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01 Nov 2016 00:00:00 -0800

Join Best Best & Krieger LLP at the 2016 CALPELRA 41st Annual Training Conference in Monterey, Calif.

BB&K Speakers:

Isabel Safie and Katrina Veldkamp
"ACA Implementation: What Comes Next?"
Although it seems that the ACA is finally in full effect, the IRS continues to publish new guidance, and aspects of the ACA are in flux or have not yet been implemented. For example, the Cadillac tax – although it has been delayed until plan years beginning on or after Jan. 1, 2020, it is moving forward – in this session you’ll learn about its application and how it will impact your health benefit programs. This session will also focus on recent IRS guidance regarding ACA implementation, including new limitations on health reimbursement arrangement coverage and the effect of cash-in-lieu/opt-out programs on affordability calculations. In this session, you’ll also learn what the presenters have learned from the first year of employer reporting and what employers should change in 2017.
Wednesday, Nov. 2
1:30 - 3 p.m.

Alison Alpert and Joseph Sanchez
"You Can't Say That! Free Speech Issues In Public Employment"
Public employees’ right to free speech is more limited than that of the general public. Whether or not a public employer may take disciplinary action against an employee for speech-related conduct, however, is based on a developing body of case law that provides certain balancing tests and guidelines to determine if the speech is protected under the First Amendment. In this session, you’ll learn how you can legally address employee speech that impairs your agency's mission. The session will also highlight issues involving free speech in cyberspace, union speech, and special rules involving high-level policymakers.
Wednesday, Nov. 2
3:30 - 5 p.m.

Arlene Prater
"Severance and Last Chance Agreements: How to Negotiate and Draft Agreements That Comply With the Law and Protect Your Agency"
Drafting an agreement that best protects your agency, is acceptable to employees’ representatives, and complies with current legal standards can be a challenge. This session starts with an introduction to the benefits of using these agreements and then covers specific provisions and standards, such as complying with recent EEOC and NLRB enforcement actions, restrictions on employment and employee behavior, Public Records Act and Brown Act requirements, waiving due process rights, and use for creative resolutions of discipline and layoff disputes.
Thursday, Nov. 3
10:30 a.m. - Noon

Alison Alpert
"When an Employee Says, 'I’ve Got My Medical Marijuana Card,' What Can an Employer Do?"
Medical marijuana is in the news. As many states, including California, pass laws for the legal use of medical marijuana, employers are left questioning their drug use policies. Explore this important issue in light of federal and state law and existing employer policies. You’ll learn whether an employer can discipline an employee for off-hours and off-site use or influence, when it is pursuant to a valid prescription, or for off-hours and off-site recreational use, whether employers can still lawfully implement zero-tolerance drug use policies, and whether medical marijuana use must be accommodated. You’ll also learn how employers might accommodate medical marijuana use, if they choose. Learn what should be included in your policies to ensure that any discipline will be upheld on appeal, and leave this session feeling relaxed, knowing you’ve learned how to comply with the law.
Thursday, Nov. 3
3:30 - 5 p.m.

When
Tuesday, Nov. 1 - Friday, Nov. 4

Where
Portola Hotel & Spa at Monterey Bay
Two Portola Plaza
Monterey, CA 93940

and

Monterey Marriott
350 Calle Principal
Monterey, CA 93940

For more information or to register, click here.

Judge Strikes Down California Teacher Tenure Laws as Unconstitutional

16 Jun 2014 00:00:00 -0800

California teacher tenure, firing and layoff laws violate the state constitution, a judge has ruled in a closely watched case that may have significant ramifications for school districts, education departments and lawmakers. While the California Constitution guarantees that all students are afforded equal educational opportunity, the teacher tenure laws disproportionately impact low-income and minority students who attend schools with a high number of ineffective teachers — making the laws effectively unequal, Los Angeles Superior Court Judge Rolf Treu found June 10 in Vergara v. California.

Nine California public school students brought the lawsuit against the state. Although the ruling in the students’ favor may limit teacher job security, it could also make it easier for schools to fire ineffective teachers and retain effective teachers. It could likewise encourage students in other states to bring similar suits.

The judge first found that California’s permanent employment statute, which gives administrators less than two years to decide if they will grant new teachers permanent employment, is unconstitutional because it does not give administrators nearly enough time to make an informed tenure decision. California is one of only five states with a two-year or less probationary assessment period, making it an outlier among the states. The judge noted that a three to five-year period would be more appropriate.

The judge also ruled that three teacher dismissal statutes are unconstitutional, finding that it is practically impossible to dismiss an inept tenured teacher. The judge noted that 2,750 to 8,250 — or 1 to 3 percent — of California teachers are grossly ineffective. However, it takes anywhere from two to 10 years, and costs between $50,000 and $450,000, to fire a tenured teacher, making the process so complex, time consuming and expensive that only .0008 percent of all state teachers are dismissed each year.

Finally, the judge struck down the “last-in, first-out” statute that requires the administration to fire the newest teacher first during layoffs, regardless of the teacher’s effectiveness. California is one of only 10 states that requires school administration to consider seniority in making layoff decisions. The judge noted that it is illogical that schools are forced to retain ineffective tenured teachers at the expense of highly effective newer teachers. These ineffective teachers have a detrimental impact on the quality of education students receive and their future earnings.

The judge ordered the state to stop enforcing the laws; however, the order was stayed pending appeal by the state, the California Teachers Association and the California Federation of Teachers. Depending on the outcome of the appeal, the decision may also impact legislators who must rewrite the challenged laws.

If you have any questions about this decision or its ramifications, please contact the attorney author listed at right in the Education Law practice group, or your BB&K attorney.

Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

Court Finds School District Improperly Classified Teachers Hired for Categorically Funded Programs

07 Mar 2012 00:00:00 -0800

A California appellate court ruled last week that a school district had misclassified certain categorical employees as temporary employees, and therefore failed to follow the layoff procedures which should have applied to probationary employees. In Stockton Teachers Association v. Stockton Unified School District, the Court of Appeal held that a school district may only classify teachers employed in categorically funded positions as temporary under Education Code Section 44909 if the employee is hired for the term of a categorically funded project and the employee is terminated at the expiration of the project. The court concluded that teachers hired for more or less time than the categorically funded program term have the same rights as probationary employees with respect to seniority, tenure, layoff procedures, and rehire after layoff. The ruling impacts K-12 agencies, community college districts and county education offices, including those contemplating staffing changes for the 2012-2013 school year.

Based on this decision, school districts may need to alter the way they classify and layoff certificated employees working in categorically funded positions. Under the Stockton decision, in order to demonstrate employees are appropriately classified as temporary under Section 44909, districts must: (1) show the employee was hired to perform services under a contract with public or private agencies or categorically funded projects; (2) identify the contract or project for which the services were performed; (3) establish that the contract or project expired; and (4) demonstrate that the employee was hired for the term of the contract or project.

While we disagree with the court’s interpretation of Section 44909 and anticipate that this decision will be appealed to the California Supreme Court, at this time it represents the only published appellate decision. Therefore, we recommend that agencies review their list of certificated temporary employees to ensure they are properly classified in light of the Stockton case and revisit their certificated employee layoff and release procedures before the March 15 deadline for teacher layoff notification.

For more information on how this case may affect your agency, please contact Joseph Sanchez or your Best Best & Krieger School Law attorney.

Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

Arlene Prater & Nicole Elemen Spoke on Retaliation at CALPELRA Training Conference

03 Nov 2009 00:00:00 -0800

November 3-6, 2009 - Monterey, CA

BB&K attorneys Arlene Prater and Nicole Elemen presented, "Stop Playing Retaliation Roulette!" at the California Public Employers Labor Relations Association Annual Training Conference. The session provided practical tips for protecting an agency from retaliation claims arising from discipline, leave, accommodation, performance, layoffs, and other issues.

For more information on the conference, visit the CALPELRA website.