CHARTER SCHOOL EMPLOYEES SUBJECT TO COLLECTIVE BARGAINING
The Charter Schools Act generally exempts charter schools from the provisions of the Education Code. The law provides that collective bargaining statutes pertaining to public school employees apply to charter schools. The new requirements impose a state-mandated local program.
The law also provides, "If the charter of a charter school does not specify that it shall comply with those statutes and regulations governing public school employers that establish and regulate tenure or a merit or civil service system, the scope of representation for that charter school shall also include discipline and dismissal of charter school employees."
Under the new law, the Public Employment Relations Board (PERB) "shall take into account the Charter Schools Act . . . when deciding cases brought before it related to charter school. The law also provides: "The approval or denial of a charter petition . . . shall not be controlled by collective bargaining agreements nor subject to review or regulation" by PERB.
Generously provided by: Ralph D. Stern, General Counsel, Schools Legal Counsel
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- No. 99 - 35
- Stats. 1999, Chapter 222 (SB26, Escutia)
- Adds Government Code Section 12941.1
Existing law makes it an unlawful employment practice, generally, for an employer to fire or refuse to hire any individual over the age of 40 on the ground of age. In Marks v. Loral Corp (1997) 47 Cal.App.4th30, the court interpreted the laws to permit an employer to hire employees with lower salaries, even though this may result in choosing younger employees.
The Marks court held: "Employers may indeed prefer workers with lower salaries to workers with higher ones, even if the preference falls disproportionately on older, generally higher paid workers." The Marks court upheld this jury instruction: "An employer is entitled to choose employees with lower salaries, even thought this may result in choosing younger employees. If the choice is based on salary, there is no age discrimination."
The losing plaintiff in the Marks case had argued that this rule would eliminate the vast majority of age discrimination cases because of the high correlation between age and salary level.
The new law nullifies the Marks decision. The Legislature declares its intent "that the use of salary as the basis for differentiating between employees when terminating employment may be found to constitute age discrimination if use of that criterion adversely impacts older workers as a group."
Generously provided by: Ralph D. Stern, General Counsel, Schools Legal Counsel
- December 31, 1999
- No. 99 - 35
- Stats. 1999, Chapter 737 (AB 1242, Lempert)
- Amends Education Code Section 44259.8
Upon the recommendation of a governing board, the Commission on Teacher Credentialing must issue a single subject California Preliminary (CAP) credential to any person who displays knowledge and expertise in a subject area as demonstrated by all of the following qualifications:
- Possession of post-baccalaureate or graduate degree, in specified subjects, from a regionally accredited institution of higher education.
- Five or more full-time equivalent years of practice in the field for which the post-baccalaureate or graduate degree was awarded.
- Basic skills proficiency as measured by the test adopted pursuant to Education Code Section 44252.
The school board must also enroll the candidates for the CAP credential in a preservice training program for a minimum of 40 hours o pedagogical training and develop an individual program of professional preparation consisting of not less than 150 hours of study for each candidate.
Generously provided by: Ralph D. Stern, General Counsel, Schools Legal Counsel
- December 31, 1999
- No. 99 - 35
Stats. 1999, Chapter 281 (AB457, Scott)
Amends Education Code Section 44010 44332, 44346.1, and 44424
Existing law authorizes a county board of education to issue temporary certificates to authorize salary payments to certified employees whose credential applications are being processed. The new law provides that the county board of education "may not issue a temporary certificate to an applicant whose teaching credential is revoked or suspended." Existing law also prohibits school districts from employing persons who have been convicted of specified sex offenses. The new law expands the list of specified sex offenses.
Generously provided by: Ralph D. Stern, General Counsel, Schools Legal Counsel
CALIFORNIA CIVIL RIGHTS AMENDMENTS OF 1999
The scope of prohibited conduct is expanded. The new law provides that an employer may not discriminate against a person "because the person is perceived to have" characteristics prohibited under the anti-discrimination laws, "or because the person is associated with a person who has, or is perceived to have, any of those characteristics."
The Fair Employment Act prohibits discrimination by employers. The new law expands the definition of "employer." The term "employer" is defined to include "any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indicrectly." The significance of including supervisors within the meaning of employer is that supervisors may be held personally liable if they harass employees. Also, employers may be held strictly liable for a supervisor's misconduct.
The law defines "supervisor" to mean "any individual having the authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely or clerical nature, but requires the use of independent judgment."
The new law expands the sanctions and remedies imposed under FEHA. The equitable remedies that may be imposed against an employer now include "a requirement that the employer conduct training for all employees, supervisors, and management on the requirements" of the anti-discrimination law, "the right and remedies of those who allege a violation" of the laws, "and the employer's internal grievance procedures."
The law also triples the maximum amount of damages that the Fair Employment and Housing Commission may award for nonpecuniary loss and administrative fines from $50,000 to $150,000 per aggrieved person. Nonpecuniary loss includes "emotional pain, suffering, inconvenience, mental anguish" and "loss of enjoyment of life." These damages supplement damages for actual monetary loss.
Generously provided by: Ralph D. Stern, General Counsel, Schools Legal Counsel
COMMISSION TO NOTIFY DISTRICTS CONCERNING EMERGENCY PERMITS AND CREDENTIAL WAIVERS
This urgency legislation, which became effective on September 15, 1999, requires the Commission on Teacher Credentialing to regularly notify local education agencies of the various provisions in current law that allow the assignment of personnel when a fully qualified teacher is not available and a substitute has served for the maximum days permitted by law, including:
Generously provided by: Ralph D. Stern, General Counsel, Schools Legal Counsel
PROCEDURE FOR TEMPORARY WAIVER OF CREDENTIAL REQUIREMENTS REVISED
This new law authorizes the Commission on Teacher Credentialing to approve a school district request for an emergency assignment if the district has certified by an annual resolution of the board that it has made reasonable efforts to recruit a fully prepared teacher for the assignment.
If a suitable fully prepared teacher is not available to the school district, the district shall make reasonable efforts to recruit an individual for the assignment, in the following order:
Generously provided by: Ralph D. Stern, General Counsel, Schools Legal Counsel
FINANCIAL AID TO NEW TEACHERS
Existing law establishes the Assumption Program of Loans for Education. Under this program a student may receive a loan assumption warrant upon completing a specified period of teaching in a public elementary or secondary school.
This urgency legislation, which became effective July 6, 1999, requires the state to issue warrants for the assumption of up to 5,500 loans each school year, commencing with the 1999-2000 school year. The new law also requires the state to issue up to 100 of those warrants for the assumption of student loans for applicants agreeing to teach in school districts serving rural areas.
Generously provided by: Ralph D. Stern, General Counsel, Schools Legal Counsel
FINANCIAL AID TO NEW TEACHERS (2)
Existing law establishes an assumption program for student loans. A student who agrees to obtain a teaching credential in subject area that are designated as current or projected shortage areas or to provide classroom instruction in schools that serve large populations of pupils from low-income families, may receive a conditional warrant fro loan assumption. The warrant may then be redeemed when the student is employed as a teacher.
The new law requires a specified proportion of the warrants to be issued to applicants agreeing to teach in rural school districts.
Existing law requires the Commission on Teacher Credentialing to annually distribute a minimum of 2,000 awards to applicants who agree to obtain a teaching credential in mathematics or science. This legislation repeals that provision.
Generously provided by: Ralph D. Stern, General Counsel, Schools Legal Counsel
FINGERPRINTING BUS DRIVERS
Existing law requires individuals applying for an original certificate to drive a schoolbus to be fingerprinted by the California Highway Patrol on a form approved by the Department of Motor Vehicles. The legislation authorizes fingerprinting of these applicants with an electronic fingerprinting system. It also provides that new applicants may be fingerprinted by a school district, a county office of education, or a local law enforcement agency.
Generously provided by: Ralph D. Stern, General Counsel, Schools Legal Counsel
LEAVES OF ABSENCE
Existing law prohibits discrimination against an employee for taking time off for specified reasons, provided the employee gives reasonable notice to the employer of the anticipated absence. The penalty for discrimination is reinstatement and reimbursement of lost wages and benefits. The new law prohibits retaliation as well as discrimination.
The new law also prohibits employers from discriminating against employees who take time off for these reasons:
Generously provided by: Ralph D. Stern, General Counsel, Schools Legal Counsel
MINIMUM SALARIES FOR TEACHERS
This urgency legislation, effective July 1, 1999, permits a governing board and a county superintendent of schools to increase the lowest salary on the salary schedule to $32,000. Qualifying teachers must hold a valid credential not including an emergency permit, intern permit, or waiver.
Generously provided by: Ralph D. Stern, General Counsel, Schools Legal Counsel
RETALIATION FOR OFF-DUTY CONDUCT PROHIBITED
Labor Code Section 96 has been amended to authorize the Labor Commissioner to seek a court order recouping compensation lost by an employee "as the result of demotion, suspension, or discharge from employment for unlawful conduct occurring during nonworking hours away from the employer's premises."
Some employment law experts have characterized the use of a paycheck to tell workers what they can and cannot do on their own time as "lifestyle discrimination." AB 1689 was sponsored by the California Professional Firefighters in response to an episode in Westminister where firefighters alleged they were retaliated against by local officials for their involvement in municipal politics. Two of the Westminister plaintiffs have received judgments totaling more than one million dollars. Gilbrook v. City of Westminister, 177 F.3rd 839 (1999).
The legislative statement of intent includes this language: "The Legislature further finds and declares that allowing any employer to deprive an employee of any constitutionally guaranteed civil liberties, regardless of the rationale offered, is not in the public interest."
Generously provided by: Ralph D. Stern, General Counsel, Schools Legal Counsel
PEER ASSISTANCE AND REVIEW
New law, effective June 26, 1999, authorizes districts to implement a Peer Assistance and Review program (PAR) after negotiation with the certificated exclusive representative. Participating teachers may volunteer for the program or be referred as a result of an unsatisfactory evaluation. Consulting teachers selected by a joint panel of administrators and teachers, with teachers in the majority, will provide assistance to participating teachers. The panel will review peer review reports, recommend participants and identify those teachers who are unable to demonstrate satisfactory improvement.
Generously provided by: Ralph D. Stern, General Counsel, Schools Legal Counsel
EMPLOYEES: PERFORMANCE BONUSES
The new Certificated Staff Performance Incentive Act authorizes one-time performance bonuses to certificated school employees of eligible schools districts and charter schools but not county superintendents of schools. This urgency legislation became effective on July 6, 1999. Schools become eligible "where the academic performance of pupils significantly improves beyond a minimum percentage growth target" established under Education Code Section 52052.
The State Board of Education must establish criteria for determining the eligibility of schools to receive the awards and shall determine the amount to be allocated to a school. The new law provides that the maximum award allocated to a school per full-time equivalent certificated staff shall not exceed twenty-five thousand dollars ($25,000).
New Education Code Section 44653 provides: "Upon receiving an allocation from the Superintendent of Public Instruction . . . the governing board . . . shall negotiate individual teacher and other certificated staff salary awards with the exclusive representative of the bargaining unit." If an agreement is not reached "all teachers and other certificated staff at the school shall receive a salary award amount that is equal to a percentage of their base salary that is determined by dividing the total amount awarded to a school by the sum of the annual base salaries for teachers and other certificated staff of the school."
Generously provided by: Ralph D. Stern, General Counsel, Schools Legal Counsel
EFFECTIVE DATE OF EMPLOYEE RESIGNATIONS
Existing law prohibits the resignation of a school employee from taking effect after the close of the school year during which the governing board receives the resignation.
The new law provides that "an employee and the board may agree that a resignation will be accepted at a mutually agreed upon date not later than two years beyond the close of the school year during which the resignation is received by the board."
Generously provided by: Ralph D. Stern, General Counsel, Schools Legal Counsel
EMPLOYMENT OF RETIRED TEACHERS FOR CLASS SIZE REDUCTION
Existing law authorizes STRS members to serve as temporary teachers in class size reduction programs. The new urgency legislation, effective June 28, 1999, provides that retired teachers employed by school districts for class size reduction programs shall be treated as a distinct class of temporary employees within the existing bargaining unit. These temporary employees do not advance toward permanent status. The compensation for the retired temporaries must be established under Education Code Section 22214. Compensation for retirees is based on service years, final compensation, and the age of the employee at the time of retirement. The compensation must also be agreed to in the contract between the district and the exclusive representative for the bargaining unit, if there is one.
Generously provided by: Ralph D. Stern, General Counsel, Schools Legal Counsel
ENHANCED RETIREMENT BENEFITS FOR CLASSIFIED EMPLOYEES
Existing PERS retirement law provides that classified employees may receive a retirement allowance of 2% for each year of service on retirement at age 60 (or .73 of 2% at age 55) and bases retirement on the average of the three highest years of compensation.
The new law permits classified employees to receive 2% at age 55 and bases retirement on the single highest year of compensation.
Generously provided by: Ralph D. Stern, General Counsel, Schools Legal Counsel
STRS RETIREMENT BENEFITS FOR SURVIVING SPOUSES
New law authorizes surviving spouses of deceased members who previously lost entitlement to benefits due to remarriage to resume benefit payments after January 1, 2000.
Generously provided by: Ralph D. Stern, General Counsel, Schools Legal Counsel
SAFETY VIOLATIONS
Under existing law any person who believes that he or she has been discharged or otherwise discriminated against in violation of the Labor Code may file a complaint with the Division of Labor Standards Enforcement.
The new law provides that the Division need not respond to a complaint if, from the facts stated in the complaint, it determines that the complaint is intended willfully to harass an employer and is without any reasonable basis.
Existing law prohibits civil penalties from being assessed against governmental agencies for violations of certain employee safety (OSHA) standards. The new law repeals that prohibition and provides that civil or administrative penalties against a school district or community college district be deposited into the Workplace Health and Safety Revolving Fund, to be refunded to the district if it has not been cited for another serious violation at the same school within the next 2 years.
Generously provided by: Ralph D. Stern, General Counsel, Schools Legal Counsel
SEXUAL ORIENTATION DISCRIMINATION
This new law confirms that it is unlawful to discriminate against a person in employment or housing based on the person's sexual orientation or perceived sexual orientation. The new statute provides, "The opportunity to seek, obtain and hold employment without discrimination because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age or sexual orientation is hereby recognized as and declared to be a civil right."
The significant change made by this law relates to procedure and the enforcement against discrimination on the basis of sexual orientation. Previously, an aggrieved party sought a remedy through the Labor Commissioner. Now the plaintiff files a complaint with the Department of Fair Employment and Housing. The plaintiff, rather than relying on an administrative remedy, may file a lawsuit.
Generously provided by: Ralph D. Stern, General Counsel, Schools Legal Counsel
SICK LEAVE
New law provides: "Any employer who provides sick leave for employees shall permit an employee to use . . . the employer's accrued and available sick leave entitlement . . . to attend the illness of a child, parent, or spouse of an employee."
Accrued Leave: The employee may use "accrued and available sick leave entitlement, in an amount not less than the sick leave that would be accrued during six months at the employee's then current rate of entitlement . . . ." School employees earn sick leave automatically on July 1, the first day of the new school year.
Uniformity: "All conditions and restrictions placed by the employer upon the use of sick leave"-for example, a requirement that an employee verify an illness with a physician's note-"also shall apply to the use by an employee of sick leave to attend to an illness of his or her child, parent, or spouse."
Interaction with FMLA: The new law "does not extend the maximum period of leave to which an employee is entitled" under the state and federal family and medical leave statutes. This period, generally, is four months.
Definitions: Children and parents are defined as biological, foster, adoptive, and step relatives. The term "child" also includes "a legal ward, or a child of a person standing in loco parentis." The term "parent" also includes a legal guardian. The statute does not define the term "spouse."
The statute defines "sick leave" as:
". . . accrued increments of compensated leave provided by an employer to an employee as a benefit of the employment for use by the employee during an absence from the employment for any of the following reasons:
"(A) The employee is physically or mentally unable to perform his or her duties due to illness, injury, or a medical condition of the employee."
"(B) The absence is for the purpose of obtaining professional diagnosis or treatment for a medical condition of the employee."
"(C) The absence is for other medical reasons of the employee, such as pregnancy or obtaining a physical examination."
Nondiscrimination: "No employer shall deny an employee the right to use sick leave" or "in any manner
discriminate against an employee" for exercising this new leave right.
Enforcement: Penalties include "reinstatement and actual damages or one days' pay, whichever is greater" and "appropriate equitable relief." Actions are brought either by the Labor Commissioner, or the employee. "If the employee prevails, the court may award reasonable attorney's fees."
Generously provided by: Ralph D. Stern, General Counsel, Schools Legal Counsel
TEACHER EVALUATION GUIDELINES
The Stull Act requires a school district to develop and adopt guidelines for the evaluation of certificated
employees. The new law authorizes a governing board to include in the guidelines- with the agreement of the exclusive representative of the certificated employees of the district-standards from the National Board for Professional Teaching Standards or the California Standards for the Teaching Profession, if the standards are consistent with the Stull Act.
Generously provided by: Ralph D. Stern, General Counsel, Schools Legal Counsel
TIMELY SALARY PAYMENTS
This new law provides that if salary increases are not paid promptly to certificated employees, interest accrues and is added to the amount owed to those individuals. This change applies to such matters as advancement on salary schedules, and disbursement of summer school pay prior to the start of the traditional year.
The new law also provides that a certificated employee qualifying for a salary increase must be paid the increased salary not later than three regular pay periods or three months, whichever is longer, after the employee files proper documentation. Many districts already have a provision in their collective bargaining agreement specifying a date for documentation to be submitted proving the completion of coursework for column advancement.
Generously provided by: Ralph D. Stern, General Counsel, Schools Legal Counsel