In what seems to have become the norm over the past few years, some of the biggest bills for schools this year came in the human resources space. This includes efforts to address the COVID-19 pandemic’s impact on staffing, from expanding the availability of supplemental sick leave for employees impacted by COVID to removing credentialing barriers to get more substitutes into the field, as well as “clean-up” legislation to address unintended consequences of previously enacted laws, like restoring the ability of school employers to see an applicant’s prior convictions. Below is a look at some of the major HR-related bills that were signed into law this year:
Additional transparency and new processes regarding disallowed compensation under CalSTRS.
Following up on last year’s SB 278, by Senator Connie Leyva (D-Chino), which shifted liability to employers when compensation on which an employee’s pension was based is later disallowed by the California Public Employees Retirement System (CalPERS), this year’s AB 1667 by Assembly Member Jim Cooper (D-Elk Grove), puts in similar procedures, beginning July 1, 2024 with regards to disallowed compensation for retirees in the California State Teachers’ Retirement System (CalSTRS). However, AB 1667, which was sponsored by the California County Superintendents, the California Retired Teachers Association, and the California Teachers Association (CTA), goes a step further than SB 278 and also establishes procedures to hold CalSTRS accountable for guidance which school employers rely on and CalSTRS later determines was erroneous. Under SB 278, the employer is liable for disallowed compensation regardless of whether or not it was due to employer error or a change in CalPERS policy applied retroactively.
Specifically, AB 1667 prescribes various requirements in connection with the audit of public agencies and members by CalSTRS, CalSTRS’ interpretation and clarification of rules relating to creditable compensation, CalSTRS’ review of compensation items included in a memorandum of understanding or collective bargaining agreement, errors relating to employer reporting of compensation to the system, and the recovery of payments. With regard to guidance issued by or requested from CalSTRS, the bill provides the following:
- Prohibits new or different interpretations, as specified, from taking effect until after CalSTRS issues notice to employers and exclusive representatives and prohibits the interpretations from applying retroactively to compensation reported prior to that notice, unless state or federal law or an executive order of the Governor expressly requires a retroactive interpretation.
- Deems any compensation the public agency reported in accordance with the resources provided by CalSTRS, as specified, to be CalSTRS’ error and requires CalSTRS to recover the costs, with interest as specified, of the resulting pension overpayment as follows: 85% from the state through a continuous General Fund appropriation and 15% directly from all school employers.
- Beginning July 1, 2023, authorizes an employer or an exclusive representative to submit to CalSTRS a request for an advisory letter. Requires CalSTRS to provide an advisory letter regarding the submission to the employer or exclusive representative within 30 days of the receipt of all information requested, unless an extended period of time is necessary for good cause.
- Deems any resulting overpayment from compensation reported in error by the employer or on behalf of a member to whom an advisory letter applies that was in accordance with CalSTRS’s advisory letter, as CalSTRS’ error and requires CalSTRS to recover the costs, with interest as specified, of the resulting pension overpayment as follows: 85% from the state through a continuous General Fund appropriation and 15% directly from all school employers.
With AB 1667, the bill’s sponsors, as well as CalSTRS, hope that these new procedures will result in greater retirement security for retirees as well as less of the confusion and mistakes for employers that the System’s previous lack of transparency seemed to engender.
Fix allows schools to continue to see most expunged criminal convictions.
A bill from 2019, AB 1076, authored by Assembly Member Phil Ting (D-San Francisco), required the Department of Justice (DOJ) to grant automatic record relief to individuals who had completed probation without revocation and who were not currently serving a sentence of any office and significantly limited when a court could disclose information concerning a conviction granted automatic relief pursuant to the bill. The full impact of the bill on schools was not known until AB 1076 went into effect on January 1, 2021, when both the California Commission on Teacher Credentialing (CTC) and local educational agencies (LEAs) raised concerns that the bill’s provisions would prevent them from learning of pertinent criminal convictions of potential employees and volunteers. Without the ability to access this conviction information, LEAs were worried they would be unable to fulfill their legal duty to evaluate the fitness of the applicant to serve in a public school around students.
In response to these concerns, a coalition made up of both education management and labor groups worked this year to address the seemingly unintended consequences of AB 1076 and seek a fix in subsequent legislation. Ultimately, after a lengthy back and forth with the Assembly Public Safety Committee staff, who were reluctant to move a bill through their committee that would pull back what they saw as protecting applicants from discrimination based on relieved convictions, a fix was included in SB 731, authored by Senator Maria Durazo (D-Los Angeles). Under SB 731, the CTC, school districts, COEs, charter schools, private schools, state special schools for the blind and deaf, or any other entity required to have a background check because of a contract with one of those listed entities, will be able to see every conviction rendered against an applicant, retroactive to January 1, 2020, regardless of relief granted, unless it is a simple drug possession offense where conviction is more than five years old and record conviction relief was granted.
Prohibition on employment discrimination based on off-job cannabis use coming in 2024.
One of the more high-profile bills signed this year, AB 2188, by Assembly Member Bill Quirk (D-Hayward) prohibits, beginning January 1, 2024, an employer from discriminating against a person in hiring for any term or condition of employment, if the discrimination is based upon the person’s use of cannabis off the job and away from the workplace or an employer-required drug screening test that has found the person to have non-psychoactive cannabis metabolites in their urine, hair, or bodily fluids. The bill also contains language stating that nothing in the bill allows an employee “to possess, to be impaired by, or to use, cannabis on the job” and that employers retain the right to maintain a drug-and alcohol- free workplace.
When explaining the need for the bill, the author noted that a lot of the drug tests used by employers “typically screen for the presence of non-psychoactive cannabis metabolites, which can remain present in an individual’s bodily fluids for weeks after cannabis use and do not indicate impairment,” and that “testing positive for this metabolite has no correlation to workplace safety or productivity.”
In the facts and findings section at the start of the bill, the author also notes that, “As science has improved, employers now have access to multiple types of tests that do not rely on the presence of non psychoactive cannabis metabolites.” These tests include impairment tests, which measure an individual employee against their own baseline performance, and tests that identify the presence of tetrahydrocannabinol (THC), the chemical compound in cannabis that can indicate impairment, in an individuals bodily fluid. However, the current limited availability of these alternative tests is one of the reasons the bill’s implementation was delayed until 2024.
AB 2188 was signed as a part of a package of bills that the Governor said, when announcing their signing, “build on the Administration’s efforts to strengthen California’s cannabis legalization framework.” While he admits the state has made strides in this area since recreational cannabis use was legalized in the state in 2016, the Governor also admitted that more work needs to be done and that he “looks forward to partnering with the Legislature and policymakers to fully realize cannabis legalization in communities across California.” Assembly Member Quirk also noted that the bill “will allow California to continue being a progressive leader on cannabis issues.”
In response to concerns about the bill’s interaction with federal law, which currently still considers cannabis a Schedule 1 drug, the bill was amended in the Senate to provide exemptions from the prohibition for the following incidences:
- An employee in the building and construction trades
- Applicants or employees hired for positions that require a federal government background investigation or security clearance
- When state or federal laws requiring applicants or employees to be tested for controlled substances, including laws and regulations requiring applicants or employees to be tested, or the manner in which they are tested, as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract.
In interesting timing, a little over two weeks after Governor Newsom signed AB 2188, President Joe Biden announced that he was directing Health and Human Services Secretary Xavier Becerra and Attorney General Merrick Garland to initiate the process to review how cannabis is scheduled under federal law.
Short and long term solutions to help schools respond to teacher shortage.
Only exacerbated by the COVID-19 Pandemic, the state’s ongoing teacher shortage continues to be one of the biggest challenges facing schools today. A few bills this year provide schools with additional flexibilities around the use of teachers with emergency substitute permits. AB 181, the K-12 Education Omnibus Budget Trailer Bill, extended through July 1, 2023 the authority for a holder of a substitute permit to teach in a general, special, or career technical education assignment aligned with their authorization for up to 60 cumulative days. Traditionally only allowed to serve for up to 30 cumulative days under a substitute permit, this authorization was also extended in last year’s budget but would have expired on July 1, 2022 if it had not been extended by AB 181. Additionally, in an effort to remove barriers to getting more substitute teachers into the field, SB 1397 by Senator Andreas Borgeas (R-Fresno) requires the CTC, until July 1, 2024, to waive the basic skills proficiency requirement for the issuance of an emergency 30-day substitute teaching permit. Interestingly, SB 1397 originally also looked to extend the time a substitute could serve in a single assignment but the author shifted his focus after AB 181 was signed.
While AB 181 and SB 1397 could help schools fill immediate teacher needs, the state still needs to address the root cause of its teacher shortage if it wants its solutions to have any lasting effect. However, while the CTC can roughly measure the state’s teacher supply based on the number of active permits in the system, it does not have data on why teachers may be leaving their positions or the profession entirely. To this end, SB 1487, by Senator Susan Rubio (D-Baldwin Park), requires the CTC to develop a survey, no later than July 1 2023, to collect data from teachers of LEAs who are resigning their position or electing not to accept a teaching assignment for the upcoming school year. The bill then encourages, but does not require, LEAs to administer the survey, beginning with the 2023-24 school year, to any exiting teacher within 15 days of them resigning or electing not to return, as well as to annually report the results of the survey to the CTC. While participation in the survey is not mandatory, the hope is that enough exiting teachers will participate in order to get the CTC sufficient data to start identifying why teachers are leaving and using that data to develop long-term solutions to the teacher shortage.
Supplemental COVID-19 sick leave extended through end of 2022.
Earlier this year, when the state was in the midst of the Omicron outbreak, the Governor signed SB 114, which required employers with 26 or more employees to provide full-time employees with 40-hours of supplemental COVID-19 sick leave if the employee is unable to work due to COVID-19-related reasons, like quarantine, attending a vaccine appointment, or caring for a family member with COVID symptoms. The bill also entitled a full-time employee to an additional 40 hours, for a total of 80 hours in supplemental leave, if the employee or the family member for whom the employee is caring for tests positive for COVID-19. Under SB 114, this supplemental leave was set to expire on September 30, 2022.
However, under AB 152, the availability of this supplemental leave has been extended to December 31, 2022. This means that employees that have yet to use this leave or that have not yet exhausted this leave are still eligible to claim it, for the same reasons as outlined under SB 114, until the end of the calendar year. It is important to note that AB 152 did not establish any new supplemental leave but only extended the date by which an employee has to request the leave originally made available under SB 114. Another change is that while, under the original bill, an employer could deny the additional 40
hours of leave if the employee refused to provide proof of a positive test, AB 152 also allows an employer to deny this additional leave if the employee refuses to submit to additional diagnostic testing. As a budget bill, AB 152 took effect immediately upon the Governor’s signature on September 29th.
The Governor signed the following human resources bills:
Commission on Teacher Credentialing
- AB 1876 (Seyarto) – Substitute teachers: emergency career substitute teaching permit: employment verification.
When issuing a career substitute teaching permit, current law requires the Commission on Teacher Credentialing (CTC) to verify at least ninety days per year of day-to-day substitute teaching over the previous three consecutive years, at either one school district or within an entire county, if the county administers the substitute assignments for the entire county. The law does not allow the CTC to verify employment from a consortium of school districts that are not part of a county-wide substitute program and that share a pool of substitutes. This bill requires the CTC to accept, as an alternative to that verification requirement, verification by an employer or employers of, in the 3 years immediately preceding the date of application, 3 consecutive years of at least 90 days per year of day-to-day substitute teaching accumulated from one or more California school districts participating in a consortium with the school district requesting the permit.
Chapter 113, Statutes of 2022 - SB 1397 (Borgeas) – Teacher credentialing: emergency teaching permits.
SB 1397 requires the CTC to waive the basic skills proficiency requirement for the issuance of an emergency 30-day substitute permit until July 1, 2024. The bill also deleted obsolete references and update cross-references.
Chapter 335, Statutes of 2022 - SB 1487 (Rubio) – Commission on Teacher Credentialing: survey: teacher resignations.
This bill requires the CTC and the California Department of Education (CDE) to develop a survey no later than July 1, 2023, for purposes of collecting data from teachers of local educational agencies (LEAs) resigning their positions or electing not to accept a teaching assignment for the upcoming school year, including data on whether or not they are exiting the profession. Under the bill, LEAs would then be encouraged, beginning with the 2023-24 school year, to administer the survey within 15 days of a teacher of the LEA resigning their position or electing not to accept a teaching assignment for the upcoming year and to annually report the results of these surveys to the CTC.
Chapter 924, Statutes of 2022
Human Resources
- AB 152 (Committee on Budget) – COVID-19 relief: supplemental paid sick leave.
SB 114 (Chapter 4, Statutes of 2022) from earlier this year required employers with 26 or more employees to, until September 30, 2022, provide full-time employees with 40 hours of supplemental COVID-19 sick leave, with an option for an additional 40 hours with proof of a positive COVID-19 test. AB 152 extends the availability of this supplemental COVID-19 leave through December 31, 2022. The bill also provides that an employer is not required to provide the additional 40 hours of leave an employee is entitled to upon testing positive for COVID-19 if the employee refuses to submit to the diagnostic testing required under the bill.
Chapter 736, Statutes of 2022 - AB 1041 (Wicks) – Employment: leave.
This bill expands the class of people for whom an employee may take leave to care for to include a designated person. “Designated person” is defined to mean any individual related by blood or whose association with the employee is the equivalent of a family relationship. Under the bill, an employer is authorized to limit an employee to one designated person per 12-month period.
Chapter 748, Statutes of 2022 - AB 1949 (Low) – Employees: bereavement leave.
AB 1949 makes it an unlawful employment practice for an employer to refuse to grant a request by an eligible employee to take up to 5 days of bereavement leave upon the death of a family member. If there is no existing bereavement leave policy, the bereavement leave may be unpaid and an employer may request the employee provide documentation of the death of a family member.
Chapter 767, Statutes of 2022 - AB 2188 (Quirk) – Discrimination in employment: use of cannabis.
This bill, beginning January 1, 2024, makes it unlawful for an employer to discriminate against a person in hiring or any term or condition of employment, if the discrimination is based upon the person’s use of cannabis off the job and away from the workplace or an employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their urine, hair, or bodily fluids. The bill also provides that this prohibition would not apply to applicants or employees hired for positions that require a federal government background investigation or security clearance and that the bill’s provisions do not preempt state or federal laws requiring applicants or employees to be tested for controlled substances as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract.
Chapter 392, Statutes of 2022 - AB 2413 (Carrillo) – Classified school and community college employees: disciplinary hearings: compensation.
AB 2413 prohibits a permanent employee of a K-12 district, who has requested a hearing on charges against them, from being suspended without pay, suspended with a reduction in pay, demoted with a reduction in pay, or dismissed before a decision is rendered at the hearing. The bill also establishes an exemption if the governing board or an impartial third-party hearing officer finds that at the time discipline was imposed at the conclusion of the initial review process, the employer demonstrated by a preponderance of the evidence that the employee engaged in criminal misconduct, misconduct that presents a risk of harm to pupils or students, staff, or property, or committed habitual violations of the district’s policies or regulations. The bill also includes language clarifying that if the provisions of the bill conflict with provisions of a collective bargaining agreement entered into by the public school employer and an exclusive bargaining representative before January 1, 2023, the bill’s provisions will not apply to the school district until the expiration or renewal of the collective bargaining agreement.
Chapter 913, Statutes of 2022 - SB 731 (Durazo) – Criminal records: relief.
AB 1076 (Chapter 578, Statutes of 2019) automated the expungement process for all convictions, excluding violent crimes and sex offenses, and restricted school districts and the CTC from viewing all expunged convictions occurring after 2021. SB 731 would, among other things, instead allow the CTC, school districts, COEs, charter schools, private schools, state special schools for the blind and deaf, or any other entity required to have a background check because of a contract with one of those listed entities, to see every conviction rendered against an applicant, retroactive to January 1, 2020, regardless of relief granted, unless it is a simple drug possession offense where conviction is more than five years old and record conviction relief was granted.
Chapter 814, Statutes of 2022 - SB 874 (Cortese) – Classified school district and community college employees: probation: promotion.
This bill specifies that merit school districts must employ a permanent classified employee who accepts a promotion and fails to complete the probationary period for that promotional position, in the classification from which the district promoted the employee. The bill also includes language clarifying that if the provisions of the bill conflict with a collective bargaining agreement approved before January 1, 2023, the bill’s provisions would not apply until the agreement’s expiration or renewal date.
Chapter 150, Statutes of 2022 - SB 931 (Leyva) – Deterring union membership: violations.
Current law prohibits a public employer from deterring or discouraging public employees or applicants to be public employees from becoming or remaining members of an employee organization, authorizing representation by an employee organization, or authorizing dues or fee deductions to an employee organization. Current law generally vests jurisdiction over violations of these provisions in the Public Employment Relations Board. This bill authorizes an employee organization to bring a claim before the Public Employment Relations Board (PERB) alleging that a public employer violated the above-described provisions. Upon a finding by the board that the public employer violated those provisions, the public employer would be subject to a civil penalty, to be deposited in the General Fund, of up to $1,000 for each affected employee, not to exceed $100,000 in total, and subject to attorney’s fees and costs, as described and except as specified.
Chapter 823, Statutes of 2022
Retirement, CalPERS, and CalSTRS
- AB 551 (Rodriguez) – Disability retirement: COVID-19: presumption.
Current law, until January 1, 2023, establishes a disability retirement presumption that is applicable to the retirement systems that the California Public Employees’ Pension Reform Act of 2013 (PEPRA) regulates and to specified members in those systems, who test positive for COVID-19, as specified. Under the presumption, if a member retires for disability on the basis, in whole or in part, of a COVID-19-related illness, it is presumed that the disability arose out of, or in the course of, the member’s employment, unless rebutted. AB 551 extends the operation of this presumption until January 1, 2024.
Chapter 741, Statutes of 2022 - AB 1667 (Cooper) – State Teachers’ Retirement System: administration.
This bill prescribes various requirements in connection with the audit of public agencies and members by the California State Teachers’ Retirement System (CalSTRS), CalSTRS’ interpretation and clarification of rules relating to creditable compensation, CalSTRS’ review of compensation items included in a memorandum of understanding or collective bargaining agreement, errors relating to employer reporting of compensation to the system, and the recovery of payments. Specifically, the bill, among other things:- Requires CalSTRS to make all final employer audit reports available on its internet website and require CalSTRS to exclude personal information regarding members to the extent necessary to protect their privacy.
- Require CalSTRS, prior to issuing its final audit report, to provide to the audited public agency and to the exclusive representative its preliminary audit findings, the statutes being addressed by the audit, and a list of every member then known and affected by the audit. Allow the recipients to provide, within no less than 60 days as specified by CalSTRS, their written responses to the preliminary audit findings and requires CalSTRS to consider their responses in preparing its final audit report.
- Require CalSTRS to make all final employer audit reports available on its internet website and require CalSTRS to exclude personal information regarding members to the extent necessary to protect their privacy.
- Requires CalSTRS, at least annually, to provide resources that interpret and clarify the applicability of creditable compensation and creditable service laws and regulations.
- Prohibits new or different interpretations, as specified, from taking effect until after CalSTRS issues notice to employers and exclusive representatives and prohibits the interpretations from applying retroactively to compensation reported prior to that notice, unless state or federal law or an executive order of the Governor expressly requires a retroactive interpretation.
- Deems any compensation the public agency reported in accordance with the resources provided by CalSTRS, as specified, to be CalSTRS’ error and requires CalSTRS to recover the costs, with interest as specified, of the resulting pension overpayment as follows: 85% from the state through a continuous General Fund appropriation and 15% directly from all school employers.
- Beginning July 1, 2023, authorizes an employer or an exclusive representative to submit to CalSTRS a request for an advisory letter. Requires CalSTRS to provide an advisory letter regarding the submission to the employer or exclusive representative within 30 days of the receipt of all information requested, unless an extended period of time is necessary for good cause.
- Deems any resulting overpayment from compensation reported in error by the employer or on behalf of a member to whom an advisory letter applies that was in accordance with CalSTRS’s advisory letter, as CalSTRS’ error and requires CalSTRS to recover the costs, with interest as specified, of the resulting pension overpayment as follows: 85% from the state through a continuous General Fund appropriation and 15% directly from all school employers.
Chapter 754, Statutes of 2022
- AB 1824 (Committee on Public Employment and Retirement) – Public employees’ retirement.
AB 1824 is the annual technical clean-up bill that makes technical, confirming, and noncontroversial changes to various sections for the Education and Government codes administered by CalSTRS, ’37 Act county retirement systems, and CalPERS, respectively, for purposes of continued appropriate and effective administration of these employee retirement laws. Changes include eliminating a provision under existing law that allocated to CalPERS a portion of the 20% penalty that an employer pays as a lump sum to compensate a retired member whose CalPERS retirement is adjusted due to disallowed compensation reported by the employer and, instead, requiring the full compensatory amount to go to the retired member.
Chapter 231, Statutes of 2022 - SB 868 (Cortese) – State teachers’ retirement: supplemental benefits.
SB 868 establishes, effective July 1, 2023, a schedule for increases to quarterly supplemental payments made to retired or disabled members, or beneficiaries from the Supplemental Benefit Maintenance Account (SBMA) administered by the California State Teachers’ Retirement System (CalSTRS), among other provisions.
Chapter 818, Statutes of 2022 - SB 1168 (Cortese) – Public employees’ retirement: beneficiary payment.
Current law, applicable to agencies that contract with CalPERS to provide benefits to their employees, requires a payment of $500 to be made to a beneficiary upon the death of a member after retirement and while receiving a retirement allowance from CalPERS, unless otherwise provided. This bill, for a death occurring on or after July 1, 2023, increases the amount of the above-described benefit to $2,000.
Chapter 193, Statutes of 2022 - SB 1402 (Umberg) – Public employees’ retirement: armed forces: service credit.
Current law authorizes a member who is a state employee, or a retired member who retired immediately following service as a state employee, as specified, to receive credit for specified military or Merchant Marine service occurring prior to membership and prescribes requirements and limits in this connection. Existing law limits the application of this authorization to receive premembership service credit to specified service in the Armed Forces of the United States or in the Merchant Marine of the United States prior to January 1, 1950. SB 1402 deletes the limitation that the service have occurred prior to January 1, 1950, from these provisions, unless certain exceptions apply, and deletes the requirement that the electing member be a state employee or a retired member who retired immediately following service as a state employee.
Chapter 196, Statute of 2022
Capitol Advisors Group has produced a set of comprehensive client briefs detailing new education laws that were passed by the Legislature and signed into law by Governor Newsom in 2022. Each brief is organized by subject area and includes an executive summary highlighting major changes we think you should know about. Bills signed by the Governor take effect on January 1, 2023, unless the bill specifically states otherwise.