STAYING LEGALPARTS I and II

ACSA 2015 Personnel InstituteOctober 7, 2015

Gregory J. Dannis, AttorneyDannis Woliver KelleyTel | 415.543.4111Email | gdannis@DWKesq.com

Jonathan A. Pearl, AttorneyDannis Woliver KelleyTel | 619.595.0202Email | jpearl@DWKesq.com

About Our Firm

For more than 35 years, Dannis Woliver Kelley (DWK) has provided trusted counsel and

forward-thinking legal solutions to school and community college districts, county offices of

education, and other educational entities throughout California in all areas of education law.

We are a diverse, women-owned law firm with offices located in: San Francisco, Long Beach,

San Diego, Novato and Chico.

DWK is at the forefront on legal issues our clients face. Most importantly, we know how to

work with our clients to resolve these issues. We build long-standing partnerships with our

clients by acting as more than just lawyers—we are strategic advisors that are dedicated to

helping future generations enjoy the right to public education.

Our range of experience and the communication between our practice groups provide an

unmatched resource. Since we have hundreds of clients throughout the state, we are aware of

trends that impact your interests. We recognize issues that others may fail to spot, and work in

close collaboration with clients to devise practical strategies for resolution.

We were one of the first law firms in California to dedicate its practice exclusively to education

law. We advise boards and district leadership with passionate conviction and insight. We find

our work enormously rewarding. For more than 35 years, we have stood shoulder-to-shoulder

with our clients—working together for the betterment of California’s educational system.

DWK offers high-quality, effective, and prompt legal services in all areas of education law. Our

practice groups are comprised of experienced attorneys who possess thorough knowledge of

the issues and challenges facing our clients in the following areas:

» Labor, Employment and Personnel

(LEAP)

» Board Ethics, Transparency and

Accountability (BETA)

» Business, Property and Finance

» Construction

» Charter Schools

» Student Issues and Special

Education

» Litigation

» Community Colleges/Higher

Education

Our team approach to client service means that while specific attorneys represent a client,

several others will remain informed of the client’s issues so that they may assist if needed. We

pride ourselves on the in-depth experience within the firm and on the promptness with which

we respond to a client’s inquiry. We regard ourselves as members of our client’s team. Our

objective is to work with our clients to help them carry out their goals and mission!

Shareholder

San Francisco

gdannis@dwkesq.com

Tel: 415.543.4111

Fax: 415.543.4384

Gregory J. Dannis is a Shareholder in the San Francisco office, President of Dannis Woliver Kelley, and a

member of the Labor, Employment and Personnel (LEAP) Practice Group. He is also a board member

and immediate past board president of the Hillsborough City School District.

Greg has expertise in all aspects of public sector employer/employee relations and is experienced in the

full range of personnel-related issues, including hiring and termination, effective evaluation practices,

and documentation of employee performance. He has represented districts in numerous administrative

hearings as well as in state and federal courts. Greg also has more than 33 years experience in

collective bargaining, including negotiating hundreds of agreements for certificated and classified

employees throughout California. He was among the first group of employer representatives to be

trained in the CTA/Management Model of Interest-Based Bargaining (IBB). He has trained approximately

100 districts in California, and utilizes the IBB process where it has been mutually embraced, and

interest-based principles and techniques even at so-called “traditional” bargaining tables. As the creator

of the “Core Values” approach to negotiations, Greg has helped many districts focus on their primary

educational mission even in times of fiscal crisis. He is also experienced in coping with employee

concerted activities and has been called into districts to manage and ultimately resolve the fundamental

differences between unions and employers which lead to these events. Greg has extensive experience in

all aspects of personnel practice, from certificated and classified employee evaluation, dismissal and

discipline, to the varied categories of discrimination, such as Title VII, the Americans With Disabilities

Act, and the Family Medical Leave Act. He regularly advises governing boards regarding their rights,

duties and responsibilities under the Brown Act, the Public Records Act and other laws regulating the

business of doing the public’s business in the schools. Greg has provided in-services statewide and to

individual boards on how to meet the ever-changing requirements of the Brown Act in a manner which

allows a board to conduct meetings efficiently and effectively. He has also assisted boards on matters

such as board member duties and obligations, individual board member rights and responsibilities, and

has been asked to assist in situations in which internal board relationships were at risk.

Greg is a regular and prominent speaker at the annual California School Boards Association (CSBA)

Conference each December, as well as at the Association of California School Administrators (ACSA). He

has authored numerous articles and has been published extensively in the California Public Employee

Relations Journal (CPER) including How to Negotiate Using Core Values, The Evolution of a Negotiator,

Public School Negotiations: After the Gold Rush, The Negotiator: Like a Rolling Stone, and Labor’s

Lessons. Greg was named one of the Best Lawyers in the Bay Area, Bay Area Magazine, Vol. I, Issue I

and was honored with the 2014 California Lawyer Attorney of the Year Award in Education Law.

Education

California State University, East Bay (B.A.)

University of San Francisco School of Law (J.D.)

© 2015 Dannis Woliver Kelley. All rights reserved.

Gregory J. Dannis

Practice Areas

Labor, Employment and Personnel

Governing Boards

Community Colleges/Higher Education

Board Ethics, Transparency and Accountability (BETA)

Admission

State Bar of California

Media/Publications

Staying Legal Parts I and II

Greg Dannis Gives Keynote Speech at ACSA's 2014 Symposium for Negotiators

Greg Dannis Is Part of Groundbreaking Agreement at SJUSD!

Experience counts in local election. Trustee Gregory Dannis is Re-Elected to the Hillsborough

School Board.

Read Gregory Dannis' Article, "Labor's Lessons," in the June 2011 CPER Journal

Gregory Dannis Gives Keynote Speech at ACSA's 2011 Symposium for Negotiators

Read Gregory Dannis' Article in the Recent CPER Journal

"Negotiations In California Public Schools: A Call For A Return To Core Values"

"California Public Education: The Greatest Show on Earth?"

"Education: The Circle Game"

"In Legis Parentis"

"The Face of California Education"

"The Negotiator: Like a Rolling Stone" CPER Journal

"Public School Negotiations: After the Gold Rush" CPER Journal

Certificated "Summer" Layoffs Special Q+A Session on the Web, A Free Webinar

Certificated “Summer” Layoffs Under Education Code §44955.5, A Free Webinar

"Collaboration, Communication and Core Values Versus Contradiction, Cacophony and Chaos"

"The Evolution of a Negotiator"

"AB 729: An Opportunity to Improve Teaching Staffs"

"Education: A Civil Right"

"How to Negotiate Using Core Values"

"Finding the Center of California Education"

"The View From the Trenches: Collective Bargaining in the Public Schools"

"Turning the Tables: When Schools Enact Legislation"

"An Exclusive Interview With California K-12 Education" CPER Journal

"The Fruits of Our Labor"

"The Promise of Education"

"Strike or Settlement: A Tale of Two School Districts"

© 2015 Dannis Woliver Kelley. All rights reserved.

Gregory J. Dannis

Shareholder

San Diego

jpearl@dwkesq.com

Tel: 619.595.0202

Fax: 619.702.6202

Jonathan A. Pearl counsels and represents public school and community college district clients in

employment matters related to best practices for hiring, remediation, progressive discipline,

harassment/discrimination prevention, accommodation issues, technology-in-the-workplace concerns

and board policy/procedure development. He is a well-known trainer on sexual harassment prevention,

documentation, employee remediation and discipline. Jon also serves education clients in all aspects of

labor relations including certificated and classified labor contract negotiations and contract

administration. He represents clients in arbitrations and PERB proceedings and has trained governing

boards, district bargaining teams and union bargaining teams on negotiations techniques including

Interest Based Bargaining. Jon is also a member of the firm's Students and Special Education Group,

and represents school districts in student matters involving discipline, constitutional issues, pupil

records, residency and technology issues.

He is a frequent presenter at Dannis Woliver Kelley seminars, including the firm's Education, Labor and

Employment Law (Ed Lab) Series, and state and regional CSBA, CASBO and ACSA conferences on topics

including "Principled Ethical Negotiations," "Collective Bargaining 101," "New Negotiations for the New

Decade," "Bargaining Benefits," "HR Adventures in Cyberspace," "Students' Constitutional Rights in

Cyberspace," and "Student Discipline Hearings, How Much Due Process is Due." Having worked closely

with governing boards, superintendents and administrators, Jon believes that ongoing and interactive

training greatly enhances educators' abilities to effectively address the dynamic legal issues that impact

schools each day. Before joining Dannis Woliver Kelley in 2001, Jon practiced education, labor and

employment law for public and private sector clients in Chicago.

Education

University of Wisconsin-Madison (B.A.)

Chicago Kent College of Law (J.D.)

Practice Areas

Labor, Employment and Personnel

Students and Special Education

Governing Boards

Community Colleges/Higher Education

Independent Schools and Nonprofit Corporations

Board Ethics, Transparency and Accountability (BETA)

Admissions

State Bar of California

Illinois State Bar

Media/Publications

© 2015 Dannis Woliver Kelley. All rights reserved.

Jonathan A. Pearl

STAYING LEGAL

PARTS I AND II

ACSA PERSONNEL INSTITUTE

OCTOBER 7, 2015

TABLE OF CONTENTS

PAGE

NEW LAW/PENDING LEGISLATION

AB 375 Expands Uses For Differential LeaveLegislative Counsel’s Digest 2015) ........................................................................... 1

SB 406 Expands California Family Leave ActCalifornia PERB Blog (Sept. 15, 2015) ...................................................................... 2

AB 987 Forbids Retaliation For Requesting Reasonable AccommodationCalifornia Employment Law Letter (Aug. 10, 2015, Vol. 25, No. 9) .............................. 3

AB 215 Caps Superintendents’ Final PayMonterey Herald, Claudia Melendez Salinas (Sept. 3, 2015) ......................................... 4

New Amendments Clarify (Attempt to Clarify) California’s Paid Sick Leave LawInland Valley Daily Bulletin, Beau Yarbrough (Aug. 17, 2015) ...................................... 6

Lawsuit Says Schools Are Breaking Law In Teacher EvaluationsAssociated Press, Christine Armario (July 16, 2015) ................................................... 8

DISABILITY/ACCOMMODATION

Did School District Have Notice Of Teacher’s Disability And Need For Accommodation?LRP School Law Briefings (Jan. 2015); Pollard v. Baltimore County Bd. of Education(Nov. 4, 2014, D. Md. No. CCB-13-3220) ................................................................ 10

Does Employee Have Right To Be Transferred To Another Supervisor?As FEHA Accommodation - Higgins-Williams v. Sutter Medical Foundation(May 26, 2015, No. 34-2011-00102428).................................................................. 11

Disability Makes Employee Late for Work – What Next?Employment Law Report (Feb. 2015); Taylor-Novotny v. Health Alliance Medical Plans,Inc. (Nov. 26, 2014, 7th Cir. No. 13-3652) [2014 WL 6680137] .................................. 13

Did Employer Lawfully Fire Employee For Violating Policy While On CFRA Leave?Employment Law Letter (Feb. 2015); Richey v. Autonation, Inc.(Jan. 29, 2015, No. S207536) ................................................................................ 14

ii

DISCIPLINE/DISCRIMINATION

Is Possession Of “Alcoholic Cupcakes” Cause For Dismissal?First Student, Inc. and Teamsters Local Union 95 (May 26, 2015) 134 LA 1699 ........... 17

Should An Employee Who Failed Alcohol Test Be Offered Rehab Chance?U.S. Steel Corp. and United Steelworkers Local 1299(Oct. 3, 2014, Case No. USS-47817) 135 LA 46 ...................................................... 18

What Directives Are Lawful In Letter Placing Employee On Paid Administrative Leave?Perez v. Los Angeles Community College District (2014) PERB Decision No. 2404 ........ 19

Is Teacher’s Challenge To Curriculum, Remedial Program Protected Activity?Brian Crowell v. Berkeley Unified School District (2015) 39 PERC ¶ 982404 ................. 21

BROWN ACT

Does The Labor Negotiations Exception To Open-Meeting Requirements Of BrownAct Permit Community College Boards To Meet In Closed Session?Kamala D. Harris v. Lawrence M. Daniels (Sept. 18, 2015) 14 C.D.O.S. 1054225 ......... 22

FIRST AMENDMENT

Employer Refuses To Accommodate Sun Worshipping Atheist’s ReligiousRequirement For Eight Hours Of Daily Sleep – Is This Discrimination?Copple v. Calif. Dept. of Corrections and Rehabilitation (Mar. 24, 2015, No. G050690) . 23

Is Abercrombie’s “Look Policy” Prohibiting Wearing Headscarf Religious Discrimination?EEOC v. Abercrombie & Fitch Stores (June 1, 2015, U.S.S.C. No. 14-86) ..................... 25

Is Teachers’ Challenge To Union Dues A Protected First Amendment Right?April Bain, et al. v. California Teachers Association, et al.L.A. Times, Howard Blume (October 1, 2015) .......................................................... 26

TECHNOLOGY

Another Potential Pitfall Of BYODs: What Do You Do When Employees Quit?Employment Law Report (Jan. 2015); Rajaee v. Design Tech Homes, LTD(Nov. 11, 2014, S.D. Tex. No. 13-2517) [2014 WL 5878477] ..................................... 28

Was Facebook Exchange Protected?California Employer Advisor (Jan. 2015); Richmond District Neighborhood Center(Oct. 28, 2014) 361 NLRB No. 74 .......................................................................... 29

Court Rejects Suit By Teacher Fired Over BlogNatalie Munroe v. Central Bucks School District (Sept. 4, 2015, 3d Cir. No. 14-3509) ... 31

iii

LABOR RELATIONS

Is EERA Right To Representation Broader Than Weingarten?CSEA, Chapter 224 v. Capistrano Unified School District (2015) PERB Dec. No. 2440[40 PERC ¶ 24] ......................................................................................................32

Was Court Employee Entitled To Union Rep During Interactive Process Meeting?SEIU, Local 1021 v. Sonoma County Superior Court (2015) 39 PERC ¶ 88......................33

Can You Refuse To Bargain With A Particular Person?Anaheim Union High School District v. AFSCME, Local 3112 (2015) PERB Dec.No. 2434 [40 PERC ¶ 9] ..........................................................................................35

Just What Is The Scope Of Negotiations Over Calendar And Work Year Anyway?Pasadena City College Faculty Assoc. v. Pasadena Area Community College Dist.(2015) PERB Dec. No. 2444 .....................................................................................37

Was “Hard Bargaining” Lawful?Solano Probation Peace Officers’ Ass’n v. County of Solano (2014) 39 PERC ¶ 78 ............39

Did County Commit Unfair Practice By Repudiating Expired MOU Provisions?SEIU, Local 521 v. County of Tulare (2015) 39 PERC ¶ 111 .........................................40