Special Education Update: Five Key Takeaways from LRP’s School Attorneys Workshop and National Institute

Special Education Update: Five Key Takeaways from LRP’s School Attorneys Workshop and National Institute

Ennis Britton attorneys Pam Leist, Giselle Spencer, and Jeremy Neff were at the LRP School Attorneys Workshop and National Institute in Savannah, Georgia earlier this month. Pam presented on the topic “Can you Keep a Secret? Navigating Confidentiality Under IDEA, 504, and FERPA” during the National Institute. Jeremy also presented during the National Institute on the topic “Successfully Mapping the Exit from IDEA Services.” In addition, Jeremy spoke at the School Attorneys Workshop on the topic “An Ounce of Prevention: COVID Lessons Learned for Future Disruptions”.

Giselle captured five key takeaways from the conferences:

1. Fittingly, at the end of the school attorneys workshop on May fifth, she learned that Cinco de Mayo is not Mexican Independence Day. However, it does mark a historically, significant battle with some interesting connections to the outcome of the American Civil War as well as the Mexican fight for independence from brief period of French colonial rule (thanks for yet another history lesson, Jeremy). What does that mean to special educators? It has something to do with stepping back and taking a broader view and accepting that we don’t always understand the significance of something we’re going through while we are in the midst of it.

2. More specific to special education, an excellent session on parents and the different individuals who can fill those rolls offered the reminder that surrogate parents are only appointed in specific circumstances outlined in the regulations. It is not appropriate to appoint surrogates just because of difficulties in working with a parent or inconsistent attendance at meetings by a parent. Ohio’s special education regulations align with the federal regulations which only allow the appointment of a surrogate when an individual otherwise meeting the definition of parent cannot be identified or located, when the child is a ward of the state, or when the child is an unaccompanied homeless youth.

3. Pam Leist shared in her presentation that under FERPA and parallel privacy protections in IDEA, union representation does not get a seat at the IEP meeting table. IEP teams discuss important sensitive information that is not germane to labor management issues, or the terms and conditions of employment. While sometimes those issues may arise tangential to special education decisions, it is important to keep them separate from the IEP meeting process.

4. A speaker from a different state shared that there are varying residential placement tests applied by courts, depending on where a school district that the student is a resident of is found. The Ohio test for school district financial responsibility for residential services asks whether the need for residential services is intrinsically intertwined with the educational services or needs of the child. Residential placements at public expense should only be used in rare circumstances with low incidence needs, regardless of which test a court applies.

5. And finally, Giselle observed for her fifth take away and in recognition of the island location of the Savannah convention center as well as the stormy weather on a couple of the nights, that one should never get on a metal ferry during a thunderstorm.

Ennis Britton’s team enjoyed presenting at LRP this year and also learning from colleagues across the country. Thanks to the clients who made the trip for saying hello! We look forward to participating again next year when the National Institute is held in Phoenix, where we do not anticipate needing to ride any ferries. Until then, the Ennis Britton Special Education Team is able to provide quality, tailored professional development here in Ohio throughout the year.


















































































































































































































































































































































































































































































































































































































































































































EEOC Releases New Guidance on Workplace Harassment

EEOC Releases New Guidance on Workplace Harassment

On April 24, 2024, the U.S. Equal Employment Opportunity Commission (“EEOC”) released new guidance on harassment in the workplace (“the Guidance”). The Guidance takes effect immediately. The Guidance sets forth the EEOC’s position on harassment that constitutes unlawful discrimination under Title VII of the Civil Rights Act (“Title VII”). Some of the major changes in the Guidance are as follows:

  • Sex-based harassment includes harassment based on sexual identity and sexual orientation.
  • Unlawful harassment based on pregnancy or childbirth may include issues such as lactation and decisions regarding contraception and abortion.
  • Harassment based on “color” (including skin color pigmentation considerations) is prohibited
  • Conduct on video meetings can contribute to a hostile work environment
  • Conduct on non-work-related platforms, such as social media accounts, may contribute to creating a hostile work environment
  • A hostile work environment may be established by a single incident
  • Title VII prohibits “intraclass harassment,” (meaning harassment based on a protected characteristic but conducted by a member of the same protected class).

Why New Guidance? The Guidance was released to address the transformation in workplace environments due to the advent of the internet. Certain technological innovations, such as email and video conferencing, have become indispensable tools for business operations. In addition, the Guidance was released after the Supreme Court’s 2020 decision in Bostock v. Clayton County, in which the Court held that harassment based on gender identity or sexual orientation constitutes unlawful sexual harassment under Title VII. After the Court issued the Bostock decision, the EEOC convened a Select Task Force on Harassment in the Workplace and issued a report detailing its recommendations. This Guidance applies Bostock to the harassment context, explaining that harassment based on gender identity or sexual orientation constitutes unlawful sexual harassment under Title VII.

What Does This Mean for Your District? School districts should reevaluate their harassment policies considering the new Guidance. The Guidance itself encourages employers to have clear harassment policies and implement a safe and effective system for employees to report harassment. In addition, all employees should receive updated training on the new Guidance.

Ohio Requires Schools to Adopt New Cell Phone Use Policies

Ohio Requires Schools to Adopt New Cell Phone Use Policies

On May 15, 2024, Governor DeWine signed House Bill 250 into law. The law mandates that all Ohio school districts adopt a policy governing students’ use of cell phones during school hours. The law is set to take effect on January 1, 2025. The law requires the Ohio Department of Education and Workforce (“DEW”) to publish a model policy that complies with the new legislation within sixty days of the legislation’s effective date.

Meanwhile, districts have until July 1, 2025, to adopt a policy that satisfies the following:

  • Emphasizes the limited use of cell phones during school hours.
  • Reduces phone-related distractions in the classroom setting.
  • If included in a student’s Individualized Education Program (“IEP”), or determined to be appropriate by the school board, permits a student to use phones for learning or to monitor health concerns.

Although the law does not require the banning of cell phones during school hours, it states that any school that chooses to do so will be viewed as complying with the new law.

Reason for Legislation? Governor DeWine and the state legislature are attempting to limit distractions in the classroom to “reestablish the opportunity for students across Ohio to immerse themselves in their classwork.” Increased cell phone usage is not only seen as a distraction to student learning but has been linked to damaging student mental health. The Passage of the law seems to follow an already growing movement across the state to cut back on cell phones in schools. Many districts have already adopted cell phone restrictions that appear to comply with the state’s new policy.

What This Means for Your District? While the core mission of the bill is to minimize screen time during school hours, Governor DeWine insists that districts will have the freedom to “create policies that work best in their environments and for their students.” The DEW is expected to release its model policy before March of next year. Any district that adopts a policy after January 1 of next year must do so at a public meeting of the school board and make the policy publicly available. This includes posting the policy prominently on the district’s website if they have one.










































































































































































































































































































































































































































































































































































































































































































FLSA Final Rule Changes Salary Threshold

FLSA Final Rule Changes Salary Threshold

In April 2024, The Department of Labor (DOL) announced a Final Rule increasing the threshold level salary minimum for the “salary test”.  (See the DOL document entitled Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees).

Generally, under the FLSA, employees are exempt from minimum wage and overtime protections if they are employed in an executive, administrative, or professional capacity (EAP) and meet three tests set out by the department which include payment of a specified weekly salary level and performing executive, administrative, or professional duties.

The new rule takes effect on July 1, 2024. On that date, the new salary amount threshold for a nonteaching, salaried supervisor or administrator increases to $844 week/$43,888 annual salary (up from $684 week/$35,568/annual salary.)

Then, in January 2025, the method used to calculate the salary will change again- and the amounts will increase a second time to $1,128week/ $58,656 annual salary.  After that, the salary threshold will be raised every three years after July 1, 2027. 

Whether an employee can be exempted from the payment of overtime by meeting the EAP exception depends upon meeting the “salary and duties tests” set out by the Department of Labor in the law. 

To be eligible for the exemption, the employee 1.) must earn a fixed salary, 2.) that salary is at least equal to the amount in the Final Rule, and 3.) that the employee performs functions that meet the executive, administrative, or professional duties as defined by the DOL. 

The salary amount will increase twice- on July 1, 2024, and then again in January 2025.  Due to that increase, some nonteaching administrative employees’ salaries may likely be lower than the new salary threshold amount. 

The “duties” part of the test must then be applied to the employee’s job duties to determine whether a nonteaching administrator/supervisor is exempt from overtime requirements.

Administrative employees will meet the duties test if they primarily perform office or non-manual work directly related to the operations of the school district.  Their duties must involve the exercise of discretion and independent judgment on matters of significance.

Executive employees are also eligible for the exemption. To meet the “duties test” for these employees means that their primary duty must be managing a particular department or division of school operations.  They must regularly direct the work of at least two full-time (or their equivalent) employees and must have the authority to hire and fire, or have their recommendations for promotion, termination, hiring, or other actions given particular weight.

Teachers are specifically exempt from the FLSA overtime rules as professionals, so this rule change will not affect certificated administrators. 

For highly compensated employees subject to the FLSA, the salary threshold is going up to $132,964 on July 1, 2024, and then up to $151.164.  It is likely some employees formerly covered by this exception may no longer meet the salary threshold.   Even if those employees still meet the requirements for exemption under the highly compensated employee test, the salary threshold to be eligible for the exemption must be met.  If this is no longer the case due to the increases planned to the salary threshold, it is well possible these employees could qualify using the EAP exception. 

Actions to take now:

Survey the salaries of nonteaching administrative employees to determine if any might fall below the new salary thresholds.  Employees that may be affected by this change include supervisors and directors such as technology directors, transportation and cafeteria supervisors, facilities managers, and other similar positions.

If the new salary threshold exceeds a nonteaching administrative employee’s current annual salary, school districts may need to adjust upwards or recognize these employees are eligible for overtime pay.  This means the employees would need to keep track of their time.  Consult with Ennis Britton to review specific situations.