Bill Text: CA AB1844 | 2021-2022 | Regular Session | Amended

California Assembly Bill 1844 (Prior Session Legislation)

Bill Title: Higher Education Student, Staff, and Faculty Protection Act.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Introduced - Dead) 2022-05-19 - In committee: Held under submission. [AB1844 Detail]

Download: California-2021-AB1844-Amended.html

Amended IN Assembly April 20, 2022

Amended IN Assembly April 07, 2022

Amended IN Assembly March 03, 2022

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill

No. 1844

Introduced by Assembly Member Medina
(Coauthor: Senator Leyva)

February 08, 2022

An act to add Chapter 15.3 (commencing with Section 67370) to Part 40 of Division 5 of Title 3 of the Education Code, relating to public postsecondary education.

LEGISLATIVE COUNSEL'S DIGEST

AB 1844, as amended, Medina. Higher Education Student, Staff, and Faculty Protection Act.

Existing law establishes the University of California, which is administered by the Regents of the University of California, the California State University, which is administered by the Trustees of the California State University, and the California Community Colleges, which is administered by the Board of Governors of the California Community Colleges, as the 3 segments of public postsecondary education in the state.

A portion of the Donahoe Higher Education Act known as the Equity in Higher Education Act requires, among other things, each postsecondary educational institution in the State of California to have a written policy on sexual harassment, including information on the complaint process and the timeline for the complaint process.

This bill, the Higher Education Student, Staff, and Faculty Protection Act, would, beginning January 1, 2023, require the 3 segments of public postsecondary education to take certain actions before extending an official offer of employment to an applicant, as defined, including requesting that an applicant sign a statement declaring whether the applicant is the subject of an informal resolution process with an outcome used to resolve an allegation following the filing of a formal Title IX sexual harassment complaint, or any substantiated Title IX sexual harassment complaints, as specified, and authorizing the applicant’s current and past employers to disclose to the hiring institution whether the applicant was the subject of an informal resolution process with an outcome used to resolve an allegation following the filing of a formal Title IX sexual harassment complaint, or any substantiated Title IX sexual harassment complaints. The bill would prohibit these public postsecondary educational institutions from hiring an applicant who does not sign the requested statement. The bill also would require the public postsecondary educational institutions to request information related to whether the applicant was the subject of an informal resolution process with an outcome used to resolve an allegation following the filing of a formal Title IX sexual harassment complaint, or any substantiated Title IX sexual harassment complaints, from the applicant’s current or former postsecondary educational institution employers, and require a public postsecondary educational institution that receives a request for information related to an informal resolution process with an outcome used to resolve an allegation following the filing of a formal Title IX sexual harassment complaint, or any substantiated Title IX sexual harassment complaints, by a current or former employee to provide the information as specified.

This bill would require these public postsecondary educational institutions to complete an investigation into a Title IX sexual harassment complaint or allegation committed by an employee against a student or employee of the institution, regardless of whether the employee voluntarily or involuntarily leaves employment with the institution, unless the victim of the alleged Title IX sexual harassment complaint requests otherwise. The bill would prohibit, after June 1, 2023, a provision of a settlement agreement between one of the public postsecondary educational institutions and an employee that prohibits anyone from disclosing whether the employee has been the subject of a Title IX investigation for sexual harassment.

This bill would require, no later than September 1, 2023, each campus of the California Community Colleges and the California State University, and encourage each campus of the University of California, to establish specified support roles, and designate persons to fill the roles, to assist complainants and respondents in instances of sexual harassment allegation or victimization, as specified.

To the extent these provisions would add additional duties on community college districts, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YES

The people of the State of California do enact as follows:

SECTION 1.

Chapter 15.3 (commencing with Section 67370) is added to Part 40 of Division 5 of Title 3 of the Education Code, to read:

CHAPTER 15.3. Higher Education Student, Staff, and Faculty Protection Act

67370.

This chapter shall be known, and may be cited, as the Higher Education Student, Staff, and Faculty Protection Act.

67371.

For purposes of this chapter, the following definitions apply:

(a) “Applicant” means a person applying for employment for any position at a public postsecondary educational institution in which the applicant will likely have direct ongoing contact with students or staff in a supervisory role or position of authority. “Applicant” does not include an enrolled student applying for temporary student employment, unless the student is a graduate student applying for a position in which the graduate student will have a supervisory role or position of authority over other students. “Applicant” does not include a person applying for employment as medical staff or for employment with an affiliated organization or entity, unless the applicant will have a supervisory role or position of authority over students or staff.

(b) “Employee” means a person who is receiving or has received wages as an employee from a public postsecondary educational institution and includes current and former employees, whether the person is classified as an employee, independent contractor, or consultant, and who is in, or had, a position with direct ongoing contact with students, staff, or faculty in a supervisory role or position of authority. “Employee” does not include a person who was employed by the institution in temporary student employment while the person was an enrolled student unless the student, at the time of employment, is or was a graduate student in a position in which the graduate student has or had a supervisory role or authority over other students, or had teaching responsibilities associated with students. “Employee” does not include a person employed as medical staff or with an affiliated organization or entity, unless the employee has or had a supervisory role or position of authority over students, or had teaching responsibilities associated with students. A person who would be considered an “employee” under this subdivision, remains an “employee” even if the person enrolls in classes at the institution where the person is an “employee.”

(d) “Public postsecondary educational institution” means the California Community Colleges, the California State University, or the University of California, as defined in Section 66010.

(e) “Sexual harassment” has the same meaning as defined in Section 212.5, and includes sexual battery, sexual violence, and sexual exploitation, as defined in Section 66262.5.

(f) “Student” means a person enrolled at a public postsecondary educational institution.

(g) “Title IX” refers to Title IX of the Education Amendments of 1972 (20 U.S.C. Sec. 1681 et seq.) and Section 66281.8.

67372.

(a) Except as provided in subdivision (b), a provision of a settlement agreement executed after January 1, 2023, between a public postsecondary educational institution and an employee is against public policy and shall be void and unenforceable if the provision prohibits the employee, the institution, a survivor of sexual harassment, or any other person from disclosing that the employee has been the subject of a Title IX investigation for sexual harassment.

(b) A settlement agreement may contain provisions requiring nondisclosure of personal identifying information of persons filing complaints or making allegations, and of any witnesses asked to participate in an investigation of the allegations.

(c) Personal identifying information in a settlement agreement that reveals the identity of persons filing complaints or making allegations and of any witnesses asked to participate in an investigation of the allegations is exempt from public disclosure.

67373.

(a) Unless the victim of the alleged Title IX sexual harassment complaint requests otherwise, when a public postsecondary educational institution investigates a Title IX sexual harassment complaint or allegation committed by an employee against a student or employee of the institution, the institution shall complete the investigation regardless of whether the employee voluntarily or involuntarily leaves employment with the institution. When the institution completes its investigation, the institution shall make written findings detailing the outcome of the investigation, and make the written findings available to the complainant and respondent.

(b) (1) A public postsecondary educational institution shall include in an employee’s personnel file or employment records whether the employee was the subject of an informal resolution process with an outcome used to resolve an allegation following the filing of a formal Title IX sexual harassment complaint, or any substantiated Title IX sexual harassment complaints, while the employee was employed with the public postsecondary educational institution.

(2) The records contained within the ~~employees’~~ employee’s personnel file or employment record pursuant to paragraph (1) shall include the following:

(A) If the employee was the subject of an informal resolution process, the final outcome or agreement, and whether the employee followed the outcome or agreement, to the institution’s knowledge.

(B) If the employee was the subject of a substantiated Title IX sexual harassment complaint, the nature of the complaint, and the outcome of the Title IX hearing.

(3) When disclosing records included in an employee’s personnel file or employment records under this section, the institution shall keep personal identifying information of the complainant and any witnesses confidential, unless disclosure of personal identifying information is agreed to by the complainant or witnesses or required by law. The institution shall only make available the portions of the employee’s personnel file or employment records identified in paragraph (2) and shall not disclose the rest of the contents of the employee’s personnel file or employment records, unless requested or authorized by law.

(4) Personal identifying information in an employee’s file or employment records that reveals the identity of the complainant and any witnesses is exempt from public disclosure.

(c) An employee who was the subject of an informal resolution process may request that the records contained within the employee’s personnel file or employment records pursuant to paragraph (2) of subdivision (b) be removed, if all of the following has occurred:

(1) A sufficient amount of time, as determined by the public postsecondary educational institution, but not less than five years, has transpired.

(2) The employee has completed the required outcome of the informal resolution process.

(3) The head of the campus human resources department and the Title IX coordinator for the campus have determined the contents of the employee’s personnel file or employment records no longer meets the standard of overriding community interest and may be removed.

67374.

(a) Beginning June 1, 2023, and before extending an official offer of employment to an applicant, a public postsecondary educational institution shall request the applicant to sign a statement that includes all of the following:

(1) A declaration of whether the applicant is the subject of an informal resolution process with an outcome used to resolve an allegation following the filing of a formal Title IX sexual harassment complaint, or any substantiated Title IX sexual harassment complaints, in any current or former employment, and, if so, an explanation of the situation.

(2) An authorization for the applicant’s current and past employers to disclose to the hiring institution whether the applicant was the subject of an informal resolution process with an outcome used to resolve an allegation following the filing of a formal Title IX sexual harassment complaint, or any substantiated Title IX sexual harassment complaints, and making available to the hiring institution copies of all documents in the previous employer’s personnel files related to the information required pursuant to paragraph (2) of subdivision (b) of Section 67373.

(3) A release of the applicant’s current and past employers, and employees acting on behalf of a current or past employer, from liability for providing the information described in paragraph (2).

67375.

(a) Beginning June 1, 2023, before extending an official offer of employment to an applicant, a public postsecondary educational institution shall do both of the following:

(1) Request in writing, electronic or otherwise, that the applicant’s current and past postsecondary educational institution employers provide the information, if any, described in this chapter. The request shall include a copy of the statement signed by the applicant pursuant to Section 67374.

(2) Ask the applicant if the applicant is the subject of an informal resolution process with an outcome used to resolve an allegation following the filing of a formal Title IX sexual harassment complaint, or any substantiated Title IX sexual harassment complaints, at the applicant’s current and past employers, and, if so, an explanation of the situation.

(b) (1) After receiving a request under this section, a public postsecondary educational institution shall provide the information requested and make available to the requesting institution copies of documents in the applicant’s personnel files related to the information required pursuant to paragraph (2) of subdivision (b) of Section 67373.

(2) If a public postsecondary educational institution has information about an informal resolution process with an outcome used to resolve an allegation following the filing of a formal Title IX sexual harassment complaint, or any substantiated Title IX sexual harassment complaints, by a current or former employee in the employee’s personnel file or employment records, unless otherwise prohibited by law, the institution shall disclose that information to any employer conducting reference or background checks on the current or former employee for the purposes of potential employment, even if the employer conducting the reference or background check does not specifically ask for that information.

(3) If, by January 1, 2023, a postsecondary educational institution does not have existing procedures for disclosing information requested under this subdivision, the institution shall establish procedures and begin implementing the disclosure requirements of this subdivision no later than June 1, 2023.

(4) (A) A public postsecondary educational institution, or an employee acting on behalf of the institution, who discloses information under this section is presumed to be acting in good faith and is immune from civil and criminal liability for the disclosure.

(B) The immunity provided in this paragraph shall not apply to a disclosure that is found to have been made in a grossly negligent manner or made with a willful or wanton disregard to the propriety of the disclosure.

(5) (A) A public postsecondary educational institution is not liable for any cause of action arising from nondisclosure of information by an employee without access to official personnel records who is asked to respond to a reference ~~check.~~ check if an employee who has access to official personnel records is unaware of the request.

(B) The immunity provided in this paragraph shall not apply to a nondisclosure that is the result of gross negligence or willful or wanton conduct on the part of the public postsecondary educational institution, including in the supervision of employees who process requests for disclosures of information necessary for reference checks.

(6) The duty to disclose information under this section is the responsibility of the public postsecondary educational institution in response to a formal request for personnel records relating to a current or prior employee when requested by another employer.

(c) (1) When disclosing information under this section, the public postsecondary educational institution shall keep personal identifying information of the complainant and any witnesses confidential, unless the complainant or witnesses agree to disclosure of their personal identifying information.

(2) Personal identifying information that reveals the identity of the complainant and any witnesses is exempt from public disclosure.

(d) Beginning June 1, 2023, a public postsecondary educational institution shall not hire an applicant who does not sign the statement described in Section 67374.

(e) Information received under this section shall be used by a public postsecondary educational institution only for the purpose of evaluating an applicant’s qualifications for employment in the position for which the person has applied.

(f) On or before June 1, 2023, public postsecondary educational institutions shall share best practices with all faculty and staff who are likely to receive reference check requests about how to inform and advise requesters to contact the institution’s appropriate official personnel office.

67376.

(a) Each campus of the California Community Colleges and each campus of the California State University shall, and each campus of the University of California is encouraged to, do the following:

(1) No later than September 1, 2023, establish the role and designate a person as student advocate to work with student survivors of sexual harassment to provide confidential emotional support and assistance. The student advocate shall be a confidential advocate who shall inform students of their rights and options, including all of the following:

(A) Where the student can access campus resources such as psychological counseling, medical care, emergency housing, transportation, and academic support if required.

(B) The various reporting options available to the student, including how to report to law enforcement or the campus Title IX coordinator, as well as the option to not report.

(D) Campus policies regarding retaliation with regard to reporting incidents of sexual harassment.

(2) If a student chooses to file a formal report either with law enforcement or with the campus Title IX coordinator, the student advocate shall help the student navigate the reporting process, including by assisting with coordinating services with other agencies, campus and community services, and law enforcement on behalf of the student.

(3) The student advocate shall be an exempt and confidential employee and shall be familiar with Title IX, Section 66281.8, campus policies on sexual harassment and student misconduct, and the proper procedures for filing complaints of sexual harassment or student misconduct on campus.

(b) Each campus of the California Community Colleges and each campus of the California State University shall, and each campus of the University of California is encouraged to, do the following:

(1) No later than September 1, 2023, establish the role and designate a person as staff and faculty advocate to work with staff and faculty survivors of sexual violence, sexual assault, domestic and dating violence, stalking, harassment, and sexual harassment to provide confidential emotional support and assistance. The staff and faculty advocate shall inform staff and faculty of all of the following:

(A) Where staff and faculty can access campus resources such as psychological counseling, medical care, emergency housing, transportation, and academic support if required.

(B) Campus policies regarding sexual harassment and the avenues by which staff and faculty can provide a formal report regarding incidents of sexual harassment or staff and faculty misconduct.

(2) If a staff or faculty member chooses to file a formal report either to law enforcement or with the campus, the staff and faculty advocate shall help the staff or faculty member navigate the reporting process, including by assisting with coordinating services with other agencies, campus and community services, and law enforcement on behalf of the staff or faculty member.

(3) The staff and faculty advocate shall be an exempt and confidential employee and shall be familiar with Title IX, Section 66281.8, campus collective bargaining agreements, and the proper procedures for filing complaints of sexual violence, sexual assault, domestic and dating violence, stalking, harassment, and sexual harassment.

(c) Each campus of the California Community Colleges and each campus of the California State University shall, and each campus of the University of California is encouraged to, do the following:

(1) No later than September 1, 2023, establish the role and designate a person as campus respondent services coordinator to work with students, staff, and faculty who have been accused of sexual harassment to provide confidential emotional support and assistance. The confidential campus respondent services coordinator shall inform students, staff, and faculty of their rights and options, including all of the following:

(A) Helping the accused understand their rights under Title IX.

(B) Explaining the investigation and adjudication process.

(C) Referring the accused to campus and community resources for psychological counseling, legal services, alternative housing, academic changes, and other needs as the campus deems necessary.

(2) The campus respondent services coordinator shall be an exempt and confidential employee and shall be familiar with Title IX, Section 66281.8, campus policies on sexual harassment and student, staff, and faculty misconduct, and the proper procedures for filing complaints of sexual harassment.

(d) The positions established in subdivisions (a), (b), and (c) shall be distinct from the Title IX coordinator and shall be subject to supervision from the Title IX coordinator’s office.

(e) Nothing in this section shall preclude each campus of the California Community Colleges, each campus of the California State University, and each campus of the University of California from permitting the same employee to fulfill the role of student advocate established in subdivision (a) and staff and faculty advocate established in subdivision (b).

SEC. 2.

If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.