by Meghan Rimer, Law Clerk | Jan 10, 2024 | General, Labor and Employment, Legislation
The Federal Trade Commission (FTC) has proposed changes to the Children’s Online Privacy Protection Rule (COPPA Rule) that would place restrictions on the use and disclosure of children’s personal information and limit the ability of companies to condition access to services on monetizing children’s data. This would be accomplished by actions such as a requirement that targeted advertising be off by default, limiting push notifications, restricting surveillance in schools, and strengthening data security. The FTC’s Press Release stated that the purpose of these proposals are to “shift the burden from parents to providers to ensure that digital services are safe and secure for children.”
The COPPA Rule first went into effect in 2000, when it required certain websites and online services that collect personal information from children under 13 to obtain parental consent before collecting, using, or disclosing that personal information. In 2013, the FTC made changes that reflected the increased use of mobile devices, to protect children’s online activity, as well as photos, videos, and audio recordings. The FTC stated that this most recent proposed change comes at a time when “online tools are essential for navigating daily life.” Implementing such tools will not only allow children to be online without being “endlessly tracked” by companies, but also places the obligation on service providers, rather than allowing such providers to outsource their responsibilities to parents.
In order to achieve those goals, the FTC has stated that the proposed changes will include:
● Requiring separate opt-in for targeted advertising
● Prohibition against conditioning a child’s participation on collection of personal information
● Limits on the support for the internal operations exception
● Limits on nudging kids to stay online
● Changes related to Ed Tech
● Increasing accountability for Safe Harbor programs
● Strengthening data security requirements
● Limits on data retention
Once the proposed changes are published in the Federal Register, the public will have 60 days to submit a comment.
by Ryan LaFlamme | Apr 14, 2023 | Construction & Real Estate, General, Labor and Employment, School Management
As Career Technical Centers (CTC) offer ever-expanding curricula and training in more advanced and technical fields, there may be a need for new space for hands-on learning and training. Perhaps your district is interested in erecting a lab for manufacturing education, or agricultural space for education in farming technology.
Under the law, school districts are “bodies politic and corporate” “capable of…acquiring, holding, possessing, and disposing of real and personal property.” Just like any city, local, or exempted village school district, vocational districts can purchase and lease land for the erection of education facilities. CTCs may also purchase or lease existing buildings and, as needed, renovate such existing spaces for their purposes. Lease-purchase agreements are also permissible for this purpose. CTCs may also acquire ownership of real property by donation or an exchange agreement. (By law, CTCs have all the authority and powers as city school districts with the exception of certain matters specifically address in the Revised Code pertaining to Chapters 124 (civil service), 3317 (School Foundation Program), 3323 (special education), and 3331 (age and schooling certificates)). There are other means by which a CTC could acquire property that occur less frequently, are less desired, and are entirely context based. These are adverse possession and appropriation (condemnation).
There may be instances where a CTC desires to acquire property not to erect a building for use as classroom space but to facilitate the programming of the CTC. In some instances, this may involve students performing work that is within the scope of their particular program but that also contributes to a private venture.
The applicable statutes refer to a board of education using its powers to acquire property for its own purposes, i.e., for the operations of the district in carrying out its educational mission. There is not any express authority in those statutes for a board to acquire property for non-school purposes or to effectuate a purely private development.
However, there are some attorney general opinions, addressing CTCs in particular, that have allowed a CTC to engage in a private venture so long as there is some connection to the curriculum. See 1976 Op. Atty. Gen. No. 76-065 (A CTC may construct and sell single-family residences on school land. Students erected the homes under supervision as part of the curriculum, and not for pay); 1971 Op. Atty. Gen. No. 71-068 (A school may engage and compete in private enterprise, even at a profit, so long as the program is reasonably necessary to the vocational education curriculum); 1971 Op. Atty. Gen. No. 71-026 (Use of school facilities for serving meals and banquets to community organizations is justified as part of the vocational education curriculum).
1981 Op. Atty. Gen. No. 81-093 opines that a CTC may, pursuant to R.C. 3313.90, enter into an agreement with a nonprofit corporation whereby students of the district would construct a house on property owned by the corporation with materials and equipment furnished at the expense of the corporation, provided that such an agreement is reasonably necessary to fulfill the requirements of the vocational education curriculum. Additionally, that opinion holds that a board of education of a CTC may, as part of a vocational education program, purchase land, construct residential dwellings thereon, and thereafter sell such realty.
What does this mean for your district?
Your board is vested with broad powers to acquire property using several different means. The options available should be carefully considered to ensure which is the best approach for any given project or plan. Attorneys at Ennis Britton stand ready to assist you with achieving your goals in this regard.
by Meghan Rimer, Law Clerk | Apr 13, 2023 | General, Labor and Employment, School Management
In an attempt to create new legal protections and remedies for individuals who are pregnant or nursing, Congress recently passed two acts, the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) and the Pregnant Workers Fairness Act (PWFA), which will expand the number of nursing and pregnant workers granted protections, including school employees.
Providing Urgent Maternal Protections for Nursing Mothers Act
In 2010, the Break Time for Nursing Mothers Act was signed into law, which required employers to provide nursing mothers a reasonable break time in a private and shielded place to express breast milk for a minimum of one year following the child’s birth. However, these requirements applied only to employees not exempt from the Fair Labor Standards Act’s (FLSA) overtime pay requirement.
On December 29, 2022, President Biden signed the PUMP Act into law, which expands the rights granted by the Break Time for Nursing Mothers Act to include exempt employees of covered employers. This change, which adds over nine million workers, will now grant all salaried employees, such as teachers, similar protections.
The PUMP Act, much like the Break Time for Nursing Mother Act, requires employers to provide (1) reasonable break time to express milk, and (2) a private location that is not a bathroom and that is shielded from view and free from intrusion. Additionally, the PUMP Act authorizes an aggrieved employee to bring a claim against an employer who violated the PUMP Act, as well as prohibits that employer from retaliation against the employee as a result of that claim. Furthermore, the PUMP Act has adopted all available remedies under the FLSA, such as reinstatement, promotion, payment of wages lost, and compensatory damages. The U.S. Department of Labor published a fact sheet that lays out additional information regarding the PUMP Act. For example, the fact sheet discusses how an employee may be compensated for break time to pump, whether that be through paid break time or being completely relieved from their duties. The DoL Fact Sheet can be found here.
Pregnant Workers Fairness Act
In addition to the PUMP Act, Congress passed the Pregnant Workers Fairness Act (PWFA), which will go into effect June 27, 2023. The Pregnancy Discrimination Act of Title VII, which is enforced by the Equal Employment Opportunity Commission (EEOC), prohibits employers from discrimination on the basis of pregnancy and requires an employer to treat pregnant employees in the same manner as other employees who are similar in their ability or inability to work. While this act does prevent discrimination against pregnant employees, it does not require an employer to comply with any accommodation requirements. This gap between the prohibited discrimination and lack of accommodation requirements has now been filled by the PWFA.
Under the PWFA, Congress has made it unlawful for an employer with 15 or more employees to:
- Require an employee to accept an accommodation without a discussion about the accommodation;
- Deny a job or other employment opportunities to a qualified employee or application based on the person’s needs for a reasonable accommodation;
- Require an employee to take leave if another reasonable accommodation can be provided that would allow the employee to continue working;
- Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA; and
Interfere with any individual’s rights under the PWFA.
These restrictions under the PWFA will protect employees and applicants of covered employers, which include schools, who have “known limitations related to pregnancy, childbirth, or related medical conditions.” In addition to these restrictions, the PWFA noted that an individual may still be considered a qualified employee if the inability to perform an essential function is for a temporary period, the essential function can be performed in the near future, and the inability to perform the function could be reasonably accommodated.
Recent Litigation Surrounding Pregnancy Discrimination
Congress’ actions come following recent litigation where the Equal Employment Opportunity Commission (EEOC) filed suit against a nursing and rehabilitation facility. The EEOC asserted that the facility had established policies requiring employees to inform the company when they were pregnant as well as obtain a note from their doctor releasing them to work without restrictions. The EEOC additionally alleged that the facility denied pregnant employees that had restrictions with reasonable accommodations and went so far as to terminate them, while other employees with similar restrictions were provided accommodations.
The suit, which was brought in June of 2021, came to a close April 12, 2023 with a decision finding in favor of the EEOC. The decision ordered the facility to pay $400,000 split between 11 employees, as well as issued a decree that would prohibit the facility from discrimination on the basis of pregnancy in the future, including denying pregnant employee’s modifications and a requirement that pregnant employees obtain a doctor’s note.
What does this mean for your district? To comply with the PUMP Act and the PWFA, districts should update their reasonable accommodation and nursing employee break policies to reflect the new requirements. Additionally, districts should designate an adequate space for employees to express breast milk that is in compliance with the PUMP Act, meaning the space must be (1) reasonable break time to express milk, and (2) a private location that is not a bathroom and that is shielded from view and free from intrusion.
by Ryan LaFlamme | Apr 9, 2021 | General, Labor and Employment, Workers’ Compensation
Creveling v. Lakepark Industries, Inc., 2021-Ohio-764
The Sixth Appellate District Court of Appeals has rendered a decision denying an employee’s claims of workers’ compensation retaliation and disability discrimination, among some other related claims.
The employee at issue was a tool and die maker. He was injured while using a machine that had rotating parts which caught the glove he was wearing and mangled his right hand, resulting in an amputation of his middle and ring finger. The Employer contacted OSHA to begin an investigation and filed a workers’ compensation claim on the employee’s behalf. The employee was eventually released to full duty by his doctor and the employer reinstated him as a tool and die maker.
Employees were trained extensively not to use gloves while using rotating equipment and the employer investigated the employee’s conduct in this regard and imposed a three-day suspension without pay. The employee admitted that he violated the policy and also executed an employee corrective action warning him that any further violations would result in his dismissal. The first day back from the suspension, the employee was witnessed wearing gloves while operating a rotating machine. The employee was reported to management and was terminated for violating the policy and the employee corrective action. The employee conceded that he had violated the corrective action.
The employee sued the employer for workers’ compensation and disability discrimination as well as wrongful termination, an intentional tort related to maintenance of the equipment, and loss of consortium on behalf of his wife.
Ohio law provides that “no employer shall discharge, demote, reassign, or take any punitive action against any employee because the employee filed a claim or instituted, pursued or testified in any proceedings under the workers’ compensation act for an injury or occupational disease which occurred in the course of and arising out of his employment with that employer.”
Workers’ compensation retaliation, like other discrimination and retaliation claims are subject to a burden-shifting analysis by the Court. The employee bears the burden to establish a “prima facie” case by showing that (1) the employee filed a workers’ compensation claim, or instituted, pursued, or testified in a workers’ compensation proceeding; (2) the employer discharged, demoted, reassigned, or took punitive action against the employer; and (3) a causal link exists between the employee’s filing or pursuit of a workers’ compensation claim and the adverse action by the employer.
If the employee can establish a prima facie case, the employer must show a legitimate, non-discriminatory reason for its action. If the employer meets this burden, it goes back to the employee to establish that the reasons provided by the employer are merely a pretext. To do so, the employee must be able to shoe that the reasons given by the employer (1) had no basis in fact; (2) did not actually motivate the discharge; or (3) was insufficient to motivate the discharge.
The Court rejected the employee’s argument that because he was fired within 7 days of returning to work, it was sufficient to establish retaliatory motive. The Court reasoned that the firing and the employer’s knowledge of the claim were not sufficiently close enough in time to establish that proximity alone constituted evidence of retaliatory intent. Moreover, the Court found that the act of returning to work is not protected activity.
The Court also rejected evidence that the employer had a hostile attitude towards the employee based on a couple off-color remarks that were made upon his return such as “I guess you are left-handed now.” Such isolated comments, however, out of context, and in the absence of other evidence, are insufficient to establish a causal link between termination and the filing of a workers’ compensation claim.
The Court also rejected the employee’s argument that because the employer had failed to discipline other employees prior to his injury for wearing gloves, that its action to do so after the injury is evidence of a retaliatory motive. The Court found that the employee himself had not been declined for doing so prior to his injury and that he was unequivocally prohibited from doing so after his injury, before he was terminated for once again violating the policy.
The Court denied the employee’s disability discrimination law, which was made on similar factual allegations as the retaliation claim. However, here, the Court found that the employee was unable to establish a prima facie case of discrimination because he did not have a disability due to his two fingers being amputated. The Court found that the employee did not establish that the amputation caused him a substantial limitation of a major life activity. The Court recognized that he had some difficulty in adjusting to writing and other tasks with his right hand after the amputation, but he was still able to perform his work as a tool and die maker and could not establish that he was substantially limited in the performance of any major life tasks as compared to most people in the general population.
The Court also found that the employee could not have been regarded as having a disability by the employer because the employee lobbied to return to, and succeeded in securing, his former position of employment. Finally, the Court held that even if the employee could establish that he was disabled, there was insufficient evidence to find that he was terminated on account of his disability.
What this means for your District:
It is possible to terminate an employee for acts which lead to a workers’ compensation claim. A termination does not end the claim itself, just the employment relationship. Termination should be supported by an articulable violation of policy or directive or you may risk losing the burden shifting analysis. Here, the employer did not have a perfect set of facts because there was a history of non-enforcement of the policy until after the injury and there were some snide remarks made to the employee about his injuries. However, because the employer provided training, complied with its legal requirements, and kept the discipline focused on the employee’s violation of the policy and the corrective action, those little factual hiccups were not sufficient to establish a retaliatory or discriminatory motive behind the discipline action.
by Gary Stedronsky | Jan 15, 2021 | General, Labor and Employment
The Ohio Court of Appeals for the Eleventh Appellate District recently addressed a dispute between the Portage County Educators Association for Developmental Disabilities-Unit B, OEA/NEA and the Portage County Board of Developmental Disabilities. During a labor dispute, members of the union picketed on sidewalks outside the private residences of six Board members and outside the employer of one Board member. The State Employment Relations Board (SERB) determined that was an unfair labor practice based on language in R.C. 4117.11(B)(7), which makes picketing related to a labor relations dispute at the residence or place of private employment of any public official an unfair labor practice.
The union argued that the statute was an unconstitutional restriction on speech because the picketing in question took place on public sidewalks and streets. Those are quintessential public forums where speech enjoys a great deal of protection.
The court of appeals needed to first determine if the unfair labor practice statute was “content-based” or “content-neutral.” Content-neutral restrictions enjoy intermediate scrutiny and are presumed valid. Content-based restrictions are subject to strict scrutiny review and are presumed invalid. In this case, the court found that the statutory restriction was content-based because it prohibited picketing in certain locations only when that picketing was related to a labor relations dispute.
Given the determination that the statute was a content-based restriction on speech, the presumption of unconstitutionality could only be overcome by a showing that the regulation is (a) necessary to serve a compelling state interest; and (b) narrowly tailored to achieve that interest by the least restrictive means. Ultimately, the court found that SERB failed to show that the statute served a compelling state interest or that it was narrowly tailored. As a result, the court held that the statutory language was unconstitutional, and the union did not commit an unfair labor practice.
What this means for your District?
Picketing outside the homes or places of employment of school board members is permissible in certain counties in Ohio. The Eleventh Appellate District has jurisdiction over Ashtabula, Geauga, Lake, Portage and Trumbull Counties. This decision is binding in those counties. The Eighth Appellate District, which serves Cuyahoga County, previously reached the same conclusion in 1998. At least in those counties, an unfair labor practice will not be found if union members picket on public streets or sidewalks in front of board of education members’ homes or places of employment.
The Seventh Appellate District reached the opposite conclusion in 2016. Given the conflict among these courts, it is not clear throughout Ohio whether it is an unfair labor practice to picket outside the homes or places of employment of public officials. It is possible that this decision will be appealed to the Ohio Supreme Court where a definitive answer can be had. We will certainly update our clients if this case is appealed and decided by the Ohio Supreme Court.
by Ryan LaFlamme | Aug 14, 2020 | General, Labor and Employment, Unemployment
In somewhat of a novelty decision, the Fifth District Court of Appeals of Ohio has upheld a trial court decision affirming the denial of unemployment benefits to 51 non-teaching employees who went on strike after OAPSE and the Board of Education were unable to reach an agreement on a successor contract.
In Ohio, employees are entitled to unemployment benefits in cases of a lockout. However, employees engaged in a labor dispute during which they can continue working while negotiations proceed are not eligible for benefits. Here, the Unemployment Commission found that the employees were engaged in a labor dispute, other than a lockout when they applied for benefits and were therefore not eligible.
The Ohio Supreme Court has defined a lockout as a “cessation of the furnishing of work to employees or a withholding of work from them in an effort to get for the employer more desirable terms.” A lockout can be actual or constructive. A constructive lockout occurs when “the conditions of further employment announced by the employer are such that the employees could not reasonably be expected to accept them and the terms manifest a purpose on the part of the employer to coerce his employees into accepting them or some other terms.”
In reconciling these disputes, the Unemployment Commission will analyze whether the employer will allow employees to continue working under the status quo of the expiring agreement while negotiations continue and whether the employees agree to continue working. It boils down to whether management or the union changed the status quo.
The court found that the record established that the Board did not withhold work in an effort to gain a bargaining advantage. The applicable CBA expired in July of 2017. The parties began negotiating in April of 2017 and the Board permitted work to continue under the preexisting agreement all the way into March of 2019 when the strike commenced. The Court further found that the Board had made a last, best, and final offer to the union but did not implement it or threaten to implement it. Therefore, the Court found that it was not the employer who had changed the status quo. The union on the other hand, did not act reasonably under the circumstances because it could have pulled its strike notice, continued to negotiate and continued to work while doing so, and then it could have ultimately refiled the strike notice if need be. Because it was the union that changed the status quo, and doing so was unreasonable under the circumstances, there was credible evidence for the Unemployment Commission to find that the employees were ineligible for benefits because they were not subjected to a lockout.
Ohio Assn. of Pub. School Emps. v. Unemp. Comp. Rev. Comm., 2020-Ohio-4028
