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.

Time Spent as a Full-Time Substitute Teacher Does Not Count Toward Tenure

 May 31, 2013

By Parker Himes

Years spent as a full-time substitute teacher do not count toward tenure.  That was the decision reached by the U.S. Court of Appeals for the Seventh Circuit in the recently decided case of Harbaugh v. Board of Education of Chicago.

Candace Harbaugh taught as a full-time substitute for the 2003-2004 school year at James G. Blaine Elementary School, which is operated by the Chicago Public School system (“CPS”), before becoming a probationary, tenure-track teacher the following year.  Harbaugh remained at Blaine for the 2004-2005 school year before teaching at another CPS school for the 2005-2006, 2006-2007, and 2007-2008 school years.  In March 2008, the school’s principal recommended that her contract not be renewed, a recommendation the Board of Education accepted.  Harbaugh could not find employment in another school in the CPS system.

 Following her termination, Harbaugh sued the Board alleging that she had achieved tenure at the beginning of the 2007 - 2008 school year and was entitled to the employment protections afforded to tenured teachers.   If Harbaugh had achieved tenure at the beginning of the 2007-2008 school year, under Illinois law, Section 34-85 of the School Code, she could be fired only for cause. Harbaugh claimed that her year spent as a full-time substitute teacher should be applied to the number of years required to achieve tenure.

 While acknowledging that Harbaugh’s functions, responsibilities, and salary as a full-time substitute were almost identical to her functions as a probationary teacher, the Court held that Illinois law distinguishes between the two classifications. The Court concluded that many aspects of employment, certification, hiring, and firing differ between substitutes and probationary teachers.

 Importantly for the Court, probationary teachers must meet far more rigorous certification requirements than do substitutes.  The Court held that the provisions of Article 34 of the Illinois School Code, which applies exclusively to CPS schools and mirrors Article 21, designates substitute teachers as a type of non-tenure track teacher who works full-time at one school like tenure-track teachers, “only with less seniority and without potential job security.”

Accordingly, the Court held that Harbaugh’s year spent as a full-time substitute teacher did not count toward the four years required to achieve tenure.  Therefore, since she had not achieved tenure, she was not entitled to a hearing before the Board terminated her employment.

 If your district finds itself dealing with a teacher employment issue, we urge you to contact an attorney at the Firm so we can help you reach a favorable resolution.

Changes Affecting Healthcare Flexible Spending Accounts Begin January 1, 2013

December 5, 2012

By: Adam Dauksas

Beginning January 1, 2013, a new pre-tax, salary-deferral limit for healthcare flexible spending accounts (“FSAs”) will take effect.  As part of the federal Patient Protection and Affordable Care Act (commonly referred to as “ObamaCare”), FSAs will soon have annual limits of $2,500 per year, with that figure then rising each year thereafter based on the rate of inflation.

This is an important change in the law because, up until now, there has not been an official cap on how much employees could contribute to FSAs; IRS rules merely dictated that employers had to come up with their own maximum contribution amounts. Typically, employers have set this figure somewhere between $2,000 - $5,000.

This new $2,500 limit, however, applies to the plan year, not the calendar year.  For instance, if your plan year is tied to the fiscal year and thus your next plan year does not begin until July 1, 2013, then that is when the $2,500 limit takes effect.  In addition, if your current plan provides for a grace period (which can be up to two months and fifteen days), unused salary FSA deferrals that are carried over into that grace period do not count against the $2,500 limit applicable to your next plan year.

Yet despite this new limit, FSAs – for now, at least – will still be subject to the IRS’ “use-or-lose” rule, meaning that any unused money left in the account at the end of the plan year is forfeited by the employee (Note: The “use-or-lose” rule may well be amended in the future.  On June 25, 2012, the IRS stated, in its Notice 2012-40, that “[g]iven the $2,500 limit, the Treasury Department and the IRS are considering whether the use-or-lose rule for health FSAs should be modified to provide a different form of administrative relief.”).

In light of these changes, you should review your plan documents as soon as possible for compliance with the new $2,500 limit.  If you need to amend your plan or have any other questions regarding FSAs, please do not hesitate to contact Scariano, Himes and Petrarca, Chtd.

SENATE BILL 7 ANALYSIS – PART TWO - EVALUATIONS

 July 19, 2011

By: Jessica M. Bargnes

In Part 2 of this firm’s analysis of Senate Bill 7, we address Senate Bill 7’s reliance upon recent changes in the teacher evaluation process.  Much of Senate Bill 7 relates to the new evaluation procedures put in place in 2010, through the Performance Evaluation Review Act (“PERA”).

PERA requires that each school district develop an evaluation plan incorporating the use of data and indicators on student growth as a factor in rating performance.  Such factors must be implemented in the lowest performing 20% of school districts on or before September 1, 2015.  For the remainder of school districts, the new evaluation plan must be implemented on or before September 1, 2016.

All evaluators undertaking evaluations after September 1, 2012 must be trained in an ISBE-approved program, and teachers must be rated as “excellent,” “proficient,” “needs improvement,” or “unsatisfactory.”  All probationary teachers must be evaluated at least annually, and tenured teachers must be evaluated at least every two years.

1.         Senate Bill 7 changes the manner in which a school district may fill new and vacant positions.

In filling new and vacant positions, a school district may consider certification, qualifications, merit, ability (including performance evaluations), and relevant experience.  The length of continuing service with a school district must not be considered, unless all other factors among two candidates are considered to be equal. Whether a performance evaluation was performed in accordance with PERA will bear upon such consideration, in that PERA evaluations should be given more weight than non-PERA evaluations.

A school district’s decision to select a candidate for a new or vacant position shall not be subject to review under grievance resolution procedures in the Illinois Educational Labor Relations Act (IELRA) so long as the school district does not fail to comply with the procedural requirements set forth in the school district’s collective bargaining agreement (“CBA”).

In the event that the school district’s CBA does provide for the filling of new and vacant positions, those provisions will remain in effect for the remainder of the term of the CBA.  At a minimum, your CBA should clarify when a “vacancy” exists.

2.         Senate Bill 7 makes changes regarding the State Superintendent’s suspension, revocation, or limiting an individual’s teaching certificate through its definition of “incompetency.”

The State Superintendent has the authority to suspend, revoke, or limit an individual’s teaching certificate for “incompetency.” “Incompetency” is defined as receiving an “unsatisfactory” performance evaluation in two or more school terms within a seven (7) year period.

In determining whether to suspend, revoke, or limit an individual’s teaching certificate based on incompetency, the State Superintendent will consider whether the unsatisfactory evaluations occurred prior to Senate Bill 7 taking effect; whether the unsatisfactory evaluations occurred prior to the implementation date of the recently passed evaluation procedures described in the PERA; whether the evaluators who rated the teacher unsatisfactory had completed proper training under the PERA; the time between the ratings; the quality of the remediation plans; whether the unsatisfactory ratings were related to the same or different assignments; or whether the unsatisfactory ratings occurred during the first year of an assignment.

As an alternative to suspension or revocation, the State Superintendent may require that the teacher receive additional professional development, at the teacher’s expense.

Please do not hesitate to contact Scariano, Himes and Petrarca, Chtd., with any questions about teacher evaluations.

SENATE BILL 7 ANALYSIS - PART ONE- TENURE

June 17, 2011

 By: Jessica M. Bargnes

On June 13, 2011, Governor Quinn signed Senate Bill 7 into law, effectuating changes in various aspects of the School Code including the attainment of tenure, tenured teacher dismissal, reductions in force, and the bargaining process, among other provisions.

This e-Blackboard is the first in a series addressing the educational reforms implemented by Senate Bill 7.  This e- Blackboard specifically addresses changes to the tenure process under Senate Bill 7.

Attainment of Tenure

All currently employed teachers, as well as those teachers hired prior to a school district’s implementation of the Performance Evaluation Review Act (PERA), will earn tenure in accordance with the standard four year tenure requirements currently in place in the School Code.  “PERA” refers to recent legislation amending the teacher evaluation process, as outlined in the School Code at 105 ILCS 5/24A.  Outside Chicago, PERA will be implemented in 2015 for school districts in the lowest performing 20% statewide, and in 2016 for all other school districts.

After a school district implements PERA, the four year probationary period is accelerated to three years when a teacher obtains ratings of “Excellent” in each of the first three probationary years.  Should a teacher not receive a rating of “Excellent” in each of the first three years, the four year probationary period applies.

Additionally, during the four year probationary period, teachers must demonstrate proficiency in order to attain tenure.  To demonstrate proficiency, the teacher must receive a “Proficient” or “Excellent” rating in two out of the last three years of the probationary period, including the final year.   If a teacher does not attain Proficient or Excellent ratings in two out of three years, the teacher cannot attain tenure and the district must dismiss the teacher.  Should a district fail to perform an annual evaluation of a teacher, the teacher will be deemed to be proficient for that year.

Should a school district choose to dismiss a probationary teacher, the school district must provide the teacher with notice forty-five days prior to the end of the school term. Fourth year probationary teachers must continue to receive a specific reason for the dismissal.

A teacher must work at least 120 days of a school year in order to have that year count toward tenure.  If a teacher takes FMLA leave, that leave will count toward the 120 day requirement.  If a teacher does not work at least 120 days, the teacher will not be deemed to have had a break in service, but that year will not count toward the attainment of tenure.

If, for any reason, the boundaries of a school district change, a teacher will not lose his or her tenure, but that tenure will transfer to the newly formed district.

Portability of Tenure

In the past, tenure has not been portable from school district to school district.  Now, under Senate Bill 7, to a certain extent tenure is portable.  A teacher may obtain tenure within two years at a new school district if the teacher was rated “Proficient” or “Excellent” in the final two years of employment at the teacher’s previous district, and if the teacher obtains two “Excellent” ratings in the first two years at the new district.  In order to qualify for this shortened probationary period, the teacher must have been honorably discharged or left the previous district voluntarily, and must have been tenured in the previous district.

Please do not hesitate to contact Scariano, Himes and Petrarca, Chtd., with any questions about the changes to the tenure process outlined herein, or any other aspect of Senate Bill 7 about which you may have questions.

 

The Limits of Union Representation at Post-Evaluation and Remediation Conferences

 March 2, 2011

By: John Fester and Adam Dauksas

Can a probationary teacher insist on union representation at a post-evaluation or remediation conference where the subject of that conference is limited to the teacher’s performance?  On Friday, the Illinois Supreme Court said no, at least not in the case of Rachel Warning.  In SPEED District 802 v. Warning, the Court held that SPEED, a special education cooperative, did not commit an unfair labor practice by failing to renew the teaching contract of Warning, a nontenured probationary teacher, after she insisted on being accompanied by a union representative at a post-evaluation conference and several subsequent remediation meetings.

In February 2005, Warning received a teaching performance evaluation of “Unsatisfactory.”   Although Warning was a fourth-year probationary teacher at the time, the collective bargaining agreement between the union and the district prohibited SPEED from dismissing a third- or fourth-year probationary teacher for performance-based reasons “without at least one documented attempt to correct deficiencies.”  Therefore, SPEED’s principal scheduled a meeting to not only review the evaluation with Warning, but also discuss a corrective action plan that had been developed for her.  The plan called for biweekly remediation meetings with Warning in order to discuss, among other things, Warning’s lesson plans and her difficulties in effectively communicating with other staff members.

Over the objections of several of SPEED’s administrators, Warning brought a union representative with her to the initial post-evaluation conference and every subsequent remediation meeting held thereafter.  Having determined that Warning’s overall performance remained “Unsatisfactory” following the remediation sessions, SPEED chose not to renew Warning’s contract.

In August 2005, Warning and the union filed an unfair labor practice charge with the IELRB, asserting that SPEED failed to renew her contract “in retaliation for Warning’s insistence on having a fellow employee and Union representative assist her in defending herself against the possibility of adverse employment actions.”  Both the IELRB and the Illinois Appellate Court ruled in Warning’s favor. Each held that the district committed an unfair labor practice by discharging Warning in retaliation for insisting on union representation at the remediation meetings and ordered that as a remedy, Warning be reinstated to her teaching position and granted tenure.

The Illinois Supreme Court reversed, however, holding that SPEED could not have committed an unfair labor practice because Warning was not engaged in a protected union activity when she insisted on having union representation at her remediation meetings.   An employee engages in a protected union activity only when the employee’s actions invoke a right under the law or the collective bargaining agreement.   The majority held that Warning’s actions did neither.

Specifically, the Court held that the right to union representation does not attach to a probationary teacher’s post-evaluation conferences or remediation meetings as a matter of law.  The IELRB has long held that union representation rights do not apply to tenured teacher post-evaluation conferences or remediation meetings, unless bargained otherwise.  Under the Court’s decision, that holding has now been extended to probationary teachers as well.

Additionally, in the majority’s estimation, the parties’ collective bargaining agreement did not provide for union representation at post-observation or remediation conferences. As such, Warning could not demonstrate that she had engaged in a protected union activity, and without protected union activity, there could be no illegal retaliation by SPEED under the Illinois Educational Labor Relations Act.  Consequently, her claim failed and the Court’s majority opted not to reach the issue of whether reinstating Warning to a tenured position was within the IELRB’s authority.

Although the Court’s narrow majority ruled in SPEED’s favor, Justice Charles Freeman filed a dissenting opinion that persuasively argues that whether an employee like Warning is entitled to union representation should ultimately depend on how the meeting is characterized and the nature of the employee’s grievance. For instance, if a post-observation conference or remediation meeting also covers grievable subjects, such as disciplinary matters or evaluation procedures, Freeman would find the right to union representation attaches, even if the meeting is styled as an evaluation meeting.

The lessons to take away from this case are as follows:

      1.  Probationary teachers do not have the right to union representation at post-observation evaluation conferences unless that right has been previously negotiated. Check your collective bargaining agreement and evaluation plan and follow the requirements in each.

      2.   A teacher evaluation conference may start out as one with no right to union representation.   But depending on where the meeting goes, the right to union representation may attach.  Unions may argue that a meeting was really a disciplinary meeting and not an evaluation meeting.

      3.   Expressed hostility to union representation, even when the right does not attach, will almost always form the basis for an unfair labor practice charge.  Stay calm in the face of obstinate behavior and call us for advice on handling a request for representation when you believe the request is unwarranted.

The presence of a union representative at any meeting can be managed so that you can accomplish the purpose of the meeting without undue disruption or delay (or five years of litigation). For help managing the presence of union representation in meetings, or if you have any questions about this case, please do not hesitate to contact your lawyers at Scariano, Himes and Petrarca.

ILLINOIS’ CIVIL UNIONS LAW

HOW WILL THIS NEW LEGISLATION AFFECT YOUR DISTRICT?

February 3, 2011

By: James Petrungaro and Adam Dauksas

This week, Governor Quinn signed into law the Illinois Religious Freedom Protection and Civil Union Act, which will soon provide for legal recognition of civil unions in Illinois.  Under the law, which takes effect June 1, 2011, any person entering into a civil union will have “the same legal obligations, responsibilities, protections, and benefits as are afforded or recognized by the law of Illinois to spouses.”  Significantly, the new law will recognize both homosexual and heterosexual civil unions.

Because this is only a State law, however, civil unions granted in Illinois will remain unrecognized by the federal government.  Accordingly, the new legislation will have no impact on federal employment laws, such as the Family and Medical Leave Act (“FMLA”) and the Consolidated Omnibus Budget Reconciliation Act (“COBRA”). Similarly, a party to a civil union will be ineligible to receive a survivor’s Social Security benefit.

Nevertheless, the new law will have a significant impact on school districts.  For instance, Section 24-6 of the School Code provides that districts must grant to their full-time employees at least 10 days of sick leave at full pay each school year to care for, among other things, “a serious illness or death in the immediate family or household.” Under the Illinois Religious Freedom Protection and Civil Union Act, the term “immediate family” now encompasses a civil union partner.

The new civil union law also grants to licensed partners the same property inheritance rights that have long been enjoyed by married couples in Illinois.  Accordingly, a partner in a civil union will soon be able to receive state pension benefits when his or her partner, who had worked for the government, dies.

In addition, the law may impact discrimination rights. The Illinois Human Rights Act makes it a civil rights violation for a board of education to “refuse to hire, to segregate, or to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment” on the basis of an individual’s “marital status.”  Although there is currently no case law equating civil unions to one’s “marital status,” we expect civil union partners to claim protected status under the Illinois Human Rights Act. One way in which this could affect school districts is through the grant of insurance benefits to dependents. If civil union partners are protected by the Human Rights Act, a spouse cannot be offered dependent care to the exclusion of a civil union partner.  Yet, even if the employee’s civil union partner receives insurance benefits from the school district, the value of any insurance benefits received by an employee’s partner would be treated as income and taxed by the federal government.

To ensure compliance with the new law, boards of education and appropriate administrators should review and modify their existing board policies, handbooks and insurance policies to adequately reflect the law’s changes.  If you have any questions regarding the implementation of the Illinois Religious Freedom Protection and Civil Union Act or would like us to audit your policies and procedures to ensure compliance, please do not hesitate to contact Scariano, Himes and Petrarca.

Employing IMRF Retirees

 October 19, 2010

By Adam Dauksas

A recent interpretation of pension rules by the Illinois Municipal Retirement Fund (“IMRF”) should have your District exercising caution when hiring an IMRF annuitant to work in an IMRF-qualified position.

Retirees receiving an IMRF pension who return to work in an IMRF qualifying position, without being re- enrolled in the retirement system, could be held responsible for paying back to IMRF the entire amount of all annuity payments that were improperly received while working in that qualifying position during retirement.  Moreover, these repayment amounts would be in addition to any member contributions owed by the retiree.

School districts, and other IMRF employers should also be aware that in the event a retiree is unable to repay to IMRF the entire past annuity amounts improperly received by them, and all or a part of the fault for failing to re- enroll the retiree lies with the district, IMRF may seek to recover the annuity payments directly from the district.  In fact, IMRF has recovered such improperly paid annuity amounts directly from at least one school district in the past.

If you have any questions regarding the employment of IMRF retirees, please do not hesitate to contact Scariano, Himes and Petrarca.

Family Medical Leave Act Interpretation – In Loco Parentis Clarification

July 15, 2010

By Trisha Olson

On June 22, 2010, the U.S. Department of Labor (“DOL”) issued an interpretation of the Family and Medical Leave Act (“FMLA”) to clarify when an employee who does not have a biological or legal relationship with a child may take FMLA leave for the birth, adoption or placement of a child or to care for a child with a serious health condition.  Generally, the FMLA provides 12 workweeks of job protected, unpaid leave during any 12- month period, for eligible employees to care for a son or daughter with a serious health condition, for the birth and care of a newborn, for the adoption of a child, or placement of a child from foster care in the employee’s home within the first 12 months following birth or placement.

The recent DOL interpretation clarifies the definition of “son or daughter” as used in the FMLA.  The current definition includes a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under age 18, or age 18 or older and is incapable of self-care because of a mental or physical disability.  The term in loco parentis generally refers to an individual who puts him or herself in the position of a parent by assuming certain day-to-day or financial obligations of a child.  The DOL interpretation clarifies that employees who have no biological or legal relationship with a child may stand in loco parentis to a child.   For example, where an employee provides day-to-day care for his or her unmarried partner’s child, but does not financially support the child, the employee could be considered to stand in loco parentis to the child and therefore be entitled to FMLA leave to care for the child if the child has a serious health condition.  Likewise, a domestic/same-sex partner who is not the biological or adoptive parent of a child may stand in loco parentis to the child and would be entitled to leave to bond with the child following placement, or to care for the child if the child had a serious health condition.

The DOL interpretation states that a person is not required to provide both financial support and day-to-day care of a child in order to stand in loco parentis to the child.  For instance, an employee who provides significant financial support for a grandchild, but who does not provide day-to-day care, may stand in loco parentis.

Further, the fact that a child has a biological or legal parent in the home does not prevent another person from standing in loco parentis for purposes of taking FMLA leave.  In fact, the interpretation provides that when a child’s biological parents take subsequent spouses, all four parents (biological and step-parents/partners) could be entitled to FMLA leave for the child.

Significantly, other FMLA provisions are unaffected by this interpretation.  For example, the new interpretation does not require employers to provide FMLA leave to employees seeking time to care for their unmarried or domestic/same-sex partners.   However, because the DOL interpretation regarding in loco parentis is applicable immediately, employers should promptly review their FMLA policies, procedures and practices to ensure that they are consistent with the DOL interpretation.

Employers who have questions about an employee’s relationship to a child for FMLA purposes may require the employee to provide reasonable documentation or a statement of the family relationship.  The DOL interpretation states that “a simple statement asserting that the requisite family relationship exists” is all that is required to establish an employee’s relationship.

In all cases, whether an employee stands in loco parentis to a child will depend on the particular facts. Accordingly, if you have questions regarding whether an employee is entitled to FMLA leave, please contact us.

 

Retiree Health Insurance Plans

Financial Help from the Federal Government and a Recent Court Decision

 April 29, 2010

In conjunction with the TRS “early” retirement option that permits teachers to retire between ages 55 and 60 without reducing their retirement annuity, many school districts offer a companion retiree health insurance program to encourage veteran teachers to retire as many as 10 years before age 65, when the employee becomes eligible for Medicare. These collectively bargained retiree health insurance plans offer subsidized or sometimes 100% health insurance coverage during the gap between retirement and eligibility for Medicare. While retirees are sometimes required to secure insurance through TRIP or a private insurance plan, many school districts have allowed retirees to continue participation in the school district’s group health plan.

As the cost of health insurance has exponentially increased in the last few years, however, many districts have begun rethinking the wisdom behind this model. While retirees make up a small percentage of the insurance pool, their claims can represent a majority of the insurance plan’s costs. As a result, some school districts are looking to end the retiree health insurance program all together or modify the program by shifting increased financial responsibility to the retirees.

Help from the Feds

Recognizing that many employers can no longer afford to provide retiree health insurance plans, Congress recently enacted the Patient Protection and Affordable Care Act to preserve such plans and lessen the burden on employers. The legislation includes a temporary reinsurance program that will provide federal reimbursements to employer-funded early retiree health care plans for pre-Medicare retirees, between ages 55 and 64.

To be eligible for the program, employers must submit to the Secretary of Health and Human Services (“HHS”) a completed application, which is expected to be made available in June 2010. Although we have yet to see the application form, the legislation indicates that an applicant must demonstrate that its plan: (1) implements programs and procedures to generate cost-savings with respect to participants who have chronic and high-cost conditions; and (2) is able to provide documentation of the actual cost of the retiree medical claims. Both self-funded and insured plans are eligible. Once an employer’s application is approved by HHS, the employer must then submit a claim to HHS exhibiting the actual costs of the medical items or services received by each early retiree.

The reimbursement program is limited in scope and comes with some strings attached. Only costs incurred after June 23, 2010 are eligible for reimbursement and only 80% of the employer’s out of pocket cost will be reimbursed. Further, the reimbursed funds must be used to lower plan costs. This can include lowering premium costs for the employment-based plan or reducing the plan participants’ premium contributions, co-payments, deductibles, co-insurance or other out-of-pocket costs.

The program was appropriated $5 billion and will expire when that money runs out or January 1, 2014, whichever occurs first. At least one consulting firm has suggested that the current appropriation will last less than one year, so swift action is appropriate. Accordingly, we are advising our clients to monitor the release of the program’s application from HHS and apply for participation at the earliest possible moment.

A Test Case

The impact and success of the federal retiree insurance reimbursement program remains to be seen, and at least for now, is a temporary solution to skyrocketing retiree healthcare costs incurred by school districts. As a result, school districts may be considering modifications to their current programs. Until recently, Illinois law did not address whether the employer school district, in an attempt to cut retiree health insurance costs, could modify a contract- based retiree health insurance plan after the employment relationship had ended, (i.e., after the teacher retired) without breaching the contract that awarded the retirement benefit. In Haake v. Board of Education of Glenbard Township School District 87, a case handled by Scariano, Himes and Petrarca, the Illinois Appellate Court provided some guidance on the issue.

The teachers’ contract at issue in Haake included a benefit that stated retirees would continue to receive health insurance coverage at the same cost as when they retired, until they reached age 65. Under the contract, teachers electing individual insurance coverage paid nothing toward their premiums, and those electing family coverage paid 50% of the premium. Years after the contract expired, and pursuant to a new contract bargained with the teachers’ union, the board of education began charging retirees a small percentage of the plan’s premium costs for individual participants -- the same rate that active teachers were required to pay. The retirees filed suit arguing that the insurance benefit lasted beyond the expiration of the contract, thus making the board’s modification of the plan a breach of their agreement. The board of education argued that because the former contract had expired and had been replaced by a new agreement with the teachers’ union, the retirees could not avail themselves of the former contract.

The court held that even though the contract granting the benefit had expired, because the retiree insurance provision had specific language addressing the duration of the benefit (until age 65), the board of education and teachers’ union intended the benefit to outlast the contract’s expiration and could not be modified by the board to the detriment of the current retirees. The Haake decision is unfavorable for school districts seeking to reduce retiree health insurance costs, but does not serve as an absolute bar to modifying such plans. While instructive, the decision is limited factually to particular language of the contract at issue in that case. Other contracts that do not similarly establish an independent duration for the retiree benefit may be subject to modification without similar risk of breach of contract action.

Scariano, Himes and Petrarca stands ready to assist your district with restructuring its retiree health insurance plan and participating in the federal reimbursement program.

Please Help Clarify Availability of Sick Leave for Childbirth

 January 13, 2010

Many of you will recall several years ago that Section 24-6 of the School Code was amended to clarify that sick leave could be used for birth, adoption, or placement for adoption.  The impetus for this change was a downstate school district that denied a teacher the use of paid sick leave in order to complete adoption of a child in a foreign country. Unfortunately, by including the term “birth” in the amendment, the legislature created some uncertainty in the sick leave statute.  In response to the amendment, the Illinois Education Association took the position that because there were no limits in the legislation, a school employee could use as much sick leave as he or she had accumulated whenever the teacher (or teacher’s spouse) gave birth, or became involved in the adoption process.

As this clearly was not the legislature’s intent, another amendment to Section 24-6 was passed last year, which should have clarified that the use of sick leave following birth (without a doctor’s note)  was limited to the six weeks immediately following delivery.  However, the IEA has taken the position that the 30 sick days may be used anytime in the first year following childbirth.  Furthermore, because the IEA claims that the 30 sick days are not granted due to the postpartum condition of the mother or child, their position is that the days can be taken at any time for any reason (e.g. every Friday for 30 weeks).  The IEA’s position essentially converts sick days to unrestricted paid leave days, but only for teachers who give birth or father a child.

While we worked with Representative Sandra Pihos (R-Glen Ellyn) and LEND in an attempt to clarify that the 30 sick days available for use in connection with childbirth are intended to be for the six weeks following delivery, we were unable to gain additional legislative support at that time.  However, Representative Pihos has expressed interest in revisiting this issue to clearly identify when the 30 sick days would be available for use in connection with childbirth.

In order to assist Representative Pihos and LEND, we are asking you to provide us with information:

      1.  Have any of your local unions advised you that they believe 30 days of paid sick leave are available in the case of childbirth beyond the six weeks following delivery?  If so, briefly describe the union’s position.

      2.  Have any of your local unions threatened or filed grievances or litigation if you attempted to restrict paid sick leave (without a doctor’s note) to the first six weeks following delivery?  If so, what was your response?

      3.  How many teachers during 2009-2010 have used the new 30 day allotment of sick leave in connection with childbirth?

Please send your responses to Lynn Himes, ahimes@edlawyer.com or John Fester, jfester@edlawyer.com.  Thank you for your assistance and we will keep you informed of any proposed changes to the School Code sick leave provisions.

NEW REGULATIONS RELATED TO HIPAA

December 31, 2009

By: Trisha A. Olson

The Department of Health and Human Services (“HHS”) issued a new regulation requiring entities covered by the Health Insurance and Portability and Accountability Act (“HIPAA”) to notify individuals when their protected health information is breached and the breach violates an individual’s right to protected health information.  School districts that self-insure in whole or part, or process Medicaid and/or other claims, may be HIPAA covered entities.

In general, “protected health information” is the individually identifiable health information held or transmitted in any form or medium by a HIPAA-covered entity.  A “breach” of this information is the acquisition, access, use or disclosure of unsecured protected health information in a manner not permitted by HIPAA, and which compromises the security or privacy of the protected health information.  A breach violates an individual’s right to protected health information only when it poses a significant risk of financial, reputational or other harm to the individual.

Following a breach that poses a significant risk, covered entities must notify affected individuals in writing within 60 calendar days after the discovery of the breach.  Notification must include:

      (1)         A brief description of what happened, including the date of the breach and the date of the discovery of the breach, if known;

      (2)        A description of the unsecured protected health information that was involved; (3) The steps an individual should take to protect him/herself from potential harm;

      (4)        A brief description of how the covered entity is investigating the breach, mitigating losses, and protecting against any further breach; and

      (5)        Contact information for individuals who have questions or concerns.

When a breach impacts more than 500 individuals, notice is required to the HHS Secretary and prominent media outlets.

The Act provides three narrow exceptions to the breach notification requirement:  (1) An unintentional acquisition, access or use of information by an employee who acts in good faith and in the scope of his/her employment is not considered a breach and does not trigger the notification requirement of the Act; (2) An inadvertent disclosure from one authorized person to another authorized person does not trigger the notification requirement; and (3) An unauthorized disclosure to an individual who would not reasonably be able to retain the information does not trigger the notification requirement.

Covered entities should develop policies and procedures and train employees regarding the above notification requirements for breaches of protected health information.  All policies, procedures and trainings must reflect that not every violation is a “breach” that triggers notification requirements.

Please do not hesitate to contact your attorney at Scariano, Himes, and Petrarca, Chtd., with any questions that you may have related to the new HIPAA regulation.

COBRA SUBSIDY EXTENSION

December 31, 2009

By: Jessica M. Bargnes

The recently enacted Department of Defense Appropriations Act (DDAA) modifies certain provisions of the American Recovery and Reinvestment Act (ARRA) relating to the COBRA Subsidy.

The ARRA established the COBRA Subsidy which required eligible individuals to pay only 35 percent of their COBRA premiums.  The remaining 65 percent was reimbursed to the coverage provider through a tax credit. To be eligible, individuals must be involuntarily terminated from their employment and timely apply for the benefit. Those individuals who may be covered by Medicare or their spouse’s insurance are not eligible.

The DDAA amended the maximum duration of COBRA Subsidy assistance from nine months to 15 months. Further, the eligibility period was amended, changing the deadline of eligibility from December 31, 2009, to February 28, 2010.  The amendments to the COBRA Subsidy are retroactive to the effective date of the ARRA.

TheDDAAdoesnotrequiremodificationofthenoticesprovidedbyemployersthatare required by ARRA, beyond modifying the eligibility dates.  Plan administrators must provide information about the premium reduction to all individuals who have COBRA qualifying events from September 1, 2008 through February 28, 2010.

Plan administrators must also provide notice about the changes made to the premium reduction provisions of ARRA by the DDAA to individuals who have already been provided a COBRA election notice.  Individuals who are eligible for the COBRA Subsidy must be provided this notice by February 17, 2010, and individuals who experience a termination of employment on or after October 31, 2009 and lose health coverage must be provided this notice within the normal time frames for providing continuation coverage notices.

Because of the retroactivity of the law, the DDAA also requires that notice be provided to those individuals who are in a "transition period” within 60 days after the enactment of the DDAA.  A person in a “transition period” is one whose nine month COBRA subsidy expired prior to December 19, 2009.  These individuals are entitled to an additional 6 months of reduced premiums per the COBRA subsidy.

Those individuals who lost their subsidy and paid the full 100 percent premium in December 2009 will most likely be contacting their plan administrator or employer sponsoring the plan to discuss a credit for future months of coverage or a reimbursement of the over payment.  The notice provided by the Plan Administrator regarding changes to the COBRA Subsidy should discuss this.  Employers should be prepared for an influx of inquiries into COBRA Subsidy related issues. Please do not hesitate to contact your attorney at Scariano, Himes and Petrarca, Chtd., with any questions that you may have regarding the COBRA amendments.

New “Equal Opportunity Employment is the Law” Poster

 November 9, 2009

The Equal Employment Opportunity Commission (EEOC) revised its “Equal Employment Opportunity is the Law” poster to reflect current federal employment discrimination laws including the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) and the Genetic Information Nondiscrimination Act of 2008 (GINA), which is effective November 21, 2009.  The revised poster also includes updates from the Department of Labor.  The ADAAA expands the definition of “disability” under the Act. GINA prohibits employment discrimination based on genetic information.

An employer must comply with the posting requirement and may do so by:  (1) posting the supplement to the poster alongside the EEOC’s September 2002 “EEO is the Law” poster or the Office of Federal Contract Compliance Programs’ August 2008 “EEO is the Law” poster; or (2) posting the EEOC’s November 2009 version of the “EEO is the Law” poster. Both posters are available for download from the EEOC’s website which can be accessed by clicking here.

Amended FOIA

We are receiving numerous questions regarding the amended Freedom of Information Act (FOIA) which becomes effective as of January 1, 2010.  Information regarding FOIA can be found in the Scariano, Himes and Petrarca, School Law Review Newsletter, Fall 2009 Issue.  For a copy of the newsletter, click here.  Additionally, the Firm will cover the topic in depth at its annual client seminar at Seven Bridges in Lisle on February 6, 2010.  Invitations for the client seminar will go out in early December 2009.

The Firm is in the process of developing a new school board policy and procedures incorporating the recent amendments to the Act and is preparing an e-Blackboard email publication to distribute to our electronic mailing list.  In the meantime, if you have any questions regarding FOIA, please do not hesitate to call one of our attorneys.

The Firm continues to offer five free hours of in-service training annually. The training may be divided between administrators and board members, and is available on numerous topics including FOIA.  You are encouraged to contact your attorney at Scariano, Himes and Petrarca to schedule your 2010 in-service hours.

Scariano Himes & Petrarca Hospitality Suite

As a reminder, if you have not RSVP’d to attend the Scariano, Himes and Petrarca Hospitality Suite on Friday November 20, 2009 you can still do so by sending an email to emcnulty@edlawyer.com by November 13, 2009, with a list of attendees.  The Hospitality Suite will follow the IASB, IASA and IASBO 77th Joint Annual Convention from 5:00 p.m. to 6:30 p.m. at the Mid-America Club located at the AON Center, 200 East Randolph, 80th Floor, Chicago, Illinois.  To link to the invitation and for directions, click here.

NEW LAWS REQUIRE DISCLOSURE REGARDING SCHOOL EMPLOYEE COMPENSATION PACKAGES

 August 24, 2009

Governor Quinn recently signed two new laws passed by the General Assembly which require greater disclosure of teacher and administrator compensation in Illinois.

Public Act 96-266 adds §10-20.46 to the School Code and requires school boards to annually report to ISBE by July 1st the base salary and benefits of all administrators and teachers employed by the school district. For now, “benefits” include vacation and sick days, bonuses, annuities and retirement enhancements. The law does not expressly grant ISBE the authority to issue regulations further defining benefits, but we expect ISBE will prepare model forms for school districts to use. This law is effective January 1, 2010, meaning the first report must be submitted before July 1, 2010.

The law does not make public any information that was not previously subject to a Freedom of Information Act request since the Illinois Supreme Court announced this year in Stern v. Wheaton Warrenville Community School District 200 that administrator employment contracts are subject to disclosure under FOIA. However, the law does create a central location from which to request data concerning teacher and administrator contracts. As a result, individuals may now choose to redirect to ISBE certain FOIA requests that were previously made to the local school district.

In addition to the state-level disclosure requirements, the General Assembly also passed Public Act 96-434, which adds local publication requirements to the new §10-20.46 of the School Code. Under this new provision, before October 1 of each year school districts must post on their website (if any): (1) collectively bargained contracts entered between the School District and a n exclusive bargaining representative; and, (2) an itemized salary compensation report for every employee who holds an administrator’s certificate and works in an administrative capacity. The report must include all forms of compensation, including but not limited to base salary, bonuses, pension contributions, retirement increases, health and life insurance benefits costs and paid sick and vacation day payouts. In addition to posting the report on the District’s website, the new law requires the report to be presented at a regular board meeting and submitted to the District’s regional superintendent of schools, who shall make copies available to the public.  The law does not specify a form for the report, leaving that decision to each school district.

This new law is effective immediately, thus requiring the immediate posting of collective bargaining agreements to the District’s website. Additionally, the report on administrator compensation packages must be posted on the website by October 1, 2009. The new law does not proscribe a particular format for the report. If you would like assistance in preparing the compensation report, please do not hesitate to contact our firm to discuss content and formatting options.

SOCIAL NETWORKING AND COMMUNICATION TECHNOLOGIES

 August 7, 2009

The current state of the Internet and related technologies has made possible personal communication with a wider audience than ever before. As these technologies evolve, we expect that even more opportunities will exist for social networking and worldwide communication through the next generation of blogs, chat rooms, texts, online posting forums, or other similar mediums.

These technologies provide significant new instructional opportunities and allow collaboration among students and staff that previously could only take place in the classroom. However, like many new technologies, the evolution of the Internet and other forms of instant communication is not without questions regarding proper use. Scariano, Himes and Petrarca has developed guidelines and recommendations to give school districts guidance regarding use of social networking technologies as part of the curriculum, and to provide guidance intended to minimize the possibility of disruption to the education program.

Our guidelines and recommendations are intended to enhance and build upon the district's policies and procedures regarding acceptable uses of computer technology and address the proper use of social networking technologies both as part of the curriculum and in non-school settings. These guidelines and recommendations can also be adapted to meet the unique needs of each school district and its curriculum. If you would like to implement social networking guidelines and recommendations at your school, please contact your attorney at Scariano, Himes and Petrarca. We are happy to review our sample guidelines and recommendations with you, and to customize our materials to meet the needs of your school district.

U.S. SUPREME COURT ALTERS AGE DISCRIMINATION ANALYSIS

June 26, 2009

The United States Supreme Court recently issued a decision, Gross v. FBL Financial Services, Inc., which clarifies the burden of proof in age discrimination suits brought under the Age Discrimination in Employment Act of 1967 (ADEA). The ADEA generally protects employees 40 years of age or older from employment discrimination based upon age.

Prior to Gross, claims under the ADEA were treated in the same manner as other federal discrimination claims. For example, where an employee was of a protected status pursuant to Title VII of the Civil Rights Act of 1964 (e.g. race), and could demonstrate that the employer's treatment of the employee was motivated at least in part by an illegal discriminatory intent, the burden of proof shifted to the employer to demonstrate that it would have taken the same action regardless of the employee's protected status.

In the recent Supreme Court case, Gross v. FBL Financial Services, Inc., the Court held that the burden-shifting method described above does not apply to ADEA cases. In order to prove a discrimination claim under the ADEA, the employee must demonstrate that an employer took adverse action "because of" age, or that age was the "reason" the employer decided to act. The burden does not shift to the employer to prove that it would have taken the same action regardless of the employee's age. Therefore" the employee must show that age was the "but-for" cause of the employer's adverse decision.

This decision will make it more challenging for employees over the age of 40 to successfully prove ADEA claims, and lessens the burden on employers defending their actions. This change may become important if continued budgetary restraints result in the layoff of a significant number of tenured teachers. Even with the burden of proof placed on the employee, employers are well advised to carefully review adverse employment actions involving employees over the age of 40 to minimize the chance of a successful ADEA claim. The attorneys at Scariano, Himes and Petrarca, Chtd. are ready to assist you in any discrimination claims that arise at your district, and will be monitoring any further changes in the law in this area.