Private Education Matters: November 2022 by lcwlegal

November 2022

Private Education Matters

Table Of Contents 03

First Amendment

Did You Know?

STUDENTS

Negligence

Duty Of Care EMPLOYEES

Ministerial Exception

Benefits Corner

Construction Corner

Title IX

LCW Best Practices Timeline

Discrimination

Consortium Call Of The Month

Unemployment

Contributors: Grace Chan Partner | San Francisco Millicent O. Usoro Associate | Los Angeles

Stephanie J. Lowe Associate | San Diego Brett A. Overby Associate | San Diego

Connect With Us! @lcwlegal Copyright © 2022 Requests for permission to reproduce all or part of this publication should be addressed to Cynthia Weldon, Director of Marketing and Training at 310.981.2000. Cover Photo: Attributed to pexels.com

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

• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

First Amendment

The Ohio Supreme Court declined to review a lower appeals court’s ruling that Oberlin College was liable for supporting claims that a local bakery discriminated against students of color. The college announced it would pay the $31 million in damages to the bakery. The long running case garnered significant local and national media attention. The case began in 2016 when Allyn D. Gibson, an employee whose father and grandfather owned the bakery, accused three Black Oberlin students of stealing wine. The students alleged the accusations were racist. The incident led to large student protests urging a boycott of the bakery. The dean of students, Meredith Raimondo, handed out fliers protesting the bakery. The flyer stated that the bakery had a history of discrimination of racial profiling, and that the bakery was “heinous.” Oberlin’s student government also passed a resolution accusing the bakery of having a history of racial discrimination. Oberlin eventually ceased doing business with Gibson’s Bakery and stopped selling its products on campus. Gibson’s Bakery sued Oberlin for defamation, intentional inference with a business relationship and intentional infliction of emotional distress. Among other claims, the bakery alleged that Oberlin had hurt its reputation and it suffered significant financial and emotional damages as a result. After significant litigation, the matter ultimately proceeded to a six-week jury trial. The jury entered verdicts for the bakery and awarded $44 million. A judge later reduced the verdict at $25 million, plus attorneys’ fees, totaling $31 million. Oberlin appealed. On appeal, the Ohio appeals court upheld the verdict. The appeals court held that “reasonable minds” would interpret the flyer to mean that there have been past incidents of discrimination or profiling at Gibson’s bakery. The appeals court rejected Oberlin’s argument that it did not publish the flyer or the Senate Resolution. A key element in a defamation case is that the defamatory statement is communicated to a third party, called publication. The appeals court held that there

was significant evidence that witnesses observed Raimondo handing out flyers. Additionally, Oberlin provided students and staff a room near the protests to take breaks, where it supplied coffee and pizzas. Raimondo also agreed to reimburse a student $75-100 that she spent on gloves so the protestors would not get cold. The appeals court held that the totality of this evidence demonstrates that Oberlin took actions to directly publish or assist in the publishing of the flyer.

November 2022

Oberlin College To Pay $31 Million In Defamation Suit.

The appeals court also found held that Oberlin played an active role in the publication of the Senate Resolution, citing evidence that Oberlin provided the student senate with financial support, a faculty advisor (Raimondo), an office in the student center, and a glass display case within which it could post announcements. The student senate also had the authority to distribute resolutions to the entire student body via email, and display their resolutions in the glass display case. On the intentional infliction of emotional distress claim, the court held that Oberlin’s conduct towards Gibson’s Bakery and its owners was sufficiently “severe and outrageous” to support their claim. The court cited to evidence that the dean of student’s told Oberlin’s food service company to stop doing business with the bakery, that college administrators pressured owners to drop criminal charges against the student shoplifters, and refused to correct the defamatory statements or otherwise stop the ongoing damage to the bakery and owners’ reputations after learning the student allegations of racial profiling might be false. On the interference with business relationship claim, the court of appeals also upheld the jury verdict. Gibson Bros., Inc. v. Oberlin College (2022) 167 N.E.3d 575. Note: This case was litigated in Ohio state court, and is not binding in California. However, it does provide some insight on how private K-12 schools, colleges, and universities could be held liable for student speech when it provides a platform for such speech. The appeals court held that because Oberlin authorized the existence of the student senate, provided the senate with financial support, and allowed the senate to post its resolutions on school property, the college was legally responsible for the defamatory statements of the student senate.

• www.lcwlegal.com •

Join our LCW attorneys at the Cal-ISBOA Legal Symposium! November 10, 2022 8:15am - 1:30pm Cal-ISBOA is partnering with Liebert Cassidy Whitmore to bring you an important virtual event in November, the "California Legal Symposium." We'll focus on legal issues facing independent schools, with an emphasis on California.

Diverse Identities: How to Manage Employee Expressions of Diversity Presenters: Grace Chan and Julie L. Strom 8:15 am - 9:30 am

When schools encourage diverse communities, issues can arise about the line between employees’ desires to express themselves, and the school’s desire to create a cohesive and inclusive community. Both law and school policy may impact decisions around handling issues relating to gender identity and expression, support for social justice movements, and generational differences about the role of the school in these matters. This session will provide an overview of the hottest topics in this area, and help guide schools through some of the more challenging issues.

What I Wish I Had Known Before I Was Deposed Presenters: Brian Walter and Dave Carter 9:45 am - 10:45 am

When a school faces a lawsuit, the Business Officer and Human Resources Director are likely to be deposed The deposition process is a uniquely eye-opening and gut-wrenching experience. Seemingly routine daily comments, emails, and decisions will be hyper-scrutinized and demonized years later in the deposition. This session will present insights into the deposition process from both a litigator who defends schools and from a long time school human resources director who was deposed shortly before he retired. The session will offer guidance on how attorneys will try to undermine the decisions of school officials and best practices for a business officer and human resources director to follow that will withstand the harsh scrutiny that comes with a deposition.

Controlling Construction Costs

Presenters: Heather DeBlanc and Brett A. Overby 11:00 am - 12:00 pm Although a variety of factors can drive up construction costs, careful planning can minimize the risks of cost overruns on your construction project. This session will provide a series of tips to help schools keep construction within budget and on time. We will provide an overview of key factors you should consider as you embark on your project, including details relating to your project team, project delivery method, contracts and key planning points. After attending this session, you will be able to identify the key issues you need to discuss with your school and project team to deliver a successful project within budget.

Legal Update/Emerging Legal Issues

Presenters: Michael Blacher and Millicent O. Usoro 12:30 pm - 1:30 pm Keeping up with changes to the law and evolving best practices can be challenging! This interactive workshop is designed to inform independent school business officers of current and emerging legal issues by exploring relevant cases, statutes, and other developments from California and around the country. Business officers will leave this workshop with insights that will help them meet their obligations and manage developing trends.

• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

November 2022

students

duty of care District Did Not Owe Duty To Ensure Students Were Safe Against Unforeseeable Acts Of Third Party. On April 10, 2017, Cedric Anderson entered his wife’s classroom at an elementary school in the San Bernardino City Unified School District. Anderson shot and killed his wife, a student, and himself in front of a class of students. Students who witnessed the shooting, through their guardians, sued the District for negligence and dangerous conditions of property. The students argued that the District had a duty to take reasonable steps to protect them from criminal activity, and the District created a dangerous condition by failing to lock the front office door and equip classrooms with doors that locked. Rather, a curtain covered the entrance to their classroom. The District argued that they owed no duty to the students because Anderson’s actions were not foreseeable, the school property was not a dangerous condition because there was no defect, and Anderson was not using the school property with due care. Anderson had previously visited the school and never posed a threat or caused any problems, and his wife never informed anyone at the District of their marital issues. When Anderson arrived at the school’s front office, he said he was dropping something off for his wife. The trial court agreed with the District, and the students appealed. On appeal, the Court of Appeal concluded that even though the District had a special relationship with the students, which gave rise to a duty to protect them, the District was not liable to the students in this case. In reaching its decision, the court analyzed foreseeability-

related factors, including 1) the foreseeability of harm to the plaintiff; 2) the degree of certainty that the plaintiff suffered injury; and 3) the closeness of the connection between the conduct and the injury suffered. While the court acknowledged that this was a tragic event, it concluded that “imposing a duty on a school district to ensure that its school is safe from every trusted visitor would be entirely unfounded and unfair.” The court found the District had no actual knowledge that Anderson posed a risk of harm to his wife or anyone at the school. To the contrary, Anderson had previously visited the school without incident, and his wife never expressed any concern to family or the District about his potential for violence or her safety. The court also noted that imposing a duty on school districts to ensure that students are safe from third party criminal conduct of known visitors – such as teachers’ spouses and family members is an “unrealistic responsibility.” The court noted “the extent of the burden to shoulder such a duty and the consequences to school personnel would be extremely heavy. Districts would become the insurers of the safety of students in the event of any intentional harm (including from within), even if the districts have no reason to expect it. This is an unrealistic responsibility.” C.I. v. San Bernardino City Unified School District (2022) 82 Cal.App.5th 974. Note: Private K-12 schools, colleges, and universities owe to their students a duty of care to protect them from foreseeable harm. Here, the court held that the school did not have a duty to ensure that students were safe from the teacher’s husband because the school did not have any actual knowledge that the husband posed a danger to the students’ safety, and therefore the harm they suffered was not foreseeable.

• www.lcwlegal.com •

employees

ministerial exception

District Court Holds That First Amendment Religion Clause Bars Discrimination Claims By Guidance Counselor Who Was Fired For Same Sex Marriage. Michelle Fitzgerald worked at Roncalli High School (School) in Indiana for fifteen years. She began working as a guidance counselor and was later promoted to Co-Director of the Guidance Department. She primarily assisted students with academics, class scheduling, college planning, and career counseling. In 2018, Fitzgerald signed a “School Guidance Counselor Ministry Contract.” The contract incorporated the faculty handbook, which stated guidance counselors were expected to assist students in strengthening their Christian development. The contract also required Fitzgerald to communicate the Catholic faith to students, pray with students, and celebrate Catholic traditions. Three months after signing the ministry contract, the School learned that Fitzgerald was married to a woman. The School placed her on paid administrative leave for the remainder of her contract and did not renew her contract.

Fitzgerald sued the School and the Roman Catholic Archdiocese of Indianapolis (Archdiocese) alleging, among other claims, discrimination, retaliation, and hostile work environment under Title VII, and retaliation under Title IX. The School and the Archdiocese filed a motion for summary judgement, arguing that the ministerial exception barred all of Fitzgerald’s claims. The ministerial exception protects religious institutions from certain employment law claims. The defense stems from the First Amendment Religion Clauses that protects the right of religious institutions to manage the religious institutions’ employment relationships with its “ministers.” Whether an employee qualifies as a minister is a fact-intensive inquiry. Fundamental to this analysis are the employee’s duties, and whether they are religious in nature. Fitzgerald argued that the School never entrusted her with religious teaching duties and never engaged in religious teaching. For example, the Co-Director of guidance did not have any religious duties in her supervisory or guidance counselor role. She also claimed she never prayed or discussed religious doctrine as part of her work, and that students did not come to her with religious or spiritual issues. However, the trial court granted the School’s and Archdiocese’s motion for summary judgment. In ruling in favor of the School and Archdioceses, the trial court relied on precedent from

a Seventh Circuit Court of Appeals case in which Fitzgerald’s former colleague, Lynn Starkey, also sued the Archdiocese after she was fired for being in a same sex marriage. (Starkey v. Roman Catholic Archdiocese of Indianapolis, Inc. (7th Cir. 2022) 41 F.4th 931.) Starkey held that the ministerial exception involves an analysis of “what an employee is entrusted to do, not simply what acts an employee did.” The court found that Fitzgerald’s employment agreement and the School’s description of Fitzgerald’s expected duties made clear that the School entrusted Fitzgerald to teach the Catholic faith and carry out the School’s religious mission. The employment agreement was a “teaching ministry contract.” The faculty code of conduct indicated that faculty were expected to assist students in “strengthening their Christian development” and “foster the spiritual growth” of the students. Moreover, guidance counselors were charged with “leading students toward Christian maturity and with teaching the Word of God.” The court noted that a high school guidance counselor is a job that is predominantly secular. However, because Fitzgerald’s employment agreement and the School’s faculty handbook indicated that the School entrusted Fitzgerald with shaping the School’s religious mission, the court held that the ministerial exception applied.

• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

November 2022

Fitzgerald v. Roncalli High School, Inc. and Roman Catholic Archdiocese of Indianapolis, Inc. (S.D. Ind. September 30, 2022), No. 1:19-cv-04291-RLY-TAB. Note: While this case is from Indiana, the ministerial exception may apply to employees of religious institutions in California, including religious schools.

new to the Firm!

Brent Richardson, an associate in our Fresno office, brings his vast expertise in, employment law, wage and hour, business contracts and facilities matters to aide LCW clients throughout the state. Brent is also a seasoned litigator who handles all facets of defense-side employment litigation, from pre-litigation through jury trial and appeal.

Julia Franco, an associate in our Los Angeles office, provides representation and counsel to LCW clients in all aspects of employment law, including wage and hour law. Julia is also skilled with alternative dispute resolution, including experience at all levels of the mediation process, from material preparation to settlement.

James P. Bonnie, an associate in our Fresno office, uses his experience to represent his clients in all employment and labor law aspects, including litigation, employee discipline, administrative hearings, and investigation.

Cindy Allen, an associate in our San Francisco office, has dedicated her career to providing top tier representation to educational organizations. Cindy specializes in special education, Title IX, and student discipline issues.

• www.lcwlegal.com •

Don’t Miss Our Upcoming Webinar! Private Education Legislative Roundup Thursday, November 17 10:00 - 11:00am

Attend Our Upcoming Wage & Hour Webinar: FLSA Compliant Automated Payroll Systems – Is It Possible? January 17, 2023 10:00am - 11:00am

• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

Sixth Circuit Holds Title IX Claim Does Not Accrue Until Plaintiff Knows Or Has Reason To Know Of Injury. Dr. Strauss was a university physician and athletic team doctor at the Ohio State University (the University) who allegedly abused hundreds of young male students under the guise of performing medical examinations. The abuse occurred between 1978 and 1998. Dr. Strauss served as a physician until 1996, when the University placed him on leave while it investigated his conduct; and ultimately decided to terminate his employment with the Athletics Department. Dr. Strauss remained at the University as a faculty member. The University also did not publicly provide reasons for these decisions.

November 2022

e l it

that they risked their scholarships or athletic opportunities if they refused. Dr. Strauss’s victims subsequently brought Title IX suits against the University alleging that the University was deliberately indifferent to their heightened risk of abuse. The plaintiffs argued that the University knew about, facilitated, and covered up Dr. Strauss’s sexual abuse. The trial court rejected the plaintiffs’ claims as untimely and barred by the statute of limitations.

The Sixth Circuit Court of Appeals disagreed with the trial court and rejected the argument that the plaintiffs’ claims were untimely. The Sixth Court concluded that the “discovery rule” determines when a Title IX claim begins to accrue. Under the discovery rule, a claim accrues when a plaintiff knows or has reason to know that the defendant injured them. In other words, the plaintiff must discover both their In 2018, the University conducted an injury and its cause. In this case, independent investigation into Dr. the Sixth Circuit noted that many Strauss’s conduct, which substantiated plaintiffs adequately alleged they the allegations of abuse. The did not know they were abused until investigation report found that many 2018, and at the time of the abuse, students complained to the University they were young and did not know about Dr. Strauss’s examinations of what was medically appropriate. male students, but despite this, the Rather, Dr. Strauss gave them University took no meaningful action pretextual, false medical explanations to prevent the abuse. Additionally, for the abuse, and the plaintiffs did the University required students to be not have reason to know that others examined and treated by Dr. Strauss, had previously complained about often implicitly making students feel Strauss’s conduct. Additionally, the • www.lcwlegal.com •

University’s failure to adequately investigate the complaints it received over decades against Strauss, its misrepresentations to students about its knowledge of Strauss’ conduct, and its decision to allow him to quietly step away from his university job, all blocked the students from comprehending the full extent of OSU’s enabling role in the abuse. This concealment means that the two-year statute of limitations within which the plaintiffs must bring a suit did not start at the time of the abuse but at the time the University disclosed the full extent of it. Snyder-Hill v. The Ohio State University (6th Cir. 2022) ---- F.4th---- [2022 WL 4233750]. NOTE: Title IX applies to most private colleges and universities, and to certain private and independent K-12 schools that accept certain federal financial assistance. This is a case from the Sixth Circuit and therefore not binding authority in California. However, this case provides insight on how a federal court interpreted the statute of limitations for a Title IX claim.

discrimination

Court Denied Employer’s Request To Change Venue In FEHA Case From The Employee’s Home Office To The Company’s Office. In October 2018, Eleanor Malloy was hired by the parent company Comprehensive Print Group as an administrative assistant. During her first 18 months at the company, her supervisor, Spencer, made offensive and denigrating comments to her based on her gender and expressed an inappropriate interest in her personal life. On March 17, 2020, the COVID-19 pandemic was underway. Malloy and other employees of the company began working remotely. That fall, Malloy became pregnant, and gave birth to her son the following March, 2021. In April 2021, Malloy’s supervisor requested her to work in person two-to-three times a week starting in May, 2021. Malloy replied she could not work in person for at least one month due to childcare needs. The company terminated Mallory for not returning to in-person work. Mallory filed a complaint for pregnancy and gender discrimination, sex- and gender- based harassment, interference with protected pregnancy leave, retaliation, and wrongful termination, among other claims. She filed her claim in Los Angeles County, where she lived. On November 9, 2021, the company moved for a change of venue to Orange County, where Malloy’s employer-provided office was located. The company argued all the unlawful conduct alleged occurred in Orange County, all records were kept there, and Malloy’s employment was based there. Malloy opposed, arguing that Los Angeles County was the proper venue for her pregnancy discrimination interference and retaliation causes of action because she was working from home or otherwise at home on protected pregnancy leave when the unlawful conduct occurred. The superior court agreed with the company, and granted the change of venue to Orange County. Malloy petitioned for a writ of mandate with the California Court of Appeal to challenge the venue change.

The Court of Appeal sided with Malloy. First, the Court noted that the Fair Employment and Housing Act (FEHA) authorizes an aggrieved party to file a FEHA action in the county in which the alleged unlawful employment practice was committed or in which the employee would have worked but for the unlawful practices. Second, the Court noted a California Supreme Court precedent that supported Mallory’s position. The Court noted that the Legislature’s decision to afford a wide choice of venue in FEHA cases “maximizes the ability of persons aggrieved by employment discrimination to seek relief from the courts….” Based on these facts, the Court found venue in Los Angeles County to be proper. Malloy v. Superior Court (Comprehensive Print Group), 2022 WL 4298371.

WCAB’s Denial Of Discrimination Claim Does Not Stop FEHA Discrimination Claim. In 2013, Gurdip Kaur, an employee at Foster Poultry Farms LLC, slipped at work while wearing company-issued rubber boots and broke her wrist. After surgery, Kaur returned to work and, despite her work restrictions, Foster Farms forced her to perform her normal job duties. Kaur struggled to perform her normal job duties, but Foster Poultry denied her requests for an accommodation. She was terminated in late 2013 but was then reinstated after contesting her termination. In 2016, Foster Poultry restructured and gave her a new job she could not perform one-handed, so she was terminated again. In 2016, Kaur filed a petition against Foster Poultry with the Workers’ Compensation Appeals Board (WCAB) alleging discrimination for filing her claim, in violation of Labor Code Section 132(a). Her claim was heard in an administrative hearing and was eventually denied. In 2017, before her workers’ compensation claim was decided, Kaur also sued Foster Poultry under the Fair Employment and Housing Act (FEHA). Kaur’s five FEHA claims were centered around discrimination due to race/nationality and disability.

• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

The trial court granted summary judgment for Foster Poultry due to its affirmative defense. Kaur appealed. The primary issue on appeal was whether the trial court properly decided that the WCAB’s denial of Kaurs’ 132(a) claims precluded her FEHA claims. The California Court of Appeal held that Kaur’s FEHA claims were not precluded. For an issue to be precluded, the issue must be identical to that decided in a former proceeding. The issue must also have been actually litigated and necessarily decided in the former proceeding. In addition, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. The Court of Appeal focused on the first prong of the above test; whether the issues were identical. In the WCAB claim, the issue was whether Kaur experienced discrimination on account of the industrial nature of her injury. On the other hand, Kaur’s FEHA claims were broader, and centered on whether she experienced

discrimination on account of her disability, and whether she was unlawfully discharged because of her disability. Moreover, Kaur’s other FEHA claims, such as her allegations that she was not provided a reasonable accommodation and was not engaged in a good faith interactive process, involved entirely different issues from the WCAB claim. The Court further found that, in deciding the WCAB issue, the administrative hearing judge ignored certain FEHA requirements because the issue was so distinct from FEHA and involved different considerations.

November 2022

When Kaur’s worker’s compensation claim was denied, Foster Poultry asserted an affirmative defense to Kaur’s lawsuit, arguing that all of Kaur’s disability related claims were barred by the legal doctrines of res judicata and collateral estoppel. Simply put, these doctrines generally preclude a person from re-litigating issues that were argued and decided in prior proceedings, even if the second lawsuit raises different causes of action. Together, these doctrines can be referred to as “issue preclusion.”

The Court of Appeal held that the denial of the WCAB claim did not preclude Kaur’s FEHA claims, and she could move forward with her lawsuit. A concurring opinion cautioned that this decision should be interpreted narrowly, and that the decision did not mean that factual findings by an administrative hearing judge on a WCAB claim can never result in issue preclusion on a FEHA claim. Rather, one must look carefully at the underlying issues and findings of fact. A claim decided in a WCAB setting may indeed prevent a FEHA claim if the issues and inquiries are similar enough. Kaur v. Foster Poultry Farms LLC, 2022 WL 4243090. Note: The underlying FEHA claims have not yet been decided in this case. However, agencies should always be cognizant of the many FEHA laws and regulations that require reasonable accommodation of both industrial and nonindustrial injuries.

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

Consortium

Seminars • www.lcwlegal.com •

Webinars 11

unemployment

Employee Gets Benefits After “Leaving” Her Job For Good Cause And Not Permanently Abandoning Her Job. The Unemployment Insurance Code provides individuals with unemployment benefits, except when they leave their most recent work voluntarily and without good cause. The California Employment Development Department (EDD) administers unemployment benefits. In late October 2019, Reena Johar took an approved leave of absence from her job as a sales representative with Success Water Systems to care for her terminally-ill grandmother. She was gone for about a week and a half. Johar would receive job assignments from her supervisor in the form of sale appointments, which required her to travel to a customer and demonstrate the product. Upon her return from her leave of absence, she received no sale appointments for many weeks and was told business was slow. During those weeks, she was also issued a “final paycheck” and was asked to return some of her equipment. However, she continued to receive commission checks and was not told to stop communicating with prospective customers. Eventually, in February 2019, Johar applied for unemployment benefits and listed the reason for her loss of employment as a “temporary layoff.” When EDD contacted Success Water Systems to request a written confirmation of this information, Johar’s supervisor checked the box for “voluntary quit.” This led EDD to investigate, and learn two competing accounts. Johar explained that she requested emergency family leave in October 2019, and that her supervisor advised that she could “return at any time she is able” to her job. Success Water Systems agreed that the leave of absence was approved, but stated that: the leave was not for an indefinite period; Johar failed to respond to repeated requests for a return date; and Johar was deemed absent without leave. The EDD ruled against Johar. The EDD held that Johar had indeed left on an approved leave of absence but then failed to preserve the employment relationship by communicating a date for her return.

Johar appealed this EDD decision to a full hearing before an administrative law judge. The administrative law judge decided against Johar again, stating not only that Johar’s absence was not approved, but that she also failed to preserve the employment relationship. Important in this conclusion was Success Water Systems’ assertion that their sales representatives must be licensed, and Johar had not rectified incomplete information in her licensing application. Johar then appealed this decision to the California Unemployment Insurance Appeals Board (CUIAB). Johar entered new evidence that showed that Success Water Systems had unilaterally altered Johar’s address in her licensing application which prevented Johar from learning that her application was incomplete. The CUIAB again sided with Success Water Systems, stating that Johar voluntarily quit her job. The CUIAB did not allow the new evidence into the proceeding because the evidence had not been reviewed by EDD, the opposing party. Johar appealed this outcome via a writ of administrative mandamus. The trial court denied her writ and dismissed her case. Johar made her last appeal to the California Court of Appeal. The Court of Appeal narrowed the relevant issue down to whether Johar was entitled to unemployment benefits, or had been disqualified under section 1256 of the Unemployment Insurance Code because she left her most recent work voluntarily and without good cause. This issue is decided by determining who was the moving party in the separation. If the employer moves to cause the separation, the leaving was involuntary. If the employee moves, the leaving was voluntary. The Court of Appeal held that Johar had left her work voluntarily. She left work of her own volition to care for her grandmother. However, the Court of Appeal also held that this was for good cause, because leaving work for circumstances relating to the health, care or welfare of an employee’s family has been held to be a good cause. Success Water Systems had no formal leave of absence policy. Because Johar had received approval from her supervisor for the leave of absence, Johar affirmatively left her work voluntarily but with good cause. However, even if an employee voluntarily leaves her work for good cause, if that same employee

• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

November 2022

manifests an intention to abandon her job while gone, she can be said to have been the moving party in terminating the employment relationship. The test for manifesting an intent to abandon a job is whether the employee indicates “with the clearest terms of repudiation” that she will not be reporting to work. Here, Johar was silent in the face of certain communications, and at times indicated that she would respond to certain other communications “when the emergency ceases.” Johar was also never ordered to report to work, so she never had ignored any such order. Finally, the fact that Success Water Systems did not make its expectations clear about Johar’s return from leave, the Court of Appeal could not use those expectations to evaluate Johar’s intent to return. The Court of Appeal therefore found that Johar did not clearly repudiate her willingness to return to work. Because Johar had left her work voluntarily for good cause, she was not disqualified from receiving unemployment benefits under the Unemployment Insurance Code. Johar v. California Unemployment Ins. Appeals Bd.,2022 WL 4139848. Note: This case illustrates the importance for employers to have clear, pragmatic policies, especially in relation to leaves of absence. Expectations for employees who take leaves of absence must be communicated clearly.

Did You Know? Whether you are looking to impress your colleagues or just want to learn more about the law, LCW has your back! Use and share these fun legal facts about various topics in labor and employment law.

• On September 16, 2022, President Biden signed the Eliminating Limits to Justice for Child Sex Abuse Victims Act of 2022. This new law eliminates the statute of limitations for civil actions in federal court to recover damages by minor victims of human trafficking or federal sex crime offenses. The law has no effect on state law claims, but serves as the federal counterpart for civil claims based on alleged child sexual abuse. • The Occupational Safety and Health Standards Board is currently considering adopting a permanent COVID-19 regulation which would replace the current Emergency Temporary Standard that guides employers’ COVID-19 Prevention Programs. • Governor Newsom has signed AB 152, which allows qualified employees to use any remaining California Supplemental Paid Sick Leave (Labor Code Section 248.6) through December 31, 2022. This benefit was originally set to expire on September 30, 2022. For more information, see the October 4, 2022 LCW special bulletin, Governor Newson Signs Into Law Assembly Bill 152, Extending COVID-19 Supplemental Paid Sick Leave Through December 31, 2022.

• www.lcwlegal.com •

negligence

Employer Was Not Liable For Harm After Supplying Alcohol To An Employee, Nor For An Employee’s Actions Outside Of The Scope Of Employment. In August 2015, Carmel Musgrove traveled to the Four Seasons Resort in Bora Bora, French Polynesia. She was among those whom producer Joel Silver had invited to accompany him in attending Jennifer Aniston’s wedding. Musgrove was Joel Silver’s executive assistant, but Musgrove was not required to attend this trip. Rather, she was invited to come along as a guest. If she accepted the invitation, she would receive her normal salary, have her expenses paid, and spend ten percent of her time coordinating recreational activities for the group. The group ate lunches and dinners together, which were prepared by Silver’s personal chef, Martin Herold. Musgrove attended one of those dinners, during which wine was available. Musgrove then went to Silver’s family bungalow to watch a movie with his children. While watching the movie, Musgrove agreed via text message to meet up with Herold. Over the next hour, Herold and Musgrove kissed and Musgrove drank more wine and ingested cocaine. After departing from her rendezvous with Herold, Musgrove climbed down the ladder of her private, overwater bungalow for a night swim, and drowned. Musgrove’s family sued Silver for wrongful death, claiming that he was responsible for their daughter’s death. In assessing whether Silver was directly or vicariously liable for Musgrove’s death, the Court of Appeal explained the test for direct liability, and the four tests for vicarious liability.

To show that Silver was directly liable, the family needed to establish that: 1) Silver placed Musgrove in peril and failed to protect her from that very same peril; or 2) Silver had a special relationship with Musgrove that otherwise obligated him to protect her. Musgrove’s family alleged that Silver placed Musgrove in danger and then failed to protect her by giving her with an excessive amount of alcohol, drugs, and then not preventing her from swimming in the lagoon at night. The evidence indicated that Silver did not supply Musgrove with drugs. The Court of Appeal also stated that at most, Silver merely allowed Musgrove to drink the wine served at meal. Because case law indicates that no social host who furnishes alcoholic beverages can be held liable for injury to that person, the Court of Appeal explained that these allegations did not establish direct liability. The Court of Appeal next examined whether Silver had a special relationship with Musgrove that obligated him to protect her, but concluded that he did not for three reasons. First, Silver did not employ Musgrove, Silver’s movie production company did. Second, the family sought to hold Silver liable for Silver’s own conduct in failing to protect her from the alcohol he furnished or subsidized, which as explained above, is not a viable theory of liability. Third, any special relationship between Musgrove and Silver would be limited to when Musgrove was at work. Musgrove was at her private bungalow and not involved in any work-related activities at the time of her death. As a result, Silver could not be held directly liable for Musgrove’s death. The Court of Appeal next sought to determine if Silver could be held vicariously liable instead. Generally, for an employer to be held vicariously liable for the actions of their employee, the person suing must show that the employee was both negligent and acting within the scope of employment. Here, the Musgroves alleged that Herold, as Silver’s personal chef, was Silver’s

• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

Herold had been Silver’s personal chef for over a decade, and would routinely travel with Silver and his family to prepare their meals. Silver paid Herold a salary and covered his expenses. Herold set his own hours and was simply expected to provide lunch and dinner.

November 2022

employee, and that he was acting in the scope of his employment when he negligently caused Musgrove’s death. For purposes of the opinion, the Court of Appeal assumed it to be true that Herold was negligent when he supplied Musgrove with alcohol and cocaine while knowing that she enjoyed swimming at night in the lagoon. Thus, the next matter to be determined was whether Herold acted within the scope of his employment.

from the conduct of the employer’s enterprise. Here, Herold’s actions were simply too attenuated from his employment as a personal chef to fairly assign liability for the Musgroves’ loss of their daughter to Silver. As a result, no liability for Musgrove’s death was assigned to Silver. Musgrove v. Silver, 82 Cal. App. 5th 694 (2022). Note: This tragic case illustrates the four principles of vicarious liability that can make employers liable for the conduct of their employees. Generally, an employer should advise employees that that personal recreational activities during conferences or work-related travel are voluntary and outside the scope of employment.

To determine whether an employee acted within the scope of their employment, California has articulated four tests. The first test asks if the employee’s conduct was required by, engendered by, or was an outgrowth of the employee’s job. Here, Herold’s conduct in meeting up with Musgrove was not at all related to his job as a personal chef for Silver. This test did not assign liability to Silver. The second test asks if the employee’s conduct was a reasonably foreseeable result of his employment. Here, Musgrove’s death by accidental drowning after consuming cocaine and alcohol was not at all foreseeable from Herold’s job of preparing meals for Silver. The third test asks whether the employee’s conduct: 1) conceivably benefited the employer; or 2) was a customary part of the employment relationship. Herold’s conduct, which resulted in the death of a beloved employee, did not benefit Silver. There was no evidence that Herold had supplied alcohol or cocaine to any of Silver’s employee’s before, so this was not a customary incident. Finally, the fourth public policy tests asks whether it is fair to shift responsibility for the losses to the employer because the employer benefitted from the injuryproducing activity, and such losses are sure to occur

• www.lcwlegal.com •

benefits corner

Lawsuits Address Discrimination In Employer-Sponsored Group Health Plans Based On Sexual Orientation And Gender Identity. By: Stephanie J. Lowe A number of recent court decisions address whether the nondiscrimination provisions of Title VII, the Affordable Care Act (ACA) Section 1557, the Equal Protection Clause of the Fourteenth Amendment, and the Federal Equal Pay Act apply to health plan claims alleging discrimination based on sexual orientation and gender identity. In Doe v. Catholic Relief Services, a data analyst employee, John Doe, sued his employer Catholic Relief Services (CRS) when CRS terminated spousal health insurance benefits for Doe’s husband. CRS is a Catholic Church social services agency, which administers its employee benefits programs consistent with Catholic values. CRS hired Doe in June 2016 and Doe enrolled his husband through CRS’s spousal benefits enrollment system. CRS approved the enrollment but two months later, notified Doe that CRS had mistakenly approved the enrollment and CRS would be dropping coverage because CRS does not provide spousal health benefits to employees’ same-sex spouses. CRS eventually terminated Doe’s husband’s health insurance. One of Doe’s claims is that CRS’s actions violated the Federal Equal Pay Act (EPA). The EPA prohibits discrimination on the basis of sex by paying wages to employees at a rate less than the rate paid to employees of the opposite sex for equal work. Under the EPA, the level of pay takes into account the failure to provide equal health insurance benefits. The court assessed that CRS provides spousal benefits for the male spouses of female employees who performed equal work as Doe, a male employee with a male spouse. After finding that CRS did not challenge Doe’s EPA claims (instead CRS focused on defending the Title VII claim), the court awarded Doe summary judgment on his EPA claim. Doe also brought a Title VII claim in his lawsuit. Title VII makes it an unlawful employment practice for an employer to discriminate against

any individual with respect to his compensation, conditions, or privileges of employment because of the individual’s sex. In the lawsuit, there was no dispute that CRS terminated Doe’s husband’s health insurance because of Doe’s sex and because Doe was a man married to another man. CRS’s defense was that it was exempt from Title VII as a religious organization that was making a decision based on beliefs motivated by its religion. However, the court found that Title VII’s exemption allows religious entities to make employment decisions based on religion but not based on race, sex, or national origin. The court held that CRS was not exempt from Title VII and allowed Doe’s claim to move forward. In two other lawsuits, Fain v. Crouch and Kadel v. Folwell, groups of covered individuals brought lawsuits against employer-provided health insurance plans challenging the exclusion of coverage for gender-conforming care. In Fain v. Crouch, the court granted summary judgment for the plaintiffs, finding that the West Virginia State Medicaid Program did not allow coverage for gender-conforming surgical care as treatment for gender dysphoria but allowed similar surgical treatments for diagnoses unrelated to gender dysphoria. The court found the treatment was precluded based on one’s gender identity, which “invidiously discriminates” on the basis of sex and transgender status in violation of the Equal Protection Clause and Section 1557 of the ACA. This case has been appealed to the Fourth Circuit. In Kadel v. Folwell, the court found that the North Carolina State Health Plan for Teachers and State Employees’s categorical exclusion of coverage for treatments “leading to or in connection with sex changes or modifications” discriminated against transgender plan members on the basis of sex and transgender status. The court held that this health plan, which was offered to public employees, violated of the Equal Protection Clause. Public agencies should be aware of their health plan’s enrollment requirements and coverage exclusions. Should any enrollment or coverage exclusions raise concerns about having a discriminatory impact on a protected class of employees or their dependents, the agency should assess the risk. These three recent lawsuits demonstrate an increase in discrimination claims made against employer-sponsored health insurance plans based on sexual orientation, sex, gender, and gender identity. Additionally, the Biden administration has stated that prohibiting discrimination in health care based on sexual

• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

Doe v. Catholic Relief Services, --F.Supp.3d ---- (D. Md., Aug. 3, 2022), 2022 WL 3083439; Fain v. Crouch, --F.Supp.3d ---- (S.D.W. Va., Aug. 2, 2022), 2022 WL 3051015; Kadel v. Folwell, --F.Supp.3d ---- (M.D.N.C., Aug. 10, 2022), 2022 WL 3226731.

New Energy Efficiency Tax Benefits And Grants Available For Nonprofits In 2023 And Beyond. By: Brett A. Overby President Biden signed the Inflation Reduction Act (IRA) on August 16, 2022, which contains, among other provisions, key clean energy incentives for nonprofit organizations, including independent nonprofit schools, in the form of tax credits and deductions. The IRA is especially impactful for nonprofit organizations because it allows them to receive direct cash payments for certain tax credits by adding a new section, Section 6417, to the Internal Revenue Code. We are awaiting guidance from the IRS on the process for nonprofit organizations to receive these direct cash payments.

property (i.e., electric vehicle charging stations) and extends it to any charging stations placed in service after December 31, 2021 and before January 1, 2033. The tax credit is limited to entities that place electric vehicle charging stations in service within low-income or non-urban census tract areas during the taxable year. Qualifying electric vehicle charging stations include charging stations for two and three wheeled vehicles (for use on public roads) as well as bidirectional charging equipment (i.e., vehicle-to-grid or V2G). For entities, the tax credit is 30% of the cost of the installed electric vehicle charging station if certain prevailing wage and apprenticeship requirements are met, such as ensuring all contractors involved in installing the station are paid the applicable location’s prevailing wages and that a certain percentage of labor hours be performed by qualifying apprentices. If the prevailing wage and apprenticeship requirements are not met, the tax credit amount is 6% of the cost of the installed electric vehicle charging station with a maximum cap of $100,000 per station.

Tax-exempt entities are able to claim these tax credits as cash payments under Section 6417. For example, if a nonprofit summer camp enters into a contract to build an electric vehicle charging station on its property in In addition to the IRA, the Energy a low-income or non-urban census Efficiency Materials Pilot Program set tract area that costs $6,000, then the aside $50 million for nonprofit 501(c) nonprofit would be entitled to a cash (3) organizations to purchase certain payment of $1,800 provided that energy efficiency materials. the applicable prevailing wage and apprenticeship requirements are met. INFLATION REDUCTION ACT Qualified Clean Commercial Alternative Fuel Vehicle Refueling Vehicle Tax Credit Property Tax Credit The qualified clean commercial The IRA modifies the tax credit for vehicle tax credit is a new tax credit alternative fuel vehicle refueling applicable to each vehicle purchased • www.lcwlegal.com •

by a taxpayer after December 31, 2022 and before January 1, 2033. For a tax-exempt entity, a commercial vehicle includes a vehicle from a manufacturer qualified by the Environmental Protection Agency that the entity acquires for use or lease (and not for resale). This tax credit cannot be combined with other clean vehicle tax credits for the same vehicle; only one tax credit may be claimed per vehicle.

November 2022

orientation and gender identity is a priority of the administration. (See Executive Order 14075, dated June 15, 2022.)

The tax credit amount is the lesser of either 15% of the vehicle cost (30% for non-gasoline or non-diesel vehicles), or the difference between the purchase price of the vehicle and a comparable gasoline or diesel vehicle. The maximum amount is $7,500 for a vehicle with a gross vehicle weight rating (GVWR) less than 14,000 pounds, or $40,000 for vehicles exceeding that GVWR. Tax exempt entities are able to claim this tax credit as a cash payment. For example, let’s say that a private nonprofit school purchases a qualifying electric vehicle with a GVWR of less than 14,000 pounds that costs $60,000 and a comparable gasoline or diesel vehicle costs $48,000. Since the difference between the electric vehicle and the comparable vehicle is $12,000, the private nonprofit school is eligible for a cash payment of $7,500, which is the lesser of the two potential tax credit amounts. Renewable Electricity Production and Investment Tax Credits The IRA also establishes two tax credits for solar and wind projects undertaken by covered entities, which include tax-exempt entities. Entities may only choose one of these tax credits, so it would be beneficial to assess which tax credit would be more favorable for it under the circumstances. For tax-exempt entities, these tax credits are taken as a cash payment under Section 6417.

The Renewable Electricity Production Tax Credit provides a credit in the amount of $0.03 multiplied by the kilowatt hour of electricity produced from qualifying solar and wind facilities placed in service after December 31, 2021. Construction on such solar and wind facilities must begin before January 1, 2025. A qualifying solar and wind facility is one with a maximum net output of less than 1 megawatt that was constructed meeting certain prevailing wage and apprenticeship requirements, and maintained during the applicable taxable year meeting certain prevailing wage and other requirements. The Renewable Electricity Investment Tax Credit provides a credit for qualifying solar and wind facilities placed in service after December 31, 2021. Construction on such solar and wind facilities must begin before January 1, 2025. The credit is 30% of the cost of a solar or wind facility, provided that certain prevailing wage and apprenticeship requirements are met in the construction of the facility, and certain prevailing wage and other requirements are met in the alteration or repair of the facility for the first 5 years it is in service. We recommend that tax exempt entities confirm that their contracts for the construction and maintenance of these solar and wind facilities include any applicable prevailing wage and/or apprenticeship requirements so they can take advantage of these tax credits. Energy Efficient Commercial Buildings Tax Deduction The IRA provides a tax deduction of up to $5.00 per square foot for a qualified building when 50% energy savings is achieved per year and certain prevailing wage and apprenticeship requirements are

met. If such prevailing wage and apprenticeship requirements are not met, the maximum deduction available is $1.00 per square foot. A qualified building means any building located in the United States that was originally placed in service not less than 5 years before the establishment of the qualified retrofit plan with respect to such building. The tax deduction is available for new commercial buildings or for retrofitting an existing commercial building with energy efficient systems, equipment, and components, such as interior lighting systems, heating, cooling, ventilation, and hot water systems, or the building envelope (i.e., the physical barrier between the exterior and interior environments enclosing the building), and is installed as part of a plan designed to reduce the total annual energy and power costs of the building by 25 percent or more. This tax deduction is available for taxable years beginning after December 31, 2022.

ENERGY EFFICIENCY MATERIALS PILOT PROGRAM The Energy Efficiency Materials Pilot Program set aside $50 million for nonprofit 501(c)(3) organizations that own (not rent) and operate their own buildings to purchase energy efficiency materials including (1) a roof or lighting system or component of the system; (2) a window; (3) a door, including a security door; and (4) a heating, ventilation, or air conditioning system or component of the system (including insulation and wiring and plumbing improvements needed to serve a more efficient system). At this time, the U.S. Department of Energy estimates that the application to apply for these grants will open during the second quarter of 2023.

For tax-exempt entities, the tax deduction is passed on to the design professional (licensed within the state where the building is located), with the intent that the designer will use energy efficient systems, equipment, and components in the project’s construction and pass savings on to the tax-exempt entity. As such, we recommend that taxexempt entities ensure that their contracts with design professionals and contractors include terms that provide for the passing along of this savings to the nonprofit organization. We also recommend that tax-exempt entities confirm that the contracts include any applicable prevailing wage and apprenticeship requirements.

• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

November 2022

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. Hiring a Design Professional Under California law, a “design professional” can mean a licensed architect, licensed landscape architect, registered professional engineer, or a licensed land surveyor. Design professionals, especially architects, help to take a school’s overall concept, goals, and ideas for a construction project and reduce them to an executable plan. With regard to hiring an architect, we recommend the following: 1. Consider obtaining referrals for architects from other private schools or colleges, and from professional architect associations; 2. Consider sending out a request for qualifications to several architects to ascertain the architect’s demonstrated competence, professional qualifications, and experience designing and constructing the type of building or project the school is renovating or constructing; 3. Consider proposals from several architects; 4. Consider interviewing several architects, and prepare questions for those interviews in advance; 5. Consider whether the architect shares the school’s vision for the project, including on matters like architectural style and energy efficiency, environmental, and sustainability goals; 6. Check the architect’s references; 7. Confirm the architect and any design professionals hired by the architect are properly licensed. Architects must be licensed with the California Architects Board, and cities and counties will only issue pre-construction permits if the architect who prepared the plans and specifications signs a statement that he or she is properly licensed. Licenses for design professionals can be verified with the Department of Consumer Affairs (https://search.dca. ca.gov/); 8. Select an architect based on the architect’s competence, qualifications, experience, and references, the school’s project and budget needs, and whether the architect shares the school’s vision for the project; and 9. Execute a contract with the architect that has been prepared or reviewed by the school’s legal counsel. Stay tuned for a future Construction Corner article on Contracting with Design Professionals. • www.lcwlegal.com •

lcw best timeline NOVEMBER THROUGH JANUARY Issue Performance Evaluations • We recommend that performance evaluations be conducted on at least an annual basis, and that they be completed before the decision to continue employment for the following school year is made. Schools that do not conduct regular performance reviews have difficulty and often incur legal liability terminating problem employees - especially when there is a lack of notice regarding problems. • Consider using Performance Improvement Plans but remember it is important to do the necessary follow up and follow through on any support the School has agreed to provide in the Performance Improvement Plan. Compensation Committee Review of Compensation before issuing employee contracts • The Board is obligated to ensure fair and reasonable compensation of the Head of School and others. The Board should appoint a compensation committee that will be tasked with providing for independent review and approval of compensation. The committee must be composed of individuals without a conflict of interest. Review employee health and other benefit packages, and determine whether any changes in benefit plans are needed. If lease ends at the end of the school year, review lease terms in order to negotiate new terms or have adequate time to locate new space for upcoming school year.

Review tuition rates and fees relative to economic and demographic data for the School’s target market to determine whether to change the rates. Review student financial aid policies. Review, revise, and update enrollment/tuition agreements based on changes to the law and best practice recommendations. File all tax forms in a timely manner: Forms 990, 990EZ •Form 990: Tax-exempt organizations must file a Form 990 if the annual gross receipts are more than $200,000, or the total assets are more than $500,000. •Form 990-EZ Tax-exempt organizations whose annual gross receipts are less than $200,000, and total assets are less than $500,000 can file either form 990 or 990-EZ. • A School below college level affiliated with a church or operated by a religious order is exempt from filing Form 990 series forms. (See IRS Regulations section 1.6033-2(g)(1)(vii)). • The 990 series forms are due every year by the 15th day of the 5th month after the close of your tax year. For example, if your tax year ended on December 31, the e-Postcard is due May 15 of the following year. If the due date falls on a Saturday, Sunday, or legal holiday, the due date is the next business day.

• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

November 2022

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. • The School should make its IRS form 990 available in the business office for inspection. Other required Tax Forms common to business who have employees include Forms 940, 941, 1099, W-2, 5500 Annual review of finances (if fiscal year ended January 1st) • The School’s financial results should be reviewed annually by person(s) independent of the School’s financial processes (including initiating and recording transactions and physical custody of School assets). For schools not required to have an audit, this can be accomplished by a trustee with the requisite financial skills to conduct such a review. • The School should have within its financial statements a letter from the School’s independent accountants outlining the audit work performed and a summary of results.

members of the staff, including the president or chief executive officer and the treasurer or chief financial officer. If the corporation has a finance committee, it must be separate from the audit committee. Members of the finance committee may serve on the audit committee; however, the chairperson of the audit committee may not be a member of the finance committee and members of the finance committee shall constitute less than one-half of the membership of the audit committee. It is recommended that these restrictions on makeup of the Audit Committee be expressly written into the Bylaws.

JANUARY/FEBRUARY Review and revise/update annual employment contracts. Conduct audits of current and vacant positions to determine whether positions are correctly designated as exempt/non-exempt under federal and state laws.

• Schools should consider following the California Nonprofit Integrity Act when conducting audits, which include formation of an audit committee: Although the Act expressly exempts educational institutions from the requirement of having an audit committee, inclusion of such a committee reflects a “best practice” that is consistent with the legal trend toward such compliance. The audit committee is responsible for recommending the retention and termination of an independent auditor and may negotiate the independent auditor’s compensation. If an organization chooses to utilize an audit committee, the committee, which must be appointed by the Board, should not include any • www.lcwlegal.com •

The 411 On Consortiums:

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

• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

November 2022

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: A school hosts an afterschool program, and wants to hire one of its high school students to run a part of the program. A school administrator asked LCW about protocols or other guidelines the school should consider when hiring high school students.

Answer: The LCW attorney advised that there are many factors the school should consider when hiring high school students. The school has a special relationship with its students that imposes a certain duty of care. Specifically, the School is responsible for its students’ safety and wellbeing while they are in the school’s care, and must take steps to ensure there is adequate supervision of them. The high school students would be acting as agents of the school and they need to have the sufficient knowledge and training on how to supervise the students in the afterschool program. The school could be negligent if the high school students deviate from this standard of care. The LCW attorney also advised that the high school students should be paired with an adult with adequate supervision or assigned appropriate duties that don’t involve minor supervision. Additionally, the LCW attorney advised that if the school hires high school students to work with other students, it is important to provide waiver for the students’ parents to sign. This waiver should explain that high school students will be supervisors working with their children, as well as other risks associated with the activity. The attorney advised that it is important to be very transparent with the parents so they can make informed decisions about whether to let their child participate in the afterschool program. • www.lcwlegal.com •

Liebert Cassidy Whitmore