Governor Issues Executive Order Impacting Collective Bargaining, Administrative Hearings, Post Basic Academy Instruction, and Various Statutory Timelines

05.12.2020

On May 8, Governor Newsom issued Executive Order N-63-20 (“the Order”), which impacts school districts, county offices of education and community colleges (“School Employers”) by suspending various statutes and regulations affecting collective bargaining, administrative hearings, Peace Officer Standards and Training (POST) requirements, and which also extends a number of statutory timelines.

The specific provisions of the Order impacting School Employers are as follows:

Factfinding and Posting Requirements Under The EERA

The Order extends by 60 days “the deadline specified in . . . Government Code section 3548.1, related to the period in which a party must request the parties’ differences be submitted to a factfinding panel” under the Educational Employment Relations Act (EERA).

Collective bargaining impasse proceedings under the EERA initially proceed to mediation, after which (if the dispute is not resolved within 15 days) the mediator may certify the parties to factfinding.  Although this aspect of the Order is not entirely clear, it appears the Order may have been intended to extend the 15 day period to 75 days.  If so, School Employers should be mindful of potential delays in the bargaining process.  Accordingly, School Employers seeking to negotiate salary reductions and other cost-saving measures are advised to commence bargaining at the earliest possible opportunity, and to consult with legal counsel regarding strategies to avoid unnecessary delay in bargaining.

The Order also suspends any statute or regulation requiring a public employer to “post notice on ‘employee bulletin boards,’” provided the public entity provides such notice to employees through electronic means, including email, posting on the public employer’s website (if frequented by employees), or other electronic means customarily used to communicate with its employees.   The requirement of posting on employee bulletin boards most frequently arises in public sector labor relations statutes, including, under the EERA.  Because the Order suspends the physical posting requirement only if notice is provided electronically, the public employer may opt to continue physical posting of notices.  It must be noted, however, that PERB has authority to direct electronic posting in any event.  City of Sacramento (2013) PERB Dec. No. 2351-M.

Remote Administrative Hearings

The Order suspends any statute or regulation permitting a party or witness to participate in a hearing in person; permitting a member of the public to be physically present for a hearing; or permitting a party to object to a presiding officer conducting all or part of a hearing by telephone, television, or other electronic means. 

This suspension is subject to the requirements that: (1) each participant in the hearing has an opportunity to participate in and hear the entire proceeding while it is taking place and to observe exhibits; (2) a member of the public who is entitled to observe the hearing may do so by electronic means; and (3) the presiding officer satisfies all requirements of the Americans with Disabilities Act and Unruh Civil Rights Act (relating to accommodations).

Subject to these requirements, this aspect of the Order broadly authorizes a wide range of administrative hearings which apply to School Employers to be conducted remotely, including certificated/faculty layoff hearings, certificated/faculty dismissal hearings, and PERB hearings, along with hearings conducted by other State administrative agencies.  This Order likely also applies to hearings established through other statutes, or local policy and regulation, such as student and classified employee disciplinary hearings.

Subject to these requirements, the Order provides support to conduct a wide range of administrative hearings remotely.    However, the Order cannot waive — and does not eliminate — constitutional due process requirements.  We recommend that School Employers review the Firm’s Alert on Discipline During the Pandemic, which considers due process issues raised by remote administrative hearings, and consult with legal counsel regarding the conduct of any particular hearing that would otherwise be held in person: (https://www.aalrr.com/newsroom-alerts-3705.)

POST Requirements For Rehiring Retired/Separated Peace Officers and Providing Basic Academy Instruction

The Order authorizes the Executive Director of the Commission on Police Officer Standards and Training (POST) to: (1) extend from 180 days to 1 year the period in which individual law enforcement agencies may employ retired peace officers, following the date of their retirement or separation in good standing, without subjecting them to the full employment application process; and (2) to grant individual technical and scheduling waivers or exceptions.

The Order also authorizes POST to temporarily allow lecture-based Basic Academy Instruction to be delivered online, but requires that instruction for testing and practical skills training be conducted in-person.  On March 20, 2020, the California Community College Chancellor’s Office released preliminary guidance on hard-to-convert courses, which recommends that colleges “work to sustain courses that directly support the essential infrastructure sectors.”  Community colleges seeking to reinstitute POST Basic Academy instruction — while providing some level of social distancing — now have the prospect of conducting lectures remotely (upon authorization from POST).

Statutory/Regulatory Timelines

Numerous additional timelines are impacted by the Order, including the following:

1. The deadline for Public School Project Inspectors to renew their certifications every four years (48 months), for any Inspectors who were facing that deadline on or before May 6, 2020, has been extended to September 1, 2020.  
2. The deadline for Certified Access Specialists to renew a certification, which must be done every four years (48 months),for specialists who were facing that deadline between March 19, 2020 and May 31, 2020 has been extended to June 6, 2020.  
3. The time Workers’ Compensation Administrative Law Judges have to file decisions, and the time the Workers’ Compensation Appeals Board has to act on those decisions, is extended by 60 days.
4. The time for persons outside the Occupational Safety and Health Standards Board to submit new or revised orders or standards appropriate for adoption to the Board, and for the Board to evaluate any proposed occupational safety or health standard or variance from adopted standards is also extended for 60 days.
5. Deadlines under the Labor Code for the Department of Labor Standards Enforcement to file preferred claims, mechanics' liens, and other liens of employees in the name of the Labor Commissioner, and for potential claimants, other than direct contractors, to record a claim of lien under the Civil Code are also extended 60 days.
6. Certain additional timelines  under the Labor Code and related regulations, relating to the time to issue or file specified citations, complaints, claims, or appeals, are extended for a period of 60 days on a one-time basis, to the extent the timelines would otherwise lapse within a period of 60 days from May 8, 2020.  These include citations issued by the Labor Commissioner, employer appeals of such citations, employee complaints filed with the Labor Commissioner, and Cal/OSHA citations and appeals.

Please contact the authors or your usual AALRR attorneys with any questions regarding the application of Executive Order N-63-20 to your agency.

_{This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.} 

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