’s student representatives, including N.E., appeared before the

SGA to answer questions. Student protestors attended the hearing to protest the club’s formal recognition.

On April 1, 2019, a Trinity student newspaper published its annual satirical issue, which featured an article entitled “SGA Considers Fascist Society Approval.” Around April 10, 2019, a group of four students (Defendants) posted flyers around campus, featuring the Churchill Institute’s logo, a photograph of Smith, and a quote from a Facebook post by Smith: “the new racism is every bit as ugly as the old.” The Defendants also posted nearly identical flyers featuring a photograph of N.E.

Thereafter, N.E. and Smith filed suit against the Defendants, alleging libel and negligent infliction of emotional distress. The Defendants filed a motion to dismiss under the anti-SLAPP statute, arguing that the Plaintiffs’ claims were based on the Defendants’ exercise of the right of free speech and right of association in connection with a matter of public concern under the First Amendment.

The trial court denied the Defendants’ motion to dismiss and noted that Defendants failed to meet their burden because their communications were not made in a public forum, which is required under the anti-SLAPP statute. The trial court concluded that Trinity, as a private college, was not a state actor for the purposes of triggering first amendment protections under the U.S. Constitution. As for the Defendants’ right of association

claim, the trial court noted that the Defendants’ conduct did not involve any governmental interference with private or intimate relationships nor did it involve any governmental interference to engage in protected speech because Trinity was not a public forum. The Defendants appealed, and the Court of Appeals transferred the case to the Connecticut Supreme Court for ruling on the issue.

The Supreme Court considered whether the Defendants had a colorable claim entitling them to protection under the anti-SLAPP statute.

The Defendants argued that the controversy concerning the club’s recognition, on which the flyers commented, was a concern to the Trinity community and the surrounding local community. The Defendants also argued that their right of association claim is colorable because the conduct does not need to take place in a public forum or impose a state action to fall under the anti-SLAPP statute, as there is no express language imposing these requirements.

The Supreme Court agreed with the Defendants. Posting the flyers around campus after the protests against the club’s recognition began constituted a communication among and with other students on campus, who were joining together to pursue a common interest, namely preventing the club from being recognized and funded by the SGA, on a matter of public concern. The topics related

to race relations and racial discriminations, as the flyers contained Smith’s previous remarks on race and protested the club’s recognition because of its affiliation with Smith’s remarks. While the Supreme Court concluded that right of association may not ultimately have merit, the other claims were colorable and therefore the trial court’s denial of the anti-SLAPP motion was appealable. The case was transferred back to the Court of Appeals to evaluate the antiSLAPP motion.

Smith v. Supple (Conn., May 2, 2023) 2023 WL 3214149.

Note:

Although this case occurred in Connecticut, this case serves as a reminder that in California, the state legislature has determined that all high school students, including those in private schools, have the same free speech rights as they would have outside of school.

Court Finds No Conspiracy Or Civil Rights Violations By School Administrators And Police Sergeant Following Deadly Car Accident Of Two Brothers.

Two brothers, Z.K. and C.K, were driving to a basketball tournament for their school, Park Christian. The team drove in a threecar caravan: Park Christian’s assistant coach and head coach each drove a car of players, with Z.K. and C.K.’s car at the end. During the drive, the head coach cut off a semi-truck, and the semi-truck encroached into the next lane. To avoid a collision, Z.K. veered into the median, rolled, and crashed. Z.K. and C.K. both died in the accident and the truck drove off.

A Minnesota State Patrol sergeant arrived at the scene to investigate and prepared a Crash Reconstruction Report, which found that Z.K.’s interaction with the semi-truck caused the accident.

The parents sued the head coach and Park Christian for wrongful death in Minnesota state court. The jury found that the head coach was not negligent and the unidentified semi-truck driver was the sole cause of the accident. The parents moved for a new trial based on newly discovered evidence: that Park Christian coaches and administrators had personal connections with the police sergeant that led him to make false claims in his crash report and trial testimony. The state trial

court denied the motion, the Court of Appeals affirmed the decision, and the Minnesota Supreme Court denied the parents’ petition for review.

The parents then brought claims under 42 U.S.C. Sections 1983 and 1985(2), alleging that the sergeant violated their constitutional rights and state laws and standards because his bias toward Park Christian corrupted his investigation of the crash and later testimony. The parents also brought a Section 1985(2) claim against Park Christian, school administrators, the coaches, and the sergeant, alleging that they had conspired to obstruct justice in the jury trial. The trial court dismissed their claims and the parents appealed.

Section 1983 provides an individual the right to sue state government employees for civil rights violations. The Court of Appeals ruled that the doctrine of collateral estoppel applied and barred the parents from bringing their Section 1983 claims. Collateral estoppel is the doctrine that prevents a person from re-litigating an issue.

The Court of Appeals ruled that the parents previously filed a motion before the state courts that alleged that there was a personal connection between the sergeant and Park Christian, which impacted the fairness and impartiality of the sergeant’s investigation and trial testimony. Their Section 1983 motion raised identical issues. The state trial court’s ruling on that motion was “on the merits” of the case and final because the trial court considered the relevant issues when denying this motion. The parents had the opportunity to litigate these claims fully and fairly when they deposed the

school administrators before trial. They had the opportunity to uncover the relationship between Park Christian and the sergeant, but they did not take advantage of it.

Section 1985(2) protects individuals against conspiracies seeking to interfere with the administration of justice with the intent to deny equal protection under the law. The conspirators must have been motivated by a class-based, invidiously discriminatory animus to succeed on a claim under Section 1985(2). The parents argued that they were perceived by the Defendants as (1) “lacking religious zeal” and (2) they supported minority students at Park Christian by paying tuition for these students. The Court of Appeals ruled that neither of these classifications qualified as a protected class under Section 1985(2). A class must possess the characteristics of a discrete and insular minority, like race, national origin, or gender. The Court of Appeals affirmed the trial court’s ruling and dismissed the claims.

Kvalvog v. Park Christian School, Inc. (8th Cir., May 4, 2023) 2023 WL 3240217.

Note:

This case illustrates that students driving to and from school events can carry risk. In this case, two other students were in Z.K. and C.K.’s car but recovered from their injuries. In California, there are limitations for when students can drive other students. For example, during the first twelve months after obtaining their driver license, a minor cannot transport other passengers under 20 years old unless a parent/guardian, a California driver 25 years old or older, or a certified driving instructor accompanies them.

California Supreme Court Cases To Watch

On May 9, 2023, the seven-member California Supreme Court heard oral arguments in two cases relevant for independent schools.

KuciembaV.Victory Woodworks

In Kuciemba v. Victory Woodworks, Inc., an employee’s wife, Mrs. Kuciemba, says she became seriously ill when her husband contracted COVID-19 at work in the early days of the pandemic and passed it to her. The trial court dismissed the lawsuit, concluding that California workers’ compensation exclusivity barred Mrs. Kuciemba’s claim that she contracted COVID-19 through direct contact with Mr. Kuciemba. The trial court determined Mrs. Kuciemba’s “indirect contact” theory was not a plausible claim and reasoned that Victory’s duty was to provide a safe workplace to its employees, and that duty did not extend to non-employees. Kuciemba appealed. Last year, the Ninth U.S. Circuit Court of Appeals asked the California Supreme Court to weigh in about whether California law recognizes negligence claims for so-called “take-home COVID.”

During the oral arguments, certain business groups backed Victory and warned that allowing these claims could prompt lawsuits from a growing circle of people connected to an employee, creating a never-ending chain of liability for employers.

The U.S. Chamber of Commerce also backed Victory and warned that the Court’s ruling could apply more broadly to other contagious diseases such as influenza. Groups supporting Kuciemba argued that these concerns were overblown in the post-vaccine environment. The Consumer Attorneys of California, in particular, argued that a claim for take-home COVID would be limited to circumstances where an employer

failed to implement safety measures and a person could connect that directly to a serious infection.

The Supreme Court will decide the legal issue and let the Ninth Circuit apply its ruling to Kuciemba’s case.

Kuciemba v. Victory Woodworks Inc., California Supreme Court, No. S274191.

BoermeesterV.Carry

Boermeester v. Carry involves the expulsion of student M.B. from the University of Southern California (USC) for intimate partner violence in violation of USC policy after an investigation and a hearing. The California Supreme Court’s review of this case is intended to provide long-awaited clarity on a key issue involving the student disciplinary process—namely, the extent an accused student’s right to receive the opportunity to cross-examine critical witnesses at an in-person hearing when facing disciplinary action.

While state actors, including public educational institutions, must provide due process to students who are accused of misconduct and facing disciplinary action, private educational institutions must simply provide a fair process (i.e., fundamental fairness) to students accused of misconduct and facing disciplinary action. At minimum, fair process is some kind of notice of the accusations against them, the basis for those accusations, and some kind of hearing, in which they receive the opportunity to explain their version of the facts.

During the oral arguments, USC argued that fair process should include notice of the alleged misconduct and a meaningful opportunity to be heard. The investigator and decision-maker

should be neutral and the accused should have all evidence and the ability to comment. Whether or not to hold a hearing and allow crossexamination should be left to the university’s discretion. USC argued that there should be no requirement for a formal hearing, and requiring such formality takes a significant amount of time and resources away from other educational pursuits.

In this case, there was debate as to whether M.B. placing his hands on Roe’s neck was done as “horseplay,” but USC argued that their policies do not require intent to injure to warrant a violation of the policy and expulsion. USC argued that universities should maintain discretion to discipline students according to their own policies.

M.B., on the other hand, argued for due process for students accused of misconduct and facing disciplinary action. The accused should be given notice, a meaningful opportunity to be heard with fair and impartial adjudicators, access to the evidence, a hearing, and live testimony so witness accounts can be questioned. M.B. argued that Roe was interviewed several times and she recanted certain statements, but M.B. did not have the opportunity to contemporaneously cross-examine Roe. M.B. argued that contemporaneous cross-examination is necessary in order to have clarifying statements as needed and follow-up questions in real time.

Boermeester v. Carry, California Supreme Court, No. S263180.

Note:

LCW previously wrote a blog post on this case, which can be found here.

LCW will monitor both of these cases and report on the California Supreme Court’s rulings.

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 Payments - Timing Of Progress Payments.

By: Brian Dierzé

Progress payments in the construction world are rooted in an incremental approach to a construction project. Instead of a lump sum payment upon completion of the project, progress payments are partial payments made to a contractor after the completion of a predefined stage of the work. These types of payments are provided for in the contract between the project owner and contractor, and help contractors recover and pay for a portion of their costs during the construction project. They also give project owners a chance to assess whether the billed portion of work has been completed satisfactorily before the project proceeds.

Various methods can be used in a contract to designate when and how progress payments are due. The payments may be based on a percentage of the overall scope completed as the work progresses based on a schedule of values (lump sum contract) or payments may be made based on a cost of the work (typically a cost of the work plus a fee with a guaranteed maximum price). Progress payments can also be keyed to the completion of a specific stages of the project, such as when roofing and electrical systems have been put in place, although this is much less common.

The precise format and method of progress payments must be articulated clearly in the contract between the project owner and contractor. Project owners should determine the timing of these payments before a project starts, keeping in mind that too long of a payment period could stall the project, while too short of a payment period could create administrative difficulty with timely review and processing. Per Section 8800 of the California Civil Code, unless otherwise agreed in writing, the project owner must pay the contractor “any progress payment due as to which there is no good faith dispute between them … within 30 days after notice demanding payment pursuant to the contract is given.” This 30 day time period is a good balance.

From the above statute, unless the parties agree otherwise in the contract, progress payments must be made by the project owner within 30 days of notice from the contractor. Typically, notice comes in the form of a Request for Payment Application. The contract should provide detailed information that the contractor must provide in connection with its applications for payment so that the project owner can assess the progress of the project, project expenditures, and payments to subcontractors.

It should be noted that should a client violate the terms of Civil Code Section 8800 they can be penalized at two percent per month, in lieu of interest, on the amount wrongfully withheld. Further, in any action to collect amounts wrongfully withheld, the prevailing party may collect reasonable attorney’s fees.

A project owner and contractor should draft a clear contract detailing how progress payments will be invoiced, requirements for submission of pay applications, timing of payment, and reasons that payment may be withheld in order to minimize payment disputes and keep the project moving.

Updates In NLRB:

did you know...?

Noah’sArkProcessors,LCC : Potential Remedies For Repeated Or Egregious Employer Misconduct.

On April 20, 2023, the National Labor Relations Board (Board) issued a decision in Noah’s Ark Processors, LLC, which detailed potential remedies the Board will consider in cases involving employers who have shown repeated or egregious disregard for employees’ rights under the National Labor Relations Act (NLRA).

The Board determined that when the unfair labor practice justifies a broad cease-and-desist order, which traditionally occurs in cases where the employer has shown a proclivity to violate the NLRA or engaged in egregious or widespread misconduct, in addition to the cease-and-desist order, the Board should consider a nonexhaustive list of potential remedies. The Board’s list of potential remedies was created in an effort to bring greater consistency to its remedial discretion. The remedies may include any of the following:

• Adding an Explanation of Rights to the remedial order that informs employees of their rights in a more comprehensive manner;

• Requiring a reading and distribution of the Notice and any Explanation of Rights to employees, including potentially requiring supervisors or particular officials involved in the violations to participate in or be present for the reading and/or allowing presence of a union agent during the reading;

• Mailing the Notice and any Explanation of Rights to the employees’ homes;

• Requiring a person who bears significant responsibility in the Respondent’s organization to sign the Notice;

• Publication of the Notice in local publications of broad circulation and local appeal;

• Requiring that the Notice/Explanation be posted for an extended period of time;

• Visitation requirement, permitting representatives of the Board to inspect the Respondent’s bulletin boards and records to determine and secure compliance with the Board’s order;

• Reimbursement of Union’s bargaining expenses, including making whole any employees who lost wages by attending bargaining sessions.

Noahs Ark Processors, LLC d/b/a Wr Reserve & United Food & Commercial Workers Local Union No. 293, 372 NLRB No. 80 (Apr. 20, 2023).

LionElastomersLLC : Setting-Specific Standards For Evaluating Employee Misconduct.

On May 1, 2023, the National Labor Relations Board issued a decision in Lion Elastomers LLC II, overruling General Motors LLC and returning to the long-established precedent of three different setting-specific standards for employees who are disciplined or discharged for misconduct that occurs during activity otherwise protected by the National Labor Relations Act (e.g., employee activities related to employee’s hours, wages, and working conditions). The Board had previously made it easier for employers to sanction misconduct that takes place as part of protected activity. In overruling General Motors, the Board noted that labor disputes are often heated and the Board reaffirmed that employees must be given some leeway for their behavior while engaging in protected activity.

The three setting-specific standards are: (1) the Atlantic Steel test, which governs employee conduct towards management in the workplace; (2) the totality-of-the-circumstances test, which governs social media posts and most cases involving conversations among employees in the workplace; and (3) the Clear Pine Mouldings standard, which governs picket-line conduct. Under the Atlantic Steel test, the Board will look to: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee's outburst; and (4) whether the outburst was, in any way, provoked by an employer's unfair labor practice.

Under the Clear Pine Mouldings test, the Board will consider whether the misconduct was such that, under the circumstances existing, it may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act.

Going forward, schools should be aware of these setting-specific standards when disciplining employees.

Lion Elastomers LLC & United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int'l Union, Local 228, 372 NLRB No. 83 (May 1, 2023).

lcw best timeline

MAY

Complete hiring of new employees for next school year.

Complete hiring for any summer programs.

If service agreements expire at the end of the school year, review service agreements to determine whether to change service providers (e.g., janitorial services, if applicable).

• Employees of a contracted entity are required to be fingerprinted pursuant to Education Code Section 33192, if they provide the following services:

ƒ School and classroom janitorial.

ƒ School site administrative.

ƒ School site grounds and landscape maintenance.

ƒ Pupil transportation.

ƒ School site food-related.

• A private school contracting with an entity for construction, reconstruction, rehabilitation, or repair of a school facilities where the employees of the entity will have contact, other than limited contact, with pupils, must ensure one of the following:

ƒ That there is a physical barrier at the worksite to limit contact with pupils.

ƒ That there is continual supervision and monitoring of all employees of that entity, which may include either:

- Surveillance of employees of the entity by School personnel; or

- Supervision by an employee of the entity who the Department of Justice has ascertained has not been convicted of a violent or serious felony, which may be done by fingerprinting pursuant to Education Code Section 33192. (See Education Code Section 33193).

If conducting end of school year fundraising:

Raffles:

• Qualified tax-exempt organizations, including nonprofit educational organizations, may conduct raffles under Penal Code Section 320.5.

• In order to comply with Penal Code Section 320.5, raffles must meet all of the following requirements:

ƒ Each ticket must be sold with a detachable coupon or stub, and both the ticket and its associated coupon must be marked with a unique and matching identifier.

ƒ Winners of the prizes must be determined by draw from among the coupons or stubs. The draw must be conducted in California under the supervision of a natural person who is 18 years of age or older.

ƒ At least 90 percent of the gross receipts generated from the sale of raffle tickets for any given draw must be used by to benefit the school or provide support for beneficial or charitable purposes.

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.

Auctions:

• The school must charge sales or use tax on merchandise or goods donated by a donor who paid sales or use tax at time of purchase.

ƒ Donations of gift cards, gift certificates, services, or cash donations are not subject to sales tax since there is not an exchange of merchandise or goods.

ƒ Items withdrawn from a seller’s inventory and donated directly to nonprofit schools located in California are not subject to use tax.

- E.g., if a business donates items that it sells directly to the school for the auction, the school does not have to charge sales or use taxes. However, if a parent goes out and purchases items to donate to an auction (unless those items are gift certificates, gift cards, or services), the school will need to charge sales or use taxes on those items.

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.

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:

When a letter of recommendation is written for a former employee, should a copy be placed in their personnel file?

Answer:

The attorney advised the school that we do not recommend that reference letters be kept in the employee’s personnel file. Instead, the school can keep reference letters in a separate, confidential correspondence file or in a file that the person writing the reference letters (e.g., the Head of School) maintains with all of the reference letters they have written.

The attorney also advised that before providing any references to another employer, we recommend requiring the former employee to sign a waiver and consent form, in which the former employee should specifically waive their right to access the letter of reference.

Finally, the attorney advised if an employee or former employee requests to view their personnel file, they do not have a right to view letters of reference under Labor Code section 1198.5.

Liebert Cassidy Whitmore