by Gary Stedronsky | Nov 29, 2016 | General
A federal judge in Texas has granted a nationwide temporary injunction in response to a lawsuit filed by 21 states, including Ohio, to challenge the new Fair Labor Standards Act (FLSA) overtime rule. The court agreed with the plaintiff states that the new rule could cause irreparable harm if it was not stopped before it was scheduled to go into effect on December 1, 2016, saying that the Department of Labor (DOL) exceeded the authority it was delegated by Congress in issuing this overtime rule.
Under the new overtime rule, “white collar” salaried employees not otherwise exempt from overtime pay would be eligible for overtime pay if their weekly salary is less than $913, which equals $47,476 when calculated on an annual basis – doubling the previous salary threshold.
Although application of the new rules has been stayed, school districts should continue to track eligible employees’ hours and maintain meticulous payroll records. They should also require that employees submit time records.
Districts should be mindful that the new rule would affect only the salary threshold component of the overtime-exemption test – a two-part test that requires that employees meet the salary threshold as well as perform duties that are exempt under FLSA. Therefore, employees who meet the lower salary threshold ($23,660 annually) must also perform exempt duties for the overtime exemption to apply. Employees who perform nonexempt job duties are eligible for overtime regardless of their salary.
Ennis Britton attorneys are available to help with any questions regarding the overtime rule, the injunction, which employees are affected, how to maintain payroll records, and how the two-part salary–duties test applies.
by Gary Stedronsky | Mar 30, 2016 | General
Senate Bill 297 was proposed by Senator Jim Hughes on March 21, 2016. This Bill seeks to amend Ohio’s student discipline statutes to address threats of violence made by students.
The proposed Bill would allow a board of education to adopt a resolution to permit a superintendent to expel a student for up to 60 days for “communicating a threat to kill or do physical harm to persons or property” if all of the following conditions are met:
- The threat is communicated verbally or in writing, in person or via telephone, computer, or with another electronic communication device; and
- The threat is made against persons or property at a school, on a bus, at an athletic competition, extracurricular event, other program or activity sponsored by the school district or in which the district participates, or at any other property controlled by the board of education; and
- The student engaged in “conduct that constitutes a substantial step in a course intended to culminate in the commission of the threatened act, as determined by the superintendent in consultation” with law enforcement.
As a condition to reinstatement from expulsion, the board of education can require the student to undergo an assessment to determine whether the student poses a danger to himself/herself or to others. The superintendent may extend the expulsion for not more than one calendar year if the student fails to undergo the assessment.
A student expelled under this Bill can only be reinstated if the superintendent determines that the student has shown sufficient rehabilitation.
Another provision in this Bill allows a board of education or law enforcement agency to file a civil action seeking recovery for restitution from the parent, guardian, or custodian of a student who is expelled under this Bill. Restitution sought is for the costs of the school district or law enforcement agency that are incurred with the student’s conduct that gave rise to the expulsion.
This Bill was just recently introduced and must make its way through the legislative process before it becomes law. We will continue to keep our clients updated on its status.
by Gary Stedronsky | Jan 12, 2016 | Labor and Employment, School Management
The U.S. Supreme Court heard oral arguments on January 11th in an important case that could eliminate union “fair share fees” and make every state in the country a “right to work” state.
The case was initially filed in California and involves a group of teachers who decided not to join the teachers’ union. It is interesting to note that the case has almost no factual record. This is because the teachers admitted that the lower courts did not have the authority to decide in their favor in light of the U.S. Supreme Court’s 1977 decision in Abood v. Detroit Board of Education, 431 U.S. 209 (1977). They requested that the lower courts rule against them so the case could be presented directly to the Supreme Court.
It was somewhat surprising that the Supreme Court even agreed to hear the appeal because it previously approved fair share fees in the Abood decision. We thought this might be an indication of the Court’s willingness to overturn its Abood decision and prohibit mandatory fair share fees. Our initial thinking was further bolstered yesterday by the tough questions posed by the Court to the union at oral argument. For instance, Justice Kennedy, who often serves as a swing vote, said:
“The union basically is making these teachers compelled riders for issues on which they strongly disagree. Many teachers think that they are devoted to the future of America, to the future of our young people, and that the union is equally devoted to that, but that the union is absolutely wrong in some of its positions. And agency fees require, as I understand it, correct me if I’m wrong, agency fees require that employees and teachers who disagree with those positions must nevertheless subsidize the union on these very points.”
Ohio law (R.C. 4117.09) permits fair share fees if the public employer and union have agreed in a collective bargaining agreement to require fair share fees as a condition of employment. A ruling in this case against the union will have huge implications for Ohio’s public sector unions. If the Court rules in the favor of the non-union teachers, it would declare that it is unconstitutional for a state to allow public sector unions to charge a mandatory fair share fee to non-members. This would likely mean that non-members could not be forced to pay a fair share fee if they do not agree to pay the fee, which would obviously have a negative impact on the revenue of unions and could lead to more resentment from union members against non-members (or so-called “free riders” as they are often referred to).
A decision in this case is expected later this summer. We will continue to monitor any developments and will update our clients as soon as the decision is announced.
Friedrichs v. California Teachers Association (Case No. 14-915).
UPDATE:
The U.S. Supreme Court announced on March 29th, 2016 that it was deadlocked with a 4-4 decision on a case brought before it to challenge the practice of public employer unions collecting fair share fees.
Initially filed in California by a group of teachers who decided not to join the union, the case served as a direct challenge to a well-recognized U.S. Supreme Court decision from 1977, Abood v. Detroit Board of Edn., which declared fair share fees legal.
Many interpreted the Supreme Court’s decision to hear the case as an indication that Abood may be overruled given the Court’s more conservative composition. However, the death of Antonin Scalia, who presumably would have provided the swing vote to overturn Abood, passed away before the decision was rendered.
A split decision in this case means that, at least for now, Abood remains good law and the practice of fair share fees will continue. This is a decisive victory for unions across the nation, although representatives from both sides have indicated that they may request a rehearing on the matter.
by Gary Stedronsky | Feb 3, 2015 | School Finance
With the Ohio economy rebounding, we are beginning to see more and more property tax incentives being offered to businesses by local governments. Ohio’s school districts play a crucial role in a local government’s ability to offer these incentives. Below is a quick reference guide to the most common types of property tax incentives. We’ve also specified when board of education approval is required prior to an incentive being awarded by a local government. Understanding this is very important because boards of education can request to be compensated for lost tax revenue in exchange for approving an incentive. In many cases, we are able to negotiate a deal with a local government or business where a board of education realizes no loss in revenue at all.
Tax Increment Financing (TIF)
- Local governments use this inventive to finance public infrastructure improvements that benefit private development
- Exemption Term – Up to 100% for 30 years
- BOE Approval Required – if more than 75% is exempted and more than 10 years
Enterprise Zone Agreement (EZA)
- Designated zones within a governmental jurisdiction where businesses receive tax exemptions on eligible new investments
- Exemption Term – Up to 100% for 30 years
- City Provided Incentive
- BOE Approval Required – if more than 75% is exempted and more than 10 Years
- County/Township Provided Incentive
- BOE Approval Required – if more than 60% is exempted and more than 10 years
Community Reinvestment Area (CRA)
- Allows property owners (primarily residential property) within certain areas where investment has been discouraged to receive tax exemptions for investing in real property improvements
- Exemption Term – Up to 100% for 10-15 Years depending on type of remodeling or construction
- CRA Created Before July 1, 1994
- BOE has no approval authority
- CRA Created After July 1, 1994
- Commercial & Industrial Property
- BOE Approval Required – if more than 50% is exempted
- Residential Property
- BOE has no approval authority
For more information, please contact Gary T. Stedronsky at 513-421-2540 or at gstedronsky@erflegal.com
by Gary Stedronsky | Aug 29, 2014 | General
As students pack their book-bags and return to school, it’s important to keep in mind the law governing their entrance through your doors. In order to accommodate the registration process, schools much comply with the legal requirements of Ohio Revised Code 3313.64.
Ohio law requires that districts allow school age children to attend their district of residence free of charge. In general, residence for school purposes is determined using the residence of the child’s parent. Parent can mean either natural or adoptive parents, unless the parents are separated, divorced, or their marriage has been dissolved or annulled. Due to the complex nature of the family structure, there are several general guidelines to use when determining whether a child’s parent resides in the district.
Determining Residency when parents are separated and living in difference school districts:
- When parents are divorced, the term parent means either the parent who is the residential parent or the parent awarded custody in the action for divorce.
- In the case of shared parenting, unless a court specifically orders otherwise, both parents are considered parents for residential purposes; therefore, the child can attend either school district tuition free.
- If a child’s parents were never married, there is conflicting law, but it is generally best to consider the natural mother the parent for residency purposes.
Determining Residency when a child lives with persons other than the child’s parents:
- Under the Grandparent Caretaker law, grandparents may also acquire the legal status of parent for residency purposes when the child’s parents cannot be located or have lost parental rights and the grandparent provides a power of attorney signed by a parent, or a caretaker authorization affidavit (in such cases where parents cannot be located).
- When a child is in the legal custody of a governmental agency, the term parent means the parent who has residual parental rights or who has been divested of residual parental rights.
Determining Residency with Property Issues:
- If a child resides on property that straddles two school districts along a boundary line, residency is determined based on the location of the house of residence.
- The Superintendent of Public Instruction serves as the decision maker in any case of dispute and is given the task of analyzing the following: (1) where the parent sleeps the majority of the time, (2) where mail is received, (3) where meals are eaten, (4) the address of voter registration, (5) the address for bills or credit card statements, (6) the address of lease agreements, and (7) information in affidavits from the landlord, neighbors, or parent (to prove fraud).
Mandatory Exceptions to Residency Requirements, which allows a student to attend school in a district other than where the student’s parent resides:
- Student is between age 18-22, lives in the district apart from his parents, supports himself by his own labor, and has not successfully completed high school or the IEP developed for him.
- Student is under 18, married, and resides in the district.
- Student has been placed with a resident of the district for adoption and his parents reside outside Ohio.
- Student has a medical condition which may require emergency medical treatment and one of his parents is employed at a location within the school district.
- Student is residing in the district with a person other than his parent while his parent is serving in the armed forces outside of Ohio—Limited to a 12-month period.
- Student’s parent is having a “new” house built in the district—Limited to 90 days.
- Student’s parent is purchasing a house in the district—Limited to 90 days.
- Student is living in the district with a parent and is under the care of a shelter for victims of domestic violence.
- A power of attorney has been properly executed by a parent, guardian or other legal custodian under the provisions of the Grandparent Caretaker Law, the child resides within the district, and hardship is established. (discussed above)
- Child’s parent is a member of National Guard or reserve unit of armed forces and has been called to active duty or the child’s parent is a member of the armed forces and has been ordered to a temporary duty assignment outside the district.
- Child is living with a person who has been appointed to be the child’s caretaker under a military power of attorney or other comparable document in conformity with federal law while the parent is on active duty or a duty assignment outside the district.
- The district has adopted an inter-district open enrollment policy.
Residency decisions can be difficult because every situation is slightly different. To help resolve ambiguity, the law requires any parent awarded custody in an action for divorce, annulment, or dissolution to notify the child’s school of the custody arrangements by providing the school with a certified copy of the custody order at the time of enrollment or upon issuance of an arrangement. Thus, schools do not have a duty to investigate the details of court orders concerning parental rights.
When concerns about residency occur, a school district can use an SRO (or any other employee) to investigate residency or confirm residence. When completing an investigation into residency, school districts should be able to show that they have conducted a reasonable investigation to justify their decision. However, be careful with how this interacts with homelessness rules — you don’t want to appear to be intimidating the homeless from exercising their rights.
The mandatory exceptions to residency requirements listed above may allow the district to request documentation or limit duration. In addition to these mandatory exceptions, the law permits certain optional exceptions to residency requirements. For more information about a specific residency requirement or exception, please contact your attorney.
