This update of school district labor and employment related legislative changes is issued by Kronick as part of a series of Legal Alerts about new education related laws from this latest 2014 legislative session. All laws are effective January 1, 2015, unless otherwise stated.
Teacher Termination Reform Bill – AB 215
AB 215 creates a new separate process for "egregious misconduct" as a cause for teacher suspension and dismissal under Education Code section 44932. "Egregious misconduct" consists of specific sexual misconduct crimes, substance abuse crimes, and child abuse. AB 215 establishes an expedited process for dismissal hearings when an employee is charged solely with egregious misconduct. (See Ed. Code 44944.1.) The expedited hearing must begin within 60 days of the employee’s demand for hearing and the Office of Administrative Hearings (OAH) must prioritize these cases over other dismissal cases when scheduling. The hearing is conducted by a single Administrative Law Judge (ALJ) instead of a 3-member Commission on Professional Competence panel. Also, the process allows admission of evidence regarding egregious misconduct that occurred more than 4 years prior to the initiation of the proceedings.
AB 215 also modifies the traditional procedural requirements, including elimination of the prohibition against serving a notice of suspension or dismissal (otherwise known as charges) between May 15th and September 15th. The revised process allows a school district to serve a teacher with charges (except for charges of unsatisfactory performance) at any time during the instructional year (Ed. Code 44936(a).). Charges can be served outside of the instructional year so long as they are personally served on the teacher. However, charges that are based solely on unsatisfactory performance can only be served during the instructional year at the school site where the teacher is physically employed.
Per the expedited process, a district will not be allowed to amend its charges within 90 days of a hearing unless it makes a showing of good cause. AB 215 eliminates traditional written discovery and instead requires the early disclosure of evidence prior to a due process hearing if a teacher is charged with more than only egregious misconduct. Initial disclosures, including witnesses and documentary evidence will be due 45 days from the teacher's demand for a hearing and a party's failure to make timely disclosures may result in exclusion of the evidence at the hearing.
For unpaid suspensions without pay, AB 215 allows employees who have been immediately suspended without pay to file a motion with OAH for reversal of the suspension within 30 days and a hearing must be held within 30 days of filing the motion. (Ed. Code 44939(c).) The ALJ must issue an order within 15 days of the hearing and if the suspension is not upheld, the district must provide the employee with lost wages, benefits, and compensation within 14 days of service of the order.
As to settlement agreements and Commission on Teacher Credentialing (CTC) reporting, districts are expressly prohibited from entering into settlement agreements that require removal of credible complaints of, substantiated investigations into, or discipline for egregious misconduct from a teacher's personnel files. Additionally, districts will be required to disclose the fact they made a report to the CTC about egregious misconduct when other school employers inquire about a potential applicant. (Ed. Code 44939.5.)
CTC Reporting – Amended Title 5, Calif. Code Regulations, Section 80303
Effective July 1, 2014, Section 80303 was revised to clarify what is considered "misconduct" for purposes of reporting a change of certificated employment status to CTC and what information must be reported. Prior language often resulted in over-reporting to include “misconduct” such as unsatisfactory performance or even layoffs, and failed to provide guidance to superintendents as to what documentation must be submitted. Section 80303 now requires CTC to be notified whenever, as a result of misconduct or while an allegation of misconduct is pending, an employee is: dismissed or non-reelected; resigns; is suspended or placed on unpaid administrative leave (as a final adverse employment action); retires; or is “otherwise terminated.” It was clarified that "otherwise terminated" shall not include or be interpreted to include: "a change of status that is solely for unsatisfactory performance … or a layoff or reduction in force[.]” Failure to make a report constitutes unprofessional conduct and CTC must now investigate a superintendent who fails to file a required report.
Information to be reported per revised Section 80303 must include “all known information about each alleged act of misconduct” to be organized as follows: name of credential holder; current address of credential holder; name of reporting district; name of last school or district assignment; explanation of the allegation of misconduct or pending allegation of misconduct; current contact information for all persons who may have information relating to the alleged misconduct; and any and all documentation related to the case.
Abusive Conduct Prevention Training – AB 2053
With AB 2053, the Legislature amended section 12950.1 of the Government Code by extending the sexual harassment training and education laws (i.e., “AB 1825 training”) to include abusive conduct prevention. Implemented by AB 1825 in 2007, Government Code section 12950.1 currently requires employers with fifty (50) or more employees to provide two hours of training and education regarding sexual harassment to supervisory employees every two years. This legislation expands the 1825 training requirement to include prevention of abusive conduct, as a component of the training and education.
“Abusive conduct” is defined as “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests." Examples of abusive conduct referenced in the new law include: "repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance." To be abusive the conduct must be repetitive, and a single act will not be considered abusive conduct unless it is "especially severe and egregious."
Prior Notice Regarding Changes Within Scope of Representation – AB 1611
AB 1611 revises the Educational Employment Relations Act (EERA) to require a public school employer to give "reasonable" written notice to the exclusive representative of the employer’s intent to make any change to a matter within the scope of representation of employees represented by the exclusive representative. The stated purposes for the written notice is to provide "exclusive representative a reasonable amount of time to negotiate with the public school employer regarding the proposed changes." Since the new law does not define what is considered "reasonable" written notice or what is considered "a reasonable amount of time" future clarifying guidance from the Public Employment Relations Board may be needed.
Revised CalSTRS Regulations – Creditable Compensation
The revisions to the CalSTRS regulations effective January 1, 2015, regarding what is considered creditable compensation will impact school district administrator contracts and certificated unit collective bargaining.
The regulations specify what is considered "creditable compensation" that can be credited toward the Defined Benefit Program for purposes of CalSTRS retirement. Per the regulations, salary is considered creditable compensation for purposes of CalSTRS retirement. "Salary" includes compensation that is (1) paid in cash for the performance of creditable service; (2) explicitly characterized as salary on a contract, salary schedule, or employment agreement; (3) used as a basis for future pay increases; and (4) paid without a requirement by the employer for proof of expenditure.
Remuneration paid in addition to salary may also be considered creditable compensation when paid in cash in accordance with a publicly available written contract (employment contract or collective bargaining agreement), if it is not associated with the performance of additional service, and it is applied to all persons in a class of employees in the same amount and percentage. Examples include compensation paid contingent upon the availability of funds, or paid to employees for meeting any of the following qualifications or requirements: (1) possession or attainment of a certificate, special credential or advanced degree; (2) career or service longevity; (3) hiring, transfer, or retirement; (4) employment in a position that is hazardous or difficult to staff; (5) employment in an assignment in which the enrolled students exceeds the contractual amount; or (6) achievement of a performance benchmark. Compensation for remuneration in addition to salary will not be considered creditable if it is only paid a limited number of times, and/or not scheduled to continue.
Remuneration in addition to salary, does not include cash paid by an employer: (1) to an employee in-lieu of a fringe benefit, or in-lieu of an expense paid or reimbursed by the employer; (2) on behalf of an employee for a fringe benefit, expense or reimbursement; or (3) to an employee as the remainder from money allocated for fringe benefits or expenses. In these circumstances the remuneration will not be considered creditable compensation.
Per the regulations, a reimbursable item or business expense that might routinely be paid for by the employer, for example, an automobile or housing allowance or "relocation" expense reimbursement, would not be creditable. Additionally, pay for assignments performed in addition to regular full-time employment, such as coaching, summer school, or for extracurricular activities, will be credited to the Defined Benefit Supplement Program. Similarly, compensation that is paid for a specified time period or that represents an inconsistent late-career increase in income will be credited to the Defined Benefit Supplemental Program and not credited to the standard pension.
In the area of collective bargaining, while one-time off salary schedule payments to employees are widely negotiated, per the revised regulations, such future one-time off schedule payments will no longer be considered creditable compensation.
Healthy Workplaces, Healthy Families Act: Paid Sick Leave – AB 1522
The Healthy Workplaces, Healthy Families Act of 2014 (“HWHFA") (New Labor Code § 245, et seq.) requires employers to provide employees with paid sick leave benefits. Beginning July 1, 2015, employees who work in California for 30 or more days within a year from the commencement of employment are entitled to paid sick days. Employees will accrue paid sick leave at the rate of one (1) hour for every 30 hours worked and will be entitled to use that sick leave beginning on the 90th day of employment.
The law applies to all California employers, including the state, political subdivisions of the state, and municipalities.
Employees who are covered by a valid collective bargaining agreement are not covered by the HWHFA so long as the collective bargaining agreement meets all of the following requirements: (1) provides for the wages, hours of work, and working conditions of employees, (2) expressly provides for paid sick days or a paid leave or paid time off policy that permits the use of sick days for employees; (3) final and binding arbitration of disputes concerning the application of paid sick day provisions in the agreement; (4) premium wages for overtime worked; and (5) an hourly pay rate of not less than thirty percent more than the state minimum wage.
Under the new law, employees are entitled to use up to 24 hours or three (3) paid sick days in each year of employment. The rate of pay for paid sick leave is the employee’s normal rate of pay, which may require averaging for employees who receive different rates of pay or are paid on a commission basis or piece rate in the 90-day period prior to using paid sick leave benefits. Accrued paid sick days carry over from year to year. However, employers are not required to permit accrual to exceed 48 hours or six (6) days.
Employers are not required to provide compensation to an employee for accrued, unused paid sick days upon termination, resignation, retirement, or other separation from employment.
Paid sick days may be used for the diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or employee’s family member. “Family member” is defined as a biological, step, adopted, or foster child; spouse; registered domestic partner; grandparent; grandchild; and sibling. In addition, victims of domestic violence, sexual assault, or stalking may use paid sick days to obtain legal or medical services related to those circumstances.
Employers are required to post in a conspicuous place information regarding the employee’s entitlement to use paid sick days, the amount of paid sick days to which employees are entitled, the terms of use of paid sick days, and the protections afforded against retaliation or discrimination. Failure to post the required notice can result in civil penalties of not more than $100 per each offense. Employers also are required to provide information to employees either in their pay stubs or in a separate writing regarding the amount of accrued sick leave they have available. Finally, employers are required to provide written notice to employees at the commencement of their employment regarding their rights to paid sick leave.
Community College District Academic Employees Transfer of Leave – AB 2295
Currently the total amount of leave of absence for illness or injury to which an academic employee of a community college district is entitled shall be transferred with him/her to another district (may be a community college or school district) if the employee signifies acceptance of his/her election or employment in an academic position at the other district within the succeeding school year after his/her employment is terminated with the first district.
Per revisions made by AB 2295, an employee’s entitlement to transferred leave of absence upon reemployment in a different district applies if the employee signifies acceptance of his/her election or employment with another district within three school years succeeding the school year in which the employment with the first district is terminated. The period may even be longer if the employee’s reemployment rights are protected under a local bargaining agreement then in effect in the first district.
What This Means To You
Board policies and administrative regulations should be reviewed to ensure compliance with the newest changes in the law. School administration and staff should be updated as to any changes so that the appropriate policies are consistently followed. Kronick attorneys are available to assist with review and revision of Board policies and regulations and to provide any other assistance related to the implementation of the new obligations and procedures created by the legislative and regulatory changes.
Questions
If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.
Christian M. Keiner or William F. Schuetz | 916.321.4500