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Changes in Law 2023 – Human Resources

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This year we were tracking a number of high-profile labor-backed bills that would have imposed burdensome and costly new procedures on schools and impacted the local collective bargaining process. These included efforts to require school employers to first offer any classified vacancy internally, make striking workers eligible for unemployment benefits, and require schools to pay for a third-party hearing officer to oversee any classified disciplinary appeals. However, while Governor Newsom has long been a strong ally for labor, with so many labor bills going to the his desk in 2023, and his eyes on the national stage, school employers saw a surprising number of Human Resources (HR) victories.

Governor vetoes classified vacancies bill after strong advocacy effort by education management.

AB 1699 by Assembly Member Kevin McCarty (D-Sacramento) was a priority opposition bill for school employers throughout the 2023 legislative session. Under the bill’s requirements, TK-14 employers would have been required to offer any classified vacancy to their current classified employees at least 10 days before the general public could apply and provide them with first right of refusal if eligible for the position. Backed by the California School Employees Association (CSEA), the California Federal of Teachers (CFT), and the Service Employees International Union California (SEIU), the sponsors had argued that this bill would make local hiring more efficient while also providing more opportunities for current part-time classified employees to earn more hours and potentially qualify for benefits.

The bill was opposed by a broad coalition of school management groups, including the Association of California School Administrators (ACSA), the California School Boards Association (CSBA), the Small School Districts’ Association (SSDA), the School Employers Association of California (SEAC), and the California County Superintendents, as well as a number of individual school and community college districts. The coalition argued, among other things, that the bill would inhibit the ability of employers to select the candidate that would be the best fit for the job, even amongst internal candidates, and preclude locally bargained alternatives.

These concerns appear to have resonated with the Administration, as reflected in the Governor’s veto message on AB 1699. In the message, the Governor wrote that while he supported the goal of AB 1699, “this bill may have unintended consequences that are not in the best interest of students.” The Governor also noted the impact the bill would have had on the local collective bargaining process, acknowledging that, “Educational employers and classified staff already have the ability to bargain this issue, and many already have agreements that meet the goals of this bill. Unfortunately, this bill also prohibits future bargaining agreements from implementing their own locally determined process.”

Bills provide schools with additional flexibility to bring back retired teachers, keep substitutes longer.

In an effort to provide schools with more tools to address the state’s ongoing teacher shortage, SB 765 by Senator Anthony Portantino (D-Pasadena) will temporarily remove or lessen certain post-retirement rules for California State Teachers’ Retirement System (CalSTRS) retirees returning to service, beginning July 1, 2024 and sunsetting July 1, 2026. Despite moving through the Senate without a single no vote, the bill’s future was put in doubt when it was initially stopped in the Assembly Committee on Public Employment and Retirement, after the Committee’s chair

refused to set the bill for hearing. However, after amendments were taken in the committee to address concerns raised by the California Teachers Association and to move them to neutral on the bill, SB 765 passed out of the committee and eventually made it to the Governor’s desk. While the earlier version of the bill sought to completely exempt a retired teacher that returns to service from the CalSTRS post-retirement earnings limit, as signed, SB 765 will do the following:

  1. Increase the post-retirement compensation earnings limit for retirees from 50% to 70% of the median final compensation of all members who retired for service during the fiscal year ending in previous calendar
  2. Authorize an alternative process for educational employers to hire a retired CalSTRS member prior to satisfying the statutory 180-day separation from service requirement, if the superintendent seeks an exemption and submits documents to CalSTRS with certification, under penalty of perjury, as to each of the following:

To better inform future efforts on how to address the teacher shortage, SB 765 also requires CalSTRS, on or before February 1, 2027, to submit a report to the Legislature that includes, among other things, the total number of requests received from a school or community college for an exemption to the 180-day requirement, the total number of retired members who performed retired member activities with an exemption during the period of temporary relief, and the compensation/remuneration paid to each retired member who performed retired activities during the period of temporary relief.

While the flexibilities provided in SB 765 do not kick in until July of next year, current year relief was provided by budget trailer bill language signed into law in September. SB 141, until July 1, 2024, extended the ability of any holder of a substitute credential or permit issued by the Commission on Teacher Credentialing (CTC) that authorizes them to substitute teach in a general, special, or career technical education assignment, to serve in a substitute teaching assignment aligned with their authorization for up to 60 cumulative days for any one assignment. As a budget bill, this authorization took effect immediately upon the Governor’s signature on September 13, 2023.

New laws provide employees with additional protection against workplace violence, harassment.

In response to a rise in workplace violence incidents in recent years, the Governor signed a pair of bills that put in place enhanced protections and safety measures for employees while on the job. The first bill, SB 553 by Senator Dave Cortese (D-San Jose) requires, beginning July 1, 2024, employers to develop, implement, and maintain an effective workplace violence prevention plan (WVPP) to establish procedures to help employers and employees respond to violent incidents. The plan must include, among other things, effective procedures to respond to workplace violence emergencies, procedures to identify, evaluate, and correct workplace violence hazards, maintenance of violent incident logs for every workplace violence incident, and provision of annual training on the elements of the WVPP.

SB 533 is in part a follow up to a bill from 2014 that required the California Division of Occupational Safety and Health, otherwise known as Cal/OSHA, to adopt a health care industry specific workplace violence prevention standard [SB 1299 (Padilla)]. While Cal/OSHA has been developing new general industry regulations on Workplace Violence Prevention that would extend similar violence protection to workers in non-healthcare industries since 2017, it has yet to begin the formal rulemaking process for the standard. To this end, SB 553 also establishes a timeline by which Cal/

OSHA must finally take action on the new standard, requiring the agency to propose, no later than December 31, 2025, and the standards board to adopt, no later than December 31, 2026, standards regarding the WVPP and any additional requirements deemed necessary and appropriate to protect the health and safety of employees.

Secondly, SB 553, beginning January 1, 2025, expands the current law authorizing an employer to seek a temporary restraining order and an injunction on behalf of an employee who has suffered unlawful violence or a credible threat of violence from any individual that can reasonably be construed to be carried out or to have been carried out at the workplace, to also authorize a collective bargaining representative of an employee to seek a temporary restraining order and an injunction on behalf of the employee. The second bill, SB 428 by Senator Catherine Blakespear (D- Encinitas), further extends this authority to also include, beginning January 1, 2025, a temporary restraining order and an injunction on behalf of an employee who has suffered harassment. “Harassment” under the bill is defined as, “a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress.”

While both SB 553 and SB 428 establish additional protections against violence and harassment at the workplace, Governor Newsom seemed less willing to provide additional protections to employees during non-work hours. Despite increasing reports of school employees experiencing harassment from disgruntled parents, the Governor vetoed another bill that would have made it a misdemeanor for a person to subject a school employee to threats or harassment related to the employee’s course of duties while the employee is away from a schoolsite or after school hours. In his message announcing his veto of SB 596, authored by Senator Portantino, the Governor cautioned against “exacerbating tensions by implementing additional laws that can be perceived as stifling parents’ voices in the decision-making process.”

Bill expands number of required paid sick days to five.

Beginning January 1, 2024, employers will now be required to provide employees access to at least 40 hours or 5 days of paid sick leave in each 12-month period of employment. Originally looking to require 56 hours or 7 days of paid sick leave, Senator Lena Gonzalez (D-Long Beach), the author of SB 616, cites the success of supplemental paid sick leave during the COVID-19 Pandemic as the impetus for her introduction of the bill, writing:

The COVID-19 pandemic highlighted the lifesaving impacts of paid sick leave policies, while clearly exposing the gaps in our existing safety net for working families….Temporary expansions of paid sick leave policies, which have all expired, are not enough to provide a reliable safety net for workers and adequate protect public health year-round…In times of illness, workers shouldn’t have to resort to going to the emergency room for medical care because they couldn’t take time off during the workday, or worse, neglecting their health out of fear of losing income.

It is important to note that while SB 616 requires an employee have access to additional sick days, it does not change the accrual rate at which they earn them. Under the bill, an employee must have access to 40 hours or 5 days of sick leave by the 200th calendar day of the employee’s employment while current law requires an employee have access to 24 hours or 3 days of sick leave by the 120th calendar day of employment.

Budget makes changes to recently implemented wage overpayment procedures.

Last year’s budget included budget trailer bill language that established a formal process for when a school employer determines that one of its employees has received an overpayment of wages. The process included requiring the employer to notify the employee of the overpayment and provide an opportunity for the employee to respond before beginning recoupment actions. This year, SB 114 made various changes to this new process, including:

As a budget bill, these changes went into effect immediately upon the Governor’s signing on July 10, 2023.

Bill that would have required third-party hearing officer to hear classified disciplinary appeals vetoed by Governor.

Looking to build on previous successful efforts to establish parity between certificated and classified staff, including 2021’s AB 438 that extended the March 15th layoff notice deadline to classified workers, SB 433 by Senator Cortese sought to provide classified employees with the same due process rights as certificated staff. Sponsored by CSEA, the bill would have required, if a permanent classified employee of a district requests a hearing on the charges lodged against them, the appeal be decided by an impartial third-party hearing officer, to be paid for by the school district. The bill was opposed by a coalition of education management groups and individual local educational agencies (LEAs), who raised concerns not only about the increased costs the bill would impose on employers, even if they prevail on the appeal, but also about the potential delay in decisions due to increased caseloads and hearing officer capacity.

When vetoing the bill, Governor Newsom acknowledged that, because the bill would require employers to bear the full costs of a disciplinary appeal hearing, regardless of the outcome, this bill could “increase the number of appeals and would create significant costs for the State and must be considered in the annual budget in the context of all state funding priorities.” In what became a common refrain in many of his veto messages, the Governor noted that, despite the uncertainty surrounding state revenues, legislators sent him bills that would have added nearly $19 billion in costs to the state that were not accounted for in the budget.

Governor vetoes bills that would have strengthened rights of employees during a strike.

Following what many were calling a “hot labor summer” that saw labor unions authorizing potential strikes throughout the state, Senator Portantino introduced SB 799, which would have made striking workers eligible for unemployment insurance (UI) benefits after two weeks on the picket line. A late gut and amend that emerged with less than a month left in the legislative session, the bill moved quickly through the process but still garnered widespread opposition from employers. While concerns that the bill would only exacerbate the state’s already heavily indebted unemployment insurance fund were not enough to prevent legislators from passing the bill, they proved persuasive enough with the Governor. In vetoing the bill, he wrote, “Any expansion of eligibility for UI benefits could increase California’s outstanding federal UI debt [which is] projected to be nearly $20 billion by the end of the year… Now is not the time to increase costs or incur this sizable debt.”

The Governor signed the following human resources bills:

CTC

Human Resources

Professional Development

Retirement/ PERS/ STRS

Teacher Shortage

Workers Compensation

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 2023. 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, 2024, unless the bill specifically states otherwise.

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