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Labor Code Legislation Mandating Equal Pay for “Substantially Similar Work”

Labor Code Section 1197.5 has been amended by SB 358 and will become effective on January 1, 2016. The law prohibits employers, including school and community college districts, from paying an employee wage rates less than rates paid to the opposite sex for “substantially similar work.” The work is to be reviewed as a composite of skill, effort, and responsibility, and must be performed under similar working conditions.

An employer paying different pay rates must demonstrate one or more of the following factors to avoid a violation:

  • Seniority system;
  • Merit system;
  • System measuring earnings by quantity or quality of production; or
  • A bona fide factor not based on or derived from a sex-based differential in compensation and is consistent with a business necessity (ex. different education, training, job-related experience).

The factor or factors relied upon by the employer to disprove disparity in wage rates must account for the entire wage differential.

The law also prohibits employers from discharging, discriminating, or retaliating against any employee for actions taken to invoke or assist in enforcement of this section. Employers shall not prohibit the following employee conduct:

  • Disclosing their own wages;
  • Discussing wages with others;
  • Inquiring of another’s wage; or
  • Aiding or encouraging any other employee to exercise their rights under this law.

An employee who has received lower wages than the opposite sex for doing substantially similar work or has been discharged, discriminated, or retaliated against for conduct protected under this section, may bring a civil case against the employer or file a complaint with the Division of Labor Standards Enforcement.

Employers who violate the law by paying lower wages to the opposite sex for doing substantially the same work, are liable to the employee for the amount of wages plus interest the employee lost as a result of the violation, plus an additional equal amount as liquidated damages. The employee will also receive attorney’s fees and costs. If the employee accepts payment in full, this shall constitute a waiver of the employee’s cause of action for unpaid wages plus interest, an equal amount in liquidated damages, and attorney’s fees and costs. A civil suit for payment of different wages must be brought within three years of the cause of action.

Employers who violate the law, by discharging, discriminating or retaliating against an employee for acting in any manner to enforce the law, are liable for reimbursement for lost wages and work benefits including interest, reinstatement of employment, and any other appropriate equitable relief. A civil suit resulting from an employer’s discharge, discrimination or retaliation against employee must be brought within one year of the cause of action.

Employees who file a complaint with the Division of Labor Standards Enforcement under this section grant the Division the authority to commence and prosecute a civil action on behalf of the employee to recover unpaid wages, liquidated damages, and shall be entitled to recover costs of suit.

Districts will not be entitled to reimbursement, pursuant to Section 6 of Article XIIIB of the California Constitution, for costs related to violations of this section.

If you have any questions or need further information relating to SB 358, please contact our office.

SB 532 Amends Education Code § 35012 Regarding Student Board Members

Effective January 1, 2016, Education Code section 35012 regarding student representation on governing boards maintaining one or more high schools is amended to provide:

1. The governing board has 60 days after receipt of a petition for pupil representation to include the nonvoting student within the membership of the governing board. The board may include more than one nonvoting pupil member.

2. The governing board may only eliminate the nonvoting or preferential voting pupil member by approving an agendized motion in open session.

3. SB 532 does not substantively amend the use of “preferential voting” as defined in section 35012.

4. If the Commission on State Mandates determines that SB 532 contains costs mandated by the state, the District shall receive reimbursement pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.

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Use of Lease-Leaseback Contracting Method in light of Davis v. Fresno Unified School District

For the past several years, school districts throughout the State of California have increasingly utilized the lease-leaseback contracting method to complete their new construction and modernization projects. Since 1957, the Legislature has provided an exemption to the normal design-bid-build competitive bidding process under Education Code section 17406(a)(1) which permits a lease-leaseback structure for builder-financed construction.

Using this contracting structure, a school district leases real estate it owns to a construction firm for $1.00 per year and the contractor agrees to build new facilities on that real estate. This gives the contractor sufficient property rights to “leaseback” the property, and serves as collateral the construction firm can use to obtain third-party financing.

School Districts utilizing the lease-leaseback structure have claimed significant monetary and time savings on their public works projects by using a competitive best value selection process rather than awarding strictly on the basis of the lowest responsive and responsible bid. Since the awarded lease-leaseback contractor must build the project for a Guaranteed Maximum Price (“GMP”), with limited exceptions, contractors are incentivized to work closely with the district to minimize change orders and delays in the completion of the project.

Fresno Unified School District’s Project

Relying on Education Code section 17406(a)(1), the Fresno Unified School District’s governing board in 2012 authorized the execution of a contract for the construction of buildings and facilities at a middle school. Under the contracts associated with the project, Fresno Unified was to lease the project site to Harris Construction Co., Inc. (Contractor). The Contractor would then build the project and lease the improvements and site back to Fresno Unified.

The Site Lease made the project site available to the Contractor for $1 in rent. The Facilities Lease provided that the Contractor would build the project in keeping with lengthy “Construction Provisions” and then sublease the site and project back to Fresno Unified in exchange for payments under a “Schedule of Lease Payments.”

The Schedule of Lease Payments was keyed to payments set out in the Construction Provisions, so that, in effect, the funds paid by Fresno Unified under the Facilities Lease were based solely on the construction services performed by the Contractor. The Facilities Lease was scheduled to terminate when the construction project was completed and the final lease payment was made. Construction was completed in 2014.

Fresno Unified was not scheduled to, and did not occupy the school facility until the lease was terminated. Stephen Davis, a local taxpayer and principal at Fresno-based Davis Moreno Construction, challenged Fresno Unified’s arrangement with the Contractor as in violation of the Public Contract Code’s competitive bidding requirements. Davis alleged the school construction project should have been competitively bid because the lease-leaseback arrangement did not create a true leaseback or satisfy the criteria for a statutory exception in §17406.

Davis also alleged Fresno Unified’s board breached its fiduciary duties by approving the costly arrangement, and that the Contractor had an impermissible conflict of interest that rendered the lease-leaseback agreement void.

The District filed a demurrer, which was sustained by the trial court, claiming that courts in similar cases found that site leases, subleases, and pre-construction services agreements entered into by school districts pursuant to Section 17406 were not subject to the competitive bidding requirement to award to the lowest responsible bidder.

On appeal, the Fifth Appellate District reversed the trial court decision notwithstanding that there have been approximately 10 appellate court decisions prior to the Davis opinion which have validated the use of the lease-leaseback documents and structure similar to what the District has been using.

The court held that Davis stated a claim for violation of the requirement for competitive bidding on a public works project by alleging that a statutory exception for school construction did not apply where a school district’s lease-leaseback arrangement with a construction contractor was merely a subterfuge that disguised a traditional construction agreement. Davis construed the competitive bidding exception of §17406(a)(1) to apply only to genuine leases.

The court agreed. By referring to buildings for use of the school district during the term of the “lease,” the Legislature meant an agreement that had the real substance of a lease, and not merely something the parties called a lease. In addition,to meet the primary statutory purpose of providing financing for school construction, the arrangement had to include a financing component.

In this case, Davis sufficiently alleged that the lease at issue was a subterfuge that did not provide financing for the project. Compensation paid to the Contractor was for construction, not for a period of use of the project facilities. In addition, the arrangement did not contemplate that the Contractor and Fresno Unified would proceed under a true landlord- tenant relationship. Instead, Fresno Unified simply paid for construction and took title when that was completed. Davis therefore stated a cause of action for a violation of the competitive bidding requirements normally in place for such a project.

The court clarified, as well, that a qualifying lease-leaseback arrangement must have a term during which the school district uses the new buildings constructed under the arrangement.

Finally, Davis alleged sufficient facts to state a cause of action for a violation of Government Code §1090’s conflict of interest provisions, which also meant he stated a common law claim for a conflict of interest.

Davis’s allegation that the Contractor provided services to Fresno Unified as a paid consultant under the pre-construction services agreement and that this fact was sufficient to raise the possibility that the Contractor was a “public official” subject to conflicts of interest in Government Code §87100.

It is important to note that the appellate court did not determine that the District had improperly used the lease-leaseback structure, only that Davis had alleged sufficient facts to state a cause of action and therefore sent the case back to the trial court for further litigation on the above issues.

Petition for Review of Court of Appeal Decision

Once the Court of Appeal decision becomes final on July 1, 2015, trial courts will be required to follow the Davis decision. On Friday, June 12, 2015, the Board of Trustees for Fresno Unified voted to file a petition for review of the case before the California Supreme Court. The District has until July 10th to file the petition. Once filed, the California Supreme Court has 60 days in which to makes its decision whether to accept review of the case. If the high court accepts review of the case, the appellate court holding in Davis v. Fresno Unified School District will be set aside until the court makes a final decision, which may take more than a year. If either the California Supreme Court declines to accept review of the case or sustains the holding of the appellate court, the appellate court decision will be reinstated retroactively to the June 1, 2015 decision.

Revision of Lease-leaseback Documents

At the June 12, 2015 C.A.S.H. Legislative Advisory Committee meeting held at Long Beach Unified School District in which the Davis opinion was discussed, it was agreed that the lease-leaseback is still a practical and useful tool for school districts and the Davis decision did not change that.

It was the consensus from attendees that pending final resolution of the Davis decision, that school districts revise their existing lease-leaseback documents, as needed: (1) to ensure that a genuine lease is entered into by the parties; (2) that a financing component is included in the lease-leaseback arrangement; and (3) that the school district use the facilities constructed during the term of the lease.

There was no consensus regarding the potential conflict of interest claim other than to avoid if possible from entering into pre-construction services agreements until it is ultimately determined whether a contractor entering into a preconstruction services agreement with the District should be considered an officer or employee of the District subject to Government Code section 1090 and its prohibition from being “financially interested in any contract made by them in their official capacity.”

To comply with these recommendations, our office has revised its standard form of lease-leaseback documents to provide that the lease of completed facilities continue for a period of 6 months following the school district’s acceptance of the project as complete, and that 15% of the project cost be financed by the contractor during this extended 6 month period. Unfortunately, until a final decision is reached, it will not be known whether these fixes are necessary, and if so, whether they are sufficient.

Our office will continue to closely monitor the status of the Davis case as well as any other similar cases and will advise the District accordingly.

Should you have any questions, please do not hesitate to contact Douglas N. Yeoman at (714) 573-0900, or via the contact form on the menu above.

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OSEP Expands Parents’ Right to an IEE to an Area Not Previously Assessed by the School District’s Evaluation

In a letter dated February 23, 2015, the United States Department of Education’s Office of Special Education and Rehabilitative Services (“OSEP) stated that when a parent disagrees with a school district evaluation because a child was not assessed in a particular area, the parent has the right to request an Independent Educational Evaluation (“IEE”) to assess the child in that area for the purpose of determining whether the child has a disability and the nature and extent of the special education and related services that the child needs.

School districts have previously been able to refuse an IEE request if the school district had not first evaluated the student in the area of disability asserted by the parents. The school district was thus assured of having the opportunity to conduct its evaluation prior to any funding of an IEE. OSEP has challenged this restriction if a school district fails or neglects to evaluate a particular area of assessment in its evaluation, asserting that the parent can immediately seek a private evaluation in the area not assessed by the school district, and would not be required to ask for the school district to conduct its evaluation first.

OSEP cited IDEA regulations requiring that, in evaluating each child with a disability, the evaluation must be sufficiently comprehensive to assess the child in all areas related to the suspected disability, and must identify all of the child’s special needs, whether or not commonly linked to the disability category in which the child has been classified. 34 CFR §300.304(c)(4)(6).

The Individuals with Disabilities Education Act (“IDEA”) provides that a parent of a child with a disability is entitled to an IEE at public expense if the parent disagrees with an evaluation obtained by the school district. “Evaluation” is defined as procedures used in accordance with the IDEA and its implementing regulations to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs. Once a child has been fully evaluated in an initial evaluation, a decision has been rendered that a child is eligible under the IDEA, and the required services have been determined, any subsequent evaluation of a child would constitute a reevaluation.

Under 34 CFR §300.502(b)(2), if a parent requests an IEE at public expense, the school district must, without unnecessary delay, either (k) initiate a hearing to show that its evaluation is appropriate; or (ii) ensure that an IEE is provided at public expense, unless the school district demonstrates in a hearing that the evaluation obtained by the parent did not meet agency criteria. A school district can impose cost and geographical parameters on IEEs.

OSEP responses are provided as informal guidance and are not legally binding, but represent an interpretation by the U.S. Department of Education of the IDEA in the context of specific facts presented in inquiries.

Title IX Enforced to Level the Playing Field for Female Student Athletes

In Ollier v. Sweetwater Union High Sch. Dist., 2014 U.S. App. LEXIS 18020 (9th Cir. Cal. Sept. 19, 2014) U.S.C.A. 9th, DAR p. 12983, the 9th Circuit Court of Appeals held that a high school failed to provide or expand equal participation to female athletes in accordance with Title IX.

Female student athletes at Castle Park High School and others filed a class action suit claiming gender discrimination. Students alleged the District failed to provide female student athletes equal treatment and benefits as compared to male athletes. They also alleged that female athletes did not receive an equal opportunity to participate in athletic programs due to the District’s “repeated, purposeful, differential treatment” of female students at the High School. The inequitable and disparate treatment was alleged in the following areas: (1) practice and competitive facilities; (2) locker rooms and related storage and meeting facilities; (3) training facilities; (4) equipment and supplies; (5) transportation vehicles; (6) coaches and coaching facilities; (7) scheduling of games and practice times; (8) publicity; (9) funding; and (10) athletic participation opportunities. In addition, it was alleged that the girls softball coach was fired in retaliation for filing the suit.

The federal district court granted declaratory and injunctive relief on the Title IX claims. The district court concluded that the District violated Title IX in nine different areas, including recruiting, training, equipment, scheduling, and fundraising. The district court also found that female athletes received unequal treatment and benefits as a result of “systematic administrative failures” at the High School, and that the District failed to implement “policies or procedures designed to cure the myriad areas of general noncompliance with Title IX.”

The District argued that injunctive relief should be based on contemporaneous evidence, not on evidence of past harm. The appellate court rejected this argument based upon the trial court’s broad powers to consider evidence presented at trial.

In addition, the District conceded that “female athletic participation” was lower than overall female enrollment, but argued that figures were substantially proportionate for Title IX compliance purposes. The District also promised to strive to lower the percentage. The district court ruled that it is the actual number and the low percentage of females participating in athletics that is controlling. The court also concluded that the District must demonstrate a continuing practice of program expansion as warranted by developing interest and abilities.

The district court granted declaratory and injunctive relief on the claim alleging retaliation. The court also concluded the District violated Title IX when it retaliated against student athletes by firing their softball coach. The district court decided that the student athletes had made out a prima facie case of retaliation: engagement in a protected activity, suffered adverse action, and a causal link between the two.

The United States Department of Justice, Civil Rights Division, Appellate Section, for Amicus Curiae United States of America, weighed in on behalf of student athletes urging summary judgment. The appellate court affirmed the trial court’s rulings on appeal. This case did not consider attorney fees at this time.

Court of Appeal Clarifies Impact of Other Laws on Fitness for Duty Examinations

When an employer determines that an employee may not be able to do his or her job due to a physical or mental condition, a fitness for duty (FFD) examination is the remedy.

But what happens when the employee asserts rights under the Family Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), or the Fair Employment and Housing Act (FEHA)? Two recent Court of Appeal cases answered important issues involved in such cases.

White v. County of Los Angeles

In White v. County of Los Angeles, the Court of Appeal ruled employers can require employees who return to work after leave under the Family and Medical Leave Act (FMLA) to undergo a medical reevaluation related to the health condition for which the employee was granted FMLA leave.

Under the FMLA, an employer must accept the employee’s physician’s certification that the employee is able to return to work. Sometimes however, employers are concerned about an employee’s fitness for duty.

White, a Senior District Attorney Investigator with the Los Angeles County District Attorney’s Office, began experiencing emotional difficulties and erratic behavior in late 2009. Over the next year and a half, these problems negatively impacted her job performance. In mid-2011, White took FMLA leave to undergo mental health treatment. Later that year, White returned to work with a clearance letter from her own doctor.

In early 2012, the DA’s office ordered a medical reevaluation to ascertain White’s capacity to perform her job duties. She refused to appear for the evaluation and subsequently sued. In her suit, she argued that requiring her to undergo the medical reevaluation violated her right under the FMLA to be restored to employment on her doctor’s approval alone.

The lower court issued a permanent injunction preventing the County from requiring a medical reevaluation of White, or from charging her with insubordination for failing to comply with the medical reevaluation. On appeal, the court stated that Department of Labor regulations allow for a fitness for duty examination (FFDE), consistent with the Americans with Disabilities Act (ADA), after the employee’s return to work—when FMLA protections no longer apply.

The court noted that “the FMLA should be interpreted to render the employee’s health care provider’s opinion conclusive on the issue of whether the employee should be immediately returned to work, but to permit the employer to thereafter require a FFDE, if it has a basis to question the employee’s health care provider’s opinion.” Thus, employers that determine an employee must undergo a fitness for duty examination can require a medical evaluation at the employer’s expense after the employee returns to work from FMLA leave.

Kao v. University of San Francisco

The Court of Appeal recently ruled that an employer may conduct a “fitness for duty” examination of an employee where reasonable grounds exist, even when that employee has an alleged disability, without first engaging in the “interactive process.”

In Kao v. University of San Francisco, Professor John Kao engaged in a series of confrontations with other academics at University of San Francisco over time. His coworkers became afraid of him. He angrily responded to innocuous questions, and became enraged at colleagues over seemingly benign interactions.

So, the University began investigating. It retained specialists in workplace violence and threat assessment. The experts recommended that Professor Kao be examined by a professional, who would render a “fitness for duty” opinion. The University explained to Kao that he had to submit to the fitness for duty, or be placed on a leave of absence and excluded from the premises. The University explained in detail the requirements of the FFD exam, including strict limitations on the expert evaluator’s dissemination of information about Kao’s condition.

Kao’s lawyer got involved, and objected to the FFD. As a result, the University placed Kao on a leave. There were further meetings and exchanges with Kao’s counsel, the faculty’s union representative, and the University, to no avail. Kao’s attorney wanted to have a “clear the air meeting,” at which Kao would assure the University he meant no harm.

The University ultimately terminated Kao’s employment, about a year after all the problems started. Kao sued for disability discrimination and defamation, among other things. A jury rejected Kao’s claims and he appealed. Kao argued at trial that the FFD was a medical examination.

Under the Fair Employment and Housing Act, a medical examination of an employee is permissible if “job related and consistent with business necessity.” In addition, Kao argued that the FFD could not be job-related or necessary without the University’s first engaging in the “interactive process” that is part of the “reasonable accommodation” process.

The court concluded that no interactive process was necessary, because Kao did not assert that he had a disability prior to the University seeking the FFD. The court quoted from the jury instruction in defining “job-related and consistent with business necessity”: The jury was instructed in accordance with Government Code section 12940, subdivision (f):

“ ‘John Kao claims that the university wrongfully required a medical and psychological examination (fitness-for-duty or FFD). [¶] . . . The University of San Francisco asserts that the medical or psychological examination (fitness-for-duty or FFD) request was lawful because it was necessary to the university’s business. To succeed, the university must prove both of the following: 1, that the purpose of the FFD was to operate its business safely and efficiently; and 2, that the FFD would substantially accomplish this business purpose. [¶] . . . If the university proves that the FFD is necessary to the university’s business, then the FFD is lawful unless John Kao proves both of the following: 1, that there was an alternative to the FFD that would have accomplished the university’s business purpose equally well; and 2, that the alternative would have had less adverse impact on John Kao.’ ”

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Suspension of Level 3 Developer Fees Expires

On June 27, 2012, the Governor signed Senate Bill (SB) 1016, which in part amended Government Code section 65995.7 to make the authorization for “Level 3” developer fees inoperative through December 31, 2014, regardless of the status of state funding, except under two circumstances. With the Legislature failing by August 31, 2014, to place a statewide school facilities bond on the November 4, 2014 statewide general election ballot, the second such circumstance occurred, resulting in the expiration of the existing suspension of Level 3 fees as of September 1, 2014.

Under the Leroy-Greene School Facilities Act of 1998, commonly known as SB-50, school districts have been able to levy a fee per square foot of development (commonly called a “Level 1″ fee), so long as sufficient justification exists to support that fee. The current Level 1 fees are $3.36 for residential development and $0.54 for commercial. For school districts that meet certain criteria, a “Level 2″ residential fee may be imposed that can be higher than the Level 1 fee, based on a specific statutory formula. The Level 2 fee is unique to each school district and must be supported by a school facility needs analysis (SFNA) and re-authorized annually. In concept, Level 2 fees are the equivalent of what the state assumes will total 50% of the cost of providing facilities for students from new development. The other 50% was to be funded by the state through SB-50.

SB 50 also resulted in the passage of Government Code section 65995.7, pursuant to which school districts eligible for Level 2 fees may also be eligible for Level 3 fees if the State Allocation Board (SAB) certifies that state funds for new school facility construction are no longer available. Level 3 fees are intended to be the equivalent of 100% of the cost of school facilities for new development. If and when state bond funds again become available for facilities, the difference between the Level 2 and Level 3 amounts is to be refunded either to the state or to developers. Thus, Level 3 fees represent a gap filler for when the state is unable to match its share of the cost of facilities for new development.

Prior to school districts’ imposing Level 3 fees, Government Code section 65995.7(a)(1) requires that the SAB must make the determination that state funds are no longer available, and then notify the Secretary of the Senate and the Chief Clerk of the Assembly, in writing, of that determination and the date when state funds are no longer available for publication in the respective journal of each house.

We will be closely monitoring any actions which the SAB may be taking going forward, and will advise you if and when any such action is likely to be taken finding that state funds are no longer available. If you have questions or need further information on changes in public works project labor compliance, please contact this office.

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School Districts’ Enforceable Duty to Protect Students Against Bullying

Click here to access Parker & Covert LLP’s legal guidance on the duty of school districts to protect students against bullying following the case of Hector F. v. El Centro Elementary School District, et al.

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New Legislation on Public Works Contractor Labor Compliance Registration Program

SB 854 (Chapter 28, Statutes of 2014) was signed into law and became effective immediately on June 20, 2014. SB 854 establishes a new public works contractor registration program. These changes are at Labor Code sections 1725.5 – 1776.

All contractors and subcontractors intending to be qualified to bid or be listed in a bid, or perform work on public works projects are now being required to register, and renew their registration annually, online with the Department of Industrial Relations (“DIR”). Registration began on July 1, 2014. (Labor Code section 1725.5(a)(1).) All contractors and subcontractors submitting bids or being listed as a subcontractor on a bid must be registered by March 1, 2015, and only registered contractors and subcontractors will be able to work on contracts awarded on or after April 1, 2015. (Labor Code section 1725.5(e).) The DIR will have a list of registered contractors and subcontractors on its website. (Labor Code section 1771.1(e).) Until the March 1, 2015 bid deadline, and the April 1, 2015 award deadline, districts can continue to accept bids from, and award contracts to, contractors and subcontractors who have not registered under this program.

For school districts and community college districts, the new registration program will mean that the DIR will no longer charge the awarding body for services provided after June 20, 2014 for prevailing wage compliance monitoring and enforcement by the DIR’s Compliance Monitoring Unit (“CMU”). The fees to fund compliance monitoring and enforcement, determine prevailing wage and public works project coverage, and hear appeals will now be paid by the contractors and subcontractors. Contractors will have to pay a $300 registration fee, and an annual renewal fee by July 1 of each year. (Labor Code section 1725.5(a)(1).)

Starting with new contracts awarded on or after April 1, 2015, and for all projects as of January 1, 2016, labor compliance information during a project will be submitted by contractors directly to DIR. (Labor Code section 1771.4(a)(3), (c)(2).)

Existing labor compliance programs remain in effect as to projects funded in whole or in part under Propositions 47 or 55 and awarded before January 1, 2012. (Labor Code section 1771.7(a)(1), (f).) It appears that existing labor compliance programs and requirements remain in effect for other projects currently in progress or to be awarded before April 1, 2015.

An awarding body (district) will be required to electronically submit a PWC-100 contract award notice to DIR within five days of awarding a contract on all projects, subject to SB 854. (Labor Code section 1773.3.)

Starting January 1, 2015, the invitation to bid and the contract documents must specify that the project will be subject to compliance monitoring and enforcement by the DIR. (Labor Code section 1771.4(a)(1), (c)(1).) The awarding body must post, or require the prime contractor to post, specified job site notices. (Labor Code section 1771.4(a)(2).) The invitation to bid and contract documents must specify that all contractors and subcontractors must be registered in accordance with Labor Code section 1725.5, and that no bid can be accepted or contract awarded without proof of the contractor or subcontractor’s current registration. (Labor Code section 1771.1(b).)

The DIR registration will require that the contractor provide evidence of (i) worker’s compensation coverage; (ii) contractor’s license; (iii) no current debarment under the Labor Code or other federal or state law; and (iv) no delinquent liability to an employee or the state for back wages or related damages, interest, fines or penalties pursuant to a final judgment, order, or other determination by a federal, state or local agency or a court, unless the matter is on appeal and has been bonded around. (Labor Code section 1725.5(a)(2).)

Inadvertent listing of an unregistered subcontractor by a prime contractor in a bid can be corrected by the subcontractor being registered prior to or within 24 hours after bid opening, or by substituting out the subcontractor with the consent of the district pursuant to Public Contract Code section 4107. If neither of these occurs, a competing bidder may file a bid protest on the issue, and the district may deem the bid nonresponsive. (Labor Code section 1771.1(c,d).)

Where an awarding body has had a labor compliance program in effect continuously since December 31, 2011, or has a project labor agreement in effect on a project, the DIR “may” exempt a public works project from SB 854. This appears to be on a project by project basis. (Labor Code section 1771.4(b).)

If you have questions or need further information on changes in public works project labor compliance, please contact this office.

Affordable Care Act: Transition Rules for Educational Organizations

Click here to access Parker & Covert LLP’s June 4, 2014 guidance on the Affordable Care Act: Transition Rules for Educational Organizations.

Search of Different Student’s Locker Did Not Violate the Fourth Amendment

In In re J.D. (2014) 225 Cal.App.4th 709 [170 Cal.Rptr.3d 464], the Court of Appeal held that a school’s search of lockers in an area frequented by a student suspected of an off-campus shooting was reasonable under the Fourth Amendment.

While on duty at the school, a Richmond High School campus security officer (CSO) was informed by a student that the day before, while she was on a public bus, she witnessed another Richmond High School student, T.H., pull out a gun and shoot someone. Another student had also told the student witness what T.H. had done with the weapon. The CSO met with school administrators and was directed to detain T.H. and determine if he had any weapons. The CSO also called the Richmond police for help.

Another Richmond High School CSO had frequently observed T.H. hanging around a locker different from the one he was assigned. In fact, on the day of the shooting, the CSO had observed T.H. with his girlfriend in front of locker 2499. The CSO had also advised school authorities that students often shared their assigned locker with other students who were not assigned to that locker for the purpose of concealing contraband such as drugs and other items not permitted on campus. A search of locker 2499 revealed only a couple of books. The CSO was then directed to check the lockers adjacent to locker 2499 because the student had frequented the “area” of 2499. When locker 2501, which was next to 2499, was opened, a backpack containing a sawed-off shotgun was found. In addition to the sawed-off shotgun, the backpack contained school assignment papers belonging to another student, J.D. A Richmond police officer met with J.D., Mirandized him, and thereafter J.D. admitted that the shotgun in the backpack belonged to him. J.D. stated that he was bothered by other students at the school and possessed the weapon for his safety.

The California Court of Appeal upheld the search of the lockers, finding that the conduct of the school officials was reasonable under the circumstances. The court acknowledged that based on recent events, such as Columbine, Sandy Hook Elementary, and Virginia Tech, school officials now have increased concern in the daily operation of public schools. The court noted that government has a heightened obligation to safeguard students whom it compels to attend school. There is a special need for an immediate response to behavior that threatens either the safety of schoolchildren and teachers or the educational process itself. This, the court found, justifies excepting school searches from the warrant and probable-cause requirement, and applying a standard determined by balancing the relevant interests. Thus, the state has a compelling interest in assuring that the schools meet this responsibility.

Accordingly, the validity of a search on school property should depend on the reasonableness of the official conduct to deal with the particular school problem. In this case, Richmond High School administrators and security staff were informed by an identified student that the weapon used the previous day to shoot a person on a public bus after school may be at the school, possibly in a student’s locker. This information triggered an inspection of the lockers where it was reasonable to believe that a weapon may be found. The administrator’s actions were narrowly focused, and based on the identity of T.H. and an area of the school he was known to frequent. The actions of school security, based on the belief that T.H. may have stored contraband in another person’s locker, were reasonable under these circumstances.

The appellate court found that determining the reasonableness of any search involves a twofold inquiry: first, whether the action of the school officials was justified at its inception, and second, whether the search as actually conducted was reasonably related in scope to the circumstances. Citing U.S. Supreme Court precedent, the court found that under ordinary circumstances, a search of a student by a teacher or other school official will be justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and are not excessively intrusive in light of the age and sex of the student and the nature of the infraction.

The appellate court also concluded that the school’s reasonable response was not prolonged over time nor a widespread checking of all lockers at the high school. The locker (2501) that was adjacent to the first locker checked, was properly examined based on the observations of the CSOs, their experience with student concealment of items in other lockers, and the prompt need to address a serious shooting the previous day. The fact that J.D., rather than T.H., had stored an illegal weapon in locker 2501 did not disturb the legal validity of this search.

Student May Be Transferred To Continuation High School Following Hearing Without Exhausting All Other Means Of Correction

In Nathan G. v. Clovis Unified School District, the California Court of Appeal recently held that a school district can involuntarily transfer a student to continuation high school, without having to exhaust all other means of correction. Education Code section 48432.5 states in pertinent part:

“A decision to transfer the pupil involuntarily shall be based on a finding that the pupil … committed an act enumerated in Section 48900 … . Involuntary transfer to a continuation school shall be imposed only when other means fail to bring about pupil improvement. …”

The court found that the foregoing wording does not require exhausting all other means of correction. Section 48432.5 does require a hearing on request of the student or their parent or guardian prior to an involuntary transfer, which can be in the form of a meeting with the superintendent’s designee.

In an important legal determination, the court also found that, in contrast to a suspension or expulsion, an involuntary transfer does not deny access to public education and does not affect a “fundamental vested right.” Therefore, courts should review whether the administrative findings are supported by the evidence under the “substantial evidence” test, which is more deferential to school districts than the “independent judgment” test. The court concluded that a great deal of deference should be given to an administrator’s decision to discipline a student:

“‘[T]he ‘primary duty of school officials and teachers … is the education and training of young people. A State has a compelling interest in assuring that the schools meet this responsibility. Without first establishing discipline and maintaining order, teachers cannot begin to educate their students. …’ At school, events calling for discipline are frequent occurrences and sometimes require ‘immediate, effective action.’ … To respond in an appropriate manner, ‘“teachers and school administrators must have broad supervisory and disciplinary powers.”’ … (In re Randy G. (2001) 26 Cal.4th 556, 562, 563; see also Reeves v. Rocklin Unified School Dist. (2003) 109 Cal.App.4th 652, 664-665 [“’[D]aily administration of public education is committed to school officials and … such responsibility carries with it the inherent authority to prescribe and control conduct in the schools. The interest of the state in the maintenance of its education system is a compelling one … .’”]