by Gary Stedronsky | Dec 12, 2013 | General, Labor and Employment
The Strasburg-Franklin Local School District provided its teachers with school district laptops. A teacher asked if he could take his laptop home for the summer and was told that he could but that he needed to return it by June 30th. The teacher failed to return the laptop until late July.
The IT department inspected the laptop upon return because the teacher had previously downloaded a virus. The IT department discovered 84 thumbnails of graphic, sexual images in the laptop’s temporary internet files. The images were all cached within 23 minutes on one day.
The teacher claimed he had searched for the actor “Shane Diesel” on his computer because the actor was mentioned in a conversation earlier that day. He also claimed that “porn thumbnail pop-ups” appeared when he clicked on a link in a Wikipedia page.
The school district initiated termination proceedings and a hearing was held with a state referee. The referee found that the teacher’s actions could give rise to the suspension or termination of his teaching contract; but mitigating factors suggested a suspension rather than a termination (the teacher had good performance reviews). Therefore, the referee recommended a suspension of 45 days for the failure to return the laptop by June 30th and 45 more days for inappropriate use of a school computer.
The school district accepted the referee’s findings of fact but rejected the proposed discipline and terminated the teacher. The teacher appealed to the court of common pleas. The court of common pleas reversed the school district’s termination because it found that the images were not hostile to the community and this was private conduct that had no impact on his professional duties. The teacher was then reinstated with full back pay.
The school district appealed to the Fifth District Court of Appeals. The appellate court concluded that it could only overturn the lower court if the lower court’s decision constituted an “abuse of discretion” – a difficult standard of review for the school district to overcome.
The appellate court denied the school district’s appeal finding no abuse of discretion in the lower court’s ruling. The appellate court reviewed other termination decisions in Ohio and found that appellate courts will affirm a board of education’s termination decision when the teacher’s behavior had or could have had a serious effect on the school system. In this case, the appellate court found that the teacher’s actions did not occur on school property and did not involve any students. This also was not a criminal act. Therefore, the appellate court determined that the lower court did not abuse its discretion because the conduct had no impact on the teacher’s professional duties and his actions were not hostile to the school community.
The discovery of pornography on a school district computer is employment misconduct that is generally considered a “slam dunk” termination case (alcohol, drugs, violence, and sexual conduct are some others). The teacher was unquestionably wrong in using the school district’s laptop in this manner. In fact, readers are cautioned not to utilize their school computers or devices to Google “Shane Diesel” out of curiosity. Trust me, the Google results alone should have told this teacher that this was off-limits. Yet, the teacher clicked-away and the state referee and courts overturned the school district’s termination decision because the teacher’s behavior supposedly had no impact on his professional duties. This decision demonstrates that there really are no “slam dunk” termination cases. Every decision to terminate a teacher must be made with the understanding that the time and money invested in a termination case may not always result in the desired outcome – no matter how strong you think the case is.
Winland v. Strasburg-Franklin Local School District Board of Education, Fifth District Court of Appeals, Case No. 12 AP 10 0058
by Erin Wessendorf-Wortman | Aug 27, 2013 | Labor and Employment
Under the Affordable Care Act, school districts must notify all current employees by October 1, 2013, of the availability of health insurance marketplace (i.e. health insurance exchanges). After October 1, 2013, all new hires must be notified within fourteen (14) days of hire. This notice must be provided to all employees and new hires regardless of their part-time or full-time status, and regardless of their plan enrollment status.
Sample forms have been provided by the U.S. Department of Labor at the following addresses:
-Model form http://www.dol.gov/ebsa/pdf/FLSAwithplans.pdf
-COBRA Model form http://www.dol.gov/ebsa/modelelectionnotice.doc
For ease of issuing this notice to all current employees by the October 1, 2013 deadline, it is recommended that school districts send the exchange notice to all of those current employees would be entitle to receive a Form W-2 from the school district on September 30, 2013, if the school district were to send out Form W-2s on that date.
Additionally, there is no requirement in the Affordable Care Act mandating that the exchange notice must be given in hard-copy, paper format to current employees or to new hires. The exchange notice may be given in electronic format and emailed to all employees. Districts are encouraged to keep a record of the exchange notice send to all current employees by the October 1, 2013 deadline, and include a copy of the exchange notice in all new hire paperwork.
by Ryan LaFlamme | Jun 28, 2013 | Labor and Employment
Vance v. Ball State Univ., 11-556, 2013 WL 3155228 (U.S. June 24, 2013).
Univ. of Texas Sw. Med. Ctr. v. Nassar, 12-484, 2013 WL 3155234 (U.S. June 24, 2013).
On Monday, June 24, 2013, the U.S. Supreme Court ruled on two cases involving Title VII harassment claims. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, sex, religion, or national origin.
In the case of Vance v. Ball State University, the Court addressed the definition of a “supervisor” as it relates to Title VII harassment claims. In University of Texas Southwestern Medical Center v. Nassar, the Court addressed the appropriate standard to determine whether an employer engaged in retaliatory actions against an employee.
In Vance, an African-American employee of Ball State claimed that she had been racially harassed by a co-worker causing a hostile work environment. She claimed that the co-worker was her supervisor, and as such, the University should be held to a higher standard of liability. Under this higher standard, the University would be liable unless it could prove that (1) it used reasonable care to prevent the harassment and (2) the employee was unreasonable in not taking advantage of the opportunities provided by the employer. On the other hand, if the co-worker was not a supervisor, as argued by the University, the University would only be liable if found to be negligent.
The Court indicated that a co-worker is a supervisor under Title VII only if the co-worker is given the authority by the employer to engage in “tangible employment actions” against the employee. Tangible employment actions include actions such as hiring, firing, reassigning different responsibilities, changing employment benefits, and promoting/failing to promote. The Court indicated that the co-worker in this case was not a “supervisor” of the complainant because the co-worker did not have the authority to engage in tangible employment actions against the employee.
In Nassar, a physician of middle eastern descent claimed that the University of Texas Southwestern Medical Center violated Title VII when (1) his supervisor allegedly discharged his employment as faculty for the University due to racial and religious discrimination and then (2) another supervisor retaliated against him because of his complaint regarding the alleged discrimination by preventing him from being hired at a local hospital.
As is the test used with some types of Title VII discrimination claims, the physician argued that the motive of retaliation need only be a motivating factor of the employer’s actions, allowing for other legal factors to also play a part in the employer’s actions. The Court ruled against this argument by determining that with regard to Title VII retaliation claims, an employer’s actions must be more than partially motivated by retaliation and must meet the higher standard of “but-for” cause; “But-for” the wrongful action (retaliation), the consequence (loss of job) would not have occurred. Therefore, the retaliation must be the reason that the employer acted, rather than one factor among many.
by Pamela Leist | Nov 7, 2012 | Labor and Employment
On September 26, the Ohio General Assembly enacted sweeping public pension reform legislation. The legislation consisted of a package of five bills, including Senate bills 341 and 342, affecting the School Employees Retirement System (SERS) and the State Teachers Retirement System (STRS). Both bills will become effective on January 7, 2013. The most significant changes to each system are highlighted below.
SERS (SB 341)
- Changes retirement eligibility requirements
- Members who have less than 25 years as of August 1, 2017 will be eligible to retire at age 57, with 30 years
- Changes retirement benefit formulas
- Benefits will be unreduced for members who had less than 25 years of service credit on August 1, 2017 but are at age 67, with 30 years when they retire
- Benefits will be reduced for members who had less than 25 years on August 1, 2017 and are not at age 67 when they retire
- Changes eligibility requirements for disability benefits
- A member’s disabling condition must have occurred before contributing service terminated
- Members now required to attend vocational rehabilitation, if recommended, to continue receiving disability benefits
- Establishes new penalties for SERS employers
- $100 per day for failure to transmit contributions withheld from employees
- $100 per day for failure to timely transmit any amounts due to the Employer’s Trust Fund
- $100 per day (not to exceed $1,500 total) for failure to timely transmit payroll information
- $50 per record (not to exceed $300 total) for each month of failure to transmit a detailed statement on an employee’s prior service and personal information
STRS (SB 342)
- Increases the amount of member contributions beginning July 1, 2013 through July 1, 2016
- Contribution rate will be increased by yearly increments from 10% to 14%
- Changes the final average salary (FAS) years from three to five
- For benefits beginning on or after August 1, 2015, members’ five highest years of compensation will be used to determine the FAS
- Changes retirement eligibility requirements
- For unreduced benefits (early retirement):
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Now- 8/1/15
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Any age and 30 years; or age 65 and 5 years
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8/1/15-8/1/17
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Any age and 31 years; or age 65 and 5 years
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8/1/17-8/1/19
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Any age and 32 years; or age 65 and 5 years
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8/1/19-8/1/21
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Any age and 33 years; or age 65 and 5 years
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8/1/21/-8/1/23
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Any age and 34 years; or age 65 and 5 years
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8/1/23-8/1/26
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Any age and 35 years; or age 65 and 5 years
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On or after 8/1/26
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Age 60 and 35 years; or age 65 and 5 years
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Now-8/1/15
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Age 55 and 25 years; or age 60 and 5 years
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8/1/15-8/1/17
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Any age and 30 years; or age 55 and 26 years; or age 60 and 5 years
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8/1/17-8/1/19
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Any age and 30 years; or age 55 and 27 years; or age 60 and 5 years
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8/1/19-8/1/21
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Any age and 30 years; or age 55 and 28 years; or age 60 and 5 years
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8/1/21-8/1/23
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Any age and 30 years; or age 55 and 29 years; or age 60 and 5 years
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On or after 8/1/23
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30 years; or age 60 and 5 years
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- Reduces the rate used to calculate benefits to 2.2% of final average salary
- Reduces the cost-of-living adjustment (COLA) to an annual 2%
- No COLAs will be granted from July 1, 2013 through June 30, 2014 to persons retiring prior to July 1, 2013
- No COLAs will be granted until July 1, 2015 to persons retiring on or after July 1, 2013
