SCHOOL DISTRICTS MUST ADOPT SPECIFIC SEXUAL HARASSMENT POLICIES BY JANUARY 15, 2018

By Anthony Scariano III and James Petrungaro

 December 1, 2017 

            Recently, the news media have been rife with reports of sexual harassment that has occurred in many of our nation’s most valued and well-known institutions. Noticing this trend, and increased amounts of complaints from its own members, the Illinois General Assembly has acted with legislation.  

Public Act 100-0554, in relevant part, amends the State Officials and Employees Ethics Act so that “governmental units,” which include school districts, must adopt a resolution to establish a policy prohibiting sexual harassment with the following requirements: (1) the policy must prohibit sexual harassment; (2) the policy must include details on how an individual can report an allegations of sexual harassment, including options for making a confidential report to a supervisor, ethics officer, or the Illinois Department of Human Rights; (3) the policy must include a prohibition on retaliation for reporting sexual harassment allegations, including availability of whistleblower protections under the State Officials and Employees Ethics Act, the Illinois Whistleblower Act, and the Illinois Human Rights Act; and (4) the policy must include the consequences of a violation of the prohibition on sexual harassment and the consequences for knowingly making a false report. 

            For school districts that subscribe to the Illinois Association of School Board’s Policy Reference Education Subscription Service (“PRESS”) and have adopted the model Policy 5:20, your policy likely already substantially complies. The PRESS model policy needs modification to clarify the process for filing harassment claims and to expand the recitation of available laws providing whistleblower protections.  

            PRESS is expected to release modifications to Policy 5:20 sometime in January 2018. The mandated policy must be adopted by school districts no later than January 15, 2018. The attorneys of Scariano, Himes and Petrarca, Chtd. stand ready to assist your Board with complying with this new legislative requirement. Should your District wish to modify its policy before PRESS releases its expected update in January 2018, or if your District does not participate in PRESS and you need assistance, do not hesitate to contact us.

 

SCHOOL DISTRICT MUST ADOPT SPECIFIC SEXUAL HARASSMENT POLICIES BY JANUARY 15, 2018

By Anthony Scariano III and James Petrungaro 

December 1, 2017 

            Recently, the news media have been rife with reports of sexual harassment that has occurred in many of our nation’s most valued and well-known institutions. Noticing this trend, and increased amounts of complaints from its own members, the Illinois General Assembly has acted with legislation.  

Public Act 100-0554, in relevant part, amends the State Officials and Employees Ethics Act so that “governmental units,” which include school districts, must adopt a resolution to establish a policy prohibiting sexual harassment with the following requirements: (1) the policy must prohibit sexual harassment; (2) the policy must include details on how an individual can report an allegations of sexual harassment, including options for making a confidential report to a supervisor, ethics officer, or the Illinois Department of Human Rights; (3) the policy must include a prohibition on retaliation for reporting sexual harassment allegations, including availability of whistleblower protections under the State Officials and Employees Ethics Act, the Illinois Whistleblower Act, and the Illinois Human Rights Act; and (4) the policy must include the consequences of a violation of the prohibition on sexual harassment and the consequences for knowingly making a false report. 

            For school districts that subscribe to the Illinois Association of School Board’s Policy Reference Education Subscription Service (“PRESS”) and have adopted the model Policy 5:20, your policy likely already substantially complies. The PRESS model policy needs modification to clarify the process for filing harassment claims and to expand the recitation of available laws providing whistleblower protections.  

            PRESS is expected to release modifications to Policy 5:20 sometime in January 2018. The mandated policy must be adopted by school districts no later than January 15, 2018. The attorneys of Scariano, Himes and Petrarca, Chtd. stand ready to assist your Board with complying with this new legislative requirement. Should your District wish to modify its policy before PRESS releases its expected update in January 2018, or if your District does not participate in PRESS and you need assistance, do not hesitate to contact us.

 

NEW BOARD OF EDUCATION TO ORGANIZE BY MAY 2ND AND NEW BOARD MEMBER TRAINING REQUIREMENTS LOOM

April 26, 2017

Organization Meeting

With the results of the April 4th consolidated general election mostly certified by now, school boards in Illinois are reorganizing to seat new board members. No later than May 2, 2017, all school boards must hold their organization meeting where the oath of office will be taken, the new board will be seated, new board officers elected, board committees appointed and a schedule of regular board meetings will be approved.

Board Member Training

New board members must complete two kinds of mandatory training sessions and we recommend that a third type of training be taken as well.

Pursuant to the Open Meetings Act (“OMA”), new board members must complete OMA training within 90 days of taking the oath of office. The board member has the option of completing either:

  1. The online training tutorial provided by the Attorney General’s Office of the Public AccessCounselor (PAC); or

     

  2. OMA training provided by the Illinois Association of School Boards (IASB). Seehttp://iasb.com/training/nbmw.cfm for registration information.

    Once the OMA training has been completed, the board member must file a certificate of completeness with the school district’s administrative office.

    New board members must also complete professional development leadership training (PDLT) which is mandated by the School Code. Compliance with this provision is required within one year of the board member being seated to the board. School districts must indicate on their website which of its board members have completed the PDLT training.

    A third type of training is required under Performance Evaluation Review Act (PERA) for any board member who will be called upon to vote on a teacher dismissal based upon an optional alternative evaluation dismissal process. So while that training is not legally mandated for all school board members, it is necessary as a practical matter. The PERA training must be completed before a board member can vote on a PERA dismissal – which can arise during the first year of office. Accordingly, we recommend that the training be accomplished sooner than later.

    The trainings detailed above are required only once per board member. A board member who has been reelected to office and who has received these training previously has the option of attending the trainings, but is not legally required to do so.

    Following past elections, Scariano, Himes and Petrarca has provided direct training to new school board members in the areas of PDLT and PERA, while the IASB provided the same training. Instead of duplicating the efforts of our colleagues at IASB, this year we have partnered with IASB to provide the PDLT and PERA board member training. On June 16, 2017, Lynn Himes and James Petrungaro will be presenters for the PERA and PDLT training sessions at IASB’s New Board Member Workshop at the Tinley Park Convention Center. See http://iasb.com/training/nbmw.cfm for registration information. IASB will also be providing the mandatory OMA training on that day, allowing for board members to complete all three mandatory trainings in a single day.

ILLINOIS SUPREME COURT DETERMINES SCHOOL BOARDS ARE OWED DEFERENCE OVER HEARING OFFICERS IN TENURED TEACHER DISMISSAL CASES

By James A. Petrungaro and Anthony Scariano III

 January 6, 2017

             In a decision with vast implications for schools statewide, the Illinois Supreme Court recently determined that although hearing officers play an important role in tenured teacher dismissal cases, the school board’s decision on a hearing officer’s findings and the tenured teacher’s continued employment is entitled to deference.

            The facts in Beggs v. Bd. of Educ. of Murphysboro Comm. Unit Sch. Dist. No. 186, are quite detailed and lengthy, far too much to discuss at length in this bulletin. In short, the school board did not agree with the hearing officer’s findings of fact and ultimate recommendation that the tenured teacher at-issue should be reinstated, notwithstanding the teacher’s work attendance issues. Accordingly, pursuant to Section 24-12(d)(8) of the School Code, the school board supplemented the hearing officer’s findings of fact and modified them. The school board also made a final decision to dismiss the tenured teacher despite the hearing officer’s recommendation that the teacher be reinstated. Obviously unhappy with the school board’s overturning of the hearing officer’s recommendation, the tenured teacher filed a lawsuit in circuit court seeking administrative review of the school board’s final decision. After the Circuit Court reversed the school board’s decision, and the Appellate Court agreed with the Circuit Court, the school board appealed to the Illinois Supreme Court.

            The majority of the Supreme Court’s focus was on the Appellate Court’s opinion that the hearing officer’s decision, not the school board’s, should be given deference when reviewing tenured teacher dismissal cases. Ultimately, the Supreme Court determined that the plain language of Section 24-12 of the School Code provides that the school board’s decision is final for purposes of administrative review. Therefore, the Supreme Court reviewed the school board’s supplemental factual findings in addition to the hearing officer’s findings when determining the correctness of the school board’s decision.

            Ultimately, The Supreme Court found that the overwhelming majority of the school board’s factual findings were against the manifest weight of the evidence (i.e., not credible), and the school board’s decision to dismiss the teacher was therefore clearly erroneous. The decision therefore serves as a reminder that school boards intending to refute and ignore an ISBE hearing officer’s findings of fact and recommendation to reinstate a tenured teacher should be wary that those decisions will be reviewed with careful scrutiny by the Court. Nevertheless, the Court’s decision regarding the deference owed to school boards (as opposed to hearing officers) in teacher dismissal cases sets important and valuable precedent for boards of education.  As always, if you are faced with a situation regarding potential discipline of a tenured teacher, we are here to guide you through that process.    

 

ATTORNEY GENERAL'S BINDING OPINION HOLDS THAT EMAILS SENT AND RECEIVED ON PERSONAL EMAIL ACCOUNTS THAT PERTAIN TO PUBLIC BUSINESS ARE "PUBLIC RECORDS" UNDER FOIA

August 29, 2016

  By James A. Petrungaro and Anthony Scariano III

            Earlier this month, the Illinois Attorney General’s Public Access Counselor (“PAC”) Office issued a binding opinion that has sweeping implications under the Freedom of Information Act (“FOIA”). The opinion stemmed from a FOIA request submitted by CNN to the Chicago Police Department for “all emails related to Laquan McDonald from Police Department email accounts and personal email accounts where business was discussed” for 12 police officers within two date ranges. As you may recall, Laquan McDonald was shot and killed by a Chicago police officer in October of 2014 and the release of the police video related to the incident sparked outrage, protests and the firing of CPD Chief Gary McCarthy, among other CPD changes. 

             The PAC’s opinion addressed whether emails on the officers’ personal email accounts met FOIA’s definition of “public records,” which includes electronic communications “pertaining to the transaction of public business...having been prepared by or for, or having been or being used by, received by, in the possession of, or under the control of any public body.” Ultimately, the PAC determined that the emails on the officers’ personal accounts were public records.

             The PAC reasoned that because public bodies always act through its employees and officials, emails discussing public business that those employees and officials prepare and possess do not lose their public character merely because the public body does not possess them on its servers. To the PAC, the inquiry under FOIA should be focused on the content of correspondence (such as emails), and not the method by which the correspondence is sent. 

             The PAC also reiterated the Illinois General Assembly’s intent when it created FOIA, which was to ensure that the public had full access to records pertaining to the transaction of public business. If the General Assembly’s intent was ignored, the PAC opined, public officials would be able to circumvent FOIA’s reach by using personal devices to discuss public business. The PAC did not address whether its decision concerning the reach of the Illinois FOIA is permitted by the Fourth Amendment of the United States Constitution, which prohibits unreasonable government searches and seizures of persons and their property.

            The City of Chicago has not yet announced whether it will appeal the PAC’s decision and its time for doing so has not yet expired. Although the PAC’s decision is binding on only the City of Chicago, the broad ruling of the decision and the likelihood that the PAC would issue a similar ruling in other cases means that it is effectively the law of the land unless and until overturned by a judge. Your attorneys at Scariano, Himes and Petrarca stand ready to assist you with navigatinthis far-reaching FOIA decision.

 

TRS' EARLY RETIREMENT OPTION EXPIRES

July 13, 2016

By Adam Dauksas

TRS’ Early Retirement Option (“ERO”) expired on July 1st. As a result, payroll contributions for TRS members going forward will be reduced from 9.4% of their salaries to 9.0%, as that .4% had been previously used to fund the ERO program. Moreover, approximately 200,000 active and inactive TRS members will soon be eligible to receive a refund of the total ERO contributions they paid from 2005 until 2016. Beginning in December, TRS members will be able to apply for this refund.  For now, TRS members can estimate their refund by simply adding up their annual TRS creditable earnings from each year between July 1, 2005 and June 30, 2016, and then multiplying that amount by 0.004.

According to TRS, members will have three options with respect to their refund: (1) apply for a cash refund; (2) apply for a withdrawal with the intention of “rolling over” the taxable portion of the refund into a qualified non-TRS retirement plan (e.g. a 401(k), 403(b) or an IRA); or (3) do nothing for now and leave the prior  ERO  contributions  withTRS,  and  applyfor  arefund  later  (no  interest  will  accruein  thiscase, however).  Cash refunds will have federal income taxes withheld at a rate of 20%, and TRS members will subsequently receive an IRS Form 1099-R after getting their refund.

For more information regarding the expiration of ERO, TRS has published its guidance here.

Tag:  Personnel; Benefits, Pension

The information herein was prepared by Scariano, Himes and Petrarca, Chtd. to provide general guidance on issues affecting educators. This publication is not intended to provide specific legal advice or to create an attorney-client relationship.  We are pleased to provide legal assistance to you on the subjects addressed in this communication or on other subjects.  Reproduction is permitted with credit to Scariano, Himes & Petrarca, Chtd. 

Scariano, Himes and Petrarca, Chtd., represents school districts, special education cooperatives, vocational education cooperatives and community colleges. Our attorneys have experience in all areas of education law and practice throughout Illinois and the Midwest with our principal office located at Two Prudential Plaza, 180 N. Stetson, Suite 3100, Chicago, Illinois 60601-6702.

www.edlawyer.com

 State and federal law require that this document be designated as advertising material.

© 2016 Scariano, Himes & Petrarca, Chtd.

New Regulations Clarify Overtime Entitlement

 

By John Fester

 May 26, 2016 

Last week the U.S. Department of Labor announced updates to federal wage regulations that will increase worker eligibility for overtime.  As a refresher, the general rule is that all employees are entitled to overtime after working 40 hours in a workweek, unless one of the exceptions set forth in the Fair Labor Standards Act (“FLSA”) applies.  Illinois also has an overtime law, but this update will focus primarily on the FLSA and the new regulations. 

The good news is that nothing in the new regulations applies to teachers.  Teachers remain exempt from overtime, regardless of salary level.  However, other school district employees will be impacted by the changes.  This is because the minimum salary that must be paid to a non-teaching employee in order to exempt that employee from overtime eligibility rises from $23,660 ($455 per week) to $47,476 ($913 per week) on December 1, 2016.  Employees paid hourly, or paid an annual salary of less than $47,476, will be eligible for overtime and no further analysis is needed. 

Remember that annualizing an hourly rate is not the same as being paid a “salary” for FLSA purposes.  Being paid on a “salary basis” means an employee regularly receives a predetermined amount of compensation each pay period.  The predetermined amount cannot be reduced because of variations in the quality or quantity of the employee’s work. With few exceptions (for example,  unpaid FMLA leave), an exempt employee must receive the full salary for any week in which the employee performs any work, regardless of the number of days or hours actually worked. 

However, the fact that an employee is paid on a salary basis is not alone sufficient to exempt that employee from the FLSA's overtime requirements.  Generally, one of the FLSA’s “white collar” duties exemptions must also apply.  These exemptions exclude "bona fide" executive, administrative, and professional employees from overtime requirements. Determining whether a “white collar” duty exemption applies requires a fact-specific review of a position’s actual job duties.  These exemptions will almost always apply to central office administrators (superintendent, assistant superintendents, directors, business managers, etc.) and building administrators (principals and assistant principals).   

Conversely, the “white collar” exceptions will rarely apply to support staff positions because of the authority required for the executive exemption; the discretion and independent judgment required for the administrative exemption; and the advanced knowledge and consistent exercise of discretion and judgment required of the professional exemption.  For example, even if you have an administrative assistant earning a salary of more than $47,476 on December 1, the position will remain eligible for overtime unless the administrative exemption test can be satisfied. 

Employers have a range of options for responding to the increased standard salary level. For each affected employee newly entitled to overtime pay, employers may, subject to applicable collective bargaining agreements and bargaining obligations: 

  • Increase the salary of an employee to whom a “white collar” duties exemption applies to at least the new salary level to retain his or her exempt status;
  • Leave the employee below the new threshold and pay an overtime premium (or compensatory time) of one and a half times the employee's regular rate of pay for any overtime hours worked;
  • Reduce or eliminate overtime hours;
  • Reduce the amount of pay allocated to base salary and use the difference to account for overtime for hours worked over 40 in the workweek, in order to hold total weekly pay constant; or
  • Use some combination of these responses.  Obviously, some responses will be received better than others by the employees. 

Just as has been done for non-exempt employees in the past, it will be essential for employers to keep accurate records of hours worked for those employees who become newly eligible for overtime on December 1.  As a refresher, the following records should be kept (preferably electronically) for each non-exempt employee for three years: 

            1.         Employee's full name and social security number.

            2.         Address, including zip code.

            3.         Birth date, if under 19.

            4.         Gender and occupation.

            5.         Time and day of week when employee's workweek begins.

            6.         Hours worked each day.

            7.         Total hours worked each workweek.

            8.         Basis on which employee's wages are paid (e.g., per hour, per week)

            9.         Regular hourly pay rate.

            10.       Total daily or weekly straight-time earnings.

            11.       Total overtime earnings for the workweek.

            12.       All additions to or deductions from the employee's wages.

            13.       Total wages paid each pay period.

            14.       Date of payment and the pay period covered by the payment.  

Also in the area of recordkeeping, the Illinois Department of Labor recently required the following information be kept for all employees:  name and address, the hours worked each day in each work week, the rate of pay, copies of notice of hire rate and notice of any subsequent changes, the amount paid each pay period and all deductions made from wages or final compensation. Additionally, for employees given paid vacation, employers must maintain for a period of not less than 3 years accurate records of the number of vacation days earned for each year and the dates on which vacation days were taken and paid.  The consequence for failing to keep these records is the inability to contest the employee’s recollection and estimate of time worked but not paid, overtime worked but not paid, and the amount of vacation pay owed at separation. 

This does not necessarily mean non-exempt employees must punch a time clock each day.  Employers have options for accounting for workers' hours.  There is no particular form or order of records required and employers may choose how to record hours worked for overtime-eligible employees.  For example, where an employee works a fixed schedule that rarely varies, the employer may simply keep a record of the schedule and then indicate the changes to the schedule that the worker actually worked when the worker's hours vary from the schedule. 

We recommend you take some time this summer to review positions currently paid less than $47,476 per year, identify those that you presently treat as exempt from overtime, and analyze the identified positions to determine whether it makes sense to try to continue the overtime exemption by raising the employee’s salary, or whether other steps should be taken to ensure overtime compliance on and after December 1, 2016. 

Questions regarding overtime eligibility or exemption require a very fact specific analysis.  If you have questions about a particular position or positions in your district, please contact your attorney at Scariano, Himes and Petrarca.  

Tags:    Personnel

            FLSA

SH&P FOILS UNWARRANTED FOIA REQUESTS

September 11, 2015

By Paulette A. Petretti and Parker R. Himes 

            On July 17, 2015, Judge David Akemann, presiding in the Sixteenth Judicial Circuit, Kane County, Illinois, granted the Firm’s motion to dismiss a complaint against an Illinois community college, which claimed that the college had violated the Illinois Freedom of Information Act (“FOIA”).  The violations were allegedly manifested by the College’s invocation of FOIA exemptions as grounds to deny requests for voluminous data, databases and compilation of generic student information.

            In David Hites v. Waubonsee Community College, the controversy focused on the validity of FOIA requests seeking data and information that the College did not aggregate in the ordinary course of business, such as aggregated zip codes of GED students, numbers of registered students who lack social security numbers, and records of numbers of students taking ABE/GED classes on certain campuses. The plaintiff argued that even though the public body had not created or maintained records such as those requested, the College should nonetheless be required to “query” its numerous databases to compile the requested data.  To the extent that the College declined to perform queries, Hites demanded that he be given direct access to the databases in order to perform his own queries.  The plaintiff’s arguments were premised on his assertion that every piece of data (e.g. reference to a social security number or a zip code) is a public record and is subject to disclosure, pursuant to FOIA. The Court rejected plaintiff’s theory that each piece of data contained in a database is its own unique public record subject to FOIA disclosure and relied on a strict construction of the meaning of “public record” under FOIA.

 

            The Court ruled that a public body is not required to aggregate data which it does not aggregate in the regular course of business.  Notably, the Court found that “plaintiff’s requests do not seek ‘public records’ as the term is defined in the Act, but rather seek numerical tallies, the compilation of which is not required of the College by FOIA.” Importantly, “plaintiff’s insistence that he is not requesting that the College review its files and prepare a tally and/or produce general data, information, and statistics belies the text of his own FOIA request.”  The Court reminded plaintiff that, “well settled in Illinois law is the principle that a request to inspect or copy must reasonably identify a public record, as opposed to general data, information, or statistics.”  The Court ruled that “the College is not obligated under FOIA to answer general inquiry questions concerning the number of students that fall within the very specific categories crafted by plaintiff.  In order to answer the above-referenced five requests, it would require the creation of new records, which explicitly is not required under the Illinois Freedom of Information Act.  Thus dismissal relative to these requests is proper.”

 

            Just as the College is not required to compile data from physical records, the Court stated that “FOIA does not require the College to query individual data fields contained on the College’s database and create a new report that the College had not already generated or otherwise used.”  The pleadings and testimony in this case demonstrated to the Court that the College does not prepare or maintain any documents or databases that aggregate the data sought by plaintiff.

 

The plaintiff alternatively argued that requested pieces of data, such as zip codes, could be found on various paper forms, including the student registration form, used by the public body.  Notwithstanding this fact, the College pointed out that locating, copying and redacting thousands of forms, almost 10,000 documents, would take months to complete.  Responding to the request would also necessitate pulling employees off their important day-to-day tasks, because student registration records include confidential information that only certain authorized employees may inspect.  Therefore, in order to respond to the request, the College would be required to hire temporary employees to do the day-to-day work of confidential employees processing the request, costing the public body tens of thousands of dollars.  The Court found that responding to the requests using the paper forms would cause an undue burden on the public body that FOIA seeks to avoid.  Additionally, in noting that over the course of several years Hites had repeatedly asked for the same information, the Court pointed out that “repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome.”

 

Moreover, the Court found that “querying” the numerous databases maintained by the public body for individual and unrelated pieces of data would have unduly burdened the public body, in that most of the College’s IT department would be taken off their regular tasks, causing significant interference and disruption for the College’s functions.  With regard to the question of burden, the Court found that “the College has successfully demonstrated that the burden of complying with the plaintiff’s remaining FOIA requests outweighs the public’s interest in obtaining the requested information.”

 

In summary, the College disagreed with plaintiff’s position that there existed public records that were responsive to his requests. In keeping with the College’s position, the Court determined that plaintiff’s requests were barred by statutory provisions and that the College’s invocation of exemptions and objections was warranted. 

 

            This FOIA ruling provides significant legal authority for any public sector entity seeking to challenge requests to obtain compilations of data, which are not aggregated in the ordinary course of business.  Moreover, to the extent redaction of public records is demanded, this case confirms that a showing of undue disruption of public resources will serve to bar such requests. 

GOVERNOR’S EXECUTIVE ORDER DOES NOT IMPACT SCHOOL DISTRICT EMPLOYEEs’ “FAIR SHARE” FEES

February 10, 2015

By:  Adam Dauksas

Yesterday, Governor Bruce Rauner issued an executive order that seeks to abolish “fair share” fees for state employees who do not wish to join a public sector union.  The Governor’s executive order does not, however, extend to local governmental employees, such as those employed by school districts.

In Illinois, public employees are free to choose not to join a union but must still pay “fair share” fees, which are used to support a union’s collective bargaining efforts that benefit all employees, regardless of union membership.  “Fair share” fees may not be used by public unions for political activities, but, according to the Governor, such a distinction cannot possibly be made because public sector unions bargain directly with the government.  Thus, says the Governor, some public employees are being required to sponsor political activities that they do not agree with, which is in violation of the First Amendment.

As a practical matter, if your collective bargaining agreement requires you to deduct “fair share” fees from bargaining unit members who have not joined the union, you must continue to make those deductions and remit the fees to the appropriate union.   If such provisions are declared illegal or unconstitutional as applied to Illinois public school employees, we will issue further guidance.

The Impact of the Opportunities for Qualified Applicants Act on School Districts

February 3, 2015

By Jacqueline M. Litra

The Opportunities for Qualified Applicants Act, which took effect on January 1, 2015, prohibits employers and employment agencies from inquiring about, considering or requiring disclosure of applicants’ criminal history until an applicant has been: (1) determined qualified for an interview and notified of his/her selection for an interview; or, (2) if there is no interview, after a conditional offer of employment is made.  Some of our clients have expressed confusion over how this new law impacts them.

The Act defines “Employer” as any person or private entity that has 15 or more employees and any agent of such an entity or person. School Districts do not fit within this definition of “Employer” because they are public, not private entities.  Additionally, the Act expressly states that the prohibited pre-screening practices do not apply to positions where employers are required to exclude applicants with certain criminal convictions from employment by state or federal law.  The pre-screening practices prohibited by the Act are allowed for school districts because school districts are required to review criminal history reports for employees and are prohibited from employing individuals with certain convictions.

As a result of the new law, the Illinois Association of School Boards, through its PRESS policy service, recommended changes regarding candidate criminal histories through its proposed Administrative Procedure (Interview Questions for Board Policy 5:30).   In our opinion, the proposed revision provides an overly conservative approach to inquiring about criminal convictions.  School districts can still inquire as to whether an applicant has ever been convicted of a crime, especially at an interview.   In addition, it is possible that attempting to utilize the broad classifications of offenses in the Administrative Procedure’s recommended question could result in applicants failing to report a relevant conviction because he/she is unfamiliar with the offenses included in each broad category.

Accordingly, we advise that school districts are not required to follow the new language on convictions in the IASB Administrative Procedure – Interview Questions or to change their pre-screening practices as a result of the Opportunities for Qualified Applicants Act.

If you have any questions regarding appropriate employment practices, please contact your attorney at Scariano, Himes and Petrarca, Chtd.

Chief School Business Officer Requirements

November 5, 2014

By John E. Fester

A recent TRS Employer Bulletin was issued regarding the participation of business administrators in TRS (Bulletin 14-06). Please note the following excerpts:

“Therefore, individuals serving as the CSBO and required to hold a [professional educator] license with the CSBO endorsement must have CSBO in their titles. If a school business-related position does not include CSBO in the title, the position does not require licensure even if the individual holds a CSBO endorsement.”

“Effective with the 2014-15 school term, for a school business official to be reportable to TRS, he/she must hold the CSBO endorsement and must have CSBO in his/her title. For example, the title of the position may be CSBO, Assistant Superintendent/CSBO, etc.”

If you need to make this change, we recommend changing the title in the job description and amending employment contracts to reflect the title change. As a general rule, if an employee does not have a professional educator license, or is serving in a position that does not require such a license, the person is not eligible for TRS membership.  If you have questions regarding this topic, please contact your attorney at Scariano, Himes and Petrarca.

DEADLINE FOR THE FIRST PERA JOINT COMMITTEE MEETING

October 15, 2014

By Jacqueline M. Litra

School districts are acutely aware of the looming implementation deadlines for PERA compliant teacher evaluation plans and the 180-day timeline for the PERA joint committee to reach agreement on incorporating student growth into the teacher evaluation plan.  However, some may not realize that the Illinois State Board of Education’s Rules require that the first meeting of a school district’s PERA joint committee occur by November 1 of the school year immediately preceding the school district’s implementation date.

School districts whose student performance ranks in the lowest 20% must implement a PERA compliant teacher evaluation plan by September 1, 2015.  Those school districts should have their first official PERA joint committee meeting no later than Friday, October 31, 2014. School districts in the bottom 20% of the student performance list should have been informed by the Illinois State Board of Education of that placement on or around September 22, 2014.

PERA joint committees must reach agreement on the use of data and indicators on student growth as a significant factor in rating teacher performance within 180 calendar days of the committee’s first meeting. Accordingly, a PERA joint committee that has its first meeting on October 31, 2014 has until April 29, 2015 to reach agreement.

All remaining school districts are required to implement a PERA compliant teacher evaluation plan by September 1, 2016.  Those school districts should officially convene their PERA joint committees by Friday, October 30, 2015. A PERA joint committee that has its first meeting on October 30, 2015 has until April 27, 2016 to reach agreement because 2016 is a leap year.

If you have any questions regarding the requirements of PERA and the responsibilities of the PERA joint committee, we are available to guide you through this difficult process.

AFFORDABLE CARE ACT EMPLOYER MANDATE DELAYED FOR MEDIUM SIZED EMPLOYERS

September 19, 2014

By Parker Himes

The Treasury Department on Monday announced that employers with 50-99 full-time employees will be given until 2016 to offer insurance to full-time employees before risking a federal penalty. The 2016 deadline is two years longer than the original deadline under the Affordable Care Act.  Under the Act, a full-time employee is anyone who works 30 or more hours per week.

Also announced on Monday is another type of grace period for employers with 100 or more full-time employees. Originally, employers were required to offer coverage to 95% of full-time employees by 2015.  Under the new rules, however, employers with 100 or more full-time employees can avoid the federal penalty for failing to offer coverage by offering insurance to just 70% of full-time employees by 2015 and 95% of full-time employees by 2016.  Importantly, however, employers are still subject to a $3,000 penalty for each employee in the 30% not offered health insurance who buys coverage on a state health-care exchange and qualifies for subsidized premiums.

Administration officials also said Monday that they will issue a separate set of rules in the next few weeks related to how employers must report their employees’ insurance status to the government.   The Firm will be monitoring the law’s progress and will keep you up to date on any significant developments.

If you have any questions related to this issue or any other aspect of the Affordable Care Act, we encourage you to contact an attorney at the Firm for clarification.

Finally, please join us for a presentation on the Affordable Care Act at the Firm’s 34th Annual School Law Seminar on Saturday, March 1 at McDonald’s Hamburger University in Oak Brook.  As always, board members, district and building level administrators may register for no cost on the Firm’s website (http://edlawyer.com/law-seminar-registration). We look forward to seeing you there.

ILLINOIS ADOPTS NEW PREGNANCY ACCOMMODATIONS LAW

 September 19, 2014

By Adam Dauksas

 Effective January 1,  2015,  Illinoisschooldistrictsmustbeginprovidingreasonableaccommodationsto pregnant employees who request them.  In an expansion of pregnant employees’ rights beyond what is provided under the federal Family and Medical Leave Act (“FMLA”), the Governor signed into law House Bill 8 late last month, which amends several sections of the Illinois Human Rights Act.

This state law will soon make it a civil rights violation for an employer, after a job applicant or employee (including a part-time, full-time, or probationary employee) requests a reasonable accommodation, to not make such an accommodation for any medical or common condition related to pregnancy or childbirth.  Where the employer can demonstrate that the accommodation would impose an undue hardship on its normal operations, however, the accommodation need not be made.   The law provides examples of what a “reasonable accommodation” in this instance might be:

  • More frequent or longer bathroom, water, or rest breaks.
  • Private non-bathroom space for breastfeeding.
  • Seating.
  • Assistance with manual labor.
  • Light duty.
  • Temporary transfer to a less strenuous or hazardous position.
  • A part-time or modified work schedule.
  • Appropriate adjustment or modifications of examinations.
  • Time off to recover from conditions related to childbirth.
  • Unpaid leave.

In addition, the law makes clear that school districts will also be prohibited from denying employment opportunities or benefits to, or taking adverse action against, a pregnant employee if the denial or adverse action is based on the need of the district to make reasonable accommodations.  Further, districts will not be able to require a pregnant employee to accept a reasonable accommodation when she did not request one, nor can a district require an employee to take leave if another reasonable accommodation can be provided.  Moreover, under the law, school districts will not be allowed to retaliate against an employee because she requested, attempted to request, used, or attempted to use a reasonable accommodation.

Lastly, school districts will be required to provide notice to their employees concerning these new rights at a conspicuous location on the district’s premises where notices to employees are customarily posted and in any employee handbook.  The Illinois Department of Labor will prepare the notice documents and make them available on its website.

Should your district have any questions about these changes in the law, including what might constitute an “undue hardship,” please do not hesitate to contact Scariano, Himes and Petrarca, Chtd.

 

TRS Pension Cap – Start Date for Contracts

August 4, 2014

By John E. Fester

TRS has recently cast doubt on whether an employment contract starting on May 31, 2014 will be considered “effective on or before June 1, 2014” for purposes of pension cap grandfathering.  Because May 31 is a Saturday, and TRS generally does not recognize weekends as days on which service credit can be earned, it could be argued that the contract is not truly effective until Monday, June 2 (the first day of creditable service), which is after the June 1 deadline.  In order to protect against this argument, employees seeking to have a multi-year contract in place for purposes of pension cap grandfathering should make sure the effective date of the contract (i.e. the first day of creditable service under the contract) is earlier than May 31, 2014.  If you have any questions regarding this matter, please contact your attorney at Scariano, Himes and Petrarca.

 

New Changes to the Teacher Reduction in Force Procedures

 July 1, 2014

By Jacqueline M. Litra

On June 13, 2014, House Bill 5546 was signed into law as Public Act 98-0648.  This Amendatory Act is the most recent amendment to Senate Bill 7. The Act significantly amends the reduction in force procedures established in SB 7 by creating recall rights for certain teachers reduced from Group Two.

Now, if a school board has any vacancies from the beginning of the term following the reduction in force through February 1 of that term, such positions must be offered to qualified teachers dismissed from Group 2 with a “Needs Improvement” evaluation rating on either of their last two evaluations.  If a teacher has more than one rating, the other rating must be proficient or better for recall rights to apply. These new recall rights do not apply to teachers rated “Unsatisfactory.” These changes apply to layoffs made during the 2013-2014 school year.

These recall rights apply to probationary teachers laid off from Group 2.  Accordingly, it is important that school districts use the non-renewal process and not the layoff process for probationary teachers who are not making the cut.

The Act codifies the fact that only one evaluation rating each term may be used for determining the sequence of honorable dismissal. If there are multiple performance evaluations during a school year (other than evaluations as part of a remediation plan), the last evaluation before the sequence of honorable dismissal list is established will be the one evaluation used. School districts may only average multiple evaluation ratings without agreement from the union.

The Act also clarifies that the sequence of honorable dismissal list, which districts are required to provide to the union at least 75 days before the end of the school year, must include teachers by name and categorized by position and group.

Your attorneys at Scariano, Himes and Petrarca stand ready to assist you in navigating the ever-changing reduction in force procedures and your re-defined responsibilities under this Act.

SCHOOLS ALLOWED TO PREDICT FUTURE HARMFUL IMPACT OF EMPLOYEE’S FIRST AMENDMENT SPEECH

November 15, 2013

By Paulette A. Petretti

On December 3, 2013, the U.S. Court of Appeals for the Seventh Circuit entered an opinion in the matter of Bryan Craig v. Rich Township High School District 227, et al., in which the Court addressed the issue of whether a school district could terminate a guidance counselor who self-published a book he wrote on his personal time containing adult relationship advice entitled “It’s Her Fault.” The Court reviewed the school’s charges for termination which included, among other considerations, that the publication had caused disruption, concern, distrust and confusion among members of the school district community, that the book violated the district’s sexual harassment policy because it created a hostile and offensive educational environment, and that the guidance counselor failed to present himself as a positive role model.  After analysis of Craig’s provocative themes and sexually explicit terminology, spanning discussions of penis sizes, oral sex, and differences in women’s vaginas, the Court determined that the school district’s interest in protecting the integrity of counseling services at the high school “dwarfed” the guidance counselor’s interest in publishing “It’s Her Fault.”

While the Court was willing to acknowledge that Craig’s book did address a matter of public concern because it, in part, addressed the structure of adult relationships, the Court found the weight of Craig’s First Amendment message to be extremely limited.  In light of the limited weight of Craig’s speech interest, the Court concluded that the school district’s interest in preventing a likely disruption of their guidance counseling service outweighed Craig’s limited speech interest and was sufficient to justify Craig’s discharge.  Craig’s termination did not offend the First Amendment.

In arriving at its decision, the Court examined the unique relationship between a guidance counselor and students and found that the school district reasonably gauged how students’ response would impact conditions at the school.  For example, the Court under stood how easily female students could feel uncomfortable seeking advice from Craig given his professed inability to refrain from sexualizing females.  In his book, Craig confesses a “weakness for cleavage” and another portion of a woman’s anatomy and admits that these body parts served as distractions in his encounters with women.  Knowing Craig’s tendency to objectify women, the school district could reasonably anticipate that some female students would feel uncomfortable reaching out to Craig for advice.  Indeed, there was a reasonable danger that some students would forego receiving the school’s counseling services entirely rather than take the risk that Craig would not view them as a person but instead as an object. Accordingly, the Court deemed the school district’s concerns as substantial grounds for terminating Craig’s employment.

Here, the school district reasonably predicted that “It’s Her Fault” would interfere with the learning environment. The Court respected the school district’s concern that the book would be available to students.  Parents and students had aired complaints to the administration and the book was available for purchase, without age restrictions, over the internet.  Craig dedicated the boo k to his students who “consistently reach out” to him about relationships and encouraged those students to “keep listening and learning.”  The school’s assessment of how Craig’s students, particularly his female students, would respond upon reading or hearing about the “hypersexualized” content of his book loomed large in the Court’s analysis.

The opinion stresses that a public school teacher holds a position that by its very nature requires a degree of public trust not found in many other positions of public employment.  Particularly as a guidance counselor, Craig was required to maintain a safe place for his students in order to ensure they remain willing to come to him for advice.  With the publication of his book, Craig betrayed the trust required of his job.  The school district’s interest in delivering appropriate educational services outweighed Craig’s interests in providing advice about “adult” relationships. Therefore, the Court upheld the dismissal of his complaint, which invoked protection under the First Amendment.

Scariano, Himes and Petrarca partners Paulette A. Petretti and Darcee C. Williams defended the school district defendants against Craig’s First Amendment claims in federal district court and on appeal. A copy of the opinion, which is rather colorful in its review of the book and the school district’s decision, is available here.

FULL-TIME EMPLOYEE UNDER THE AFFORDABLE CARE ACT

 July 9, 2013

By Parker Himes

A full-time employee under the Affordable Care Act is defined as an employee working 30 hours or more, not 35 hours as stated in a previous article.  While the 30 hour standard has not changed, over the next year and a half the Obama Administration will explore ways to make the law more palatable to employers, which could include modifying the definition of full-time employee to include only those employees working 35 hours or more.  In fact, Senator Susan Collins (R-ME) and Senator Joe Donnelly (D-IN) recently proposed bipartisan legislation, titled the “Forty Hours is Full Time Act of 2013” (S. 1188), that would change the definition of full-time employee to 40 hours under the Act.  We will monitor the progress of this bill.

During this time, further guidance will be forthcoming concerning the definition of “employee” under the Act. The Administration anticipates that the guidance on this issue, and many others, will help clarify employers’ responsibilities and help employers implement the infrastructure necessary to comply with the law.  It is important to note that any number of changes could occur between now and January 2015.  The Firm will be monitoring the law’s progress and will keep you abreast of any developments.

If you have any questions about this issue or any other related to the Affordable Care Act, we encourage you to contact an attorney at the Firm for clarification.

 

 

OBAMA ADMINISTRATION DELAYS EMPLOYER MANDATE UNDER AFFORDABLE CARE ACT

July 8, 2013

By Parker Himes

Last week, the Obama administration delayed the effective date of the Affordable Care Act’s employer mandate, which requires companies with 50 or more employees to offer health insurance to workers or pay a penalty.  The delay pushes the inception of the employer mandate back to January 2015.  At that time, employers will be required to provide health insurance to employees working 35 hours or more.    Administration officials reason that the delay will allow a reassessment of the reporting burdens and will give employers more time to arrange compliance with the law.

Conversely, the individual mandate will not be delayed.   Health care exchanges are slated to be up and running by October 1, selling coverage that takes effect January 1, 2014.  The Administration notes that many of the employees who will not receive coverage through employers until 2015 will be able to obtain coverage from these health care exchanges.

For employers, the delay could reduce pressure to develop the data collection and infrastructure necessary to track full- time employees based on the law’s complex rules.  The Administration points out that a majority of the large companies covered by the mandate (including most school districts) already provide their employees with health insurance that complies with the employer mandate.  James A. Klein, president of the American Benefits Council, touts the delay as providing “vital breathing room to implement the law in a more thoughtful and administrable way…Major employers have led the way in providing coverage to their workers and are expending great resources to ensure compliance with the new law.” Todd Leeuwenburgh, Health Reform’s Employer Mandate Delayed: Obama Recognizes Employer Concerns, Thompson’s HR Compliance Expert, July 3, 2013.

Yet, the delay does not apply to employer compliance with the law’s other insurance mandates. These mandates include:

     1) coverage for dependent children up to age 26;

     2) no exclusions for pre-existing conditions;

     3) no annual or lifetime limits on payments; and

     4) coverage with no cost-sharing for preventative services; among others.

The Obama administration has promised to provide more clarity to employers regarding the mandate over the next year and a half.  For now, however, employers can take advantage of the breathing room afforded by this delay to form their strategy for compliance with the law.

If you find yourself dealing with issues related to the employer mandate, we urge you to contact an attorney at the Firm so we can help to find a favorable resolution.

Supreme Court Makes It More Difficult To Successfully Sue Employers For Retaliation

 July 5, 2013

By Adam Dauksas

Editors’ Note: On June 24, 2013, the U.S. Supreme Court handed down decisions in two employment cases that significantly affect the scope of employment discrimination law, both of which are “friendly” to employers. In our last eBlackboard, we reviewed the Court’s interpretation of who is a supervisor for purposes of imputing liability to an employer in Title VII discrimination claims. In this eBlackboard, we review the stiffer legal standard the Court announced a plaintiff must meet in order to prevail on a retaliation claim under Title VII.

Recently, the U.S. Supreme Court made it significantly harder for an employee to prove that an employer has unlawfully retaliated against him/her for having previously opposed, complained of, or sought remedies for, unlawful workplace discrimination.  The Court, in University of Texas Southwestern Medical Center v. Nassar, held that when pleading a retaliation claim, an employee must show that an employer’s desire to retaliate was not just a motivating factor for any adverse employment action, but was that action’s “but-for” cause.

Dr. Naiel Nassar was a medical doctor of Middle Eastern descent who worked as both an assistant professor at the University of Texas Southwestern Medical Center and a physician at Parkland Memorial Hospital.  The university and hospital had an affiliation agreement, whereby the hospital would offer empty staff physician posts to university faculty members such as Dr. Nassar.  Dr. Nassar’s immediate superior at the university was Dr. Beth Levine.  Dr. Nassar alleged that Dr. Levine was biased against him because of his religion and ethnic heritage, and, on several occasions, Dr. Nassar met with Dr. Gregory Fitz, who was Dr. Levine’s supervisor, to complain about her alleged harassment.  Believing Dr. Levine was prejudiced towards him, Dr. Nassar tried to arrange to continue working at the hospital without also being on the university’s faculty.

As Dr. Nassar negotiated with the hospital regarding his new position, he resigned from his teaching job with the university and sent a letter to Dr. Fitz and several others, in which Dr. Nassar stated that he was leaving because of Dr. Levine’s harassment.  In particular, Dr. Nassar stated that Dr. Levine’s harassment “stems from ... religious, racial and cultural bias against Arabs and Muslims.”  Upset at Dr. Nassar’s portrayal of Dr. Levine, and concerned that the affiliation agreement prohibited Dr. Nassar from working at the hospital without also working at the university, Dr. Fitz protested to the hospital. As a result, the hospital withdrew its job offer.

Dr. Nassar then filed a lawsuit against the university, alleging two separate violations of Title VII of the Civil Rights Act of 1964.  The first claim was for status-based discrimination, contending Dr. Levine’s racial and religious harassment had caused Dr. Nassar’s constructive discharge from the university.  The second claim was for retaliation, asserting that Dr. Fitz’s efforts to stop the hospital from hiring him were in retaliation for Dr. Nassar having complained about Dr. Levine’s harassment.  The issue before the Supreme Court was whether the same legal standard related to causation applied to both claims.

With respect to status-based discrimination claims, which encompass discrimination on the basis of race, color, religion, sex, and national origin, the Court has long held that an employee need only demonstrate that one of those protected bases was a motivating factor in the adverse employment action.  This means that an employer can be held liable for status-based discrimination even though other non-prohibited factors (e.g.  job performance, attendance, etc.) also prompted the adverse employment action.   Before the Supreme Court, Nassar argued that this standard should also apply to retaliation claims.

But the Supreme Court disagreed.   Noting that the number of retaliation claims filed with the U.S. Equal Employment Opportunity Commission (“EEOC”) “has nearly doubled in the past 15 years – from just over 16,000 in 1997 to over 31,000 in 2012,” the Court determined that a more stringent standard was warranted. Thus, to prevail on a claim of retaliation under Title VII, an employee must now prove that their employer’s desire to retaliate was the “but-for” cause of the disputed employment action.  This means that the alleged unlawful retaliation would not have occurred in the absence of the employer’s desire to retaliate.

This heightened causation standard is welcome news for employers, including school districts.  If a “motivating factor” standard were to instead be applied to employees’ retaliation claims under Title VII, frivolous claims would stand a much better chance of succeeding.  For example, if a probationary teacher was about to be non- renewed for legitimate, performance-based reasons, he/she could simply level a bogus charge of racial, sexual, or religious discrimination.  Then, once the non-renewal occurs, the teacher could allege that the school district had retaliated against him/her because of the previously-asserted discrimination charge.   Under a “but-for” cause standard, however, such a retaliation claim would almost certainly fail as the non-renewal would have occurred regardless of the teacher’s discrimination charge.

If you have any questions regarding this decision or how it may impact a case that your school district currently has pending, please do not hesitate to contact Scariano, Himes and Petrarca, Chtd.