AFTER SCHOOL PROGRAMS

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1 2014 TABLE OF CONTENTS After School Programs...1 Business & Facilities... 2 Education...5 Employment...5 Higher Education...10 Mandated Reporters...11 Online Privacy...11 OSHA...11 Pupils...12 Unemployment Insurance...13 Workers Compensation The Private School Legislative RoundUp is a compilation of bills, presented by subject, which were signed into law and have an impact on the employment and student related issues of our clients. Unless the bills were considered urgency legislation (which means they went into effect the day they were signed into law), bills are effective on January 1, 2015, unless otherwise noted. Urgency legislation will be identified as such. Several of the bills summarized below apply directly to independent and private schools. Bills that do not directly apply to private and independent schools are presented either because they indirectly apply, may set new standards that apply or would generally be of interest to our school clients. If you have any questions about your school s obligations under the new or amended laws as outlined below, please contact our Los Angeles, San Francisco, Fresno, or San Diego office and an attorney will be happy to answer your questions. AFTER SCHOOL PROGRAMS SB 1221 Enacts Changes to the Governance and Funding of After School Programs. SB 1221 brings about many changes to the governance of after school programs. Applicants for after school program grants no longer have to provide a myriad of information to the state Department of Education. Instead, each applicant only needs to provide information on participating students school-day attendance rates and program attendance. Priority for funding is given to programs that previously received funding, that have satisfactorily met their projected attendance goals, and that need funding for the expansion of existing grants or to replace expiring grants. Private Schools Legislative Roundup is published annually for the benefit of the clients of Liebert Cassidy Whitmore. The information in Private Schools Legislative Roundup should not be acted on without professional advice. Los Angeles Tel: San Francisco Tel: Fresno Tel: San Diego Tel: Liebert Cassidy Whitmore lcwlegal.com/publications.aspx SB 1221 changes some of the grants available to after school programs. Instead of receiving a direct grant, schools that establish a program under the After School Education and Safety Program ( ASES ) will receive an after school grant. AB 1221 also replaces supplemental grants with summer grants. ASES programs are eligible to receive summer grants for a maximum of either 30 percent of the total grant amount awarded or for a specified amount for each elementary or middle school. SB 1221 authorizes private schools that receive summer grants to operate three-hour or six-hour day programs. The Department of Education may terminate a program that consistently fails to demonstrate measurable program outcomes for three consecutive years. Measurable program outcomes may be demonstrated by comparing students participating in the program to nonparticipating students at the same school and other factors. SB 1221 authorizes grantees, to the extent allowed by federal and state privacy laws, to submit certain pupil data to an operator of an after school program or summer program with which the grantee has a contract. The current law prohibits the approval of after school programs that are located off school grounds if there is no safe transportation provided to students enrolled in the programs. Under SB 1221, these programs can receive additional funding for lcwlegal.com/independent-school-law

2 2 Private Schools Legislative Roundup transportation if the program is in a low population density area (i.e. fewer than 11 persons per square mile). Private schools that operate after school programs subject to this law should review SB 1221 to ensure that they are in compliance with the numerous enacted changes. (SB 1221, Amends Sections 8421, , 8422, 8423, 8425, 8426, 8427, , , , , , , , 8484, , , and , adds Sections and , and repeals and adds Section 8428 to the Education Code.) BUSINESS AND FACILITIES AB 26 Revises Definition of Construction To Include Post-Construction Clean-Up Work for Prevailing Wage Jobs. This bill revises the definition of construction, for purposes of public works projects, to include work performed during the post-construction phases of construction. This is specifically intended to include all cleanup work at the jobsite. Existing law requires all employees who work on public works projects costing $1,000 or more to be paid the general prevailing rate of per diem wages (the hourly wage rate being paid to a majority of the workers in a particular craft within a given locality) and the general prevailing rate for holiday and overtime work for the specific location where the public work is to be performed. This bill revises the definition of construction, for purposes of public works projects to also include work performed during the post-construction phases of construction, including, but not limited to, all cleanup work at the jobsite. While the general prevailing wage determination currently includes all final cleanup of debris, grounds, and buildings near the completion of the project, state law did not previously specify that this final cleanup work was included within the definition of public works. The lack of clarity resulted in some public works employees performing cleanup work but not receiving a prevailing wage for that work. Additionally, the lack of conformity made it difficult for contractors who did pay prevailing wages to submit competitive bids for public works projects. This bill now clarifies that, for purposes of public works projects, construction work also includes work performed during the post-construction phases of construction, including, but not limited to, all cleanup work at the jobsite. (AB 26, Amends Section 1720 of the Labor Code, relating to prevailing wage.) AB 1979 Expands Definition of Project to Include Reimbursement Costs Prior to Bond Issuance. This bill expands the definition of project under the California School Finance Authority ( CSFA ) Act ( Act ) to include reimbursement for the costs of acquisition, construction, expansion, remodeling, renovation, improvement, furnishing, or equipping of an educational facility to be financed or refinanced, provided that reimbursement from bond proceeds is required to comply with federal tax law in accordance with an opinion of counsel that supports special treatment under federal tax law. The bill also expands the authority to use the intercept repayment method to include other bond-related costs, and consolidates the caps on the total amount of revenue bonds that may be issued and outstanding at any time under the Act to $4,400,000,000. By way of background, the CSFA was established as a conduit to secure financing for working capital and facilities projects for school districts, charter schools, and community college districts. The CSFA operates under the State Treasurer s Office. According to the Treasurer s Office, because school districts and community colleges can issue general obligation bonds, the CSFA has afforded the majority of its financing to charter schools. Charter schools are the obligor and typically make bond payments through an intercept process. Under this process, the State Controller intercepts state funds allocated to charter schools to make the bond payments. In the initial stages of bond sales funding a project, the entity s governing board will normally adopt an inducement resolution. This resolution allows the entity to begin incurring project-related expenses and to pay for these pre-bond expenses out of existing operating or other funding sources. The entity then reimburses those sources with bond proceeds once the bonds have been sold. Almost all financings issued through CSFA utilize the inducement resolutions and intercepts. However, in 2013, the Attorney General s Office (legal counsel to CSFA) issued an opinion that, while the CSFA Act authorizes proceeds of bond funds to be used for financing or refinancing projects, it does not expressly provide authority to reimburse borrowers for costs incurred prior to the issuance of the bond. Thus, the key purpose behind AB 1979 is to expand the definition of project so that it includes express authority

3 for reimbursement of costs incurred between the inducement resolution and actual bond funding period. Additionally, AB 1979 now expressly authorizes the use of the intercept method to capture and reimburse these and other related prebond issuance costs. (AB 1979 Amends Sections 17173, , and of, and to repeal Section of, the Education Code, relating to school facilities.) AB 2386 Requires Community Care Facilities to Have Carbon Monoxide Detectors. This bill requires all community care facilities, residential care facilities for the elderly, residential care facilities for persons with chronic, lifethreatening illness, and day care centers and family day care homes to have one or more functioning carbon monoxide detectors meeting specified statutory requirements in the facility. It additionally requires the Department of Social Services ( DSS ) to account for the presence of these carbon monoxide detectors during inspections. Although already required for single-family homes, as well as schools, before this bill there was no specific requirement that a carbon monoxide detector had to be installed in non-residential facilities, such as a nonresidential child care facility. Prior to AB 2386, there was no requirement for privately operated child care centers that operated in commercial facilities to have carbon monoxide detectors installed. (AB 2386 Amends Sections and of, and to add Sections , , , , and to, the Health and Safety Code, relating to care facilities.) NOTE: Schools, particularly those with child care facilities, should take action to ensure installation and functionality of carbon monoxide detectors. SB 915 Requires a Test Agency, Where There Has Been a Complaint or a Notice of Inadequate or Improper Test Conditions, to Immediately Investigate. Various requirements are imposed by the Education Code on a test sponsor/agency, with respect to the administration of standardized tests for the purpose of postsecondary education. When a test sponsor/agency intentionally violates one of these requirements, it is liable for a civil penalty not exceeding $750 for each violation. However, the requirements set out in the Education Code do not apply when all test results scores are cancelled due to a complete disruption of the test. Examples of disruptions range from natural disasters to answer sheet printing errors. SB 915 requires a test agency receiving a complaint or notice of an inadequate or improper test condition in administering an Advanced Placement ( AP ) test, to immediately initiate an investigation. The school in charge of the test site is required to cooperate in the investigation and provide the information requested by the test agency within 5 business days. If, after the investigation, the test agency determines that inadequate or improper test conditions prevent it from reporting valid AP test scores, the test agency is required to notify the school in charge of the test site within 2 business days. The school in turn is required to notify the affected students within 2 business days. When an opportunity to retest arises, the school is required to provide the affected students with at least 5 business days prior notice. A retest must be administered within 30 calendar days of the completion of the investigation. SB 915 requires all proctors administering an AP test to create a seating chart, including the seat location of each test subject. The test agency is to provide a seating chart template to be used by each test site. The school in charge of the test site is required to retain and preserve each seating chart for at least a year after the administration of the AP test. If requested, the school is required to submit these seating charts to the test agency to assist with an investigation of a complaint or notice of inadequate or improper test conditions. Violations of these requirements will result in a penalty. (SB 915 adds Section to the Education Code.) SB 1247 Removes Exemptions from Regulations for Certain Private Postsecondary Educational Institutions. The California Postsecondary Private Education Act of 2009 (CPPEA) regulates private postsecondary educational institutions. Beginning January 1, 2016, SB 1247 will amend the CPPEA to remove an exemption for institutions that are approved to participate in veterans financial aid programs under federal law. This will make several private educational institutions subject to the CPPEA.

4 4 Private Schools Legislative Roundup This bill also extends the sunset date for the Bureau for Private Postsecondary Education to January 1, 2017 and requires the Bureau to contract with the Attorney General or other state agencies to train staff to investigate complaints filed with the Bureau. The Bureau is also required to post information on its website, establish a task force by March 1, 2015, adopt minimum operating standards for private postsecondary institutions with respect to offering degrees and accreditation, and establish application processing goals and timelines. The bill also requires the Bureau to develop priorities and to prioritize certain complaints and institutions. SB 1247 will also establish the Student Tuition Recovery Fund and requires the Bureau to adopt regulations governing the administration and maintenance of the fund. Money will be continually appropriated to the fund. The Bureau may also seek repayment from institutions where a violation by the institution results in a payout from the fund. (SB 1247, amends Sections 94801, 94802, 94809, 94813, 94816, 94829, 94837, 94847, 94874, , 94876, 94877, 94878, 94879, 94880, 94885, 94888, 94890, 94891, 94904, 94909, 94910, 94916, 94923, 94924, 94925, , , , 94941, 94945, 94948, and of, adds Sections , , , and to, adds and repeals Sections and of, and repeals and adds Section of, the Education Code.) AB 52 Specifies That a Project Having a Substantial Adverse Change to Tribal Cultural Resources is a Project That May Have a Significant Environmental Impact, Requiring Agency Consultation with Native American Tribes Residing in the Projects Geographical Region. The Native American Historic Resource Protect Act provides that it is a misdemeanor to unlawfully and maliciously excavate or otherwise disturb Native American historic, cultural or sacred sites. The California Environmental Quality Act (CEQA) requires lead agencies to prepare an environmental impact report for a project it determines will have a significant effect on the environment. Agencies must also prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions to the project are not made. Therefore, the lead agency will have to prepare an environmental impact report. The bill requires that lead agencies consult with California Native American tribes traditionally and culturally affiliated with the geographic area of the proposed project in preparing the environmental impact report. However, the consultation requirement is triggered only if that tribe has requested, in writing, that the lead agency inform the tribe of proposed projects and the tribe responds to such a notification within 30 days of receipt and requests a consultation. The agency must begin the consultation process within 30 days of the request. The consultation may include a discussion of proposed mitigation measures. Any agreed upon mitigations shall be recommended for inclusion in the project s environmental impact proposal. (AB 52 amends Section and adds Sections 21703, 21704, , , , , , and to the Public Resources Code.) AB 1104 Adds the Biogas Pipelines to California Environmental Quality Act Environmental Impact Report Exemptions Until January 1, The California Environmental Quality Act (CEQA) requires that an agency engaging in specified projects must prepare an environmental impact report if it finds that the proposed project will have a significant environmental impact. CEQA provides for some exemptions to this requirement relating to activities such as the inspection, repair, replacement, and removal of existing pipelines. This bill, for purposes of the CEQA exemption, expands the definition of pipeline to include pipelines located in Fresno, Kern, Kings, and Tulare counties used to transport biogas. This exemption would apply only if the pipeline meets the definition of biogas in California Code of Regulations title 13, section and satisfies all other existing exemption requirements under local, state, and federal laws. This exemption will only remain in effect until January 1, 2018, unless extended. (AB 1104 adds and repeals Section of the Public Resources Code.) This bill specifies that a project that may cause a substantial adverse change in the significance of a tribal cultural resource, as defined in section of the Public Resources Code, is a project that may have a significant effect on the environment.

5 EMPLOYMENT ARBITRATION AB 2617 and AB 2634 Prohibits Contractual Waivers of Certain Civil Rights Statutes and Expands the Relief Available for Violations of Individual Rights to Include Equitable and Declaratory Relief. AB 2617 provides that no person shall require the waiver of any legal right, penalty, remedy, forum, or procedure for violation of the Ralph Civil Rights Act or the Bane Civil Rights Act, which protect individuals from hate-based crimes of violence, as a condition for entering into a contract to provide goods and services. The prohibition on waivers includes any waiver of the right to file a civil action or complaint, notify the Attorney General or any other public prosecutor or enforcement agency, the DFEH, or any court or other governmental entity. Moreover, a person cannot refuse to enter into a contract with or refuse to provide goods or services to a person that refuses to waive the above rights. Any waiver of rights must be knowing and voluntary, in writing, and not expressly made as a condition of entering into a contract or providing goods or services under a contract. Any person seeking to enforce the waiver has the burden of proving that the waiver was knowing and voluntary and not a condition of entering into the contract. This bill only applies to contracts entered into, altered, modified, renewed, or extended after January 1, Moreover, it does not apply to any agreement to waive any legal rights, penalties, remedies, forums, or proceedings for a violation of this legislation when a legal claim has arisen. AB 2617 will likely make it more difficult for schools to enforce arbitration agreements that are signed at the outset of employment or enrollment for students. Schools should note that this legislation does not apply to general discrimination claims under FEHA, but only to waivers under specified civil rights statutes. AB 2634 is a companion bill which clarifies what potential relief is available to an individual whose exercise or enjoyment of individual rights has been interfered with or attempted to be interfered with. Under current law, where a person or persons interferes or attempts to interfere, by threats, intimidation, or coercion, with the exercise or enjoyment by an individual of rights secured by the state or federal constitutions or state and federal laws, the Attorney General, any district attorney, or any city attorney may bring an action for injunctive or other equitable relief. An individual whose rights have been interfered with may bring a civil action for damages, injunctive relief, or other appropriate equitable relief. Under AB 2634, an individual may now also bring a civil action for equitable or declaratory relief to eliminate a pattern or practice of interference or attempts to interfere with the individual s rights. For example, such relief may extend to certain use of force practices by law enforcement. Schools should be aware that employees or other individuals may have increased ability to obtain injunctive relief from a court on behalf of individuals who are not a party to the litigation. (AB 2617 amends Sections 51.7, 52, and 52.1 of the Civil Code. AB 2634 amends Section 52.1 of the Civil Code.) DISCRIMINATION & HARASSMENT AB 1443 Extends FEHA s Anti-Discrimination and Anti-Harassment Provisions to Unpaid Interns and Volunteers. The Fair Employment and Housing Act (FEHA) currently prohibits employers, labor organizations, employment agencies and certain training programs from engaging in any unlawful discrimination or harassment based on the following protected categories: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. AB 1443 extends protections under the Fair Employment Housing Act (FEHA) to certain individuals in two ways: 1. Prohibits an employer from engaging in unlawful discrimination against any person in the selection, termination, training or other terms or treatment of that person in an unpaid internship, or another limited duration program to provide unpaid work experience for that person; AND 2. Prohibits an employer from engaging in unlawful harassment of an unpaid intern or volunteer.

6 6 Private Schools Legislative Roundup In essence, AB 1443 extends the application of FEHA s anti-discrimination protections to an individual in an unpaid internship or another limited duration program to provide unpaid work experience for that person. Notably, this implies that the newly covered individuals are only those who are in an unpaid internship program or other unpaid program of limited duration to gather work experience. However, volunteers who do not meet that criteria are not included in this definition and will not be covered under FEHA s anti-discrimination protections. Yet, AB 1443 does extend the application of FEHA s anti-harassment protections in a broader fashion to cover both unpaid interns or volunteers in the workplace, regardless of whether they are there to gather work experience. Schools will need to review and revise their policies to comply with AB 1443 and ensure that its protections are implemented in the workplace. Schools will also need to ensure that the same anti-discrimination and anti-harassment policies provided to employees are also provided to unpaid interns and volunteers and that they are notified of reporting and complaint procedures related to allegations of unlawful harassment and discrimination in the workplace. (AB 1443 amends Section of the Government Code.) AB 1660 Prohibits Discrimination Based on Drivers Licenses Issued to Persons Who Cannot Submit Satisfactory Proof that Their Presence in the United States is Authorized Under Federal Law. California law (AB 60) currently requires the Department of Motor Vehicles (DMV) to issue a driver s license to a person who is unable to submit satisfactory proof that his or her presence in the United States is authorized under federal law so long as the individual meets all other qualifications for a driver s license and provides satisfactory proof to the DMV of their identity and California residency. However, the Federal Real ID Act of 2005 also requires that such a driver s license identification that is not based on an individual s actual U.S. citizenship or issued under these circumstances have a distinguishing feature and AB 60 included provisions to satisfy this federal law. Following this, AB 1660 makes it a form of national origin discrimination under the Fair Employment Housing Act (FEHA) for public and private employers to discriminate against a person on the basis that they possess a driver s license granted under AB 60. However, this bill clarifies that any action taken by an employer to comply with any requirement or prohibition under the Immigration and Nationality Act is not a violation of law. This would include any requirement to properly fill out an I-9 Employment Verification Form for employees. Although AB 1660 makes it unlawful to discriminate against an employee based on the fact that they hold a driver s license issued where the individual cannot submit satisfactory proof that his or her presence is authorized under federal law, schools are still required to comply with federal law. (AB 1660 amends Section of the Government Code and to amend Sections , , and of the Vehicle Code.) AB 2536 Expands the Definition of Emergency Rescue Personnel and Clarifies Notice Requirements for Leave Needed as Emergency Rescue Personnel. California law generally prohibits an employer from discharging or discriminating against an employee for taking time off to perform emergency duty as a volunteer firefighter, peace officer, or emergency rescue personnel. AB 2536 clarifies that an employee who is a health care provider must notify his or her employer at the time they become designated as emergency rescue personnel and when they will be deployed as a result of that designation. This bill also clarifies that a health care provider is defined as person licensed or certified under the Healing Arts division of the Business and Professions Code, licensed under the Osteopathic Initiative Act, or licensed under the Chiropractic Initiative Act. This legislation also expands the definition of emergency rescue personnel to include an officer, employee, or member of a disaster medical response entity sponsored or requested by the state, such as the California Medical Assistance Teams (CAL-MAT). AB 2751 Clean-Up Legislation for Unfair Immigration-Related Practices. AB 263 (2013) prohibited an employer from engaging in unfair immigration-related practices against a person for the purpose of, or with the intent of, retaliating against a person for exercising rights under state or local labor and employment laws or ordinances. It was an unfair immigration-related

7 practice to, among other things, threaten to file or to file a false police report. AB 2751 expands the definition of an unfair immigration-related practice to include threatening to file or filing any false report or complaint with any state or federal agency. This bill also clarifies that an employer may not take any adverse employment action or discriminate against an employee based on the employee s lawful change of name, social security number, or federal employment authorization document. Previously, the employer could not discriminate or take adverse action where the employee updated his or her personal information, unless the change related directly to the skill set, qualifications, or knowledge required for the job. The legislation also clarifies that the $10,000 civil penalty in Labor Code section 98.6 for retaliation is payable to the aggrieved worker. (AB 2751 amends Sections 98.6, 1019, and of the Labor Code.) PAID SICK LEAVE AB 1522 Enacts the Healthy Workplaces, Healthy Families Act of 2014 to Establish Paid Sick Leave. Effective July 1, 2015, this legislation entitles employees to accrue and use up to three paid sick leave days in a 12-month period for the diagnosis, care, or treatment of an existing health condition or preventative care for an employee or an employee s family members. Under AB 1522, a family member is a child, parent, parent-in-law, spouse, registered domestic partner, grandparent, grandchild, or sibling. The bill also provides paid sick leave where the employee is a victim of domestic violence, sexual assault, or stalking. This legislation will cover most temporary, extra help, part-time, and seasonal employees, as long as they work 30 days or more within a year of beginning employment. Employees will accrue one hour of paid sick leave for every 30 hours worked, up to 3 days or 24 hours per 12-month period. Employees are allowed to use accrued sick leave beginning on the 90th day of employment. Employers are also required to allow employees to carry over accrued sick days to the following year, up to a cap of 6 days or 48 hours. However, an employer can limit the use of paid sick leave to 3 days or 24 hours in each year of employment. If the employee in the 90 days of employment before taking accrued sick leave had different hourly pay rates, was paid by commission or piece rate, or was a nonexempt salaried employee, then the rate of pay shall be calculated by dividing the employee s total wages, not including overtime premium pay, by the employee s total hours worked in the full pay periods of the prior 90 days of employment. An employer can set reasonable minimum increments of sick leave, not to exceed two hours. Moreover, if the need for paid sick leave is foreseeable, the employer shall provide reasonable advance notice to the employer. If the leave is unforeseeable, notice shall be provided as soon as practicable. The following employees are exempt from AB 1522: Employees covered by a valid collective bargaining agreement if the agreement expressly provides paid sick days or paid leave for sick days, final and binding arbitration of disputes about paid sick days, premium wage rates for all overtime, and a regular hourly rate of pay of not less than 30 percent more than the state minimum wage rate; Employees in the construction industry covered by a valid collective bargaining agreement; Providers of in-home support services; and Employees of an air carrier flight deck or cabin crew members. Schools who already have a paid sick leave policy or paid time off policy in place are not required to provide additional sick days if their current policies satisfy the accrual, carry over, and use requirements of AB 1522 and they provide no fewer than 24 hours paid sick leave each year. Schools that provide paid sick leave will often satisfy most of these criteria, however, the extension of paid sick leave to care for an expanded list of family members is not common and will be a change for many schools. If the current policy does not allow for sick leave to carry over year to year, it must be amended to comply with the minimum carry over requirement up to an accrual cap of 48 hours of sick leave. New Labor Code section 246(h), enacted by AB 1522, will require that all employers, including independent and private schools, provide the amount of paid sick leave available (or PTO leave in lieu of sick) either on the itemized wage statement used in compliance with Section 226 or in a separate writing provided on the designated pay date with the employee s payment of wages.

8 8 Private Schools Legislative Roundup IMPORTANT AB 1522 is vaguely drafted and has left many questions unanswered as to its application. This Legislation does not adequately address the interaction with other statutory provisions or employers existing policies. Any such guidance will most likely come in the form of clean-up legislation or implementing regulations as authorized in the bill from the Department of Labor Standards Enforcement ( DLSE, aka Labor Commissioner ). LCW will continue to provide updates as further interpretation and guidance of this complex bill becomes available. Schools should continue to follow developments on this bill in drafting and implementing policies ahead of the July 1, 2015 effective date. (AB 1522 amends Section of, and to add Article 1.5 (commencing with Section 245) to Chapter 1 of Part 1 of Division 2 of, the Labor Code.) TB TESTING AB 1667 Loosens Requirement for TB Testing for Private School Employees and Volunteers. AB 1667 removes the testing requirement that an employee demonstrate receipt of a negative TB test within the 60 days prior to being hired and undergo testing every four years. Instead, AB 1667 requires that an employee undergo a TB risk assessment within the 60 day prior to hiring and every four years. A TB risk assessment is a tool that assesses and documents an individual s TB symptoms and risk factors, if any. If the TB risk assessment reveals risk factors, then the employee must undergo TB testing to determine if the employee is free of infectious TB. The risk assessment applies to school volunteers unless they will not have frequent or prolonged contact with students. Many schools handbooks contain language regarding TB testing requirements, which schools will need to update to reflect the change in requirements. Schools are permitted under the Health and Safety Code to choose not to apply this requirement to a person who will be employed for less than a year and whose functions do not involve frequent or prolonged contact with students. The State Department of Public Health, in conjunction with the California Tuberculosis Controllers Association, will develop the TB risk assessment questionnaire. This process will be exempt from the rulemaking procedures of the Administrative Procedures Act. (AB 1667, Amends Section of the Education Code and Sections , , , of the Health and Safety Code.) TRAINING AB 1993 Establishes Online Training Module to Educate School Community Members about Bullying and Cyberbullying. The Department of Education shall develop an online training module to assist all school staff, school administrators, parents, students, and community members with increasing their knowledge of the dynamics of bullying and cyberbullying. The online training module will include information about how to identify an act of bullying or cyberbullying and implement strategies to address bullying or cyberbullying. There are resources presently available that describe strategies to prevent and address bullying, but they do not appear to serve as training modules. Schools should obtain and use the online training module once it becomes available to educate the school community about bullying and cyberbullying. (AB 1993, Amends Section of the Education Code.) AB 2053 Expands Supervisory Employee Training to Include Training on Abusive Conduct. When passed by the Legislature in 2003, AB 1825 required employers with 50 or more employees to provide two hours of sexual harassment training to supervisory employees by January 1, 2006 and every two years thereafter, and to new employees within six months of assuming a supervisory position. AB 2503 expands on this harassment training requirement to require that employers also include prevention of abusive conduct as a component of the training and education. As noted in this new law, Abusive conduct is defined under Government Code section (g)(2) as: [C]onduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person s work

9 performance. A single act does not constitute abusive conduct, unless especially severe and egregious. Effective January 1, 2015, schools must modify their AB 1825 supervisor sexual harassment training to include a component on abusive conduct. However, it is important to note that this Legislation does not create a legal cause of action for abusive conduct alone in the workplace under the Fair Employment Housing Act (FEHA) unless such action was taken based on another protected category under the law. Rather, a school s action in addressing such abusive conduct in the workplace would be pursuant to its own policies and rules. While not creating a legal cause of action for abusive conduct in the workplace, the Legislature appears to use AB 2053 to send the message that such behavior should nonetheless not be tolerated in the workplace and affirmative steps should be taken to address any such issues. (AB 2053 amends Section of the Government Code.) WAGE AND HOUR AB Extends the Statute of Limitations for Liquidated Damages to Three Years Where an Employer Pays Less than the Minimum Wage. An employee can bring a civil action against his or her employer to recover civil damages for unpaid wages and recover liquidated damages equal to the amount of unpaid wages, plus interest where the employer paid the employee less than the minimum wage. AB 2074 clarifies that a suit for liquidated damages may be filed at any time before the three year statute of limitations for bringing an action for unpaid wages expires. This legislation was prompted by a recent appellate court case, Bain v. Tax Reducers, Inc. (2013) 219 Cal.App.4th 110, which held that the one year statute of limitations applied to actions for liquidated damages. However, the case was ordered not to be published. Private schools are subject to the California minimum wage laws including penalties for state minimum wage violations and possibly the issuance of liquidated damages. (AB 2074 Amends Section of the Labor Code.) as hours worked and there shall be no deduction from wages. This requirement applies to rest or recovery periods designated by applicable statutes, regulations, standards, or order of the Industrial Welfare Commission, the Occupational Safety and Health Standards Board, of the Division of Occupational Safety and Health. Schools should be aware that employers that fail to comply with the meal, rest, or recovery period requirements shall pay the employee one additional hour of pay at the employee s regular rate of compensation for each workday the meal, rest, or recovery period was not provided. (SB 1360, Amends Section of the Labor Code.) AB 1723 Includes Waiting Time Penalties in Minimum Wage Citations Issued by the Labor Commissioner. An employee who receives less than the minimum wage can bring a claim before the Labor Commissioner to commence and prosecute a civil action to recover unpaid minimum wages and overtime. An employee is also entitled to collect liquidated damages in the amount equal to the unpaid wages, interest on the wages, and reasonable attorney s fees. This Legislation provides that a citation by the Labor Commissioner for failure to pay minimum wages will be subject to any applicable waiting time penalties under Labor Code section 203 in addition to civil penalties, restitution of wages, and liquidated damages. When an employer willfully fails to pay any wages of an employee who is discharged or who quits, the employer may incur a waiting time penalty in which the wages of the employee shall continue until they are paid or an action is commenced, but not to exceed 30 days. Schools should also keep in mind that, as we reported in last year s Legislative Roundup, an employee is not required to exhaust administrative remedies with the Labor Commissioner before filing a lawsuit for unpaid wages. (AB 1723 amends Section of the Labor Code.) SB 1360 Prohibits the Deduction from Wages for Meal, Rest, or Recovery Periods. SB 1360 provides that a meal, rest, or recovery period that is mandated by California law shall be counted

10 10 Private Schools Legislative Roundup HIGHER EDUCATION AB 834 Provides an Alternative Way for Law Schools to Operate Under the California Private Postsecondary Education Act. The California Private Postsecondary Education Act of 2009 provides regulatory oversight for private postsecondary schools. Certain laws schools are exempt from all of or a portion of the Act but may apply for approval to operate under the Act. AB 834 provides that a law school that applies for approval may satisfy the Act s requirement to provide a School Performance Fact Sheet in alternative ways. A law school can comply with the Fact Sheet requirement by (1) complying with the American Bar Association s standard relating to the disclosure of consumer information, (2) providing completion, placement, and bar passage rates, (3) providing salary and wage information of graduates, and (4) providing any additional information it contains that is required by the Fact Sheet. Such law schools must provide information to the Bureau for Private Postsecondary Education annually. Law schools that want to seek approval to operate under the Act should be advised that AB 834 is an urgency statute and scheduled to go into immediate effect. (AB 834, Amends Section of the Education Code and adds Section to the Education Code.) AB 1433 Private Colleges Must Immediately Disclose Reports of Violent Crimes, Sexual Assault, or Hate Crimes to Law Enforcement without Identifying the Victim. As a condition of participating in the Cal Grant Program, private colleges whose campus security authority receives any report from a victim of a violent crime, sexual assault, or hate crime shall immediately, or as soon as practicable, disclose the report to local law enforcement without identifying the victim. The victim s identity shall remain confidential unless the victim consents to being identified after being informed of his or her right to remain anonymous. By July 1, 2015, the governing board of each private college shall adopt and implement written policies and procedures to ensure that any report of a violent crime, sexual assault, or hate crime received by a campus security authority is immediately forwarded to the appropriate law enforcement agency. AB 1433 comes just after the introduction of federal legislation regarding campus safety and accountability, which focuses on protecting students from sexual assault on colleges and universities. To comply with the new law, private colleges that participate in the Cal Grant Program must adopt written policies and procedures about disclosing reports of violent crimes, sexual assaults, or hate crimes to law enforcement and train their campus security authority on how to properly handle such reports. Private colleges must also enact policies and procedures to ensure the identity of the victim remains confidential unless the victim consents to being identified. (AB 1433, Amends Section of the Education Code and adds Section to the Education Code.) AB 1927 Private Colleges Must Adopt Policies for Negotiating the Disbursement of Student Financial Aid on Debit and Prepaid Cards. The governing bodies of accredited private colleges shall adopt policies for negotiating contracts for disbursements of financial aid awards and other refunds onto debit cards, prepaid cards, or preloaded cards. The policies serve the needs of students and ensure that contracts between colleges and financial institutions to disburse a student s financial aid award onto a card comply with federal law. Federal law requires that the policies ensure that the students do not incur costs to open an account to receive a debit, prepaid, or preloaded card, students have convenient access to a branch of the bank where they hold accounts, the card can be widely used, and the card is not portrayed as a credit card. The policies must also prohibit revenue sharing between the college and financial institution, prohibit the sale or sharing of personal information of students, prohibit the financial institution from imposing a transaction fee for use of the card, and provide a clear and conspicuous disclosure to students of all fees and cobranding associated with the card before they opt to open an account. The policies must require the college to disclose the benefits and student responsibilities associated with all financial aid disbursement options. To comply with AB 1927, the governing bodies of accredited private colleges must create and adopt policies that meet all of the requirements prescribed by law. (AB 1927, Adds Section to the Education Code.)

11 MANDATED REPORTERS AB 1432 Requires the State Department of Education to Provide Information Regarding Child Abuse and for Private Schools to Annually Train Mandated Reporter Employees on Detection of Child Abuse. The State Department of Education shall be required to develop and disseminate information regarding the detection and reporting of child abuse to all school districts, county offices of education, state special schools, state diagnostic centers, charter schools, and their school personnel. This information will provide statewide guidance on the responsibilities of mandated reporters, which includes teachers and certain other school employees, and develop instruction for school personnel in the detection of child abuse and neglect. The information will also guide school personnel with how to take proper action in suspected cases of child abuse and neglect and include an online training module from the State Department of Social Services. While AB 1432 only requires school districts, county offices of education, state special schools, state diagnostic centers, and charter schools to train employees who are mandated reporters on the mandated reporting requirements using the online training module, independent and private schools may also want to consider developing such training. (AB 1432, Amends Section of the Education Code and Section of the Penal Code.) ONLINE PRIVACY SB 1177 Creates Restrictions for Operators of Website and Mobile Applications Primarily Used for K-12 Services. Beginning January 1, 2016, website and mobile application operators that provide K-12 services will be prohibited from knowingly engaging in targeted advertising to students or their parents or legal guardians, using information to create a profile about a student, selling a student s information, or disclosing information. Website and mobile application operators are operators of websites or services primarily used for K-12 school purposes and designed and marketed for K-12 school purposes. Operators must maintain reasonable security procedures and practices to protect from any unauthorized access. Operators must also delete a student s information if a school requires deletion of the data. Independent and private schools that utilize websites, online services, online applications, or mobile applications that primarily serve K-12 schools should take steps to ensure the student information is protected. Schools that know or suspect that operators are unlawfully using or selling student information or do not have proper security measures in place should exercise their authority to request the operator delete student information. (SB 1177, Adds Division 8, commencing with Section 22584, to the Business and Professions Code.) OSHA AB 326 Allows Employers to Notify the Division of Occupational Safety and Health ( Cal/OSHA ) of an Employee s Serious Injury, Illness, or Death by . California law currently requires an employer to immediately report an employee s serious injury, illness, or death in the workplace by telephone or telegraph to Cal/OSHA. This bill allows an employer s report to Cal/OSHA to be made by telephone or . Therefore, schools may now begin making reports of serious injury, illness, or death by , in addition to using the telephone to make such a report. A list of Cal/OSHA regional and district offices and their telephone numbers and addresses can be found at: (AB 326 amends Section of the Labor Code.) AB 1634 Limits the Ability of the Cal/OSHA to Modify Civil Penalties. Under existing law, the Division of Occupational Health and Safety (Cal/OSHA) may propose modifications to violations of employment safety laws and civil penalties for those violations. AB 1634 will prohibit the Cal/OSHA from granting a proposed modification to civil penalties for a serious violation unless the employer: Abated the violation at the time of initial inspection; Abated the violation at the time of the later inspection prior to the issuance of a citation; or Signs a statement under penalty of perjury and

12 12 Private Schools Legislative Roundup provides supporting evidence, when necessary, to prove abatement within 10 days after the end of the period fixed for abatement. The bill also provides that the filing of a petition for, or the pendency of, reconsideration of a final order or decision involving a citation classified as serious, repeat serious, or willful serious, shall not stay or suspend the requirement to abate unless the employer demonstrates by a preponderance of the evidence that a stay or suspension will not adversely affect the health and safety of employees. In general, this bill limits the ability for Cal/OSHA to modify civil penalties for serious violations. It also imposes a greater burden on any schools subject to OSHA penalties to prove that they are not required to abate the violation of a final order or decision pending the outcome of a pending appeal of such decision. (AB 1634 amends Sections 6319, 6320, and 6625 of the Labor Code.) PUPILS AB 1271 Encourages Private Schools to Add Mental Health Care Protocols for Students Who Witness a Violent Act to Comprehensive School Safety Plans. Schools are encouraged to expand their comprehensive school safety plans to include protocols to address the mental health care of students who have witnessed a violent act. The Legislature supports the inclusion of guidelines to help students who have witnessed a violent act while on school grounds, while going to or coming from school, during a lunch period whether on or off campus, while going to or coming from a schoolsponsored activity, or at any other time. A safe and supportive learning environment is a necessary foundation for increasing academic achievement, enhancing healthy development, and improving education outcomes. While protocols for the mental health care of students are not mandatory, AB 1271 encourages schools to consider strengthening their comprehensive school safety plans to include such protocols. (AB 1271, Amends Section of the Education Code.) AB 1455 Authorization for Schools to Refer Students Affected by Bullying to School Support Programs. School district superintendents, school principals, or the principal s designee are authorized to refer a victim, witness, or other student affected by an act of bullying committed on or after January 1, 2015 to the school counselor, school psychologist, social worker, child welfare, school nurse, or other school support personnel as appropriate. Superintendents, principals, or the principal s designee may also refer the student who has engaged in an act of bullying to school support service personnel for case management and counseling, or for participation in a restorative justice program. While AB 1455 does not directly apply to independent and private schools, independent and private schools should consider referring victims, witnesses, or other students affected by bullying to the school counselor, psychologist, or other appropriate service. (AB 1455, Amends Section of the Education Code.) AB 2127 Places Limitations on Full-Contact Football Practices and Student-Athletes Who Sustain Concussions or Head Injuries. Concussions and other brain injuries affect thousands of high school student-athletes each year and many of these injuries go undetected because of lack of recognition in symptoms or intentional underreporting of symptoms. All high school and middle school football teams, including those at private schools, are prohibited from conducting more than two full-contact practices per week during the preseason and regular season. Schools are also prohibited from full-contact practices for more than 90 minutes in any single day and are completely prohibited from conducting full-contact practices during the off-season. For all sports, an athlete suspected of sustaining a concussion or head injury is not allowed to return to the athletic activity until the athlete is evaluated by a licensed health care provider and receives written clearance. If the licensed health care provider determines the athlete has sustained a concussion or head injury, the athlete must complete a gradual return-to-play protocol over no less than 7 days under the licensed health care provider s supervision. AB 2127 urges the California Interscholastic Federation to develop and adopt these rules.