by Bronston McCord | Apr 11, 2018 | Board Policy & Representation, Labor and Employment
The U.S. Department of Labor (DOL) has issued an official statement of Wage and Hour Division policy concerning athletic coaches for public schools. Opinion Letter FLSA2018-6, issued on January 5, 2018, is an exact reproduction of a previous Wage and Hour Division opinion that was issued in 2009 and then rescinded less than two months later.
This Opinion Letter states that community members who coach public school athletic teams qualify as teachers under the Fair Labor Standards Act (FLSA) and are therefore exempt from FLSA’s minimum wage and overtime pay provisions.
It is important to note that this exemption applies only to coaches who are not employees of the school district. It does not apply to coaches who are employed in another nonteaching capacity by the school district. In the latter case, these coaches are not exempt from the FLSA’s minimum wage and overtime pay provisions.
The DOL explains that coaches spend most of their time instructing student athletes in the rules and fundamentals of their respective sports. When not instructing players, coaches recruit students, supervise them during trips to and from games, discipline them when necessary, and account for their equipment. “Coaches qualify for the exemption if their primary duty is teaching and imparting knowledge to students in an educational establishment.”
Furthermore, a teaching certificate is not required to qualify for this FLSA exemption, nor is a certain minimum education or degree. “Thus, coaches whose primary duty is teaching qualify for the exemption whether or not they hold a teaching certificate or an academic degree.”
Therefore, based upon this new guidance, a school may pay its coaches as it deems appropriate so long as they are not otherwise employed by the district in a nonteaching capacity.
by Pamela Leist | Mar 30, 2018 | Labor and Employment, Legislation
The Ohio House of Representatives is expected to vote on a bill that would create a license for individuals to serve as substitute pupil services personnel. HB 491 passed in the House Education and Career Readiness Committee on March 21 by a vote of 16-0. The bill enacts a new section of the Revised Code (3319.2210) that would require the state board of education to issue a substitute license to individuals who meet certain criteria and wish to serve as substitutes in the following positions:
- Speech language pathologists
- Audiologists
- Registerd nurses
- Physical therapists
- Physical therapist assistants
- Occupational therapists
- Occupational therapist assistants
- Social workers
The current version of HB 491 would require the superintendent to request and recommend an individual for the new license. Any candidate who wishes to obtain the license must submit both a copy of a valid occupational license as well as all materials necessary to complete a criminal background check. The license may include a term of 1–5 years as determined by the state board. The state board is prohibited from requiring any additional qualifications beyond those listed in the statute. A school district may only hire a substitute license holder in a substitute capacity.
The Ohio House will meet again during the second week in April, when it is expected to vote on this bill.
by John E. Britton | Nov 21, 2017 | Labor and Employment
The Ohio Supreme Court recently determined that a substitute custodian was not a “regular nonteaching school employee,” a designation that would have entitled him to better wages and benefits. The employee, substitute custodian Kurt Singer, demanded that the Fairland Local School District recognize him as a regular nonteaching employee since 2006 and pay him the additional back wages and benefits that he would have been qualified for under that designation.
Ohio law does not define “regular nonteaching school employee.” Under R.C. 3319.081, “regular nonteaching school employees” in local school districts, including hourly and per diem employees, are under a one-year contract for their first year, then a two-year contract for their second and third years. If renewed, a subsequent contract is a continuing contract, which includes other benefits such as paid leave as well as termination only for just cause. Because Singer worked hours and performed job functions similar to contractual custodians, he argued that he met the definition of a regular nonteaching school employee.
From 2006, when Singer was hired as a substitute custodian, to June 2016, every day that Singer worked for the district was recorded as “substituting.” Alleging that he had asked for a contract but was denied, he requested benefits and back wages to the 2009–2010 school year, which is when he would have received continuing contract benefits if the contract was granted. Singer asked the Supreme Court to compel Fairland Local to recognize him as a regular nonteaching employee and to provide a continuing contract.
The court found that Singer did satisfy the requirements of working full-time and at least 120 days within a school year for the first seven years, but he did not satisfy the requirement of being a “regular” employee. In the absence of a statutory definition of “regular,” the court turned to Black’s Law Dictionary to find the definition “steady or uniform in course, practice, or occurrence; not subject to unexplained or irrational variation.” The court examined Singer’s employment and found that it was not regular in terms of days of service, hours, and school-building assignments. Additionally, Singer worked anywhere from four to ten days in a pay period, and during many pay periods he worked even fewer than four days.
Additional facts leading to the court’s decision include that Singer had no regular location assignment but worked routinely in any of the district’s four buildings – sometimes in more than one building in the same day, and other times in the same building on a daily basis. Furthermore, Singer was able to turn down opportunities to substitute, and at times he did so.
In consideration of these facts, the court issued a 6-1 decision holding that “we cannot conclude that Singer’s employment was in any meaningful way ‘regular.’”
– State ex rel. Singer v. Fairland Local School Dist. Bd. of Edn., Slip Opinion No. 2017-Ohio-8368.
by Bronston McCord | Jun 22, 2017 | Labor and Employment
In an arbitration decision published June 12, a grievance calling for a school district’s employment benefits to continue past the effective date of a teacher’s resignation was denied. After three teachers retired, their health insurance benefits ceased, but the teachers’ association demanded that the school district continue to provide and pay for these benefits up to the end of the school year, defined by the contract as August 31.
The basic facts of this grievance were undisputed. Both the school district and the teachers’ association agreed that the collective bargaining agreement (CBA) contained the agreed terms regarding employment benefits. These terms noted that all full-time employees are eligible to participate in the district’s insurance plan on a “yearly basis.”
Three employees who had participated in the insurance plan submitted their resignation to be effective on the last working day of the school year. Because they had fulfilled their contractual obligation to work the required number of days, they continued to receive payment for the school year through August. However, their health and other fringe benefits ceased as of the effective date of their resignation or the last day of the month of their resignation, in accordance with the CBA.
The teachers’ association filed a grievance arguing that the fringe benefits should continue through the entire school year, as defined by the CBA to end on August 31, as the employees had received their paychecks through that period.
The district argued that its past practice had always been to terminate employment benefits as of the effective date of resignation and was able to show that it had consistently held to that practice. Furthermore, employees who were contemplating retirement were routinely advised of severance matters by the district treasurer, including notification that health, dental, vision, and/or life insurance generally would end as of the effective date of resignation.
Interestingly, the previous teachers’ association president, who had more than two decades of leadership in the association, provided testimony that when an employee resigns or retires, the employee severs the employment relationship, and the fringe benefits and other contractual entitlements cease as of the date of resignation or at the end of the month. Additionally, she had encouraged the association to bargain for fringe benefits to continue through the end of the school year but was unsuccessful in bargaining for this very provision.
The arbitrator agreed with the Board of Education and held that an employee ceases to be an employee as of the effective date of resignation and as such ceases to be a member of the bargaining unit covered by the CBA. The arbitrator went so far as to declare that the association is “estopped from taking a contrary position through this Grievance since it has been long-standing and it has been aware of the District’s practice.” The association, the arbitrator held, must bargain for this provision in the contract if it is so desired.
by Erin Wessendorf-Wortman | Jun 6, 2017 | Board Policy & Representation, Labor and Employment
Reversing the decision of two lower courts, the Ohio Supreme Court recently ruled that absent negotiated language in a collective bargaining agreement (CBA) limiting an arbitrator’s authority to modify a disciplinary action for just cause, an arbitrator has authority both to review the disciplinary action and to fashion a remedy that is outside the scope of the CBA.
A City of Findlay police officer was first disciplined in 2012 for conduct unbecoming. This discipline was grieved, taken to arbitration, and then modified by the arbitrator to be in line with the city’s use of a discipline matrix.
Later that same year, the same officer was found to have violated the department’s sexual harassment policy, and termination of the officer’s employment contract was recommended. The termination was grieved and taken to arbitration. The arbitrator determined that the city did not present evidence to support termination, and therefore he set aside the termination. Instead, the arbitrator determined that the disciplinary matrix could not be used, stated that a “lengthy disciplinary suspension [was] warranted,” and imposed a five-month suspension. The city appealed this decision to the county common pleas court. Both the common pleas court and the appeals court agreed with the city and found that the arbitration award did not draw its essence form the CBA and was arbitrary, capricious, and unlawful (i.e., the arbitrator overstepped his authority and power). However, the Ohio Patrolmen’s Benevolent Association, on behalf of the officer, appealed these decisions to the Ohio Supreme Court.
The Supreme Court was left to determine whether the just cause discipline provision in the CBA authorized an arbitrator to change the disciplinary action recommended by the employer (in this case, the police chief using a disciplinary matrix). Key to this case was the fact that the disciplinary matrix used by the department to discipline the officer was not part of or mentioned in the CBA. Furthermore, the CBA neither mentioned the department’s disciplinary procedures nor restricted an arbitrator’s authority to review the appropriateness of the type of discipline imposed upon finding just cause for discipline. Absent this limiting language in the CBA, the arbitrator was free to fashion a remedy that he believed was appropriate.
Only Chief Justice Maureen O’Connor dissented from the court’s majority opinion, noting that the case should not have been accepted by the Supreme Court in the first place and that the majority’s decision could have unintended consequences as it seems to throw out the consideration of past practice(s). She noted that the department used the matrix as a past practice as the basis for disciplinary action, and the inability to rely on this or throw it out of consideration is dangerous. O’Connor concluded that under the majority opinion, even if a past practice is established related to disciplinary outcomes, an arbitrator could modify the discipline if the practice is shown as not specifically bargained for and incorporated into the CBA. This, in her opinion, is an undesirable result.
School districts should be aware that this holding by the Supreme Court could impact arbitrations and the review of the same by courts in Ohio. The court concluded, “Any limitation on an arbitrator’s authority to modify a disciplinary action pursuant to a CBA provision requiring that discipline be imposed only for just cause must be specifically bargained for by the parties and incorporated into the CBA.”
Ohio Patrolmen’s Benevolent Assn. v. Findlay, Slip Opinion No. 20147-Ohio-2804.
by Erin Wessendorf-Wortman | May 31, 2017 | Board Policy & Representation, Labor and Employment
In our May issue of School Law Review, we covered important dates and procedures for teacher nonrenewal, including the required May dates for evaluations. Unless a collective bargaining agreement provides otherwise, a board of education that wishes to nonrenew a teacher must evaluate the teacher in accordance with R.C. 3319.111, which provides that observations for teacher evaluations must be completed by May 1 and that teachers must receive a written report of their evaluation results by May 10.
In June and July are other important dates on teacher nonrenewal and resignation. Check your collective bargaining agreement for any additional requirements or timelines that must be met. Below are important dates and procedures on handling changes in teaching staff.
- June 1: Deadline for employers to submit written notice of intent to nonrenew a teacher.
- July 10: Deadline for teachers to submit notice of resignation. After this date, a board of education is not obligated to release teachers from their contract.
Resignations
A teacher may rescind notice of resignation only if it has not been formally accepted by the board. After the board accepts a resignation, the teacher may not withdraw the resignation.
Licensure of New Hires
New teachers’ licenses must be effective as of their first day on the job, regardless of whether class is in session. A board of education is not authorized by law to pay a teacher unless the teacher holds an effective state-issued license. Treasurers and superintendents should check each newly hired teacher’s license for verification of the effective date of licensure. Contact an Ennis Britton attorney if your district has any issues with teacher licenses in pending status.
Nonrenewal Procedure: Timeline
- The nonrenewal process begins when the board of education passes a resolution not to renew a contract and the treasurer sends notice of the decision to the teacher.
- Within 10 days of receipt of the notice of nonrenewal, a teacher may file with the treasurer a written demand for a description of the circumstances that led to the board’s decision to nonrenew the teacher.
- Within 10 days of receipt of the written demand, the treasurer must provide the teacher with this written statement of circumstances. This statement sets forth the substantive basis for the nonrenewal and must also expressly state the reasons for the nonrenewal.
- Within 5 days of receipt of the statement of circumstances, the teacher may file with the treasurer a written demand for a hearing before the board of education.
- Within 10 days of receipt of written demand for a hearing, the treasurer must provide the teacher with a written notice of the time, date, and place of the hearing. The hearing must be conducted within 40 days of the date on which the treasurer received the demand for a hearing (see below for more on the hearing).
- Within 10 days of the hearing, the board must issue a written decision to the teacher either affirming or vacating its intention not to renew.
- Within 30 days after receipt of the written decision, the teacher may file an appeal in the court of common pleas.
Nonrenewal Hearings
A nonrenewal hearing before the board of education must be conducted by a majority of the members of the board of education. The statute does not permit a designee to conduct the hearing. The hearing must be held in executive session unless both the board and the teacher agree to hold it in public. The board members, teacher, superintendent, assistant superintendent, legal counsel for the board, legal counsel or other representative of the teacher, and any person designated to make a record of the hearing may attend the hearing held in executive session.
The content, purpose, and procedures for the hearing are not addressed in the Ohio statute. However, the Ohio Supreme Court has held that the hearing should be more than an informal opportunity for the teacher to express objections to the board’s decision. Therefore, the nonrenewal hearing should contain, at a minimum, the presentation of evidence, the examination of witnesses, and a review of the parties’ arguments. Other Ohio courts have held that evidence is not limited to the current school year but may include that from previous school years as well. Based on the hearing, the board will either affirm or vacate its intention not to reemploy the teacher.
Appeals
If the board affirms its intention to nonrenew, the teacher may appeal the board’s decision to the court of common pleas. The court of common pleas is generally limited to determining if the district made procedural errors during the nonrenewal. The teacher may not challenge the board’s decision, and the court may not consider the merits of the board’s reasons. Therefore, the court may order that the teacher be reinstated only if it finds that the evaluation procedures were not followed or that the teacher was not provided with written notice of intent to nonrenew by June 1. If the court finds that either of these violations has occurred, it may reinstate the teacher but is not required to do so.
