News & Updates: New Laws Affecting Independent Schools in 2018

2018 brings a number of new legal requirements for independent schools. Below is a summary of the new laws. Please remember that the following update provides general information and is not intended to provide legal advice as to any specific factual situation. If you have questions about the application of these laws to a particular situation, please contact one of the attorneys in our educational organizations practice group.

Policies On Employee-Student Interactions

Beginning in 2018, all public and private K-12 schools that have adopted policies on employee-student interactions must distribute those policies to parents and the public. Education Code Section 44050 requires each school with a policy on employee-student interactions to do the following:

1.  No later than January 1, 2018, post on a public section of the school’s website a copy of or link to its policy on employee-student interactions. The policy must be accessible to the public without a password.

2.  Starting on July 1, 2018, provide a written copy of the school’s policy on employee-student interactions to the parent or guardian of each enrolled student at the beginning of each school year.

Schools may wish to review their policies regarding employee-student interactions before the January 1, 2018 Internet posting deadline.

Amendment to Student Harassment Policy Requirements

While many of the California Education Code’s provisions on sex discrimination do not apply to private schools, current law arguably requires even private K-12 schools to have a written policy concerning sexual harassment by and of students. A 2018 amendment to the California Education Code updates the definition of sexual harassment to include sexual violence.

This amendment is a good reminder that schools should review their student handbooks to ensure that they include a policy against sexual harassment. That policy may also prohibit harassment based on other protected classifications, such as race, sexual orientation, gender identity and expression, national origin and disability. Whether or not legally required, having such a policy also helps schools create a welcoming educational environment for students.

Minimum Salary for California Teachers to be Exempt

A law going into effect in January 2018 gives private schools somewhat greater certainty regarding salary requirements for teachers. Starting with the 2017-2018 school year, Labor Code Section 515.8 requires that, to be exempt, K-12 private school teachers must receive a minimum salary based on salaries paid to credentialed public school teachers (other than teachers with emergency permits, intern permits or waivers). The original statute caused a great deal of uncertainty for private schools, because public school salaries were subject to change throughout the school year, based on negotiations with teachers unions, about which private schools had limited knowledge. . To address this concern, Labor Code Section 515.8 has been amended again. With the new amendments, to be exempt, a teacher in a private K-12 school must meet the following requirements:

1. The teacher must have a bachelors degree or meet the requirements for obtaining a preliminary or alternative teaching credential from the California Commission on Teacher Credentialing or the equivalent certification in another state.

2. The teacher must be primarily engaged in the duty of imparting knowledge to pupils in grades K-12 by teaching, instructing, or lecturing.

3. The teacher must customarily and regularly exercise discretion and independent judgment in performing the duties of a teacher.

4. Full time teachers must earn a salary equivalent to the greater of

a. 100 percent of the lowest salary offered by any school district in the state to a person who is in a position that requires the person to have a valid California teaching credential (and who is not employed in that position pursuant to an emergency permit, intern permit, or waiver); or

b. 70 percent of the lowest schedule salary offered by the school district or county office of education in which the private school is located to a person who is in a position that requires the person to have a valid California teaching credential (and who is not employed in that position pursuant to an emergency permit, intern permit, or waiver).

Note: the 2018 amendment provides that in determining salary rates for budgeting purposes, private schools may consider the public school salaries in effect for up to 12 months prior to the start of a school year.

5. Part-time teachers must earn a pro-rated amount of the minimum for full time teachers that is equal to the proportion of the full-time instructional schedule for which the part-time employee is employed. Thus, for the first time, the minimum salary requirement is prorated for part time teachers, giving schools more flexibility to retain part time teachers on an exempt basis.

Remember:

• The exemption does not apply to tutors, teaching assistants, instructional aides, student teachers, day care providers, vocational instructors or similar employees.
• The minimum salary for employees who are covered by exemptions other than the exemption for teachers (such as the executive and administrative exemptions) may not be prorated for part time employees. To be exempt, employees other than teachers must earn a weekly salary of at least $880 in 2018 (which is equivalent to $45,760/annually), regardless of whether the employee is a full-time or part-time employee. (Note the salary requirement is lower for employers with fewer than 26 employees.)

 

Mandated Reporter Training for Employees of Licensed Childcare Facilities

On or before March 2018, all employees of licensed child day care facilities (including licensed preschools) must complete training on mandated reporting requirements either by completing on-line training developed by the California Department of Social Services or other training approved by the Department. New employees must complete the training within 90 days of hire, and all employees must repeat the training every two years after the first training. The online training is available at http://www.mandatedreporterca.com/. Child day care facilities must maintain proof of employee training for inspection by licensing authorities.

Schools should consider requiring the same level of training for all employees who are mandated reporters, not just preschool employees. While training is not specifically required for employees of private K-12 schools, providing such training is important to ensuring that mandated reporters understand their obligations.

Criminal History Background Checks

Following another national trend, most California employers will be prohibited, starting January 1, 2018, from inquiring about criminal history information on employment applications and from inquiring about or considering criminal history at any time (including interviews) before a conditional offer of employment is made. The new law, however, does not apply to positions for which an employer is required by law to conduct a criminal background check or required to bar employment in a particular position based on a criminal conviction. Because California private schools are required by law to conduct criminal background checks, this new law will not affect private schools. In considering the results of criminal background checks, however, private schools should still distinguish between convictions which bar employment in schools and those that do not. Where a conviction would not bar an applicant from working in a private school, the school should conduct an individualized assessment before deciding whether to employ the individual. Doing so will help avoid claims that the employer’s hiring practices discriminated based on protected classifications such as race, gender or national origin.

Salary History Inquiries

Effective January 1, 2018, California employers (including private schools) are prohibited from inquiring about or considering a job applicant’s prior salary history in determining whether to hire the applicant or how much to pay the applicant. Employers also must provide a pay scale for the position to the applicant upon request. This new law is intended to combat the continuation of historical pay gaps existing along gender and/or racial lines.

An employer may ask about an applicant’s salary expectations, but not their salary history. And while the law states that employers may still consider or rely on salary history information if it is voluntarily provided by the applicant, employers should be cautious about doing so unless they can clearly demonstrate that the information was volunteered, without prompting, by the applicant.
California employers should revise their employment applications prior to January 2018 to remove requests for salary information. Employers also should train all employees involved in the recruitment and hiring process to avoid illegal inquiries. Employers should also consider asking outside employment agencies and recruiting firms to confirm that they will comply with the new law’s requirements since they are prohibited from seeking salary history information.

New DFEH Guidance on Transgender Discrimination

On July 1, 2017, the California Department of Fair Employment and Housing (the “DFEH”) issued new regulations regarding transgender identity and expression in the workplace, which are already protected classifications under state law. These regulations update the definitions of “gender expression,” “gender identity,” “sex,” and “sex stereotype.” The definitions of “gender expression” and “sex” now include the perception of someone’s gender expression and sex.

The new regulations also add a definition of “transitioning,” and clarify that discrimination is prohibited against an individual who is transitioning, has transitioned, or is perceived to be gender transitioning. The regulations define transition as a process in which an individual begins living as the gender with which they identify and can include changes in name usage, participation in employer-sponsored activities, undergoing hormone therapy, surgeries, or other medical procedures.

Employers also must now provide equal access to restroom facilities regardless of the sex of the employee. Employers must allow employees to use facilities that correspond to the employee’s gender identity or gender expression. For all single-occupancy facilities under their control (including those available to the public), employers must use gender-neutral signage, such as “Restroom,” “Unisex,” “Gender Neutral,” “All Gender Restroom,” etc. An employer may not require an employee to use a particular facility

If an employee requests to be called by a certain name or a certain gender identity, employers must respect that request. Employers may only insist on using an employee’s legal name or gender if it is otherwise required to meet a legally mandated obligation. An employer also may not impose a dress standard that is inconsistent with an employee’s gender identity or expression in the absence of a business necessity. Finally, an employer may not inquire or require documentation on sex, gender, gender identity, or gender expression as a condition of employment.

Additionally, as of January 1, 2018, employers required to conduct mandatory supervisor harassment training must include issues related to gender identity, gender expression, and sexual orientation in that training.

Parental Leave Requirement Extended to Smaller Employers

Currently, only employers with 50 or more employees are required to provide leave for parents to care for new babies or children. Effective January 1, 2018, this requirement will be extended to employers with 20 or more employees. Employers must grant eligible employees up to twelve weeks of unpaid leave for the purpose of bonding with a new baby or child within one year of the birth, adoption or foster care placement. To be eligible for leave, an employee must (a) work at a facility were at least 20 employees work within 75 miles; and (b) have 12 months of service and 1,250 hours of service within the 12 months prior to the start of the leave. The employer also is required to maintain the employee’s group health coverage on the same terms as if the employee was actively working and to provide a guarantee that it will reinstate the employee to the same or a comparable position at the end of the leave. While the leave is unpaid, employees have the right to use any accrued sick leave, vacation or other paid time off (as well as applying for Paid Family Leave –“PFL”– benefits with the EDD). In addition, employers in San Francisco are required to supplement PFL benefits under the San Francisco Paid Parental Leave Ordinance.

This new law does not apply to employees who are subject to the FMLA or the CFRA, so this law does not grant an entitlement to leave in addition to the leaves available under those laws. In addition, if both parents work for the same employer, they are only guaranteed a total of 12 weeks’ time off, although the employer may, but is not required to, grant the new parents simultaneous time off.

New California Statute Requires Judicial Warrant for Search by ICE Agents

Many private schools have been grappling with how to make students and their families who may be undocumented feel comfortable attending school at a time when immigration authorities are no longer exempting school sites from immigration raids. A new law may help.

Under a new California statute effective January 1, 2018, California employers are prohibited from voluntarily providing federal immigration enforcement (ICE) agents access to nonpublic areas of their businesses without a judicial warrant. In short, businesses will no longer be permitted to “consent” to an ICE raid of their premises by voluntarily granting access to immigration officials. While many of the provisions of the new law focus on protecting employee information, on its face the law also applies to immigration raids targeting anyone at a location where employees work, including students attending private schools.

NOTE: Under the new law, employers may permit immigration officials access to their workplace or employment records only with a judicial warrant; while an “administrative” arrest warrant is insufficient. So what’s the difference?

• An ICE/administrative warrant is a form signed by immigration officers that names an allegedly deportable individual for arrest. This type of warrant has not been reviewed by a court, and is NOT adequate to permit access to a California place of employment or employee records.
• A judicial warrant is an official court document signed by a judge that names an individual to be arrested or a place to be searched. This IS adequate to permit access to a place of employment or employee records.

Schools should be mindful of this distinction, and be certain to confirm that any submitted warrant has a judge’s signature.

Any school who has contact with immigration officials should be careful to comply with these new requirements, while also keeping in mind that employers must still comply with federal law.