Private Education Matters
Grace Chan
Partner | San Francisco
Jordan Carman
Associate | San Diego
Stephanie Lowe Senior Counsel | San Diego
Hannah Dodge
Associate | San Francisco
LCW Obtains Workplace Violence Restraining Order On Behalf Of Private School.
LCW Partner Max Sank and Senior Counsel Alison Kalinski secured a workplace violence restraining order for a private school after a parent engaged in escalating, erratic, and threatening conduct toward staff. The parent attended school athletic events in erratic, aggressive, and threatening behavior for no apparent reason. The parent threw water bottles on the court, made offensive and inappropriate gestures towards attendees, engaged in belligerent arguments with both staff and parents, threatened to burn down the school, threatened to have an employee fired, and refused to leave the premises when directed to do so by school security. Based on this conduct, the school informed the parent he was no longer permitted on campus. A few days later, the parent returned to campus despite being instructed not to do so. He spoke to a School employee in a threatening manner and with offensive language and threatened to kill him. On both occasions, there was no apparent cause for the parent’s escalating and threatening conduct and he did not apologize. The parent’s conduct made the school employees fear for their safety and for the school community. Shortly after LCW obtained an initial Temporary Restraining Order for the School, the parent sent extremely violent and vulgar text messages to another school employee. LCW assisted the School in protecting additional employees and their families and obtained a Workplace Violence Restraining Order.
Firm Victories new to the Firm!
Mieko Failey is an Associate in the Los Angeles office of Liebert Cassidy Whitmore, where she provides advice and counsel to clients on a wide range of matters from compliance to risk management.
Free Speech
Court Upholds School District’s Authority To Restrict AntiTransgender Symbolic Speech At High School Soccer Game.
The events giving rise to the case occurred in the wake of Tirrell v. Edelblut, a separate federal case in which the Court issued a preliminary injunction blocking enforcement of New Hampshire’s House Bill 1205, which prohibited transgender girls from participating on girls’ sports teams. The Court in Tirrell ruled in favor of two transgender students, including P.T., who was allowed to compete on her school’s girls’ soccer team.
In September 2024, P.T.’s team, Plymouth Regional High School, was scheduled to play against Bow High School (BHS). In the days leading up to the match, controversy emerged among some BHS parents opposed to P.T.’s participation. Discussions of protests circulated, including plans to wear dresses, create anti-trans gear, and bring signs to the game. Plaintiffs in the present case—Kyle Fellers, Andy Foote, Nicole Foote, and Eldon Rash—were among those planning to express their opposition.
Andy Foote, father of a BHS player, posted on social media describing P.T. as a “biological male” and calling for support of the BHS team. Around the same time, Kyle Fellers purchased pink wristbands, which Foote marked with various symbols: “XX” (female chromosomes), the female gender symbol, and “NAD” (“Not A Dude”). Foote distributed the wristbands to prepare for a coordinated demonstration at the game.
School officials, made aware of the planned protest through emails and posts, interpreted the “XX” symbol as an anti-transgender message based on its known associations with movements opposing transgender athletes in women’s sports. Concerned about potential harassment and disruption, School officials reminded parents of conduct policies prohibiting targeted or disruptive behavior at school events. On the day of the game, officials emailed BHS families to reiterate those expectations.
During the second half of the game, Foote and Fellers wore the “XX” wristbands and displayed a poster on Foote’s car with the message “Protect Women’s Sports.” Officials asked them to remove the wristbands. After some resistance, they complied. Eldon Rash then wore one of the wristbands and refused to remove it, prompting a confrontation that delayed the game until he ultimately complied. After the game, Fellers stood near the opposing team’s bus displaying his poster and was told by a police officer to leave school grounds.
Following the incident, School officials issued “No Trespass” orders. Foote was barred from school property for a week. Fellers, whose conduct was deemed more disruptive, was barred for a year, with limited exceptions. The Court later allowed him to attend soccer games while the motion for injunctive relief was pending, but barred him from wearing the wristbands.
Plaintiffs filed suit seeking injunctive relief to prevent the School from enforcing its restrictions on their expressive conduct at school events. They argued that the School’s actions violated their First Amendment rights. Specifically, they claimed their protest—wearing wristbands with the “XX” symbol—was constitutionally protected, non-disruptive expression opposing transgender girls in girls’ sports.
The legal framework required the Court to evaluate whether plaintiffs’ conduct constituted protected speech, the nature of the forum, and whether the School’s restrictions were reasonable and viewpoint-neutral. The Court also applied the standard for preliminary injunctions, requiring plaintiffs to show a likelihood of success on the merits, irreparable harm, favorable equities, and public interest.
Plaintiffs contended that their conduct was peaceful, passive expression on a public issue, not aimed at P.T. personally, and that the School’s actions constituted viewpoint discrimination.
The District countered that, given the controversy and context, the wristbands and signs were reasonably interpreted as demeaning and targeted at a transgender
student, posing risks of harassment and psychological harm. Officials emphasized their duty under Title IX and state law to prevent discrimination and argued their restrictions were reasonable, content-neutral measures to preserve a safe environment.
The Court held that the soccer field was a limited public forum where reasonable, viewpoint-neutral restrictions are permissible. While it found the plaintiffs’ speech was protected, it concluded the School’s restrictions were lawful in context.
Citing L.M. v. Town of Middleborough, a 2024 First Circuit case involving a student prohibited from wearing a “There Are Only Two Genders” shirt, the Court explained that even passive, symbolic speech may be restricted if it is reasonably interpreted as demeaning and likely to cause psychological harm to vulnerable students. It found that the wristbands, in context, conveyed a message invalidating transgender identities and were reasonably seen as harassing and harmful.
The Court rejected plaintiffs’ viewpoint discrimination claim, holding that the School’s actions were based on the impact of the speech—not its viewpoint—and were consistent with policies applicable to all attendees. The fact that the protest was peaceful did not negate its harmful effect or the School’s authority to regulate it.
Ultimately, the Court concluded that plaintiffs failed to show a likelihood of success on their First Amendment claims and denied their motion for a preliminary injunction.
Fellers v. Kelley (D.N.H. Apr. 14, 2025) 2025 U.S. Dist. LEXIS 70176.
NOTE:
This court held that passive, symbolic speech—such as wearing wristbands with anti-transgender messages—may be lawfully restricted at school events if it is reasonably seen as demeaning or harmful to students. Although this case involved a public school and their parents, high school students (though notably not parents) at private schools in California have similar free speech rights as high school students at public schools.
California School District Prevails In Student Mask Mandate Lawsuit.
Jessica Reynolds and two minor plaintiffs, D.E. and L.R., filed suit after their children were removed from classroom instruction and marked as unexcused for
refusing to wear face masks in early 2022 at Foothill Ranch Elementary School in the Saddleback Valley Unified School District (District). During that time, the District was enforcing mask mandates consistent with state and local public health guidelines, and the plaintiffs claimed that they were falsely imprisoned, bullied, coerced, pressured, and humiliated for choosing not to give informed consent to wear a mask at school per the masking policy.
In particular, the plaintiffs claimed that school officials, including the school principal, responded to the students’ noncompliance by removing them from classrooms, seating them outside or in enclosed courtyards, and denying access to recess and teacherled instruction unless they wore masks. Plaintiffs also alleged that the District reported the absences to the Orange County District Attorney, which resulted in truancy letters being issued to the students’ parents.
The plaintiffs filed a pro se lawsuit raising several claims, most notably under the First Amendment, alleging that their children’s refusal to wear masks was a form of political protest that should be protected as free speech. They also raised due process claims under the Fourteenth Amendment, and claims under California civil rights, tort, and constitutional law.
First Amendment Claim
The Court evaluated the First Amendment claim under the test for expressive conduct established in Spence v. Washington, which requires: (1) an intent to convey a particularized message, and (2) a great likelihood that the message would be understood by those who viewed it. If a law restricts conduct that is not expressive then the conduct is not protected by the First Amendment, and the law is reviewed under rational basis scrutiny. Rational basis review is the least rigorous form of scrutiny used by courts; it only requires that the law or action be rationally related to a legitimate government interest.
Here, the plaintiffs argued that their refusal to comply with the mask mandate conveyed a message opposing government overreach and skepticism about the effectiveness of masks. However, the Court found that the plaintiffs’ conduct failed both prongs of the Spence test. First, the reasons cited by the plaintiffs and their children for refusing to wear masks were inconsistent and personal in nature. For example, one child, L.R., reportedly found the mask uncomfortable and expressed confusion about why masking was necessary if he was
not sick. Another child, D.E., said the mask made her feel tired and distracted. These explanations lacked a clear intent to communicate a particular political or social message.
Second, the Court concluded that even if the students intended to protest, their refusal to wear masks was not likely to be understood as a form of protest by observers. Teachers and classmates did not interpret the conduct as expressive speech but rather as rule-breaking behavior that endangered the health and safety of others. Teachers labeled unmasked students as potential health risks, and other children were reportedly frustrated with the noncompliant students.
In comparing the case to Tinker v. Des Moines Independent Community School District, where the U.S. Supreme Court upheld students’ right to wear black armbands in silent protest of the Vietnam War, the Court emphasized that Tinker involved deliberate, passive expression that did not disrupt school order. In contrast, here, the Court found that refusing to comply with a health mandate during a global pandemic posed a tangible risk to the safety and well-being of others and disrupted the School’s orderly operation. The Court also cited Morse v. Frederick, where the U.S. Supreme Court allowed school officials to restrict student expression that promoted illegal drug use, holding that the state has a compelling interest in preventing speech that undermines core safety policies.
Applying the rational basis standard, the Court held that the District mask mandate served a legitimate government interest—protecting students and staff from COVID-19 transmission—and that requiring masks was a reasonable and constitutionally permissible condition for attending in-person instruction. The plaintiffs’ First Amendment claims were dismissed.
Fourteenth Amendent Claim
The Fourteenth Amendment prohibits a state from depriving any person of “life, liberty or property, without due process of law.” Under this amendment, there are two types of due process: procedural due process and substantive due process. The plaintiffs did not specify whether they raised a procedural or substantive due process claim, so the Court addressed both.
Procedural due process requires notice, an opportunity to be heard, and an impartial trial. Here, the Court found no violation because the mask mandate was a general policy, not an individual decision, and it was
applied uniformly. Further, plaintiffs failed to identify a protected liberty or property interest. Courts have consistently held that temporary in-school suspensions or placement changes do not trigger due process protections if students are not excluded from school. The Court emphasized that the District made efforts to continue students’ education and maintain safety, including through supervised outdoor learning spaces.
For substantive due process, the first inquiry is whether a fundamental right is at stake. Here, the Court emphasized that there was no fundamental constitutional right to attend school without a mask during a pandemic. Parental rights to control children’s education do not extend to overriding school safety measures. The Court cited longstanding precedent to affirm the government’s authority to enact reasonable public health regulations during an emergency. Because the plaintiffs failed to plausibly plead any violation of fundamental rights, the claim was reviewed under rational basis scrutiny and again failed.
Having dismissed the federal claims, the Court declined to exercise supplemental jurisdiction over the plaintiffs’ remaining state law claims.
Reynolds v. Saddleback Valley Unified School District (C.D. Cal. Mar. 4, 2025) 2025 U.S. Dist. LEXIS 83605.
Note:
This case reaffirms that not all student conduct—such as refusing to wear a mask—is protected speech under the First Amendment, particularly when it disrupts school operations or public health measures. While this case involved a public school, it serves as a reminder that high school students, including those in private schools, have free speech rights under California law.
DISCRIMINATION
California Department Of Education Finds Antisemitic Bias In Lessons On Gaza Conflict.
The California Department of Education determined that teachers in two San Jose-area school districts, Campbell Union High School District (Campbell Union) and Santa Clara Unified School District (Santa Clara Unified), engaged in discriminatory conduct against Jewish students. The Department ordered both districts to provide anti-bias and antidiscrimination training and ordered Santa Clara Unified to provide additional training on students’ rights against retaliation.
At Branham High School in Campbell Union, two teachers in an Ethnic Literature class presented content related to the Israel/ Palestine conflict. Teacher A acknowledged conducting a lesson during a “community circle” that was not part of the approved curriculum. The discussion, under a broader theme of colonialism, asked students to consider whether Israel is a settler colonial state. The materials included a video of a rabbi wearing a Palestinian flag stating “A Jew is not a Zionist” and a reading from Paulo Freire’s “Pedagogy of the Oppressed.” The California Department of Education found that the lesson lacked a balanced perspective and could encourage antisemitism. The Department stated that, for the lesson to be unbiased, it would have needed to include a video reflecting a pro-Israel viewpoint, which would have allowed students to form authentic responses to the questions.
Also at Branham High School, Teacher B did not question or comment on a student presentation titled “Genocide of Palestinians,” and later posted the presentation on a class social media page. The Department stated that the legal issue was whether the teacher adequately responded to ensure a non-discriminatory and balanced learning environment. It concluded that Teacher B’s failure to comment could have been interpreted by students as approval of the presentation’s thesis. Campbell Union had
previously dismissed the complaint, but the Department found that the teachers’ actions violated state anti-discrimination standards.
The Department found two separate violations at Santa Clara Unified. In one case, a teacher assigned a genocide project and modeled the Gaza conflict as an example. The presentation described Israeli actions as “amount[ing] to the crimes against humanity of apartheid and persecution,” among other politically charged terms. Santa Clara Unified’s internal investigation concluded that the lesson was “poorly timed,” “controversial,” and “politically charged,” but found no policy violation. The Department determined that the content violated the Education Code’s protections against discrimination and intimidation based on religion, ethnicity, and nationality.
In the second incident, a teacher confronted a Jewish student about an Israeli speaker that the Jewish Culture Club had invited to speak. In front of other students, the teacher urged the student to disinvite the speaker, stating the talk would provoke antisemitism and reflect poorly on the student. Santa Clara Unified concluded that the teacher’s conduct was “objectively offensive” considering the power imbalance and the student’s Jewish identity, but it did not find clear evidence of discrimination or harassment. The Department disagreed, concluding that the teacher’s actions created a hostile environment and violated the student’s right to be free from discrimination and intimidation.
The Department ordered Campbell Union to provide at least one hour of anti-bias training for all English language arts and social studies teachers by the start of the next school year. It directed Santa Clara Unified to train all high school staff on students’ rights to be free from discrimination, harassment, and intimidation based on race, ethnicity, religion, and nationality. The Department also required Santa Clara Unified to take appropriate actions to protect the student complainant from retaliation.
Cal. Dep’t of Educ., Direct Investigations Office, Investigation Report, Case No. 2025-0008 (Apr. 4, 2025)(Campbell Union Investigation Report); Cal. Dep’t of Educ., Direct Investigations Office, Investigation Report, Case No. 20250010 (Apr. 10, 2025)(Santa Clara Decision of Appeal).
NOTE:
These investigations provide useful guidance to private schools navigating similar matters.
NEGLIGENCE
California Court Of Appeal Revives Negligence Claim Against School Bus Company Over Injuries To Student Dropped At Wrong Stop.
A.J., a minor student, and her classmate S.J. were passengers on a school bus operated by First Student, Inc. (FSI) under contract with the local school district. Despite FSI’s internal policies prohibiting the practice, the bus driver dropped both girls off at a location more than 1.5 miles from A.J.’s designated stop and her home. The girls protested, but the driver insisted they exit. After unsuccessfully attempting to reach her grandmother for a ride, A.J. accepted a ride from S.J.’s father, Warren J. While driving the girls to his house, Warren allegedly suffered a medical emergency, lost control of the vehicle, and caused a multi-vehicle collision. The crash killed Warren and seriously injured both A.J. and S.J.
A.J., through her guardian ad litem, filed suit against FSI for negligence. She alleged that the company’s failure to follow its own safety policy regarding drop-off locations led directly to her being placed in a vulnerable position and forced to seek unsafe alternative transportation. FSI moved for summary judgment, arguing that its actions were not the proximate cause of A.J.’s injuries and that Warren’s conduct—specifically, his seizure and negligent driving—was an unforeseeable superseding cause that severed liability.
In support of its motion, FSI submitted testimony from a witness to the crash and from S.J. The witness described Warren running a red light at high speed before the collision, while S.J. recounted that Warren appeared to be having a seizure immediately prior to the crash. FSI argued that even if it had been negligent, the chain of causation had been broken by Warren’s unexpected medical episode, rendering the collision legally unforeseeable from the standpoint of FSI’s original conduct.
The trial court agreed, granting summary judgment for FSI. It found that although FSI’s actions were a factual cause of the collision, the connection was too attenuated to support legal liability. It emphasized that the types of injuries reasonably foreseeable from a student being dropped at the wrong stop might include abduction or exposure to extreme weather—not a fatal car crash caused by a driver’s medical event.
On appeal, the Court of Appeal disagreed and reversed. The Court reaffirmed that proximate cause under California law involves both factual causation and legal policy-based limitations. While factual causation was not contested on appeal, the Court held that the foreseeability of harm from FSI’s alleged negligence remained a triable question of fact. The Court emphasized that what must be foreseeable is not the precise mechanism of harm (such as Warren’s seizure), but the general nature of the injury—in this case, the risk of injury from being forced to find alternative transportation in a private vehicle.
The Court pointed to deposition testimony and policy documents indicating that both FSI and the school district recognized the dangers of dropping students at the wrong stop. FSI’s own training materials, along with testimony from its location manager and the district superintendent, acknowledged that students left in such a situation might resort to private rides and that private vehicles are inherently less safe than school buses. The Court reasoned that a jury could find it reasonably foreseeable that ejecting a child far from home would increase the risk of injury in precisely the type of scenario that occurred here.
Finally, the Court emphasized that internal policies and training materials, when supported by testimony and tied to specific safety rationales, may serve as evidence that a defendant recognized the risk of harm. The Court found that a jury could reasonably conclude that FSI’s own policies were designed to prevent exactly the kind of harm that occurred, and therefore supported the imposition of liability.
Accordingly, the Court of Appeal reversed the grant of summary judgment and remanded the case for further proceedings. It held that the issues of proximate causation and superseding cause were for the jury to decide, not the court.
A.J. J. v. First Student (Apr. 30, 2025) ___Cal.App.5th___ [2025 Cal. App. Unpub. LEXIS 2660].
NOTE:
Although this case involves a bus company, it highlights how internal policies and training documents, especially when tied to foreseeable risks such as the need to seek alternative transportation, can support negligence claims.
EMPLOYEES
discrimination
Court Rules That Academic Discussions About Race Did Not Create Hostile Work Enviornment.
Zack De Piero, a white male and a former Assistant Teaching Professor at Penn State Abington, brought claims against the University, alleging that it created a racially hostile work environment and unlawfully retaliated against him after he filed internal and external complaints challenging the University’s diversity, equity, and inclusion practices.
De Piero’s claims were largely based on his experience working in Penn State Abington’s English Department from 2018 to 2022. Throughout his tenure, De Piero expressed concern that Penn State’s initiatives, including professional development sessions, campus-wide emails, and diversity events, conveyed what he described as a race-essentialist ideology that singled out White faculty members. His lawsuit focused on twelve incidents occurring over a three-and-ahalf-year period, which he argued collectively created an abusive and discriminatory workplace. These included email discussions of antiracist writing pedagogy, a Zoom forum about the George Floyd protests where a University official encouraged White attendees to “hold their breath” longer as a metaphor for privilege, and diversity-related communications commemorating Juneteenth.
In addition to these campus-wide activities, De Piero pointed to individualized actions taken against him after he complained about the University’s focus on race-related programming. He cited the filing of internal bias reports by and against him, disciplinary memos placed in his personnel file, and a downgraded evaluation in the “Service” component of his annual performance review. He contended that these acts, both collectively and individually, demonstrated both a hostile work environment and unlawful retaliation for his protected complaints.
Hostile Work Environment
The Court first addressed De Piero’s hostile work environment claims, which were brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 1981, and the Pennsylvania Human Relations Act. The Court examined whether the alleged conduct was sufficiently severe or pervasive to alter the conditions of De Piero’s employment, a requirement under all three statutes. After reviewing the factual record, the Court found that De Piero’s allegations, even taken as true and viewed in the light most favorable to him, could not meet either the “severe” or “pervasive” standard required to survive summary judgment.
The Court distinguished between claims based on isolated or sporadic incidents and those based on a continuous pattern of abusive conduct. It found that most of the events De Piero cited involved campus-wide programming or generalized discussions of race and racism in an academic setting, none of which directly targeted him because of his race. The Court noted that the diversity trainings, professional development sessions, and faculty discussions De Piero challenged were voluntary in nature. He had chosen to attend many of the events and even sought out recordings of presentations he missed. The Court emphasized that participating in academic conversations about race—even ones that may cause discomfort—is not equivalent to suffering actionable racial harassment under federal or state law.
Furthermore, the Court found that Penn State’s conduct was far less extreme than what courts typically require to meet the threshold for a severe or pervasive hostile work environment. Unlike cases where plaintiffs endure racial slurs, threats, or physical intimidation, De Piero’s allegations primarily concerned expressions of social and academic viewpoints with which he disagreed. While the Court acknowledged that he may have experienced offensive feelings, it reiterated that subjective offense alone does not satisfy the objective legal standard.
To establish a prima facie case of retaliation, the plaintiff must show: (1) he engaged in a protected activity; (2) the employer took some adverse action against him, either after or contemporaneous with the protected activity; and, (3) there was a causal connection between the protected activity and the adverse action. Here, the Court concluded that De Piero had not met this burden. While it was undisputed that De Piero engaged in protected activity by filing an Equal Employment Opportunity Commission (EEOC) charge and internal complaints with Penn State’s Affirmative Action Office, the Court found that he could not show any materially adverse employment action in response. The two actions he cited—the placement of a “Performance Expectations” memorandum in his personnel file and the downgrade of one category of his annual review—were insufficient as a matter of law.
The Court explained that a written reprimand or negative evaluation, without more, does not constitute an adverse employment action unless it materially changes the employee’s terms or conditions of employment. In De Piero’s case, there was no evidence that he suffered any demotion, reduction in salary, loss of benefits, or substantial change in responsibilities. To the contrary, Penn State renewed his teaching contract, awarded him a pay raise, and made no alterations to his employment status. Ultimately, De Piero voluntarily resigned to accept another academic position elsewhere.
The Court also noted that De Piero’s own conduct undermined his claims. The record included text messages suggesting that he sought opportunities to document grievances against Penn State, raising additional doubts about the sincerity of his claims. For instance, after filing an internal bias complaint, he boasted to a friend that he had secretly recorded meetings and shared the recordings with an attorney.
Accordingly, the Court granted summary judgment and dismissed the lawsuit.
De Piero v. Pennsylvania State University (E.D. Pa. Mar. 6, 2025) 2025 U.S. Dist. LEXIS 723029; De Piero v. Pennsylvania State University (E.D. Pa. Apr. 9, 2025) 2025 U.S. Dist. LEXIS 763812.
Note:
In this case, the Court carefully distinguished between uncomfortable or unpopular discussions about race—which are not prohibited under federal anti-discrimination laws— and actionable discrimination or retaliation that materially alters an employee’s work environment or opportunities. The Court underscored that academic institutions must be free to engage in difficult conversations about race and equity, particularly following major national events, without fear that doing so will automatically expose them to liability.
Court
Allows Race Discrimination And Retaliation Claims By California University Lecturer To Proceed.
Booker Cook is an African American man in his seventies who worked as a lecturer at a California University (University) in the Ethnic Studies Department. Early in his employment, Cook perceived hostility from Elvia Ramirez, a Chicanx/ Latinx Studies professor, whom he described as acting “cold and cruel” and failing to welcome him. Cook alleged that Ramirez frequently closed her office door when African American colleagues, including Cook, were present—a claim partially corroborated by Ramirez’s former assistant.
In 2018, Cook claimed to have overheard Ramirez questioning why the department had hired “that old Black man” to lecture, suggesting that he did not represent the student body. Cook also alleged that Ramirez routinely made derogatory comments about Black faculty and the Pan-African Studies Program during faculty meetings, including repeatedly asking, “[w]hy do we keep hiring all these Black people?” and mischaracterizing African American staff hires as solely PanAfrican Studies hires.
In November 2020, Cook filed an internal complaint with the University’s Office of Equal Opportunity alleging race and age discrimination. In 2021, he applied for a newly created tenure-track faculty position in Pan-African Studies, created in response to new educational requirements under AB 1460. A five-person hiring committee was formed; Ramirez was added to the committee after another member withdrew.
Each committee member was asked to create a “top list” of candidates to interview. Cook applied but was not selected for an interview. Notably, all applicants, including those who advanced, were African American. Two candidates, both African American, were ultimately hired. Cook alleged that Ramirez intentionally excluded him from her top list to prevent his selection. Other committee members did rank Cook among their top choices.
Cook filed suit in state court, and the case was removed to federal court. His claims included racial discrimination and harassment under Title VII and the California Fair Employment and Housing Act (FEHA), age discrimination and harassment under FEHA, and retaliation under FEHA.
Cook argued that Ramirez’s conduct—disparaging comments, discriminatory assumptions, and opposition to hiring African Americans—demonstrated racial animus that contributed to his exclusion from the tenure-track position and created a hostile work environment. He also argued that Ramirez retaliated against him for filing internal complaints.
Defendants contended that Cook could not establish a prima facie case of race or age discrimination because the successful candidates were also African American, and there was no evidence of age-based animus. They asserted that Cook was not selected for interview based on his academic qualifications, specifically his lack of a doctorate and peer-reviewed publications. They further argued that any harassment was not sufficiently severe or pervasive to constitute a hostile work environment.
Racial Discrimination
In racial discrimination cases under Title VII and FEHA, courts most commonly employ the McDonnell Douglas burden shifting framework under which the plaintiff must first establish a prima facie case of discrimination then the defendant may show that the action was taken for a legitimate, non-discriminatory reason, and then the plaintiff may rebut the defendant’s evidence by showing the reasons offered by the defendant are a pretext for discrimination. This prima facie case is typically satisfied, and the inference of unlawful discrimination is established when a plaintiff shows: (1) he belongs to a protected class; (2) he was qualified for the position; (3) he was subject to an adverse employment action; and (4) similarly situated individuals outside his protected class were treated more favorably.
The Court acknowledged that Cook could not meet this standard because all applicants were African American. However, it applied Ninth Circuit precedent allowing a plaintiff to establish an inference of discrimination without rigidly satisfying all four elements. The Court found that Cook presented enough evidence—particularly Ramirez’s alleged racially hostile remarks and her singular decision to exclude him from the top candidate list—to allow a jury to reasonably infer racial animus played a role. Summary judgment on Cook’s race discrimination claim was therefore denied.
Racial Harassment
Similarly, the Court found triable issues of fact regarding Cook’s racial harassment claim.
To prevail on a hostile workplace claim, a plaintiff must show: (1) that he was subjected to verbal or physical conduct of a racial nature; (2) that the conduct was unwelcome; and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create an abusive work environment.
Although Ramirez’s conduct was arguably less severe than in some other cases, the Court noted that repeated negative statements about African Americans, differential treatment in faculty meetings, and racially derogatory remarks could, if proven, be sufficient for a jury to find an abusive work environment.
Age Discrimination and Harassment
The Court granted summary judgment on Cook’s age claims. It found that the only age-related comment—a 2018 remark by Ramirez referring to Cook as “that old Black man”— was isolated, stale, and insufficiently severe to support a harassment claim. Further, Cook provided no evidence that younger candidates were treated more favorably in the hiring process.
Retaliation
The Court denied summary judgment on Cook’s FEHA retaliation claim. To establish a prima facie case for retaliation under FEHA, a plaintiff must establish that (1) he was engaging in a protected activity, (2) the employer subjected him to an adverse employment action, and (3) there was a causal link between the protected activity and the employer's action. Here, the Court held that factual disputes existed over whether Ramirez knew about Cook’s prior complaints and whether she acted with retaliatory intent in excluding him from her top candidate list. Ramirez’s statement during the Pan-African Studies hiring investigation that she was being “attacked again” could reasonably be interpreted by a jury as evidence of retaliatory animus.
The Court granted in part and denied in part Defendants’ motion for summary judgment. Cook’s race discrimination, race harassment, retaliation, and related failure-to-prevent claims will proceed to trial. However, his age discrimination, age harassment, and negligent supervision claims were dismissed.
Cook v. Board of Trustees of California State University (E.D. Cal. Apr. 17, 2025) 2025 U.S. Dist. LEXIS 70176.
Note:
While the successful candidates in this case were also African American, the case is a reminder that discriminatory intent can still be inferred from biased statements or conduct.
Ninth Circuit Finds Triable Discrimination Claim Where USPS Replaced An Asian American Woman With A Less Experienced White Man.
Dawn Lui, a Chinese American woman in her late fifties, began working for USPS in 1992 and became Postmaster in 2004. In 2014, she was appointed Postmaster of the Shelton, Washington office, where employees filed numerous complaints and grievances against her. Lui and her supervisor, Charles Roberts, declared these complaints were false and motivated by her race, sex, and national origin. Lui
reported being called slurs, and a coworker confirmed hearing comments about her English proficiency.
During a grievance investigation, Lui was asked whether she had a relationship with Roberts, which she attributed to his wife being Asian. Roberts raised concerns about Lui’s treatment to the HR Manager, reporting that a Union Rep and others were targeting Lui based on race. He claimed the HR Manager did not investigate and instead collaborated with the Union Rep to build a disciplinary case. The HR Manager and Labor Relations Manager also questioned whether Roberts and Lui were romantically involved. When Roberts asked to meet with his supervisor, Darrell Stoke, about the HR Manager’s conduct, Stoke included the HR Manager and asked Roberts to support removing Lui. Roberts felt pressured to propose a disciplinary alternative or be reassigned and ultimately recommended a downgrade.
Roberts later stated that the disciplinary process was irregular and retaliatory. He described being excluded from meetings concerning Lui’s discipline after refusing to support her removal. The HR Manager and Stoke allegedly made clear that Roberts’s role would be replaced if he did not cooperate. After Roberts refused to sign the notice of proposed downgrade, he was temporarily removed from his position. Roberts’s replacement ultimately signed the notice. Lui was charged with coercing a schedule change in violation of the union contract, throwing a clipboard and kicking packages, and allowing a nonemployee into a restricted area—charges Roberts maintained were false and racially motivated.
On October 28, 2019, USPS issued the downgrade notice, reassigning Lui to the smaller Roy, Washington Post Office. Lui filed an informal EEO complaint in November 2019 and appealed the downgrade to Tacoma Postmaster Karen Bacon. Roberts had warned Bacon about racial bias, but she upheld two charges and confirmed the downgrade in February 2020. USPS reassigned Lui and installed a less experienced white man as Officer in Charge at Shelton. A permanent Postmaster was not named for two years.
Lui filed a formal EEO complaint in March 2020 and appealed to the Merit Systems Protection Board, which upheld her demotion. She then sued USPS under Title VII, alleging discrimination, hostile work environment, and retaliation. The trial court granted summary judgment for USPS, finding Lui failed to establish a prima facie discrimination case, exhaust administrative remedies for her hostile work environment claim, or show a causal link for retaliation. Alternatively, it held USPS had a legitimate, nondiscriminatory reason for her demotion, and Lui failed to show pretext.
The Ninth Circuit Court of Appeals reversed in part. It held that Lui met the fourth prong of her discrimination claim by showing she was replaced by a less experienced white man. It emphasized that plaintiffs can show discrimination either by comparison to similarly situated individuals or by showing replacement by someone outside their protected class. It
also found that the decision maker, Bacon, relied entirely on biased reports, ignored Roberts’s warnings, and conducted no independent inquiry—raising a triable issue of discriminatory motive.
On the hostile work environment claim, the Ninth Circuit held Lui exhausted her administrative remedies and that the downgrade could be part of a broader pattern of discriminatory treatment. It remanded for the trial court to consider the merits. The Court affirmed summary judgment on Lui’s retaliation claim, finding no causal link between her protected activity and the demotion.
Lui v. DeJoy, 129 F.4th 770 (9th Cir. 2025)
Note:
The Court in this case emphasized that decision-makers who rubber-stamp discriminatory input without investigation can expose employers to liability—an important reminder for schools to evaluate internal complaints, especially when bias or retaliation may be involved.
Court Allows Former Harvard Women’s Hockey Coach’s Discrimination
And Retaliation Claims To Proceed.
Kathleen Stone was a distinguished coach of Harvard’s Division 1 women’s ice hockey team, hired in 1994 and amassing over 500 victories and multiple titles during her tenure. In 2017, anticipating legal reforms, Stone and other female coaches began advocating for pay transparency and gender equity. In 2018, Harvard implemented a new compensation model for coaches, but Stone alleges that the model failed to achieve true pay equity. Despite her achievements, Stone remained underpaid compared to the men’s ice hockey coach, with a salary gap of $50,000 to $100,000 annually. A belated salary increase in 2022 did not eliminate the disparity.
In March 2022, during a locker room address, Stone used the phrase “too many chiefs and not enough Indians.” She immediately apologized to players and staff and selfreported the incident. Nonetheless, Harvard initiated a twoprong investigation: a human resources complaint by an assistant coach and a review of survey data reflecting player dissatisfaction. The investigation concluded that Stone had not created a toxic work environment and had not engaged in a pattern of unprofessional conduct.
Despite this finding, Harvard placed Stone on a performance improvement plan (PIP) to address concerns raised by the players and, later in 2022, Stone learned of a forthcoming negative article in the Boston Globe. Harvard’s administrators instructed her not to engage with the press and assured her that the University supported her. After the article’s publication, which portrayed her as an angry and abusive coach, Stone
offered to respond but was again dissuaded. The Athletic Director allegedly admitted to Stone that if she were a man, she would not have been treated the same way.
Subsequently, Harvard launched another investigation into Stone, focusing on allegations of hazing and bullying within the team. Stone contended she was unaware of such behavior and responded appropriately when informed. She alleged that Harvard shielded male coaches from similar scrutiny and tolerated similar conduct by them. In May 2023, facing the choice to retire or be terminated, Stone retired effective June 30, 2023. Harvard later announced that its investigation found no culture of hazing on the women’s hockey team. Stone claims that Harvard’s actions have devastated her coaching career.
Stone filed suit, bringing claims for sex/gender discrimination under Title VII and Massachusetts law, violations of the federal Equal Pay Act (EPA) and Massachusetts Equal Pay Act (MEPA), and retaliation under both federal and state law. Harvard moved to dismiss. Harvard argued that many of Stone’s claims were time-barred because they arose from events outside the applicable statutes of limitations. Harvard also contended that Stone failed to state a plausible claim for gender discrimination or retaliation and that no causal link existed between any protected activity and adverse actions.
Statute of Limitations
The Court rejected Harvard’s arguments that Stone’s Title VII, EPA, and Massachusetts law claims were mostly timebarred. It applied the continuing violation doctrine, noting that Stone alleged an ongoing pattern of discriminatory pay and treatment that extended into the limitations period. Under the federal Lilly Ledbetter Fair Pay Act, each paycheck reflecting unequal pay created a new cause of action. Thus, Stone’s EPA and Title VII claims regarding pay disparities and discrimination were not barred. However, the Court agreed that Stone’s MEPA claims were untimely for conduct predating July 2021.
Equal Pay Act Claims
The Court also found that Stone plausibly alleged a willful violation of the EPA, which would extend the limitations period to three years. Stone’s allegations that Harvard admitted it would not reach pay equity and took no further steps to correct disparities supported an inference of willfulness sufficient to survive a motion to dismiss.
Sex/Gender Discrimination
Next, the Court found that Stone plausibly alleged gender discrimination by asserting that Harvard treated her less favorably than male coaches accused of similar misconduct, tolerated “hard coaching” styles by men but penalized her for comparable behavior, and ultimately forced her into
retirement while publicly distancing itself from her. The Court found these allegations sufficient to state a claim.
Retaliation
The court held that Stone plausibly alleged retaliation. She engaged in protected activity by advocating for equal pay and complaining about gender-based disparities. Stone’s January 2023 statement to Harvard administrators that she believed she was treated differently because of her gender, combined with Harvard’s subsequent actions leading to her forced retirement, supported a plausible inference of retaliation.
Harvard’s motion to dismiss was granted only as to Stone’s MEPA claims arising before July 2021. All other claims— including her Title VII, EPA, Massachusetts discrimination and retaliation claims—survived and will proceed to the next stage of litigation.
Stone v. President (D.Mass. Mar. 19, 2025) 2025 U.S.Dist. LEXIS 79719; Stone v. President and Fellows of Harvard College, (D. Mass. Apr. 25, 2025) 2025 U.S. Dist. LEXIS 75987.
Note:
The case underscores that even long-serving employees with internal complaints and public scrutiny may have viable legal claims when adverse actions follow advocacy for pay equity or highlight gender-based disparities in discipline.
benefits corner
Court Orders IRS To Refund ACA Penalty Payment To Employer Because HHS Did Not Provide Required Certification.
Faulk, a janitorial services company, stopped providing minimum essential health insurance coverage to its employees in 2019. On December 1, 2021, the Internal Revenue Service (IRS) issued a Letter 226-J to Faulk proposing an excise tax known as the Employer Shared Responsibility Payment (ESRP) for tax year 2019 because Faulk failed to offer its full-time employees minimum essential coverage under the Affordable Care Act (ACA). The Letter 226-J provided a preliminary calculation of the ESRP at $205,621. The Letter 226-J also purported to serve as “certification” that at least one of Faulk’s full-time employees enrolled in health coverage provided by the Exchange.
Faulk disagreed with the proposed ESRP but paid the amount under protest. Faulk then sought a refund from the IRS but received no response. In June 2024, Faulk filed a lawsuit again the United States Department of Health and Human Services (HHS) and IRS (collectively the Government) for violating its due process rights. Specifically, Faulk alleged that the Government improperly categorized the Letter 226-J as a “certification” that at least one of Faulk’s full-time employees enrolled in health coverage provided by the Exchange. The Letter 226-J “certification” came from the IRS, whereas Fault argued it was required to come from HHS before the ESRP could be assessed.
The ACA requires applicable large employers (employing fifty or more full-time equivalent employees) to provide their full-time employees with minimum essential coverage. The ESRP is triggered when: (1) an employer fails to offer substantially all of its full-time employees the opportunity to enroll in
minimum essential coverage for any month; and (2) if “at least one full-time employee of the applicable large employer has been certified to the employer” under ACA section 1411 as having enrolled in the Exchange (i.e., Covered California in California) for such month. Based on the second requirement, the employer must receive certification of the failure to provide coverage before the IRS may assess an ESRP.
The issue in the lawsuit was which agency could issue the certification. HHS delegated authority to the IRS to issue the certification, which the IRS purports to do through Letter 226-J. However, Faulk argued that the certification must come from HHS based on the statutory language.
After considering multiple interpretations of the ACA, the Court agreed with Faulk. The Court interpreted the ACA as giving HHS the exclusive authority to issue the certification based on ACA section 1411 and Internal Revenue Code section 4980H. The ACA requires HHS to issue a certification notifying an employer that at least one full-time employee has enrolled in the Exchange before the IRS enters the picture and assesses the ESRP. As a result, HHS cannot delegate the certification requirement to the IRS.
Since the Court found that the IRS could not issue the certification, the IRS’s Letter 226-J did not serve as certification to Faulk, and therefore, not all of the due process requirements had been met before assessing the ESRP. The Court ordered the IRS to refund Faulk the entire $205,621 ESRP.
Faulk Company, Inc. v. Becerra, 2025 U.S. Dist. LEXIS 68580, 2025 WL1085080 (N.D. Tex. 2025)
Note:
This case brings into question whether any of the Letters 226-J the IRS has issued to applicable large employers assessing the ESRP are valid. While the Faulk case was in the Northern District of Texas, which does not hold precedent in a federal district court located in California, it brings forth an argument any applicable large employer could bring to challenge a Letter 226-J anywhere in the country. Based on this case, HHS and the IRS may modify their procedures so that certifications come from HHS before the IRS proposes and assesses the ESRP.
Benefits Compliance Questions.
Questions:
If an employee is on Family and Medical Leave Act (FMLA) and California Family Rights Act (CFRA) leave for their own serious health condition and receiving State Disability Insurance (SDI) or some other form of paid disability benefits, can the employer require them to use their paid time off, sick leave, or vacation to make up the rest of their wages?
Answer:
No, the employer cannot require an employee to integrate accrued paid leaves with paid disability benefits if the employee does not want to use such leave. When an employee is on FMLA/CFRA leave and is receiving paid disability leave through a short- or long-term disability leave plan, such as SDI, the employee is not considered to be on “unpaid leave.” (2 C.C.R. Section 11092(b)(2).) As a result, the employer cannot unilaterally require the employee to use paid time off, sick leave, or accrued vacation. The employee and employer may mutually agree to integrate accrued paid leaves with the paid disability benefits, but if the employee declines to do so, the employer cannot require it.
Please note that the answer differs when an employee is on FMLA/CFRA leave but not receiving any paid disability benefits. In that case, the employee may elect to use or an employer may require an employee to use any accrued vacation time or other paid accrued time off, or sick leave when the employee is otherwise eligible to use it.
Start the school year strong with LCW’s dynamic and practical professional development sessions, customized for the unique and evolving needs of California private schools.
Essential training topics include:
• Harassment & Discrimination Prevention (Supervisory and NonSupervisory)
• Maintaining Professional Boundaries
• California Mandated Reporter Training
• The Art of the Performance Evaluation
• Leading from the Middle
• Board Governance 101
• And many more!
Available Live or On-Demand. Schedule Now at info@lcwlegal.com
cases we are watching
• President Trump has indicated that he will be revoking Harvard University’s tax-exempt status, citing concerns over the University's policies and management of its endowment. This action follows the freezing of $2.2 billion in federal research grants to Harvard and demands for the University to eliminate diversity, equity, and inclusion programs, overhaul its leadership, and enforce stricter student conduct policies. Harvard has rejected these demands, asserting they exceed legal authority and infringe upon academic freedom. The Internal Revenue Service is reportedly considering the revocation. In response, Harvard has filed a lawsuit against the Trump administration, arguing that the actions violate constitutional rights and threaten the University's ability to fulfill its educational mission.
• The Washington Attorney General filed a civil complaint against Seattle Public Schools (SPS) alleging widespread violations of state laws protecting pregnant and nursing employees. The lawsuit claims that since at least 2021, SPS has routinely denied reasonable pregnancy accommodations mandated by Washington laws, including denying adequate time and space for expressing breast milk, failing to provide restroom and sitting breaks, refusing modified work schedules, and retaliating against employees who requested such accommodations. The complaint also alleges that SPS provided misleading information about maternity leave and failed to assign competent leave personnel, causing emotional, physical, and financial harm to affected employees.
• A Utah state court struck down the Utah Fits All Scholarship Program, ruling that it violates multiple provisions of the Utah Constitution. The scholarship program, enacted in 2023, used public funds to provide scholarships for private education expenses but excluded students enrolled in public schools and lacked oversight by the State Board of Education. The court found that the program failed to meet constitutional requirements that public education be “free” and “open to all children of the state,” and impermissibly diverted income tax revenue meant for public education to private, including religious, providers. The court enjoined further implementation of the program, concluding it was unconstitutional under the Utah Constitution. The State is expected to appeal the decision.
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• The Federal Trade Commission has finalized significant updates to the Children’s Online Privacy Protection Rule (COPPA), with the amendments set to take effect on June 23, 2024, and a full compliance deadline of April 22, 2026. The updated rule, which strengthens protections for children under 13, expands requirements for companies that collect data from minors, including ed tech providers frequently used in K-12 schools. Under the revised rule, companies must obtain verifiable parental consent before using children's data for targeted advertising or sharing it with third parties. However, schools can continue to provide consent on behalf of parents for data used strictly for educational purposes. The updated regulations can be found here.
• Recently, there was a severe hazing incident involving the Westhill High School boys' lacrosse team in Syracuse, New York. The older team members allegedly orchestrated a mock kidnapping of younger teammates by luring them under the pretense of attending a lacrosse game and then taking them to a remote area. There, masked individuals, appearing armed, ambushed the victims, tied at least one up, placed a pillowcase over his head, and locked him in a car trunk. The incident was recorded on video, and the victim reportedly believed he would be abandoned in the woods, causing significant emotional trauma. The District Attorney threatened felony kidnapping charges if the students did not turn themselves in within 48 hours. All 11 students turned themselves in and received charges of unlawful imprisonment.
• The U.S. Department of Health and Human Services’ Office for Civil Rights (OCR) issued a Dear Colleague letter clarifying that medical schools receiving federal funding must comply with Title VI of the Civil Rights Act, Section 1557 of the Affordable Care Act, and the Equal Protection Clause by eliminating race-based decision-making in admissions, hiring, and campus operations. Citing the Supreme Court’s 2023 ruling in Students for Fair Admissions v. Harvard, OCR stated that policies relying explicitly or implicitly on race— including diversity statements, race-based metrics, or pretextual proxies for race—violate federal law. OCR emphasized that health care professionals must be selected based on merit and skills, not racial considerations, and announced it will prioritize investigations into institutions using race in admissions or employment or lacking compliance policies. This guidance aligns with Executive Order 14173 , which directs agencies to eliminate unlawful DEI practices and enforce merit-based opportunity.
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lcw best timeline
MAY
Schools with more than 100 employees: submit annual pay data to the California Department of Civil Rights (due 5/14/25).
Complete hiring of new employees for next school year.
Complete hiring for any summer programs.
If service agreements expire at the end of the school year, review service agreements to determine whether to change service providers (e.g., janitorial services, if applicable).
• Employees of a contracted entity are required to be fingerprinted pursuant to Education Code Section 33192, if they provide the following services:
School and classroom janitorial.
School site administrative.
School site grounds and landscape maintenance.
Pupil transportation.
School site food-related.
• A private school contracting with an entity for construction, reconstruction, rehabilitation, or repair of school facilities where the employees of the entity will have contact, other than limited contact, with pupils, must ensure one of the following:
That there is a physical barrier at the worksite to limit contact with pupils.
That there is continual supervision and monitoring of all employees of that entity, which may include either:
• Surveillance of employees of the entity by School personnel; or
• Supervision by an employee of the entity who the Department of Justice has ascertained has not been convicted of a violent or serious felony, which may be done by fingerprinting pursuant to Education Code Section 33192. (See Education Code Section 33193).
If conducting end of school year fundraising:
Raffles:
Qualified tax-exempt organizations, including nonprofit educational organizations, may conduct raffles under Penal Code Section 320.5.
• In order to comply with Penal Code Section 320.5, raffles must meet all of the following requirements:
Each ticket must be sold with a detachable coupon or stub, and both the ticket and its associated coupon must be marked with a unique and matching identifier.
Winners of the prizes must be determined by draw from among the coupons or stubs. The draw must be conducted in California under the supervision of a natural person who is 18 years of age or older.
practices
Each Month, LCW Presents A Monthly Timeline Of Best Practices for private and independent schools. The timeline runs from the fall semester through the end of summer break. LCW encourages schools to use the timeline as a guideline throughout the school year.
At least 90 percent of the gross receipts generated from the sale of raffle tickets for any given draw must be used to benefit the school or provide support for beneficial or charitable purposes.
• 50/50 raffles may only be conducted by major league sports nonprofits.
Auctions:
• The School must charge sales or use tax on merchandise or goods donated by a donor who paid sales or use tax at time of purchase.
Donations of gift cards, gift certificates, services, or cash donations are not subject to sales tax since there is not an exchange of merchandise or goods.
Items withdrawn from a seller’s inventory and donated directly to nonprofit schools located in California are not subject to use tax.
• For example, if a business donates items that it sells directly to the School for the auction, the School does not have to charge sales or use taxes. However, if a parent goes out and purchases items to donate to an auction (unless those items are gift certificates, gift cards, or services), the School will need to charge sales or use taxes on those items.
Conduct exit interviews:
• Conduct at the end of the school year for employees who are leaving (whether voluntarily or not). These interviews can be used to improve the organization and can help defend a lawsuit if a disgruntled employee decides to sue.
MID-JUNE THROUGH END OF JULY
Update Employee and Student/Parent Handbooks:
• The handbooks should be reviewed at the end of the school year to confirm that the policies are legally compliant, consistent with the employment agreements and enrollment agreements that were executed, and current with the latest best practice recommendations. The school should also add any new policies that it would like to implement upon reflection from the prior school year and to prepare for the upcoming school year.
Conduct review of the school’s Bylaws (does not necessarily need to be done every year).
Review of insurance benefit plans:
• Review the school’s insurance plans, in order to determine whether to change insurance carriers. Insurance plans expire throughout the year depending on your plan. We recommend starting the review process at least three months prior to the expiration of your insurance plan.
• Workers Compensation Insurance plans generally expire on July 1.
• Other insurance policies generally expire between July 1 and December 1.
To learn more about our program, please visit our website below or contact Anna Sanzone-Ortiz 310.981.2051 or asanzone-ortiz@lcwlegal.com.
www.lcwlegal.com/events-and-training/train-the-trainer/harassment-prevention-train-the-trainer-2/
Consortium Call Of The Month
LCW has four private education consortiums across the State! Consortium members enjoy access to quality training throughout the year, discounts on other LCW products and events, and unlimited, complimentary telephone and email consultation with an LCW private education attorney on matters related to employment and education law questions (including business & facilities questions and student issues!). We’ve outlined a recent consortium call and the provided answer below. Client confidentiality is paramount to us; we change and omit details in the Consortium Call of the Month.
Question:
The Director of Human Resources at a school reached out to LCW with a question about best practices for meal break waivers. The HR Director asked if employees should complete a waiver each time they waive their meal break, both when working less than six hours and when working 10-12 hours, or if the School should allow employees to sign a waiver annually?
Answer:
The LCW attorney advised that Labor Code section 512 discusses when non-exempt employees can waive meal breaks, but that the statute itself does not say how often the meal break waivers should be completed.
Labor Code section 512 states that an employee can voluntarily waive a meal period if the employee’s workday is no more than 6 hours by mutual consent of the school and employee. When the workday is longer than 10 hours but shorter than 12 hours, the second meal period may be waived by mutual consent of the school and employee as long as the employee has not waived the first meal break.
In situations mentioned above, where the employee is allowed to waive their meal break and wants to do so, LCW recommends that schools require the employee to sign a written waiver for each waived meal break or for a specified period of time covering waived meal breaks. LCW recommends this because it is the employer’s duty and burden to show the meal break was properly waived if there is a conflict about it. Having employees only sign a meal beak waiver once a year increases the risk of not being able to prove the employee voluntarily waived the break each and every time.
Liebert Cassidy Whitmore