Legal Update Memo No. 21-2020 – Budget Bill Limits Certain Classified Layoffs for 2020-2021 School Year Leading to the Possible Need for Urgent Action (CCD)

Download pdf: 21-2020(CC) – Budget Bill Limits Certain Classified Layoffs for 2020-2021 (DLM-KAS)

We wish to draw attention to an important provision affecting all local educational agencies (“LEAs”) including public schools, community college districts, and county offices of education in Assembly Bill (“AB”) 77, the K-12 Education Trailer Bill.[1]

AB 77 states,

From July 1, 2020, to June 30, 2021, inclusive, the governing board of a school district, county office of education, community college district, or joint powers authority shall not terminate the services of any permanent or probationary classified employees of the school district, county office of education, community college district, or joint powers authority because of a lack of funds or a lack of work, if the employees either hold classifications in, or are assigned to positions in, nutrition, transportation, or custodial services.(AB 77, Sec. 94, emphasis added.) 

Generally speaking, classified layoff notices must be issued 60 calendar days before the elimination of a position is effective, unless otherwise negotiated with the classified bargaining unit.  See Cal. Educ. Code §§ 45117, 45298, and 45308.  In a “typical” school year, layoff notices may be issued to any classified employees at any time of the year.

There is some ambiguity in the language of AB 77 regarding whether Governing Boards may pass resolutions to lay off employees between now and June 30, 2020, even though the 60 day notice requirement will lead to the layoff being effectuated after July 1, 2020.  We believe the fairest reading of AB 77 is that layoff actions by Governing Boards to eliminate classified employees in the areas nutrition, transportation, or custodial taken prior to July 1, 2020, are permissible, even if such actions are not effective until after July 1, 2020.  If your local educational agency wishes to lay off employees within these classes for the 2020-2021 school year, a special session board meeting with 24 hour notice to the public should be scheduled promptly to meet the June 30, 2020 deadline, if the action cannot be added to a regular meeting in time.

While the language is ambiguous, AB 77 does not indicate intent to retroactively invalidate Board actions taken prior to July 1, 2020. Nevertheless, local education agencies should be aware that any Board action adopting layoff resolutions between now and June 30, 2020 may be subject to challenge by your classified bargaining unit.

Classified positions that are not in nutrition, transportation, or custodial classes, such as instructional aide or secretary, may still be eliminated in accordance with a local educational agency’s usual layoff processes.

Please contact our office with questions if you are contemplating a classified layoff for these groups of employees, or for additional information regarding this Legal Update, or regarding any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

© 2020 School and College Legal Services of California

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] Full text of AB 77, can be found at: http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB77.

Legal Update Memo No. 37-2020 – Budget Bill Limits Certain Classified Layoffs for 2020-2021 School Year Leading to the Possible Need for Urgent Action (K-12)

Download pdf: 37-2020 – Budget Bill Limits Certain Classified Layoffs for 2020-2021 (DLM-KAS)

We wish to draw attention to an important provision affecting all local educational agencies (“LEAs”) including public schools, community college districts, and county offices of education in Assembly Bill (“AB”) 77, the K-12 Education Trailer Bill.[1]

AB 77 states,

From July 1, 2020, to June 30, 2021, inclusive, the governing board of a school district, county office of education, community college district, or joint powers authority shall not terminate the services of any permanent or probationary classified employees of the school district, county office of education, community college district, or joint powers authority because of a lack of funds or a lack of work, if the employees either hold classifications in, or are assigned to positions in, nutrition, transportation, or custodial services.(AB 77, Sec. 94, emphasis added.)

Generally speaking, classified layoff notices must be issued 60 calendar days before the elimination of a position is effective, unless otherwise negotiated with the classified bargaining unit.  See Cal. Educ. Code §§ 45117, 45298, and 45308.  In a “typical” school year, layoff notices may be issued to any classified employees at any time of the year.

There is some ambiguity in the language of AB 77 regarding whether Governing Boards may pass resolutions to lay off employees between now and June 30, 2020, even though the 60 day notice requirement will lead to the layoff being effectuated after July 1, 2020.  We believe the fairest reading of AB 77 is that layoff actions by Governing Boards to eliminate classified employees in the areas nutrition, transportation, or custodial taken prior to July 1, 2020, are permissible, even if such actions are not effective until after July 1, 2020.  If your local educational agency wishes to lay off employees within these classes for the 2020-2021 school year, a special session board meeting with 24 hour notice to the public should be scheduled promptly to meet the June 30, 2020 deadline, if the action cannot be added to a regular meeting in time.

While the language is ambiguous, AB 77 does not indicate intent to retroactively invalidate Board actions taken prior to July 1, 2020. Nevertheless, local education agencies should be aware that any Board action adopting layoff resolutions between now and June 30, 2020 may be subject to challenge by your classified bargaining unit.

Classified positions that are not in nutrition, transportation, or custodial classes, such as instructional aide or secretary, may still be eliminated in accordance with a local educational agency’s usual layoff processes.

Please contact our office with questions if you are contemplating a classified layoff for these groups of employees, or for additional information regarding this Legal Update, or regarding any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

© 2020 School and College Legal Services of California 

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] Full text of AB 77, can be found at: http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB77.

Legal Update Memo No. 36-2020 – Budget Compromise Overview for 20-21 (K-12)

Download pdf: 36-2020 – Budget Compromise Changes for 20-21 (KAS)

As announced on Monday, June 22, 2020, the Governor and Legislature have reached a compromise on the State Budget for 2020. The full text of the K-12 Education Trailer Bill, AB 77, can be found at: http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB77.

The Bill provides significant changes for the 20-21 academic year. Notable impacts are summarized below:

  1. Districts are prohibited from engaging in classified layoffs beginning July 1, 2020 through June 30, 2021, for employees with the classification of “nutrition, transportation, or custodial services.”
  2. Full LCFF funding for school districts, with 0% COLA. Funding will be deferred from June 2020 to July 2020, and from February, March, April and May 2021 to November, October, September and August of 2021, respectively.
  3. Instructional minutes and instructional days:
  • (a) Districts must meet instructional minutes requirements, but may meet through a combination of in-person and distance learning, provided such distance learning meets the requirements set forth below.
  • (b) Districts are “held harmless” for ADA losses. ADA calculation will be based on the adjusted 19-20 ADA.
  • (c) However, the requirement to have 180 instructional days has not been waived, but may be met through a combination of in-person and distance learning.
  1. Districts must open with some version of in-person learning, but may incorporate distance learning to meet instructional minutes requirements. Note, the Bill prohibits Districts from operating a “distance learning only” model for 20-21. Also, the Bill does not waive the requirements of Education Code Section 51749.5, which reduces apportionment if more than 10% of the District’s total enrollment is engaged in independent study. We expect follow-up legislation will address these two points.
  2. Distance learning must:
  • (a) Confirm or provide access for all pupils to connectivity and devices adequate to participate in the educational program and complete assigned work,
  • (b) Content aligned to grade level standards that is provided at a level of quality and intellectual challenge substantially equivalent to in-person instruction,
  • (c) Academic and other supports designed to address the needs of pupils who are not performing at grade level, or need support in other areas, such as English learners, pupils with exceptional needs, pupils in foster care or experiencing homelessness, and pupils requiring mental health supports,
  • (d) Special education, related services, and any other services required by a pupil’s individualized education program, with accommodations necessary to ensure that individualized education program can be executed in a distance learning environment,
  • (e) Designated and integrated instruction in English language development, including assessment of English language proficiency, support to access curriculum, the ability to reclassify as fully English proficient, and, as applicable, support for dual language learning, and
  • (f) Daily live interaction with certificated employees and peers for purposes of instruction, progress monitoring, and maintaining school connectedness. This interaction may take the form of internet or telephonic communication, or by other means permissible under public health orders. If daily live interaction is not feasible as part of regular instruction, the district shall develop, with parent and stakeholder input, an alternative plan for frequent live interaction that provides a comparable level of service and school connectedness.
  1. Districts are not required to adopt an LCAP plan for 20-21, but must adopt by September 30 a “learning continuity and attendance plan,” in consultation with stakeholders, based on a template provided by CDE.
  2. Education Code Section 44955.5, for summer certificated layoffs, is suspended except as to certificated administrators.[1]
  3. Requirement that schools provide a credentialed instructor for TK classes has been delayed until August 1, 2021.
  4. Schools that receive Title I funding for Migrant Education are not required to run a summer program if their facilities are closed due to COVID-19, for the 2020 calendar year, however such programs may be provided through distance learning, and if so, instructional time requirements are waived.
  5. Schools may have ratio and time requirements for ASES programs waived, and may receive prorated funding if schools run the program for more than three hours, up to six hours per day.
  6. $112,231,000 from the CARES Act funding is apportioned to reimburse schools for increased food service costs for programs run during any school closure in 19-20 and 20-21.
  7. Individualized Education Programs (“IEP”) must address how the program will be provided under emergency conditions in which instruction or services cannot be provided to the pupil either at school or in person for more than ten (10) days.

This is only a brief overview of some of the provisions of the Bill. Please contact our office with questions regarding the Bill, this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation. 

© 2020 School and College Legal Services of California 

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] For more information on summer certificated layoffs, please see Legal Update No. 31-2020, and both Addendums.

SECOND ADDENDUM to Legal Update No. 31-2020: Summer Layoffs of Certificated and Administrative Employees (K-12)

Download pdf: 31-2020 SECOND ADDENDUM – Summer Layoffs of Certificated and Administrative Employees (KAS-CDC)

As announced on Monday, June 22, 2020, the Governor and Legislature have reached a compromise on the State Budget for 2020. The full text of the Education Trailer Bill, Assembly Bill (“AB”) 77, can be found at: http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB77. Our office will be providing additional, separate, guidance regarding other important provisions of AB 77.

As to personnel actions, AB 77 includes two important provisions:

1) AB 77 suspends Education Code Section 44955.5 (“summer certificated layoffs”), except as to certificated administrators; and

2) AB 77 prohibits districts from engaging in lack of work/lack of funds layoffs of classified personnel with the classification of “nutrition, transportation, or custodial services,” effective July 1, 2020 through June 30, 2021.

While AB 77 does provide for full LCFF funding (with significant 19-20 and 20-21 deferrals), it includes a 0% COLA. Therefore, the fiscal conditions are met for summer certificated layoffs, but AB 77 expressly prohibits districts from engaging in these layoffs except for certificated administrators.

Additionally, Districts are prohibited from engaging in classified layoffs beginning July 1, 2020 through June 30, 2021, for employees in the above classifications.[1] The introductory language of AB 77 expressly acknowledges that layoffs of employees in other classifications, such as instructional aides, may still move forward.

Please contact our office with questions regarding the summer certificated administrator layoff process, this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

 © 2020 School and College Legal Services of California

 All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] While the language of AB 77 is ambiguous, it is our opinion that Districts that adopted a layoff resolution prior to July 1, 2020 may continue to move forward with these layoffs.

ADDENDUM to Legal Update No. 31-2020: Summer Layoffs of Certificated and Administrative Employees (K-12)

Download pdf: 31-2020 ADDENDUM – Summer Layoffs of Certificated and Administrative Employees (KAS-CDC)

The Legislature has passed the Budget Act of 2020, without agreement from the Governor on essential funding. The Governor is not anticipated to sign the bill as passed. The Governor has 12 days after receiving the Act to either approve the bill, approve the bill with specific line item reductions, or veto the bill entirely and send it back to the Legislature.

As discussed in Legal Update No. 31-2020, Education Code § 44955.5 permits school districts to engage in summer layoffs of certificated teachers and administrators if both of two conditions are met:

  • “if the governing board of a school district determines that its total revenue limit per unit of average daily attendance for the fiscal year of that Budget Act has not increased by at least 2 percent;” and
  • “if in the opinion of the governing board it is therefore necessary to decrease the number of permanent employees in the district.”[1]

The Budget Act passed by the Legislature yesterday (June 15, 2020) does not permit districts to engage in summer certificated layoffs as it fully funds LCFF for 2020-2021, including 2.31% COLA.[2] However, we anticipate that further negotiations to revise the Budget will occur between the Legislature and Governor through Friday, and will keep clients updated as to whether these negotiations result in the conditions being met.

Please contact our office with questions regarding the summer certificated layoff process, this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

© 2020 School and College Legal Services of California

 

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] Education Code § 44955.5

[2] SB 74 http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200SB74

Legal Update Memo No. 35-2020 – Public Entities Cannot Charge for Redacting Records Under the California Public Records Act (K-12)

Download pdf: 35-2020 – Public Entities Cannot Charge for Redacted Records Under the CPRA (JH)

The California Supreme Court recently ruled that public entities could not charge California Public Records Act requesters for the entities’ costs of redacting responsive electronic records. (National Lawyers Guild, San Francisco Bay Area Chapter v. City of Hayward ___ P.3d ___ (2020 WL 276105) (“NLG”)). In doing so, it overturned the Court of Appeal 2018 decision in this case which held that while an agency cannot charge to redact paper records, it could charge a requestor for redaction of electronic records in some circumstances.

Under the California Public Records Act, Government Code Sections 6250 to 6276.48 (“CPRA”), a person who requests a copy of a government record can be charged only the costs of duplicating the record, and not for other ancillary costs, such as the costs of redacting exempt material. Traditionally, in the “hard copy” paper context, this meant agencies could charge a reasonable amount per page that encompasses the “cost of running the copy machine, and conceivably also the expense of the person operating it.”

In 2000, the California Legislature amended the CPRA to address production of electronic records. The Legislature added Section 6253.9 which required an agency to produce electronic information in electronic format if requested, and also allowed an agency to charge for producing a copy of an electronic record, if “the request would require data compilation, extraction, or programming to produce the record.”  (Government Code Sec. 6253.9(b).) Per the Supreme Court’s NLG decision, the intent behind this amendment was to allow public agencies to charge requesters only the electronic equivalent of making a hard copy.

In 2015, public interest organization National Lawyers Guild (“Guild”) requested public records from the City of Hayward’s police department related to its assistance of local law enforcement during 2014 protests in Berkeley. In responding to the requests, the City of Hayward’s IT Manager spent 4.9 hours searching for and downloading police body cam videos from an online evidence storage system. The City’s Records Administrator, using free movie editing software, spent 35.3 hours removing all exempt audio and visual material from the video files, such as personal medical information and law enforcement tactical security measures. The City invoiced the Guild $2,938.58 for the time spent retrieving and redacting the body camera footage. The Guild paid under protest, then sued in Superior Court for a refund.

The City of Hayward argued that the invoiced work on the electronic records was recoverable as “data extraction and compilation,” allowable costs under Section 6253.9(b)(2).

The Supreme Court disagreed with the City of Hayward and ruled that the CPRA term “data extraction” does not cover the process of redacting exempt material from electronic records. The Court considered the terms “data compilation, extraction, [and] programming” to mean technological processes like programming and computer services, and not deleting electronic data or redacting. The Court noted that redaction could be time-consuming and costly, therefore assessing those significant costs to the requester would be “prohibitive.”

The Court specifically declined to address the question of whether the costs of the City’s IT Manager’s time searching for, locating, and collecting body camera videos in electronic form could be assessed to the requester as “data compilation.”

In its decision, the Court listed the following examples of what public agencies can and cannot charge for in a CPRA request:

CAN CHARGE:

  • A reasonable amount per page for hard copies based upon the agency’s cost of running the copy machine and the expense of the person operating it
  • Retrieving responsive data from a database that cannot itself be produced
  • Exporting responsive data from a large database into a spreadsheet in order to produce the spreadsheet
  • The cost of software that performs data extraction

CANNOT CHARGE:

  • Time spent searching through a filing cabinet for paper records
  • Time spent searching for responsive records in an e-mail inbox or computer documents folder
  • Determining which retrieved records (paper or electronic) are responsive to the request
  • Reviewing records to determine which portions of the responsive records are exempt from disclosure (paper or electronic)
  • Deleting or redacting exempt information from responsive records or spreadsheets (paper or electronic)

Significance of This Case: The California Supreme Court has clarified the distinction between assessing costs to a CPRA requester for extracting electronic data versus for gathering and redacting documents kept and produced in electronic form such as PDF and Excel. We recommend you consult with legal counsel if you have questions or concerns about how to respond to a CPRA request for electronic data or records.

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

 

© 2020 School and College Legal Services of California

 

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

Legal Update Memo No. 20-2020 – Public Entities Cannot Charge for Redacting Records Under the California Public Records Act (CCD)

Download pdf: 20-2020(CC) – Public Entities Cannot Charge for Redacted Records Under the CPRA (JH)

The California Supreme Court recently ruled that public entities could not charge California Public Records Act requesters for the entities’ costs of redacting responsive electronic records. (National Lawyers Guild, San Francisco Bay Area Chapter v. City of Hayward ___ P.3d ___ (2020 WL 276105) (“NLG”)). In doing so, it overturned the Court of Appeal 2018 decision in this case which held that while an agency cannot charge to redact paper records, it could charge a requestor for redaction of electronic records in some circumstances.

Under the California Public Records Act, Government Code Sections 6250 to 6276.48 (“CPRA”), a person who requests a copy of a government record can be charged only the costs of duplicating the record, and not for other ancillary costs, such as the costs of redacting exempt material. Traditionally, in the “hard copy” paper context, this meant agencies could charge a reasonable amount per page that encompasses the “cost of running the copy machine, and conceivably also the expense of the person operating it.”

In 2000, the California Legislature amended the CPRA to address production of electronic records. The Legislature added Section 6253.9 which required an agency to produce electronic information in electronic format if requested, and also allowed an agency to charge for producing a copy of an electronic record, if “the request would require data compilation, extraction, or programming to produce the record.”  (Government Code Sec. 6253.9(b).) Per the Supreme Court’s NLG decision, the intent behind this amendment was to allow public agencies to charge requesters only the electronic equivalent of making a hard copy.

In 2015, public interest organization National Lawyers Guild (“Guild”) requested public records from the City of Hayward’s police department related to its assistance of local law enforcement during 2014 protests in Berkeley. In responding to the requests, the City of Hayward’s IT Manager spent 4.9 hours searching for and downloading police body cam videos from an online evidence storage system. The City’s Records Administrator, using free movie editing software, spent 35.3 hours removing all exempt audio and visual material from the video files, such as personal medical information and law enforcement tactical security measures. The City invoiced the Guild $2,938.58 for the time spent retrieving and redacting the body camera footage. The Guild paid under protest, then sued in Superior Court for a refund.

The City of Hayward argued that the invoiced work on the electronic records was recoverable as “data extraction and compilation,” allowable costs under Section 6253.9(b)(2).

The Supreme Court disagreed with the City of Hayward and ruled that the CPRA term “data extraction” does not cover the process of redacting exempt material from electronic records. The Court considered the terms “data compilation, extraction, [and] programming” to mean technological processes like programming and computer services, and not deleting electronic data or redacting. The Court noted that redaction could be time-consuming and costly, therefore assessing those significant costs to the requester would be “prohibitive.”

The Court specifically declined to address the question of whether the costs of the City’s IT Manager’s time searching for, locating, and collecting body camera videos in electronic form could be assessed to the requester as “data compilation.”

In its decision, the Court listed the following examples of what public agencies can and cannot charge for in a CPRA request:

CAN CHARGE:

  • A reasonable amount per page for hard copies based upon the agency’s cost of running the copy machine and the expense of the person operating it
  • Retrieving responsive data from a database that cannot itself be produced
  • Exporting responsive data from a large database into a spreadsheet in order to produce the spreadsheet
  • The cost of software that performs data extraction

CANNOT CHARGE:

  • Time spent searching through a filing cabinet for paper records
  • Time spent searching for responsive records in an e-mail inbox or computer documents folder
  • Determining which retrieved records (paper or electronic) are responsive to the request
  • Reviewing records to determine which portions of the responsive records are exempt from disclosure (paper or electronic)
  • Deleting or redacting exempt information from responsive records or spreadsheets (paper or electronic)

Significance of This Case: The California Supreme Court has clarified the distinction between assessing costs to a CPRA requester for extracting electronic data versus for gathering and redacting documents kept and produced in electronic form such as PDF and Excel. We recommend you consult with legal counsel if you have questions or concerns about how to respond to a CPRA request for electronic data or records.

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

 

© 2020 School and College Legal Services of California

 

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

Legal Update Memo No. 34-2020 – July Notice of Temporary Employment (K-12)

Download pdf: 34-2020 – July Notice of Temporary Employment (SPR)

This is a reminder that districts are required to provide each temporary certificated employee written notice indicating the temporary nature of his or her employment, the salary, and length of time for which he or she is hiredThis notice must be given at the time of initial employment and thereafter in the month of July each school yearA temporary certificated employee must be given written notice of his or her classification before starting work.

The notice and classification requirements are described in Education Code section 44916 as follows:

The classification shall be made at the time of employment and thereafter in the month of July of each school year. At the time of initial employment during each academic year, each new certificated employee of the school district shall receive a written statement indicating his employment status and the salary that he [or she] is to be paid. If a school district hires a certificated person as a temporary employee, the written statement shall clearly indicate the temporary nature of the employment and the length of time for which the person is being employed. If a written statement does not indicate the temporary nature of the employment, the certificated employee shall be deemed to be a probationary employee of the school district, unless employed with permanent status. 

The written notice required by section 44916 is critically important when a district hires a temporary certificated employee.  Failure to provide specific notice to each temporary certificated employee that he or she is classified as temporary may entitle that employee to claim probationary status.
A temporary certificated employee can be released from employment under the following circumstances:[1]

  1. At the pleasure of the board prior to serving during one school year at least 75 percent of the number of days the regular schools of the district are maintained.
  2. After serving the number of days set forth above, if the employee is notified before the end of the school year of the district’s decision not to reelect the employee for the next succeeding year.

Once an employee is considered a probationary employee, he or she can only be dismissed for cause[2] or through the non-reelection process.[3]  Classification as a probationary employee greatly limits a district’s ability to remove that employee as compared to a temporary employee.

Accordingly, we cannot overemphasize the importance of giving each temporary certificated employee the written notice described above that specifically identifies him or her as a temporary employee at the time of initial employment before starting work and in the month of July each year.

Please also ensure that your district is able to identify a specific Education Code provision that allows for temporary employment for each certificated employee that you classify as temporary.  If the district cannot identify a specific basis for temporary status, the individual employee may claim probationary status.

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

 

© 2020 School and College Legal Services of California

 

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] Education Code section 44954

[2] Education Code section 44948

[3] Education Code section 44948.5

Legal Update Memo No. 19-2020 – July Notice of Temporary Faculty Employment (CCD)

Download pdf: 19-2020(CC) – July Notice of Temporary Faculty Employment (SPR)

This is a reminder that districts are required to provide temporary faculty members written notice indicating the temporary nature of their employment, the salary, and length of time for which the employee is being hiredThis notice must be given at the time of initial employment and thereafter in the month of July each school yearTemporary faculty members must be given written notice of their classification when hired and before starting work.

The notice requirement is described in Education Code section 87477 as follows:

Governing boards of community college districts shall classify as contract employees, those faculty members who have not been classified as regular employees or as temporary employees. The classification shall be made at the time of employment and thereafter in the month of July of each school year. At the time of initial employment during each academic year, each new faculty member shall receive a written statement indicating his or her employment status and the salary that he or she is to be paid.  If a community college district hires a faculty member as a temporary employee, the written statement shall clearly indicate the temporary nature of the employment and the length of time for which the person is being employed. If a written statement does not indicate the temporary nature of the employment, the faculty member shall be deemed to be a contract employee of the community college district, unless employed with regular status.

The written notice required by section 87477 is critically important when a district hires temporary faculty.  Failure to provide specific notice to each temporary faculty member that he or she is classified as temporary may entitle that temporary faculty member to claim contract (probationary) status.

Temporary faculty members can be released from employment at the board of trustee’s discretion “at the end of a day or week, whichever is appropriate” and subject to any locally established conditions.[1]

Once an employee is considered a contract (probationary) employee, he or she can only be dismissed through the non-reelection process or for cause.[2]  The removal of a probationary employee through the non-reelection process requires compliance with various pre-requisites and for cause dismissal is time consuming, expensive, and may not ultimately be successful.

We cannot overemphasize the importance of complying with Education Code section 87477 and giving your temporary faculty the written notice described above that specifically identifies them as temporary employees in July of each year.

We understand that some districts refer to their temporary faculty who are employed at 67% or less under Education Code section 87482.5 as “adjunct” faculty.  It is important that the notice of temporary status specifically identify the employee classification as “temporary” as opposed to “adjunct.”  The term “adjunct” is not a recognized legal classification under the Education Code and we advise districts use the classification of “temporary” employee.

Please also ensure that your district is able to identify a specific Education Code provision that allows for temporary employment for each faculty member you classify as temporary.  If the district cannot identify a specific basis for temporary status, the individual employee may claim contract (probationary) status.

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

 

© 2020 School and College Legal Services of California

 

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] Education Code section 87665

[2] Education Code sections 87610 & 87732

Legal Update Memo No. 33-2020 – Mandatory Employee Trainings (K-12)

Download pdf: 33-2020 – Mandatory Employee Trainings w attachment (SHS)

While there are many available trainings offered to school employees, only some are mandated by law.

The following is a list of trainings that are mandated by law for school employees, the frequency by which they must be completed, and the relevant legal citation.

  • Child Abuse Prevention

Every school employee must receive annual training regarding the duties of mandated reporters under the child abuse reporting laws. Trainings must include training in child abuse and neglect identification and child abuse and neglect reporting. Schools must develop a process whereby employees provide the school with proof of completion of the training within the first six weeks of that person’s employment, and within the first six weeks of each school year. (Education Code § 44691; Penal Code § 11165.7.)

  • Sexual Harassment Prevention

By January 1, 2021, supervisory employees must receive at least two hours of interactive sexual harassment training and nonsupervisory employees must receive at least one hour of training. New nonsupervisory employees must receive training within six months of hire, and new supervisory employees must receive the training within six months of assumption of a supervisory position. Thereafter, sexual harassment training must be completed again every two years. For purposes of this law, governing board members are considered supervisory employees of the LEA. (Government Code §§ 12950 & 12950.1.)

  • Title IX Coordinator

Under the new Title IX regulations (effective August 14, 2020), any individual designated by a local educational agency (LEA) as a Title IX Coordinator, investigator, decision-maker, or any person designated to facilitate an informal resolution process, must receive training on the definition of sexual harassment under the law, the scope of the LEA’s education program or activity, how to conduct an investigation and grievance process including hearings, appeals, and informal resolution processes, as applicable, and how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias. Decision-makers must receive training on any technology to be used at a live hearing and on issues of relevance of questions and evidence, including when questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant. Investigators must receive training on issues of relevance to create an investigative report that fairly summarizes relevant evidence. (34 C.F.R. § 106.45(b)(1)(iii).)

  • Pest Management

The LEA’s Integrated Pest Management (IPM) coordinator and any employee or contractor who may be designated to apply a pesticide at a school site, or who handles pesticides, must receive an annual training on IPM and the safe use of pesticides in a school setting. For purposes for this law, pesticides include disinfectants and disinfecting wipes used on surfaces. (Education Code § 17614; Food and Agricultural Code § 13186.5.)

  • Bloodborne Pathogens

Any employee with occupational exposure to bloodborne pathogens must receive bloodborne pathogens safety training at the time of initial assignment to tasks where occupational exposure may take place and at least annually thereafter. (8 C.C.R. § 5193; 29 C.F.R. § 1910.1030.)

  • Food Safety and Related Training

At least one employee at each food facility or site must have successfully passed an approved and accredited food safety certification examination, and must be recertified every five years. For LEAs participating in the National School Lunch and/or Breakfast Program, directors, managers, and staff in the school’s food service program must complete annual training on specified topics, including, but not limited to, training on health and safety standards. Food service directors must receive 12 hours of training annually, and food service managers must receive 10 hours of training annually. Food service staff with responsibility for school nutrition programs working an average of at least 20 hours/week must complete six hours of annual training. Staff working an average of less than 20 hours/week must complete four hours of annual training. In addition, new food service directors are required to complete at least eight hours of food safety training not more than five years prior to their starting date or within 30 days of their starting date. (Health and Safety Code §§ 113947.1-113947.3; 7 C.F.R. § 210.30.)

  • Summer Food Service Program

For LEAs approved by the California Department of Education (CDE) to serve as a program sponsor under the federally funded Seamless Summer Feeding Option (SSFO) or Summer Food Service Program (SFSP), supervisory personnel responsible for the program must receive annual training provided by CDE in program administration and operations, and site staff must receive annual training before undertaking their responsibilities. (42 U.S.C. § 1761; 7 C.F.R. §§ 225.7 & 225.15.)

  • Athletic Coaches

A coach of an athletic activity must complete a sudden cardiac arrest training course prior to beginning coaching, and every two years thereafter. (Education Code § 33479.6.)[1]

Any high school coach must complete a coaching education program developed by the LEA or the California Interscholastic Federation that meets the guidelines of Education Code Section 35179.1 and includes training in sport psychology, sport pedagogy, sport physiology, sport management, statewide and school regulations, and CPR and first aid, including the signs, symptoms, and appropriate response to concussions.[2] Once completed, the training does not need to be retaken. (Education Code §§ 49032 & 35179.1; 5 C.C.R. § 5593.)

  • School Security Officers

Every school security officer employed by a school district for more than 20 hours a week shall complete the latest course of training developed by the Bureau of Security and Investigative Services of the Department of Consumer Affairs in consultation with the Commission on Peace Officer Standards and Training pursuant to Section 7583.45 of the Business and Professions Code. In addition, school security officers required to carry a firearm while performing their duties must satisfy the training requirements of Section 832 of the Penal Code. (Education Code § 38001.5.)

  • School Police Officers

Before exercising the powers of a peace officer, district police officers shall satisfactorily complete an introductory course of training prescribed by the Commission on Peace Officer Standards and Training and shall pass the commission’s examination. Within two years of the date of first employment, district police officers must complete supplementary specialized training, approved by the Commission on Peace Officer Standards and Training, on the unique safety needs of a school environment, and must pass the commission’s exam. School police reserve officers shall complete a course of training directly related to the role of school police reserve officers as prescribed in Penal Code 832.2. (Education Code §§ 38000 & 35021.5; Penal Code §§ 832 & 832.3.)

  • Injury and Illness Prevention

Training related to injury and illness prevention must be provided to all new employees, and all employees given a new job assignment, whenever new substances, processes, procedures, or equipment are introduced to the workplace that present a hazard, and whenever the LEA receives notification of a new or previously unrecognized occupational safety or health hazard. (Labor Code § 6401.7; 8 C.C.R. 3203.)

  • Storage and Administration of Epinephrine Auto-Injector

LEA must provide emergency epinephrine auto-injectors to school nurses or designated volunteers. Employees who volunteer to administer epinephrine auto-injectors to a person suffering, or reasonably believed to be suffering, from anaphylaxis, and have been designated by the LEA to do so, must receive initial and annual refresher training regarding the storage and emergency use of an epinephrine auto-injector from the school nurse or other qualified person designated by an authorizing physician/surgeon. (Education Code § 49414.)

  • Administration of Opioid Antagonist

LEAs may provide emergency naloxone hydrochloride or another opioid antagonist to school nurses or designated volunteers. Employees who volunteer to provide emergency naloxone hydrochloride or another opioid antagonist to a person suffering, or reasonably believed to be suffering, from an opioid overdose, and have been designated by the LEA to do so, must receive initial and annual refresher training regarding the storage and emergency use of naloxone hydrochloride or another opioid antagonist from the school nurse or other qualified person designated by an authorizing physician/surgeon. (Education Code § 49414.3.)

  • Automated External Defibrillators

If an LEA acquires and maintains an automated external defibrillator (AED) in an LEA site, the LEA must notify tenants of the site at least once a year of the location of the AED and who to contact to receive AED or CPR training, and offer a demonstration to at least one person associated with the site so that the person can be walked through how to use an AED properly in an emergency. (Education Code § 49417; Health and Safety Code § 1797.196.)

Please find a chart with this information attached to this Legal Update for your reference.

Note that additional trainings that are not mandated by law, but are best practice and encouraged from a policy perspective, may be adopted by the governing board as mandatory for LEA employees.

Please contact our office with questions regarding this Legal Update or any other legal matter. 

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

 

© 2020 School and College Legal Services of California

 

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] By regulation, there are minimum qualifications for temporary athletic team coaches. These include competency in the care and prevention of athletic injuries, CPR, knowledge of the rules and regulation of the sport being coached, and knowledge of child or adolescent psychology. (5 C.C.R § 5593.) Note that the Superintendent or designee may waive these requirements for those enrolled in a training course to achieve these competencies, and are supervised by a qualified coach until competencies are met.

[2] The law allows for an individual who has not completed the education program to be assigned as a coach for no longer than one season of interscholastic competition.