On September 13, the Federal Bureau of Investigation (FBI) issued a public service alert to raise awareness of cybersecurity concerns for K–12 students. While education technologies have helped to engage community involvement and improve the educational environment, security risks lurk beneath the surface. Large amounts of student data are collected and stored online, and this data is at risk of compromise or exploitation if not stored securely enough to escape hackers.
Education technologies include software programs and online apps used in classrooms, mobile apps to enhance the learning experience, administrative platforms that assist educators and administrators with class and school management, and others. At-risk data collected by ed-tech can include students’ personally identifiable information, behavioral and disciplinary information, academic records, biometric data, geolocation, and more. The FBI warned that malicious use of this data can lead to social engineering – using deception to manipulate people into disclosing confidential or personal information – identity theft, bullying, tracking, and other means of targeting children.
School Security Hacks in 2017
The FBI’s alert included reports of two serious security breaches in 2017. In the first, multiple school districts’ servers across the country were hacked, giving the hackers access to student contact information, education plans, medical records, and counselor reports. This information was then used to contact, extort, and threaten students with physical violence and release of their information. Parents received text messages, and students’ private information was publicized and posted on social media, giving child predators access to new targets.
Additionally, two large ed-tech companies were breached in 2017, resulting in public access to the data of millions of students. One of the companies had stored their data on public-facing servers, and breached data from the other company was posted for sale on the dark web.
The FBI recommends that parents be aware of student privacy requirements, discuss ed-tech with their local school districts, conduct research for support and additional resources, research security breaches to inform of vulnerabilities, consider monitoring credit for identity theft, and conduct regular internet searches on their children.
Issues for Schools
Always at the bottom line, additional security costs additional money. Schools that face budget decisions and scarce resources for internet security may prioritize value-added expenditures over those with no visible benefit, such as cyber security.
School District Legal Requirements
School districts should know and consider legal requirements when adopting ed-tech resources and considering the importance of cyber security.
The Family Education Rights and Privacy Act (20 U.S.C. § 1232(g); 34 CFR Part 99) as well as state law (R.C. § 3319.321) and board policy place stringent restrictions on how “student records” must be maintained and protected. Board records retention schedules require districts to maintain certain types of records for years, if not permanently. Staff should be trained to understand what constitutes an education record as well as state and federal laws and board policy that limit release and maintenance of student records.
The Children’s Online Privacy Protection Act (15 U.S.C. § 6501–6506; 16 CFR Part 312) imposes requirements on operators of websites, internet services, and apps directed to children under age 13 and on operators that have actual knowledge that they are collecting personal information online from a child under age 13. The purpose is to give parents control over their children’s information that is collected online by seeking parental consent. Schools that contract with third-party websites or apps solely for the benefit of students can consent to data collection and the use or disclosure of students’ personal information by acting as an agent on the parents’ behalf. Such consent is restricted to educational purposes only. Additionally, at the school’s request, the operator must provide a description of the types of personal information collected, the opportunity to review the child’s personal information and/or have the information deleted, and the opportunity to prevent further use or online collection of a student’s personal information.
Tasked with enforcing COPPA, the Federal Trade Commission recommends that schools or districts – not teachers – decide whether a provider’s information practices are appropriate. Districts should have a centralized process to assess these practices. The FTC cautions that schools should know how student information is collected, used, and disclosed. Districts should also ensure that these operators appropriately protect the security, confidentiality, and integrity of student information and should understand the operator’s data retention and deletion policies.
The Protection of Pupil Rights Amendment (20 U.S.C. § 1232h; 34 CFR Part 98) requires that districts adopt policies and provide direct notification to parents at least annually regarding the specific or approximate dates of activities involving the collection, disclosure, or use of students’ personal information for the purpose of marketing or selling that information (or otherwise providing the information to others for that purpose), as well as the parents’ right to opt out of these measures.
Ohio’s Sixth District Court of Appeals, in a case arising in Erie County, Ohio, upheld the denial of public records requests for all emails from certain elected county officials to other county employees over the span of a month. The requester asked for the following:
all emails sent and received by Wilson and one of her employees from September 3 to October 3, 2017; all emails sent and received by Sigsworth and one of his employees from September 3 to October 3, 2017; all emails sent and received by Binette from September 3 to October 3, 2017; the personnel files for Baxter and two of his employees; all emails sent and received by Tone from September 3 to October 3, 2017; and all emails sent and received by Baxter and 12 of his employees from October 13 to November 13, 2017.
The court addressed each of the requests in turn. The court found that all of the requests for emails were overly broad because the Public Records Act does not entitle anyone to a complete duplication of the files of a public office. Even though the Public Records Act is to be construed liberally and in favor of the person making the request, the duty of the person requesting records is to clearly identify the particular records they are seeking. This is so even when, as in this case, the time period for the records (one month) is relatively short.
People who are seeking public records often take an approach that is similar to litigation discovery – broadly requesting “any and all” documents related to a topic or “all communications” with a person or group of people. This is the wrong approach, as the Public Records Act requires identification of the specific records being sought with “reasonable clarity.”
The request for the personnel files was ultimately fulfilled and was noted by the court as a moot issue.
While this case certainly advances one’s understanding of an overly broad request, keep in mind that no bright-line rule exists. The content and context of each request must be considered. A request is not automatically invalid because it seeks an entire month’s worth of records or even records going back several years. Here the requester was denied based on not the time period of the records but rather the broadness of the request, which made it difficult for the public office to identify with reasonable clarity the records that were being sought. The personnel file, on the other hand, is a specific, identified item and in most cases would not be considered an overly broad request.
– State ex rel. Bristow v. Wilson, 2018-Ohio-1973.
Ohio’s Tenth District Court of Appeals recently overturned a decision of the Ohio Court of Claims in a case alleging gender discrimination. The Court of Claims had rendered summary judgment in favor of the employer, the Ohio Department of Transportation (ODOT), but the Court of Appeals found that the trial court overstepped its authority in making that decision. The Court of Appeals sent the case back to the Court of Claims, presumably for either trial or settlement.
The plaintiff, a truck driver named Anne Eschborn, was the only female employee at her assigned post. She was terminated from employment and was told the reason was lack of work. However, she later received a letter stating that she had been terminated for poor performance, for using foul language, and for sexual harassment. She admitted to using foul language in a few instances at work and that these were sexual in nature.
At the outset, the appellate court noted the legal standard in discrimination cases in Ohio. The analysis, often cited as the “McDonnell Douglas burden shifting,” goes as follows: If a plaintiff establishes a prima facie case of discrimination, the burden shifts to the employer to prove that the employer had a legitimate, nondiscriminatory reason for the adverse employment action. If the employer does so, the burden of proof shifts back to the plaintiff, who then must prove that the employer’s reasons are merely a pretext for discrimination.
A plaintiff can establish a prima facie case either directly or indirectly. Directly, a plaintiff may present evidence of any nature to show that the adverse employment action taken by the employer was more likely than not motivated by discriminatory intent. Indirectly, a plaintiff may show that “(1) he or she was a member of a statutorily protected class; (2) he or she was subjected to an adverse employment action; (3) he or she was qualified for the position; and (4) he or she was replaced by, or that the removal permitted the retention of, a person not belonging to the protected class.”
The Court of Claims found that Eschborn failed to present a prima facie case of discrimination. The Court of Claims determined that Eschborn could satisfy the first three elements of her prima facie case but could not satisfy the last element because the evidence was insufficient to support the conclusion that a person outside of the protected class replaced her or that other comparable, nonprotected persons were treated more favorably.
The evidence showed that ODOT assigned another employee to the post that Eschborn occupied prior to her termination. The trial court held that the evidence merely established a redistribution of work, not a replacement (with someone outside of the protected class). Therefore, the Court of Claims granted summary judgment to ODOT.
Summary judgment is a device used to terminate litigation before trial. It is granted sparingly because of the difficult burden of proof. In order to be granted summary judgment, a party must show that no dispute exists regarding all of the facts and evidence in the record, and that reasonable minds could come to only one conclusion, against the other party.
Generally, in a civil trial, the jury decides what the facts are, and the judge applies the law to those facts. The Court of Claims does not use juries, and so judges are the triers of fact. In this case, the plaintiff argued that the judge was making factual determinations that should have been left to a trier of fact.
Here, the issue is that no trial took place at which the judge could weigh the evidence presented to make a factual determination. Reasonable minds could differ on the meaning of the evidence about the replacement. Therefore, the two parties were in dispute of the facts, which is a genuine issue for a trial. If any genuine issues exist for the trier of fact to consider, a court cannot grant summary judgment. The Court of Appeals therefore agreed with the plaintiff, finding that the trial court had overstepped its authority in granting summary judgment. The Court of Appeals also pointed to evidence in the record that similar male employees were not disciplined for using foul language.
While this case is certainly better for law students studying summary judgment than for school administrators, the case facts contain some practical lessons regarding employment law, discrimination, and harassment. First, without the shifting explanations for termination, the employee’s claim of discrimination would likely not have been made. Employers must be clear in their communications to employees, especially communications of a disciplinary nature. Make sure that department heads and supervisors are on the same page regarding an employment matter before moving forward. Second, employers should keep in mind that discipline must be uniform among employees to prevent claims of better treatment of persons outside of a protected class. It is difficult for an employer to credibly state that foul language was a basis for termination, and not a pretext for discrimination, when other similar employees are not disciplined for similar behavior.
– Eschborn v. Dept. of Transp., 2018-Ohio-1808.
The General Assembly is currently considering three different Workers’ Compensation bills that may affect schools. These bills will most likely undergo changes during the deliberation process. The summary below describes the provisions of each of these bills as initially introduced. As of November 29, each bill has had two hearings in the House Insurance Committee. Stay tuned to Ennis Britton for updates on this and other legislation. Contact an Ennis Britton attorney if you have any questions regarding how these may affect your school district.
Requires the Administrator of Workers’ Compensation to waive a requirement that an employer have sufficient assets located in Ohio to qualify for self-insuring status if the employer holds a rating of B3 or higher according to Moody’s or a comparable rating from a similar agency. An employer that is granted self-insuring status through the waiver is subject to the same requirements that self-insuring employers are subject to under current law. This includes requirements to pay assessments based on the amount of the employer’s paid compensation as defined in continuing law and to provide a surety bond sufficient to pay claims, except that the employer must contribute to the Self-Insuring Employers’ Guaranty B Fund created under the bill (discussed below) instead of the Self-Insuring Employers’ Guaranty Fund (SIEGF) under current law.
Allows all self-insuring employers to purchase private workers’ compensation insurance to cover any workers’ compensation claim from an insurer that has an A.M. Best Financial Strength Rating of A or higher. Current law voids most contracts or agreements that indemnify or insure an employer against workers’ compensation claims. A self-insuring employer may, however, purchase an insurance policy that indemnifies against all or part of the employer’s loss in excess of $50,000 from a single disaster or event arising out of the employer’s workers’ compensation liability. But the insurer cannot, directly or indirectly, represent the employer in any settlement, adjudication, determination, allowance, or payment of workers’ compensation claims. The bill eliminates this prohibition.
Creates the Self-Insuring Employers’ Guaranty B Fund, which consists of contributions and other payments made by employers granted self-insuring status as a result of the waiver. The fund created under the bill secures compensation and benefits for employees of a self-insuring employer who is granted the waiver but who defaults on the obligation to make direct payments. The Administrator of the Bureau of Workers’ Compensation must establish a contribution amount each year and require every employer that is granted self-insuring status through the waiver to pay the established contribution to the fund. Contribution rates are to be as low as possible but must be sufficient to ensure enough money in the fund to guarantee the payment of any claims against the fund.
Requires employees who receive Temporary Total Disability (TTD) benefits to comply with a return-to-work plan. TTD is a wage loss benefit designed to compensate employees who are temporarily unable to perform the functions of their jobs due to a workplace injury. Employees receiving TTD essentially get two-thirds of their wages tax-free. This bill will require the BWC administrator to develop a return-to-work plan for each employee receiving TTD. The plan will have the goal of returning the employee fully to the former position of employment, to return the employee to the former position of employment on a part-time basis or on a full-time basis with modified duties, or retraining the employee to work in another position. The employees’ progress with the plan will be evaluated every 90 days. Evaluations will also determine whether the plan needs revision. If the administrator determines that the plan does not need to be revised and that the employee is not complying, TTD benefits may be suspended.
Employees in compliance with the plan will continue to receive TTD benefits until such benefits are terminated in accordance with law.
Incentivizes employers for participation in safety consultations and loss prevention programs. This provision will modify and enhance the incentives for employers to participate in safety and loss prevention training, including premium discounts and other measures.
Makes changes to Permanent Total Disability (PTD) and death benefits. PTD is a benefit designed to compensate employees who are totally disabled from working, on a permanent basis, due to a workplace injury. PTD benefits are paid for life to employees who cannot engage in any form of sustained remunerative employment using the employment skills that the employee has or may reasonably be expected to develop, and to employees who have lost multiple body parts or the use of multiple body parts.
Pursuant to the bill, employees who receive PTD benefits and who reach full retirement age will have their PTD replaced with Extended Benefit (EB) compensation. “Full retirement age” is defined as the age at which an employee is eligible for unreduced retirement benefit from a state retirement system (PERS, STRS, SERS, OPERS, etc.), or the age at which an employee reaches full retirement age for purposes of the Social Security Act. Employees who are at or within one year of full retirement age will receive PTD for two years before the benefit is converted to EB.
EB is paid as a percentage of the PTD benefit that the injured worker received prior to reaching full retirement age. For example, at least one year but less than two years of PTD will convert to an EB of 10 percent, whereas an employee with ten years or more of PTD will receive 100 percent. PTD is calculated by a formula that essentially works out to two-thirds of an employee’s wages, subject to certain caps and other rules. Employees who receive EB compensation will receive an annual 2 percent increase.
Additional death benefits are provided by the bill. In addition to the benefits under current law, the bill adds a $35,000 lump sum payment to be apportioned among dependents if there are more than one. The bill also provides for a $5,000 scholarship payable to dependents annually for up to four years. Dependents cannot receive the scholarship until they receive a high school diploma or GED.
Prohibits illegal and unauthorized aliens from receiving compensation and certain benefits. This bill adds to the definition of “employee” for purpose of workers’ compensation law. Under current law, employee is defined broadly as “every person in the service of any person, firm, or private corporation, including any public service corporation, that employs one or more persons regularly in the same business or in or about the same establishment under any contract of hire, express or implied, oral or written, including aliens.” This bill qualifies that definition to include only aliens authorized to work by the U.S. Department of Homeland Security.
Under the bill, “illegal alien” means an alien who is deportable if apprehended because of one of the following: (1) The alien entered the United States illegally without the proper authorization and documents. (2) The alien once entered the United States legally and has since violated the terms of the status under which the alien entered the United States, making that alien an “out of status” alien. (3) The alien once entered the United States legally but has overstayed the time limits of the original legal status.
The bill defines “unauthorized alien” as an alien who is not authorized to be employed as determined in accordance with the Immigration Reform and Control Act.
On November 29, the House Insurance Committee adopted an omnibus amendment from the sponsor of HB 380 and then voted to accept the bill.
The amendment eases some of the policies that were controversial and contentious for opponents of the bill, such as employee advocates. One of the main provisions in the amendment allows a U.S. citizen who is a dependent of an undocumented worker to receive a death benefit in the event of the worker’s death, equal to the amount entitled to the dependent of a U.S. citizen.
The amendment also adds language that creates a rebuttable presumption that a worker was hired with legal working status.
Next, the bill will go before the full House for a vote and is expected to pass with ease.
The Supreme Court of Ohio recently issued an opinion in a workers’ compensation case in which an employer was sued for disability payments even after the employee had quit and moved on to another job.
The employee, Norman James Jr., worked for Walmart at the time he was injured. The injury fractured a surgical screw in his neck from a prior surgery, and he was allowed some compensation for certain conditions related to that injury. He returned to work after being fully released by his doctor, and then he quit his job one-and-a-half years later. He briefly worked at Petco and then began working for Casper Service Automotive. After a few months he was fired from Casper for excessive absenteeism.
More than a year later, James filed a motion for temporary total disability (TTD) payments against Walmart – retroactive to the day after he was fired from Casper. Walmart contested the claim on the grounds that the medical evidence did not support an award and that James had voluntarily abandoned his job when he was fired for cause from Casper.
If an injured worker does not return to his or her former position of employment as a result of the worker’s own actions rather than the industrial injury, the worker is considered to have voluntarily abandoned his or her employment and is no longer eligible for TTD compensation. However, an injured worker who voluntarily abandons employment but reenters the workforce will be eligible to receive TTD compensation from the original employer if, due to the original industrial injury, the claimant becomes temporarily and totally disabled while working at the new job. Thus, James had the burden of proving that his termination from Casper for excessive absences was due to his industrial injury at Walmart.
The Industrial Commission ruled against James, finding that the medical evidence did not support his claim. The next month, James again filed a request for TTD. This time, the hearing officer ruled that the matter had already been adjudicated, that James had voluntarily abandoned his job at Casper, and that he was not employed by either Casper or Walmart when his alleged disability recurred.
James then filed a mandamus action in the court of appeals, challenging the Industrial Commission’s ruling. The magistrate affirmed the Industrial Commission’s ruling, and the employee filed objections. The court of appeals agreed that James had voluntarily abandoned his employment at Walmart, but it sent the case back to the Industrial Commission to hear further evidence as to whether the employee was fired from Casper or laid off.
After an unsuccessful attempt at mediation, the case then came to the Ohio Supreme Court by way of appeals. The Supreme Court found that James had voluntarily quit his job at Walmart because his departure was not due to his industrial injury but rather so that he could pursue other employment. The court distinguished the case relied on by the employee, in which employees were laid off after their injuries, finding that James had presented no evidence that his industrial injury caused the excessive absences for which he was fired: “[A] key tenet in temporary-total-disability cases is that ‘the industrial injury must remove the claimant from his or her job. This requirement obviously cannot be satisfied if the claimant had no job at the time of the alleged disability.’”
Districts should be aware that they may have liability for TTD claims even after an injured worker has moved on to other employment. An employer would certainly be liable if the industrial injury is the cause of the departure – whether from the current or a subsequent employer – even if an employee is terminated for excessive absences. If the absences are caused by the industrial injury, the employee may be entitled to TTD. However, if the separation is not caused by the industrial injury, the employee is not losing wages due to the injury, and so no TTD can be awarded. TTD would also be denied, as in this case, where a new period of disability begins without the employee having a job at the time.
– State ex rel. James v. Wal-Mart Stores, Inc., Slip Opinion No. 2017-Ohio-1426.