by Erin Wessendorf-Wortman | Jun 30, 2014 | General, Labor and Employment
In a 5-4 decision, the U.S. Supreme Court ruled today that partial-public employees could not be required to pay fair-share fees when the only reason the partial-public employees were deemed to be “public” employees was solely for union formation and collection of dues. The case arose out of Illinois, where lawmakers classified home health care workers, paid by federal Medicaid dollars, as State employees. The home health care workers were then required to pay dues/fair-share fees to the Service Employees International Union. SEIU was the exclusive union to bargain with Illinois over wages, hours, working conditions, and other terms and conditions of employment.
However, and key to the Court’s decision in this case, the home health care workers were controlled by the customers they served, not the State of Illinois. The job duties of the home health care workers were set by customers and the customers’ physicians. Customers have complete discretion in hiring any home health care worker meeting the State’s criteria and qualifications. Customers control all supervision and evaluation(s) of the home health care workers, and the State has no power to enter a customer’s home to evaluate job performance. The customer had the sole authority of discharge of the home health care workers; the State could not discharge a home health care worker from a customer’s home for substandard performance.
In relying on the terms of their employment, the Court found the home health care workers to be partial-public employees, and therefore, different than public-school teachers or police officers who work directly for the government or a political subdivision. Because states often set wages for partial-public employees, like home health care workers, and because unions often do not conduct collective bargaining for them, the Court determined that the home health care workers could not be required to pay union fees.
The Court found that, except in the exceptional circumstances, “no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”
For the full opinion click here.
by Erin Wessendorf-Wortman | Jun 25, 2014 | Student Education and Discipline
The U.S. Supreme Court issued an opinion on two cases on June 25, 2014, which prohibits law enforcement from searching the contents of cell phones without warrants. Riley v. California, 573 U.S. _____ (2014); U.S. v. Wurie, 573 U.S. _____ (2014). In these cases, police officers did not have probable cause to search the individuals’ cell phones, but instead relied on the exception law enforcement has of a search incident a lawful arrest. This exception allows police officers to conduct a search of a person and area within his/her immediate control during an arrest for the safety and protection of law enforcement personnel and for the preservation of evidence.
However, when considering whether cell phones could be searched without a warrant utilizing the exception of a search incident to a lawful arrest, the Court focused on the prevalence of cell phones in modern society and the vast quantities of personal information stored on cell phones. The Court even indicated that cell phones “are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”
The Court found that the vast amount of personal information stored on cell phones, and the inherent privacy of that personal information, outweighed any of the government’s concerns for police officer safety or protection of data. It reasoned that digital data on a cell phone could not itself be used as a weapon to harm an arresting police officer or to effectuate the escape of the arrestee. Further, the Court indicated that any concern of data destruction, either through remote wiping or data encryption, could be alleviated through a police department’s own means of data recovery once a warrant was obtained. In the end, the Court indicated while “[p]rivacy comes at a cost”, cell phones are still capable of being searched, once warrants are appropriately acquired.
While these cases only apply to law enforcement officers, it will have an impact in school districts looking to involve their school resource officers in searches of students’ cell phones. School resource officers should not be searching students’ phones without warrants given this ruling from the U.S. Supreme Court. However, these cases do not impact how school administrators conduct investigations and searches related to school discipline. School districts are still held to a reasonableness standard when conducting searches of students: the search must be justified at inception and reasonable in scope.
If a school administrator believes that a student has violated school policy(ies) through utilizing his/her cell phone while on school campus, the school administrator may search the student’s cell phone for evidence of the violations. However, school administrators must use caution when searching a student’s phone. For example, a student simply possessing a cell phone on school property in violation of Board policy will not permit an administrator to search the student’s cell phone. If a student has a cell phone out in his/her lap during a test, this may permit an administrator to search the student’s phone for evidence of cheating in appropriate and reasonable areas of the phone. If evidence of a criminal violation is believed to be found on a student’s cell phone during an administrator’s search, the evidence should be turned over to the school resource officer after the search has been conducted.
by Erin Wessendorf-Wortman | Feb 11, 2014 | General, Labor and Employment
On February 10, 2014, the U.S. Department of the Treasury and the Internal Revenue Service gave businesses an extra year to comply with the Affordable Care Act’s employer mandate. Click for U.S. Treasury Press Release.
Effective immediately, businesses with 50-99 employees will not face penalties for failing to provide health care coverage until 2016. However, these businesses will have to provide the government with information regarding their employees’ health insurance plans.
Previously, businesses with 100+ employees needed to provide health care coverage by January 1, 2015 for at least 95% of full-time workers or face a penalty of $2,000 per full-time employee (minus the first 30 employees). Now, the administration has amended this requirement so that on January 1, 2015, businesses with 100+ employees must offer health care coverage to at least 70% of their full-time workers, or face a penalty. This percentage jumps back up to 95% on January 1, 2016.
by Erin Wessendorf-Wortman | Jan 20, 2014 | School Management
Even with the plethora of snow days in Ohio this month, it is officially 2014. A variety of items in health care and minimum wage have changed. Ensure your district is compliant with these regulation updates in health care and minimum wage.
As of January 1, 2014:
- Minimum wage was raised in Ohio to $7.95 per hour.
- Transitional reinsurance fee in effect under the Affordable Care Act (ACA). Health insurance issuers and self-funded group health plans need to pay fees for the first three years of operation of the health insurance exchanges.
- Individual health insurance mandate in effect. (Remember the IRS moved the ACA’s employer mandate to January 1, 2015.)
- New rules for applying annual limits and preventative care to defined contribution health care plans in effect, including HRAs, health flexible spending arrangements, and employer payment plans.
- New rules regarding outcome-based wellness program incentives in effect.
- Health plan design requirements in effect under the ACA. Health plans cannot place annual limits on essential health benefits; impose pre-existing condition exclusions on enrollees; or impose a waiting period more than 90 days.
- HSA employee contribution limits are $3,300 for self-only coverage, and $6,550 for family coverage.
- FSA employee contributions remain unchanged at $2,500, but the new FSA rule dropping the “use it or lose it” takes effect. This permits employees to carryover up to $500 of their unused account balances from the previous year, or have until March to spend last year’s money, with prior employer approval.
by Erin Wessendorf-Wortman | Jan 10, 2014 | Board Policy & Representation, General, Labor and Employment, School Management
The State Employment Relations Board (SERB) upheld the clear and unambiguous language of R.C. §3319.111, holding that school districts may implement a new teacher evaluation policy in line with OTES without negotiating with their teachers association when the applicable collective bargaining agreement naturally expires.
The Parma Education Association filed an unfair labor practice charge against the Parma City School District Board of Education alleging that the Board of Education violated the collective bargaining agreement and collective bargaining laws when the Board of Education unilaterally implemented a new teacher evaluation procedure while the parties were in negotiations for a successor collective bargaining agreement and the current agreement had expired.
SERB indicated that school districts are not typically allowed to make changes to the terms and conditions of employment during negotiations of an expired collective bargaining agreement. However, if laws specifically indicate that they supersede the collective bargaining rights outlined in Chapter 4117 of the Revised Code, then a school district may follow the specifics of the law. In this case, R.C. §3319.111 specifically states that teacher evaluation procedures supersede Chapter 4117 of the Revised Code and any conflicting terms of a collective bargaining agreement when the existing collective bargaining agreement naturally expires.
The Board of Education did not violate the rights of the Parma Education Association. The Board of Education acted within its legal rights when it unilaterally implemented its teacher evaluation policy and procedures once its current collective bargaining expired, even though it was negotiating a successor collective bargaining agreement.
SERB’s decision appears obvious based on the clear, unambiguous language of the statute, but this decision is important to highlight the management rights given to boards of education in establishing teacher evaluation policies and procedures through the House Bill 153 and Senate Bill 316 changes to R.C. §3319.111.
