As Charter School Union Organizing Increases, Employers Must be Vigilant in Opposing Organizing Efforts

In recent years, there has been an uptick in union organizing focusing on California charter schools.   Traditionally, education related labor groups focused on organizing large public school districts, but with over 1,200 charter schools in California, groups like the California Teachers Association have shifted gears to try to bring unions into charter schools. Such organizing efforts often occur surreptitiously, and relatively quickly; if charter schools are not vigilant in their approach to labor groups, they can quickly be entangled in lengthy union negotiations which can divert attention from curriculum development and student growth. 

Under the Educational Employment Relations Act (the “EERA”), which governs labor relations in public and charter schools in California, a labor organization may be certified as an exclusive bargaining representative simply by proof of majority support. Unless the school disputes the bargaining unit sought by the union, the school is obligated to recognize the union, generally without an election. Once a showing of majority support is made, the Public Employment Relations Board (“PERB”) will certify a union and require the employer to begin bargaining in good faith with the union. From that point forward, the school must meet and negotiate in good faith with the union over all terms and conditions of employment, and is generally unable to make changes to these matters pending the exhaustion of negotiations.  

In addition, and even prior to full negotiations with an “exclusive representative,” the EERA requires the school employer to “meet and confer” with an “employee organization” over fundamental employment matters. While this latter obligation is less onerous that full-fledged traditional bargaining, it is important and may be used by a group of teachers as a precursor to full bargaining prior to the time the Union gains majority support.  In either case, failure to recognize the bargaining obligation conferred under the EERA may subject the public school employer to an Unfair Practice Charge to be litigated before the PERB; the predominate agency which adjudicates cases brought under the EERA.  

Based upon growing union interest in gaining new membership, the battle for unionizing charter school teachers has increased dramatically in recent years. With over 1,200 charter schools in California, and only a small fraction of those schools being represented by a labor union, unions have increased focus on targeting charter schools to increase union membership.  Recently, CTA targeted California Virtual Academies (“CAVA”), a group of eleven separately managed and operated online charter schools spanning across California. PERB, in an unprecedented decision, granted CTA’s petition to represent all CAVA schools as a collective group, even though each CAVA charter is demonstrably a separate public school employer under the EERA. PERB’s landmark decision makes it much easier for the CTA or other education union to organize certificated teachers who work for charter schools which are commonly branded or within a charter network. The CAVA decision will have far-reaching impact as UTLA is engaged in ongoing organizing efforts in Los Angeles on Alliance College Ready Schools, a group of twenty-six different charter schools.  

PERB’s recent decisions affecting union and employee rights to organize have been decidedly pro-union, and there is no reason to expect this trend to reverse. Therefore, it is critical that charter schools be vigilant of employee rights and nascent union organizing. Under the EERA, a public school employer may not threaten, interfere, coerce, or discriminate against employees because they have exercised their rights to join a union or otherwise engage in union organizing activities. However school management also has countervailing rights to non-coercive and non-threatening statements of facts and opinions about unions and union activities; such messaging should be done with the advice of counsel. Moreover, under the EERA, teacher unions may access employee work areas, bulletin boards, mailboxes and other means of communicating with teachers they seek to represent. PERB has taken a liberal view of union access rights, and has held that, in its efforts to organize and represent teachers, a union may have  employee email addresses and disseminate its message and literature over the school’s email server. It is also recommended that any access restrictions policies, or other rules or policies which may affect union organizing rights under the EERA be in writing, and narrowly constructed under the guidance of knowledgeable legal counsel. We further recommend that any such rules be formally adopted by the charter school’s governing body prior to the discovery of a union organizing campaign.

 Finally, in the event of union organizing,  the charter school employer should consider whether to seek jurisdiction under the National Labor Relations Board (“NLRB”) under the National Labor Relations Act (“NLRA”), which is the private-sector analog to the EERA. In some cases,  charter schools have done so successfully to gain advantage of the NLRB’s election procedures prior to union certification. Deferral to NLRB jurisdiction and election procedures may give teachers a second chance to reject union representation after having signed a union card or petition without full information about union dues and fees, and the uncertainty of union representation and negotiations.

Unfortunately, for charter school management and teachers alike, union organizing may come quickly, and in stealth, making it difficult or impossible to get all the information out before it is too late. Vigilance and knowledge are the key and it is never too early to air out the issues so that teachers may know what they are getting into before they sign union cards or petitions. If you believe your charter school may be a union target, or that union organizing may be underway, please call us immediately so that you may know your rights and obligations under all applicable laws and regulations.

CA Revives Former DJ’s Disability and Leave Claims Against Univision Radio

What is a disability under the Fair Employment and Housing Act? When are employers on notice to provide employees leave under the California Family Rights Act?  These were some of the questions addressed in the California Court of Appeals (Second Appellate District) November 15, 2016 decision, Soria v. Univision Radio Los Angeles, Inc. 

Click here to read the full article about this decision on our Disability, Leave & Heath Management Blog.

Soto v. Motel 6 Operating, L.P.: Employees’ Wage Statements Need Not Include Accrued Vacation Time Prior to Termination

All California employers should know by now that if they have a paid vacation policy, the vacation benefits constitute a form of “wages” under California law. (See Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1103; Suastez v. Plastic Dress-Up Co. (1982) 31 Cal.3d 774, 784.)  California employers are also likely readily familiar with the requirements of Labor Code section 226(a), which require employees’ wage statements to contain certain information, including gross wages earned.

But absent a vacation pay-out upon the termination of the employment relationship, are employers required to include the monetary value of accrued vacation time in employees’ wage statements under Section 226(a)? The answer is no, as held by the Court of Appeal on October 20, 2016 in Soto v. Motel 6 Operating, L.P.

In so holding, the Court of Appeal found that neither the statutory language of section 226 nor its statutory purpose supported the position that employers are required to list the monetary amount of earned vacation pay on each itemized wage statement.

The court first noted that despite the fact that section 226(a) was highly detailed and contained nine separate categories of information that must be included on wage statements, the section did not identify accrued paid vacation as one of these categories. It rejected the argument that an accrued vacation benefit fell within the definition of “gross wages earned” and “net wages earned” categorized in section 226(a), because courts recognized that although vested vacation time vested as labor was provided, unused vacation time did not become a quantifiable vacation wage until the employee separated from employment.  (Church v. Jamison (2006) 143 Cal.App.4th 1568, 1576-1577.)

The court also found support for this principle in the language of Labor Code section 227.3, which required all vested vacation to be paid to the employee “as wages” at his final rate upon termination, which lead to the reasonable inference that prior to termination, accrued vacation pay was not a “wage.” The court further observed that before separation, the amount of vacation pay to which the employee might be entitled was not ascertainable, since the amount of unused vacation and an employee’s final rate may change.

Additionally, the court looked at the provisions of section 226(a) as a whole, instead of focusing solely on the statutory term “wages.” These provisions stated that at the time of each payment of wages, the employer must furnish an accurate itemized statement of these earned wages.  Since unused vacation pay was not paid to the employee until the termination of the relationship, and the monetary value of the unused vacation pay could not be determined until the termination date, the court found it illogical to extend the requirement that an employer identify earned “wages” to accrued vacation benefits.

Finally, the court reviewed the statutory purpose of section 226(a), which was to document the paid wages to ensure the employee was fully informed regarding the payment of those wages.  Requiring the employer to identify items that were not part of the employee’s current monetary compensation did not further this legislative purpose.

California Supreme Court Asked to Consider Associational Disability Discrimination Case

On October 7, 2016, Dependable Highway Express filed a petition asking the California Supreme Court to review a decision to allow a non-disabled employee to pursue his claim of association based disability discrimination.

Click here to read the full article and implications of the case at our Disability, Leave & Heath Management Blog.

Senate Bill 1241: New Legislation Requiring Employment Disputes to be Adjudicated in California Under California Law

It is common practice for employers to utilize forum selection and choice of law provisions in employment agreements in order to require employees to have employment-related disputes adjudicated outside of California and/or under the law of a state other than California. There are a myriad of compelling reasons an employer would seek to include such provisions in its employment law contracts, such as the desire to have disputes adjudicated in a state with laws that are more favorable to employers or a preference to litigate in the state where an employer’s principal place of business is located.

However, starting January 1, 2017, Senate Bill 1241 (“SB 1241”) will prohibit employers from requiring an employee who resides and works in California to agree, as a pre-requisite to employment, to adjudicate disputes outside the state and/or under the law of a state other than California. Accordingly, any provisions in contracts entered into, modified or extended on or after January 1, 2017 that violate SB 1241 are voidable at the request of the employee and any dispute regarding a voided provision must be adjudicated in California under California law. What’s more, if an employee elects to enforce his rights under Labor Code Section 925, the statute provides a basis from which the employee can be awarded attorneys’ fees.  The goal of SB 1241 is to ensure that employees working in California are not deprived of the “substantive protection of California law with respect to a controversy arising in California.” SB 1241.

Notably, SB 1241 does not apply to contracts entered into with an employee who is individually represented by legal counsel in negotiating the terms of an agreement containing forum selection and choice of law provisions.

In advance of 2017, employers who have contracts with employees who live and work in California should audit their employment agreements in order to ensure they do not contain provisions that would violate SB 1241.

Impacts of Proposition 64 on California Employers

California voters have decided on a number of important Propositions yesterday. Of the Propositions receiving majority support, California employers may particularly wonder about the potential impacts of Proposition 64, which will legalize the recreational use of marijuana.  Below are some potential impacts of Prop 64 on Employers in California:

  • Proposition 64 is not expected to affect an employer’s workplace drug policies. Proposition 64’s primary component is the decriminalization of recreational marijuana use, not banning or restricting an employer’s ability to regulate marijuana usage in the workplace.
  • Proposition 64 explicitly allows public and private employers to enact and enforce workplace policies pertaining to marijuana.
  • Proposition 64 explicitly provides it does not amend, repeal, affect, restrict, or preempt “the rights and obligations of public and private employers to maintain a drug and alcohol free workplace or require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the workplace, or affect the ability of employers to have policies prohibiting the use of marijuana by employees and prospective employees, or prevent employers from complying with state or federal law.”
  • Under the Controlled Substances Act, Marijuana remains a Schedule I drug (a designation for controlled substances prone to abuse and psychological/physical dependence). Hence, employers can still rely on federal law to refuse to hire applicants who tested positive for marijuana use.
  • In the meantime, employers should review their drug policies to ensure that potential applicants and employees clearly understand the expectations on marijuana use.

Complimentary Webinar Series: California Legal Update

The California employment law landscape is ever-evolving. Watch a recording of our California Legal Update Webinar Series to learn about the latest changes and how they affect employers.

  • California Legislative Update
    This presentation covers employment laws that have been enacted in California over the last year and proposed bills that, if passed, will affect California employers. Learn about the impact these laws will have on companies across California.
  • California Paid Sick Leave Update
    Paid sick leave is proliferating across the country, and California is no exception.  Here we will explore the ins and outs of California’s state sick leave law, plus City of Los Angeles, San Diego, San Francisco, Oakland, and other local sick leave ordinances.  In addition, we will discuss strategies for complying with this patchwork quilt of California sick leave laws.
  • California Wage and Hour Update
    This session will cover the upcoming Dec. 1, 2016 Department of Labor Final Rule salary basis test minimum increase going into effect; California minimum wage increases; the California salary basis test; updates on misclassification and overtime; independent contractor misclassification; and class actions/PAGA; and California’s Fair Pay Act.

The DFEH Modifies Proposed Regulations on Use of Criminal Records For Employment Decisions

On September 7, 2016, the California Department of Fair Employment and Housing (“DFEH”) announced modifications to its proposed regulations originally promulgated on February 19, 2016, governing the use of criminal history in employment decisions.  The new regulations are intended to prevent disparate impact discrimination against protected classes such as gender, race, and national origin.  If passed, the new modified regulations will impose more restrictions on employers, including a burden shifting test.

The September 2016 proposed regulations provide that a policy or practice of basing employment decisions on criminal records having an “adverse impact” on an applicant or employee must be “both job-related and consistent with business necessity.”

The Applicant or Employee’s Burden: “Adverse Impact”

Under the proposed regulations, the applicant or employee must show “adverse impact.”  “Adverse impact” is defined as “disparate impact” under the EEOC (i.e., a disproportionately adverse effect on members of a protected class compared to non-members of the class).  The proposed regulations add that, if the applicant or employee can show “substantial disparities in the conviction records of one or more” protected categories such as gender, race, or national origin, those statistics are “presumptively sufficient to establish an adverse impact.”

The Employer’s Burden: Job Relationship and Business Necessity

Under the proposed regulations, once the affected individual shows adverse impact, the burden shifts to the employer to prove the decision is both job-related and consistent with business necessity.  The employer must show the policy or practice bears a “demonstrable relationship to successful performance on the job and in the workplace and measure the person’s fitness for the specific job, not merely to evaluate the person in the abstract.”

To establish job-relatedness and business necessity, the employer must demonstrate that the policy or practice is “appropriately tailored to the job for which it is used as an evaluation factor.”  This requires taking into account at least the following three factors:

(1) the nature and gravity of the offense;
(2) the time passed since the offence or completion of the sentence; and
(3) the nature of the job held or sought.

The employer must also use one of the two following tests to determine whether the policy or practice is “appropriately tailored:”

(1) a “bright-line, across the board” conviction disqualification which would not depend on individual circumstances; or
(2) an individualized assessment of the circumstances and qualifications of the individuals excluded by the conviction screen.

Under the “bright line” test, the employer must show (1) that its test can properly distinguish between individuals who do and do not pose an unacceptable level of risk, and (2) that the convictions being used as the basis have a direct and specific negative bearing on the person’s ability to perform the duties or responsibilities necessarily related to the employment position.  The “bright line” test is subject to a rebuttable presumption if the conviction is over 7 years old.

Under the individualized assessment method, the employer must investigate the circumstances or qualifications of individuals excluded by the conviction screen.  After conducting the individualized assessment, the employer must then take three additional steps:

(1) provide specific notice to the affected individuals that they have been screened out because of a criminal conviction;
(2) provide a reasonable opportunity for the individuals to demonstrate that the exclusion should not be applied to their particular circumstances; and
(3) consider any additional information provided.

Under both the “bright-line” and “individualized assessment” tests, the employer must give impacted individuals notice of the disqualifying conviction and a reasonable opportunity to present evidence that the information is factually inaccurate.  If inaccuracy is demonstrated, that record cannot be used in an employment decision.

The inquiry does not end there.  Even if an employer demonstrates that its policy or practice is job-related and consistent with business necessity, impacted individuals may still prevail if they can demonstrate that there is a less discriminatory policy or practice that serves the employer’s goals as effectively as the conviction screen.  These may include, for example, a more narrowly targeted list of convictions or another form of inquiry that evaluates job qualification or risk as accurately without significantly increasing the cost or burden on the employer.

Jackson Lewis attorneys are available to help employers navigate these issues.  Should you have any questions about the proposed regulations, please feel free to contact Heath Havey at heath.havey@jacksonlewis.com, or the Jackson Lewis attorney with whom you regularly work.

SB 1241: Forum Selection and Choice of Law Clauses The Long Arm of California Law Just Got Longer

For employers with California employees, there seems to be no way to avoid California’s complicated and protective employment laws, and things just got a bit more complicated.

On September 25, 2016, Governor Brown signed into law SB 1241, which prohibits employers from requiring California employees to litigate or arbitrate employment disputes outside of California or under the laws of another state.

SB 1241 applies to any contract entered into, modified, or extended on or after January 1, 2017. The new law prohibits so called “choice of law” and “forum selection” clauses that require employees who live and work in California to bring their employment claims in jurisdictions other than California or under the laws of another state.  Any provisions of a contract that contain prohibited choice of law and forum selection clauses are voidable by an employee, meaning that the dispute will be decided in California under California law.  The law also provides that the court can award the employee attorney’s fees, in addition to an injunction, when an employee successfully challenges the prohibited choice of law and forum selection clauses.

Key Limitations of SB 1241

Despite its broad impact, the law is subject to a number of key limitations.

  1. It does not apply to existing contracts unless they are modified or extended on or after January 1, 2017.
  2. It only applies to employees who “primarily” reside and work in California.
  3. Therefore, non-California choice of law and forum selection clauses may be permissible for employees who primarily reside outside of California even though they do work in California.
  4. It only applies when agreement to the choice of law and forum selection clauses are a “condition of employment.”
  5. Although the law is not clear, presumably contracts dealing with ancillary issues such as job benefits, bonus programs, etc., may not be covered.
  6. Only the choice of law and forum selection provisions, not the entire contract, are voidable.
  7. The law does not apply to contracts where the employee is individually represented by an attorney in negotiating the terms of the agreement.

Best Practices for Employers

Employers should review their employee agreements to determine if they require, as a condition of employment, choice of law and forum selection clauses, which are prohibited by the new law. If so, employers should modify those agreements to provide an express exemption for California employees with respect to the choice of law and forum selection clauses and ensure that the remaining portions of the agreements are consistent with California law.

Jackson Lewis attorneys are available to help employers navigate these issues.  Should you have any questions about the new law, please feel free to contact Sander van der Heide at sander.vdheide@jacksonlewis.com, Dale R. Kuykendall at Kuykendd@jacksonlewis.com, or the Jackson Lewis attorney with whom you regularly work.

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