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 Pamela Leist | Jun 10, 2014 | Board Policy & Representation, General, Labor and Employment, School Management
Ohio legislators have once again modified the Ohio teacher evaluation system this month through passage of House Bill 362. The bill, which still awaits the Governor’s signature, reduces the frequency of evaluations for certain teachers and also creates an optional alternative evaluation framework that districts may elect to use as early as the 2014-2015 school year. Changes from the bill include the following.
First, HB 362 modified ORC 3319.111 by granting a board of education the discretionary authority to evaluate teachers who receive a rating of “Accomplished” on their most recent evaluations every three years. Likewise, Boards may also choose to evaluate “Skilled” teachers every two years. The law further specifies that in order to qualify for either of the above, a teacher must receive a student growth measure score of average or higher on the most recent evaluation (note that under the state-approved rubric, a teacher cannot receive a summative rating score of “Skilled” or “Accomplished” unless he or she received a SGM score that was average or higher). If a board elects either option, a credentialed evaluator must conduct at least one observation and hold at least one conference in each year that a teacher is not formally evaluated. The new law is silent as to whether a district must also gather student growth measure data in off years.
Additionally, the bill permits a board of education to elect not to evaluate teachers who have been on leave for at least fifty percent (50%) of the school year, and/or who have submitted a notice of retirement which has been accepted by the board no later than December 1st.
Finally, HB 362 establishes an alternative teacher evaluation framework under a new statute, ORC 3319.114. The alternative framework reduces the value of the teacher performance and student growth measure scores, and incorporates an additional measure derived from one of the following: student surveys, teacher self-evaluations, peer review evaluations, or student portfolios. The statute specifies that should a board elect to use the alternative framework for 2014-2015, a teacher’s final summative rating must be based on the following:
- 42.5% teacher performance rating;
- 42.5% student growth measure; and
- 15% from one of the additional measures listed above
For 2015-2016 and beyond, a school board has some discretion to determine the value of the three components. However, the teacher performance and student growth measures must each count for at least 42.5% of the score. And, the new law requires that an equal percentage of the final summative rating be allocated to teacher performance and student growth. The remaining percentage of the summative rating will be derived from the chosen alternative tool.
Under the new statute, the Ohio Department of Education must compile a list of approved instruments for districts to use with the alternative framework. School districts are required to select evaluation instruments from amongst that list.
As with previous OTES and OPES modifications, a number of questions remain about whether the changes will actually improve the process and ease the burden of evaluations for school administrators and teachers, or whether they will merely create additional traps that snare the unwary. One of the primary concerns is the fact that the bill will not become effective until mid-September, nearly one month after most districts begin the 2014-2015 school year. And, in order to roll out the new system by 2014-2015, the Department has only a few months to select alternative evaluation tools, and even less time to determine the validity of the data each tool captures. Finally, while the prospect of reducing the frequency of evaluations is enticing, this practice may weaken the validity of future evaluation results for teachers, which will ultimately impact a board of education’s ability to make solid employment decisions. For these reasons, districts should be cautious to embrace the new changes until additional analysis is conducted. In the least, districts should contact legal council before adopting evaluation policy changes for this upcoming school year.
To review HB 362 in its entirety, click here.
by Ryan LaFlamme | Apr 25, 2014 | General
State ex rel. Jacobs v. Indus. Comm.
This month, the Ohio Supreme Court upheld a denial of temporary total disability (TTD) benefits for an employee based on job abandonment. TTD benefits serve as wage replacement for employees who have suffered a workplace injury which causes the employee not to be able to return to work. Generally, an employee cannot be terminated for absenteeism while receiving TTD benefits.
Here, the employee was released to work with restrictions which the employer accommodated with a light duty assignment that met the restrictions in place. The employee accepted the light duty assignment, reported to work for one hour, and then left complaining of pain and indicating that she was going to visit her doctor. The employee did not return to work and the employer confirmed that the employee did not visit her doctor. The employer sent two letters to the employee over a 15 day period indicating that the employee was AWOL and in jeopardy of termination. The employee was then terminated for job abandonment after failing to respond to the letters.
Subsequent to the termination, the employee sought TTD benefits which were denied based on her termination for job abandonment. The employee argued that she was unable to return to work due the industrial injury (the basic standard for awarding TTD), that she had not abandoned her job because reporting her inability to continue her light duty work constituted a rejection of the employer’s light duty offer, and that because the employer terminated her while she was disabled, the employer could not argue that she voluntarily abandoned her job. The Industrial Commission as well as the lower courts rejected these arguments.
The Ohio Supreme Court rejected the employee’s arguments as well, holding that by accepting the employer’s light duty offer, she was subject to the employer’s absenteeism policy. Further, the employee failed to provide any medical certification that the light duty work was beyond her capabilities, let alone providing any explanation at all for her failure to return to work. The Court concluded; “When a claimant is discharged because of actions that were initiated by the claimant and that were not related to the industrial injury, a voluntary separation from employment has occurred that breaks the causal relationship between the industrial injury and the loss of earnings.”
Accordingly, employers should be aware that employees serving in light duty assignments can be treated just like any other employee with regard to workplace rules and regulations.
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 Pamela Leist | Feb 10, 2014 | General, Legislation
The Ohio House of Representatives and Ohio Senate are both considering bills to ease the burden on Ohio school districts that have taken an unusual number of calamity days this school year due to harsh winter conditions.
One of the pending bills, House Bill 416, was proposed on January 28th. It would grant four additional calamity days to schools for the 2013-2014 school year. Districts would therefore be excused for a total of nine calamity days. HB 416 passed the House Education Committee on January 30th, and currently awaits a vote in the full House before it heads to the Senate floor.
Senate Bill 269 was also proposed on January 28th. The senate bill would likewise grant districts three additional calamity days, for a total of eight excused days. The bill currently remains in the Senate Education Committee. Governor Kasich has encouraged the Senate and House to pass legislation to extend calamity days for this school year, and is expected to sign whichever bill is voted through the legislature.
In addition to possible extension of calamity days under HB 416 and SB 269, Senator Randy Gardner recently introduced Senate Bill 273 on February 6th. If passed, the bill would excuse graduating seniors from any calamity make-up days that a district would schedule to take place after graduation. Seniors would still be required to make up days that occur prior to graduation, however.
All the proposed bills are considered emergency measures, and will take effect immediately if passed by the legislature and signed by the Governor.
UPDATE: On February 19th, 2014 the Ohio House passed a revised version of HB 416. If the bill passes in the Senate and is signed by the governor, it would grant schools two additional calamity days for this school year. In addition, the bill would permit schools to schedule two additional staff in-service days for both teachers and nonteaching employees. Finally, HB 416 would re-codify a school district’s ability to make up missed time by increasing the length of one or more school days by half hour increments. Districts used to have the authority to make up time under certain circumstances by extending the school day pursuant to ORC 3313.482, but that statute was repealed effective September 29th, 2013 along with the requirement that schools adopt a yearly contingency plan.
A new bill was also introduced in the Senate on February 19th that would grant additional calamity waivers under certain conditions. Specifically SB 284 provides four additional calamity days to schools, but only after each district satisfies both of the following:
- The reason the school was not open for the required number of days was, pursuant to ORC 3317.01 (version in effect prior to July 1, 2014), due to “disease epidemic, hazardous weather conditions, law enforcement emergencies, inoperability of school buses or other equipment necessary to the school’s operation, damage to a school building, or other temporary circumstances due to utility failure rendering the school building unfit for school use”; and
- The district has first completed make-up days or hours specified in the district’s contingency plan.
Under prior law, a district’s contingency plan accounted for make-up of at least five additional calamity days. Boards were required to approve this year’s contingency plan before the statute was repealed. Because of the inconsistency with current law, SB 284 also includes a provision that recognizes a board’s authority to modify the district contingency plan. In addition, SB 284 again grants schools the authority to make up days by half hour increments. Finally, the bill would excuse graduating seniors from make-up days scheduled to take place after graduation.
by Pamela Leist | Jan 28, 2014 | General
The Ohio Department of Education recently announced that it will temporarily lift the August 1st deadline for submission of online calamity day make-up plans to assist school districts that have experienced a high number of weather-related closings this school year.
Online make-up plans, commonly referred to as “blizzard bag” plans, allow schools to make up as many as three days during a school year in which a school or district exceeds the five permissible calamity day closings granted under law. Ohio law, specifically ORC §3313.88, requires a board to submit an online make-up plan to ODE by August 1st each school year. Districts must also include a copy of the board resolution and written consent from the teacher’s union at the time of submission. For this year only, ODE has temporarily waived the deadline requirement.
A district online make-up plan must include several key provisions. Pursuant to ORC 3313.88, each teacher must develop a sufficient number of lessons for each course taught by that teacher in the school year to equal or exceed the amount of instruction a student would otherwise receive over three regular days in the teacher’s class. Under normal circumstances, Ohio law requires that teachers complete the lessons by November 1st.
In addition, teachers must specify the order in which the lessons will be posted on the district’s website. Teachers are also responsible for updating or replacing lessons as necessary throughout the school year based on the instructional needs and progress of the students in each class. Districts have the option to grant teachers one professional development day after the district certifies that the teacher has completed and submitted lessons equal to the specified amount of instructional time included in the plan.
The district employees who are responsible for posting material on a district or school website must make the lessons available online to students as soon as is practicable after a school closure which will be made up pursuant to the plan. A lesson must be posted for each course that was scheduled to meet on the day that school is closed.
Students enrolled in a particular course or class for which a lesson is posted online will have two weeks from the date of posting to complete and turn in the lesson. A student who does not complete the lesson within this timeframe will receive an incomplete or failing grade unless the student has a sufficient reason for late submission as determined by the classroom teacher. The student’s classroom teacher will be responsible for grading all online lessons.
In order to accommodate students who may not have access to a computer, the law requires that a district choose between one of two options. Under the first option, districts must permit students who do not have access to a computer to complete the posted lessons at school when the school reopens. The district shall provide access to district computers before, during and/or after the school day for completion of assignments provided the equipment is available and accessible during those times, or alternatively may provide a paper assignment that is substantially equivalent. Students who utilize this option will be required to complete and submit all lessons within two weeks after the school reopens.
As a second option, districts may elect to distribute “blizzard bags”, which are paper copies of each lesson posted online. Teachers are required to prepare paper copies of all online lessons, and also to update the paper copies whenever the teacher updates an online lesson. A district must specify how blizzard bags will be distributed in the district’s plan.
Districts that have chosen to take advantage of ODE’s offer to approve and submit plans for this school year should keep several things in mind. First, ODE will not permit districts to make up days that have already been taken. Rather, districts may only utilize the online-makeup option for calamity days that occur after the district submits its plan. Second, a district should consult with legal counsel to discuss how use of blizzard bags may impact students who receive special services under an IEP pursuant to state and federal law.
Finally, districts that wish to approve online make-up plans for next school year will need to adjust the plans to accommodate Ohio’s new minimum hour requirement. When the Ohio legislature passed HB 59, it elected to eliminate the five calamity days currently available to schools and also switch from a minimum day to minimum hour requirement. Beginning in 2014-2015, districts may still close buildings during emergency conditions, but must ensure that schools provide at least the minimum hours of instruction during the school year mandated by law. Online class make-up of up to three days will still be available to districts that fall below the minimum hour requirement, provided that districts submit plans by August 1st each year.
For additional details about online make-up plans and submission, you are encouraged to contact your district’s legal counsel or the Ohio Department of Education.
UPDATE: The Ohio Department of Education has agreed to permit schools to apply online class plans retroactively for calamity days that have already been taken and which exceed the five days permitted by law. However, districts may not post lessons or distribute blizzard bags to make up any missed days until they receive a written notice of approval from ODE.
Legal Citations: ORC §3313.88 (renumbered effective July 1, 2014 as ORC §3313.482), ORC §3313.48, ORC §3313.481, and ORC §3317.01.
