Annual Legal Update California Association of Independent Schools

Annual Legal Update California Association of Independent Schools (CAIS) Trustee / School Head Conference | January 27, 2018 Presented By: Michael Blacher & Donna Williamson

Agenda • • • 2 Sex Discrimination Disability Discrimination Reasonable Accommodations Hostile Work Environment Retaliation Wage and Hour Employee / Student Code of Conduct Labor Relations Independent Contractors Arbitration Agreements Ministerial Exception • • • Recreational Marijuana Use Waivers Mandated Reporting Credit Card Surcharges First Amendment New Legislation: – – – Applications / Salary Information Background Checks / Applications Harassment Policies Immigration Worksite Enforcement Transgender Issues Parental Leave

Sex Discrimination • Summary Judgment Not Appropriate Where Employee Presented Direct Evidence of Discriminatory Statements Based on Her Sex. – Katie Mayes et al. v. Win. Co Holdings Inc. , (2017) 846 F. 3 d 1274. 3

Sex Discrimination • Termination of Pregnant Employee Is an Adverse Action Despite Being Rescinded Later. – Shultz v. Congregation Shearith Israel, (2017) 867 F. 3 d 298. 4

Disability Discrimination • Employer Under No Obligation to Allow Employee to Rescind Resignation. – Featherstone v. S. Cal. Permanente Medical Group, (2017) 10 Cal. App. 5 th 1150. 5

Disability Discrimination • Teacher Who Refused to Sign Contract While on Leave Can Be Terminated. – Druez v. Woodland Hills Private School, 2017 WL 3475167. 6

Reasonable Accommodations • Accommodations Made for Other Employees Provide Guidance as to What is Reasonable. – Atkins v. City of Los Angeles, (2017) Cal. App. 5 th 696. 7

Disability Discrimination • Private Language School Settles with Department of Justice Over Exclusion of Students with ADHD and Autism. – https: //www. ada. gov/lexington_chinese_sa. html. (January 5, 2017) 8

Hostile Work Environment • Unwelcome Hugs for Female Employee Could Create a Hostile Environment Where Behavior Was Pervasive. – Zetwick v. County of Yolo, (2017) 850 F. 3 d 436. 9

Retaliation • Retaliation Claim Survives Where Evidence Shows School Mocked Parents’ Concerns. – G v. Fay School, Inc. (2017)--F. 3 d--, 2017 WL 4381668. 10

Wage and Hour • California Minimum Wage Increased To $10. 50 On January 1, 2017; $11 Per Hour On January 1, 2018, And It Increases $1 Per Year Until It Reaches $15 An Hour On January 1, 2022. • Exception For Employers With 25 Or Fewer Employees. • Local Minimum Wage May Be Higher. 11

Wage and Hour • AB 2230 – Changes the Salary Necessary for Teachers at Private Schools to be Exempt, Effective as of July 1, 2017. • SB 621 – Permits the Salary-Basis Test for Part-Time Teachers at Private Schools to be Pro-rated and Permits Private Schools to Use Public School District Salary Data in Effect from the Prior School Year, Effective as of January 1, 2018. 12

Wage and Hour: New FLSA Salary Basis Test • New FLSA “Salary Basis” Test Struck Down by Court: – Salary Basis was set to Rise to $913/Week ($47, 476/Year) on a Regular Basis. – Current DOL not in Support of Obama-era Rule and Wants to Start from Scratch. – DOL may Now Seek to Increase Current Standard but to a Lower Amount than Obama’s DOL Proposed. – CA Salary Basis Threshold ($43, 680 Except for Teachers) Still Higher than Current Federal. 13

Employee/Student Code of Conduct • AB 500, Requires Private K-12 Schools that Maintain a Section on Employee Interactions With Students in Their Employee Code of Conduct to: – Effective July 1, 2018: Provide a Written Copy of the Section to the Parents/Guardians of all Enrolled Students; – Effective January 1, 2018, Post the Section, or Provide a Link to it, on the School’s Website, in a Manner that is Accessible to the Public Without a Password. 14

Labor Relations • School’s Employee Handbook Policies Regarding Confidentiality, Email and Complaints Violate NLRA. – Voices for International Business and Educations, Inc. d/b/a International High School of New Orleans and United Teachers of New Orleans Local 527, LFT, AFT, Cases 15 -CA-182632, 15 -CA-187456. 15

Labor Relations • Employee’s Termination for Obscene Facebook Rant about Employer Violated NLRA. – NLRB v. Pier Sixty LLC, (2017) 855 F. 3 d 115. 16

Independent Contractors • Burden Is On Employer To Demonstrate Independent Contractor Status. – Linton v. De. Soto Cab Company, (2017) 15 Cal. App. 5 th 1208. 17

Arbitration Agreements • No Agreement to Arbitrate Where Employee Refused to Sign and Stated in Writing That She Would Not Enter Agreement. – Rightnour v. Tiffany and Company, (2017) WL 878448. 18

Ministerial Exception • Catholic School Principal Deemed a Minister Despite Being a Lay Employee. – Fratello v. Archdiocese of New York and St. Anthony’s School, (2017) 863 F. 3 d 190. 19

Recreational Marijuana Use • Proposition 64: – Schools can Prohibit Employees from Being Under the Influence of Marijuana While on Duty – Schools Likely Cannot Prohibit Employees from Using Marijuana While Off-Duty – Schools can Prohibit Student Marijuana use on Campus and at School-Events (Still Illegal to Possess/Use Marijuana if Under Age 21) – Schools can Prohibit some Off-Campus Student Marijuana use (Must Establish Nexus Between Off. Campus Conduct and School) 20

Waivers • Court Rules Multimillion Dollar Verdict Against School Due to Field Trip Injury Not Unreasonable. – Munn v. Hotchkiss School, (2017) 326 Conn. 540. 21

Mandated Reporting • “Sexting” Between Minors Not Protected From Mandated Reporting Requirements. – Mathews v. Harris, (2017) 7 Cal. App. 5 th 334. 22

Credit Card Surcharges • Supreme Court Rules Law Prohibiting Business from Advertising Higher Price for Credit Card Interferes with Free Speech. – Expressions Hair Design v. Schneiderman, (2017) 137 S. Ct. 1144. 23

First Amendment • Supreme Court Rules that Religious School Cannot be Excluded from State Grant Program Based Solely on Religious Status. – Trinity Lutheran Church of Columbia, Inc. v. Comer, (2017) 137 S. Ct. 2012. 24

New Legislation

Applications/Salary Information • AB 168, Effective January 1, 2018: – Adds Labor Code Section 432. 3. – Prohibits an Employer From Seeking Salary History Information From Applicants or Relying on the Salary History Information of an Applicant for Employment as a Factor in Determining Whether to Offer an Applicant Employment or What Salary to Offer an Applicant. § Expressly Authorizes Employers to Consider Salary History That an Applicant Discloses Voluntarily And Without Prompting. – Upon Reasonable Request, Employers Must Provide The Pay Scale For a Position to an Applicant For Employment. 26

Background Checks/Applications • AB 1008, Effective January 1, 2018, Referred To As The “Ban The Box Law: – Does Not Apply To Most School Positions. This Law Exempts Any Position Where An Employer Is Required By Law To Conduct Criminal Background Checks For Employment Purposes Or To Restrict Employment Based On Criminal History. • For Applicable Positions, This Law: – Prohibits Employers From Including On Any Application For Employment Any Question That Seeks The Disclosure Of An Applicant’s Conviction History Until That Applicant Has Received A Conditional Offer. – This Law Requires An Individualized Assessment Where Conviction History Exists, As Well As The Opportunity For An Applicant To Respond To An Initial Determination Of An Employer To Deny Employment Based On Conviction History. 27

Harassment Policies • April 2016 – DFEH Issues New Regulations On Requirements For Workplace Harassment Policies: https: //www. dfeh. ca. gov/wpcontent/uploads/sites/32/2017/06/CAamended FEHAregs. Employers 20160401 Final. pdf • May 2017 - DFEH Issues Administrative Guidance On Workplace Harassment Policies: https: //www. dfeh. ca. gov/wpcontent/uploads/sites/32/2017/06/DFEHWorkplace-Harassment-Guide. pdf 28

Immigration Worksite Enforcement • AB 450, Effective January 1, 2018, Prohibits an Employer From Providing Voluntary Consent to an Immigration Enforcement Agent to: – Enter Nonpublic Areas of the Worksite, Unless the Agent has a Judicial Warrant, Subject to a Specified Exception; and – Access, Review, or Obtain the Employee Records Without a Subpoena or Court Order, Except if Specified Exception Applies. • This Law Also Requires Employers To: – Provide Current Employees with Notices of an Immigration Agency’s Inspection of I-9 Employment Eligibility Verification Forms or Other Employment Records Within 72 Hours of Receiving the Federal Notice of Inspection—using a Template Created by the Labor Commissioner. – Prohibits Employers From Re-verifying Employment Eligibility of a Current Employee when not Required by Law. 29

Transgender Issues • New Regulations, Effective July 1, 2017: – Expands Protections for Employees on Basis of Gender Identity and Expression. • SB 396 Effective January 1, 2018: – Requires Employers (50 Or More Employees) to Provide Training on Harassment Based on Gender Identity, Gender Expression, and Sexual Orientation as Part of Mandated Sexual Harassment Training to Supervisors. – Requires Employers to Post a Poster Developed by the DFEH Regarding Transgender Rights in a Prominent and Accessible Location in the Workplace. 30

Parental Leave • SB 63, The “New Parent Leave Act, ” Expands CFRA Rights As Follows: – Employers With Less Than 50 But At Least 20 Employees Must Provide The Following Parental Leave For Employees With More Than 12 Months Of Service (And At Least 1250 Hours Of Service) With Employer: § To Take Up To 12 Weeks Of Leave To Bond With A New Child Within One Year Of The Child’s Birth, Adoption, Or Foster Care Placement. – Requires The DFEH To Implement A Parental Leave Mediation Program. 31

Questions? Michael Blacher Partner | Los Angeles Office 310. 981. 2031 | mblacher@lcwlegal. com www. lcwlegal. com/our-people/michael-blacher Donna Williamson Partner | San Francisco Office 415. 512. 3050 | dwilliamson@lcwlegal. com www. lcwlegal. com/our-people/donna-williamson 32