by Pamela Leist | Jul 31, 2014 | Labor and Employment, School Management
As July comes to a close, schools across Ohio have begun to gear up for another school year. Yet just when you think you have put the chaos of staffing buildings and assigning students behind you, inevitably a teacher who would be very hard to replace at this juncture approaches the district and provides notice that he or she plans to resign to accept a position elsewhere. The question becomes whether the district must release the teacher from his contract. Before you agree to such a proposal, keep the following in mind.
Ohio law places strict limits on when a teacher may terminate a contract of employment absent consent from the board of education. Under ORC §3319.15, a teacher must provide a district with written notice that he or she wishes to terminate an employment contract each summer by July 10th. The law prohibits teachers from terminating a contract beyond that date, or at any point during the school year. The law also states a teacher must provide at least five days’ notice to the board before voluntarily terminating any agreement.
Interestingly enough, a board of education cannot seek an injunction in court to force a teacher to return to work if he or she attempts to resign beyond the narrow statutory window, or simply refuses to show up for work after the July 10th deadline. Such an injunction would violate the state and federal Constitutions’ prohibitions against involuntary servitude (U.S. Constitution, Amendment XIII, and Ohio Const. Art. I).
However, a district is not without some form of recourse. A school district can challenge violations of ORC §3319.15 through the Department of Education. The State Board of Education adopted the Licensure Code of Professional Conduct for Ohio Educators in 2008. Under the Code of Conduct, the State Board of Education may terminate or suspend a teacher’s license for abandonment of a contractual agreement without consent from the employing Board of Education. A teacher’s failure to comply with the law could thereafter have a significant impact on the individual’s future teaching career.
Questions? Contact your district’s legal counsel for more information.
by Pamela Leist | Jul 3, 2014 | Labor and Employment
The U.S. Supreme Court issued yet another precedent-setting decision this week for employers. In Burwell v. Hobby Lobby Stores, Inc., 573 U.S. _____ (June 30, 2104), the Supreme Court held in a 5-4 decision that regulations which require employers to provide health insurance coverage for certain types of contraceptive drugs violate the religious rights of company owners who oppose the drugs for religious reasons.
The case was brought by three closely held for-profit corporations, Hobby Lobby, Mardel, and Conestoga Wood Specialties, to challenge an Affordable Care Act (“ACA”) regulation that required non-exempt employers to provide health insurance plans that covered twenty forms of oral contraception. Four of the twenty drugs prevented development of a fetus post-conception. The owners of the companies, all of whom espouse a Christian ideology, believed that termination of pregnancy post-conception violated their religious beliefs.
The companies initially filed requests for injunctions against the U.S. Department of Health and Human Services (“HHS”) to prevent enforcement of the ACA regulations, claiming the regulations violated the Religious Freedom Restoration Act of 1993 (“RFRA”). RFRA prohibits the Federal Government from taking any action that substantially burdens the exercise of religion unless the action constitutes the least restrictive means of serving a compelling government interest.
The Supreme Court first acknowledged that the owners of the companies have sincerely held religious objections to abortion, and the four contraceptive methods at issue are considered abortifacients. The Court next considered whether the regulations imposed a substantial burden on religious exercise. The Court held that they did because corporations were required to either comply or face penalties of up to $475 million per year. Finally, the Court concluded that while the regulations served a compelling government interest, they were not the least restrictive means by which the government could serve that interest. HHS had already created an alternative system that enabled religious nonprofits to exclude the contraceptives from employee health insurance cost-sharing benefits. Women who are covered by the system can still access the drugs, but their employers do not share the cost. The Court reasoned that for-profit corporations should also be able to participate in the alternative system.
The majority rejected the argument that corporations were not defined as “persons” under law, but instead expanded RFRA and potentially other federal protections to corporations now and in the future. They also disagreed with the claim that the plaintiffs could reduce the burden by electing to drop insurance coverage and thus reduce the penalties, citing the fact that employers would be a significant competitive disadvantage if they stopped offering health insurance to employees.
Justice Ginsberg, writing for the dissent, criticized the majority opinion and argued that the decision forced women who do not necessarily share the religious views of their employers to absorb the cost of contraception. Ginsberg cited a national study that concluded out of pocket expenses for women were as much as 68% higher than for men. Ginsberg also summarily disagreed with the majority’s conclusion that a for-profit corporation was a “person” covered by RFRA.
Ultimately, the Supreme Court decision in Burwell will force courts to reexamine the rights of corporations across the nation, and could have a potentially far-reaching impact on all employers in the near future.
by Erin Wessendorf-Wortman | Jun 30, 2014 | General, Labor and Employment
In a 5-4 decision, the U.S. Supreme Court ruled today that partial-public employees could not be required to pay fair-share fees when the only reason the partial-public employees were deemed to be “public” employees was solely for union formation and collection of dues. The case arose out of Illinois, where lawmakers classified home health care workers, paid by federal Medicaid dollars, as State employees. The home health care workers were then required to pay dues/fair-share fees to the Service Employees International Union. SEIU was the exclusive union to bargain with Illinois over wages, hours, working conditions, and other terms and conditions of employment.
However, and key to the Court’s decision in this case, the home health care workers were controlled by the customers they served, not the State of Illinois. The job duties of the home health care workers were set by customers and the customers’ physicians. Customers have complete discretion in hiring any home health care worker meeting the State’s criteria and qualifications. Customers control all supervision and evaluation(s) of the home health care workers, and the State has no power to enter a customer’s home to evaluate job performance. The customer had the sole authority of discharge of the home health care workers; the State could not discharge a home health care worker from a customer’s home for substandard performance.
In relying on the terms of their employment, the Court found the home health care workers to be partial-public employees, and therefore, different than public-school teachers or police officers who work directly for the government or a political subdivision. Because states often set wages for partial-public employees, like home health care workers, and because unions often do not conduct collective bargaining for them, the Court determined that the home health care workers could not be required to pay union fees.
The Court found that, except in the exceptional circumstances, “no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”
For the full opinion click here.
by Pamela Leist | Jun 10, 2014 | Board Policy & Representation, General, Labor and Employment, School Management
Ohio legislators have once again modified the Ohio teacher evaluation system this month through passage of House Bill 362. The bill, which still awaits the Governor’s signature, reduces the frequency of evaluations for certain teachers and also creates an optional alternative evaluation framework that districts may elect to use as early as the 2014-2015 school year. Changes from the bill include the following.
First, HB 362 modified ORC 3319.111 by granting a board of education the discretionary authority to evaluate teachers who receive a rating of “Accomplished” on their most recent evaluations every three years. Likewise, Boards may also choose to evaluate “Skilled” teachers every two years. The law further specifies that in order to qualify for either of the above, a teacher must receive a student growth measure score of average or higher on the most recent evaluation (note that under the state-approved rubric, a teacher cannot receive a summative rating score of “Skilled” or “Accomplished” unless he or she received a SGM score that was average or higher). If a board elects either option, a credentialed evaluator must conduct at least one observation and hold at least one conference in each year that a teacher is not formally evaluated. The new law is silent as to whether a district must also gather student growth measure data in off years.
Additionally, the bill permits a board of education to elect not to evaluate teachers who have been on leave for at least fifty percent (50%) of the school year, and/or who have submitted a notice of retirement which has been accepted by the board no later than December 1st.
Finally, HB 362 establishes an alternative teacher evaluation framework under a new statute, ORC 3319.114. The alternative framework reduces the value of the teacher performance and student growth measure scores, and incorporates an additional measure derived from one of the following: student surveys, teacher self-evaluations, peer review evaluations, or student portfolios. The statute specifies that should a board elect to use the alternative framework for 2014-2015, a teacher’s final summative rating must be based on the following:
- 42.5% teacher performance rating;
- 42.5% student growth measure; and
- 15% from one of the additional measures listed above
For 2015-2016 and beyond, a school board has some discretion to determine the value of the three components. However, the teacher performance and student growth measures must each count for at least 42.5% of the score. And, the new law requires that an equal percentage of the final summative rating be allocated to teacher performance and student growth. The remaining percentage of the summative rating will be derived from the chosen alternative tool.
Under the new statute, the Ohio Department of Education must compile a list of approved instruments for districts to use with the alternative framework. School districts are required to select evaluation instruments from amongst that list.
As with previous OTES and OPES modifications, a number of questions remain about whether the changes will actually improve the process and ease the burden of evaluations for school administrators and teachers, or whether they will merely create additional traps that snare the unwary. One of the primary concerns is the fact that the bill will not become effective until mid-September, nearly one month after most districts begin the 2014-2015 school year. And, in order to roll out the new system by 2014-2015, the Department has only a few months to select alternative evaluation tools, and even less time to determine the validity of the data each tool captures. Finally, while the prospect of reducing the frequency of evaluations is enticing, this practice may weaken the validity of future evaluation results for teachers, which will ultimately impact a board of education’s ability to make solid employment decisions. For these reasons, districts should be cautious to embrace the new changes until additional analysis is conducted. In the least, districts should contact legal council before adopting evaluation policy changes for this upcoming school year.
To review HB 362 in its entirety, click here.
by Pamela Leist | Mar 31, 2014 | Board Policy & Representation, Labor and Employment, Legislation
The Ohio House Education Committee has unveiled sweeping changes to Substitute Senate Bill 229 with regard to teacher and principal evaluations. The original version of SB 229, which passed the Senate unanimously on December 4th, 2013, modified frequency and composition of teacher evaluations and reduced some of the burden on school administrators. The new version of the Bill proposed by the House Education Committee, however, would modify both the OTES and OPES evaluation systems in ways that would undoubtedly place additional strain on the relatively untested evaluation systems. The proposed changes include the following:
- Bumps student growth measures back up to 50% from the 35% proposed by the Senate, unless a district elects to use an alternative “student survey” framework (available for grades 4-12), in which case the final rating would be comprised of 40% SGM, 40% teacher performance rating, and 20% student survey results;
- Requires that an evaluator use an average score if a teacher receives different scores on the observations and review components of the evaluations;
- Increases SGM from three to five total possible ratings: “Most Effective”, “Above Average”, “Average”, “Below Average”, and “Least Effective”;
- Adds new performance level rating of “Effective” that will exist in the realm between “Skilled” and “Developing”;
- Requires that at least one formal observation of a teacher be unannounced;
- Beginning in 2015, allows districts to evaluate “Accomplished” and “Skilled” teachers every other year, but only if the teacher’s SGM score is rated “Average” or higher (teachers must still receive one observation and a conference in the “off” year);
- District can elect not to evaluate 1) a teacher who is on leave for 70% or more of the year, and 2)a teacher who submitted notice of retirement before Dec. 1st;
- Teachers rated “Effective” “Developing” or “Ineffective” must be placed on an improvement plan;
- In 2015 and beyond, districts cannot assign students to a teacher who has been rated ineffective for two or more years (but does not specify what a district should do with these teachers!);
- A district is also prohibited from assigning a student teacher to a teacher who is “Developing” or “Ineffective” during the previous year;
- If a teacher with at least ten years of experience receives a designation of either “Least Effective” or “Below Average” on his/her SGM rating, that teacher may be rated “Developing” only once;
- Mandates that results of an evaluation must follow the teacher even if he/she is transferred to a new building or takes employment elsewhere;
- Requires ODE to develop a standardized framework for assessing SGM for all non-value added grade levels and subjects by 2016;
- By 2016, districts must administer assessments to students in each of grades K-12 for English Language Arts, Mathematics, Social Studies, and Science. Assessments must be selected by ODE and based on value-added progress dimension or vendor-developed student growth measures (may include assessments already required by law);
- Beginning next July, evaluators must verify completion of at least one evaluation training course outlined in the bill;
- After July 1, 2015, the State Board must ensure individuals seeking licensure as superintendent, assistant superintendent, principal, vocational director, administrative specialist, or supervisor have completed a teacher evaluator training;
- The revised bill mandates that the State Board of Education must develop a standards based system for principals and assistant principals, which districts must conform to;
- Third grade reading guarantee assessments must either be value-added or vendor-approved assessments;
- ODE must provide detailed report of school performance on evaluations to general assembly, and must accept comments for improvement from districts that it passes on to general assembly;
- Exempts from collective bargaining all amendments made by the bill to 3319.111, 3319.112, 3319.113, 3319.114, 3319.115, and 3319.117;
- Permits a district to enter into a MOU with union that stipulates value-added progress demission rating issued for 2014-2015 will not be used when making decisions regarding dismissal, retention, tenure or compensation.
The substitute bill currently awaits approval in the House Education Committee before it will be sent to the full House for a vote. The bill will also need to be voted on again by the Senate before it proceeds to the governor for final signature. We will keep you posted on the progress of the bill, and also encourage clients to voice opposition to the drastic changes listed in the bill. To review the Legislative Service Commission’s comparison synopsis, click here.
by Gary Stedronsky | Mar 6, 2014 | Labor and Employment
We’ve recently seen an increase in the number of FMLA “Health Care Provider” certifications that are completed by chiropractors. As many of you know, the FMLA grants eligible employees up to 12 weeks of unpaid leave for several reasons, including a serious health condition. An employer is permitted to request a certification from an employee’s health care provider to verify that the employee does indeed have a serious health condition Many school districts and other employers have been accepting these certifications from chiropractors without realizing that it is very rare that such a certification must be accepted.
Although many people seek treatment from chiropractors for very serious injuries and ailments, the Department of Labor has concluded that a chiropractor is not to be considered a health care provider unless the treatment provided consists of “manual manipulation of the spine to correct a subluxation.” This diagnosis must also be demonstrated by an X-ray to exist.
This means that school districts and other employers are not required to accept FMLA certifications from chiropractors unless an employee has seen the chiropractor for this one specific reason. We’ve found that many clients mistakenly accept certifications from chiropractors for many other ailments. So, the next time you see a FMLA Health Care Provider certification from a chiropractor you will likely be able to refuse to accept it unless it is for the limited treatment and diagnosis of manual manipulation of the spine to correct a subluxation. The certification must also indicate that such a diagnosis was confirmed to exist by an X-ray.
For more information on this topic and a list of other health care providers that can complete FMLA Health Care Provider certifications, please see the U.S. Department of Labor’s website at:
http://www.dol.gov/whd/regs/compliance/1421.htm
