by Jeremy Neff | Jun 2, 2016 | Labor and Employment, Legislation
Effective December 1, 2016, “white collar” salaried employees not otherwise exempted from the overtime rules in the Fair Labor Standards Act (FLSA) will be eligible for overtime pay if their annual salary is less than $47,476. President Obama asked the Department of Labor to revise the exemption threshold of the FLSA from the current level of $23,660, which has not changed for more than a decade. The new amount more than doubles the current salary threshold.
Broad exemptions from FLSA overtime rules exist for executive, administrative, professional, outside sales, and computer employees. These exemptions are based on specific job duties as well as salary thresholds. In other words, an employee might have the duties of an administrator but not be exempt from overtime rules because her salary does not exceed the income threshold.
When this new rule takes effect, employers will have several options for employees who will no longer be exempt from the FLSA overtime rules:
- Pay time-and-a-half for overtime (granting compensatory time may be an option created through collective bargaining)
- Increase salaries above the threshold via regular pay or bonus pay with certain restrictions
- Limit workers’ hours to 40 per week
- Decrease base hourly pay to offset any increased overtime costs
- Combine any of the above options
What This Means to Your School District
Common positions of concern in school districts include technology directors, food service supervisors, maintenance supervisors, and transportation supervisors. Even though these positions might previously have qualified for the administrative exemption, with the increased salary threshold many will no longer be exempt after the revised rules go into effect. The FLSA provides a special exemption from the professional employee salary threshold for teachers. Even if a teacher does not meet the new $47,476 threshold – and many will not – the rules still exempt them from overtime. A similar special rule applies to “academic administrative employees” as long as they are paid at least base teacher pay.
School districts may potentially have professional employees who do not neatly fit into the “teacher” and “academic administrative employee” categories. Ennis Britton attorneys are able to assist districts in identifying such employees and exploring how the new rules affect them.
School districts must track eligible employees’ hours and pay overtime as appropriate. Districts should maintain proper payroll records and require that employees submit time records. The burden is on employers to ensure FLSA compliance. Laws limiting salary reductions for school employees must be considered when planning for the new rules. Ennis Britton attorneys are available to help with any questions regarding these changes, such as which employees are affected by this change, how to maintain payroll records, and how job descriptions and the duties test apply.
by Jeremy Neff | Dec 22, 2014 | General, Student Education and Discipline
The U.S. Supreme Court recently heard arguments in a case regarding the extent of Constitutional protection of speech on social media. In United States v. Elonis, Elonis wrote graphic lyrics on Facebook which involved killing his estranged wife, law enforcement, and school students. Elonis is the Supreme Court’s first freedom of speech case involving cyber speech.
The issue before the Court is whether “conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant’s subjective intent to threaten” or whether “it is enough to show that a ‘reasonable person’ would regard the statement as threatening.” Basically, under this “threat” statute, does is matter whether Elonis intended to cause fear or whether a reasonable person would consider his postings a threat?
To get an understanding of the context of this case, the following excerpts provide a brief glimpse into the speech that Elonis posted on Facebook:
“There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.“
“Little agent lady stood so close. Took all the strength I had not to turn the b–ch ghost. Pull my knife, flick my wrist, and slit her throat. Leave her bleedin’ from her jugular in the arms of her partner.”
“Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined. And hell hath no fury like a crazy man in a kindergarten class.”
(In order to avoid complications with school internet filters, this blog post avoids the more profanity-laced postings of Elonis and censors a word that was spelled out in his original posting.)
Elonis argued that, under the applicable statute, the government must prove that the speaker intended the speech to be threatening. His argument centered on the protections offered under the First Amendment. In making this argument, he tried to relate his speech to the speech of famous rap artists, who are typically provided First Amendment protections despite the fact that they often express violent and threatening messages. On the other side, the government argued that the standard under the statute should be a reasonable person standard, requiring only that a reasonable person would consider the speech to be threatening.
The questions from the Supreme Court justices addressed both sides of the issue during oral arguments. Some of their questions included the following:
Justice Ruth Bader Ginsburg asked Elonis’s attorney about how the government would prove whether a particular threat, “in the mind of the threatener[,] was genuine?”
Chief Justice John Roberts questioned the government’s attorney on its interpretation of a “reasonable person.” He used the example of teenagers making a threat while playing a video game and questioned He then expressed concerns over the reasonable person standard being applied consistently with the same speech.
Justice Elena Kagan took a middle ground proposing a “reckless standard,” meaning a prosecutor would need to show only that the speaker should have known there was a substantial probability that the speech would cause fear, even if the speaker did not intent to threaten the listener. This standard would provide more protections for speech than the “reasonable person” standard, but it would not require the government to determine the speaker’s subjective intent.
It will be several weeks or months before the Supreme Court issues its highly anticipated decision in this case. Despite the fact that this case focuses on the interpretation of a specific threat statute, it will give insight into the justice’s views on freedom of speech in the context of online speech. In the absence of any significant appellate case law governing Ohio schools, the Elonis decision will provide some guidance to schools as they determine how to address student cyber speech.
United States v. Elonis, 730 F.3d 321 (3rd Cir. 2013), cert. granted, 134 S.Ct. 2819 (2014).
by Jeremy Neff | Jun 2, 2014 | Board Policy & Representation, Student Education and Discipline
As school children prepare for summer break, school administrators begin turning their attention to long-term projects that are deferred during the regular school year. Consider adding a review of your student disciplinary code to your summer to do list.
In January, the Office for Civil Rights (OCR) and the Department of Justice issued joint guidance regarding discipline and racial discrimination. Following that guidance, various disability advocacy groups pointed to disparities in discipline of disabled students as another problem area.
While intentional discrimination in schools is rare, disparate impact is almost universal. In the vast majority of school districts a greater percentage of expulsions and suspensions are imposed on minority and disabled students (relative to their percentage of the student body). OCR investigations related to this are on the rise, and a common issue being identified is that vague disciplinary codes make it hard to do apples-to-apples comparisons of discipline outcomes.
For example, Student A and Student B fight each other, but Student A gets 5 days suspension while Student B is suspended 10 days with a recommendation for expulsion. Both violated the same rule that prohibits “fighting.” On paper this looks problematic. Only by reviewing administrator narratives, or by OCR coming onsite to conduct interviews, does the explanation become clear: Student A stopped fighting immediately when directed by an administrator, while Student B cursed at and struck an administrator.
Consider refining your code of conduct to more precisely account for common scenarios such as the above. For example, “fighting” might be broken up into “fighting, ceased immediately upon directive” and “fighting, failed to cease immediately upon directive.” Likewise, “disruption” might be broken up into “disruption, verbal outburst,” “disruption, physical outburst,” etc. Upon inspection of your code of conduct and discipline records you will likely identify other rules that are too broad to capture important details of misconduct.
By making your code of conduct more precise, you will make it easier to explain differences in disciplinary outcomes. This is especially important when OCR is investigating disparate impact claims. This is a case where an ounce of prevention is worth much more than a pound of cure.
Please contact an ERF attorney for assistance with reviewing student codes of conduct and other disciplinary matters.
by Jeremy Neff | Dec 30, 2013 | Special Education, Student Education and Discipline
It is probably not high on your list of New Year’s Resolution priorities, but special education staff at Ohio public schools should add this one: Send even more prior written notice forms.
For over a year, the Ohio Department of Education (ODE) had been floating the idea of changing the Individuals with Disabilities Education Act (IDEA) requirements regarding prior written notice (PWN) when parents agree with the Individualized Education Program (IEP) developed during an annual review meeting and the IEP involves a change in placement. State regulations in effect over the past several years did not require formal PWN on the PR-01 form in this circumstance. Rather, the IEP document itself served as PWN. On December 20, 2013 ODE announced an immediate change requiring PWN on the PR-01 form to be sent for all IEPs that involve a change of placement (including those that have parental consent).
Presumably the thinking behind the prior interpretation was that there is no need to send a notice to a parent informing her that the IEP she just agreed to is going to be implemented. It appears that the change in interpretation is to align with federal regulations that require PWN whenever a change in placement is proposed. There is an ongoing review of Ohio’s IDEA regulations, and once finalized the new regulations will incorporate this change. However, ODE has been clear that it will immediately be enforcing the change. Whether slight changes in IEP services constitute a change of placement is not always clear. Given this new requirement, it is best to err on the side of caution by sending too many PR-01 instead of too few.
ERF encourages school districts to take steps to minimize potential misunderstandings regarding PWN. The PR-01 form can be intimidating, and some parents mistakenly think it means a district is attempting to harass or provoke them. Some of the potential fallout of the decision to require even more PR-01 can be avoided by discussing PWN, the PR-01 form, and when they are required with parents prior to needing to use them in relation to an IEP. For example, a district could make it a practice to show a blank PR-01 form to a parent at the time a child is initially identified and to explain the purpose and requirements for the use of the form.
We have often said that PWN cannot be sent too often. With this new interpretation ODE has brought new meaning to that advice. Please contact a member of ERF’s Special Education Team with questions about this new requirement.
by Jeremy Neff | Dec 23, 2013 | General, Special Education, Student Education and Discipline
The federal Office for Civil Rights (OCR) issued a “Dear Colleague Letter” on January 25, 2013, that seemed to require school districts to offer alternative sports options for children with disabilities. OCR is charged with enforcing Section 504, among other laws. The letter suggested that wheelchair basketball, for example, might need to be offered when a wheelchair-bound child cannot be accommodated in the existing basketball program. Controversy ensued, and ERF advised clients that there is no requirement to create new activities to provide opportunities for those who cannot be reasonably accommodated in existing activities. This month OCR issued a letter that confirms ERF’s earlier advice. OCR’s letter explains that it does not believe that Section 504 requires the creation of new activities for children with disabilities (essentially rescinding its earlier guidance).
In its earlier letter, OCR wrote that:
“Students with disabilities who cannot participate in the school district’s existing extracurricular athletics program – even with reasonable modifications or aids and services – should still have an equal opportunity to receive the benefits of extracurricular athletics. When the interests and abilities of some students with disabilities cannot be as fully and effectively met by the school district’s existing extracurricular athletic program, the school district should create additional opportunities for those students with disabilities.
“In those circumstances, a school district should offer students with disabilities opportunities for athletic activities that are separate or different from those offered to students without disabilities. These athletic opportunities provided by school districts should be supported equally, as with a school district’s other athletic activities.”
It went on to explain that when there are not sufficient wheelchair bound athletes to support an activity a district could work with other districts to form a joint team, form co-ed teams, or encourage non-disabled students to participate. Beyond the logistics and time required by this mandate, districts were alarmed by the cost of funding new programs even as they are being forced to cut funding for existing programming.
With its recent letter OCR unequivocally steps back from the requirements set forth in its prior letter. It writes that while a district might choose to create new programs for children with disabilities, “it is not OCR’s view that a school district is required to do so.” Pressure from school districts and the organizations that work for and support them clearly had a significant role in forcing OCR to rethink its earlier letter. In fact, the letter earlier this month was in response to a request by the National School Boards Association for clarification. The new letter is being reported here not only because it puts to rest any notion that districts must create separate sports for children with disabilities, but also because it shows that school districts can effectively lobby for change. At a time of unprecedented new requirements and unfunded mandates this is an important lesson.
Both OCR letters on extracurricular activities are also a good reminder about the importance and scope of Section 504. This law is meant to “level the playing field” for children with disabilities. It applies to a broad range of disabilities – far more than those covered by IDEA. It also applies to all services, activities, and benefits offered by a school district. Regarding extracurricular activities, a qualified child with a disability has a right to reasonable accommodations to allow the child to try out for and participate in sports. Precisely what this means depends on the facts of each case, but suffice it to say that schools need to be creative about developing, and committed to providing, equal opportunities to children with disabilities both in the classroom and on the playing field. Please contact a member of our Special Education Practice Team for assistance in complying with Section 504.
