by John E. Britton | Feb 3, 2020 | General, Labor and Employment, Unemployment, Workers’ Compensation
Generally,
employees in Ohio are eligible to receive unemployment benefits if they are
laid off from their place of employment. However, under Ohio law, if you are an
“independent contractor,” you are precluded from receiving those benefits. The
Eleventh District Court of Appeals recently held that a truck driver was an
independent contractor as opposed to an employee and therefore, was not
entitled to unemployment compensation.
In Marcus
Roach Express, L.L.C. v. Dir., Ohio Dept. of Job & Family Serv.,
2019-Ohio-5414, a truck driver claimed that he was an employee and entitled to
receive unemployment benefits. The Ohio Department of Job & Family Services
(“ODJFS”) initially issued a determination allowing him to receive benefits,
which the employer appealed to the court.
At issue in
the appeal was whether the truck driver was really an independent contractor,
rather than an “employee” separated from his job due to a lack of work. In
making the determination of employee versus independent contractor, the
Unemployment Review Commission will generally look to the list of twenty
factors outlined in Ohio Adm. Code 4141-3-05(B). Though these factors may be
used by the Commission, they are not necessarily determinative of whether the
individual was or was not “subject to direction and control” over their
services — the primary metric in the analysis of deciding independent
contractor status.
In this
case, the truck driver’s agreement actually stated that he was an independent
contractor and not an employee of the company. Though this fact supports a
finding that he was an independent contractor, the court looked to the totality
of the circumstances in order to determine whether the employer actually had
the right to control the driver’s work.
ODJFS
argued that “control” existed because the employer paid the driver weekly,
approved his time-off requests, owned the delivery truck and paid for its
repairs, required him to turn in logbooks, and continued a working relationship
with the individual for eight years.
The court,
however, noted that the driver was paid based on how many loads he accepted as
opposed to the number of hours he worked. Additionally, the claimant was able
to decide which routes he wanted and was able to set his own schedule, all of
which led the court to conclude that the company did not exercise nor retain a
right to control the individual’s work. Therefore, the driver was considered to
be an independent contractor and was not eligible to receive unemployment
benefits.
This case
should remind us that in the service-oriented nature of public education, there
are limited opportunities to truly employ “independent contractors” for daily
operations of districts. In teaching, feeding, counseling, transporting,
and operating buildings, districts maintain control of personnel in the
delivery of those services — and for good reason. The factors for establishing
a true independent contractor are important to know, particularly when
attempting to defeat a claim for unemployment. While this case is
instructive, should you want to question a request for unemployment
compensation on this basis, it is advisable to contact an Ennis Britton
attorney to review your realistic options.
by Erin Wessendorf-Wortman | Jan 3, 2020 | Board Policy & Representation, General, Labor and Employment, School Management
Like students, teachers do not shed their constitutional right to free speech while at school. However, their rights are not without limits as the Sixth Circuit demonstrated recently when it issued a ruling upholding termination of a teacher. In Sensabaugh v. Halliburton, the District’s head football coach posted concerns on Facebook about the conditions he found when visiting an elementary school (a visit unrelated to his job). One of these posts included photos of a classroom and one included the faces of several students. District officials tried to contact Sensabaugh in an effort to explain their concern that this post could violate school policy as well as FERPA. However, they were unable to get in contact with him.
Meanwhile, Sensabaugh posted a separate entry on Facebook discussing his concerns with prisoners working at the high school. Again, school administration reached out to Sensabaugh to discuss their concerns over the posts. During their conversation, the administration informed Sensabaugh that he did not need to delete the post, but instead asked him to remove only the picture of the students accompanying the post. Sensabaugh yelled at members of the administration and informed them that he would not take the post down.
Following the conversation, administration drafted a “Letter of Guidance” which addressed Sensabaugh’s failure to remove the photos from Facebook, his conduct during the phone call, and other previous misconduct. This letter stated that the administration was not requiring Sensabaugh to remove his comments from his posts but directed him to remove the picture displaying the minor students. The letter clearly stated that failure to follow its directives could lead to discipline up to and including termination. Finally, Sensabaugh agreed to remove the photos from Facebook.
Following the Letter of Guidance, Sensabaugh’s behavior and actions continued to cause problems in the District. This led the administration to issue a Letter of Reprimand which placed Sensabaugh on administrative leave pending investigation. It was alleged that Sensabaugh accused the Athletic Director of coming to work under the influence of prescription pills, as well as threatening a football player and athletic trainer. The administration hired an independent law firm to investigate the alleged misconduct.
The investigator’s report concluded that Sensabaugh had engaged in unprofessional, insubordinate, threatening, and retaliatory behavior towards supervisors, students, and staff. It concluded that Sensabaugh’s actions had intimidated and undermined his coworkers and supervisors. The investigators went on to conclude that Sensabaugh’s repeated, belligerent, and confrontational speech to coworkers made it inconceivable for them to maintain an ongoing employment relationship. As a result, the investigator recommended that Sensabaugh’s employment with the district be terminated.
Administration notified Sensabaugh that the independent investigator had submitted their findings and recommended his termination. Sensabaugh was offered the opportunity to provide any statement or evidence in support of a less severe punishment. However, Sensabaugh never responded. The District then terminated Sensabaugh’s employment.
Sensabaugh sued, arguing that the District retaliated against him for exercising his First Amendment right to free speech. In order for a teacher to prevail on a First Amendment retaliation claim, he must show that: 1) he engaged in protected conduct; 2) an adverse action was taken against him that would deter a person of ordinary firmness from continuing to engage in that conduct; and 3) that the adverse action was motivated at least in part by the protected conduct. Bell v. Johnson, 308 F.3d 594, 602 (6th Cir. 2002).
The Sixth Circuit Court of Appeals first determined that the Letter of Guidance was not an adverse action. The letter did not impose any discipline, but instead simply imposed directives that Sensabaugh needed to follow in order to avoid discipline. Likewise, the Court also found that the Letter of Reprimand was not an adverse action. Though the letter resulted in paid administrative leave, this still did not result in an adverse action. Ehrlich v. Kovack, 710 F.App’x 646, 650 (6th Cir. 2017).
There is no dispute that the termination was an adverse action. However, Sensabaugh must show that the Facebook posts were a substantial or motivating factor in the adverse employment action. Though the Letter of Guidance, Letter of Reprimand, and termination came within six months after the Facebook posts, temporal proximity alone is rarely, if ever, sufficient to establish the causation requirement. Here, there was no other indication to demonstrate that Sensabaugh was terminated because of his Facebook posts. The court noted that at no time leading up to the termination did the administration ask or require Sensabaugh to remove the Facebook posts. Instead, the letters acknowledged Sensabaugh’s right to comment on public concerns. He was asked to remove the content from his posts that violated FERPA. Additionally, the independent investigation substantiated other allegations of misconduct that supported termination.
Ultimately, the court determined that when deciding to end Sensabaugh’s employment, the District relied on several instances of misconduct which were unrebutted by Sensabaugh. There was no indication that the viewpoints expressed in his Facebook posts (other than the FERPA-protected images of students) played any part in the District’s decision to terminate. Therefore, the District did not violate his constitutional rights.
Sensabaugh v. Halliburton, 937 F.3d 621 (6th Cir.2019)
by Robert McBride | Nov 4, 2019 | Board Policy & Representation, General, Labor and Employment, School Management
Under Title VII of the Civil Rights Act of 1964, employers may not discriminate against employees on the basis of several protected classes, including sex. Thus, courts and administrative agencies have interpreted Title VII to prohibit an employer from engaging in discrimination related to pregnancy, childbirth or maternity/paternal leave. Employers must treat a woman who is disabled due to pregnancy, childbirth, or related medical conditions in a similar manner to other disabled employees. However, any additional benefits provided to male or female parents, whether discretionary or mandated by statutes such as the Family and Medical Leave Act, must be made available in a non-discriminatory fashion.
The Equal Employment Opportunity Commission (“EEOC”) has stressed the importance of employers clearly explaining the types of leave available to all employees. Employers should distinguish between leave related to the physical limitations due to pregnancy or childbirth and leave related to bonding with or providing care for a child. An employer may limit leave related to the physical conditions of pregnancy or childbirth to the women affected by these conditions. However, if an employer extends leave to new mothers beyond the recuperation period of childbirth in order to care or bond with the baby, an equivalent amount of leave must be available to fathers for the same purpose.
This guidance was put into practice in 2017 when a class of male employees filed a lawsuit against JP Morgan Chase (“Chase”). A group of male employees alleged that Chase’s parental leave provisions were discriminatory in violation of Title VII. Chase allowed a parent to take 16 weeks of paid parental leave if they were the primary caregiver to the child. Chase automatically granted this additional leave to women. When male employees applied for this leave, however, they were required to prove that their partner had returned to work or was incapable of caring for the child. If the male employees could not make this showing, Chase provided a mere 2 weeks of paid leave. In May of 2019, Chase ultimately agreed to settle the dispute for $5 million and agreed to maintain a gender-neutral leave policy moving forward.
If your district offers maternity leave strictly to women who are disabled due to pregnancy, childbirth or related conditions, you do not need to offer the same kind of leave to men. However, if your district offers additional leave to allow the mother to bond or care for the child, then the father is entitled to the same leave as the mother would be. Lastly, regardless of the district’s parental leave policy, it is important that all districts ensure that they do not discriminate hen determining who is eligible for parental leave.
You can review guidance on this topic from the EEOC. EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues, Number 915.003, (June 25, 2015). Click here to access it.
by Pamela Leist | Sep 26, 2019 | Board Policy & Representation, General, Labor and Employment, Legislation, School Management
The Sixth District Court of Appeals delivered a win to school districts recently when it reversed a lower court’s decision ordering the Perkins Local School District to reinstate a former teacher who had been terminated with an award of $367,202.52 in lost wages and benefits. The case was brought by former teacher and coach Tracey Hiss. Hiss was terminated for cause after the district learned she supplied several members of her girls track team with Lidoderm patches – prescription patches containing lidocaine that help with pain relief.
When the superintendent learned of the allegations, he met with Hiss and subsequently placed her on paid leave pending further investigation. He also reported the allegations to the police, who subsequently charged her with a minor misdemeanor for her actions. The district held a pre-disciplinary hearing and the superintendent sent notice of his intent to recommend termination. Hiss, through legal counsel, objected to some of the reasons listed in the notice because they had not been addressed at the pre-disciplinary hearing. The superintendent subsequently held another pre-disciplinary hearing and again recommended termination which the board approved. Hiss requested a hearing to challenge the board’s intent to terminate before a state appointed referee. At the termination hearing, Hiss introduced evidence of an incident where a prior coach, Crabtree, had given a student Tylenol to help reduce pain. She argued that the board should not have terminated her contract due to the fact that this teacher merely received a reprimand and a brief suspension from coaching, where she was being terminated.
After conclusion of the five-day hearing, the referee issued his report and recommendation that the board terminate Hiss’s teaching contract. In making this recommendation, the referee found that the board had sufficient policies prohibiting teachers from both possessing and distributing controlled substances and medicines to students without a parent’s permission.
Shortly thereafter, the Board adopted the referee’s recommendation and passed a resolution to terminate Hiss’s teaching contract. Hiss then appealed this decision to the common pleas court. The court applied the Daughtry test of good and just cause, concluding that the board lacked cause to terminate Hiss’s contract. The court focused in particular on the fact that Crabtree, who had engaged in similar behavior, received a much less severe discipline. The district appealed, claiming in part that the court of common pleas abused its discretion in applying this new test and effectively usurping the role of the ODE referee.
On appeal, the Sixth District Court of Appeals agreed that the court of common pleas abused its discretion when it substituted its own judgement in place of the board of education. The court of appeals concluded that the court’s reliance on the Daugherty test to define “good and just cause” was misplaced. The court reasoned that, while an arbitrator may use the Daugherty test to determine the standard of good and just cause in a labor-arbitration matter, the Ohio Supreme Court has failed to adopt the Daugherty test in just cause teacher termination cases. Thus, the common pleas court exceeded its authority by relying on the Daugherty test as opposed to the cases interpreting R.C. 3319.16 as to whether good or just cause exists.
Examining the merits of the case, the court also determined that Hiss’s misconduct was , a “fairly serious matter” that falls within the realm of good and just cause for termination under R.C. 3319.16. Hiss repeatedly gave prescription pain medicine to students in direct violation of district policy that could have ultimately caused serious harm to the students. The court opined that this added to the fact that the board of education complied with procedural requirements of R.C. 3319.16 by providing Hiss with two informal hearings as well as a hearing before the referee justified the board’s decision to terminate. Therefore, the board’s earlier decision to terminate Hiss’s teaching contract was reinstated.
by Giselle Spencer | Aug 16, 2019 | Board Policy & Representation, General, Labor and Employment, Legislation, School Finance, School Management
The Ohio Attorney General’s Office recently released an opinion in response to a request for legal advice on the issue of arming school staff. The letter requested, among other things, an analysis on how the training requirements under R.C. 109.78(D) apply to school employees authorized by the board of education to carry or possess a deadly weapon on school property under R.C. 2923.122(A).
R.C. 109.78(D) in full provides:
“(D) No public or private educational institution or superintendent of the State Highway Patrol shall employ a special police officer, security guard, or other position in which such person goes armed while on duty, who has not received a certificate of having satisfactorily completed an approved basic police officer training program, unless the person has completed twenty years of active duty as a police officer.”
As noted, R.C. 2923.122(A) prohibits any person from knowingly conveying, or attempting to convey, a deadly weapon into a school safety zone. However, there is a specific exception set out in R.C. 2923.122(D)(1)(a) which excludes any other person from this prohibition:
“who has written authorization from the board of education or governing body of a school to convey deadly weapons… in a school safety zone or to possess a deadly weapon… in a school safety zone and who convey or possesses the deadly weapon… in accordance with that authorization.”
The letter sought advice on whether or not a school employee who has been authorized to carry a deadly weapon by the board of education under R.C. 2923.122(D)(1)(a) is subject to the training requirements of R.C. 109.78(D). The Attorney General’s Office reiterated their argument laid out in their amicus brief in the appeal of Gabbard v. Madison Local School Dist. Bd. of Edn. The court in that case concluded that school employees authorized by the board of education to carry firearms on school premises were not subject to the training requirements of R.C. 109.78(D) because they were not employed by the district in a security capacity. The Attorney General’s Office agreed and opined that in order to determine which provision outlined above is applicable to an employee hired by a school district, we must analyze whether the individual is employed in a role comparable to that of a security guard or police officer. In doing so, we must look to the person’s job title along with the duties and responsibilities assigned to them.
If an employee is hired by the district in a security capacity, then they are subject to the training requirements expressed in R.C. 109.78(D). (I.e. approved basic training police program, or twenty years active duty of a police officer). However, any other employee hired by a school district who does not serve in such a role, i.e. teacher, principal, custodian, and who is authorized by the board to carry or possess a firearm under R.C. 2923.122(D)(1)(a), is not subject to the training requirements of R.C. 109.78(D).
by Gary Stedronsky | May 23, 2019 | Board Policy & Representation, General, Labor and Employment
Given their choice to enter into elective office, school board members are typically service oriented individuals. They are very active in their communities and are often interested in the athletic programs of their district. Thus, it is not surprising that many school board members would want to help out by coaching or assisting a coach with an athletic team. On January 9, 2019 the Ohio Ethics Commission received a request from a district’s superintendent for an advisory opinion letter on behalf of a board member. The member wanted to pursue a coaching position with the district and asked if he could accept employment as a paid coach or serve as a volunteer coach.
The opinion indicates that a board member is prohibited, under Ohio ethics laws, from being employed as a paid coach by the district they serve. Ohio Revised Code section 3313.33(B) expressly states that members of the board may not “be employed in any manner for compensation.” RC 2921.42 (A)(4) also provides that a public official is prohibited from having an interest in the profits and benefits of a contract of the public agency he or she serves. A school board member who is a compensated employee of a district would have an interest in the district by entering into an employment contract as a coach. As a result, the commission’s opinion states that “RC 2921.42(A)(4) prohibits the school board member from serving simultaneously as a paid district coach.”
The opinion further provides that a board member may volunteer as a coach without any compensation. There is no statute that prohibits a member from serving as a volunteer coach. Additionally, there is no prohibited interest in a public contract when a board member volunteers his or her time without compensation. Although, members in this position may be required to abstain from participating in matters directly affecting the athletic department. This could include voting, discussing, deliberating or taking any other actions regarding athletic department personnel. They may also be required to abstain from voting on an employment/supplemental contract for an employee who works in that sport/activity or who oversees the program in which the board member volunteers (ie – athletic director) because of concerns about undue influence. However, the Ethics Commission found that a member was “not prohibited from participating in matters that affect all athletic department personnel within the district uniformly” (i.e. voting on a CBA that includes an increase in compensation to supplemental positions) or from participating in general budgetary matters that might include funding for athletics and compensation or benefits for employees.
It appears that the Ethics Commission likely issued the opinion to address the situation where board members volunteer to take the place of a paid supplemental coach rather than to serve as a volunteer in some other capacity, such as announcing the game, taking tickets, etc. However, the Ethics Commission was not very clear in delineating between someone who volunteers as a coach versus someone who volunteers in another capacity. For that reason, board members who volunteer in a capacity other than taking the place of a supplemental position are also advised to follow the advice in this Ethics Commission opinion.
