Hansberger & Klein Newsletter – July 2016 Edition
New Pregnancy Disability Notice Requirement
You must post the mandatory changes to California’s Pregnancy Disability Leave notice as of April 1, 2016 if you are a:
• Private-sector employer with 5 or more full- or part-time employees; or
• Public-sector employer of any size.
New Requirement to Adopt Discrimination and Harassment Policy
California employers with five or more employees have an affirmative duty to take “reasonable” steps to prevent and correct discrimination and harassment. Under the new regulations, employers must create detailed written policies for preventing harassment, discrimination, and retaliation. The policies must:
- List all protected groups under the FEHA;
- Allow employees to report to someone other than a direct supervisor;
- Instruct supervisors to report all complaints;
- State that all complaints will be followed by a fair, complete and timely investigation;
- State that the employer will maintain confidentiality to the extent possible;
- State that remedial action will be taken if any misconduct is found;
- State that employees will not be retaliated against for complaining or participating in an investigation; and
- State that supervisors, co-workers, and third-parties are prohibited from engaging in unlawful behavior under the FEHA.Under the new regulations, an employer must distribute its prevention policies to all current and future employees. If 10 percent or more of the workers in a given location speak a language other than English, an employer must also translate its policies into those alternative languages.
AROUND THE STATE AND THE COUNTRY
Wonder The Service Dog Case Heading To The Supreme Court
The Supreme Court is set to hear a case that could have broad implications for schools.
In Fry v. Napoleon Community Schools, the Court will consider the case of Ehlena Fry, who wanted to bring her service dog, Wonder, a goldendoodle, to school. Officials at Fry’s school in 2009 had refused to allow the girl to bring Wonder to school (though they briefly relented for a period of a few months, when the dog was required to remain in the back of the classroom). The school district said in court papers that the girl’s individualized education program, or IEP, called for a human aide to assist her, so the dog wasn’t necessary.
Fry’s parents removed the girl from the school district and filed a complaint with the U.S. Department of Education’s office for civil rights, which investigated and concluded that the district was violating the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973.
The parents subsequently sued for damages under the ADA and the Rehabilitation Act, but they lost in two federal courts. They appealed to the Supreme Court, and the justices asked the Obama administration to weigh in on the legal question in the case. The specific legal question is whether a 1986 federal statute that amended the Individuals with Disabilities Education Act requires families to exhaust procedures under the IDEA when they are suing under the ADA or the Rehabilitation Act. Why does this matter? The ADA and the Rehabilitation Act provide for damages; the IDEA does not.
The U.S. Court of Appeals for the 6th Circuit held in the Fry case that a child with a disability who brings a damages claim under the ADA and the Rehabilitation Act must first exhaust IDEA proceedings “when the injuries alleged can be remedied through IDEA procedures, or when the injuries relate to the specific substantive protections of the IDEA.”
In a brief filed with the justices on May 20, the U.S. solicitor general’s office said the 6th Circuit was incorrect when it ruled that the Fry family must exhaust procedures under the IDEA when they brought claims under the ADA and Rehabilitation Act.
The case will likely be set for argument sometime this fall. If the Supreme Court sides with the Obama administration, the financial implications for charter schools could be significant as they would be exposed to liability for damages under the ADA/Rehabilitation Act, even when a student’s services would normally have been provided solely through the IDEA.
Sick Leave and Minimum Wage in the City of Los Angeles
Effective July 1, 2016, charter schools in the City of Los Angeles must provide different sick leave accrual policies than mandated by the State.
The new paid sick leave ordinance imposes more burdensome paid sick leave requirements on Los Angeles employers. Covered employees must work at least two hours in the geographic boundaries of the City of Los Angeles within a particular week (though the ordinance does not change the State law requirement that the employee must be employed by the same employer for at least 30 days in order to be entitled to such benefits). In brief, the new ordinance requires employees to accrue at least 48 hours of paid sick leave per year (as opposed to the 24 hour State law requirement). Covered employees can begin using paid sick leave on July 1, 2016 or on the 90th day of employment.
If you are using the lump sum method, the employee must be provided with the full 48 hours of paid sick leave at the beginning of year. If you are using the accrual method, you can still use the so-called “1:30 method” (whereby an employee accrues one hour of paid sick leave for every 30 hours worked), but the employee must be allowed to accrue at least 48 hours. In addition, employers may now cap the total number of accrued hours at 72. The ordinance did not change State law that employers are not required to pay the employee for paid sick leave hours that have been accrued on termination, nor the State law requirement that if a terminated employee is re-hired within one year, that employee is entitled to receive the accrued, but unused paid sick leave time.
Finally, the new ordinance expands the definition of a family member to include “any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.”
The changes to the ordinance also changed minimum wage requirements in the City of Los Angeles for employees who work at least two hours in the geographic boundaries of the City within a particular week. For employers with 26 of more employees, the minimum wage rate will increase to $10.50 per hour beginning July 1, 2016. For employers with 25 or fewer employees, the minimum wage rate will not increase to $10.50 until July 1, 2017. Thereafter, the ordinance sets forth the following schedules for minimum wage increases:
For employers with 26 or more employees:
* July 1, 2017: $12.00 per hour
* July 1, 2018: $13.25 per hour
* July 1, 2019: $14.25 per hour
* July 1, 2020: $15.00 per hour
For employers with 25 or fewer employees:
* July 1, 2018: $12.00 per hour
* July 1, 2019: $13.25 per hour
* July 1, 2020: $14.25 per hour
* July 1, 2021: $15.00 per hour
Starting July 1, 2022, the minimum wage rate will increase every July 1st as determined by the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) in the Los Angeles metropolitan area. These adjusted minimum wage rates will be released on the preceding February 1st.
If You Don’t Define Your Sick Leave Policy, California Will Now Do It For You
Under California’s mandatory paid sick leave (“PSL”) law, employers can limit the amount of PSL to 3 days or 24 hours per year (except in Los Angeles). You must communicate this limitation in writing. Without a written policy, your company must use the statutory mandated accrual rate of 1 hour of sick pay for every 30 hours worked. This can result in a full-time employee potentially accruing over 69 hours of PSL per year and being allowed to carry that over to the next year, and so on. That’s nearly 9 days per year if the employee works a 40-hour workweek.
Charter schools must now provide information to families about their health coverage opportunities and enrollment assistance. This is a mandatory requirement.
We are pleased to refer you to a group called ALL IN For Health, which provides free resources to comply with this requirement. has made it easy for schools to do what is needed. To read the law, visit this link.
U.S. Supreme Court Seeks Views on Level of ‘Benefit’ Required in Special Education
The U.S. Supreme Court on Tuesday asked the Obama administration to weigh in on whether it should grant review in a special education case about the level of education benefit required under federal law.
The case in which the justices issued an order on Tuesday, Endrew F. v. Douglas County School District RE-1, raises an important question about which federal appeals courts are divided: What level of educational benefit must a child receive under his or her individualized education program to satisfy the demands of the main federal special education law?
The U.S. Court of Appeals for the 10th Circuit, in Denver, ruled in the case of a Colorado child with autism that because the child’s public school IEP provided him with “some educational benefit,” the Douglas County district had provided a “free, appropriate public education” under the Individuals with Disabilities Education Act. However, the 10th Circuit court panel acknowledged that several other courts of appeals have adopted a higher standard that requires an IEP to result in a “meaningful educational benefit.”
The Supreme Court on May asked the U.S. solicitor general’s office to provide its views. The solicitor general’s office is not under a deadline to file a brief, but we will pay close attention to the filings and update readers once the office does.
Students who have been bullied in school have long had difficulty holding school districts responsible for the acts of students. A decision this week by a federal appeals court extends that streak, and in stark terms.
A Massachusetts student identified in court papers as R.M. was a 12-year-old middle school student who faced alleged bullying by students at his school in 2011. Court papers say that one day in October of that year, R.M. was repeatedly kicked and punched by students who belonged to a gang called “the Kool-Aid Club.”
There is some evidence that R.M. had agreed to the beating as a form of initiation to the club. But after R.M. discussed the situation with the principal, that led to more bullying from the Kool-Aid Club, because he had gotten them into trouble. (And R.M. himself was disciplined for “delaying the investigation.”)
R.M.’s suit alleges acts by fellow students of “table-topping”—in which one bully pushes the victim backward over another student who is on all fours behind the victim—as well as “pantsing,” in which the victim’s pants are quickly pulled down from behind.
The court papers suggest that administrators at Lexington Middle School in Lexington, Mass., at times seemed to take seriously the complaints of R.M. and his mother, but that their responses to the bullying were ineffective. But the suit also alleges school officials asked Lexington police officers to go to R.M.’s house to enforce the compulsory-attendance law when R.M. was refusing to go to school because of panic attacks over being bullied, the court papers say.
R.M. briefly attended a private school, but later re-enrolled at Lexington Middle School. His mother sued the Lexington school district and school administrators, arguing, among other claims, that the actions of the school system and its officials fell with the “state-created danger” theory of liability. That theory has been recognized by the U.S. Supreme Court and lower courts for situations in which acts of the government create or worsen danger to an individual.
The suit contends the district allegedly “turned a blind eye” to the bullying of R.M. and took affirmative steps to disregard his complaints.
A federal district court dismissed the family’s lawsuit, and in a May 23 decision in Morgan v. Town of Lexington, a three-judge panel of the U.S. Court of Appeals for the 1st Circuit, in Boston, unanimously ruled for the defendants as well.
The appeals court held that the suit’s claims that district actions (or inactions) violated R.M.’s 14th Amendment due-process rights did not have much of a chance given 1st Circuit precedent.
In a 2005 case, the panel said, the 1st Circuit court rejected any government liability in the case of a 15-year-old girl who had witnessed a murder and was told she would be provided police protection if she testified in the case.
“She agreed; she was not protected; and she was murdered,” the appeals court said. “We explained that it is not enough to allege something shocked the conscience. The plaintiff had to show that governmental conduct caused the deprivation of the right. We said: The purpose of the Due Process Clause is to protect the people from the state, not to ensure that the state protects them from each other.”
R.M.’s mother “has not alleged the pungent facts that would be required to show that any behavior by school officials was so extreme as to shock the conscience,” the appeals court said.
The court also rejected the family’s state-created-danger claim.
“An alleged failure of the school to be effective in stopping bullying by other students is not action by the state to create or increase the danger,” the court said. “These routine acts of school discipline, truancy enforcement, and administrator- parent conferences are not the vehicle for a substantive-due-process constitutional claim.”
The NCSRC Releases Suite of School Discipline Resources
We are pleased to forward the National Charter School Resource Center (NCSRC), funded by the U.S. Department of Education, suite of resources intended to empower school leaders who are in the process of selecting, crafting, and implementing an intentional approach to school discipline and culture. The descriptions below describe models, tools, and information on best practices the NCSRC has gathered through in-depth interviews and research:
Charter School Discipline Toolkit: A Toolkit for Charter School Leaders: This toolkit, geared to charter school leaders, includes surveys, templates, webinars, workbooks, and publications that are informed by individual interviews conducted with charter school leaders across the nation who have successfully established positive and supportive school environments. It presents five enabling factors that are key drivers in the planning and implementation of discipline reform.
- Define the Scope of Change: Using data to identify opportunities for improvement.
- Create a Vision: Considering research-based solutions to meet school needs.
- Drive Commitment to Change: Engaging critical stakeholders for successful implementation.
- Revise Policies and Procedures: Rethinking discipline policies and practices.
- Sustain Change: Using transparency and accountability to sustain thechange.
Read the toolkit here.
Charter School Discipline: Examples of Policies and School Climate Efforts from the Field: This report highlights four charter schools that have implemented positive school discipline models (New Orleans College Prep, Rowe Elementary in Chicago, KIPP Bay Area, and Health Sciences High and Middle College in San Diego). These schools have implemented innovative and intentional approaches to school discipline and have sustained or improved academic performance while decreasing or having historically low suspension and expulsion rates. Read the report here.
Case Study: Student Discipline and School Climate in Charter Schools: Four video segments serve as companion pieces to the case study report mentioned above.
- Video 1 – Introduction: The Urgency of Improving Discipline Policies and School Climate in Charter Schools
- Video 2 – The Approach to Building a Positive School Climate: The ‘How’ and ‘Why’ of Shaping Fair and Effective Policies and Practices
- Video 3 – Laying the Right Foundation: Getting Buy-in Around Discipline and School Climate Approaches
- Video 4 – Conclusion: The Future of Student Discipline and School Climate
View the case study videos here.
Professional Development Compilation of Resources: This page on the NCSRC website offers hyperlinks to professional units and trainings that were made available through the U.S. Department of Education’s ReThink Discipline campaign. See the resources here.