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September 2015
TABLE OF CONTENTS
Mandated Reporters . . . . . . . . 1
Schools. . . . . . . . . . . . . . . . . . . . . 2
Title IX. . . . . . . . . . . . . . . . . . . . . 4
Records. . . . . . . . . . . . . . . . . . . . 6
Labor Relations. . . . . . . . . . . . . 6
Retirement . . . . . . . . . . . . . . . . . 9
Business & Facilities. . . . . . . . 10
MANDATED REPORTERS
Reminder: AB 1432 Requires Annual Mandated Reporting Training.
Assembly Bill (AB) 1432, codified as Education Code section 44691, requires the
California Department of Education (CDE) to develop and disseminate information
regarding the detection and reporting of child abuse to all school districts, county
offices of education, state special schools, state diagnostic centers, charter schools,
and their school personnel. Additionally, the CDE must develop statewide guidance
on the responsibilities of school personnel regarding child abuse identification and
reporting. AB 1432 also requires the California Department of Social Services to
develop an online training module.
Employment . . . . . . . . . . . . . . 11
Discrimination. . . . . . . . . . . . . 11
Arbitration. . . . . . . . . . . . . . . . 16
Background Checks. . . . . . . . 17
Affordable Care Act. . . . . . . . 19
LCW NEWS
New Partners. . . . . . . . . . . . . . 22
Disability GPS. . . . . . . . . . . . . 23
LCW Conference. . . . . . . . . . . 24
Live Webinars . . . . . . . . . . . . . 25
Liebert Library. . . . . . . . . . . . . 26
Recorded Webinars . . . . . . . . 26
Firm Activities. . . . . . . . . . . . . 27
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In turn, school districts, county offices of education, state special schools, state
diagnostic centers, and charter schools are required to provide annual training using
the online training module to employees who are mandated reporters. They must
also develop a process by which completion of training is documented. School
districts, county offices of education, state special schools, state diagnostic centers,
and charter schools that choose not to use the online training module must report
the training they use to the CDE. As the fall semester is now underway for many, it
is important to remember that existing employees must complete training within the
first six weeks of each school year, and new employees must complete it within the
first six weeks of their employment.
Ninth Circuit Court of Appeals Finds Sufficient Evidence to Support Claim that
Physician Seized Child Without Exigent Circumstances During Child Abuse
Investigation.
On February 24, 2010, Jill Jones brought her infant son, G.J., into the Santa Monica
UCLA Medical Center’s Emergency Department after tripping down the steps of
her loft and losing her grip on G.J. G.J. was discharged to his parents after spending
two days in the hospital for a complex fracture on the back of his skull. After he
was discharged, Jones noticed a popping noise in G.J.’s chest from undetected rib
fractures. The case was referred to Dr. Claudia Wang, UCLA’s Suspected Child
Abuse and Negligence (SCAN) medical director on March 4, 2010. Dr. Wang
ordered child abuse screening tests and examined G.J. herself. On March 5, 2010,
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Jones took G.J. to the UCLA Westwood campus
medical facilities for his tests. The tests revealed
G.J.’s rib fractures, which Dr. Wang mistakenly
concluded occurred after the accident. A radiologist,
Dr. Boechat, suggested to Dr. Wang that G.J.’s skeletal
survey might faintly show another skull fracture that
had not been detectable earlier. However, a second
radiologist, Dr. Hall, did not see a second fracture,
and also explained to Dr. Wang that what she thought
were fractures on G.J.’s leg bones were actually a
normal variant in infant legs.
Dr. Wang called the SCAN team case manager,
Nancy Hayes, and asked her to report G.J.’s case to
the LA County Department of Children and Family
Services (DCFS). Dr. Wang also called the UCLA
police department, and asked police officers to
remain in the clinic while she met with Jones because
she was concerned that Jones might try to leave the
clinic with G.J. Dr. Wang told Jones that G.J. might
have an additional skull fracture and leg fractures
despite Dr. Hall’s opinion to the contrary. Dr.
Wang recommended an additional CT scan and also
recommended that Jones admit G.J. into the hospital
for additional tests. However, Dr. Wang’s reason
for recommending that Jones hospitalize G.J. was to
prevent her from taking G.J. home. In addition, Dr.
Wang told the SCAN team case manager to make sure
that G.J.’s parents did not take him home. However,
Dr. Wang admitted to the DCFS social worker that
she did not have a definitive diagnosis of child abuse,
and the social worker decided that there was no basis
to issue a hospital hold. The social worker assigned
to the case told the Joneses that if they resisted Dr.
Wang’s hospitalization order, G.J. would be detained
and it would appear as if they were refusing medical
treatment, which could provide the social worker
with a basis to remove G.J. from their custody. On
March 6, 2010, the Joneses signed Admission and
Medical Service Agreement forms for G.J. and G.J.
was transferred to the UCLA Medical Center in Santa
Monica. Dr. Wang ordered a “sitter” in G.J.’s room
to prevent G.J.’s parents from being alone with G.J.
After several days passed, on March 8, 2010, Dr.
Wang told the social worker that G.J.’s injuries were
“highly suspicious” for abuse. The social worker
issued a hospital hold, and G.J.’s mother and father
lost custody of G.J. for months.
After the Joneses brought a lawsuit against Dr. Wang
and the County of Los Angeles, the district court
denied Dr. Wang’s motion for summary judgment
Education Matters
on the merits as well as her qualified immunity
defense, and Dr. Wang appealed the denial of
qualified immunity. In determining whether the
denial of qualified immunity was appropriate, the
Court applied a two-prong analysis. The Court
considered (1) whether Dr. Wang violated the
plaintiffs’ constitutional rights; and (2) whether the
right violated was clearly established at the time of the
official’s conduct. As part of this analysis, the Court
discussed the protections afforded families in child
abuse investigations. Parents are protected by the
Fourteenth Amendment while children are protected
by the Fourth Amendment. Both the Fourth and
Fourteenth Amendments require an official separating
a child from its parents to obtain a court order unless
the official has reasonable cause to believe that the
child is in imminent danger of serious bodily injury.
The Ninth Circuit Court of Appeals found that,
accepting the Joneses’ version of events, Dr. Wang’s
conduct permitted a conclusion that Dr. Wang seized
G.J. without consent and without reasonable cause to
believe that G.J. was in imminent danger of serious
bodily harm, violating the Joneses’ constitutional
rights under the Fourth and Fourteenth Amendments.
The Court reasoned that reasonable parents in the
Joneses’ position would not have felt free to leave
with G.J. First, Dr. Wang told the Joneses that the tests
she wished to perform required G.J.’s hospitalization,
despite knowing they could be conducted on an
outpatient basis. Dr. Wang also told Jill Jones that Dr.
Wang was a mandated reporter and that the injuries
were consistent with child abuse, and Dr. Wang
contacted the police, who then interviewed Jill Jones.
Furthermore, Dr. Wang prompted the social worker
to tell the Joneses that G.J. would be detained if they
tried to take him home, and coordinated with the
SCAN team case manager to keep G.J. at the hospital.
More importantly, according to the Court, Dr. Wang
directed a “sitter” to be placed in G.J.’s room to
prevent the Joneses from being alone with him.
The Court also found that based on the Joneses’
account of the facts, a rational jury could conclude
that Dr. Wang’s seizure did not occur under exigent
circumstances. While rib fractures were discovered
a week after Jones and G.J.’s initial accident, several
facts undermined the possibility that Dr. Wang had
a reasonable belief that G.J. faced imminent harm.
Specifically, the social worker assigned to the case
decided he did not have a sufficient basis to issue
a hospital hold after speaking with Dr. Wang and
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meeting with the Joneses. In addition, there was no
evidence that the Joneses neglected G.J., and there
was no evidence pointing to either parent as the
potential abuser. Further, even Dr. Wang was not
sure whether G.J. had been abused or whether he
would be in danger if he was sent home with his
parents. It was not until more than two days after
G.J. was first admitted to the hospital that Dr. Wang
told the case worker that G.J.’s injuries were “highly
suspicious” for child abuse.
In analyzing the second prong of the qualified
immunity analysis, the Court found that according
to the Joneses’ version of the events, it was clearly
established that Dr. Wang was violating the law by
removing G.J. from his parents’ custody without
exigent circumstances. The Court held that a rational
juror could conclude that Dr. Wang knew she did not
have sufficient evidence to detain G.J., yet she seized
him anyway to further her investigation. According
to the Court, the clear guidance in case law provided
to state officials investigating child abuse would put
any reasonable state official in Dr. Wang’s position
on notice that such conduct violated G.J.’s and the
Joneses’ rights. Thus, the Court concluded that at the
summary judgment stage, Dr. Wang was not immune
from the lawsuit.
Jones v. Wang (9th Cir. 2015) __ F.3d __ [2015 WL 5515727].
SCHOOLS
Trial Court Erred in Admitting Evidence Regarding
Minor’s Prior Sexual History and in Requiring
Plaintiff to Prove that Her Teacher Displayed a
Dangerous Propensity to Sexually Abuse Minors.
In the fall of 2010, S.M. was a thirteen-year-old
student in the eighth grade in the Los Angeles Unified
School District (LAUSD). Her math teacher, Elkis
Hermida (Hermida), invited her to be friends on a
social networking site and the two began exchanging
text messages, which became sexual over time.
Hermida began asking S.M. to come to his classroom
when he was alone, and hugged and kissed her. On
March 12, 2011, S.M. told her mother that she was
going to a friend’s house, but instead left her friend’s
house and met Hermida, who drove her to a motel
where they had sexual intercourse.
September 2015
S.M. and Hermida continued to have sexual
intercourse until May 2011, and even did so in
Hermida’s classroom. Hermida arranged the
furniture in his classroom so that they could also have
sex in a hidden alcove. In May 2011, one of S.M.’s
friends told a teacher about the relationship between
S.M. and Hermida. That teacher reported the abuse
the next day, and Hermida was promptly arrested.
He pled no contest to one count of lewd acts upon a
victim aged 14 in violation of Penal Code section 288,
subdivision (c)(1) and served time in prison.
S.M. sued LAUSD for negligent supervision of a
teacher employed by the District. The trial court
found in favor of LAUSD, and S.M. appealed on the
grounds that, among other things, the court erred
prejudicially by: (1) modifying jury instructions to
require S.M. to prove that her teacher had displayed
a “dangerous propensity to sexually abuse minors;”
(2) permitting admission of evidence of S.M.’s sexual
history; and (3) instructing the jury that S.M. could be
found comparatively at fault if she “consented” to sex
with her teacher.
The appellate court agreed that S.M. was not required
to prove that Hermida had a “dangerous propensity
to sexually abuse minors.” The Court reasoned that
it was difficult to see how a dangerous propensity to
sexually abuse minors could be shown except by past
acts of sexual abuse of a minor. This would effectively
deprive the first victim of a predatory teacher of a
remedy, since he or she could not prove that the
teacher engaged in past acts of sexual abuse. S.M. was
only required to prove that Hermida had the potential
to sexually abuse minors. The Court found that this
set up an insurmountable hurdle for S.M.
Additionally, the appellate court held that the trial
court erred prejudicially in admitting evidence of
S.M.’s prior sexual history. The District’s expert
testified that prior sexual history was relevant to
understanding the extent of S.M.’s emotional distress.
The Court reasoned this is true in every case. Thus,
the expert’s testimony did not show exceptional
circumstances which would allow the introduction of
S.M.’s sexual history, which is barred by the Evidence
Code. Moreover, while evidence of S.M.’s sexual
history was purportedly only offered on the issue of
damages, it was discussed throughout the trial. The
jury, through notes to the judge asked a significant
number of questions about S.M.’s sexual history. The
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Education Matters
Court of Appeal found that these questions indicated
an improper and irrelevant interest in the topic, and
prejudiced S.M.
agreement came to fruition after an OCR investigation
determined that between 2008 and 2014, UVA had a
“mixed record” of Title IX compliance.
Finally, the appellate court held that the trial court
erred in instructing the jury that if the District
proved its claim that S.M.’s own wrongful conduct
contributed to her harm, S.M.’s damages were to be
reduced by the jury’s determination of the percentage
of S.M.’s responsibility. The Court held that there
was no evidence of any wrongful conduct by S.M. It
stated, “comparative fault has no application in a case
involving the sexual abuse of a minor student by an
adult teacher in a position of authority in a public
school setting.”
OCR issued a Letter of Finding on September 21, 2015,
determining that UVA violated Title IX because:
Further, the Court found that there is no authority
or persuasive reasoning supporting the notion that
students sexually victimized by their teachers can
be contributorily responsible for the harm they
suffer. Rather, it held that the plaintiff’s lack of
mature judgment in “cooperating” with her abuser
is a source of the District’s responsibility to her, not
an excuse from that responsibility. Similar to S.M.’s
prior sexual history, the Court found that although
the issue of comparative fault was purportedly
offered only on the issue of damages, the idea that
S.M. engaged in wrongful conduct by “consenting”
to sexual intercourse was discussed throughout the
trial, portrayed her in a negative light, and was highly
prejudicial. The Court reversed the judgment and
remanded the case for a new trial.
S.M., a Minor v. Los Angeles Unified Sch. Dist. (2015) __ Cal.
Rptr.3d __ [2015 WL 5439771].
TITLE IX
OCR Enters a Resolution Agreement with the
University of Virginia.
On September 21, 2015, the U.S. Department of
Education announced that its Office for Civil Rights
entered into a resolution agreement with University
of Virginia (“UVA” or “University”) to ensure that
the University complies with the requirements of
Title IX of the Education Amendments of 1972 (“Title
IX”), which prohibits discrimination on the basis of
sex in education programs and activities operated
by recipients of Federal financial aid. The resolution
• The University’s Sexual Misconduct Policy
(SMP) failed to provide a “reasonably prompt
timeframe for the major stages of the complaint
process” including a timeframe for completing an
investigation, initiating a hearing, and resolving
appeals.
• The University’s informal resolution process
was structurally flawed and inequitable because
if, during the course of the informal resolution
process, the accused admitted to wrongdoing,
the University would proceed with sanction
recommendations without first conducting an
independent investigation into the complainant’s
allegations. Such a process was inequitable as to
both the alleged victim and perpetrator because it
allowed for the “imposition of sanctions that the
University has not determined to have occurred.”
• On at least two occasions during the formal
resolution process, the University failed to
provide for prompt and equitable resolution
when it, among other things: (1) took five months
to schedule a hearing after completion of an
investigation in a particular case and (2) allowed
a student accused of sexual assault to file a late
cross-claim against the complainant without
conducting an independent investigation into
the accused’s allegations and without giving the
original complainant adequate time to prepare
to defend against the cross-complaint. The
University’s decision to allow the accused to file
a late cross-claim that would be addressed at the
already scheduled hearing without a separate
investigation in the validity of the cross-claim was
inequitable.
• The University implemented a practice by which
the Associate Dean of Students served both as
the Deputy Title IX Coordinator for Student
Sexual Misconduct and as the Chair of the Sexual
Misconduct Board (SMB). These dual roles created
the appearance of a conflict of interest because
the Deputy Title IX Coordinator was responsible
for receiving complaints, implementing interim
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September 2015
measures and selecting the SMB panel for the
hearing, but as the Chair was responsible for
facilitating the hearing, guiding the panel in its
questioning of witnesses, and issuing the first
draft of the panel’s decision.
• The University relied too heavily on the parties to
identify relevant evidence by requiring the parties
to submit a list of witnesses and relevant evidence
they wished to present at hearing. Under Title IX,
UVA had the responsibility to make an informed
and independent judgment of what evidence
the SMB panel needed to use in adjudicating
the complaint. By relying on the parties’
evidence and witness list without independently
determining what evidence was necessary to
make an informed decision, this process undercut
the SMB’s ability to meet its responsibility to
conduct an adequate, reliable, and impartial
investigation and determination.
• The University failed to take appropriate action
in 22 of 50 reports made by students between
2008 and 2012. In nine reports, there were no
records that UVA ever conducted investigations.
An additional four were referred to local police,
but were not independently investigated by the
University. The other nine reports were made by
complainants requesting confidentiality or that no
investigations occur, but UVA appeared to make
no effort to even evaluate such requests “in the
context of its responsibility to provide a safe and
nondiscriminatory environment for all students.”
(In the words of OCR.) OCR noted that between
2012 and 2014, the University continually failed
to evaluate its responsibility to provide a safe and
nondiscriminatory environment when evaluating
confidentiality requests.
• The Title IX Coordinator did not adequately
coordinate and oversee all Title IX complaints. For
example, in practice, complaints were handled
within academic departments by department staff
who were not properly trained. Department staff
often failed to report complaints to the Director
of Equal Opportunity Program (EOP), who also
served as the Title IX Coordinator. Furthermore,
even when reported to EOP, the Director of EOP
had only limited involvement and oversight over
the departments’ responses to student complaints.
• The University did not include a compliant notice
of nondiscrimination in locations other than
the EOP website. This nondiscrimination notice
was only directed to employees and failed to
address how the University’s policies regarding
nondiscrimination applied to students in the
University’s broader programs and activities.
Ultimately, OCR determined that UVA actions, or
inactions, created a sexually hostile environment
when it failed to take prompt and equitable action in
responding to formal and informal complaints and
reports and when it neglected to assess whether a
hostile environment existed or take steps to prevent
its reoccurrence. As a result of OCR’s findings, on
September 17, 2015, UVA and OCR entered into a
Resolution Agreement whereby UVA agreed to,
among other provisions:
• Continue to follow its revised Title IX grievance
procedure, which the OCR has deemed to be fully
compliant;
• Ensure that agreements with student
organizations clearly state that sexual harassment,
sexual violence, and retaliation are prohibited and
that the organizations are required to comply with
the University’s Title IX policies;
• Regularly train students, faculty, administrators
and other staff on issues related to sexual
harassment and violence, including University
policies and procedures;
• Widely disseminate its notice of
nondiscrimination;
• Improve outreach to and feedback from students
through focus groups and annual climate
assessments;
• Develop and implement a system for tracking
and reviewing all reports, investigations, interim
measures, and resolutions;
• Review all complaints from the 2011-12; 2012-13,
and 2013-14 academic years to determine that each
complaint was handled properly and take action
to address any deficiencies; and
• Submit to OCR for review all complaints filed by
students for the 2014-15 and 2015-16 academic
years.
Education Matters
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Note:
This month, Michigan State University also entered
into a resolution agreement with OCR in response
to an OCR investigation revealing several Title IX
violations between 2009 and 2014. Through its
investigations, OCR has made it abundantly clear
that it will prioritize ensuring that schools that receive
federal funding do not deprive students of access
to education on the basis of sex, including sexual
harassment and violence. Consulting with California
legal counsel can help schools and post-secondary
institutions comply with Title IX requirements as well
as overlapping state law mandates.
RECORDS
Appellate Court Holds that Analyses of
Departmental Procedures and Recommendations for
Institutional Reform Are not Exempt from the Public
Records Act Pursuant to the Pitchess Statutes.
In the wake of a March 2012 shooting of an
unarmed teenager, the City of Pasadena retained an
independent consultant to review Pasadena Police
Department policies. After the completion of the
independent consultant’s report, various interested
parties made requests for the report under the Public
Records Act (PRA). The Pasadena Police Officers
Association (Association), along with the officers
involved in the shooting, filed a reverse PRA request
to prevent the report’s disclosure.
The trial court ordered public disclosure of the report.
However, it found that certain portions were exempt
from disclosure pursuant to the Pitchess statutes,
which exempt personnel records of peace officers.
The trial court ordered that those portions of the
report be redacted. The Association and the two
individual officers then filed a petition to preclude
disclosure of the report. The appellate court held
that the trial court was correct in its determination
that the report is a public record, portions of which
contained confidential personnel information exempt
from disclosure. However, the appellate court found
that the trial court redacted portions of the report that
were not exempt from disclosure.
The Pitchess statutes provide for two categories of
confidential records: (1) personnel records; and
(2) records of citizen complaints about individual
officers, and reports or findings relating to
investigation of such complaints. The appellate
court found that portions of the report that were not
exempt from disclosure included analyses of the
Police Department’s administrative investigation and
departmental policies as well as recommendations
by the independent consultant. The Court reasoned
that those portions of the report were not criticisms
or appraisals directed at officer conduct. The Court
further reasoned that these portions of the report
were not prepared in response to a citizen complaint.
Rather, the report was conducted to analyze the
shooting and its aftermath for the purposes of
determining what lessons could be learned, and to
recommend institutional reforms. Thus, the appellate
court ordered the lower court to conduct additional
proceedings to reconsider which portions of the report
contain confidential information, and order additional
material released.
Pasadena Police Officers Association v. Superior Court of Los
Angeles County (2015) __ Cal.Rptr.3d __ [2015 WL 5281818].
LABOR RELATIONS
PERB Decision Regarding Information Requests
Sheds Light on Employers’ Responsibility to Assert
Concerns About Confidentiality.
In July 2009, Dixie Macias, a faculty employee of the
Foothill De-Anza Community College District filed
a complaint with the California Community College
Chancellor’s Office alleging that Foothill College
falsely inflated its full time equivalent instructional
hours. Macias was the men’s tennis coach and
was represented by the Foothill De-Anza Faculty
Association.
In late October 2009, Macias contacted his Association
representative, Linda Lane, to inform her that he
had been interviewed regarding complaints the
women’s tennis coach, Kara Giannetto and Tom
Liner, who taught tennis, had filed against him. At
the second interview regarding the same complaints,
Lane requested a copy of the complaints and the
investigator refused. Doreen Novotny, the District’s
Vice Chancellor for Human Resources and Equal
Opportunity, had also informed Macias that the
District was not required to provide copies of the
complaints to the respondent or others because
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they were informal complaints. In January 2010,
Giannetto filed additional complaints against Macias,
which triggered a second investigation. Lane asked
Novotny for a copy of those complaints, but her
request was denied on the basis that the complaints
were informal.
The Association also requested a copy of the informal
complaint. Several days later, the Association sent
another letter to Novotny demanding the complaints,
along with any other derogatory information in the
District’s possession, on behalf of Macias as well as
on the Association’s behalf. The letter also requested
documents received from the State Chancellor’s Office
concerning Macias’s original complaint, and included
an argument that the information sought was relevant
and necessary according to the standards adopted by
PERB.
On March 10, 2010, Macias filed a grievance alleging,
in part, that the District discriminatorily applied
its informal complaint procedures because of his
earlier whistleblowing activities. On March 11,
2010, Dean Gatlin issued a Notice of Directives to
Macias, informing him that he was the subject of an
investigation of alleged misconduct and that he must
stay away from the tennis courts and tennis shed
except as specifically authorized. That same day,
Novotny provided Macias with the investigation
reports and findings related to Giannetto’s and
Liner’s complaints as well as an investigative report
generated by the District as a result of Macias’s
whistleblowing activity. On March 16, 2010, District
counsel responded to the Association’s written
requests for information, stating that at the conclusion
of the investigations, the District would turn over
a copy or summary of the investigative reports,
including the complaints made against Macias. The
District also responded that it was searching for
documents relating to Macias’s complaint to the
State Chancellor’s Office and that it would produce
responsive, non-privileged documents.
Lane requested to arbitrate Macias’s grievance
following its denial. The Association made
further requests for information in January 2011
in preparation for the arbitration, and the District
provided documents to the Association. However,
according to the Association, not all documents were
turned over.
The Administrative Law Judge (ALJ) determined
that the District needed to provide all “necessary
September 2015
and relevant” information to the Association so that
it could adequately represent Macias even if it had
provided the information to Macias directly.
The ALJ found that the District initiated formal
investigations on the basis of Giannetto’s and Liner’s
informal complaints and, therefore, those documents
were necessary and relevant to the Association’s
representational duties. Further, the ALJ found that
the District failed to affirmatively assert its concerns
regarding disclosure of the complaints and to bargain
to ameliorate those concerns. The District provided
some documents to Macias on March 11, 2010, but did
not provide the information to the Association until
January 2011, and made no effort to assert its concerns
about disclosure, explain the inconsistency, or bargain
to ameliorate those concerns.
The ALJ further found that the District’s delay in
providing the Association copies of the complaints
against Macias could not be justified by reference to
its Administrative Procedures regarding complaints
of harassment and discrimination. The District’s
Administrative Procedures acknowledge that a
complaint may not remain anonymous, and that an
alleged harasser may present their side of the incident,
which may necessitate disclosure of the complainant’s
identity. The ALJ also noted that even if the
District were able to provide sound reasoning for
treating an informal complaint as more deserving of
confidentiality than a formal complaint, the District’s
decision to initiate a formal investigation based
on the informal complaints negated any potential
justification. Moreover, the District did not establish
that the informal complaints were confidential. Thus,
the lengthy delay in providing copies of complaints to
the Association was not justified.
The ALJ determined that the investigative reports
requested by the Association were necessary and
relevant and the District’s delay in providing the
investigation reports was not justified. In addition,
the District did not affirmatively assert its concerns
regarding the release of the requested information.
The ALJ also held that communications about
Macias’s whistleblowing activities were necessary
and relevant to the Association’s representational
duties. The District failed to request any explanation
from the Association as to why the communications
were necessary and relevant, and instead informed
the Association that it was searching for the records.
Education Matters
8
Therefore, the ALJ determined the District breached
its duty to meet and confer in good faith by failing
to seek out and disclose necessary and relevant
information that it represented was forthcoming.
Finally, the ALJ found that the District’s refusal to
provide the Association with requested documents
interfered with associational rights pursuant to the
EERA.
Foothill De-Anza Faculty Association v. Foothill De-Anza
Community College District (2015) PERB Dec. No. SF-CE2864-E.
Note:
Administrative Law Judge Shawn P. Cloughesy
issued the proposed decision in this case on June 22,
2015. The District has not appealed the decision,
and it is therefore final. The ALJ’s decision does
not have precedential value, and cannot be relied
upon in subsequent cases. However, it provides
important insight into the steps an employer can take
when presented with information requests that seek
information that the employer deems confidential.
The Berklee Faculty Union did not Prosecute its Right
to Negotiate the Effects of the Berklee College of
Music’s Class Cancelation Policy.
The collective bargaining agreement between the
Berklee College of Music (College) and the Berklee
Faculty Union (Union) gives the College the authority
to determine what courses will be offered, which
faculty members will teach which courses, and where
each course will be taught. On August 21, 2012, the
College announced that all courses would be subject
to a standardized minimum of five students, except
for courses that are smaller by their nature. Two days
later, the Union demanded that the College cease
implementing the new standardized minimum until
it negotiated with the Union over the impact of the
proposed change.
The College met with the Union on September 3, 2012.
At the conclusion of the meeting, the Union President
stated, “We’ll pretend that this meeting on the 5th
is the meeting that we should have had months ago
surrounding these issues.” The College and the
Union met again on September 5, 2012. They decided
that their attorneys would not attend the meeting,
during which the Union stated its objections to the
new policy, and the College explained its reasons for
adopting it.
The Union filed an unfair practice charge with
the National Labor Relations Board alleging a
failure to bargain with the Union. In reviewing the
Administrative Law Judge’s decision, a three-member
panel of the NLRB discussed the College’s duty to
provide the Union with a meaningful opportunity
to engage in effects bargaining, in which a relevant
consideration is whether the Union was afforded
an opportunity to bargain at a time when it still
represented employees upon whom the College relied
for service. The NLRB then determined that it was
undisputed that the College was only obligated to
engage in effects bargaining, and at the time of the
September 5th meeting, the Union had a meaningful
opportunity to bargain over the effects of the change
in course minimum. The NLRB noted that the
presence of the parties’ attorneys had no bearing on
whether the Union was excluded from bargaining on
September 5th because they had bargained in their
absence on prior occasions and the Union President
reasonably led the College to believe that the parties
would bargain during the September 5th meeting.
The NLRB found that the primary effects of the new
course minimum would be felt when the College
evaluated courses for cancelation in the future, and
the Union had ample time to bargain over those longterm effects. With respect to the current semester,
a single course cancelation was attributable to the
change in course minimums, and in the past, the
College and the Union had dealt with the effects of
canceling a course through individual negotiations
after the course had been canceled. Generally, effects
bargaining must occur before implementation of a
change for bargaining to be meaningful. Under the
circumstances, however, the NLRB determined that
the College provided the Union with a meaningful
opportunity to bargain at a meaningful time.
It followed, then, that it was incumbent on the Union
to test the College’s intent to bargain by engaging in
negotiations. The NLRB found that the Union failed
to prosecute its right to negotiate: it did not request
information regarding the class size minimum, made
no proposals regarding its effects, and failed to
request any further meetings. Therefore, the College
satisfied its obligation to engage in effects bargaining.
9
September 2015
Berklee College of Music and Berklee Faculty Union, American
Federation of Teachers, Local 4412, AFT-MA, AFL-CIO (2015)
362 NLRB 178.
Note:
This decision is from the NLRB, which has jurisdiction
over charges of unfair labor practices by private
employers. NLRB precedent is not binding on
PERB, but PERB often looks to NLRB precedent in
interpreting similar law.
RETIREMENT
The Legislature Unanimously Approves AB 963,
Addressing Questionable STRS Memberships.
On September 8, 2015, the California Legislature
unanimously approved Assembly Bill (AB) 963,
regarding membership eligibility for the California
State Teachers’ Retirement System (“STRS”). AB 963
is a response to many school and community college
districts misclassifying employees as eligible for STRS
membership.
In 2012, a STRS audit revealed that positions the
San Francisco Community College District (SFCCD)
designated as Educational Administrators, including
the Director of Human Resources, were not eligible
for STRS membership. In response, STRS removed
these employees and retirees from membership
and retroactively enrolled them in membership in
California Public Employees’ Retirement System
(“CalPERS”). STRS then issued a Circular Letter in
August 2012 regarding positions that are ineligible
for STRS membership, stating that in order to be
eligible for STRS membership, the primary functions
of the position must be that of an academic or
certificated employee as defined under the Education
Code, including instruction, curriculum or material
development, school health professionals, counselors,
or librarians. Additionally, positions responsible for
supervising the academic positions were eligible for
STRS membership (e.g. instructional deans). While
STRS later provided former STRS members who
transferred from creditable to non-creditable positions
the opportunity to rejoin STRS, this one-time window
did not address concerns regarding former STRS
members that had previously been misclassified as
having performed creditable service in their prior
positions.
Under current law, STRS members transferring
to non-creditable positions are required to elect
to remain STRS members. AB 963 instead allows
employees to retain STRS membership unless
the employee affirmatively elects to transfer to a
different public retirement system upon transfer
to a non-creditable position. Furthermore, former
STRS members that transferred to another public
retirement system under the current law will be
given an opportunity to elect to transfer back to STRS
membership. An election to transfer back into STRS
membership must be made in writing and filed with
STRS on or before June 30, 2016, with a copy of the
election filed with the employee’s current public
retirement system.
AB 963 also includes as part of the definition of
creditable service activities that do not otherwise meet
the definition of creditable service but were performed
for an eligible employer on or before December 31,
2015 and that were reported as creditable service to
STRS. In other words, AB 963 would allow employees
who were misclassified as being eligible for STRS
membership to remain in STRS.
Finally, AB 963 further amends the Education Code
to clarify which employees are eligible for STRS
membership. The following classes of employees
are eligible for membership in STRS if they perform
“creditable service” as defined by the Education Code:
1. Certificated employees in prekindergarten
through grade 12;
2. A faculty member in an academic position or an
educational administrator in a community college
district;
3. Eligible charter school employees of a charter
school eligible to receive state apportionment;
4. Superintendents of California public schools and
presidents and chancellors of community colleges;
and
5. Teachers who are employed on a consulting basis
to participate in the California Peer Assistance and
Review Program.
Governor Brown has until October 11, 2015 to take
action on AB 963. If he takes no action on AB 963 by
10
that date, it will become law and go into effect on
January 1, 2016.
Note:
We previously reported on AB 963 in an April 2015
blog post and in the March 2015 issue of Education
Matters. Mary L. Dowell of LCW’s Los Angeles
Office helped lead a STRS coalition, which includes the
Association of Community College Administrators,
and many others to identify deficiencies in the current
STRS member identification and election system and
get AB 963 to the Governor’s desk. LCW is very
pleased and proud of this development.
BUSINESS AND FACILITIES
Evidence Must Support Agency’s Reliance on CEQA
Exemption for School Closures and Student Transfers.
In early 2013, the Barstow Unified School District
decided to close two of its elementary schools and
to transfer their 610 students to several designated
“receptor” schools within the District. The closures
were estimated to save the District $600,000 annually
and transfer students could choose which receptor
school to attend. The District determined that
the closures and transfers were exempt from the
California Environmental Quality Act (“CEQA”)
under the categorical exemption for “minor
additions” to existing schools. Under this exemption,
the addition of 10 or fewer classrooms, or an increase
of not more than 25 percent in the enrollment capacity
of an existing school, is exempt from CEQA. (Pub.
Resources Code Section 21080.18; 14 C.C.R. Section
15314.)
Education Matters
contained insufficient evidence of the enrollment
capacity of each receptor school before the transfers.
For this reason, it was impossible for the District to
determine the closures and transfers fell within the
minor addition to schools exemption. As the Court
explained: “Without knowing the enrollment capacity
of each receptor school, it was impossible for the
District to determine whether the transfers would not
cause the enrollment at any of the receptor schools
to exceed 125 percent of its enrollment capacity, or
require fewer than 10 classrooms to be added to
the receptor schools.” That transfer students were
able to choose which receptor school to attend only
compounded the problem because the District did not
limit enrollment at any of the receptor schools in order
to ensure that its enrollment would not exceed 125
percent of its enrollment capacity or require addition
of 10 or more new classrooms.
This case highlights the importance of CEQA
compliance and the legal consequences associated
with an agency’s reliance on categorical exemptions
for projects, particularly in connection with school
closures and student transfers.
Save Our Schools v. Barstow Unified School District Board of
Education (2015) 191 Cal.Rptr.3d 916.
Brown Act’s Labor Negotiations Exception Does Not
Permit Closed-Session Discussions Regarding the
Negotiation of Construction Agreement.
A citizen’s group known as Save Our Schools (“SOS”)
challenged the District’s determination that the
“minor additions” exemption applied to the closures
and student transfers. SOS argued there was no
evidence that the closures and transfers would not
increase the enrollment capacity at any of the receptor
schools by more than 25 percent. The trial court
rejected the challenge and allowed the closures and
transfers to proceed.
Consider the following scenario: An agency is
undertaking a construction project and its board
wishes to hold a closed session with its negotiator
to discuss the terms and conditions of a proposed
project labor agreement. A project labor agreement
is a prehire collective bargaining agreement between
an owner of a construction project and one or more
labor organizations setting terms and conditions of
employment for the construction. (Pub. Contract
Code 2500(b)(1).) Is the closed session permissible
under the labor negotiations exception to the openmeeting requirements of the Ralph M. Brown Act?
According to the Attorney General, the answer is
“No.”
The Court of Appeal reversed and directed the
case back to the trial court for further proceedings
regarding the District’s exemption determination.
The Court concluded that the administrative record
The labor negotiations exception authorizes an agency
to hold closed session discussions with its negotiating
representative regarding the salaries and benefits
of its employees. (Gov. Code, Section 54957.6.) The
11
September 2015
exception is designed to give the agency the “central
role of directing the meet and confer process so as to
achieve binding labor-management agreements.”
In an opinion issued on September 18, 2015,
the Attorney General explained that the labor
negotiations exception does not apply to negotiations
over a proposed project labor agreement because
construction workers and laborers covered by
the agreement are not the agency’s employees.
Accordingly, the board must discuss the matter in
open session. “Because the construction workers
whose employment terms are determined by
the project labor agreement are not employees
of the [agency], the terms of the Brown Act’s
labor negotiations exception are not satisfied.
Consequently, we conclude that the Brown Act’s labor
negotiations exception does not permit [an agency’s]
governing board to meet in closed session with its
designated representative to discuss the negotiation
of a project labor agreement.”
___ Ops.Cal.Atty.Gen.___ (Sept. 18, 2015).
Note:
This opinion confirms that under the Ralph M. Brown
Act, matters relating to the negotiation of the terms of
proposed construction agreements must be discussed in
open session.
they nonetheless performed sub-standard patient
assessments, failed to detect serious injuries, failed
to send severely injured patients to trauma centers,
sent patients to the hospital with inappropriate
supervision, and omitted material information from
incident reports. The paramedic/firefighters provided
substandard patient care to members of the public
who relied on them to make proper medical care
decisions during emergencies.
The paramedic/firefighters argued during the hearing
that the investigation into their conduct did not
support termination, that they did not violate any
policies, and that they did not receive a fair Skelly
hearing. The ALJ sustained the termination of both
paramedic/firefighters, finding that both individuals
failed to execute their duties in an acceptable manner
and that their conduct brought embarrassment and
discredit to the department.
Note:
A key to this case, and to many disciplinary hearings,
was the ability of the agency to demonstrate that the
subject employees received training and notice related
to policies or rules at issue. Agencies should keep
careful records of training sessions, including the
topic of the training, a description or syllabus, and
documentation of the employees present at the training.
In these cases, an “ounce” of prevention is definitely
worth a pound of cure.
EMPLOYMENT
DISCRIMINATION
Administrative Law Judge Sustains Termination of
Two Paramedic/Firefighters.
Patrol Agent Who Was Not Promoted Presented
Sufficient Evidence to Defeat Summary Judgment in
Age Discrimination Case, Even Though the Selected
Candidates Were, On Average, Only 8 Years Younger
Than Him.
In a case handled by Stefanie Vaudreuil of our San
Diego office and Joshua Goodman of our Los Angeles
office, an administrative law judge (ALJ) sustained
the termination of two paramedic/ firefighters for
providing inadequate care to multiple patients.
The department terminated the paramedic/
firefighters for multiple violations of policy following
a disturbing pattern of careless and inadequate
patient care. The paramedic/firefighters appealed the
termination.
At the appeal hearing, the department presented
evidence that, although the paramedic/firefighters
received proper training on relevant policies,
John France is a border patrol agent with the Tucson
Sector of the United States Department of Homeland
Security. In 2007, Tucson Sector Chief Patrol Agent
Robert Gilbert established a pilot program named
“Architecture for Success,” which split Assistant Chief
Patrol Agents (ACPA) into two categories: operations
and administration. ACPAs in operations were
assigned a pay grade that was higher than ACPAs
assigned to administration.
Four operations ACPA positions were created as
a result of the pilot program and France, who was
12
54 years old at the time, applied and interviewed
for the position. The panel of interviewers, which
consisted of Chief Patrol Agents Gilbert, Vitiello, and
Fisher, selected six top-ranked candidates for final
consideration. France was not one of them. Gilbert
recommended four of the six candidates to Chief
Border Patrol Agent David Aguilar, who in turn
recommended the same four candidates to Deputy
Commissioner Jayson Ahern. The four candidates
who were ultimately selected were 44, 45, 47, and 48
years old.
France sued the Department of Homeland
Security alleging the decision to not promote him
constituted age discrimination in violation of the
Age Discrimination in Employment Act (ADEA).
The district court granted summary judgment for
the Department, and France appealed. The Court of
Appeals for the Ninth Circuit reversed.
The ADEA makes it unlawful for employers to
discriminate on the basis of an individual’s age,
and protects employees and applicants who are
at least 40 years of age. To state a claim for age
discrimination, an employee must show that (1) he
was at least 40 years old, (2) he was qualified for the
position for which an application was submitted, (3)
he was denied the position, and (4) the promotion
was given to a substantially younger person. If the
employee can do this, the burden switches to the
employer to present a legitimate, nondiscriminatory
reason for its decision. The plaintiff must then prove
that the employer’s explanation was a pretext for
discrimination.
The Department did not dispute that France was
at least 40, was qualified and was denied the
position, but argued that the selected ACPAs were
not substantially younger than France. The average
age difference between France and the selected
ACPAs was eight years. The Ninth Circuit held
that an average age difference of ten years or more
between the applicant and the selected employee is
presumptively substantial, while an age difference
of less than ten years is presumptively insubstantial.
However, a plaintiff can rebut the presumption by
producing additional evidence to show that the
employer considered his age to be significant.
Because the average age between France and
the selected ACPAs was less than ten years, the
Court held that it was presumptively insubstantial
Education Matters
evidence. However, France produced additional
evidence: (1) he declared under penalty of perjury
that Chief Gilbert explicitly expressed a preference
for promoting younger agents, and ACPAs Nicley
and Salacup testified that Chief Border Patrol
Agent Aguilar preferred to promote “younger, less
experienced agents”; and (2) France declared that
Chief Gilbert had repeated discussions with him
about retirement shortly before Gilbert posted the
open positions, even though France told Gilbert
that he was not interested in retiring. In light of this
evidence demonstrating that Gilbert considered
France’s age to be pertinent in considering France’s
promotion, the Court held that France established a
prima facie case of age discrimination.
In rebuttal, the Department explained that it did
not promote France because his qualifications did
not meet the leadership and judgment required for
the administration positions. Gilbert stated that
France had a big mouth and did not know “when
to turn it on or off.” Aguilar gave six reasons why
he did not recommend France, including France’s
lack of leadership, flexibility, and innovation.
The Court affirmed the district court’s finding
that the Department articulated a legitimate,
nondiscriminatory reason for not promoting France.
The Court also held, however, that the district court
erred by finding that France failed to raise a genuine
issue of material fact as to whether the Department’s
reasons were pretext for discrimination. The Ninth
Circuit has repeatedly held that it should not take
much for a plaintiff to overcome a motion for
summary judgment in an age discrimination case. In
this case, the district court concluded that Gilbert’s
discriminatory statements were insufficient to create
a triable issue of fact because Gilbert had a limited
role in the decision making process. The Ninth Circuit
disagreed. France presented evidence that Gilbert was
the person who created the new positions, that other
interviewers deferred to Gilbert because he would
be supervising the newly-promoted candidates, and
that Gilbert recommended the four finalists to Chief
Aguilar, who then recommended the same people
to Deputy Commissioner Ahern. A reasonable jury
could infer that Gilbert, a subordinate employee
with discriminatory animus, was involved in and
influenced the hiring decisions.
Further, the district court erred by not considering
Gilbert’s retirement conversations with France when
13
analyzing whether the articulated nondiscriminatory
reasons were pretextual. On those bases, the Ninth
Circuit reversed the district court’s grant of summary
judgment, and remanded for further proceedings.
France v. Johnson (9th Cir. 2015) 795 F.3d 1170.
Note:
In this case, the Ninth Circuit discussed the “cat’s
paw” theory of liability. While a subordinate
employee’s discriminatory animus generally is not
relevant in a discrimination case because the employee
is not responsible for whatever final decision is being
challenged, the animus may become relevant if the
plaintiff can show “a causal link by proving that the
subordinate employee influenced or was involved in the
decision or the decision making process.” Here, while
Chief Patrol Agent Robert Gilbert did not make the
final promotion decisions, he created the promotion and
recommended the four finalists who were ultimately
chosen by Deputy Commissioner Ahern. This was
enough to potentially show at trial that Gilbert,
though not the final decision maker, had “substantial
influence,” thus making his age comments relevant to
the lawsuit.
Third Circuit Court of Appeals Holds that Suspending
Employee with Full Pay is Not an Adverse
Employment Action.
The Southeastern Pennsylvania Transportation
Authority (SEPTA), a public transit agency, hired
Michelle Precia Jones in 2001 as an administrative
assistant. On December 1, 2010, Jones’ supervisor
Alfred Outlaw suspended her with full pay after
discovering apparent fraud in her timesheets.
SEPTA’s Office of Inspector General (OIG)
investigated the matter, and concluded that Jones
collected pay for days she had not worked by
submitting fraudulent timesheets. SEPTA suspended
Jones with pay in February 2011 and formally
terminated her employment in April 2011.
Jones filed suit against SEPTA and Outlaw alleging
various claims including gender discrimination
and retaliation in violation of Title VII and the
Pennsylvania Human Rights Act (PHRA). The district
court granted summary judgment for SEPTA and
Outlaw, and Jones appealed. The Court of Appeals for
the Third Circuit affirmed.
September 2015
In order to establish a claim of gender discrimination
under Title VII, the plaintiff must prove that she
suffered an adverse employment action. An adverse
employment action is an “action by an employer that
is serious and tangible enough to alter an employee’s
compensation, terms, conditions, or privileges of
employment.” The district court held that Jones’
suspension with pay did not constitute an adverse
employment action.
The Third Circuit reasoned that a paid suspension
pending investigation of an employee’s alleged
wrongdoing does not fall under any of the forms
of adverse actions mentioned in Title VII, which
prohibits discrimination in hiring, firing, and
“compensation, terms, conditions, or privileges of
employment.” A paid suspension does not affect
compensation, and is unrelated to termination or a
refusal to hire. Furthermore, because the terms and
conditions of employment generally include the
possibility that an employee will be disciplined in
appropriate circumstances, a paid suspension does
not affect “a serious and tangible” alteration of the
terms and conditions of employment. Thus, the
Third Circuit held that a suspension with pay, absent
additional facts, is not an adverse employment action
under Title VII. (It declined to consider whether a paid
suspension could constitute an adverse employment
action in the retaliation context.)
To the extent Jones’ discrimination claim was
based on her subsequent unpaid suspension and
termination, the Third Circuit affirmed the grant of
summary judgment for SEPTA. The Court noted the
lack of evidence supporting an inference that Jones’
suspension and termination were anything other than
the natural result of SEPTA’s investigation into the
allegations of timesheet fraud.
Jones also attempted to show that she was
discriminated against in the form of a hostile work
environment. However, the Third Circuit held
that even if Jones could demonstrate that she was
subjected to severe or pervasive sexual harassment,
SEPTA was entitled to the Faragher-Ellerth defense.
The defense can only be asserted by employers if the
alleged harassment does not “culminate in a tangible
employment action.” The defense applies when
the employer “exercised reasonable care to avoid
harassment and to eliminate it when it might occur”
and the complaining employee “failed to act with like
reasonable care to take advantage of the employer’s
14
safeguards and otherwise to prevent harm that could
have been avoided.”
Once Jones reported sexual harassment, SEPTA
conducted an investigation, made findings (including
that Outlaw had once asked Jones to step on his back
to relieve spinal pain), developed a “plan of action,”
required Outlaw to attend a counseling session, and
gave him a demerit on his evaluation. As for the
second step, Jones worked for Outlaw for ten years
and alleges that she was subjected to “pervasive”
sexual harassment the entire time. However, she
never made a complaint until Outlaw accused her
of timesheet fraud, even though she knew that the
EEO Office fielded such complaints and she had
previously worked in SEPTA’s Office of Civil Rights,
the EEO Office’s predecessor. Thus, Jones failed to
act with reasonable care to prevent harm that could
have been avoided, and SEPTA was entitled to the
Faragher-Ellerth defense.
The Third Circuit also affirmed the grant of summary
judgment as to Jones’ retaliation claim, holding that
she failed to demonstrate causation.
Jones v. Southeastern Pennsylvania Transportation Authority
(3d Cir. 2015) ___ F.3d ____ [2015 WL 4746391].
Note:
In reaching its decision that a paid suspension is not
adverse employment action for purposes of a Title
VII discrimination claim, the Court of Appeals for
the Third Circuit (which does not cover California)
analyzed how other circuit courts throughout the
country have dealt with the issue. While most circuits
have reached the same conclusion, it noted that in the
Court of Appeals for the Ninth Circuit, the circuit
with jurisdiction over California, placement on paid
administrative leave can be an adverse action for
purposes of a First Amendment retaliation claim. In
the context of a First Amendment retaliation claim,
adverse employment action is defined as an action
“reasonably likely to deter employees from engaging
in protected activity.” This definition is broader than
the Title VII discrimination definition, which requires
that the action be “serious and tangible enough to alter
an employee’s compensation, terms, conditions, or
privileges of employment.”
Therefore, it is important to keep in mind that placing
an employee on a paid administrative leave may be
considered “adverse” depending on the type of claim
the employee asserts.
Education Matters
ANTI-SLAPP MOTIONS
Trial Court Erred by Denying University’s Motion
to Strike Discrimination Complaint When It
Demonstrated That the Complaint Arose Out of
Protected Tenure Proceedings.
Sungho Park was hired by the California State
University in 2007 as an Assistant Professor in the
Charter College of Education, Division of Special
Education and Counseling, at California State
University, Los Angeles. Park was hired as a tenuretrack faculty member. He applied for tenure in
January 2013, and the CSU denied his application
in May 2013. Pursuant to CSU policy, a faculty
member who applies for tenure is evaluated as
to his educational performance, his professional
achievement, and his contributions to the university.
Park received a low rating in the area of professional
achievement. According to Park, the CSU justified
its decision by claiming that Park had not published
enough papers. Park alleges that he had published
four papers, but had only been given credit for two.
The general retention, tenure, and promotion (RTP)
process at the CSU consists of multiple levels. At each
level, the reviewer makes a written recommendation
whether to grant tenure to the candidate. The review
forms from Park’s file, dating all the way back to
2008, included comments from reviewers noting
Park’s lack of publications and encouraging him to
concentrate his efforts in that area.
Park filed suit against the CSU for discrimination
based on national origin and failure to prevent
discrimination. The CSU moved to strike Park’s
complaint under Code of Civil Procedure section
425.16, the anti-SLAPP (Strategic Lawsuit Against
Public Participation) statute, but the trial court denied
the motion. The CSU appealed, and the Court of
Appeal reversed.
A SLAPP lawsuit is a civil lawsuit aimed at
preventing citizens from exercising their political
rights or punishing those who have done so. In 1992,
the Legislature enacted section 425.16, the anti-SLAPP
statute, which permits the filing of a special motion
to strike in order to expedite the early dismissal of
unmeritious claims. In order to succeed on a motion
to strike, the defendant must show that the plaintiff’s
cause of action arises from an act by the defendant
15
in furtherance of the defendant’s right of petition or
free speech in connection with a public issue, i.e., that
it arises from a protected activity. If the defendant
makes this showing, the complaint will be dismissed
unless the plaintiff can establish a probability that he
will prevail on his claim.
In order to show that a plaintiff’s cause of action
arose from a defendant’s “protected activity,”
the defendant must show that his act constituted
protected activity, and that the cause of action arose
from that protected activity. An act in furtherance of
a person’s right of petition or free speech includes
“any written or oral statement or writing made in
connection with an issue under consideration or
review by a legislative, executive, or judicial body, or
any other official proceeding authorized by law.”
The CSU claimed that the RTP proceedings qualify
as an “official proceeding authorized by law,” and
that the reviews and evaluations given to Park during
the RTP process are therefore covered as statements
or writings “made in connection with an issue under
consideration or review” in the RTP proceedings. The
Court of Appeal agreed.
The CSU then had to show that Park’s claims arose
out of that protected activity. The Court of Appeal
held that the gravamen of Park’s complaint is the
CSU’s decision to deny him tenure, and reasoned that
the decision was entirely based on the evaluations
conducted during the RTP process. Outside of the
RTP process, Park failed to provide any basis for his
discrimination claims. Therefore, the Court of Appeal
held that the CSU met its burden on the first step of
its anti-SLAPP motion to strike, and the trial court
erred when it denied the CSU’s motion. Because
the trial court denied the motion, it never analyzed
the second step of whether Park demonstrated a
probability of prevailing on his claims. Thus, the
Court of Appeal remanded to the trial court for
further proceedings.
Park v. Board of Trustees of the California State University
(2015) ___ Cal.App.4th ____ [2015 WL 5049636].
Note:
While this case demonstrates the potential use of an
anti-SLAPP motion, it is important to note that it
is rare for an employee’s discrimination claim to be
entirely based on “protected activity.” Here, the entire
September 2015
case revolved around Park’s tenure review process,
a process that the Court held qualified as an “official
proceeding authorized by law.” If, on the other hand,
an employee claimed discrimination after being denied
a promotion but the agency’s promotion process was
not an “official proceeding authorized by law,” and/
or she asserted that she was subjected to unwarranted
discipline, the employee’s lawsuit likely could not be
entirely stricken with an anti-SLAPP motion.
Police Union Could Not Prevent Los Angeles Times
From Publishing Article Potentially Containing
Confidential Personnel Information.
In 2010, the County of Los Angeles merged the Los
Angeles County Office of Public Safety (OPS) with
the Los Angeles County Sheriff’s Department (LASD).
OPS officers who wanted to work for LASD were
required to complete a 17-page application form,
which asked for (among other things), the names and
addresses of family members, previous employment,
current debts, as well as information about whether
the officer had ever been arrested, been the subject
of a call to the police, or had their driver’s license
suspended or revoked. While the application form
did not state that the provided information would be
kept confidential, as of at least September 2013, LASD
“assured” applicants of the “confidential nature” of
the application.
In July 2013, two LASD deputies who formerly
worked for OPS received telephone calls from Robert
Faturechi, a reporter for the Los Angeles Times.
Faturechi told one deputy that he had a copy of the
deputy’s complete background investigation file, and
that he had obtained other background files from a
source at LASD. Faturechi asked a second deputy
about his disciplinary record when he worked at OPS.
Faturechi told both deputies that he was writing an
article for the Times about LASD’s hiring of former
OPS deputies.
The Association for Los Angeles Deputy Sheriffs
(ALADS), the union representing deputy sheriffs in
LASD, filed a complaint against the Times seeking
a temporary restraining order and preliminary and
permanent injunctions. ALADS sought to bar the
Times from releasing or publishing any information
obtained from or contained in the background
investigation files. The trial court denied ALADS’
application for an injunction on the grounds that
Education Matters
16
ALADS failed to specifically identify the “personal”
information that Faturechi would be publishing and
that the evidence was too speculative to impose a
prior restraint on the Times’ free speech rights.
The Times then filed an anti-SLAPP motion,
asserting that the injunction ALADS sought would
be an unconstitutional prior restraint. The trial
court granted the anti-SLAPP motion, and ALADS
appealed. The Court of Appeal affirmed.
In order to succeed on an anti-SLAPP motion,
the moving party must show that the challenged
causes of action arise from protected activity. If
the moving party makes this showing, the burden
shifts to the other party to demonstrate a probability
of prevailing on its claims. ALADS asserted that
the Times did not meet its burden on the first step
because the Times obtained the LASD files “through
criminal means.” However, the Court of Appeal
agreed with the trial court that ALADS presented no
admissible evidence that Faturechi or anyone else at
the Times stole anything.
The Court also noted the long line of federal and
California cases discussing the protection the press
enjoys under the First Amendment where there
have been allegations that the press published or
disclosed illegally-obtained content. Therefore,
the Court of Appeal held that the illegal conduct
exception did not apply.
The Court of Appeal then analyzed whether the
injunction ALADS sought was an unconstitutional
prior restraint. ALADS claimed that it alleged a
cause of action for invasion of privacy and the
injunction it sought was not a prior restraint.
However, the Court held that any privacy right
contained in the deputies’ employment applications
belongs to the deputies (and LASD) and not to
ALADS, the deputies’ labor union. In any event, the
Court held that whether or not ALADS adequately
pled an invasion of privacy claim was irrelevant
as the injunction ALADS sought constituted an
unconstitutional prior restraint. A restraint on
publication by the press is a prior restraint, and
the cases invalidating prior restraints “are legion.”
While ALADS argued that the injunction was not a
prior restraint because it was “content neutral,” the
Court disagreed, and noted ALADS’ failure to cite
any cases upholding an injunction that barred the
press from reporting or publishing news articles.
The Court of Appeal affirmed the trial court’s grant
of the Times’ anti-SLAPP motion.
Association for Los Angeles Deputy Sheriffs v. Los Angeles
Times Communications LLC (2015) ___ Cal.App.4th ____
[2015 WL 4934581].
Note:
This case deals exclusively with the narrow issue of
whether a union could prevent a newspaper from
publishing or printing certain information. As the
Court of Appeal notes, the press enjoys “extraordinary
protection against prior restraints,” and courts
are loath to prohibit the press from disseminating
information, regardless of the source. However, just
because the press cannot be prevented from publishing
information does not mean that a party who illegally
releases or obtains confidential information is safe
from discipline or criminal prosecution. Agencies
have a duty to keep peace officer records confidential,
and should initiate an investigation if they suspect
that one of their employees has released confidential
records.
ARBITRATION
Arbitration Agreement Incorporating AAA Rules
Showed Intent to Allow Arbitrator to Decide
Whether Agreement Permitted Class Action Claims.
Michael Parnow, Shawn Lisenby, Bob Andrade,
Gabriel Bautista, and Saiyaz Abdul (Plaintiffs), who
were employed by Universal Protection Service,
LP and Universal Services of America, Inc. (UPS),
worked as armed security guards at the Yolo County
Superior Court. Plaintiffs filed a class action against
UPS alleging that they were not reimbursed for
equipment or training costs, and that they were
fired, and not paid their wages, after filing an
administrative complaint as required by the Labor
Code Private Attorneys General Act of 2004 (PAGA)
(Labor Code section 2698 et seq.). Plaintiffs then filed
an amended complaint as a “representative action”
under PAGA and petitioned to compel class-wide
arbitration. They attached an arbitration agreement,
drafted by UPS and signed by all Plaintiffs, which
provides that all employment claims “will be
submitted to final and binding arbitration before a
neutral arbitrator . . . for determination in accordance
with the American Arbitration Association’s [AAA]
17
National Rules for the Resolution of Employment
Disputes…”
UPS filed a general denial, asserting that the
class action claims were barred by the arbitration
agreement. It also filed a cross-complaint seeking a
declaration that the court, not the arbitrator, should
decide whether class action relief was barred by
the arbitration agreement, and that the arbitration
agreement barred class actions. UPS then filed a
motion to compel individual arbitration and stay the
proceedings, which the trial court denied. UPS filed
a petition for writ of mandate, which the Court of
Appeal denied.
Under California law, parties to a contract may
incorporate another document by reference into
the terms of the contract as long as the reference is
clear and unequivocal, the reference is called to the
attention of the other party, and the terms of the
incorporated document are known or easily available
to the contracting parties.
In this case, the arbitration agreement provides
that disputes “will be submitted to final and
binding arbitration before a neutral arbitrator . .
. for determination in accordance with the [AAA
Rules].” The AAA Rules provide: “The parties
shall be deemed to have made these rules as part
of their arbitration agreement whenever they have
provided for arbitration by the [AAA].” Thus, the
Court of Appeal held that the parties made the
AAA Employment Rules part of their employment
contract.
The rules further provide that the “arbitrator shall
have the power to rule on his or her own jurisdiction,
including any objections with respect to the existence,
scope, or validity of the arbitration agreement.” The
AAA Supplementary Rules for Class Arbitrations
(Class Rules) apply to “any dispute arising out of an
agreement that provides for arbitration pursuant to
any of the rules of the [AAA] where a party submits
a dispute to arbitration on behalf of or against a
class or purported class, and shall supplement any
other applicable AAA rules.” The Class Rules also
state that the arbitrator, upon appointment, “shall
determine as a threshold matter . . . whether the
applicable arbitration clause permits the arbitration
to proceed on behalf of or against a class.”
Based on this language, the Court of Appeal held
that the Class Rules, which provide that an arbitrator
September 2015
will decide the threshold issue of whether class
arbitration is appropriate, also became part of the
parties’ arbitration agreement. It further held that the
parties’ agreement to conduct their arbitration under
the AAA Rules (and, by extension, the Class Rules)
constituted clear and unmistakable evidence of their
shared intent that the arbitrator decide whether
the agreement permits arbitration of class claims.
Therefore, the Court of Appeal denied UPS’s petition
for writ of mandate.
Universal Protection Service, LP v. Superior Court (2015) 239
Cal.App.4th 697.
Note:
It is not uncommon for a memorandum of
understanding between an agency and a union to
provide that disciplinary and grievance appeals will
be submitted to arbitration, and that the rules of the
American Arbitration Association will be followed.
It is important to be aware that by including this
language, you are incorporating the rules into your
agreement and will be bound by them. This issue can
arise, for instance, when a union submits a grievance
that the agency contends is not grievable/arbitrable.
Under the AAA rules, the agency may have to submit
the issue of arbitrability to the arbitrator.
BACKGROUND CHECKS
Company Hired to Conduct Background Checks, and
Employer That Hired Company, Were Required to
Comply with Notice Requirements of Investigative
Consumer Reporting Agencies Act.
Eileen Connor worked as a school bus driver for
Laidlaw Education Services. In October 2007,
Laidlaw was acquired by First Student, Inc. and
First Transit, Inc. (First). First hired HireRight
Solutions, Inc. and HireRight, Inc. (HireRight)
to conduct background checks on Connor and
all former Laidlaw school bus drivers and aides.
Before conducting the background checks, First
sent each employee a packet that (1) advised that
the report may include certain information, such
as work experience, drugs/alcohol use, and general
reputation, (2) informed the employee that he or she
may view the file, or obtain a copy, (3) included a
box the employee could check if he or she wanted a
copy of the report and (4) included an authorization
Education Matters
18
and release that released First and HireRight from all
claims and damages.
Connor filed suit against First, alleging that the notice
did not satisfy the requirements of the Investigative
Consumer Reporting Agencies Act (ICRAA) (Civ.
Code, section 1786 et seq.), and that First did not
obtain her written authorization. First moved for
summary judgment on the ground that the ICRAA
is unconstitutionally vague as applied to Connor’s
claims that First violated the statute. The trial court
granted the motion, and Connor appealed. The Court
of Appeal reversed.
The ICRAA governs agencies (and those to whom it
provides information) with regard to investigative
consumer reports, i.e., reports containing information
on a consumer’s character, general reputation,
personal characteristics, or mode of living. It
provides that “[a]n investigative consumer reporting
agency” may furnish an “investigative consumer
report” to another person only under certain limited
circumstances, including when it has reason to
believe the person “[i]ntends to use the information
for employment purposes.” However, unless the
report “is sought for employment purposes other
than suspicion of wrongdoing or misconduct by
the subject of the investigation,” the person seeking
or procuring the report must, among other things,
provide a clear and conspicuous disclosure in writing
to the consumer before the report is procured that
provides certain specified disclosures, and the
consumer must authorize the procurement of the
report in writing.
In this case, First admitted that it required HireRight
to prepare reports that included the subject’s
criminal records, sex offender status, address history,
driving records, and employment history, and that
the background checks were used to confirm that
Connor was properly qualified to perform her job
duties. Thus, the Court of Appeal held that there was
no question that HireRight and First were required to
comply with the applicable provisions of the ICRAA.
The crux of First’s motion for summary judgment,
and its argument on appeal, is that the ICRAA is
unconstitutionally vague because, while it could
apply to the background checks at issue, another
statute, the Consumer Credit Reporting Agencies
Act (CCRAA) (Civ. Code, section 1785.1 et seq.)
could also apply, and both cannot apply to the
same report. Indeed, in Ortin v. Lyon Management
Group, Inc. (2007) 157 Cal.App.4th 604, the Court of
Appeal held that when a report can be categorized
as either character information (governed by the
ICRAA) or creditworthiness information (governed
by the CCRAA), the statutory scheme cannot
be constitutionally enforced because it does not
give adequate notice of which act governs that
information.
The Court of Appeal rejected this argument. First, it
noted that it was not entirely clear that the CCRAA
applied to the background checks at issue. The
CCRAA only applies to information “bearing on
a consumer’s credit worthiness, credit standing,
or credit capacity,” and there was no evidence
presented in this case that the background checks
sought or included information bearing on the
subjects’ credit worthiness, credit standing, or credit
capacity. Further, even if the CCRAA applies, the
Court stated that nothing in the language of either
act precludes the application of both acts to the same
consumer report. When two statutes are capable of
coexistence, it is the duty of courts to give effect to
both. An agency that furnishes a report containing
creditworthiness information and character
information, and the person that causes that report to
be made, can comply with each act without violating
the other. Therefore, the Court of Appeal reversed
the trial court’s grant of summary judgment.
Connor v. First Student, Inc. (2015) 239 Cal.App.4th 526.
Note:
The ICRAA applies to government employers and
imposes stringent requirements on employers that
utilize the services of consumer reporting agencies to
conduct background checks. LCW maintains sample
forms and checklists that summarize the ICRAA
process and requirements. Agencies must ensure that
they, and any consumer reporting agencies they use,
are aware of and comply with ICRAA’s detailed notice
and disclosure requirements.
19
ACA CORNER
IRS Releases Additional Guidance on ACA Cadillac
Tax.
The IRS recently released additional guidance,
Notice 2015-52, that included a request for comments
regarding the upcoming (2018) excise tax. The excise
tax will impose a 40% tax on employer provided
health benefits in excess of the annual statutory
dollar limit. The IRS will calculate the tax on the
“cost of applicable coverage.” The Notice indicates
that after the IRS reviews comments and feedback,
it will issue proposed regulations. The Notice
addresses several topics, including the following:
Who Will Be Liable for Paying the Excise Tax?
Under the Internal Revenue Code (“Code”) the
coverage provider is liable for any applicable
excise tax. The statute defines a coverage provider
as the health insurance issuer (for group health
plan), the employer (for an HSA), and “the person
that administers the plan benefits” (for all other
applicable coverage).
The IRS is considering two potential definitions for
“the person that administers the plan benefits:”
(1) “person responsible for performing the dayto-day functions that constitute the administration
of plan benefits.” For example, a third-party
administrator for self-insured benefits. Or
(2) “the person that has the ultimate authority
or responsibility under the plan or arrangement
with respect to the administration of plan benefits
(including final decisions on administrative
matters).” For example, instead of the person who
performs the day-to-day operations, this person
would be identified in the plan documents.
How Will the Cost of Applicable Coverage Be
Determined?
The IRS anticipates that the taxable period will be the
calendar year for all taxpayers. Employers would
need to determine the cost of applicable coverage
shortly after the end of that year, so that coverage
providers can timely pay applicable taxes. The
IRS seeks comments regarding the expected time
September 2015
employers will need to run calculations on the cost
of applicable coverage for insured plans, self-insured
plans, HSAs, FSAs, and HRAs.
The Notice contemplates that if a person other than
the employer is the coverage provider liable for the
excise tax, that person will likely pass along part
or all of the tax to the employer. If the coverage
provider passes the excise tax through to the
employer (and receives reimbursement), the excise
tax reimbursement will be additional taxable income
to the coverage provider. The IRS also anticipates
that coverage providers will pass this additional
income tax down to employers as well. The IRS is
requesting comments on (1) various administrative
approaches for excluding any excise tax
reimbursement from the cost of applicable coverage
and (2) whether the income tax reimbursement could
also be excluded from the cost of applicable coverage.
Age and Gender Adjustment to Annual Dollar Limit
The Code provides two baseline per-employee dollar
limits for 2018 (i.e. $10,200 for self-only coverage
and $27,500 for other than self-only coverage). The
IRS will impose a 40% excise tax on the amount of
benefits over these limits. However, the Code also
provides for adjustments of these annual dollar
limits based on age and gender of the employees of a
particular employer. In order to obtain a baseline for
age and gender statistics of the national workforce,
the IRS is considering using a combination of several
surveys published by the Department of Labor.
With regard to the age and gender of individual
employees, the IRS anticipates using the first day of
the plan year as a measuring point for an employer’s
population. The IRS seeks comments on these
approaches and plans to issue guidance in the form
of adjustment tables to help calculate proper age and
gender adjustments.
Possible Safe Harbor Related to FSAs with Employer
Flex Credits
The Code provides that the cost of applicable
coverage under a Flexible Spending Account (FSA)
is the amount of the employee’s salary reduction
election or the total reimbursements under the FSA,
whichever is greater. Under this rule, the employer
would not know the cost of applicable coverage of
the FSA until some point after the end of the taxable
year.
20
The IRS is considering a safe harbor to avoid the
double counting of salary deferral amounts carried
over from year to year when determining the cost of
coverage. If the safe harbor is adopted, the cost of
applicable coverage for the plan year would be the
amount of an employee’s salary reduction without
regard to carry-over amounts. The IRS is also
considering other safe harbors as well.
Other areas where the IRS seeks comment include
employer aggregation, pro-rata allocation of
contributions to account-based plans, forms that will
be used to communicate excise tax information to the
IRS and coverage providers, and how long coverage
providers have to pay any owed taxes.
Our prior post on the Cadillac Tax may be found
at: http://www.lcwlegal.com/The-Affordable-CareActs-Cadillac-Tax--What-Employers-Need-to-Know.
Notice 2015-52 can be found at: http://www.irs.gov/
pub/irs-drop/n-15-52.pdf.
IRS Announces New Instructions for ACA Reporting
Forms.
The IRS released updated draft instructions for
completing Forms 1094-B, 1095-B, 1094-C, and 1095C. The draft instructions are mostly unchanged from
prior version. While noting that the instructions
are unlikely to change significantly before being
finalized, the IRS advised that employers should not
rely on these instructions as the final word. The IRS
will provide a final version of the instructions before
employers must submit the reporting forms.
The draft instructions for filing Forms 1094-B and
1095-B can be located at:
http://www.irs.gov/pub/irs-dft/i109495b--dft.pdf.
The draft instructions for filing Forms 1094-C and
1095-C can be located at:
http://www.irs.gov/pub/irs-dft/i109495c--dft.pdf.
Our recent blog post discusses the instructions along
with general tips for successful compliance with
reporting requirements.
Education Matters
President Signs Legislation Exempting Veterans
From Being Counted Under the ACA Employer
Mandate.
The ACA’s employer mandate requires applicable
large employers, with 50 or more full-time employees
or full-time equivalents, to offer health insurance
coverage to their employees or face potential
penalties. President Barack Obama recently signed
legislation that exempts veteran employees who
receive health coverage under TRICARE or the
Veterans Administration, from the applicable large
employer analysis. The main goal of the bill is to
encourage and incentivize small employers to hire
more veterans. The bill applies retroactively to the
beginning of January 2014.
Employers performing their Applicable Large
Employer determination should not count these
veterans as full-time employees and should not
include their hours of service in the calculation.
Note that these veteran employees who are working
full-time still could trigger potential penalties if
their applicable large employer fails to offer them
affordable minimum essential coverage that provides
minimum value.
The text of the legislation is available at:
https://www.congress.gov/114/bills/hr3236/BILLS114hr3236enr.pdf.
IRS System for Electronic Filing ACA Information
Returns.
The IRS developed the Affordable Care Act
Information Returns (AIR) Program to allow
employers to file ACA information reporting forms
electronically, and recently issued draft procedures
for utilizing the AIR Program when filing Forms
1094-B, 1095-B, 1094-C, and 1095-C. Employers
should either designate a responsible official or
a third-party who will be responsible for ACA
reporting on the employer’s behalf.
To use the AIR program, issuers (employers filing
their own ACA information returns) and transmitters
(third-party sending information directly to the IRS
on behalf of an employer) must first register with
the IRS. The registration process involves providing
personal and taxpayer information so the IRS can
verify the identity of issuers and transmitters. Once
21
September 2015
registered, issuers and transmitters will receive a
unique Transmitter Control Code (TCC) that will be
used to submit the electronic filings.
Additional information about AIR can be found at:
http://www.irs.gov/for-Tax-Pros/SoftwareDevelopers/Information-Returns/Affordable-CareAct-Information-Return-AIR-Program.
Issuers and transmitters should register and
familiarize themselves with the AIR system so they
will be ready to file in early 2016.
For more information on
the latest ACA updates,
please visit:
www.lcwlegal.com/ACA
The IRS draft publication can be viewed at:
http://www.irs.gov/PUP/for_taxpros/
software_developers/information_returns/Draft_
Pub_5165_04_2015.pdf.
§
Congratulations to our San Francisco Associate, Megan Lewis. She and
her husband, Wes welcomed the arrival of son, Sam.
We wish them much happiness!
Tips from the Table
We are excited to continue our new video series – Tips from the Table.
In these monthly videos, members of LCW’s Labor Relations and
Negotiations Services practice group will provide various tips that
can be implemented at your bargaining tables. We hope that you
will find these clips informative and helpful in your negotiations.
To watch these videos, visit our blog:
www.CalPublicAgencyLaborEmploymentBlog.com
22
Education Matters
WE ARE PLEASED TO ANNOUNCE
Melanie Chaney | Heather DeBlanc | Frances Rogers
Have Been Named Partners With The Firm
Melanie Chaney represents and advises cities, counties, community college districts, school districts,
public safety departments, and special districts regarding various employee and labor relations matters
and compliance with state and federal employment laws. She also negotiates, drafts and provides guidance
for interpreting collective bargaining agreements and memoranda of understanding, as well as handles
all aspects of labor disputes including unfair labor practice charges. Melanie received her JD from the
University of Southern California Law School.
Heather DeBlanc practices employment, education, construction and business law, representing both
public and private sector clients in litigation, alternative dispute resolution, and transactional matters.
Heather has developed an expertise advising employers on the Patient Protection and Affordable Care Act
(ACA), as well as other related healthcare laws. She has more than a decade of experience in construction
law, helping clients develop efficient and smooth running construction projects. Heather received her JD
from the Pepperdine University School of Law.
Frances Rogers provides representation and legal counsel to cities, counties, special districts, law
enforcement departments, fire agencies, community colleges, and school districts in all matters pertaining
to labor and employment law. Frances has extensive experience advising and advocating for local
government agencies on retirement issues involving CalPERS, ‘37 Act county retirement systems, STRS, and
other local municipal pension systems. She also has experience in labor negotiations and matters involving
labor relations. Frances received her JD from the Santa Clara University School of Law.
For more information visit: www.lcwlegal.com/Partners-2015
23
September 2015
Advanced Disability GPS for
Public Employers –
An A to Z Map for navigating
your way through the disability
process
November 17 , 2015 | 8:30a.m. - 4:00p.m. | South Gate, CA
First Session: My employee has informed me he/she has a disability, now what?
We will review the FEHA/ADA requirements for disabilities, obtaining medical certifications
and re-certifications and overlapping workers compensation claims. Through multi-faceted
hypotheticals we will also look at the applicability and administration of different leave laws,
including Family Medical Leave Act, California Family Medical Rights Act, Pregnancy Disability
Leave, and Labor Code section 4850.
Second Session: Accommodate, Discipline or Separate?
In the afternoon session we will discuss the intricacies of the reasonable accommodation process,
what to do when you are confronted with a disabled employee who has engaged in misconduct
and the intersection between discipline and disability. We will also discuss what you should do
when the interactive process breaks down and whether you can separate an employee or must
file for disability retirement. Finally, we will also discuss strategies for when CalPERS rejects a
disability retirement application.
Lunch will be provided
Who Should Attend?
Human Resources, Legal, Risk Management, Senior Management, and anyone who oversees
diasbility and other leave matters.
Pricing:
$225 per person for consortium members
$250 per person for non-consortium members
Group Discount – send 3 or more employees -$210 per person for members; $235 per person for non-members
For more information regarding the Disability Retirement Academy, contact Jacqueleen Balderas
at [email protected] or 310.981.2087 or visit:
http://lcwlegal.com/Disability-Retirement-GPS
Education Matters
24
FEBRUARY 24-26, 2016 | SAN FRANCISCO
LCWLEGAL.COM | #LCWAC16
2016 PUBLIC SECTOR EMPLOYMENT LAW CONFERENCE
This three-day event is a key
resource for Public Agency
Management and includes
a variety of informative and
engaging presentations that
offer practical lessons for
success in the workplace.
Our Conference features
over 20 presentations on a
variety of imperative labor
and employment law topics.
Also, for the first time, we
are offering a Pre-Conference
workshop on Costing.
As always, we will continue
to offer our Ask the Expert
Booth. Our attorneys will
be available over the course
of the Conference and will
answer any of your pressing
legal questions.
LEARN MORE ABOUT OUR CONFERENCE AT
LCWLEGAL.COM/LCW-CONFERENCE
25
September 2015
LCW Webinars
Compensation Earnable and Pensionable Compensation for
CalPERS Agencies – What is, What is Not, and How to Write It
Tuesday, October 13, 2015 | 10 AM - 11 AM
CalPERS agencies need to be aware of the strict rules that determine whether an item
of pay is compensation earnable (Classic members) or pensionable compensation
(New members). CalPERS focuses on this issue in their audits of agencies and in its
review of individual retirees. This webinar will cover the components of compensation
earnable/pensionable compensation and how to draft MOU language that not only
accomplishes the agency’s goals of a pay item being reportable or not. The webinar
will also show you the language you need to help protect the agency from liability in
the future.
Who Should Attend?
Human Resources Professionals, City Attorneys, Finance Professionals
Steve Berliner
http://www.lcwlegal.com/RHD-13-Compensation
Preparing for ACA Reporting as the Deadline
Approaches
Tuesday, October 20, 2015 | 10 AM - 11 AM
The first set of Affordable Care Act reporting forms are due in early 2016 and large
employers are anxiously gathering their data to prepare for the upcoming deadlines.
Applicable large employers (and employers offering self-insured plans) will need to
report certain monthly data from 2015, including the identity of full-time employees
and the health coverage offered to those employees. The IRS recently released draft
versions of IRS Forms 1095-C, 1094-C, 1095-B, and 1094-B and corresponding
draft instructions for reporting 2015 data. The IRS will use the information reported
on these forms to determine potential penalties under the Affordable Care Act’s
shared responsibility provisions and individual mandate. We will discuss these
reporting requirements in depth, including who must report, when the reporting is
required, the data that must be reported, and available reporting methods. This
webinar will also include an in-depth discussion on how to complete the reporting
forms, including reporting on COBRA beneficiaries.
Heather DeBlanc &
Shardé Thomas
Who Should Attend?
Department Heads, Human Resources Staff, Finance Staff, Benefits Staff, and any employees who will be
responsible for your agency’s ACA compliance, especially those completing reporting forms.
http://www.lcwlegal.com/RHD-ACA-10-20
26
Education Matters
We are excited to present the Liebert Library - a modern way to access our trusted collection
of legal training and reference materials that cover a number of
public-sector labor and employment topics.
Reduce your legal costs by referencing our workbooks and downloading our sample forms,
policies and checklists.
For more information, please visit:
www.liebertlibrary.com
Did you miss any of our webinars?
Register to view our
archived recordings!
www.lcwlegal.com/webinars
27
September 2015
Management Training Workshops
Firm Activities
Consortium Training
Oct. 6
“The Meaning of At-Will, Part-Time and Contract Employment”
South Bay ERC | Santa Monica | T. Oliver Yee
Oct. 7
“Ethics in Public Service” and “Preventing Workplace Harassment, Discrimination and Retaliation”
Coachella Valley ERC | Palm Desert | Frances Rogers
Oct. 8 “Public Service: Understanding the Roles and Responsibilities of Public Employees”
Gateway Public ERC | Norwalk | Alex Polishuk
Oct. 8
“Leaves, Leaves and More Leaves” and “Workplace Bullying: A Growing Concern”
Orange County Consortium | Cypress | Jennifer Rosner
Oct. 8
“Front Line Defense”
San Mateo County ERC | Redwood City | Richard Bolanos
Oct. 12
“Family Educational Rights and Privacy Act (FERPA)”
Bay Area CCD ERC | Cupertino | Laura Schulkind & Heather Coffman
Oct. 14
“Hiring the Best While Developing Diversity in the Workforce: Legal Requirements and Best Practices for Screening Committees”
Northern CA CCD ERC | Folsom | Laura Schulkind
Oct. 15
“Front Line Defense”
Los Angeles County Human Resources Consortium | Los Angeles | Elizabeth Tom Arce
Oct. 15
“Badda Bing, Badda Boom: Don’t Delay in Creating a High Performance Department and Agency” and “Prevention and Control of Absenteeism and Abuse of Leave”
Monterey Bay ERC | Watsonville | Jesse Maddox
Oct. 15
“Leaves, Leaves and More Leaves” and “A Supervisor’s Guide to Labor Relations”
West Inland Empire ERC | Diamond Bar | Laura Kalty
Oct. 16
“Leaves, Leaves and More Leaves” and “Prevention and Control of Absenteeism and Abuse of Leave”
Central Coast Personnel Council | Santa Barbara | Lee T. Patajo
Oct. 16
“Creating a Culture of Respect”
Southern CA CCD ERC | Walnut | Frances Rogers
Oct. 21
“Private School Law 101”
Builders of Jewish Education Consortium | Encino | Michael Blacher & Max Sank
Oct. 27
“Difficult Conversations”
Bay Area Independent Schools | Foster City | Linda K. Adler
Oct. 29
“The Art of Writing the Performance Evaluation” and “Badda Bing, Badda Boom: Don’t Delay in Creating a High Performance Department and Agency”
NorCal ERC | San Ramon | Gage Dungy
Oct. 29
“Public Sector Employment Law Update”
San Joaquin Valley ERC | Merced | Richard S. Whitmore
Oct. 29
“Introduction to Public Service”
San Joaquin Valley ERC | Merced | Kimberly A. Horiuchi
Education Matters
28
Customized Training
Oct. 6
“Guide to Lawful Termination”
CSRMA | Union City | Richard Bolanos
Oct. 6
“The Disability Interactive Process”
ERMA | Kerman | Che I. Johnson
Oct. 6
“Train the Trainer: Harassment Prevention”
Liebert Cassidy Whitmore | San Francisco | Suzanne Solomon
Oct. 6
“Student Condcut Investigations”
Prospect Sierra School | El Cerrito | Linda K. Adler
Oct. 7
“MOU’s, Leaves and Accommodations”
City of Santa Monica | Laura Kalty
Oct. 7
“Mandated Reporting”
East Bay Regional Park District | Oakland | Erin Kunze
Oct. 8 Oct. 8 “Guide to Lawful Termination”
CSRMA | Goleta | T. Oliver Yee
“Preventing Workplace Harassment, Discrimination and Retaliation”
Mariposa County | Kimberly A. Horiuchi
Oct. 13
“Preventing Workplace Harassment, Discrimination and Retaliation”
East Bay Regional Park District | Oakland | Erin Kunze
Oct. 13
“Mandated Reporting”
Harbor Day School | Corona del Mar | Max Sank
Oct. 14
“Preventing Workplace Harassment, Discrimination and Retaliation”
City of Santa Barbara | T. Oliver Yee
Oct. 14,15
“Preventing Workplace Harassment, Discrimination and Retaliation”
Mendocino County Probation Office | Ukiah | Heather R. Coffman
Oct. 15
“Preventing Workplace Harassment, Discrimination and Retaliation”
City of Fremont | Jack Hughes
Oct. 22
“Performance Evaluations”
East Bay Regional Park District | Oakland | Erin Kunze
Oct. 22
“Code of Ethics”
Superior Court of California, County of Orange | Santa Ana | Mark Meyerhoff
Oct. 23
“The Brown Act”
Antelope Valley Community College District | Lancaster | Pilar Morin
Oct. 26
“Preventing Workplace Harassment, Discrimination and Retaliation”
City of Fresno | Shelline Bennett
Oct. 27
“Preventing Workplace Harassment, Discrimination and Retaliation”
City of El Segundo | Lee T. Patajo
Oct. 27
“Intro to FLSA” and “Managing Leave of Absence”
City of Pasadena | T. Oliver Yee
Oct. 28
“Preventing Workplace Harassment, Discrimination and Retaliation”
City of Palo Alto | Jack Hughes
Oct. 28
“Supervisor’s Survival Guide”
City of Stockton | Gage Dungy
29
September 2015
Oct. 29
“Guide to Lawful Termination”
CSRMA | Ontario | T. Oliver Yee
Oct. 29
“Preventing Workplace Harassment, Discrimination and Retaliation”
Town of Hillsborough | Jack Hughes
Oct. 30 “Preventing Workplace Harassment, Discrimination and Retaliation”
County of San Luis Obispo | Laura Kalty
Speaking Engagements
Oct. 1
“Pension Reform and the Legal Aspects of Reducing Pension and Health Insurance Costs”
League of California Cities Annual Conference Attorney Track | San Jose | Jack Hughes
Oct. 2
“CalPERS Audits - How to City Attorneys Can Prepare, Survive and Litigate”
League of California Cities Annual Conference Attorney Track | San Jose | Steven M. Berliner
Oct. 7 “Focus On: Investigations - Lessons Learned, Tips, Best Practices”
Orange County Human Resources Consortium (OC-HRC) October Monthly Meeting | Tustin |
Danny Y. Yoo
Oct. 13
“Executive Briefing: What Police Chiefs Need to Know About Labor Relations and Personnel Issues”
California Police Chief’s Association (CPCA) Role of the Chief Class | San Diego | Laura Kalty
Oct. 13
“Costing Workshop”
Public Employer Labor Relations Association of California (PELRAC) Pre-Conference Workshop |
Long Beach | Peter J. Brown & Kristi Recchia
Oct. 15
“PERB/Legal Update”
Public Employer Labor Relations Association of California (PELRAC) 2015 Annual Conference |
Long Beach | Peter J. Brown
Oct. 16
“The Brown Act: Laws You Needs to Know Associated with Public Meetings”
Municipal Management Association of Northern California (MMANC) Annual Conference | Sacramento |
Jack Hughes
Oct. 19
“Personnel Pitfalls: What You Need to Know About Public Employment Laws”
California Special Districts Association (CSDA) Board Secretary/Clerk Conference | South Lake Tahoe | Jack Hughes
Oct. 19
“What’s a Public Record? How to Comply with the Public Records Act”
CSDA Board Secretary/Clerk Conference | South Lake Tahoe | Gage Dungy
Oct. 20
“Keeping Up with the Brown Act”
CSDA Board Secretary/Clerk Conference | South Lake Tahoe | Gage Dungy
Oct. 21
“Legal Aspects of the Student Application Process”
Educational Records Bureau | Coronado | Judith Islas
Oct. 21 “Enforcing Payment Provisions in Enrollment Agreements: What California Private Schools Need to Know”
Liebert Cassidy Whitmore | Webinar | Christopher Fallon & Alex Polishuk
Oct. 21
“FLSA Today!”
California Public Employers Labor Relations Association (CALPELRA) Annual Conference | Monterey | Peter J. Brown & Elizabeth Tom Arce
Oct. 21
“Behind the Scenes of a Disciplinary Hearing: Valuable Lessons”
CALPELRA Annual Conference | Monterey | Laura Kalty & Mark Meyerhoff
Education Matters
30
Oct. 21
“Changes in Managing Personnel: Top 10 Areas for Updating Public Agency Personnel Practices”
CALPELRA Annual Conference | Monterey | Gage Dungy & T. Oliver Yee
Oct. 22
“It’s About Process, Retention, And Access: A Public Records Act (PRA) Primer”
CALPELRA Annual Conference | Monterey | Shelline Bennett & T. Oliver Yee
Oct. 22
“Labor Relations Game Show”
CALPELRA Annual Conference | Monterey | J. Scott Tiedemann & Laura Kalty
Oct. 22 “Next with PEPRA: An Update for 2015 and Beyond”
CALPELRA Annual Conference | Monterey | Steven M. Berliner & Frances Rogers
Oct. 23
“Preparing for Labor Negotiations in 2016”
CALPELRA Annual Conference | Monterey | Peter J. Brown & Donna Williamson
Oct. 23
“How to Manage and Avoid Litigation Against Schools”
Educational Records Bureau | Coronado | Brian P. Walter
Seminars/Webinars
Oct. 6
“Train the Trainer: Harassment Prevention”
Liebert Cassidy Whitmore | San Francisco | Suzanne Solomon
Register Here: http://www.lcwlegal.com/82091
Oct. 7
“Performance Management: Evaluation, Documentation and Discipline”
Gold Country ERC | Webinar | Jack Hughes
Register Here: http://www.lcwlegal.com/Performance-Management-Webinar
Oct. 8
“Checking References: The Most Important Part of the Hiring Process”
San Diego ERC | Webinar | Danny Y. Yoo
Register Here: http://www.lcwlegal.com/References-Webinar
Oct. 13
“Pensionable Compensation for CalPERS and ‘37 Act Agencies - What is, What is not, and How to Write It”
Liebert Cassidy Whitmore | Webinar | Steve M. Berliner
Register Here: http://www.lcwlegal.com/RHD-13-Compensation
Oct. 14
“Internal Investigations in Light of Today’s Media and Culture: Strategies for a Transparent, Fair and Legally Compliant Investigation”
Liebert Cassidy Whitmore | Webinar | Geoffrey S. Sheldon & Erik M. Cuadros
Register Here: http://www.lcwlegal.com/internal-investigations
Oct. 15 “Terminating the Employment Relationship”
Mendocino County ERC | Webinar | Che I. Johnson
Register Here: http://www.lcwlegal.com/Terminating-the-Employment-Relationship-Webinar
Oct. 20
“2015 Instructions for ACA Reporting”
Liebert Cassidy Whitmore | Webinar | Heather DeBlanc & Shardé Thomas
Register Here: http://www.lcwlegal.com/RHD-ACA-10-20
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Copyright © 2015
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.
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