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 Erin Wessendorf-Wortman | Jan 10, 2014 | Board Policy & Representation, General, Labor and Employment, School Management
The State Employment Relations Board (SERB) upheld the clear and unambiguous language of R.C. §3319.111, holding that school districts may implement a new teacher evaluation policy in line with OTES without negotiating with their teachers association when the applicable collective bargaining agreement naturally expires.
The Parma Education Association filed an unfair labor practice charge against the Parma City School District Board of Education alleging that the Board of Education violated the collective bargaining agreement and collective bargaining laws when the Board of Education unilaterally implemented a new teacher evaluation procedure while the parties were in negotiations for a successor collective bargaining agreement and the current agreement had expired.
SERB indicated that school districts are not typically allowed to make changes to the terms and conditions of employment during negotiations of an expired collective bargaining agreement. However, if laws specifically indicate that they supersede the collective bargaining rights outlined in Chapter 4117 of the Revised Code, then a school district may follow the specifics of the law. In this case, R.C. §3319.111 specifically states that teacher evaluation procedures supersede Chapter 4117 of the Revised Code and any conflicting terms of a collective bargaining agreement when the existing collective bargaining agreement naturally expires.
The Board of Education did not violate the rights of the Parma Education Association. The Board of Education acted within its legal rights when it unilaterally implemented its teacher evaluation policy and procedures once its current collective bargaining expired, even though it was negotiating a successor collective bargaining agreement.
SERB’s decision appears obvious based on the clear, unambiguous language of the statute, but this decision is important to highlight the management rights given to boards of education in establishing teacher evaluation policies and procedures through the House Bill 153 and Senate Bill 316 changes to R.C. §3319.111.
by Pamela Leist | Dec 12, 2013 | General, Labor and Employment
On November 19, 2013, the Ohio Supreme Court concluded that, pursuant to R.C. 3319.16, acts of insubordination constitute “good and just cause” to terminate a teacher’s contract as long as the underlying rules or directives violated were themselves reasonable and valid. John Freshwater was an eighth grade science teacher at the Mount Vernon City School District. As early as 1994, Freshwater began to interject religious principles into his classroom instruction. Specifically, he supplemented school curriculum with religious handouts, showed videos on creationism and intelligent design, displayed religious materials in the classroom, made statements about the Bible, and awarded extra credit to students who attended religiously-based seminars that were critical of evolution. Although district administration occasionally directed Freshwater not to incorporate religious materials or teachings into his instruction, he generally received positive evaluations during the twenty-one years he taught in the district. His students also usually received the highest scores on state achievement tests.
In 2003, the Board of Education rejected Freshwater’s proposal to amend the district’s science curriculum by incorporating material that criticized the theory of evolution. However, Freshwater ignored the Board’s decision and continued to teach certain topics in accordance with his religious beliefs. A few years later, the district’s superintendent issued a written directive to Freshwater that he must delete all supplemental materials which were not scientifically accepted. Again, Freshwater chose not to comply with the directive.
Matters came to a head in the fall of 2007, when parents complained Freshwater used an electrical instrument to burn what appeared to be the sign of the cross into their son’s arm. Freshwater confirmed he used the instrument to mark the student, but denied the mark was intended to be a cross. The district responded by sending Freshwater a letter stating he could not use classroom instruments to shock students.
The following spring, Freshwater met with the school principal again to discuss issues related to his religious instruction. At the conclusion of the meeting, he received written orders in clear and unequivocal terms that he could not display religious materials in the classroom. Freshwater was specifically directed to remove the Bible displayed on his desk and a poster of the Ten Commandments that hung on his door. The written notice also stated “[u]nless a particular discussion about religion or religious decorations or symbols is part of a Board-approved curriculum, you may not engage in religious discussions with students while at school or keep religious materials displayed in the classroom.”
Freshwater refused to comply with the order despite several follow-up requests. Meanwhile, the parents of the student who was shocked in class sent a demand letter and filed suit against the district. In response, the district hired an outside investigator to observe Freshwater’s classes. The investigator reported that Freshwater taught creationism and intelligent design in class, discussed various other religious subjects, distributed religious materials, and made statements such as “science is wrong because the Bible states that homosexuality is a sin.” The investigator also discovered that Freshwater gave extra credit to students who viewed a movie on intelligent design.
Eventually by the end of the 2007-2008 school year, the Board decided to terminate Freshwater’s teaching contract pursuant to ORC 3319.16. At the public hearing, a referee addressed four specific grounds for termination set forth in the board’s resolution: (1) the burn incident, (2) Freshwater’s failure to adhere to curriculum, (3) Freshwater’s role in the Fellowship of Christian Athletes organization, and (4) his disobedience of orders. The referee concluded that claims (2) and (4) constituted just cause for termination.
Freshwater appealed the decision to court. Both the Court of Common Pleas and the Court of Appeals for Knox County upheld termination, and the Ohio Supreme Court granted review of the matter. The Court’s decision in the case was limited to whether the district met the just cause standard mandated by R.C. 3319.16. The Court provided only a cursory review of constitutional issues regarding Freedom of Religion and the Establishment Clause. Therefore, the Court did not provide any substantial guidance to school boards or teachers as to the constitutionality of teaching or displaying religious materials in a public school setting.
The Supreme Court ultimately held that in this case, Freshwater’s repeated acts of insubordination alone constituted “good and just cause.” The Court focused on Freshwater’s persistent disobedience and refusal to comply with administrative directives, and specifically on his refusal to remove religiously-oriented materials from class. According to the Court, “good and just cause” under ORC 3319.16 includes insubordination, which is defined as a willful disobedience of, or refusal to obey, a reasonable and valid rule, regulation, or order issued by a school board or by an administrative superior. The letter from Freshwater’s principal made clear that he could not “engage in any activity that promotes or denigrates a particular religion or religious beliefs while on board property, during any school activity” or while teaching, as mandated by Board policy and the law. The Court concluded that the district’s orders were both reasonable and valid, and further that Freshwater willfully refused to comply with the directives. The Court summarized their findings by stating that “Freshwater [was] fully entitled to an ardent faith in Jesus Christ and to interpret Biblical passages according to his faith, but he was not entitled to ignore direct, lawful edicts of his superior while in the workplace.”
The Supreme Court’s decision confirmed that insubordination alone may constitute just cause as long as the rule or directive is reasonable, and the employee willfully or intentionally refused to comply. However, it is important to note that the standard for just cause itself has not been lessened by the Court’s decision, and districts should be cautious to interpret the case otherwise.
Further, even though the Ohio Supreme Court did not address whether Freshwater’s actions violated the Establishment Clause of the U.S. Constitution to any great degree, school districts should be ever mindful of possible Establishment Clause infringements. The U.S. Supreme Court has interpreted the Establishment Clause to strictly forbid any law or act undertaken by a public entity that furthers religion, or attempts to disapprove of a particular religion or religion in general. The U.S. Supreme Court and lower courts repeatedly emphasize that a public entity must remain neutral on the subject of religion.
In this case, the extent to which Freshwater incorporated religious beliefs and displays into his classroom and instruction very likely constituted an Establishment Clause violation. Because of the many legal implications of such violations, we highly recommend that you contact legal counsel for advice on any issue that involves religion in schools.
Freshwater v. Mt. Vernon City School Dist. Bd. Of Edn., 2013-Ohio-5000 (November 19,2013).
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.
