New layoff and notice procedures for classified employees

With relatively little fanfare, the Governor signed AB 438, by Assembly Member Eloise Gómez Reyes (D-Grand Terrace) with only a few days left before the signature deadline. The bill, co-sponsored by the California School Employees Association (CSEA), California Teachers Association (CTA), California Federation of Teachers (CFT), and the Service Employees International Union (SEIU), applies the same layoff notice requirements for certificated staff to permanent classified staff. This includes requiring a local educational agency (LEA) to provide notice to a classified employee by March 15 and allowing a classified employee to request a hearing to determine if there was cause for the decision not to renew their employment.

While a broad coalition of education management groups repeatedly raised concerns about tying classified employees to an already flawed layoff procedure, one that would require school employers to issue layoff notices before knowing what school budgets will look like, the author maintained that the bill was necessary to ensure parity and equity between certificated and classified staff. Late in the legislative process, the bill was amended to allow an LEA to issue a layoff notice outside of March 15 if a classified position must be eliminated as a result of the expiration of a specially funded program, provided the employee is given at least 60 days written notice prior to the effective date of the layoff. The new requirements take effect January 1, 2022, meaning LEAs will be required to comply with the new procedures on March 15, 2022.

Liability for disallowed retirement compensation placed solely on employers

SB 278 by Senate Education Committee Chair, Connie Leyva (D-Chino) shifts full liability to employers when compensation on which an active member or retiree’s pension is based is later disallowed by the California Public Employees Retirement System (CalPERS), regardless of whether or not the compensation was included due to employer error. Under the bill, when compensation reported for an active member is determined by CalPERS to be “disallowed compensation,” the employer will be required to discontinue the reporting of that compensation and any contributions made on the compensation that were paid on behalf of the member shall be returned to the member by the entity who reported the disallowed compensation.

For a retiree whose final compensation was based on disallowed compensation, CalPERS will permanently adjust the retiree’s benefit to reflect the disallowed compensation and the entity who reported the disallowed compensation will be required to pay CalPERS the full cost of any overpayment made to the affected retired member as a result of the disallowed compensation. Additionally, late amendments to SB 278 removed the requirement for employers to pay the retired member a lump sum or an annuity based on the disallowed compensation and instead now requires the employer to pay a penalty equal to 20% of the amount calculated as a lump sum. Under the bill, 90% of the penalty will be paid as restitution to the affected retired member and the remaining 10% goes to CalPERS.

The bill distinguishes between disallowed compensation as it relates to an active member and a retiree. In order for the repayment and penalty requirements to apply to a retiree, the following conditions must be met:

• The compensation was reported to the system and contributions were made on that compensation while the member was actively employed.
• The compensation was agreed to in a memorandum of understanding or collective bargaining agreement between the employer and the recognized employee organization as compensation
  for pension purposes and the employer and the recognized employee organization did not knowingly agree to compensation that was disallowed.
• The determination by the system that compensation was disallowed was made after the date of retirement.
• The member was not aware that the compensation was disallowed at the time it was reported.

SB 278 was Senator Leyva’s second attempt at this legislation. Her previous iteration of the bill, SB 266, also passed both houses in 2019 and was on its way to the Governor when, in an unusual move, it was pulled back and placed on the Senate’s inactive file. The Senator had planned to work on the bill in 2020 but the effort was ultimately side-lined, like several bills that year, as a result of the COVID-19 pandemic.

Similar to the previous version of the bill, SB 278 was opposed by a broad coalition, including both city and school management associations, who opposed holding the employer liable for overpayments even in situations where the employer exercised their right to have CalPERS review their compensation proposal and then CalPERS retroactively changed their policy.

State begins shift to eliminate separate reading instruction assessment for teacher credential candidates

After years of discussions surrounding the Reading Instruction Competence Assessment (RICA), and the barrier many in the field feel it poses to prospective teachers, SB 488 by Senator Susan Rubio (D-Baldwin Park) requires the Commission on Teacher Credentialing (CTC), by July 1, 2025, to ensure that approved preliminary multiple subject and education specialist credential Teacher Performance Assessments assess all candidates’ reading instruction competency. SB 488 is a dramatic shift from current practice, which requires those credential candidates to pass the RICA.

SB 488 is just one of the many changes made this year aimed at eliminating barriers to obtaining a credential by providing alternatives for teaching candidates to meet their credential requirements. AB 130, the K-12 Education Omnibus Budget Trailer Bill, also included language to allow candidates to use qualifying coursework to demonstrate their basic skills and subject matter competency, in lieu of taking the California Basic Educational Skills Test (CBEST) and the California Subject Examinations for Teachers (CSET), respectively.

Bill highlights concerns about ability of schools to access relevant criminal history of potential employees

A bill aimed at ensuring that outdated court records do not interfere with an individual’s ability to obtain employment or housing has shed light on the unintended consequents of a 2019 law on the ability of schools to access necessary criminal history of its prospective or current employees.

AB 898 by Assembly Member Alex Lee (D-San Jose) requires the Department of Justice (DOJ), when a probation has been transferred, to submit notice of conviction record relief to both the transferring court and any subsequent receiving court and prohibits a court, upon being notified that a case was dismissed, from disclosing any information concerning the granted relief, except to the person who was granted relief or a criminal justice agency. AB 898 builds on changes first implemented by AB 1076 from 2019. That bill, authored by Assembly Member Phil Ting (D-San Francisco), required the DOJ to grant automatic record relief to individuals who had completed probation without revocation and who were not currently serving a sentence for any offense and significantly limited when a court could disclose information concerning a conviction granted automatic relief pursuant to the bill.

While both bills were looking to give individuals who have received criminal record relief a second chance, both the CTC and LEAs have raised concerns that the bills’ provisions will prevent them from learning of pertinent criminal convictions of potential employees and volunteers. Without the ability to access this conviction information, LEAs are worried they will be unable to fulfill their legal duty to evaluate the fitness of an applicant to serve in a public school around students. Looking ahead to the 2022 legislative session, a coalition made up of both education management and labor groups has raised these unintended consequences with the Legislature and the Administration and is currently working with legislative staff to address this issue and restore to the CTC and LEAs the access they had to criminal records prior to the enactment of AB 1076.

The Governor signed the following human resources bills:

Commission on Teacher Credentialing

• AB 320 (Medina) – Teacher preparation programs: regionally accredited institutions.
  Current law requires the Commission on Teacher Credentialing (CTC) to, among other duties, establish standards for the issuance and renewal of credentials, certificates, and permits. AB 320 defines “regionally accredited,” as that term is applied to institutions of higher education with teacher preparation programs, as either an institution that has been approved or recognized by the Accrediting Commission for Senior Colleges and Universities, the Western Association of Schools and Colleges, the Higher Learning Commission, the Middle States Commission on Higher Education, the Northwest Commission on Colleges and Universities, the New England Commission of Higher Education, or the Southern Association of Colleges and Schools Commission on Colleges, or an institution of higher education that held preaccreditation status at the time the degree of an applicant for a credential was conferred, if that institution achieved full regional accreditation status within 5 years of earning preaccreditation status.
  Chapter 663, Statutes of 2021
• AB 815 (Rivas, Luz) – School nurses: credentialing.
  Current law sets forth the minimum requirements for a services credential with a specialization in health for a school nurse, which include, among other requirements, a baccalaureate or higher degree from an accredited institution for a preliminary credential and, for a professional credential, aN additional year of coursework beyond a baccalaureate degree in a program approved by the CTC. This bill instead requires the baccalaureate or higher degree to be from a regionally accredited institution of higher education. The bill also authorizes the CTC to approve a program offered by a local educational agency (LEA) for one year of coursework beyond the baccalaureate degree.
  Chapter 668, Statutes of 2021
• AB 898 (Lee) – Criminal records: automatic conviction record relief.
  Among other things, AB 898 specifies that, if a court receives notification that a case was dismissed, the court shall not disclose information concerning a conviction granted relief to any person or entity, in any format, except to the person whose conviction was granted relief or a criminal justice agency.
  Chapter 202, Statutes of 2021
• SB 488 (Rubio) – Teacher credentialing: reading instruction.
  Current law requires the CTC to develop, adopt, and administer a reading instruction competence assessment consisting of one or more instruments to measure an individual’s knowledge, skill, and ability relative to effective reading instruction and requires the requirements for the issuance of the preliminary multiple subject teaching credential to include successful passage of one of specified components of the reading instruction competence assessment. SB 488 requires the CTC, by July 1, 2025, to ensure that an approved teaching performance assessment assess all candidates for a preliminary multiple subject credential and a preliminary education specialist credential for competence
  in instruction illiteracy.
  Chapter 678, Statutes of 2021

Human Resources

• AB 289 (Calderon) – Classified school employees: merit system: adoption and termination.
  Upon the filing of a petition for the adoption or for the termination of the merit system for classified employees of a school district or community college district, current law requires the governing board of the district to perform specified activities in response, including, among others, devising an identification system to ensure against fraud in the balloting process, and forming a tabulation committee. This bill requires the devised identification system to also ensure ballot secrecy and prohibits a representative of the district from making any marks upon the ballot envelope or ballot of any employee. However, the bill does allow the tabulation committee to adopt a system of uniformly stamping in a consistent manner and in the same location on all ballots received or all ballots counted, or both of those, to help ensure an accurate count.
  Chapter 88, Statutes of 2021
• AB 306 (O’Donnell) – School districts and community college districts: employee housing.
  The Field Act requires the Department of General Services (DGS) to supervise the design and construction of any school building and, if the estimated cost exceeds $100,000, the reconstruction or alteration of or addition to any school building and requires DGS, for purposes relating to access and use by persons with disabilities, to issue a written approval of the plans and specifications of certain buildings and facilities. AB 306 excludes from these approval requirements any building or facility that serves or is intended to serve as residential housing for school district and community college district teachers and employees, and their families.
  Chapter 49, Statutes of 2021
• AB 438 (Reyes) – School employees: classified employees: layoff notice and hearing.
  AB 438 revises and recast provisions in current law to provide permanent classified school employees and those who become permanent classified school employees with the same rights to notice and hearing with respect to layoffs as are provided to certificated employees of school districts, including teachers and administrators, and academic employees of community college districts. The bill, for the purposes of specified notice and hearing rights, defines “permanent classified employee” to include both an employee who was permanent at the time the notice or right to a hearing was required and an employee who became permanent after the date of the required notice. The bill also provides that when classified positions must be eliminated as a result of the expiration of a specially funded program, written notice of the layoff date and certain rights must be given to the classified employees not less than 60 days before the effective layoff date.
  Chapter 665, Statutes of 2021
• AB 654 (Reyes) – COVID-19: exposure: notification.
  Under current law, if an employer or representative of the employer receives a notice of potential exposure to COVID-19, the employer is required to take specified actions within one business day of the notice of potential exposure, including providing written notice to all employees on the premises at the same worksite that they may have been exposed to COVID-19. Existing law requires, if an employer or the employer’s representative is notified of enough COVID-19 cases to meet the definition of an outbreak, the employer, with the exception of a health facility, to notify the local public health agency within 48 hours, as provided. This bill, among other things, would require the employer, when giving notice to the local public health agency of a COVID-19 outbreak, to give that notice within 48 hours or one business day, whichever is later. The bill would expand the employers exempt from the COVID-19 outbreak reporting requirement to various licensed entities, including, but not limited to, community clinics, adult day health centers, community care facilities, and child day care facilities. The bill would repeal these provisions on January 1, 2023.
  Chapter 522, Statutes of 2021
• AB 1033 (Bauer-Kahan) – California Family Rights Act: parent-in-law: small employer family leave mediation: pilot program.
  The California Family Rights Act makes it an unlawful employment practice for an employer, as defined, to refuse to grant a request by an eligible employee to take up to 12 workweeks of unpaid protected leave during any 12-month period for family care and medical leave, as specified. Current law defines family care and medical leave to include, among other things, leave to care for a parent. This bill adds “leave to care for a parent-in-law” to the definition of family care and medical leave.
  Chapter 327, Statutes of 2021
• SB 270 (Durazo) – Public employment: labor relations: employee information.
  Current law requires public employers to provide certain labor representatives with the names and home addresses of newly hired employees, as well as their job titles, departments, work locations, telephone numbers, and personal email addresses, within 30 days of hire or by the first pay period of the month following hire. This bill, commencing July 1, 2022, would authorize an exclusive representative to file a charge of an unfair labor practice with the Public Employers Relations Board alleging a violation of the above-described requirements only if the exclusive representative gives written notice of the alleged violation and that the public employer fails to cure the violation within 20 calendar days. The bill limits a public employer’s opportunity to cure violations to no more than three times in any 12-month period. Additionally, SB 270 requires PERB to assess a civil penalty of up to $10,000 against an employer if it finds that the employer violated the union’s right to receive the employee information.
  Chapter 330, Statutes of 2021
• SB 657 (Ochoa Bogh) – Employment: electronic documents.
  SB 657 provides that, in any instance in which an employer is required to physically post information, an employer may also distribute that information to employees by email with the document or documents attached. The bill specifies that this does not alter the employer’s existing obligation to also physically display the required posting.
  Chapter 109, Statutes of 2021

Retirement/CalPERS/CalSTRS

• AB 237 (Gray) – Public employment: unfair practices: health protection.
  Under current law, the Public Employment Relations Board (PERB) has the power and duty to investigate an unfair practice charge and to determine whether the charge is justified and the appropriate remedy for the unfair practice. This bill, the Public Employee Health Protection Act, makes it an unfair practice for a covered employer to fail or refuse to maintain or pay for continued health care or other medical coverage for an enrolled employee or their enrolled dependents, for the duration of the enrolled employee’s participation in an authorized strike, at the level and under the conditions that coverage would have been provided if the employee had continued to work in their position for the duration of the strike.
  Chapter 740, Statutes of 2021
• AB 444 (Committee on Public Employment and Retirement) – State and local employees: pay warrants: designees.
  Current law authorizes a state employee to designate with their appointing power a person who may receive the employee’s warrants upon the employee’s death and requires an appointing power, upon sufficient proof of identity from an appropriate designee, to deliver warrants to the person claiming them. Instead of having the appointing power deliver employee warrants to the designee, AB 444, upon sufficient proof of the designee’s identity, requires the appointing power to endorse and deposit the warrant issued to a deceased employee back into the Treasury to the credit of the fund or appropriation upon which it was drawn and then issue a revolving fund check to the designated person in the original amount payable to the deceased employee.
  Chapter 55, Statutes of 2021
• AB 539 (Cooley) – State teachers’ retirement: investment managers and investment advisers: contracts.
  Existing law authorizes the Teachers’ Retirement Board, upon a finding by the board that necessary investment expertise is not available within existing civil service classifications, and with approval of the State Personnel Board, to contract with qualified investment managers, as provided. This bill additionally authorizes the board to contract with investment advisers, as defined, upon the same finding by the board and approval by the State Personnel Board.
  Chapter 619, Statutes of 2021
• AB 845 (Rodriguez) – Disability retirement: COVID-19: presumption.
  This bill, until January 1, 2023, creates a presumption, applicable to the retirement systems that the California Public Employees’ Pension Reform Act of 2013 (PEPRA) regulates and to specified members in those systems, that would be applied to disability retirements on the basis, in whole or in part, of a COVID-19-related illness. Specifically, the bill requires that it be presumed the disability arose out of, or in the course of, the member’s employment. The presumption may be rebutted by evidence to the contrary, but if not controverted, the bill requires the applicable governing board of a public retirement system to find in accordance with the presumption.
  Chapter 122, Statutes fo 2021
• AB 890 (Cervantes) – Public employee retirement systems: investment management: reports.
  This bill, until January 1, 2028, would require the Board of Administration of the Public Employees’ Retirement System and the Teachers’ Retirement Board to provide reports to the Legislature, commencing March 1, 2023, and annually thereafter, on the status of achieving objectives and initiatives, to be defined by the boards, regarding participation of emerging managers or diverse managers responsible for asset management within each retirement system’s portfolio of investments.
  Chapter 472, Statutes of 2021
• SB 278 (Leyva) – Public Employees’ Retirement System: disallowed compensation: benefit adjustments.
  This bill requires that, if the California Public Employees’ Retirement System (CalPERS) determines that compensation for an employee member reported by the state, school employer, or a contracting agency is disallowed, the contributions made on the disallowed compensation, for active members, be credited against future contributions on behalf of the state, school employer, or contracting agency that reported the disallowed compensation and would require that entity to also return to the member any contributions paid by the member or on the member’s behalf. For retired members, survivors, or beneficiaries whose benefits are based on disallowed final compensation, the bill requires, if certain conditions are met, that the employer that reported the disallowed compensation pay CalPERS the full cost of any overpayment made to the affected retired member as a result of the disallowed compensation. SB 278 also requires the employer to pay a penalty equal to 20% of the amount calculated as a lump sum, with 90% of the penalty being paid as restitution to the affected retired member and the remaining 10% going to CalPERS.
  Chapter 331, Statutes of 2021
• SB 294 (Leyva) – Public retirement: leave of absence: service credit.
  Current law entitles an elected officer of an employee organization that is on a compensated leave of absence for purposes of service with an employee organization to retirement service credit in State Teachers’ Retirement System (CalSTRS)and CalPERS if specified conditions are met. Current law limits the maximum amount of the service credit earned during a compensated leave of absence to 12 years. SB 294 removes the 12-year limitation for service credit earned on a compensated leave of absence for purposes of service with an employee organization, as described above. The bill also states that this leave is in addition to any leave to which public employees may be entitled by other laws or by a memorandum of understanding or collective bargaining agreement.
  Chapter 522, Statutes of 2021
• SB 411 (Cortese) – Public Employees’ Retirement System: employment without reinstatement.
  SB 411 eliminates the current law provision under the Public Employees’ Retirement Law (PERL) that prohibits retired California Public Employees’ Retirement System (CalPERS) members from working for an agency participating in the system without reinstatement in the system, unless that employment is otherwise specifically authorized and instead provides that reinstatement is permissive. Additionally, the bill limits when an employer that violates the post-retirement employment rules is required to pay employer contributions plus interest that would have been paid for the period or periods of unlawful employment, to only when a Retired Annuitant is reinstated to active membership.
  Chapter 136, Statutes of 2021
• SB 634 (Committee on Labor, Public Employment and Retirement) – Public employees’ retirement.
  Applicable for CalSTRS’ Defined Benefit Program, current law requires, for applications and documents requiring a signature, that the signature be in a form prescribed by the system. This bill would also apply that requirement to the CalSTRS Cash Balance Benefit Program and the requirement that CalSTRS pay certain Medicare Part A premiums.
  Chapter 186, Statutes of 2021