California Public Agency Labor & Employment Blog

California Public Agency Labor & Employment Blog

Useful information for navigating legal challenges

Paid Time Off for Union Leaders: New Law Extends Requirements for Public Employers to Grant Leaves of Absence for Union Stewards and Officers

Posted in Labor Relations

This post was authored by Heather R. Coffman.

A concept known as “lost time” in some negotiated Memoranda of Understanding is now State law. Effective January 1, 2019, public employers may be required to grant paid leaves of absence to employees so they can serve in leadership positions in their unions, if requested by the exclusive representative.  The new law is codified as section 3558.8 of the California Government Code. As detailed below, the law requires unions to reimburse employers for the expenditures on behalf of the union employees on leave, but the parties must meet and confer to define the terms of the leaves and reimbursements.

What Does the Law Require?

Paid Leave of Absence for Union Leadership

Under the new law, an exclusive representative may request that the employer grant a leave of absence (with pay and without losing benefits) for an employee or employees, so that the employee(s) can serve as stewards or officers of the exclusive representative or its affiliated employee organization. The law requires the public employer to grant a “reasonable” leave of absence for the identified employee(s) – potentially on a full-time, part-time, periodic, or intermittent basis.  The term “reasonable” is not defined by this law.

Right to Reinstatement and No Loss of Rank, Seniority, or Benefits

Upon return from this leave of absence, employees have a right to reinstatement to the same position and work location, if feasible, or to a substantially similar position if reinstatement to the exact position and location is not feasible. The employees will not suffer any loss of rank, seniority, or classification, and the employees will continue to accrue credit toward retirement while serving on the leave of absence for the exclusive representative.  The employees must continue to pay their contributions if already required to do so under the current Memorandum of Understanding or other applicable rules.

Union Reimbursement for Employer’s Payments

In order to ensure the employees are compensated during the leave of absence, the employer is required to continue paying the employees’ salary, benefits, and any contributions to the employees’ retirement fund under the applicable labor agreement.  The union must then reimburse the employer within 30 days of receiving certification of these expenses.

How Does this Law Affect Our Public Agency?

This new legislation raises a host of questions and challenges for public employers. How will a public employer determine whether a particular requested leave of absence is a “reasonable” one that must be granted under the new law?  How can your agency’s departments plan to absorb the impact of these new leaves of absence? What procedures must the parties follow to process a request for a leave of absence under new Government Code section 3558.8?

We anticipate this will be a hot topic for the new season at the bargaining tables. The parties are required to negotiate the procedures for the exclusive representative to request the leave of absence, and the procedures for the employer to be reimbursed when the employer grants a leave of absence. Does the meet and confer fall under the same good faith obligation, and can it lead to impasse and factfinding if the parties cannot agree?  What, if any, unilateral imposition authority does a public agency have following these procedures?  If the parties’ negotiation fails and the impasse process does not produce an agreement, may the legislative body resolve the impasse by leaving everything status quo (meaning the employee stays on-the-job) instead of imposing its best offer for the union leave?

We hope your team will use this alert to develop an effective strategy to minimize the burden on public employers while honoring the unions’ and their members’ rights under this new law.   Please reach out to any of our labor relations experts here at LCW to assist in developing proposals to meet these requirements (and your agency’s best interests) under this new law

Governor Signs SB 1421 and AB 748, Dramatically Increasing Public Access to Peace Officer Personnel Records

Posted in Public Safety Issues

This post was authored by Paul D. Knothe.

On September 30, 2018, Governor Edmund G. Brown, Jr. signed two significant pieces of legislation, Senate Bill 1421 and Assembly Bill 748, that will require major changes in how law enforcement agencies respond to requests for peace officer personnel records. We described this legislation in detail in a previous Special Bulletin.

In short, these two statutes will allow members of the public to obtain certain peace officer personnel records that were previously available only through the Pitchess procedure by making a request under the California Public Records Act (“CPRA”) request.

Effective January 1, 2019, SB 1421 amends Government Code Section 832.7 to generally require disclosure of records and information relating to the following types of incidents in response to a request under the CPRA:

  • Records relating to the report, investigation, or findings of an incident involving the discharge of a firearm at a person by a peace officer or custodial officer.
  • Records relating to the report, investigation or findings of an incident in which the use of force by a peace officer or custodial officer against a person results in death or great bodily injury.
  • Records relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency that a peace officer or custodial officer engaged in sexual assault involving a member of the public. “Sexual assault” is defined for the purposes of section 832.7 as the commission or attempted initiation of a sexual act with a member of the public by means of force, threat, coercion, extortion, offer of leniency or any other official favor, or under the color of authority.   The propositioning for or commission of any sexual act while on duty is considered a sexual assault.
  • Records relating to an incident in which a sustained finding of dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation, or prosecution of a crime, or directly relating to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including but not limited to, any sustained finding of perjury, false statements, filing false reports, destruction of evidence or falsifying or concealing of evidence.

AB 748 requires agencies, effective July 1, 2019, to produce video and audio recordings of “critical incidents,” defined as an incident involving the discharge of a firearm at a person by a peace officer or custodial officer, or an incident in which the use of force by a peace officer or custodial officer against a person resulted in death or great bodily injury, in response to CPRA requests.

These statutes have different timelines for production of records, and different circumstances under which production of records can be delayed or records can be withheld. Further, agencies may wish to evaluate their document retention policies in light of these new disclosure requirements.  Agencies should work closely with trusted legal counsel to ensure compliance with both statutes.

Building on #MeToo Momentum, California Legislature Seeks to Expand FEHA

Posted in Discrimination

This post was authored by Erin Kunze.

Earlier this year, members of the State Senate and Assembly introduced bills that would expand protections provided by the Fair Employment and Housing Act (“FEHA”). In its current iteration, proposed Senate Bill 1300 would alter the standard of review for harassment claims, limit the ability to summarily dismiss harassment claims, encourage “bystander” intervention training, and prohibit settlement agreements that require employees to sign “nondisparagement” clauses or (except in limited cases) release their right to pursue FEHA actions against their employers. In its current iteration, Assembly Bill 1870 would extend the statute of limitations for employees to file employment discrimination claims. Though neither of these bills has yet been signed by the Governor, and thus neither is current law, they demonstrate a growing trend to protect employees from harassment, to provide victims of harassment with time to address their claims, and to ensure that they have the opportunity to disclose information about unlawful acts.

I. Pending Senate Bill 1300

Senate Bill 1300 in an initial section describes the Legislature’s intent regarding the application of FEHA to harassment claims. In so doing, it sets forth new standards for judicial review. For example, the Legislature asserts its approval of the standard set forth by Supreme Court Justice Ruth Bader Ginsburg, that in workplace harassment suits a plaintiff “need not prove that his or her tangible productivity has declined as a result of the harassment. It suffices to prove that a reasonable person subjected to the discriminatory conduct would find… that the harassment so altered working conditions as to make it more difficult to do the job.” In addition, the Legislature seeks to eliminate the “severe or pervasive” standard for litigating sexual harassment claims. Instead, a “single incident of harassing conduct” would be sufficient to create a triable issue regarding the existence of a hostile work environment. The existence of a hostile work environment would depend on the “totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination.” The Legislature also asserts its intent that the legal standard for sexual harassment does not vary by type of workplace. Finally, it opines that harassment cases are “rarely appropriate for disposition on summary judgment.” If passed, this means that harassment claims should proceed to trial for fact-finding more often than not.

In addition to its assertions of legislative intent, Senate Bill 1300 empowers an employer to provide “bystander intervention training.” Such training would provide employees with information and guidance on how bystanders can recognize potentially problematic behaviors, and motivate them to take action when such behaviors are observed.

The Bill would also make it unlawful for an employer, in consideration for a raise or bonus, “or as a condition of employment or continued employment,” to require an employee to sign a release of a claim or right under FEHA, or to sign a nondisparagement agreement that denies the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment. Notably, however, it would not be unlawful for an employer to enter into a “negotiated settlement agreement” with an employee to resolve a FEHA claim that the employee either filed in court, before an administrative agency, in an alternative dispute resolution forum, or through the employer’s internal complaint process. To demonstrate that such agreement is sufficiently “negotiated,” it would have to be voluntary, deliberate, and informed, provide consideration of value (e.g. money) to the employee, and give the employee notice and an opportunity to retain an attorney unless he or she is already represented.

Senate Bill 1300 would additionally limit a prevailing defendant’s (usually an employer’s) ability to be awarded fees and costs in relation to FEHA cases. Fees and costs would only be available if a court finds that the plaintiff’s action was “frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.”

Finally, Senate Bill 1300, and its companion bill, Senate Bill 1038, create personal liability for employees who retaliate against others in connection with harassment perpetrated by the same employee.

II. Pending Assembly Bill 1870

In a further effort to expand access to FEHA, Assembly Bill 1870 seeks to extend the period (or “statute of limitations”) during which an individual can file a complaint alleging employment discrimination. Currently, under California’s Civil Code, if an individual does not file such claim within one year from the date the alleged unlawful practice occurred, the individual has no right to bring the complaint forward. If passed, Assembly Bill 1870 would extend the period to file a complaint from one to three years from the date upon which the unlawful practice allegedly occurred. This is consistent with federal laws applicable to harassment and discrimination complaints.

Notably, Senate Bill 1300 and Assembly Bill 1870 were presented to the Governor for signature earlier this month. However, he has until September 30th to sign or veto the bills. Even if the pending bills do not move forward, they certainly indicate the Legislature’s willingness to further protect workers from harassment, including broadening employees’ access to the legal system designed to prohibit such conduct.

Stay tuned for further updates on this legislation!

It’s a New Fiscal Year – Time to Reset Your CalPERS Stopwatch

Posted in Pension, Retirement

This post was authored by Matthew Nakano.

As public agencies near the end of the first quarter of the new fiscal year, now is the ideal time for California Public Employees’ Retirement System (CalPERS) agencies to verify that hours worked are being tracked for certain types of employees. The consequences for failing to accurately monitor hours worked can be significant if these employees work beyond certain limits during a fiscal year.  Since agencies are still in the first quarter of the fiscal year, it’s not too late to catch potential tracking issues before it results in costly consequences due to an inadvertent oversight in this area.

The following are three common employment situations that require careful tracking of hours for CalPERS purposes and an explanation of the consequences for working beyond established thresholds:

Out-of-Class Appointments

As discussed in our earlier blog post, AB 1487 enacted Government Code section 20480, which went into effect on January 1, 2018. AB 1487 limits the amount of time an employee can work in an “out-of-class appointment” to 980 hours per fiscal year.  An “out-of-class appointment” is defined as “an appointment of an employee to an upgraded position or higher classification by the employer or governing board or body in a vacant position for a limited duration.”  A “vacant position” is defined as “a position that is vacant during recruitment for a permanent appointment.”  A “vacant position” does not include a position that is temporarily vacant due to another employee’s leave of absence.  CalPERS requires agencies to report all out-of-class appointments, as well as the number of hours worked in the out-of-class appointment, regardless of whether the total amount of hours exceeds 980 in a fiscal year.

If an employee works more than 980 hours in an out-of-class appointment, the employer will be required to pay CalPERS an amount equal to three times the employee and employer contributions that would otherwise be paid to CalPERS for the difference between the compensation paid for the appointment and the compensation paid and reported to CalPERS for the member’s permanent position for the entire period the member serves in the out-of-class appointment as well as a $200 administrative fee.

Retired Annuitants

Under certain circumstances, and in compliance with Government Code section 21221(h), a CalPERS retired annuitant may be appointed on an interim basis to a vacant position during the recruitment for a permanent appointment if the governing body deems the position to require “specialized skills” or during an emergency to prevent stoppage of public business. Such an appointment does not require reinstatement from retirement.  A retiree may only be appointed once to this vacant position.

Additionally, under Government Code section 21224, a CalPERS retired annuitant may serve without reinstatement from retirement if appointed either during an emergency to prevent stoppage of public business or because the retired person has “specialized skills” needed in performing work of a limited duration.

Under both Government Code sections 21221(h) and 21224, a retired annuitant is limited to working 960 hours for all employers each fiscal year. Thus, if a retired annuitant also works for another CalPERS employer during the same fiscal year, those hours will also count towards the 960-hour limit.  Also, all hours worked by a retired annuitant must be reported to CalPERS with each payroll cycle.  If a retired annuitant exceeds the 960-hour limit: (1) he or she will be reinstated from retirement retroactive to the first day of employment in the position; (2) both the employer and employee will have to pay retroactive contributions plus interest to CalPERS as well as administrative fees; and (3) the employee will have to reimburse CalPERS for any retirement allowance received since the date of employment in the position.

Less Than Full-Time or Part-Time/Temporary Employees

Many agencies have less than full-time or part-time/temporary employees who work on a seasonal, intermittent, on-call, limited-term, or irregular basis (e.g., lifeguards, community center instructors, etc.), and are not normally enrolled in CalPERS unless the employee was already a CalPERS member when he/she was first hired by your agency. These employees will be eligible for membership after 1,000 hours of paid service or 125 days (if paid on a daily or per diem basis) in a fiscal year.  Overtime hours as well as paid sick leave or vacation time is included in calculating the 1,000 hours.  If an employee works more than 1,000 hours or 125 days, the employer will be required to enroll the employee in CalPERS.  Failure to enroll an employee into membership within 90 days of becoming eligible for membership may result the employer being required to pay all arrears costs for member contributions and a $500 administrative fee.

CalPERS agencies should consult with legal counsel if they are unsure of whether they need to track hours for a particular position, or require assistance in developing strategies to ensure hours worked do not exceed the statutory limits.

Tattoos. Piercings. The Workplace. Like it or Not, the Millennials are the Future Workforce.

Posted in Employment, Workplace Policies

This post was authored by Stefanie K. Vaudreuil.

Keeping track of monikers for the generations since World War II can be puzzling.  You have Baby Boomers, Generation X, and Millennials, but the Millennials are also known as Generation Y.  Just who are these Millennials?  They were born in the 80s—enough said.  The Millennials have been creating some interesting challenges for the Baby Boomers and Gen Xers in the workplace, namely due to the Millennials’ penchant for tattoos and piercings.  According to the Pew Research Center, forty percent of Millennials have at least one tattoo and usually more than one.  Tattoos are no longer taboo.  In fact, the number of tattoo artists increased in the United States from 500 in 1960 to more than 10,000 in 1995.

With forty percent of the current and upcoming workforce having one or more tattoos, it is becoming increasingly difficult for employers to take a wholesale anti-tattoo position.  Since the Baby Boomers and Gen Xers are still greatly responsible for hiring and promoting employees, they have no choice but to adapt and change their perceptions of tattoos in the workplace.  In a Careerbuilder.com survey, thirty-one percent of the employers responded that they would be less likely to promote an employee with a visible tattoo and thirty-seven percent said they were less likely to promote an employee with piercings.  In that particular study, these two categories represent the highest percentage reasons not to promote an employee.  How long, though, can these attitudes persist when the workforce is increasingly filled with Millennials?  (And as the cases discussed below indicate, the issue is important for Human Resources because in many circumstances, treating employees differently because of their tattoos can be illegal.)

Some, but not all, employers have tattoo policies, which usually do not completely forbid tattoos but require that visible tattoos are covered at work.  Is this a practical approach for Millennial employees?  Probably not.  Millennials are far more likely not only to have visible tattoos but also a greater number of tattoos than previous generations.  Unfortunately for the Millennials, the legal and practical realities have not yet met to form a solid agreement.  Legally, in California tattoos are generally considered protected speech subject to the First Amendment; yet, it is still for the most part lawful for employers, including public employers, to have reasonable policies regulating tattoos in the workplace.  What those policies look like and whether they are Millennial-friendly is an unpredictable variable.

Some employers attempt to create a balance between allowing visible tattoos while also restricting them.  Whether this is a reasonable solution remains to be seen.  In 2012, a candidate for Liquor Enforcement Officer with the Pennsylvania State Police (PSP) was rejected for the position due to a visible tattoo.  The PSP’s policy was that visible tattoos were reviewed by a committee, which determined whether a candidate’s tattoo had to be removed or covered.  In this case, Scavone v. Pennsylvania State Police, the PSP informed the candidate one of his tattoos had to be removed to qualify for the position.  The candidate refused and was not hired.  He then filed a lawsuit in federal court, alleging claims for violation of due process and equal protection.  The Third Circuit Court of Appeals, in an unpublished decision, rejected his claims, noting that it is not a fundamental constitutional right to have a tattoo.  The Court further held that his “class of one” theory (he was treated differently than other similarly situated individuals without a rational basis) failed because it is not applicable in the public employment context.

What about the employee who asserts his tattoos are associated with his religion?  “Don’t tread on me” says the employee who displays visible tattoos depicting readily identifiable Ku Klux Klan symbols.  The court in Swartzentruber v. Gunite Corp.  dealt with this very issue.  When Swartzentruber’s co-workers complained about his tattoo of a hooded figure standing in front of a burning cross, his employer required him to cover it but he neglected to follow those instructions, which led to further complaints.  Eventually, he was monitored by supervisors to keep the tattoo covered at work, and this conduct by his employer led him to file a religious discrimination lawsuit.

Without making a specific finding the tattoo was an actual religious symbol entitled to protection, the court determined “Gunite accommodated his tattoo depiction of his religious belief that many would view as a racist and violent symbol by allowing him to work with the tattoo covered” and the law requires nothing more.

Regulating tattoos is now and will continue to be a particular challenge for employers.  Some things to keep in mind when creating and enforcing policies are that employers still have a right to generally regulate employee appearance at work and make employment decisions based upon certain aspects of appearance.  For example, in Riggs v. City of Fort Worth, the court agreed with the police chief’s decision that an officer’s tattoos created an unprofessional appearance and that this adequately supported his being removed from a bike patrol assignment.

As always, common sense should prevail when making decisions about employment policies and actions concerning tattoos and piercings.  Millennials and their tattoos are here to stay—at least until the next generation takes over.

Challenges Involved in Paying Non-Exempt Employees for Training and Travel Time: An Example

Posted in FLSA, Wage and Hour

This post was authored by Lisa S. Charbonneau.

Many employers struggle with properly paying non-exempt employees who attend courses, conferences, seminars, meetings, and other trainings. In the absence of labor agreement provisions or other agency rules or policies governing this issue, public agency employers must follow the rules of the Fair Labor Standards Act (FLSA) when evaluating whether an employee is entitled to compensation for training time.

Under the FLSA, training time is not compensable work time if: (1) the training takes place outside of the employee’s regular working hours, (2) attendance is voluntary, (3) the training program is not directly related to the employee’s job, and (4) the employee performs no productive work during the training.  Click here to view the Department of Labor (DOL) regulation setting forth these rules.

What does this look like in real life? Let’s say a Detective who works Monday through Friday, 9 am – 5 pm, was permitted to attend a weekend intensive seminar on investigation skills.  She performed no productive work for her Department at the training.  Is she entitled to compensation for the time she spent in the training intensive?  Probably yes.  Even though the training was outside her regular work hours, she performed no productive work, and her attendance was voluntary, the training program was directly related to the Detective’s job and is therefore compensable hours worked.

In a change of facts, what if the detective’s Department did not approve her attendance at the training due to budget concerns and the Detective decided to attend the training on her own initiative. Would she still be entitled to compensation for the time she spent in the training? Probably not.  Where an employee attends an outside training while off duty on his or her own initiative, the time is not considered compensable hours worked – even if the training is related to his or her job.

Practice Tip: Be wary of approving attendance at trainings that occur outside of an employee’s regular work hours.

What about the time the Detective spent travelling to the training? Assuming the training time was compensable, was her travel time compensable? It depends – on a number of factors.  Importantly, the law governing this issue differs as between charter cities and counties on the one hand (which only need to follow the FLSA) and other public agency employers (which must also follow State law).  If the Detective works for a charter city, the FLSA applies and generally speaking she would be entitled to compensation for travel time that occurred during her regular work hours only. That means the time she spent driving herself to the training between 9:00 am and 5:00 pm – even though it is her day off – will be compensable hours worked.  (There are certain exceptions to this general rule, such as when an employee is a passenger and/or public transportation has been offered.  Click here to view the DOL regulations setting for these rules.)  If the Detective works for a general law city, however, California State law applies and she will likely be entitled to compensation for all time spent travelling.

The rules and legal tests governing the compensability of training time and travel time are complex and applying them to real life scenarios requires fact-specific analysis. Public agencies are well advised to consult legal counsel in making such determinations.

California Strengthens Breastfeeding Protections in the Workplace

Posted in Workplace Policies

This post was authored by Megan Lewis.

California law has long-surpassed federal law in the area of lactation accommodation in the workplace. Senate Bill 937 (“SB 937”), if it is approved by Governor Brown, would go even further to protect the rights of employees who need to express breastmilk at work.  This new legislation would also create new obligations for California employers, including a requirement that employers implement a lactation accommodation policy that meets certain specified criteria.  (San Francisco enacted an ordinance with similar provisions in June 2017, which became effective on January 1, 2018.)

SB 937 has been working its way through the California Legislature since January and passed both houses as of August 29, 2018. (Note that a similar, but less far-reaching bill – Assembly Bill 1976 – has also passed in the Legislature and is awaiting a decision from Governor Brown.)  SB 937 would amend three sections of the California Labor Code that address lactation accommodation (sections 1030, 1031, and 1033), and also add two new sections (sections 1034 and 1035).  The new requirements, which are summarized below, would apply to all California employers, including the state and any political subdivisions.

Amended Labor Code section 1031 would require employers to provide employees who need to express milk with a space in close proximity to the employee’s work area that is shielded from view and free from intrusion while the employee is lactating. The lactation space “shall not be a bathroom” and must:

  • Be safe, clean, and free of toxic and hazardous materials;
  • Contain a surface where the employee can place a breast pump and personal items;
  • Contain a place to sit; and
  • Provide access to electricity or alternative devices needed to operate an electric or battery-powered breast pump.

The employer must also provide access to a sink with running water and a refrigerator (or other cooling device) suitable for storing milk in close proximity to the employee’s workspace.

Employers with fewer than 50 employees would be able obtain an exemption from any requirement of Section 1031 if the employer was able to demonstrate that the requirement would impose an undue hardship when considered in relation to the size, nature, or structure of the employer’s business.

In addition to providing enhanced rights for employees, the new legislation would also create heightened accountability for employers. Amended Labor Code section 1033 would mandate that a denial of reasonable break time or adequate space to express milk will now be treated as a failure to provide a rest period pursuant to Labor Code section 226.7.  Employers would also be explicitly prohibited from discriminating or retaliating against an employee for exercising or attempting to exercise her rights under these provisions.

New Labor Code section 1034 would require employers to develop and implement a policy describing an employee’s right to a lactation accommodation, how to request an accommodation, the employer’s obligation to respond to a request for an accommodation, and the employee’s right to file a complaint with the Labor Commissioner. Employers would also be required to maintain records of requests for lactation accommodation for three years.

Finally, new Labor Code section 1035 would require the Division of Labor Standards Enforcement to create a model lactation accommodation request form and to make it available for download from its website.

This legislation would create new rights for employees and corresponding responsibilities and obligations for employers. If the Governor signs the bill into law, employers are encouraged to consult with legal counsel to determine whether they need to take any steps to ensure compliance.  LCW will continue tracking this bill and, if it is signed by Governor Brown, we will include it in our annual Legislative Roundup of new bills signed into law, which will be available later this Fall.

**Blog updated 9/5/2018 at 4:00 p.m. PST**

Allegations of Sexual Misconduct, Student Discipline on Campus, and Due Process: Keeping Up with Rapidly Evolving Interpretations of State and Federal Laws

Posted in Education

This blog was authored by Alysha Stein-Manes.

The manner in which institutions of higher education must address sexual assault in the educational context continues to evolve as both the federal government and courts weigh in on what procedures public and private colleges and universities must follow in order to comply with both Title IX of the Educational Amendments of 1972 and due process requirements under state and federal laws. Title IX of the Education Amendments Act of 1972 is a federal civil rights law that requires educational institutions to maintain policies, practices, and programs that do not discriminate against anyone “on the basis of sex.”  Title IX applies to all educational institutions, both public and private, that receive federal funds. Title IX and its implementing regulations set out certain requirements regarding investigations and hearing procedures. State laws governing the due process rights of individuals are likewise applicable to discipline in the public educational context.

Last year, we reported that the Office for Civil Rights (OCR) at the United States Department of Education (DOE), which is charged with the responsibility to enforce Title IX and its implementing regulations, rolled back a series of Title IX enforcement guidelines issued by the Obama Administration. In rescinding prior guidance, OCR, under current Education Secretary Betsy DeVos, criticized prior guidance and also many institutions’ definitions of assault and harassment, and noted that certain policies may also infringe on the individuals’ free speech and due process rights.

Secretary DeVos announced that the DOE would launch a public comment period to inform the development of new federal regulations pertaining to campus sexual assault policies. While we had previously expected the DOE to release its proposed regulations for notice and comment in April 2018, it has yet to do so.

As institutions of higher education wait for additional guidance from the DOE, courts continue to weigh in on obligations conferred on public and private educational institutions in regard to the rights of both the complainant and accused.

This month, a California Court of Appeal published a significant decision, John Doe v. Claremont McKenna College, addressing student discipline arising from an allegation of sexual assault.

John Doe v. Claremont McKenna College

While a freshman at Claremont McKenna College, John Doe met Jane Roe, a freshman at a neighboring school. On the night of a party, John and Jane engaged in sexual activity that Jane later alleged was a sexual assault in violation of the College’s sexual misconduct policy.

Claremont McKenna College (the “College”) initiated an investigation and hired a third-party investigator. The investigator interviewed Jane, John, and multiple other witnesses and reviewed other evidence. In accordance with the College’s policies, the investigator provided the complainant and accused with a preliminary investigative report before finalizing the report.  In response, John submitted a “Written Request for Additional Investigation Steps.” Specifically, he requested the investigator ask additional questions to witnesses already interviewed, including him and Jane, and interview new witnesses, explaining why each new witness was relevant to the investigation. John also sought additional documentary evidence, including relevant medical reports. While Jane submitted a response to the preliminary report, she did not request further investigation steps. The investigator interviewed one new witness and clarified a point raised by one of the original witnesses, but did not grant any of John’s other requests. Importantly, the investigator did not ask Jane any of the questions John submitted to the investigator. The investigator provided the parties with a final investigative report, and the College closed the investigation.

Pursuant to the College’s policies, the College then convened an “Investigations Findings and Review” Committee meeting. The Committee was comprised of the investigator and two members of the College’s faculty and staff. The Committee’s task was to evaluate the evidence and decide by majority vote, using the “preponderance-of-evidence” standard, whether John had violated the College’s sexual misconduct policy.

College policy allowed, but did not require, the parties to appear at the Committee meeting and make an oral statement to the Committee. Prior to the Committee meeting, both John and Jane submitted written statements. The procedures did not provide for any questioning of witnesses by the Committee or the parties. Jane did not appear at the meeting. Following the meeting, the Committee issued a written decision finding that John violated the College’s sexual misconduct policy.

John appealed the decision under the College’s procedures, but the College denied his appeal. The College suspended John for one year and implemented additional sanctions against him. Following the College’s denial of John’s appeal, John filed a petition for writ of administrative mandate (“writ”) asking a trial court to set aside the College’s sanctions against him. John filed his writ petition under California Code of Civil Procedure Section 1094.5(b), arguing that the trial court should set aside the sanctions because it did not provide him with a “fair trial.” The trial court denied his request, finding that John received a fair hearing. Additionally, the trial court held that John had no right to cross-examine Jane, he had an opportunity to review and respond to the evidence the Committee considered, and he failed to show prejudice from the investigator’s decision not to grant his requests for additional investigative steps. John appealed to a California Court of Appeal.

On appeal, John argued, among other things, he was denied a fair hearing because neither he nor the Committee was able to ask any questions of Jane who did not appear at the Committee meeting, and therefore, the Committee had no basis for evaluating her credibility.

The Court of Appeal agreed that Jane’s failure to appear at the hearing, either in person or via videoconference or other means, deprived John of a fair hearing where John faced potentially serious consequences and the case against him turned on the Committee finding Jane credible.

In its analysis, the Court examined recent court decisions addressing an educational institution’s obligations to provide students due process in disciplinary matters, including two California Cases, Doe v. Regents of University of California and Doe v. University of Southern California. These two cases also addressed fair hearings under Section 1094.5. The Court also analyzed a recent decision by the Sixth Circuit Court of Appeal analyzing whether an accused’s due process rights were violated in a sexual misconduct case. In that case, the Sixth Circuit found that under due process principles, accused students must have the right to cross-examine adverse witnesses in the most serious of cases.

After analyzing these cases, the Court synthesized a “set of core principles” applicable to cases in which the accused student faces a “severe penalty” and the school’s determination turns on the complaining witness’s credibility. First, the accused student is entitled to “a process by which the respondent may question, if even indirectly, the complainant.” Second, the complaining witness must be before the finder of fact either physically or through videoconference or similar technology so the finder of fact can assess the complaining witness’s credibility in responding to its own questions or those proposed by the accused student.

Applying these principles to the facts of the present case, the Court found that Jane’s allegations against John were still crucial to the Committee’s determination of misconduct even if the Committee relied on other evidence to “corroborate” those allegations. Although the investigator, who was on the Committee, had the opportunity to evaluate the credibility of both parties, the other Committee members did not. The Court noted that it was important for each member of the committee to assess Jane’s demeanor in responding to questions generated by the Committee or, indirectly, by John.

Ultimately, the Court held that a school’s obligation in a case turning on the complaining witness’s credibility is to “provide a means for the [fact finder] to evaluate an alleged victim’s credibility, not for the accused to physically confront his accuser.” The Court noted that schools can use many methods to meet this obligation, including granting the fact finder discretion to exclude or rephrase questions from the responding witness as appropriate, asking its own questions, physically separating the witnesses, or having a witness appear remotely via appropriate technology. The Court of Appeal reversed the trial court’s decision and instructed the trial court to review John’s request to review the College’s decision.

Schools’ Obligations after Doe v. Claremont McKenna

Currently, many California colleges and universities use an “investigator model” for disciplinary proceedings, in which there is no formal hearing prior to imposition of discipline. The Court of Appeal’s decision in Doe v. Claremont McKenna may therefore require some revisions to school conduct policies that use the investigator model for hearings but do not generally allow for cross-examination of the complainant.

Schools should work with legal counsel to review and potentially update their policies and procedures in accordance with this new decision. In doing so, schools may want to consider not only updating their policies and procedures to include a “hearing” component, but also seeking to define what constitutes a “severe penalty” and provide guidance to fact finders for assessing the credibility of witnesses. When updating such policies and procedures, schools must consider their obligations under Title IX, as well as other federal and state laws governing fair hearings.

California Legislature Aims to Clarify Salary History and Equal Pay Statutes

Posted in Wage and Hour

This post was authored by Paul Knothe.

Assembly Bill 2282, signed into law by Governor Brown on July 18, 2018, attempts to clarify elements of California’s salary history and equal pay statutes, Labor Code sections 432.3 and 1197.5.  This legislation, which appears to help answer several common questions about these statutes, takes effect January 1, 2019.

Update to Salary History Statute

The salary history statute, Labor Code section 432.3, went into effect January 1, 2018.  In short, Labor Code section 432.3 prohibits employers from seeking an applicant’s salary history in previous private sector employment, requires an employer to provide an applicant with the pay scale for the position upon reasonable request, and restricts how employers can use properly obtained salary history information. For more detail, please refer to our previous blog post here.

AB 2822 answers four questions employers had about section 432.3:

  1. Does asking about an applicant’s salary expectations constitute “seeking” his or her salary history?

No. This was a commonly asked question by employers, concerned that asking an applicant for his or her salary expectations would be seen as a back-door way of “seeking” salary history.  The amended section 432.3, at subdivision (i), now reads “Nothing in this section shall prohibit an employer from asking an applicant about his or her salary expectation for the position being applied for.”

2. Is a current employee who applies for a different position with the employer an “applicant”?

No. New subdivision (k) defines “applicant” as an “individual who is seeking employment with the employer and is not currently employed with that employer in any capacity or position.”  This language avoids placing the employer in the untenable position of being required to avoid consideration of salary history information that is already in their possession.

3. What is a “pay scale”?

For purposes of the requirement that an applicant be provided with the pay scale for a position upon reasonable request, a revision to subdivision (c) defines “pay scale” as “a salary or hourly wage range.” Other pay, such as bonus pay, need not be included in the pay scale provided to an applicant.

4. What constitutes a “reasonable request” for a pay scale?

AB 2282 further revises subdivision (c) of Labor Code 432.3 to define a “reasonable request” for a pay scale as “a request made after an applicant has completed an initial interview with the employer.” Therefore, an employer is not required to comply with a request for a pay scale from an applicant who has not completed an interview.

Update to California Equal Pay Act

California’s Equal Pay Act, originally enacted in 1949, has been subject to several recent revisions. First, it was amended effective January 1, 2017, to prohibit employers from relying solely on an applicant’s previous salary in making pay determinations. It was amended again effective January 1, 2018, to specify that public sector employers are subject to the equal pay laws, with the exception of the Section 1199.5, which makes it a misdemeanor to fail to provide equal pay to employees of differing sexes, races, or ethnicities.

AB 2282 revises Section 1197.5 to further restrict consideration of an employee’s prior salary in making a pay determination. The statute currently provides that  “Prior salary shall not, by itself, justify any disparity in compensation”; when the revision goes into effect on January 1, 2019, the phrase “by itself” will be deleted.

However, AB 2822 also specifically permits an employer to make a compensation decision for one of its current employees based on that current employee’s existing salary, so long as any wage differential resulting from that compensation is justified by a seniority system, a merit system, a system that measures earning by quantitate or quality of production, or a bona fide factor other than race or ethnicity, such as education, training, or experience.

Employers who have questions about the effects of AB 2282 should seek advice from trusted employment counsel.

Free Speech Rights at Private Colleges and Universities

Posted in First Amendment

The post was authored by David Urban.

Controversies over free speech, disruptive protests, sharp debates among faculty, withdrawal of invitations to controversial speakers, and interference with rights of expression happen just as much at private as at public colleges and universities. The difference, however, is that the First Amendment to the U.S. Constitution binds only public actors.  At a public college or university, students and employees can assert First Amendment claims against the institution if it tries to discipline or censor them for speech activities.  Students and employees at a private institution, however, do not have that option, because the institution is not bound by the First Amendment.

This post addresses three ways in which, even without any First Amendment protections, those at private colleges and universities do have expression rights that are safeguarded by law. Private educators have to take these rights into consideration when making personnel, disciplinary, and other decisions that involve student and employee expression.

Faculty Academic Freedom Policies

First, faculty members often have academic freedom rights and other speech rights they can enforce against their employer as a matter of contract law. Many private colleges and universities have academic freedom policies that state in broad terms that members of the faculty have the right to engage in scholarship, teaching, and expression that can clash with the views of the institution.  If the institution disciplines a faculty member for such activities, the faculty member can bring a claim for breach of agreement if the policy is found to be contractual in nature and the discipline allegedly violates the policy provision.

The case McAdams v. Marquette University, decided last month by the Wisconsin Supreme Court, involves this type of contractual claim of academic freedom rights.  Professor McAdams, a tenured professor of philosophy, wrote on his personal blog criticizing a philosophy instructor at the university because she had not permitted a discussion in her classroom questioning gay rights.  McAdams’s post described that the instructor had written on the board among other issues “gay rights” and said “everybody agrees on this, and there is no need to discuss it.”  A student approached the instructor after class and said gay rights should be open to discussion.  The post described that the instructor responded, “you don’t have a right in this class to make homophobic comments,” and then invited the student to drop the class.  McAdams contended this was a stifling of free expression, and posted links to the instructor’s personal webpage, leading to harsh emails to the instructor from third parties.

The university placed McAdams on leave and then suspended him. McAdams asserted a breach of contract claim against the university, arguing that it had violated its own academic freedom policies.  The Wisconsin Supreme Court held that Professor McAdams should prevail on his claim and required that he be reinstated with back pay.

Student Statutory Speech Rights

In California, a 1992 statute known as the Leonard Law gives students at private colleges and universities free speech rights they can assert against their own institution. The statute was intended to transplant constitutional free speech rights students have off campus so that they apply in some way on campus.  It provides:

No private postsecondary educational institution shall make or enforce a rule subjecting a student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside the campus or facility of a private postsecondary institution, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution. (Cal. Educ. Code § 94367(a).)

There is some uncertainty how exactly the statute operates. The consensus is that students obtain some speech rights at a private college and university akin to those that students have at public colleges and universities, although by its terms, the Leonard Law protections are weaker than those provided by the First Amendment. For example, students cannot obtain damages for an institution’s violation of the Leonard Law.  Instead, declaratory and injunctive relief and attorney’s fees are available.  Also, to violate the law, an institution must “make or enforce a rule subjecting a student to disciplinary sanctions” and the rule must apply “solely” on the basis of protected expression.  (Cal. Educ. Code, § 94367(a).)

There is scant authority interpreting how the Leonard Law should work to confer student speech rights. In one case, Crosby v. South Orange County Community College District, the California Court of Appeal held that the statute (in particular, the component that applies to community colleges) did not turn the campus library into a public forum, and determined that the statute did not transplant every speech right a student might have outside campus in any context, for example in the home, onto the college campus.

Also, the courts have not determined whether the Leonard Law requires private institutions to open up speech areas on campus the same way public colleges and universities are expected to open up areas, although many private colleges and universities have reserved areas for free expression of students. (Also as a matter of contract law, policies at private institutions often confer speech rights on students that they can enforce under contract principles.)

Federal Protection for Employee Concerted Activity

Finally, employees of private institutions have substantial rights under labor relations laws, even if those employees have no union representing them. The federal National Labor Relations Act (“NLRA”) affords employees the right to engage in concerted activity for their mutual aid or protection, and this can include rights to picket and protest regarding wages, hours, and working conditions, rights to post about these matters on social media, and the right to criticize the institution and management.  The National Labor Relations Board, the federal agency responsible for enforcing the NLRA, has recently determined that graduate student assistants qualify as employees for protection under the act.  (The case is being reviewed by the federal courts and a decision will likely issue in the coming year.)

No doubt, vigorous protest and debate will continue in higher education in 2018 and 2019, and likely result in further developments in this area. We will report on important developments as they occur.