ACE Update 02.25.2021: Better or Worse, CalPERS Lawsuit, Hostile Work Environment, Return to Campus Survey, Pre-Retirement Reduction in Contract – Association of Classified Employees (ACE)

President’s Message

Better or Worse

On more than one occasion I have stated that it takes active participation and commitment from all the members of a union to effectively protect and serve the membership as a whole. The most obvious benefit of a union is having an organization that is always there to represent and protect you and provide you with greater job security. The second is having greater bargaining power around health benefits and salary because of your concerted group effort to obtain the greatest possible result. To be clear, this doesn’t mean we always get it right or that the path to change can, at times, be excruciatingly slow. but whatever we do always comes from a desire to help others. Sometimes that last point gets lost when outcomes don’t match desired expectations.

Early next week we will be sending out the tentative agreement regarding the long-awaited classification study. There will be time for discussion before we ask, you, the membership to vote on it. The one question I would humbly ask you to keep in mind as you read through what is presented, is the new classification/compensation structure better or worse than what we currently have today? I’m not so naive to think everyone will like what is presented, but on the whole, is it better or worse? I know what my answer is.

In the meantime, please review the results of the Return to Campus survey we sent out, it was illuminating. And if you haven’t already done so, please contact your representative regarding the proposed 2021-2022 cost of living adjustment for community colleges.

Gratefully,

Chris White, ACE President
(650) 949-7789, office

“The fight is never about lettuce or grapes. It is always about people”. – César Chávez

CalPERS Lawsuit Update

by Bradley Booth, Booth Law Group

ACE filed suit against the PERS because it did not consider the 5 percent one-year salary increase as pensionable income for anyone hired after January 1, 2013. STRS, however, had considered it as pensionable income. Then PERS objected to the filing of the suit because there was never an administrative hearing prior to the filing of the lawsuit. After assuring the Court that ACE could have an administrative hearing the Court dismissed the lawsuit with prejudice, meaning it couldn’t be filed again until there was a hearing. After the dismissal, the PERS told ACE that it did not have the ability to request a hearing only a recent retiree or the District could challenge the ruling. ACE then asked the District to pursue the matter as it affected not only ACE employees but also Administrators, CSEA, and Teamsters. The District refused to challenge the proposed decision and ACE filed an appeal requesting an administrative hearing. PERS response:

“CalPERS previously agreed that it would accept an appeal on behalf of an individual, since this determination would potentially impact their CalPERS retirement benefits. OF course, this is somewhat speculative since that determination would not be known until they retire and my understanding is that subsequent MOUs between the union and the District have now made this matter moot. Nonetheless, as a compromise we would be willing to do afford appeal rights to someone potentially impacted”.

We have identified a member who will be impacted by this decision and will represent the issue for all impacted employees. We can finally move forward with the administrative hearing.

Why does it matter?
Simply put, increases in compensation impact your final retirement benefit. As the state changes our funding formula, including how the cost of living adjustments (COLA) are allocated, they affect all community colleges and could mean we negotiate salary increases for a single year vs. an ongoing basis, at least through the hold harmless phase of the new funding structure. That change should not be detrimental to workers’ retirement benefits.

Return to Campus Survey Results

Thank you to everyone who filled out the Return to Campus Survey we sent out a couple of weeks ago. A response rate of 77 percent gives us some good insights into what it would take for you to feel safe returning to campus.

Your top concerns were students feeling ill and coming into your workspace (62%), colleagues feeling ill and coming into work (57%), and consistency and enforcement of safety protocols (53%).

The two highest-rated safety protocols needed to feel safe were postings of the mask (86%) and social distancing (83%) policies throughout campus. Roughly 60 percent felt the need for health assessments, contact tracing, and testing. Not surprisingly, the top requests for resources included facemasks (93%), hand sanitizer (94%), and plexiglass physical barriers to limit contact (63%).

45 percent would be comfortable returning to campus before everyone had been vaccinated. 41 percent were open to the idea if there were enough PPE equipment and clear safety protocols. Your preference until herd immunity is established through a vaccine is to continue to work remotely.

When we return to pre-pandemic operations, the majority would still prefer a split remote work and on-campus option.

The common themes within the comments were:

Concerns relating to a lack of safety from poor air circulation in the buildings to cleaning protocols for public places like restrooms, dining services, and open offices/labs.
Pressure from supervisors or managers to not call out sick and an overall lack of enforcement for safety protocols with fear of reprisal if concerns are raised.
A lack of trust that management will be open, transparent, inclusive, and empathetic with any decisions or policies established to return to campus.

As you can see, there are some pretty big concerns that need to be addressed and again I implore you, if given the opportunity to weigh in on department return to campus plans, please do so. When plans are developed, ACE will continue to monitor that safety protocols are met and what options will be available to staff. As a start, I have already shared these concerns when I met with Chancellor Miner last week.

Hostile Work Environment

by Anthony Booth, Booth Law Group

What does it mean?

Most people assume a hostile work environment is created when they have a boss or coworker that yells at them or creates a bad working environment. While this may be a very hostile environment to work in, it does not rise to the level of an illegal hostile work environment. Unfortunately, there is no law against someone being a jerk in the workplace.

In general, a hostile work environment is defined as inappropriate severe, or pervasive harassment that creates an offensive or abusive work environment for one or more employees. There are two main elements that must be met for a successful claim:

Must be pervasive or severe harassment, and
Must be targeted at a trait that is protected under California law.

What are protected classes in California?

Harassment can come from anyone, a co-worker, a student, or a supervisor. In order for harassment to be illegal, it must be based in part on a protected status.

The following is a list of protected classes in California:

Race
Color
Religion (includes religious dress and grooming practices)
Sex/gender (includes pregnancy, childbirth, breastfeeding, and/ or related medical conditions)
Gender identity, gender expression
Sexual orientation
Marital status
Medical Condition (genetic characteristics, cancer, or a record or history of cancer)
Military or veteran status
National origin (includes language use and possession of a driver’s license issued to persons unable to provide their presence in the United State is authorized under federal law)
Ancestry
Disability (mental and physical including HIV/AIDS, cancer, and genetic characteristics)
Genetic information
Request for family care leave
Request for leave for an employee’s own serious health condition
Request for Pregnancy Disability Leave
Retaliation for reporting patient abuse in tax-supported institutions
Age (over 40)

If you believe you have experienced illegal harassment you should immediately report the claim to human resources (HR). You will need to file an Unlawful Discrimination//Harrassment Complaint Form with HR. The Association can help to guide you through this process.

Illegal Harassment, not exclusively directed at a protected class

In California, if a behavior is not targeted there are two more illegal forms of harassment:

Sexual Harassment
1. Occurs when an employee experiences harassment in the workplace that is of a sexual nature.
2. Sexual harassment refers to both unwelcome sexual advances, or other visual, verbal, or physical conduct of a sexual nature and actions that create an intimidating, hostile, or offensive work environment based on an employee’s sex.
3. If you believe you have been a victim of sexual harassment you should immediately file a complaint with HR. The complaint form is attached to this document. The Association can help to guide you through this process.
A threat to the employee’s personal safety
1. California Penal Code, Section 422 states that “any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison”.
2. If you believe your life has been threatened at work you should immediately report that threat to the proper authorities. While the union does not offer criminal representation, we can direct you to the appropriate place to report such threats.

It’s Not Protected But It’s Also Not Good, Now What?
ACE is your advocate!
There are times when there is no power given to us through the law and an issue is not covered in the Agreement. However, we still do all we can to help you solve your issues. This includes:

Listening. Finding out what happened to see what our best course of action may be.
Mediation. Meeting with you and your supervisor to try and resolve the issue.
Advocate. Working directly with human resources to try to find a solution.
In these instances, there is no obligation on management to work with us, our power of persuasion is put to the test.

As always, the Association is here to support you. If you have any questions or believe you have been a victim of illegal harassment you can reach Anthony Booth, ACE Attorney, at 415-533-4848.

Welcome New Members

Please take a moment to welcome our newest members. Invite them to a site meeting, answer their questions or point them to their steward if they need additional guidance. Our association only works with active participation from all our members.

Central Services
Elena Carter, dispatcher, police
Thomas Marks, Wkst & Systems Support Tech, ETS

Foothill
Ariana Buccat, program coordinator sr., student & faculty support
Janie Garcia, program coordinator II, outreach
Stephanie Gross, administrative asst. sr, international student programs

Pre-Retirement Reduction in Contract

The Pre-Retirement Reduction in Contract allows classified staff who are eligible for service retirement to phase into actual retirement through a contract reduction (not less than 50% of their full-time contract) while maintaining full retirement credit and other benefits for a maximum of five years. Under any other type of reduction in contract, the portion the District pays a pro-rated to the percentage of the full-time contract you work. In other words, you pay more out of your pocket to maintain the same benefits and earn less service credit.

Pre-retirement reductions in contract are entirely voluntary, and while generally encouraged by the District, they are not an entitlement. To ensure the needs of a department are met, any reduction in contract is at the discretion of the department manager. The best place to start? Have a conversation with your supervisor. Don’t wait! The deadline to submit your request is May 1.

ACE Article 17B: The Details

17B.1 Eligibility

Each full-time 12-month, 11-month, 10-month, or academic-day classified worker who meets the requirements of this article may reduce his/her contract from full-time to part-time while maintaining his/her retirement benefits pursuant to Education Code Section 88038 and Government Code Section 20905.

To be eligible for a pre-retirement reduction in contract the worker must:

17B.1.1 Have reached the age of 55 prior to the reduction in contract;

17B.1.2 Have been employed full-time for at least ten years in a classified position requiring membership in an appropriate California state retirement system; and

17B.1.3 Have served full-time without a break in service during the preceding five years.

This article shall be applicable only to classified workers who request a reduction in contract, who meet the criteria established in this section.

17B.2 Period of Reduced Contract

The maximum period during which a classified worker’s contract may be reduced under this article shall be five years. At the conclusion of the period during which a classified worker’s contract is reduced under this article, the worker shall retire.

17B.3 Rights and Benefits

A classified worker whose contract has been reduced under this article shall retain all paid benefits afforded full-time classified workers and shall receive the pro-rata share of the salary he/she would have earned had he/she continued full-time. In addition, the worker shall retain on a pro-rata basis, all other rights and benefits of permanent classified workers.

17B.4 Duties

A classified worker whose contract has been reduced under this article shall fulfill the appropriate pro-rata share of the hours and classified duties that would have been required had the worker continued as a full-time worker.

17B.5 Contributions to the Retirement System

In compliance with Education Code Section 88038 and Government Code Section 20905, a classified worker whose contract has been reduced under this article shall contribute to the appropriate retirement system by payroll deduction the amount he/she would have contributed had he/she continued full-time. The District shall contribute to the appropriate retirement system the amount required by law.

17B.6 Request for Reduction in Contract

To implement the provisions of this article, a classified worker shall file a written request for a reduced contract specifying:

17B.6.1 That the request is pursuant to this article;

17B.6.2 The reduced contract the worker desires under this article, provided it is not less than one -half of a full contract; and

17B.6.3 The number of years during which the classified worker wishes his/her contract to be reduced under this article, provided the number of years does not exceed five.

The request shall be filed no later than May 1 preceding the college year during which the worker wishes the reduced contract to become effective. College year means July 1 to June 30. The request shall be filed with the appropriate supervisor with a copy to the Director of Human Resources. If the worker’s request is granted, it shall take effect at the beginning of the next college year and, unless during the first year of reduction in contract under this article the worker submits a written request to return to full-time employment at the beginning of the next college year, may be revoked only with the mutual consent of the worker and the District.

17B.7 Other Reductions in Contract

Nothing in this article shall prohibit a classified worker from requesting a reduction in contract outside of the provisions of this article nor shall it prohibit the District from granting such a request.

ACTION NEEDED: ACE Members Please Tell Your Representatives To Increase Proposed COLA to K-12 Levels and Eliminate Contingencies

Email sent 2/17/2021

Thank you to everyone who has contacted their representative already.

Governor Newsom’s January budget proposal for the 2021-22 budget year includes a 1.5 percent cost of living adjustment (COLA) for community colleges contingent on the local adoption of certain policies. This unprecedented move undermines the purpose of a COLA which exists to maintain a district’s spending power. Without sustained spending power, community colleges have fewer resources to serve their students.

We need you to act now and ask your legislature to remove contingencies and increase the COLA to 3.84 percent, which would match K-12 levels.

Next steps:

Step one: Copy the message below. Feel free to personalize it if you want to.

Step two: Find your senator, click the link to contact them, copy and paste the message.
Step three: Find your assembly member, click the link to contact them, copy and paste the message.

At the state level, there is no singular political action committee or labor union representing classified professionals. Faculty are represented by a statewide political action committee, along with the Academic Senate. This means issues concerning wages, benefits, or working conditions are often addressed in absence of classified professionals. Professionals who contribute significantly to student success while, overall, earning less than their faculty counterparts, exacerbating none or reduced COLAs offered by the state.

Please take five minutes and contact your representatives today.

Of service,

Chris

P.S. – You know I’m going to bug you about this, so you might as well contact them right now. 🙂

STEP ONE: Message

I am a California Community College classified professional in your district. As you work with your fellow legislators on the 2021-22 state budget, please consider increasing the community college cost-of-living-adjustment (COLA) to match the proposed K-12 COLA of 3.84 percent. Adequate COLA is critical to serving our students. Our colleges are the lowest per-student funded segment of education. Insufficient COLAs put our colleges even further behind. Furthermore, requiring institutions to create or implement policy proposals to receive a COLA is inherently problematic. Providing incentives for colleges with new money would be a less punitive approach that wouldn’t hurt our already insufficient funding. A COLA is not intended to be a bonus or reward. Instead, it allows a district to maintain its purchasing power to serve students.

Thank you for your support of our colleges.

Step Two: Find Your State Senator

Senator	District	Service Area/County	Contact Info
Josh Becker	13	San Mateo CountyNorthern Santa Clara including Mountain View & Sunnyvale	https://sd13.senate.ca.gov/contact
Anna Caballero	12	San BenitoSouthern Monterey CountyFresnoMaderaStanislaus	https://sd12.senate.ca.gov/contact
Dave Cortes	15	Santa Clara, Los Gatos, Saratoga, Campbell, Willow Glen, Almaden, Evergreen, East San Jose, and Downtown SJ	https://sd15.senate.ca.gov/contact
John Laird	17	Santa Cruz, Scotts Valley, San Lorenzo ValleyWatsonvilleMorgan Hill, GilroyMonterey, Seaside	https://sd17.senate.ca.gov/contact
Nancy Skinner	9	Contra Costa countyAlameda county including Richmond, Berkeley, Oakland, and San Leandro	https://sd09.senate.ca.gov/email-senator
Bob Wieckowski	10	Milpitas, FremontHayward, Castro ValleyBerryessa area if San JoseSanta Clara	https://sd10.senate.ca.gov/contact/email
Scott Wiener	11	San FranciscoDaly City	https://sd11.senate.ca.gov/contact

Unsure? Don’t see yours? For a complete listing of CA Senators, visit: https://www.senate.ca.gov/senators

Step Three: Find Your State Assembly Members

Assembly Member	District	Service Area	Contact Info
Marc Berman	24	Los Altos, Palo Alto, Mountain View, SunnyvaleHalf Moon Bay	https://lcmspubcontact.lc.ca.gov/PublicLCMS/ContactPopup.php?district=AD24
Rob Bonta	18	Oakland, Alameda, San Leandro	https://lcmspubcontact.lc.ca.gov/PublicLCMS/ContactPopup.php?district=AD18
Buffy Wicks	15	Piedmont, Berkeley, Emeryville, Richmond, Hercules	https://lcmspubcontact.lc.ca.gov/PublicLCMS/ContactPopup.php?district=AD15
David Chiu	17	Eastern part of San Francisco from Mount Sutro to the bay	https://lcmspubcontact.lc.ca.gov/PublicLCMS/ContactPopup.php?district=AD17
Phillip Ting	19	The western part of San Francisco, Daly City	https://lcmspubcontact.lc.ca.gov/PublicLCMS/ContactPopup.php?district=AD19
Evan Low	28	Cupertino, Campbell, Saratoga, Los Gatos, Parts of SJ including Dry Creek, Will Glen, and the Rose Garden	https://lcmspubcontact.lc.ca.gov/PublicLCMS/ContactPopup.php?district=AD28
Alex Lee	25	Fremont, NewarkMilpitas, San Jose, and Santa Clara	https://lcmspubcontact.lc.ca.gov/PublicLCMS/ContactPopup.php?district=AD25
Ash Karla	27	South San Jose from Japantown to Silver CreekEast Sanjose from Communications Hill Alum Rock	https://lcmspubcontact.lc.ca.gov/PublicLCMS/ContactPopup.php?district=AD27
Kevin Mullin	22	Redwood City to South San Francisco	https://lcmspubcontact.lc.ca.gov/PublicLCMS/ContactPopup.php?district=AD22

Mark Stone	29	Monterey, PrunedaleWatsonvilleSanta CruzSan Lorenzo ValleyNorthern Morgan Hill to South SJ	https://lcmspubcontact.lc.ca.gov/PublicLCMS/ContactPopup.php?district=AD29
Robert Rivas	30	Morgan Hill, Gilroy, HollisterSalinas and south to King City	https://a30.asmdc.org/contact

Unsure? Don’t see yours? For a complete list of CA Assembly Members visit https://www.assembly.ca.gov/assemblymembers

PGA Changes: Replacement Hours for Old Awards, Updated Guidelines for New Awards

Changes to our Professional Growth Award (PGA) program in order to do two things:

Help those with old PGA awards have more hours count towards pensionable income after CalPERS adjusted what they would accept; and
Update the PGA application and guidelines to move many items currently allocated under section five to section one.

Background:
In June of 2019, with a large retiree exodus and a new account administrator at CalPERS, some of the activities allowed under PGA were called into question regarding their eligibility as pensionable income. In fact, CalPERS made the determination that only hours earned in section one (college, adult education or trade school courses) met the definition for special compensation as defined by the California Code of Regulations, section 571:

Under topic #2, Educational Pay, where PGA is categorized:

“Educational Incentive is defined as compensation to employees for completing educational courses, certificates, and degrees which enhance their ability to do their job. A program or system must be in place to evaluate and approve acceptable courses. The cost of education that is required for the employee’s current job classification is not included in this item of special compensation”.

Your awards are still worth $90 each but for pensionable reporting purposes, CalPERS will prorate the percentage of an award to those hours attributed to section one.

To have more hours count as pensionable, we have agreed to the following changes to the PGA application and guidelines:

Section one will be retitled as Certificate, Course, or Degree.
1. Section 1a will cover accredited courses and continuing education units (CEU). We have removed the minimum hours required to use this section.
2. Section 1b is new and will cover many job-related certificated skills training previously listed under section five.
3. There is no maximum for either of these activities and you are allowed to carry these hours forward to future awards.
Section five will be retitled as Job-Related Conference, Seminar, or Lecture. Participation in job-related special activities, such as seminars, conferences, conventions, institutes, and lectures offered by colleges, adult schools, professional associations, and community organizations.

For previously earned awards only:

We had already negotiated additional funding ($20,000 per year for two years) for affected employees to take courses at no cost to them to replace hours on already earned PGAs which are not pensionable. In addition, to help have more hours count we negotiated the following:

Suspended the limit of 200 hours while on Staff Development Leave. You may submit hours for courses taken during past staff development leaves that were not counted due to the 200 hours limit. Official transcripts are required.
Allow courses omitted from any previous PGA application. Submit hours for any course not submitted in previous professional growth award applications. Reminder, you must have been a district employee at the time the course was taken. Official transcripts are required.
Allow courses not counted due to receiving educational reimbursement from the District. You may submit hours for classes taken that were not counted due to receiving educational reimbursement from the district. Official transcripts are required.
Job-Related certificated training. You may submit hours for previously completed job-related activities/training where certification was provided. This refers to items previously reported in section five “Job Related Special Activities” in prior awards. Please provide copies of previous PGA applications with section five applicable items highlighted. The committee will review all items to make sure they are job-related/job skill-building sessions.
New Job-Related Certificated training. You may submit hours for new job-related activities/training where certification was provided. The committee will review all items to make sure they are job-related/job skill-building sessions. Certificates/transcripts are required.
Apply any carryover hours from section one. If you have carryover hours in section one, you may apply them to any previous award where replacement hours are needed.

For these previously earned awards, the review and application process is effective immediately and will continue through June 30, 2022. Current employees must submit the completed application, hours audit, and applicable documentation by the deadline in order to request a review of hours for the PGA substitution process. Applications submitted after June 30, 2022, will be deemed late and will not be processed.

To review your previous award(s) information:

Please send an email to whitechris@fhda.edu. Be sure to include your CWID.
This request is for a copy of your completed application(s) and the tally sheet(s) used by the PGA committee. No backup material will be provided. This should help you determine how many hours you have under section one and applicable hours under section five to estimate how many of your completed PGA’s are eligible as pensionable income per CalPERS. 200 hours of credit equals one award. For example, if you’ve completed eight awards but only have 1,000 hours in section one, CalPERS will credit five awards as pensionable (5 x 200 = 1,000 hours).
Turn around time to receive the request for information is approximately three weeks. To not overburden an already short-staffed human resources department. Your patience is appreciated.

For new PGA awards:
The application and guidelines have been updated to reflect the following changes:

Job-Related certificated training. These hours will now be listed under section 1b.
All rules under PGA guidelines apply to new awards. The suspension of rules for previously earned PGAs does not apply to new awards.

Reminder:

PGA is publicly funded. As public pensions and CalPERS continue to be scrutinized by the public it is imperative that the activities we submit as special compensation follow the rules set by CalPERS. The burden of verifying the eligibility is on the District before the income will be reported as pensionable. We do not want to provide cause for a CalPERS audit by reporting income as pensionable which does not meet their definition for educational pay.
The authority to accept or deny an activity, along with which section of the PGA application it is attributed, is at the discretion of the PGA Review Panel. These are your colleagues who are donating their time to administer this program and who have consistently demonstrated they will do all they can to have hours count towards an award. You may not always like their answer. Be kind.
PGA Review Panel: Kris Lestini, Mary Medrano, Kit Perales, Denise Perez, Shawna Santiago