Keenan Briefings

Briefing

SB 791: Enhanced Hiring Transparency and Accountability in Community Colleges

A new law that went into effect on January 1, 2024, is requiring California Community Colleges to request additional information from candidates for academic and administrative positions. SB 791 (Chapter 415, Statutes of 2023) adds Section 87604.5 to the Education Code. It requires the following steps to be taken as part of the hiring process for an appointment to an academic or administrative position with the district.

• The district must require that the applicant disclose “any final administrative decision or final judicial decision issued within the last seven years from the date of submission of the application determining that the applicant committed sexual harassment [emphasis added].”
• For purposes of this disclosure, a “final administrative decision” is the written determination of whether or not sexual harassment occurred as determined by the decision maker following a final investigative report and subsequent hearing.
• A “final judicial decision” is a final determination of a matter submitted to a court that is recorded in a judgment or order of that court.
• “Sexual harassment” has the same meaning as described in subdivision (a) of Section 66262.5 or, if applicable, as defined in Section 106.30 of Title 34 of the Code of Federal Regulations.
• The law adds the caveat that applicants must be allowed to further disclose if they have filed an appeal with the previous employer or, if applicable, with the United States Department of Education.
• Additionally, the law provides that a community college district shall not ask an applicant to disclose, orally or in writing, information concerning any final administrative decision or final judicial decision described in (1) and (2), above, including any inquiry about an applicable decision on any employment application, until the district has determined that the applicant meets the minimum employment qualifications stated in the notice issued for the position.

The statute does not define what “meeting the minimum employment qualifications” means, or when in the process the state would deem the employer to have made that determination. It is therefore incumbent on a district to:

• Set forth the required minimum employment qualifications clearly and unambiguously in the notice issued for the position.
• Not request that the applicant disclose any information concerning any final administrative decision or final judicial decision determining the candidate committed sexual harassment as part of the application for the position.
• After the application is received, determine whether a candidate meets the minimum employment qualifications.
• Once the determination is made that a candidate meets the minimum employment qualifications, the district should require the disclosure outlined in sections 1 and 2 above in writing from the candidate.
• Document the process each step of the way, and retain records as required by law and your district’s own retention schedule.

As a reminder, Education Code 87357 requires the review of the appropriateness of the minimum qualifications, and the adequacy by which they are administered at least every three years.

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