HR Legal Update: What You Need to

Know for 20172017 CASBO Annual Conference &

California School Business Expo

April 13, 2017

Presented by:

Megan Macy, Partner, Lozano Smith

Overview

Legislative Updates

AB 2393: Parental Leave

Significant Cases

Employee Speech

Legislative Updates

Prop 64: Marijuana in California

• Voters passed the "Control, Regulation and Tax Adult Use of Marijuana Act" ("Prop. 64").

• Legalized recreational marijuana use for those 21 years and older.

• Effective on November 9, 2016

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Employees and Prop 64

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• Prop 64 does not affect an employer’s ability to maintain a drug- and alcohol-free workplace.

Drug Testing

Employees

• Reasonable accommodation for marijuana use in the workplace is not required

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AB 1732: Single-Occupancy Restrooms

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• Single occupancy restrooms must be identified as an all gender facility

• Applies to a toilet facility with no more than one water closet and one urinal with a locking mechanism controlled by the user

• Effective March 1, 2017

California Law

California Minimum Wage Increase

• Minimum Wage Increases to $10/hr for employers with less than 25 employees; $10.50/hr for employers with 26 or more employees

• Gradual increases every year until $15/hr is reached

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Employee Compensation

Overtime Pay

• Updated federal regulations to overtime – Raise the minimum salary for employees

exempt from overtime from $455 per week to $913 per week, or $47,476 per year. (Other changes as well)

– Was going to take effect December 1, 2016• Texas Judge ordered a nationwide halt of the new

overtime regulations on November 22, 2015

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Employee Compensation

AB 1676 and SB 1063: Amendments to California’s Fair Pay Act

• Cannot pay employees of the opposite sex less for substantially similar work

• “Prior salary," by itself, is not sufficient to justify disparity in compensation

• Extends the law to also cover different payment based on race or ethnicity.

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SB 1436: Executive Compensation

• Prior to taking final action, the public agency must orally report a summary of a recommendation for a final action on the salaries, salary schedules, or compensation paid in the form of fringe benefits of a local agency executive

Effective January 1, 2017

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Executive Compensation

AB 1843: Juvenile Record Off Limits in Employment Decisions

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SB 1001: New Prohibition on Employer Review of Employment Authorization Documents

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Senate Bill 1180: Additional Leave Rights for Military Veterans

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SB 1413: Teacher Housing Act of 2016

• Development of affordable housing for teachers in K-12

• Will help with: – Increasing cost of

living– High teacher turn

over

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AB 1918 Temporary Certificates to Teachers

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COEs may issue temporary certificates to

teachers while their credential applications

are processed

Significant Cases

CalPERS Salary Schedules

• Court of Appeal confirms that CalPERS members must have their salaries listed on a publicly available pay schedule

(Tanner v. California Public Employees' Retirement System(June 28, 2016, No. C078458))

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Agency Fees

Employees may be required to pay union dues (i.e., agency fees)

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Important Court Cases

(Friedrichs v. California Teachers Association (2016) 136 S.Ct. 1083)

Agency Fees

New case pending—may change the law in this area

(Janus v. AFSCME, et al. (7th circuit) (Docket No. 16-3638)

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Important Court Cases

Labor and Employment

Criminal Liability for Misappropriation of Public Funds (People v. Hubbard (2016) 63 Cal.4th 378)

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Important Court Cases

Labor and Employment

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Responding to Union Information Request—EERA

violation

Teacher Evaluations

• Doe v. Deasy (2012 LAUSD)

• Doe v. Antioch USD (2016)

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AB 2826 Teachers—Evaluation and Assessment

VETOED

The Public Records Act

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City of San Jose et al. v. Superior Court (March 2, 2017, No. S218066) ___ Cal.5th ___

The CPRA World – What Does It Look Like?

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Information on Private Devices and Accounts are NOT Subject to the CPRA….

Information on Private Devices and Accounts ARE Subject to the CPRA….

What the Court Said

“Here, we hold that when a city employee uses as personal account to communicate about the conduct of public business, the writings may be subject to disclosure under the California Public Records Act.”

What the Court Said

• Slightly narrowed the definition of a public record– The record “must relate in some substantive

way to the conduct of the public’s business.”– “Communications that are primarily

personal, containing no more than incidental mentions of agency business, generally will not constitute public records.”

What the Court Didn’t Say

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• The Court didn’t address how agencies are supposed to search for such records…but did give some clues

Court’s Suggestions

Consider:• Policies that balance

privacy versus access to information

• Having employees search their devices and provide affidavits

• Requiring employees to use government accounts

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Potential Issues

• Practical challenges– Access– Evolving technologies– Working conditions– Cooperation, or the lack thereof– How to distinguish gossip from a public

record

Potential Issues

• Labor and employment implications

• Liability

• Disputes over compliance

Best Practices

• Develop policies– Acceptable use– Use of personal

devices and accounts

– Email and electronic record retention

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Best Practices

• Demonstrate a “reasonable effort”• Training to ensure that practices match

policy• Provide notice when a request is received• Work with bargaining units• Do not use private accounts for public

business

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Employee Free Speech

Employee Free Speech: The Legal Framework

• Public employees: First Amendment free speech rights to speak as a private citizen and comment on matters of “public interest” or “public concern.”

• Pickering v. Board of Education

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Connick: Public Concern vs. Personal Interest

• Employee speech is only protected if it is speech as a citizen on a “matter of public concern.” Speech that is of “personal interest” to the employee is not protected

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Public Official or Private Citizen?

• “Employee Speech” on a matter of public concern is protected only if the employee is speaking as a private citizen and not “pursuant to official duties.”

• Speech by public employees on matters related to their employment is not necessarily unprotected “employee speech.”

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Putting It All Together: An Analytical Framework

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Public Concern

Private Concern

Official Duties Not protected Not protected

Private Citizen Highest protection

If work nexus, perform balancing test

Mistaken Belief Regarding Political Activity

• U.S. Supreme Court ruled that employers may not use “mistaken belief” that employee engaged in political activity as defense

(Heffernan v. City of Paterson (2016) 136 S.Ct. 1412 )

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Employee Speech

Speaking as a Public Employee

Coomes v. Edmonds School District No. 15 (9th Cir. 2016) • First Amendment protects a public employee’s right to

speak as a citizen when the individual can demonstrate:

– he/she spoke on a matter of public concern;– the speech was made as a private citizen rather

than a public employee; and –that the speech was a substantial or motivating

factor in the adverse employment action.

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Employee Speech

Employee Online Speech

• Teacher fired for her derogatory personal comments about students on a personal blog

(Munroe v. Central Bucks School District (PA 2014) 34 F.Supp.3d 532

(Pickering v. Bd. of Education (1968) 391 U.S. 563.)

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Employee SpeechEmployee Speech

AB 2393: Parental Leave

AB 2393 - Parental Leave / Baby Bonding Leave

• Extended leave rights to classified employees from January 1, 2017

• 12-workweek partial pay period

• 1250 hour requirement eliminated

Key Elements of AB 2393 – Parental Leave

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Parental Leave –Certificated and Classified Employees as of 1/1/2017

• Sick Leave

• Differential Leave/Pregnancy Disability Leave (“PDL”)

• Baby-Bonding Leave under CFRA with Differential Pay after exhausting available full pay sick leave

• Runs concurrently with FMLA if designated

• Baby-Bonding Leave under CFRA with Differential Pay after exhausting available full pay sick leave

• Any paid paternity leave provided in CBA

• Runs concurrently with FMLA if designated

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Mothers Fathers

Baby-Bonding Leave under CFRA

• Intermittent Use

• Calculating “Workweeks”

• Two parents who work at the same school district

• Deadline for use

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Questions

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Disclaimer: These materials and all discussions of these materials are for instructional purposes only and do not constitute legal advice. If you need legal advice, you should contact your local counsel or an attorney at Lozano Smith. If you are interested in having other in-service programs presented, please contact clientservices@lozanosmith.com or call (559) 431-5600. Copyright © 2017 Lozano Smith All rights reserved. No portion of this work may be copied, or sold or used for any commercial advantage or private gain, nor any derivative work prepared there from, without the express prior written permission of Lozano Smith through its Managing Partner. The Managing Partner of Lozano Smith hereby grants permission to any client of Lozano Smith to whom Lozano Smith provides a copy to use such copy intact and solely for the internal purposes of such client.

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