Anti-Charter Ballot Measure

Many of you have no doubt seen the news regarding the "anti-charter" ballot measure recently cleared by the Secretary of State to begin the signature collection process.

You can read more about the proposed measure here.

The California Charter Schools Association recently announced a webinar series about the initiative, and we wanted to share that information with you here. CCSA stated in a recent newsletter that they are tracking the progress of the measure and are providing a webinar to explain how its members can fight the initiative. You can register for one of the webinars here.

Morgan Hill Court Order

Recently, we made readers aware that, pursuant to a recent court order in the case of Morgan Hill Concerned Parents Association and the Concerned Parent Association v. California Department of Education(case # 2:11-cv-03471-KJM-AC), parents/guardians have a right to object to the release of confidential student data by the California Department of Education.

The Morgan Hill lawsuit involves a group of plaintiffs, the Morgan Hill Concerned Parents Association and Concerned Parents Association, which are both non-profit organizations comprised of parents and guardians of children with disabilities. The Morgan Hill plaintiffs allege that the California Department of Education has violated the Individuals with Disabilities Education Act and related laws by failing to monitor, investigate, provide services to, and enforce the rights of children with disabilities consistent with its obligations under the law. The CDE denies these allegations and the lawsuit is currently pending.

The Plaintiffs sought and obtained an order from the Court to force the California Department of Education to disclose subject to a Protective Order certain information concerning children with disabilities, including children who requested an assessment or who were assessed for special education eligibility, and children who are attending, or who have attended, a California school at any time since January 1, 2008.

The Court’s order notes that this information may include a student’s name, social security number, home address, demographics, course information, statewide assessment results, teacher demographics, program information, behavior and discipline information, progress reports, special education assessment plans, special education assessments/evaluations, Individualized Education Programs, records pertaining to health, mental health and medical information, student statewide identifiers, attendance statistics, information on suspensions and expulsions, and results on state tests.

If you do nothing, your student’s records could be released pursuant to this order. You should be aware that the Court’s Protective Order prevents any party in the lawsuit from disclosing confidential information acquired in the course of the lawsuit, including student records, to anyone other than the parties, their attorneys and consultants, and the Court. None of the information may be used outside the context of the Morgan Hill lawsuit, and the parties are required to either return or destroy the confidential records at the conclusion of the lawsuit. No student’s identifying records will be disclosed to the public.

However, we want to make certain you are aware that you can prevent disclosure of your child’s records. To do so, you must submit your objection to the Court no later than April 1, 2016. The Court has provided a form, which can be accessed here, to complete and submit in order to prevent disclosure of your child’s records. Please follow the instructions on the form if you wish to prevent such a disclosure.

DISABILITIES, DISCRIMINATION AND VIOLATIONS OF PUBLIC POLICY

In a recent decision, a California appellate court clarified that disabled workers have several remedies available when they are unlawfully terminated by their employers and that, in some cases, they may have an extended period of time to file their complaints ( Prue v. Brady Co./San Diego, Inc., 242 Cal. App. 4th 1367(2015)).

The facts of the case are as follows: In June 2011, Andrew Prue suffered a work-related injury while employed by the Brady Company. He was treated at an emergency room, and his employer understood that he either filed or was going to file a workers’ compensation claim. Prue took a leave and was released back to work in July. However, his employer terminated his position while he was on leave.

Prue sued, alleging that his termination was wrongful. He argued that his employer violated Labor Code section 132a, which prohibits employers from retaliating in any way against employees who file, or who may file, for workers’ compensation benefits. He also alleged that his employer violated California public policy prohibiting termination because of a disability. While there are many procedural and substantive issues with this case that we won’t discuss here, we want to draw readers’ attention to the most interesting aspect of the case.

Most employers understand that California’s FEHA (Fair Employment Housing Act) prohibits discrimination against employees with disabilities. In order to bring a valid claim for disability discrimination in violation of FEHA, a plaintiff must allege that:

• The employee suffered from a disability;
• The employee was capable of performing the essential functions of the job;
• There was an adverse employment action; and
• The employer knew of the disability when it took the adverse action.

FEHA would apply to Prue’s case under normal circumstances. But FEHA also has a one year statute of limitations, and Prue brought his claim after the one year statute had expired. Thus, Prue’s case should have been dismissed on these grounds.

On appeal, however, the court interpreted Prue’s complaint to find that he adequately stated a slightly different cause of action that could survive dismissal: wrongful termination in violation of the FEHA’s public policy against disability discrimination.

In California, employees may sue employers who terminate them in violation of a fundamental public policy.

A complaint alleging wrongful termination in violation of public policy must allege:

• An unlawful action (such as termination);
• There is a public policy related to a public benefit, as opposed to specific to an individual;
• The employer must have referred to that public policy when terminating the employee; and
• The policy must be “fundamental and substantial.”

In the Prue case, the court noted that FEHA clearly makes disability discrimination unlawful, and that preventing disability discrimination in the workplace is a public benefit. Prue alleged that he was terminated because of a disability, which the court stated is a fundamental and substantial public policy. Therefore, Prue satisfied the requirements for alleging a cause of action for wrongful termination in violation of public policy.

With this finding, the court made a subtle but important distinction: had Prue brought a claim for violation of a FEHA law, the statute of limitations would have been one year. Instead, his claim was for violation of a “public policy,” with that public policy being FEHA.

The court stated that FEHA’s statute of limitations was therefore inapplicable, as it was simply the underlying law that was allegedly violated. Instead, the court ruled that the relevant statute of limitations was for “wrongful termination in violation of public policy,” which is two years.

The court of appeal ordered Prue’s case sent back to trial court, where Prue will be permitted to amend his complaint and pursue his case against his employer.

The lesson for employers is clear: Prue’s case is a good reminder that employees who suffer a work-related injury are protected not only by workers’ compensation laws and FEHA, but also by a general public policy prohibiting disability discrimination.

These laws impose obligations on employers that vary from, and may exceed, workers’ compensation protections. Injured employees can pursue cases against their employers in court, seeking damages beyond just lost wages.

Therefore, employers should maintain clear records pertaining to workplace injuries and disability claims in the event that an employee files a complaint. Prue’s case makes clear that employers can’t presume that records could be destroyed after FEHA’s one year statute of limitations, for example.

Finally, employers should always consult with counsel prior to taking any adverse employment action against an applicant or an employee with a disability.