Fall Checklist for Community College Districts

As community college districts look toward the Fall 2020 semester, they will be making significant operational decisions about the way they will be offering programs and services. The current economic outlook, continued uncertainty about shelter-in-place orders as a result of COVID-19, and possible State budget cuts, will also affect districts. These are difficult and unprecedented circumstances, and districts have dual responsibilities to their students and employees to ensure a smooth transition into Fall 2020. This checklist is intended to assist districts in preparing for issues that may arise as a result of COVID-19.

A. Return-to-Work Under Relaxed Shelter-in-Place Orders

The Governor has indicated that he will likely begin to relax shelter-in-place orders, and some localities have also begun to relax their orders. As districts begin to bring their workforce back to the worksite, districts must be aware of legal issues related to return-to-work. Considerations include:

1. Districts have an obligation to ensure employee safety under CalOSHA regulations, and a duty to protect students under relevant law.
2. Districts may issue a directive to employees to remain away from work if they are ill, including exhibiting any symptoms of COVID-19.

• Current Centers for Disease Control and Prevention (CDC) guidance lists the following COVID-19 symptoms: cough, fever, shortness of breath, chills, repeated shaking with chills, muscle pain, headache, sore throat, or new loss of taste or smell.
• If the a district requires an employee to utilize his/her/their existing leave banks to remain away from work while symptomatic, this may require the district to provide due process to employees.  This would include notice and the right to respond to the decision-maker.

3.  According to the Department of Fair Employment and Housing (DFEH), districts may conduct symptom checks of employees before allowing employees to enter the facility/worksite, including temperature checks, as follows:

• Districts may ask employees if they are experiencing COVID-19 symptoms.
• Districts may measure employee body temperature for the limited purpose of evaluating the risk the employee’s presence poses to others in the workplace.
• Districts may ask employees why they have been absent from work if they suspect the absence is due to a medical reason. DFEH has stated that this is not a prohibited disability-related inquiry.
• Districts must maintain any records related to the above inquires in a confidential manner.

4.  Districts may require employees to wear personal protective equipment (PPE) such as masks and gloves.

• Districts that require PPE must provide the PPE for employees.
• Employers must provide reasonable accommodations to employees with disabilities with respect to this requirement, such as providing latex-free gloves to employees with a latex allergy.

5.  Districts must carry out all return-to-work safety directives in a non-discriminatory manner. For example, districts may not impose these or any other COVID-19-related requirements on employees based on a protected status such as their national origin, age, gender, ethnicity, or tribal identity.

6.  Districts must follow any State or local requirements for social distancing. As the State and local governments relax shelter-in-place orders, social distancing will still be required for most workplaces, such as placing work-stations six feet apart and providing soap and hand sanitizer. Districts should also consider how they will comply with these orders if students are on campus, such as the physical arrangements of classrooms and labs.

B. Negotiations

Districts should be prepared for negotiations in several areas related to both operations and financial conditions due to COVID-19 and the shelter-in-place orders. Districts should also be prepared for bargaining to be contentious given the current stressful circumstances. It is more important than ever to try to maintain a good relationship with exclusive representatives and to offer the opportunity to negotiate with respect to mandatory subjects of bargaining.  Districts may attempt to invoke the defense of an “actual financial emergency which leaves no real alternative to the action taken and allows no time for meaningful negotiations before taking action” to defend against a failure to bargain. However, the Public Employment Relations Board (PERB) has rarely, if ever, found in favor of a district based on that defense.

Relevant subjects of bargaining include the following:

1.  Safety: Safety conditions of employment are negotiable. Exclusive representatives may demand to bargain over safety issues related to return-to-work. This includes both an exclusive representative’s own demands for safety measures and over any employer-initiated safety measures, to the extent they impact employee terms and conditions of employment. Exclusive representatives may be willing to reach agreement on these issues in the interest of protecting their members, but districts should ensure they offer the opportunity to bargain.

2.  Concession Bargaining: In order to avoid layoffs, a district may seek to bargain concessions from exclusive representatives. This would require the district to request that exclusive representatives and employees “give back” items to which the parties had previously agreed, such as compensation and benefits. If the district is in the middle of a multi-year contract with a zipper clause and is not at the table for reopeners, the exclusive representative may deny the district’s request to bargain.

3.  Impacts and Effects of Layoffs: While districts have the management right to make the decision to implement layoffs, the district must still bargain over the impacts and effects of layoff if the exclusive representative requests to bargain, and can articulate, impacts and effects of the decision. Impacts and effects bargaining regarding layoffs can include bargaining over the layoff process, such as timelines, but it can also include other impacts and effects, due to the loss of bargaining unit members, such as workload and safety. In addition, exclusive representatives may seek to bargain concessions as a part of effects bargaining to avoid layoffs during the impacts and effects bargaining. Districts should be prepared for that possibility.

4.  Reduction in Hours: If districts seek to reduce the hours or workday (full-time equivalent) of a classification, that decision – unlike layoffs – is subject to negotiation. In addition, if the district wishes to offer employees the opportunity to reduce their hours in lieu of layoff, the district must offer the exclusive repressive the opportunity to negotiate that offer prior to making the offer to employees.

5.  Furloughs: Furloughs are a temporary period employees take time off from work unpaid. Furloughs reduce employee compensation costs without separating employees from employment as in a layoff. Like reductions in hours, the decision to implement a furlough is subject to negotiation. Furloughs affect wages and hours, so PERB has held that they negotiable as to the decision, not only impacts and effects.

6.  Changes to Proposals or Tentative Agreements (“Regressive Bargaining”): Reneging on previously reached agreements and withdrawal of previous proposals are considered indicia of “bad faith bargaining.” While the totality of the circumstances of the parties’ conduct affects whether a charge of bad faith bargaining will succeed, even one indicia of bad faith bargaining may support an unfair labor practice charge if it has a significant impact on the parties’ ability to negotiate. On the other hand, the district may be able to avoid an unfair practice charge if the district otherwise demonstrates that it has met and negotiated in good faith in an attempt to reach an agreement.

In addition, where a district withdraws a particular proposal but presents another proposal that is overall the same or better for the exclusive representative, that will not constitute an unfair labor practice. However, withdrawal of a proposal in order to provide a less beneficial proposal will constitute an indicia of bad faith.

A district may also be able to allege that significantly changed financial circumstances resulted in a need to renege on tentative agreements, or withdraw or change bargaining proposals.  However, districts should proceed with care.  They will otherwise need to demonstrate that it has met and negotiated in good faith, even if it can demonstrate changed financial circumstances.  Cases discussing the changed circumstances doctrine seem to indicate PERB is somewhat hostile to the concept.

7.  Continuing All Distance Education: Districts have the management right to determine how they will implement their programs and services. However, there may be impacts and effects on the working conditions of employees because of a district decision to continue to provide all of its courses through distance education in Fall 2020. Those impacts and effects are negotiable. Many districts negotiated side letters regarding the impacts and effects of moving to an all distance education program for Spring 2020. However, those side letters may not apply to Fall 2020. If districts seek to continue all distance education for Fall 2020, they will need to renegotiate for Fall 2020.

Consultation with Academic Senate Regarding Distance Education for Fall 2020

According to a March 31, 2020 memorandum from the Chancellor of the California Community Colleges, districts may request an Emergency Temporary Distance Education Blanket Addendum to satisfy the Title 5 requirements for approval of distance education courses through Fall 2020. Districts must request this addendum by July 1, 2020.  The CCCCO will condition receipt of an addendum/waiver on a district’s inclusion of a plan to obtain local approval, including from the academic senate, for all courses to be covered by the addendum. This include the following consultation requirements:

1.  The district must consult regarding academic senate the following distance education issues:

• Determinations and judgments about the quality of distance education under the course quality standards.
• Determining regular effective contact between instructor and students, and among students.
• To obtain approval for distance education classes from the Chancellor’s Office.
• To obtain approval of both credit and non-credit courses, must certify “the curriculum committee and district governing board have approved the courses.

2.  The district must also consult regarding equivalencies to minimum qualifications.

3.  If the academic senate does not agree to allow distance education, the district may still implement under particular circumstances that may apply based on COVID-19 or related economic circumstances:

• For subjects the Board intends to rely primarily upon the advice and judgment of the academic senate, the Board may implement without agreement if it can demonstrate exceptional circumstances or compelling reasons. The Board must provide a written explanation for its action to the academic senate.
• For subjects for which the board elects to provide for mutual agreement with the academic senate, the Board may implement without agreement of the academic senate after a good faith effort to agree if the district is exposed to a compelling (1) fiscal hardship; (2) legal liability; or (3) organizational reasons.

4.  If a district fails to consult with the academic senate where required, the academic senate may take action to address the district’s failure to consult, including legal action, as follows:

• File a complaint with the Chancellor’s office;
• Request technical assistance (e.g., mediation) from the Community College League of California; or
• File a lawsuit or restraining order.

Reductions in Force

While districts will try to avoid the need for layoffs as much as possible, the economic repercussions of COVID-19 may make them inevitable. Both classified and academic layoffs are technical and require preparation to ensure districts carry them out in compliance with the Education Code. While districts will not be able to notice academic employees of layoff until March 15, 2021, layoff preparation should begin far in advance of March 15. In addition, a district may implement classified layoffs at any time with 60 days’ notice.

Districts should consider the following non-exhaustive list in preparation for layoffs:

1.  Classified Reductions-in-Force

• Ensure the district’s classified seniority lists is up to date, including:

• Correct dates of hire or hours worked (as applicable to each district); and

• Classifications held.

• Provide the seniority list to the employees and exclusive representative.
• Prepare layoff resolution for adoption by the board of trustees, which includes all FTEs the district intends to reduce.
• Provide notice to the classified exclusive representative of the intent to implement layoffs so that they may request impacts and effects bargaining.
• Determine which employees have bumping rights and determine their new assignment.
• Prepare to send notices of layoff and bumping rights at least 60 days prior to the effective date of a layoff.

2.  Academic Reductions-in-Force

• Verify faculty service areas and hire dates of employees and have employees sign and date verification of current employment information.
• Update the district’s academic seniority list including faculty service areas, employee status (temporary, contract, permanent), and seniority dates. Review the following for purpose of calculating seniority dates:

• Ensure “look back” time in temporary status has been included when calculating the seniority date;

• Review temporary and part-time contracts to ensure the district provided notice of temporary status prior to the employee’s first day of work (i.e., Kavanaugh issues);

• Review temporary employee FTE to ensure the district has sufficient employees on leave to “balance” all temporary employees (other than part-time, temporary faculty members);

• Review part-time, temporary employee loads to ensure they have not worked more than 67 percent of a full-time load for more than two semesters in three years;

• Add any administrators who the district intends to release and have retreat rights to the seniority list;

• Ensure categorical employees are placed on the seniority list if the funding for their positions remains in place.

• Provide the seniority list to the employees and exclusive representative.
• Prepare a particular kind of services reduction resolution for adoption by the board of trustees and provide notice of recommendation for layoff to the board.
• Provide notice to the academic exclusive representative of the intent to implement layoffs so that they may request impacts and effects bargaining.
• Determine tie-breaking criteria, and prepare a tie-breaking resolution for adoption by the board of trustees.
• Determine and negotiate competency criteria.
• Determine skipping criteria, if any.
• Review seniority list to ensure the district carries out bumping appropriately.
• Serve notices of layoff no later than March 15.
• Prepare for layoff hearing.

Liebert Cassidy Whitmore is available to provide advice and counsel on all of the above issues as districts begin to prepare for Fall 2020 and support districts as they navigate these new issues.