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.
by Ryan LaFlamme | May 16, 2017 | Labor and Employment, Workers’ Compensation
The Supreme Court of Ohio recently issued an opinion in a workers’ compensation case in which an employer was sued for disability payments even after the employee had quit and moved on to another job.
The employee, Norman James Jr., worked for Walmart at the time he was injured. The injury fractured a surgical screw in his neck from a prior surgery, and he was allowed some compensation for certain conditions related to that injury. He returned to work after being fully released by his doctor, and then he quit his job one-and-a-half years later. He briefly worked at Petco and then began working for Casper Service Automotive. After a few months he was fired from Casper for excessive absenteeism.
More than a year later, James filed a motion for temporary total disability (TTD) payments against Walmart – retroactive to the day after he was fired from Casper. Walmart contested the claim on the grounds that the medical evidence did not support an award and that James had voluntarily abandoned his job when he was fired for cause from Casper.
If an injured worker does not return to his or her former position of employment as a result of the worker’s own actions rather than the industrial injury, the worker is considered to have voluntarily abandoned his or her employment and is no longer eligible for TTD compensation. However, an injured worker who voluntarily abandons employment but reenters the workforce will be eligible to receive TTD compensation from the original employer if, due to the original industrial injury, the claimant becomes temporarily and totally disabled while working at the new job. Thus, James had the burden of proving that his termination from Casper for excessive absences was due to his industrial injury at Walmart.
The Industrial Commission ruled against James, finding that the medical evidence did not support his claim. The next month, James again filed a request for TTD. This time, the hearing officer ruled that the matter had already been adjudicated, that James had voluntarily abandoned his job at Casper, and that he was not employed by either Casper or Walmart when his alleged disability recurred.
James then filed a mandamus action in the court of appeals, challenging the Industrial Commission’s ruling. The magistrate affirmed the Industrial Commission’s ruling, and the employee filed objections. The court of appeals agreed that James had voluntarily abandoned his employment at Walmart, but it sent the case back to the Industrial Commission to hear further evidence as to whether the employee was fired from Casper or laid off.
After an unsuccessful attempt at mediation, the case then came to the Ohio Supreme Court by way of appeals. The Supreme Court found that James had voluntarily quit his job at Walmart because his departure was not due to his industrial injury but rather so that he could pursue other employment. The court distinguished the case relied on by the employee, in which employees were laid off after their injuries, finding that James had presented no evidence that his industrial injury caused the excessive absences for which he was fired: “[A] key tenet in temporary-total-disability cases is that ‘the industrial injury must remove the claimant from his or her job. This requirement obviously cannot be satisfied if the claimant had no job at the time of the alleged disability.’”
Districts should be aware that they may have liability for TTD claims even after an injured worker has moved on to other employment. An employer would certainly be liable if the industrial injury is the cause of the departure – whether from the current or a subsequent employer – even if an employee is terminated for excessive absences. If the absences are caused by the industrial injury, the employee may be entitled to TTD. However, if the separation is not caused by the industrial injury, the employee is not losing wages due to the injury, and so no TTD can be awarded. TTD would also be denied, as in this case, where a new period of disability begins without the employee having a job at the time.
– State ex rel. James v. Wal-Mart Stores, Inc., Slip Opinion No. 2017-Ohio-1426.
by Jeremy Neff | Jun 2, 2016 | Labor and Employment, Legislation
Effective December 1, 2016, “white collar” salaried employees not otherwise exempted from the overtime rules in the Fair Labor Standards Act (FLSA) will be eligible for overtime pay if their annual salary is less than $47,476. President Obama asked the Department of Labor to revise the exemption threshold of the FLSA from the current level of $23,660, which has not changed for more than a decade. The new amount more than doubles the current salary threshold.
Broad exemptions from FLSA overtime rules exist for executive, administrative, professional, outside sales, and computer employees. These exemptions are based on specific job duties as well as salary thresholds. In other words, an employee might have the duties of an administrator but not be exempt from overtime rules because her salary does not exceed the income threshold.
When this new rule takes effect, employers will have several options for employees who will no longer be exempt from the FLSA overtime rules:
- Pay time-and-a-half for overtime (granting compensatory time may be an option created through collective bargaining)
- Increase salaries above the threshold via regular pay or bonus pay with certain restrictions
- Limit workers’ hours to 40 per week
- Decrease base hourly pay to offset any increased overtime costs
- Combine any of the above options
What This Means to Your School District
Common positions of concern in school districts include technology directors, food service supervisors, maintenance supervisors, and transportation supervisors. Even though these positions might previously have qualified for the administrative exemption, with the increased salary threshold many will no longer be exempt after the revised rules go into effect. The FLSA provides a special exemption from the professional employee salary threshold for teachers. Even if a teacher does not meet the new $47,476 threshold – and many will not – the rules still exempt them from overtime. A similar special rule applies to “academic administrative employees” as long as they are paid at least base teacher pay.
School districts may potentially have professional employees who do not neatly fit into the “teacher” and “academic administrative employee” categories. Ennis Britton attorneys are able to assist districts in identifying such employees and exploring how the new rules affect them.
School districts must track eligible employees’ hours and pay overtime as appropriate. Districts should maintain proper payroll records and require that employees submit time records. The burden is on employers to ensure FLSA compliance. Laws limiting salary reductions for school employees must be considered when planning for the new rules. Ennis Britton attorneys are available to help with any questions regarding these changes, such as which employees are affected by this change, how to maintain payroll records, and how job descriptions and the duties test apply.
by Gary Stedronsky | Jan 12, 2016 | Labor and Employment, School Management
The U.S. Supreme Court heard oral arguments on January 11th in an important case that could eliminate union “fair share fees” and make every state in the country a “right to work” state.
The case was initially filed in California and involves a group of teachers who decided not to join the teachers’ union. It is interesting to note that the case has almost no factual record. This is because the teachers admitted that the lower courts did not have the authority to decide in their favor in light of the U.S. Supreme Court’s 1977 decision in Abood v. Detroit Board of Education, 431 U.S. 209 (1977). They requested that the lower courts rule against them so the case could be presented directly to the Supreme Court.
It was somewhat surprising that the Supreme Court even agreed to hear the appeal because it previously approved fair share fees in the Abood decision. We thought this might be an indication of the Court’s willingness to overturn its Abood decision and prohibit mandatory fair share fees. Our initial thinking was further bolstered yesterday by the tough questions posed by the Court to the union at oral argument. For instance, Justice Kennedy, who often serves as a swing vote, said:
“The union basically is making these teachers compelled riders for issues on which they strongly disagree. Many teachers think that they are devoted to the future of America, to the future of our young people, and that the union is equally devoted to that, but that the union is absolutely wrong in some of its positions. And agency fees require, as I understand it, correct me if I’m wrong, agency fees require that employees and teachers who disagree with those positions must nevertheless subsidize the union on these very points.”
Ohio law (R.C. 4117.09) permits fair share fees if the public employer and union have agreed in a collective bargaining agreement to require fair share fees as a condition of employment. A ruling in this case against the union will have huge implications for Ohio’s public sector unions. If the Court rules in the favor of the non-union teachers, it would declare that it is unconstitutional for a state to allow public sector unions to charge a mandatory fair share fee to non-members. This would likely mean that non-members could not be forced to pay a fair share fee if they do not agree to pay the fee, which would obviously have a negative impact on the revenue of unions and could lead to more resentment from union members against non-members (or so-called “free riders” as they are often referred to).
A decision in this case is expected later this summer. We will continue to monitor any developments and will update our clients as soon as the decision is announced.
Friedrichs v. California Teachers Association (Case No. 14-915).
UPDATE:
The U.S. Supreme Court announced on March 29th, 2016 that it was deadlocked with a 4-4 decision on a case brought before it to challenge the practice of public employer unions collecting fair share fees.
Initially filed in California by a group of teachers who decided not to join the union, the case served as a direct challenge to a well-recognized U.S. Supreme Court decision from 1977, Abood v. Detroit Board of Edn., which declared fair share fees legal.
Many interpreted the Supreme Court’s decision to hear the case as an indication that Abood may be overruled given the Court’s more conservative composition. However, the death of Antonin Scalia, who presumably would have provided the swing vote to overturn Abood, passed away before the decision was rendered.
A split decision in this case means that, at least for now, Abood remains good law and the practice of fair share fees will continue. This is a decisive victory for unions across the nation, although representatives from both sides have indicated that they may request a rehearing on the matter.
by Ryan LaFlamme | Oct 20, 2015 | Labor and Employment, Unemployment
Friedel v. Quota, 2015-Ohio-4060
The Sixth Appellate District (Williams County) has reversed a trial court ruling which overturned the unemployment Commission’s (ODJFS) grant of benefits to a truck driver who quit his job. At the initial hearing, the truck driver claimed to have quit because his truck broke down and his employer refused to assist.
The truck driver claimed that the employer provided debit card did not have enough funds to make the repairs, that the employer refused to assist because he was intoxicated and that he had to summon his son-in-law to the scene for assistance, who had to drive eighty miles in the middle of the night.
The employer testified that his understanding at the time of hire was that the employee was able to make minor repairs, that there were in fact sufficient funds on the card provided, that the employer recommended he call his son-in-law because he was employed as a road services tech and that the trip was only thirty miles.
ODJFS found in favor of the employer denying the benefits and finding that the employee quit without just cause. The employee appealed. At the appeal hearing, the truck driver claimed for the first time that he quit because his employer asked him to violate federal regulations regarding down time for truck drivers who have driven a certain number of hours. The employee claimed that the employer insisted that he drive a route in violation of law. This caused an argument to ensue and the employee quit. The employer did not participate and the initial decision was reversed, finding that the employee had just cause to quit and was therefore entitled to benefits.
The employer unsuccessfully appealed to the Review Commission and then to the trial court. Before the court, the employer challenged the employee’s credibility by questioning why the employee set forth his most recent justification for the first time on appeal. The trial court agreed finding that the employee had really quit because of the roadside breakdown incident and found in favor of the employer.
ODJFS appealed to the Sixth Appellate District. There, the Court reviewed the standard on appeal. Courts reviewing decisions of the Unemployment Commission are to limit their inquiry as to whether the decision by unemployment is “unlawful, unreasonable, or against the manifest weight of the evidence.” This is a high standard. That reasonable minds might disagree is not enough for a court to overturn the unemployment decision so long as there is “some competent, credible evidence in the record” to support it. The Appellate Court found that the Trial Court had improperly considered the credibility arguments on appeal because there is no rule providing that a claim or defense is waived if not made in the initial application or hearing.
Accordingly there are lessons to be learned from this case:
1. Do not rest until the fight is finished. Here, the employer did not participate in the appeal where the employee’s ultimately successful argument was made. Credibility could have been attacked at this time, rather than improperly before the court. Therefore, make sure you are represented and are participating at all levels of the appeal.
2. The standard on appeal to a court of common pleas is difficult. Courts are generally limited to the record provided by ODJFS. The scope of the review by the court is limited as to whether the hearing officer’s decision was “unlawful, unreasonable, or against the manifest weight of the evidence.”
Please do not hesitate to contact an attorney at Ennis Britton Co., L.P.A., with your questions regarding unemployment.
by Giselle Spencer | Sep 25, 2015 | Board Policy & Representation, Construction & Real Estate, General, Labor and Employment, Legislation, School Finance, School Management, Special Education, Student Education and Discipline
As with most other provisions of the budget bill (Am. Sub. HB 64) some significant provisions impacting Ohio school districts go into effect on September 29, 2015, including the following:
- The maximum amount of a scholarship awarded under the Autism or Jon Peterson scholarship programs increases to $27,000 (up from $20,000).
- School districts must offer real property it intends to sell first to a “high performing community school,” then to other community and college preparatory boarding schools located in the district.
- ODE, in conjunction with an Ohio educational service center association and an Ohio gifted children’s association, must complete and submit a feasibility study for establishment of sixteen regional community schools for gifted children.
- The State Board must develop rules waiving any additional coursework requirements for renewal of an educator license for teachers who are consistently high performing.
- The duration of a pupil activity permit for individuals holding a valid educator license is changed from three (3) years to the same number of years as the educator license.
- The State Board of Education will develop a standards based framework for the evaluation of school counselors. Furthermore, all school districts must adopt a counselor evaluation policy by September 30, 2016, that conforms to the framework and will be implemented beginning in the 2016-2017 school year (will include annual evaluations with ratings of accomplished, skilled, developing, and ineffective just like OTES).
- The alternative teacher evaluation framework is revised to decrease SGM to 35%, maintain the performance rating at 50%, and authorize school districts to determine the appropriate measure or combination of measures for the remaining 15%.
- Exemplary community schools may now operate a preschool program for general education students.
- School districts may enroll under interdistrict open enrollment policies an adjacent or other district student who is a preschool child with a disability. ODE will deduct $4,000 from the resident district and pay that same amount to the enrolling district.
- School districts cannot appropriate monies to purchase an assessment developed by PARCC for use as the state elementary or secondary achievement assessments. Additionally testing for the 2015-2016 school year is reduced.
- Safe harbor provisions in effect during the 2014-2015 school year for state report cards are extended by two years.
- School districts may now enter into a contract with a health care provider for the provision of health care services for students.
- The new requirements for issuance of diplomas to home school students and students from non-chartered nonpublic schools are now in effect.
STEM schools can now enroll out-of-state students.
- Schools may install security doors or barricades as part of an emergency management plan.
- The filing date for financial disclosure statements with the Ohio Ethics Commission is May 15 (instead of April 15).
