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September 12, 2017

Ninth Circuit Court of Appeals Holds That Forgiving Past Misconduct Is Not a Reasonable Accommodation

In the recent case of Alamillo v. BNSF Railway Co., _ F.3d. _, 2017 WL 3648514 (August 25, 2017), the Plaintiff-Appellant Antonio Alamillo filed suit against Defendant-Appellee BNSF Railway Company (BNSF), claiming that it had terminated him from his job as a locomotive engineer in violation of the California Fair Employment and Housing Act (FEHA), Cal. Gov. Code § 12940 et seq. Alamillo specifically contended that he was discriminated against because of his alleged disability, “obstructive sleep apnea” (OSA), because that condition allegedly caused him to miss six calls to work over a three-month period which resulted in his termination. He also contended that BNSF failed to reasonably accommodate his OSA by excusing the past missed calls once it learned of his condition.

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September 6, 2017

The End of DACA: Q & A for Educational Agencies

On September 5, 2017, the Trump Administration announced it would phase out the Deferred Action for Childhood Arrivals (DACA) program over the next six months, affecting some 800,000 DACA recipients. According to the U.S. Citizenship and Immigration Services, more than 400,000 people living in California have applied for the DACA program since its inception under the Obama Administration in 2012. The decision to phase out DACA raises a host of questions and impacts educational communities as students, employees, and families respond to this news.

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September 1, 2017

Appellate Court Ruling: Absent a “Clear Showing,” the Presumption Is That a Memorandum of Understanding Does Not Create a Vested Right

On August 22, 2017, a California appellate court ruled that a Memorandum of Understanding ("MOU") between the Vallejo Police Officers Association ("Police Association") and the City of Vallejo ("City") did not provide a vested right to a retiree medical benefit that covered insurance premiums up to the full cost of a Kaiser health plan. Vallejo Police Officers Association v. City of Vallejo, 2017 WL 3600572. In reaching this conclusion, the appellate court determined that the Police Association failed to present sufficient evidence of the City’s intent to create such a vested right. In other words, the Police Association did not sufficiently show that the City intended the promise relating to retiree medical benefits to survive beyond the MOU’s specified period. This ruling reinforces the California Supreme Court’s holding in Retired Employees Association of Orange County, Inc. v. County of Orange (2011) 52 Cal.4th 1171, 1182 ("REAOC"), that a party asserting that contract rights are vested rights must overcome the presumption that an MOU does not create vested rights.

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August 10, 2017

School Districts Should Consider Including Title IX Information in Their Back-To-School Packages

Title IX of the Education Amendments of 1972 prohibits sex discrimination in federally funded education institutions. The federal regulations related to Title IX, as well as California state law, include many "notice obligations" that require California school districts to provide specific and continuous notice regarding the protections provided by Title IX and the school district’s efforts to provide these protections. To meet many of these notice requirements, school districts should consider providing Title IX information with their "back to school" packages for both students and employees.

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August 2, 2017

An Agency’s Disclosure Obligations Under Brady Still Require Compliance with Pitchess Procedures

On July 11, 2017, the California Court of Appeal’s unreported decision in Association for Los Angeles Deputy Sheriff’s v. Superior Court examined the interplay between the United States Supreme Court case of Brady v. Maryland and the California Supreme Court case of Pitchess v. Superior Court. The Court held that, in the absence of a granted Pitchess motion, the Los Angeles County Sheriff’s Department ("LASD") was prohibited from disclosing the identities of individual deputies compiled on an internal Brady list to the district attorney or other prosecutorial agencies, even when the deputies were also potential witnesses in a pending criminal prosecution.

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August 2, 2017

School District of Choice Provisions Extended to 2023

The school district of choice provisions in Education Code sections 48300-48317 were scheduled to "sunset" (become inoperative) on July 1, 2017. On June 27, Governor Brown signed urgency legislation in the Education Trailer Bill (Statutes of 2017, chapter 15 (Assembly Bill 99)), which extends the provisions until July 1, 2023. The bill also revised many of the provisions.

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July 12, 2017

The Ninth Circuit Court of Appeals Holds That Public Employers Need Not Have a Minimum of 20 Employees to Fall Within the ADEA’s Scope

On June 19, 2017, the Ninth Circuit Court of Appeals held in John Guido; Dennis Rankin v. Mount Lemmon Fire District, 859 F.3d 1168 (9th Cir. 2017), that political subdivisions of a State do not need to meet the twenty-employee minimum in order to fall under the Age Discrimination in Employment Act’s ("ADEA") scope. The Ninth Circuit decision is particularly significant because it contradicts four other circuit courts that declared that political subdivisions must have at least twenty employees to qualify as an "employer" under the ADEA.

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July 12, 2017

New OCR Field Instructions Regarding Title IX Transgender Student Issues

In the ever-changing federal landscape under the Trump administration, the Office for Civil Rights released "Instructions to the Field re Complaints Involving Transgender Students" ("OCR Instructions") on June 6, 2017.

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