Private Education Matters: November 2024

November 2024

Private Education Matters

Table Of Contents 03 Religious Schools

15 Discrimination

05 Privacy

19 Labor Relations Corner

07 New Legislation

20 Cases We Are Watching

08 Governance

STUDENTS

21 Did You Know?

09 Enrollment Contracts

22 LCW Best Practices Timeline

EMPLOYEES

25 Consortium Call Of The Month

11 NLRA 13 Negligence

Contributors: Grace Chan Partner | San Francisco

Max Sank Partner | Los Angeles

Stacy Velloff Senior Counsel | San Francisco

Hannah Dodge Associate | San Francisco

Gabriella Kamran Associate | Los Angeles

Ashlyn Marquez Associate | San Francisco

Connect With Us! Copyright © 2024 Requests for permission to reproduce all or part of this publication should be addressed to Cynthia Weldon, Director of Marketing and Training at 310.981.2000.

Cover Photo: Attributed to pexels.com

Private Education Matters is published monthly for the benefit of the clients of Liebert Cassidy Whitmore. The information in Private Education Matters should not be acted on without professional advice. To contact us, please call 310.981.2000, 415.512.3000, 559.256.7800, 916.584.7000 or 619.481.5900 or e-mail info@lcwlegal.com.

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• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

Ninth Circuit Allows Challenge to California's Nonsectarian Requirement for Special Education Funding at Private Religious Schools.

The defendants argued that the plaintiffs lacked standing to bring their claims. To establish standing, a plaintiff must show that (1) they have suffered or will likely suffer an injury in fact; (2) that the injury was caused or will be caused by the defendant; and (3) the injury would be redressed by the requested judicial relief.

As part of its efforts to implement the Individuals with Disabilities Education Act (IDEA), the State of California contracts with certain "nonpublic, nonsectarian schools" (NPSs) to provide free appropriate public education (FAPE) to students with disabilities under the IDEA. By statute, California requires that these NPSs are nonsectarian (i.e., non-religious). This exclusion effectively prevents religious schools from accessing both federal IDEA funding and state special education funding.

The Court of Appeals agreed with the defendants in part and ruled that the schools and Loffman family lacked standing.

The plaintiffs, comprising Orthodox Jewish families (the Loffmans, Taxons, and Peretses) with children who have disabilities, along with religious schools in Los Angeles, filed suit against the California Department of Education, State Superintendent Tony Thurmond, the Los Angeles Unified School District (LAUSD), and Anthony Aguilar, LAUSD's Chief of Special Education, Equity, and Access.

November 2024

Religious Schools For the schools, the Court of Appeals found that the schools failed to demonstrate an injury in fact because, while the schools argued they faced a discriminatory barrier in the NPS certification process, the Court determined they did not sufficiently show they would apply for certification if the nonsectarian requirement was removed. The schools did not provide evidence that they met other requirements for NPS certification or that they had concrete plans to seek certification.

The Court also found that the Loffmans failed to demonstrate an injury in fact. Their son M.L. was attending a private Orthodox Jewish learning center at the time of the lawsuit. The court determined that the Loffmans did not show they had concrete plans to enroll M.L. in a religious school that would seek At the trial court level, the plaintiffs sought a preliminary NPS certification if the nonsectarian requirement was injunction against enforcing the nonsectarian removed. The Loffmans’ alleged injury of having to requirement. The trial court dismissed the case and discontinue M.L.'s speech therapy due to cost was not denied the injunction. The plaintiffs appealed to the directly tied to the nonsectarian requirement for NPS Ninth Circuit Court of Appeals. certification, and therefore the Court found that the Loffmans lacked standing.

On appeal, the plaintiffs argued that California's exclusion of religious schools from NPS certification In contrast, the Court of Appeals found that the Peretses violated both the Free Exercise Clause of the First family had standing because they demonstrated a Amendment and the Equal Protection Clause of the plausible injury. Their son N.P. was attending a public Fourteenth Amendment. school, and they showed concrete plans to enroll him in a religious school if it could obtain NPS certification.

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Therefore, the Court of Appeals affirmed the dismissal of the schools’ and Loffmans’ claims for lack of standing.

The Court of Appeals did not consider the Taxon family’s standing because, having found that the Peretses had standing, that was sufficient to reach the merits of the case.

The Court of Appeals then considered the merits of the parents’ claims that the NPS certification requirements violated the Free Exercise Clause and the Equal Protection Clause.

To state a free exercise claim, plaintiffs must show that a government entity has burdened their sincere religious practice pursuant to a policy that is not neutral or generally applicable. Should the plaintiffs make such a showing, the burden shifts to the defendants to demonstrate that the challenged action survives strict scrutiny. Under the strict scrutiny standard, a law restrictive of religious practice must advance interests of the highest order and must be narrowly tailored in pursuit of those interests.

Applying that framework, the Court of Appeals concluded that the parents’ sincere religious practice was burdened. It reasoned that religious entities that are equally or better qualified than secular ones to provide special education and related services are disqualified under California’s law solely because they are owned, operated, controlled by, or formally affiliated with a religious group or sect, whatever might be the actual character of the education program or the primary purpose of the facility. As a result, families like the plaintiffs, who would otherwise advocate for placement in religiously affiliated NPSs are unable to do so—solely because of the would-be NPSs' religious affiliation. The Court of Appeals found that the California statute tends to coerce parents into acting contrary to their religious beliefs, and therefore there is a burden on their free exercise.

The Court of Appeals next determined that California's policy of excluding religious schools from NPS certification was neither neutral toward religion nor generally applicable, as it specifically targeted religious schools for exclusion. This led the Court to conclude that strict scrutiny should apply to California's policy.

Under strict scrutiny, the government must demonstrate that the law serves a compelling state interest and is narrowly tailored to achieve that interest. The Court of Appeals found that the State failed to meet this

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demanding standard. While the State argued that it had a compelling interest in maintaining neutrality towards religion, the Court was not convinced that this interest justified the broad exclusion of all religious schools from NPS certification.

Even if the Court had accepted the State's asserted compelling interest, it concluded that the nonsectarian requirement was not narrowly tailored. The blanket exclusion of all religious schools from NPS certification was deemed overly broad and not the least restrictive means of achieving the state's purported interest in neutrality. The Court noted that there might be less restrictive alternatives available, such as allowing religious schools to become certified NPSs while implementing safeguards to ensure that state funds are not used for religious instruction. This approach would be more in line with recent Supreme Court decisions that have emphasized equal treatment of religious and secular private schools in various contexts.

In its analysis, the Court also considered the potential implications of recent Supreme Court decisions, such as Carson v. Makin and Espinoza v. Montana Department of Revenue, which have emphasized that excluding religious schools from generally available benefit programs can violate the Free Exercise Clause.

Based on this analysis, the Ninth Circuit concluded that the parent plaintiffs had plausibly alleged a violation of their Free Exercise rights. Given that the Court of Appeals had already found that the parent plaintiffs plausibly alleged a violation of their Free Exercise rights, it followed that the Equal Protection claims, which were based on the same underlying allegations of religious discrimination, should also be reconsidered.

The Court reversed the trial court's dismissal of these claims and remanded the case for further proceedings, including consideration of whether a preliminary injunction should be granted in light of the Court of Appeal’s Free Exercise analysis.

Loffman v. Cal. Dep't of Educ. (9th Cir. Oct. 28, 2024) 2024 U.S. App. LEXIS 27265.

Note: While the case is not yet resolved, it represents a significant development in the intersection of special education law, religious freedom, and private education. LCW will continue to monitor this case as it progresses, given its potential far-reaching implications for religious schools' ability to serve students with disabilities and access public funding.

• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

California Court Orders Sealing of Name Change Records for Transgender Individual.

M.T. is a transgender woman who was assigned male at birth but has presented as female since she was a minor. In 2017, when she was 19 years old, M.T. filed a petition in Stanislaus Superior Court to legally change her name and gender marker to align with her gender identity.

As part of her petition, M.T. included the required physician's affidavit confirming she had undergone clinically appropriate treatment for gender transition.

No objections were filed to her petition. In 2018, the trial court granted M.T.'s petition after she appeared at a hearing. The trial court issued a decree changing her name and gender using the standard Judicial Council form.

After this legal change, M.T. kept her transgender identity private. She did not disclose it at her workplace or school and only used her previous legal name when required by law.

In 2022, M.T. discovered that her case record was publicly available online when she searched for her current name. The online information included her private medical details, contact information, and former name. In 2023, M.T. was publicly "outed" on social media. A post was made with her photograph, disclosing her former name and referring to her using a derogatory term for transgender individuals. The post also revealed her current and former workplaces, home address, and phone number.

Following this incident, M.T. experienced repeated harassment by anonymous social media users. She received transphobic messages and had to shut down all her social media accounts due to cyberbullying and repeated publishing of her private information.

M.T.'s transgender identity was also anonymously

November 2024

privacy disclosed to her workplace and school. This led to her employer's human resources department contacting her, which made M.T. uncomfortable as she had not previously shared this information. As a result of these events, M.T. ultimately left her job.

In response to these experiences, M.T. filed an application in 2023 to seal the entire record of her name and gender correction, arguing that the public availability of this information had subjected her to discrimination, harassment, and violence.

The trial court partially granted M.T.'s request, sealing her application to seal, her supporting documentation, and a physician's letter from her initial petition.

However, the court denied sealing the entire record.

M.T. appealed this decision.

On appeal, the Court of Appeals evaluated whether the trial court improperly denied the request to seal M.T.’s entire record.

The Court of Appeals examined the case in light of the common law and First Amendment rights of public access to court records. It noted that while court records are generally public, this presumption of openness can be overcome if there's an overriding interest that necessitates closure.

The court considered the factors outlined in California Rules of Court, Rule 2.550(d), which govern the sealing of court records. These factors include: 1. The existence of an overriding interest that overcomes the right of public access 2. A substantial probability of prejudice if the record is not sealed 3. That the proposed sealing is narrowly tailored 4. No less restrictive means exist to achieve the overriding interest

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The Court of Appeals considered that the right to privacy is protected in the California Constitution. This right encompasses informational privacy, including an interest in limiting disclosure of confidential information about a bodily condition.

The Court of Appeals concluded that whether a transgender person’s gender identity conforms with their assigned sex at birth is intimate personal information entitled to protection under the right to privacy. A transgender person has a privacy interest in concealing their transgender identity.

The Court of Appeals determined that M.T. had demonstrated a substantial probability of prejudice if the record was not sealed, given the harassment and threats she experienced after her information was made public.

Finally, the Court found that sealing the entire record was narrowly tailored and the least restrictive means to achieve the overriding interest. Partial sealing was insufficient to protect M.T.'s interests because the unsealed records necessarily revealed that M.T.’s gender marker was changed.

The Court of Appeals concluded that under the specific circumstances of this case, M.T. had made a sufficient showing that her records should be sealed pursuant to Rule 2.550(d). Therefore, the Court of Appeals reversed the trial court's decision and remanded the case, instructing the lower court to seal all records that reveal M.T.'s name change or gender marker correction.

In re M.T. (Oct. 29, 2024) ___Cal.App.5th___ [2024 Cal. App. LEXIS 690].

Note: This decision shows that an individual’s right to privacy under the California Constitution can extend to keeping their gender identity private.

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• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

new legislation

November 2024

Los Angeles County Enacts Fair Chance Ordinance.

Effective September 3, 2024, employers in unincorporated Los Angeles County with five or more employees must comply with Los Angeles County's Fair Chance Ordinance (Ord. 2024-0012 section 1, 2024). While the Ordinance applies to private schools in its jurisdiction, it contains several exceptions for employers, such as private schools, that are required by law to conduct criminal background checks or restrict employment based on criminal history. A summary of the key takeaways regarding this ordinance that are applicable to private schools located within the unincorporated areas of Los Angeles County are set forth below: •

Job Posting Requirements: Under the Ordinance, job postings cannot include language that may deter applicants with criminal history from applying (e.g., "no felons" or "must pass background check"), although they may state that a background check is required.

Schools are required under state law to conduct a Live Scan criminal background check through the Department of Justice of applicants for positions that have contact with minors (Education Code section 44237) and are also prohibited from hiring applicants that have been convicted of specified convictions. Under the Ordinance, if a law or regulation limits or prohibits the hiring of individuals with certain criminal history for the position, an employer must identify the laws or regulations that impose such restrictions in the job posting. This means that schools subject to the Ordinance will need to identify the laws and regulations that restrict hiring in the job posting.

In the rare event a school is hiring for a position that will not have contact with minors, the job posting must affirmatively state that qualified applicants with arrest or conviction records will be considered.

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Written Notification Requirements: If a school intends to take any adverse action against an applicant, such as rescinding a conditional job offer, based on their criminal history, the Ordinance requires a detailed, written individualized assessment of the bearing of the criminal history on the applicant’s ability to perform the duties of the position. The employer must provide the applicant with notice of a proposed adverse action, including a copy of the individualized assessment, and at least five business days prior to taking the adverse action.

The contents of the notice are mandatory and include informing the applicant of the right to submit evidence challenging the accuracy of the background check report. If the applicant submits a response, the school must then issue a final notice of adverse action within thirty days.

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Notice of Ordinance to Employees: Schools must post notice of the Ordinance at every workplace and on webpages frequently visited by their employees or applicants. Schools must also retain pertinent records for a minimum of four years.

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Enforcement: Applicants may enforce the Ordinance with a civil lawsuit or an administrative complaint with the County of Los Angeles Department of Consumer and Business Affairs.

For more information about the Ordinance, see this FAQ. Schools in unincorporated areas of Los Angeles County should review the Ordinance and contact an LCW attorney if they have questions about compliance or the laws and regulations that may need to be included in certain job postings.

Note: This article has been updated from its original posting on 11/27/2024 to reflect the exemptions that may be available to private schools under the Ordinance.

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governance Trustee Wins Injunction, Halting Board's Attempt to Remove Him Over Financial Inquiries.

Barry Fenchak is a member of the Pennsylvania State University Board of Trustees, specifically, one of nine Trustees elected by alumni of Penn State. Fenchak joined the Board in July 2022 and has since been involved in a contentious relationship with the University administration and other Board members.

As an investment advisor by profession, Fenchak raised concerns about what he perceived as unusually high advisory fees on the University's $4.5 billion endowment. These fees have reportedly tripled since 2018. Additionally, Fenchak sought detailed information about a planned $700 million renovation of Penn State's Beaver Stadium.

Throughout his tenure, Fenchak alleged that he faced retaliatory behavior, including repeated denials of his requests for information that he, as a trustee, had the right to access. The tension between Fenchak and the university administration escalated to the point where the Board accused him of violating its code of conduct.

In particular, in July 2024, Fenchak allegedly made an off-color remark to a University staff person. This incident was cited as the basis for the Board's attempt to remove Fenchak from his position.

2. Likelihood of Success on the Merits: The Court determined that Fenchak demonstrated a reasonable probability of success on the merits of his case. This assessment was based on the evidence of retaliatory behavior presented by Fenchak, including repeated denials of his requests for information that he likely had a right to receive as a trustee. The Court's analysis suggested that Fenchak's claims of retaliation and breach of fiduciary duty have substantial legal merit.

Fenchak filed a lawsuit against the Board over access to financial information. He also sought a preliminary injunction to prevent the Board from voting on his removal.

3. Greater Injury from Refusing the Injunction: The Court concluded that greater injury would result from refusing the injunction than from granting it. In particular, the Board’s conduct would go unchecked and Fenchak may be unable to continue with his lawsuit if he was removed from the Board.

A preliminary injunction is a temporary remedy that is granted until the parties’ underlying dispute can be fully resolved. The Court considered the following preliminary injunction factors in making its determination: (1) immediate and irreparable harm; (2) likelihood of success on the merits; (3) greater injury from refusing the injunction; and (4) public interest.

4. Public Interest: The Court determined that granting the injunction serves the public interest.

The Court reasoned that preventing the potentially retaliatory termination of a trustee who is inquiring into University operations upholds principles of transparency and accountability in public institutions.

1. Immediate and Irreparable Harm: The Court

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found that Fenchak would suffer immediate and irreparable harm if removed from the Board. The Court emphasized that the harm extends beyond mere reputational damage or loss of position— Fenchak's removal would impair his ability to defend his claims and prosecute his underlying lawsuit. The Board's attempt to remove Fenchak was ostensibly based on an alleged violation of its code of conduct. However, the Court suggested that this accusation may have been a pretext for retaliatory action against Fenchak due to his probing questions about University finances, especially because the attempt to remove Fenchak came only three days after he filed a lawsuit and a trustee has never been removed from the Board before.

Therefore, the Court granted the preliminary injunction

• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

November 2024

and stated that it would remain in effect until Fenchak's lawsuit against the Board over access to financial information is resolved, his elected terms have ended, or until it is otherwise lifted by the Court. The Court also noted that steps have already been taken to sanction Fenchak, including prohibiting his in-person attendance at meetings and revoking his social privileges as a trustee.

Fenchak v. Pa. State. Univ. Board of Trustees (Pa. R. Centre Cty. Ct. C.P. October 9, 2024) No. 2024-CV-1843-CI. Note: This case is an important reminder that attempts to remove board members who raise questions about financial practices may be viewed as retaliation.

enrollment contracts

Students

Court Dismisses Case Over Forum Selection Clause in Enrollment Agreement.

to call Immigration and Customs Enforcement (ICE) if Liu did not leave immediately. Liu’s mother also allegedly attempted to contact school officials as many as 30 times but was unsuccessful.

Weizeng Liu, a citizen of China, applied for admission to The Grier School, a private all-girls boarding school in Pennsylvania in January 2023 while residing in California. She was granted admission in March 2023, and her mother signed various documents, including an international enrollment contract in April. Liu paid $53,592.50 in tuition and fees and began attending Grier in August 2023.

Liu vacated the campus within 24 hours and stayed in a hotel for 46 nights before leasing an apartment in Centre County, Pennsylvania. She then filed a lawsuit against the School in federal court in the Middle District of Pennsylvania, alleging breach of contract for failing to refund a portion of her tuition, intentional infliction of emotional distress, and a claim for punitive damages.

Shortly after classes began, Liu received a "final warning before expulsion" letter on September 10, 2023, detailing alleged violations of school rules and stated that Liu was at risk of expulsion if the violations were not addressed. On September 22, 2023, Liu was accused of sexual assault by another student and was subsequently expelled. During this process, school officials discovered Liu's passport, which sparked a confrontation between Grier employees and Liu, during which Liu was accused of lying about her age and her gender. Liu explained that she identified as a girl and had medical documentation regarding her gender transition. The School's director allegedly threatened

The School moved to dismiss the complaint, primarily arguing that venue was improper due to a forum selection clause in the enrollment contract that designated the courts of Huntingdon County, Pennsylvania, as the sole venue for disputes arising from the contract.

The Court's analysis focused on the validity and enforceability of the forum selection clause. First, the Court addressed whether the provision in question constituted a valid forum selection clause. Despite the use of the word "jurisdiction" rather than "venue" in the clause, the Court determined that it was indeed a valid forum selection clause. The Court cited precedent

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from the Third Circuit Court of Appeals, which had previously held that similar language created a forum selection clause.

The Court then examined whether the clause was enforceable. Liu argued that the clause should not be enforced due to unequal bargaining power between the parties. She contended that the contract contained boilerplate language, and her parents, who signed the contract, were not represented by counsel and did not understand American laws and procedures.

The Court rejected Liu's arguments on several grounds. First, it noted that the lack of actual negotiations over the clause does not affect its validity, citing precedent that allows for reasonable forum clauses in form contracts.

The Court also addressed Liu's claim about unequal bargaining power, stating that Liu had not shown that the parties' unequal positions resulted in the parties being deceived or coerced into accepting the provision. The Court emphasized that general allegations of being induced to enter the contract due to fraud are insufficient to invalidate a forum selection clause; rather, the fraud must specifically relate to the inclusion of the forum selection clause itself.

Furthermore, the Court noted that Liu did not argue that enforcement would violate public policy or that litigation in Huntingdon County would be unreasonably inconvenient. These factors are typically considered when determining whether enforcing a forum selection clause would be unreasonable.

Based on this analysis, the Court granted the School's motion to dismiss for improper venue. The case was dismissed without prejudice, allowing Liu the opportunity to refile the lawsuit in the appropriate state court in Huntingdon County.

Weizeng Liu v. Grier Sch. (M.D.Pa. Oct. 21, 2024) 2024 U.S.Dist.LEXIS 190482.

Note: This decision underscores the importance of considering whether to include a forum selection clause in an enrollment contract.

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• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

nlra In April 2021, employees at Amazon founded the Amazon Labor Union and began organizing at an Amazon fulfillment center and storage center in Staten Island, New York. Amazon responded with an anti-union campaign that included mandatory meetings for employees, known as "captive-audience meetings,” where they urged employees to reject union representation.

During these meetings, Amazon representatives solicited and impliedly promised to remedy employees' grievances, telling employees statements such as, “we rely on your feedback to improve the workplace” and that “we can’t make improvements if we don’t know your concerns.” Amazon representatives encouraged employees to take their concerns up the chain of command.

Also, during two of these meetings, Amazon managers stated that Amazon would withhold improvements in wages and benefits during bargaining and/or the preelection period.

Then, on July 8, 2021, employees Dana Miller and Connor Spence delivered a petition to management seeking to make Juneteenth a paid holiday. On July 9, Miller posted a message on Amazon's internal "Voice of Associates" (VOA) digital message board about the Juneteenth petition and inviting employees to sign it at the union tent.

Amazon managers discussed removing Miller's post, and on July 12, Miller was called to a meeting where she was told such posts violated the company's solicitation policy. Miller's post was removed multiple times when she attempted to repost it. Evidence showed that Amazon had not removed other posts,

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NLRB Rules That Captive Audience Meetings Are Unlawful and That Amazon Engaged in a Number of Unfair Labor Practices.

employees

including those related to the union campaign, from the VOA board.

The National Labor Relations Board (Board) found that Amazon violated the National Labor Relations Act (Act) by: 1. Discriminatorily enforcing its solicitation policy against Miller.

2. Soliciting and impliedly promising to remedy employees’ grievances during captive-audience meetings.

3. Threatening employees that it would withhold benefits during captive-audience meetings.

4. Compelling employees to attend captiveaudience meetings where Amazon expressed its views on unionization.

Miller & Solicitation Policy Regarding Miller’s posts on the VOA and the solicitation policy, the Board found that Amazon discriminatorily enforced its policy because it had allowed other posts, including those related to the union campaign, to remain on the VOA board while removing Miller's post about the Juneteenth petition.

The Board considered Miller’s testimony, which stated that she had seen hundreds of "vote yes" and "vote no" posts related to unionization on the VOA board, none of which were removed. Similarly, a March 2022 post advertising "VOTE NO" t-shirts in the break room was not removed, despite the solicitation policy prohibiting distribution of materials. The Board therefore found that Amazon discriminatorily enforced the solicitation policy against union-related activities.

Solicitation of Grievances The Board reversed the Administrative Law Judge's dismissal of allegations that Amazon violated the Act by soliciting and impliedly promising to remedy

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employees' grievances. The Board reasoned that Amazon’s statements clearly created an implied promise to remedy the concerns because the statements told employees that by bringing their concerns up the managerial chain, they would be resolved. This type of promise during a union campaign is considered a violation of the Act because it discourages union support, unless the employer has a past practice of soliciting grievances in a similar manner. In this case, the Board found that Amazon's solicitation of grievances during the captive audience meetings was not consistent with any past practice. In fact, the statement encouraging employees to escalate their concerns was a sea change in Amazon’s approach. Therefore, the Board found this statement was a violation of the Act. Threatening to Withhold Benefits Threatening to withhold benefits during a union organizing campaign is also considered an unfair labor practice, as it can interfere with employees' rights to freely choose whether or not to unionize. The Board affirmed the ALJ’s ruling on this issue, agreeing that these statements constituted unlawful threats under the Act. Captive Audience Meetings In terms of the captive audience meetings, the Board overruled its previous decision in Babcock & Wilcox Co., which had allowed employers to mandate attendance at such meetings. The Board found that the holding in Babcock & Wilcox was not compelled by the text or legislative history of the Act and was flawed as a matter of statutory policy.

The Board found that compelling attendance at these meetings interfered with employees' rights under the Act because it compelled employees to attend these meetings under threat of discipline or discharge. The Board reasoned that these meetings have a reasonable tendency to interfere with and coerce employees in the exercise of their rights under the Act because they interfere with an employee’s right to freely decide whether, when, and how to participate in a debate concerning union activity, or refrain from doing so. The Board also reasoned that an employer’s ability to compel attendance at such meetings contributes to a coercive message regarding unionization that employees are forced to receive. An employer’s ability to require attendance at such meetings demonstrates the employer’s economic power over its employees and tends to inhibit employees from acting freely in exercising their rights.

However, the Board made clear that an employer may lawfully hold meetings with workers to express its views on unionization so long as workers are provided reasonable advance notice of: the subject of any such meeting, that attendance is voluntary with no adverse consequences for failure to attend, and that no attendance records of the meeting will be kept. The Board also made clear that this decision will only apply prospectively.

The Board ordered Amazon to cease and desist from engaging in all of these practices, and post notices about this decision to all employees at the Staten Island facilities.

Amazon.Com Services LLC, 373 NLRB No. 136.

Note: This decision represents a significant shift in NLRB policy regarding captive audience meetings, limiting employers, including private schools, from mandating attendance at meetings where they express anti-union views.

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Court Upholds $10 Million Verdict Against California School District for Negligent Supervision in Sexual Abuse Case.

A.H. was a student at Tamalpais High School from 2000 to 2004, where he was coached by Normandie Burgos, a full-time P.E. teacher and tennis coach hired in 1998. A.H. began taking private tennis lessons from Burgos while still in middle school and viewed him as a mentor. In 2003, A.H.'s junior year, Burgos began sexually abusing him under the guise of providing therapeutic massages for sports-related issues. The abuse occurred in Burgos's office and the coaches' locker room adjacent to the boys' locker room.

Concerns about Burgos's behavior surfaced as early as 2002 when Principal Chris Holleran received a complaint from a student who reported inappropriate touching during a body fat test conducted by Burgos. Despite acknowledging the incident's inappropriateness and creating an Incident Report/ Letter of Warning to Burgos, Holleran did not place the warning in Burgos's personnel file or inform other staff members, believing it to be an isolated incident and based upon an agreement with high-level administrators at the District.

Further evidence presented at trial revealed that between 1998 and 2001, several students experienced similar inappropriate conduct during body fat tests conducted by Burgos. These incidents involved invasive procedures that left students feeling uncomfortable and violated.

In 2020, A.H. filed a lawsuit against the Tamalpais Union High School District, alleging negligence in failing to protect him from Burgos's sexual misconduct. The complaint highlighted the District's failure to take appropriate action against Burgos despite multiple complaints and its lack of proper supervision.

During the trial, A.H.'s legal team presented evidence

November 2024

negligence of prior complaints against Burgos and testimonies from other students who had experienced similar misconduct. This evidence aimed to demonstrate a pattern of behavior that should have prompted more decisive action from the District.

The jury was instructed using questions proposed by the District regarding negligence and causation. The jury ultimately found that the District was negligent and that this negligence substantially contributed to A.H.'s harm. The jury awarded A.H. $10 million in noneconomic damages for past and future losses, assigning 100% responsibility to the District. The District appealed.

On appeal, the District raised two main arguments.

First, they claimed that the trial court improperly instructed the jury on crucial issues. In particular, the District argued that the trial court improperly instructed the jury because it failed to instruct (1) that the District could not be held vicariously liable for Burgos’ conduct, since conduct was not within Burgos’ scope of employment, and (2) that the District could only be held liable for the conduct of its supervisory employees.

The Court of Appeals evaluated the instructions as a whole rather than in isolation. The Court found no instructional error, emphasizing that a party is entitled to correct, non-argumentative instructions on every theory supported by substantial evidence. The Court of Appeals noted that a trial court is not required to use the specific words requested by a party as long as the jury is adequately instructed on the applicable law.

The Court found that the instructions given in this case were proper and sufficiently covered the relevant legal principles, even if the language was not exactly what the District wanted.

The second major issue on appeal was the admissibility of evidence regarding Burgos's conduct with other students. The District argued that the trial court erred in allowing A.H. to present this evidence. However, the Court of Appeals determined that this information was crucial in establishing the District's negligence in

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supervision. It helped demonstrate that the District had reason to be aware of Burgos's inappropriate behavior and failed to take adequate measures to prevent further misconduct.

The Court's analysis also addressed the District's claim that the jury's verdict assigning 100% responsibility to the District and 0% to Burgos was prejudicial because it was "legally impossible” and the apportionment of fault was allegedly not supported by sufficient evidence. The Court rejected this argument, as well. The District failed to show that there was an instructional error on the jury instructions, consequently waiving their argument that the jury verdict was prejudicial.

The Court affirmed the trial court’s ruling.

A.H. v. Tamalpais Union High School Dist. (2024) 105 Cal.App.5th 340.

Note: The decision highlights the significant liability that schools may face when they fail to adequately respond to and prevent misconduct, emphasizing the importance of thorough investigations, proper documentation, and increased supervision following complaints of inappropriate behavior.

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• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

discrimination

Blake Wentworth was an assistant professor at the University of California, Berkeley.

The essential functions of his job included teaching, research, and service to the department and profession. Wentworth was struggling with his mental health.

In November 2014, Jefferey Hadler, chair of the department, told Wentworth that a graduate student had made an informal complaint that Wentworth had made her uncomfortable. Hadler conducted an investigation and believed he resolved the complaint to the satisfaction of the student.

During the conversations related to the complaint, Wentworth told Handler that he had been diagnosed with bipolar II disorder. In February 2015, Wentworth was hospitalized after attempting to commit suicide.

After Wentworth returned to work, Hadler asked to meet to discuss how Wentworth’s disorder affected his ability to do his job.

Hadler noted that Wentworth missed a week of class and failed to write a fellowship nomination letter. Hadler said he wanted to explore whether there were any accommodations that would allow Wentworth to fulfill the essential functions of his job.

Wentworth agreed to meet but initially resisted any suggestion that he needed accommodations. Wentworth insisted that his problems were only because his wife had left him. At this meeting, Wentworth asked Hadler about the possibility of teaching through the end of the semester and then taking research leave. However, the

University did not offer research leave.

During this meeting, and consistent with University policies, Hadler offered Wentworth a medical leave, which involved: relieving him of all duties; stopping his tenure clock, which would require him to continue to teach and perform other duties, but push back his deadlines for completing a body of research for consideration for tenure purposes; and other unspecified accommodations. Following the meeting, Wentworth thanked Hadler for the conversation and said Hadler could get in touch with his doctor.

November 2024

University Terminates Employment of Professor Following Harassment Investigation; Professor's FEHA Claims Dismissed Due to University Properly Engaging in Interactive Process.

In early April 2015, students complained about Wentworth’s behavior. Some of the complaints alleged Wentworth held their hands, talked about his personal life, and said he was attracted to them.

Later in April 2015, Wentworth’s doctors wrote notes saying that he had a partial disability that prevented him from satisfying the research component of his duties; and requesting to stop his tenure clock for two semesters. In July 2015, the University approved his request for accommodation.

In October 2015, the University’s office for the prevention of harassment and discrimination completed its investigation into Wentworth’s conduct. The investigation concluded that Wentworth had violated policies on sexual harassment and failed to meet certain academic responsibilities. As a result, the University terminated Wentworth in May 2017.

In September 2016, Wentworth filed an action against the University, alleging several causes of action, including failure to engage in the interactive process and failure to provide reasonable accommodations under the Fair Employment and Housing Act (FEHA).

The trial court granted summary adjudication in favor of the University on the claims of failure to engage in the interactive process and failure to provide reasonable accommodations. The majority

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of Wentworth’s remaining claims, including disability discrimination claims, went to trial.

The Court of Appeals affirmed the trial court’s rulings on the interactive process and reasonable accommodation claims because the evidence showed that the University engaged in the interactive process in good faith and offered a reasonable accommodation, which the professor did not assert was inadequate.

The Court of Appeals reasoned that when Wentworth was hospitalized after his suicide attempt, Hadler emailed and met with Wentworth, and offered different accommodations, including stopping his tenure track.

Wentworth did not tell Hadler he was unable to teach; to the contrary, he asked to continue to teach and said that teaching was the only thing keeping him going.

Similarly, after Hadler asked Wentworth to provide medical documentation of the functional limitations of his condition, Wentworth and his doctors only said he was unable to perform research, not unable to teach.

The Court noted that Wentworth initially resisted suggestions that his disability required accommodations, insisting his problems were only due to his wife leaving him. When Wentworth later requested to stop his tenure clock for two semesters due to his bipolar disorder, the University approved this request, as well.

Wentworth argued that the University punished him for disability-related conduct and chilled the interactive process when Hadler disciplined him, the University denied him reappointment, and the University investigators and academic senate recommended termination. The Court was not persuaded by these arguments. The Court reasoned that the jury trial already concluded that Wentworth’s disability was not a substantial motivating reason for the University’s adverse employment actions, and Wentworth’s efforts to avoid the significance of that finding were not reasonable.

Wentworth also argued that the University should have further engaged in the interactive process and offered to accommodate his disability by offering him research leave or active service modified duty, so he would not need to teach and could focus on research and writing. The Court found that this argument was not persuasive either because Wentworth’s doctors told the University that his disability impaired his ability to conduct research rather than teaching. Furthermore, the University was not obligated to offer these accommodations because stopping Wentworth’s tenure

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clock was an effective reasonable accommodation as it allowed Wentworth more time to amass his body of research while accommodating his inability to research and write effectively on a daily basis.

The Court of Appeals upheld the trial court’s ruling.

Wentworth v. Regents of University of California, 105 Cal. App.5th 580 (2024).

Note: This case illustrates the often-overlapping issues of providing employees with accommodations while also addressing misconduct and performance concerns. Here, the University was able to keep the two issues separate, and support that the professor’s misconduct, rather than his disability, was the motivating factor for ending his employment.

Campus Police Officer’s Age Discrimination and Retaliation Claims Can Proceed to Trial Following District’s Refusal to Rehire Him. Keenan Meadors was hired as a campus police officer for the Tulsa School District in August 2010. From 2012 to 2017, Meadors received positive performance reviews and was promoted from police officer to sergeant.

In February 2017, two significant events occurred. First, Meadors filed a complaint against two superior officers, including Deputy Chief Matthias Wicks, alleging illegal/ unfair practices and sexual harassment. Second, a vacancy arose for the position of Chief of Campus Police.

Meadors opposed Deputy Chief Wicks' appointment by signing a Letter of No Confidence and applying for the position himself.

Despite the opposition, Wicks was selected as the new chief. After Wicks became chief, Meadors began receiving negative feedback. In August 2017, Chief Wicks provided Meadors with informal "coaching" regarding various issues like raising his voice, interrupting superiors, and having a negative attitude. In September 2017, Meadors covered a security camera in a high school security office, violating a prior email directive.

This led to his suspension and a recommendation for termination. After a pre-termination hearing, the Board decided to demote Meadors from Sergeant to Police Officer instead of firing him.

• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

In April 2019, the District proposed a reorganization plan that eliminated all campus police officer positions, including Meadors'. Meadors, who was 65 years old at the time, requested not to be fired as he was close to retirement.

Despite his request, the Board approved the reorganization plan, eliminating 179 positions (including all police officer positions) effective June 30, 2019.

Meadors applied for one of the newly created school security officer positions. He participated in interviews but received lower scores compared to some other applicants. Meadors was not asked about his age during the interview process, but there was allegedly evidence that at least one panelist expressed concerns about Meadors’ age a few months prior to the interview process.

A leadership team, which included Chief Wicks, discussed Meadors' application, considering his interview scores, past job performance, and recent performance assessments. Ultimately, Meadors was not selected for the new position. The District claimed this was due to his poor interview performance and past incidents, while Meadors alleged age discrimination and retaliation.

Meadors sued the District, alleging among other claims, age discrimination under the Age Discrimination in Employment Act (ADEA) and retaliation under Title VII of the Civil Rights Act. For the ADEA claim, the Court applied a burdenshifting framework. Under this framework, Meadors must first establish a prima facie case of age discrimination by showing: (1) he applied for an open position; (2) he was qualified for the position; and (3) he was rejected under circumstances giving rise to an inference of unlawful discrimination.

If Meadors establishes a prima facie case, the burden shifts to the District to provide a legitimate, nondiscriminatory reason for not rehiring him. If the District meets this burden, Meadors must show that the District's stated reasons are pretextual.

The District conceded, and therefore the Court concluded, that Meadors could establish a prima facie case of age discrimination. Similarly, Meadors did not dispute that the District set forth 16 nondiscriminatory reasons for its decision not to re-hire Meadors. Among the reasons were: poor interview performance, past job performance issues, and recent performance assessments.

November 2024

Between December 2017 and April 2019, Chief Wicks continued to have concerns with Meadors' job performance, though these did not result in formal disciplinary actions.

Accordingly, the only disputed question was whether a jury could conclude that the 16 justifications offered by the District were pretext. To establish pretext, Meadors must present facts that the age-neutral reasons for his dismissal were so incoherent, weak, inconsistent, or contradictory that a jury could find those reasons unworthy of belief. The Court concluded that Meadors presented sufficient facts to create such a jury question.

The Court reached this conclusion for the following reasons: • The School Board had previously disagreed with the District's findings regarding Meadors' alleged disobedience to the security camera directive in 2017.

• There was a misalignment between the 16 reasons provided by the District in its brief and the reasons set forth in the evidence of record as to why Meadors was not rehired. For example, the evidence suggested that some individuals in the hiring process were not motivated by the 16 reasons. Such inconsistencies could be viewed as evidence of pretext.

• Many of the reasons for refusing to rehire Meadors were subjective, such as that Meadors was disrespectful, argumentative, and unwilling to respond to coaching.

• The Court expressed concern about the District citing 16 separate grounds for its decision, referencing a Sixth Circuit opinion that suggests a multitude of suspicious explanations may itself indicate a suspect decision-making process.

As a result, the Court denied the District’s motion for summary judgment on the age discrimination claim.

For Meadors’ retaliation claim, the Court applied the same burden-shifting framework. To establish a prima facie case of retaliation, Meadors must show: (1) he

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engaged in protected opposition to discrimination; (2) he suffered an adverse employment action; and (3) a causal connection existed between the protected activity and the adverse action.

The Court concluded that Meadors engaged in protected activity when he filed a complaint in February 2017. The elimination of his position and failure to rehire him in 2019 constituted adverse employment actions.

The District argued that Meadors failed to establish a causal connection between his 2017 complaint and the 2019 adverse actions due to the length of time that had elapsed. The Court agreed that the amount of time between the two events was significant, but concluded that timing alone was not dispositive. Here, Meadors had received positive reviews from 2012-2016, and Meadors alleged that the District’s opinion about his performance began to change around 2017, when he first raised concerns about Wicks engaging in sexual harassment. In fact, Meadors argued that all of Wicks’ criticisms arose after, and as a result of Meadors’ decision to report Wicks’ conduct. The Court concluded that a jury could find either way—that Meadors’ performance began to slip around the time he accused Wicks or that Wicks retaliated against Meadors when the opportunity finally arose in 2019. For this reason, the Court denied the District’s summary judgment motion on the Title VII retaliation claim.

Meadors v. Indep. Sch. Dist. No. 1 of Tulsa Cnty. (N.D.Okla. Oct. 3, 2024) 2024 U.S.Dist.LEXIS 181890.

Note: This case highlights the importance of carefully documenting performance issues, following consistent hiring practices, being cautious about making age-related comments, and ensuring that all employment decisions are based on legitimate, nondiscriminatory factors.

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November 2024

labor relations corner Labor relations is an important aspect of the operations of all private sector employers, including independent schools, whether the workplace is unionized or non-unionized. We are introducing the Labor Relations Corner to help our clients enhance their understanding of the nuts and bolts of labor relations, as well as key legal developments in the area. Our first installment discusses the National Labor Relations Act and its enforcement counterpart, the National Labor Relations Board.

The National Labor Relations Act (NLRA).

The National Labor Relations Board (NLRB).

In 1935, Congress passed the National Labor Relations Act (NLRA), a federal law that protects the rights of most employees in the unionized and non-unionized private sector, which includes non-profit schools. At its core, the NLRA provides private-sector employees the fundamental right to seek better working conditions and designate labor representation without fear of retaliation. The NLRA grants private-sector employees the freedom to join or form labor unions, the right to engage in protected, concerted activities to address working conditions, and the right to bargain collectively through chosen representatives. The NLRA also provides employees the right to refrain from participating in these activities.

The National Labor Relations Board (NLRB) is an independent federal agency created in 1935 to enforce the NLRA. The NLRB’s primary functions include investigating and remedying unfair labor practices, enforcing the rights established by the NLRA, and conducting secret-ballot elections for union representation.

The NLRB is a bifurcated agency governed by both a five-member Board and a General Counsel. The President appoints Board Members and the General Counsel, with the consent of the Senate. Each Board Member is appointed to a four-year term and the term of one member expires each year. The General Counsel is appointed to a four-year term.

The General Counsel is responsible for the investigation and prosecution of unfair labor practices and supervises the NLRB field offices in the processing of cases. The Board appoints Administrative Law Judges, who hear, settle, and decide unfair labor practice cases. A decision and recommended order by an Administrative Law Judge can be appealed to the Board.

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cases we are watching • A Massachusetts student's parents recently sued the Hingham School Committee and several Hingham High School administrators after their son was disciplined for using AI on a history project. The parents allege that the school district damaged their son’s academic record, class rank, grade point average, and induction into the National Honor Society, affecting his chances of admission into elite colleges. The district did not have a policy on AI use at the time and the assignment did not include any instructions advising that students were barred from using artificial intelligence. The student claims he used AI to research and write an initial outline for the project, but used citations in his work. The parents’ lawsuit argues that the punishment was unfair and arbitrary. The suit aims to compel the school officials to correct the student’s academic record by changing his grade and removing any mention of academic integrity infractions.

• A Native American former professor at the University of North Carolina (UNC) recently sued UNC. The professor claims that he was frequently passed over for promotions in favor of less-qualified white applicants and regularly pushed into positions based on his ethnicity. The professor claims his contract was not renewed because of his long-standing history of challenging UNC’s lack of diversity and its prior discriminatory conduct towards him. This past year, UNC began recording his lectures without his knowledge or consent, which the professor alleges violated UNC’s policies and only occurred after he criticized UNC’s handling of diversity issues. The recordings allegedly occurred as part of an internal investigation into the professor’s classroom conduct. The lawsuit alleges that the professor’s pay also stagnated the more he spoke to the press.

• A group of current and former female athletes from five Mountain West Conference universities, and the suspended associate head coach of the San Jose State University (SJSU) women’s volleyball team have filed suit against the Mountain West Conference alleging that the Conference and others discriminated against female athletes by allowing a transgender athlete to compete on SJSU’s roster. The complaint alleges that allowing the transgender student-athlete to compete on the SJSU women’s volleyball team is a violation of Title IX and the parties are seeking a preliminary and permanent injunction. The complaint states that the transgender student-athlete is only allowed to compete because the conference and SJSU chose to implement NCAA’s Transgender Eligibility Policies, which are currently being challenged in a proposed class action suit for violating Title IX. The suit also alleges that student-athletes have been prohibited from exercising their First Amendment rights because they have been threatened and discouraged from speaking out against the transgender athlete’s participation and from boycotting matches against SJSU. • A number of affirmative action cases have been working their way through the courts since the U.S. Supreme Court’s ruling on affirmative action last summer. The Supreme Court is currently considering whether to hear a case involving a temporary K-12 admission policy meant to diversify student bodies at three Boston schools.

Earlier this month, a lawsuit was filed in Illinois about a scholarship program meant to diversify the education workforce and narrow the achievement gap. The individual named in that lawsuit is a nonminority high school senior who plans to pursue an education degree and is qualified for the scholarship program except for her race. A few months ago, a federal judge in Virginia dismissed a proposed class action lawsuit accusing a newspaper publisher of adopting diversity policies that allegedly led to five journalists’ terminations or other adverse employment actions. In that case, the journalists sued under Section 1981 of the Civil Rights Act, which prohibits race discrimination in making and enforcing contracts.

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November 2024

did you know...?

• On October 24, 2024, the U.S. Department of Education (DOE) released its AI Toolkit for Safe, Ethical, and Equitable AI Integration for school leaders. This toolkit, primarily targeted towards K-12 school leaders, implements recommendations from the DOE’s Artificial Intelligence (AI) Future of Teaching and Learning report (published May 2023). It provides guidance for the effective use and integration of AI in teaching and learning, summarizes key federal laws and considerations for ensuring safe, secure, and nondiscriminatory AI use, and promotes the principles of transparency and awareness for schools using AI. LCW recently wrote an article about the AI toolkit, and the toolkit can be found here.

• On November 19, 2024, the DOE’s Office for Civil Rights (OCR) released a resource explaining the civil rights implications of schools’ use of AI. The guide seeks to assist school communities in understanding how AI technologies can enhance educational opportunities, and, at the same time, contribute to discrimination depending on how they are designed or used. OCR released this resource in response to President Biden’s Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence. The guidance is geared towards schools that receive federal financial assistance, but nonetheless is a useful resource for independent schools, as it provides examples of conduct that could, depending on facts and circumstances, present OCR with sufficient reason to open an investigation. The guide can be found here.

• On October 16, 2024, the U.S. Department of Labor issued formal principles to guide employers as they introduce artificial intelligence platforms into their workplaces. The guidance provides ways that AI can assist with worker well-being and likewise responds to President Biden’s Executive Order. It emphasizes the importance of engaging workers in the AI design process, ensuring ethical development, maintaining transparency, and protecting labor rights. The principles can be found here.

• A Carlsbad church recently donated $950 each to two local school board candidates. The church’s pastor also gave a sermon to a congregation urging them to donate to the two candidates. In the sermon, the pastor laid out a plan to regain the majority of the five-member school board from candidates endorsed by the teacher’s union. The church realized that they had stepped out of the IRS guidelines for a 501(c)(3) and asked the candidates to return the donations, which they did. More information about the IRS’s restrictions on political campaign interventions by tax-exempt organizations can be found on the IRS’s website.

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lcw best timeline NOVEMBER THROUGH JANUARY Issue Performance Evaluations.

We recommend that performance evaluations be conducted on at least an annual basis, and that they be completed before the decision to continue employment for the following school year is made.

Schools that do not conduct regular performance reviews have difficulty and often incur legal liability terminating problem employees - especially when there is a lack of notice regarding problems.

• Consider using Performance Improvement Plans but remember it is important to do the necessary follow up and follow through on any support the School has agreed to provide in the Performance Improvement Plan.

Compensation Committee Review of Compensation before issuing employee contracts.

The Board is obligated to ensure fair and reasonable compensation of the Head of School and others. The Board should appoint a compensation committee that will be tasked with providing for independent review and approval of compensation. The committee must be composed of individuals without a conflict of interest.

Review employee health and other benefit packages, and determine whether any changes in benefit plans are needed.

terms in order to negotiate new terms or have adequate time to locate new space for upcoming school year.

Review tuition rates and fees relative to economic and demographic data for the School’s target market to determine whether to change the rates.

Review student financial aid policies.

Review, revise, and update enrollment/tuition agreements based on changes to the law and best practice recommendations.

File all tax forms in a timely manner: Forms 990, 990EZ • Form 990: Tax-exempt organizations must file a Form 990 if the annual gross receipts are more than $200,000, or the total assets are more than $500,000.

• Form 990-EZ: Tax-exempt organizations whose annual gross receipts are less than $200,000, and total assets are less than $500,000 can file either form 990 or 990EZ. • A School below college level affiliated with a church or operated by a religious order is exempt from filing Form 990 series forms. (See IRS Regulations section 1.6033-2(g)(1)(vii)).

If lease ends at the end of the school year, review lease

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November 2024

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.

• The 990 series forms are due every year by the 15th day of the 5th month after the close of your tax year. For example, if your tax year ended on December 31, the e-Postcard is due May 15 of the following year. If the due date falls on a Saturday, Sunday, or legal holiday, the due date is the next business day.

• The School should make its IRS form 990 available in the business office for inspection.

Other required Tax Forms common to business who have employees include Forms 940, 941, 1099, W-2, 5500.

Annual review of finances (if fiscal year ends January 1st).

The School’s financial results should be reviewed annually by person(s) independent of the School’s financial processes (including initiating and recording transactions and physical custody of School assets). For schools not required to have an audit, this can be accomplished by a trustee with the requisite financial skills to conduct such a review.

The School should have within its financial statements a letter from the School’s independent accountants outlining the audit work performed and a summary of results.

Schools should consider following the California Nonprofit Integrity Act when conducting audits, which include formation of an audit committee:

institutions from the requirement of having an audit committee, inclusion of such a committee reflects a “best practice” that is consistent with the legal trend toward such compliance. The audit committee is responsible for recommending the retention and termination of an independent auditor and may negotiate the independent auditor’s compensation. If an organization chooses to utilize an audit committee, the committee, which must be appointed by the Board, should not include any members of the staff, including the president or chief executive officer and the treasurer or chief financial officer.

If the corporation has a finance committee, it must be separate from the audit committee.

Members of the finance committee may serve on the audit committee; however, the chairperson of the audit committee may not be a member of the finance committee and members of the finance committee shall constitute less than one-half of the membership of the audit committee. It is recommended that these restrictions on makeup of the Audit Committee be expressly written into the Bylaws.

JANUARY/FEBRUARY Review and revise/update annual employment contracts.

Conduct audits of current and vacant positions to determine whether positions are correctly designated as exempt/non-exempt under federal and state laws.

• Although the Act expressly exempts educational • www.lcwlegal.com •

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Premium Perks on Liebert Library!

Visit our Liebert Library today.

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• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

November 2024

Consortium Call Of The Month Members of Liebert Cassidy Whitmore’s consortiums are able to speak directly to an LCW attorney free of charge to answer direct questions not requiring in-depth research, document review, written opinions or ongoing legal matters. Consortium calls run the full gamut of topics, from leaves of absence to employment applications, student concerns to disability accommodations, construction and facilities issues and more.

Each month, we will feature a Consortium Call of the Month in our newsletter, describing an interesting call and how the issue was resolved. All identifiable details will be changed or omitted.

Question: A school administrator reached out to LCW to ask how the Fair Labor Standards Act’s (FLSA) new classification for highly compensated employees impacts private schools.

Answer: The LCW attorney provided the following background: the Highly Compensated Employee exemption (HCE) is an alternative way under the federal Fair Labor Standards Act (FLSA) that certain employees may be exempt from minimum wage and overtime protections provided that their salaries meet a certain threshold for this exemption as defined by the FLSA. The attorney advised that there was a change earlier this year that significantly increased the salary threshold to qualify for HCE exemption from overtime under the FLSA, though this change was recently blocked by a federal court in Texas. That said, the change is largely irrelevant for California independent schools because California private employers, including California independent and private schools, have to comply with California wage and hour laws, and California does not recognize the HCE exemption. So, while there was significant publicity recently surrounding this change on the national stage, California private employers need to adhere to California’s wage and hour requirements.

For more information about the updates to the FLSA and the limited impact on California independent schools, please see LCW’s special bulletin.

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Liebert Cassidy Whitmore