“Houston, We May Have a Problem . . . With Your Partial Dock Days”

Just as the astronauts in the classic 1995 film Apollo 13 devise a cunning strategy to return Apollo 13 to Earth, business managers and bookkeepers are tasked with the mission of navigating FLSA compliance and employee leave.  Both missions are fraught with challenges.  Under the FLSA, an exempt employee’s salary is not subject to reduction because of variations in quality or quantity of the work performed.  Teachers, for example, are exempt under the FLSA if their primary duty is teaching, tutoring, instructing, or lecturing in the activity of imparting knowledge, and if they are employed and engaged in this activity as a teacher in an educational establishment.  

The FLSA carves out several exceptions for the prohibition against deductions from pay for exempt employees.  For example, deductions may be made for exempt employees who are absent for one or more full days for personal reasons other than sickness or disability.  Additionally, exempt employees do not need to be paid for any workweek in which the exempt employee does not perform any work.  If the exempt employee is taking unpaid leave under the FMLA, the District is also not required to pay the full salary for weeks the employee is absent.   

You may be thinking “wait, does this mean partial day contract deductions or dock days are impermissible under the FLSA?”  Correct.  The FLSA views such partial day deductions as an indication the employee should be non-exempt and subject to overtime considerations, etc.  If an exempt employee has exhausted all sick and personal leave and is absent for less than a day, a business manager or bookkeeper is not allowed to contract deduct or dock the employee’s salary for less than a full day.  Partial day deductions should not be made from an exempt employee’s salary when the employee misses less than a full workday and does not have accrued leave available.  The FLSA contains a regulatory “window of correction” which allows an employer, such as a school district, to restore the affected employees’ exemptions under the FLSA by reimbursing the employee his or her lost wages and promising to comply with the salary basis regulation in the future.  

If you have any questions about the FLSA, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.

Taking the “FML” out of the FMLA

Stuff happens.  In our office, there are countless ways life might come before work.  While seeking FMLA leave for a serious health condition, Karen was discovered through surveillance shopping for shoes and having a wonderful time.  Is this problematic?  What about Bobby posting videos of himself on Facebook drinking and dancing at a local bar while claiming FMLA leave for his “bad back?” 

Part 5: May the Odds Be Ever in Your Favor

Just as you thought the FMLA series was a bad dream from 2022, we are back for more!  As a refresher, Part-1 discussed FMLA basics and the type of family and health events that trigger FMLA eligibility.  Part-2 focused on employer notice obligations and special FMLA rules for instructional employees at schools.  Part-3 focused on the mechanics of FMLA leave. Part-4 addressed special school rules for instructional employees and laid out some common scenarios a school might encounter.  Today’s installment discusses a recent U.S. Department of Labor’s Wage and Hour Division opinion regarding FMLA leave.  May the odds be ever in your favor as you navigate the impact this opinion has on FMLA leave calculation. 

Calculating Leave.  When calculating FMLA leave, federal law uses “workweek” as the basis for leave entitlement.  As a reminder, employees may use FMLA leave on an intermittent or reduced schedule leave basis in periods of weeks, days, hours, or smaller increments based on the shortest period of time the employer uses for other forms of leave provided the leave is not greater than one hour.  However, this is generally only permitted when necessary based on the serious health condition and when deemed necessary by the employee’s applicable health care professional.  Additionally, if an employee is normally required to work overtime, the FMLA provides that an employee with an FMLA-qualifying health condition may count FMLA-protected leave towards the overtime hours.  What does this mean practically?  A school employee, such as a custodian, who is required to work more than eight hours a day but has an FMLA-qualifying health reason may work a reduced schedule and use FMLA leave to account for the remainder of the shift. 

Furthermore, the opinion explicitly states an employee may continue to use FMLA leave for an indefinite period of time as long as the employee would continue to be eligible and has a qualifying reason for leave.  This has the potential to result in a situation where a school employee could work a reduced schedule indefinitely while utilizing their FMLA leave.  The opinion also reiterates the FMLA provides that an employee is entitled to 12 workweeks of leave per year.  Therefore, an employee who is regularly scheduled to work more than 40 hours of work per week is entitled to more than 480 hours of FMLA per 12 month period.  A custodian who is regularly scheduled to work 50 hours per week could be eligible for 600 hours of FMLA leave in the event their doctor certifies that they need intermittent leave.

Conclusion.  If you have any questions about the FMLA, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.

$235,000 Per Second

The “Big Game” has something for everyone; the snacks (nachos), the teams (Chiefs), the halftime show (Beyoncé 2013), and the commercials (Apple 1984).  Those clever, and occasionally disastrous, 30-second ads are the result of months of deliberation with the intent to make every $235,000 second count.  With a 2023 rate of up to $7 million, every choice made before, after, and during the 30-second spot runs is important.  Just like the ad agencies began their process months ago, you too can use your time to ensure that no taxpayer dollars are wasted when negotiating agreements.

Pre-negotiation: Consider any issues that arose during the school year. 

If your agreement from last year specified the teacher work day runs from 30 minutes before the school day begins until 30 minutes after school hours end, you might find yourself in a dispute if you need to adjust the start time a few minutes.  Why?  When you join a negotiated issue (teacher work hours) to non-negotiated issue (school start time) the newly created relationship between the two issues might bring them both under control of the negotiated agreement. 

The South Dakota Supreme Court has established a three part test for determining whether a subject is negotiable.  The Court explained:

A subject is negotiable only if it intimately and directly affects the work and welfare of public employees; an item is not negotiable if it has been preempted by statute or regulation; and a topic that affects the work and welfare of public employees is negotiable only if it is a matter on which negotiated agreement would not significantly interfere with the exercise of inherent management prerogatives pertaining to the determination of governmental policy.

West Central Education Association v. West Central School Dist., 2002 SD 163, 655 N.W.2d 916, 921 (citing Rapid City Education Association v. Rapid City Area School District No. 51-4, 376 N.W.2d 562, 564 (SD 1985)). The teachers’ union is not entitled to negotiate subjects like the school calendar because that would substantially interfere with the board’s inherent management prerogative to run the school as it sees fit.  You should not negotiate management prerogatives, matters of educational policy, or the board’s statutory duties.  Other areas boards should review and possibly revise are FMLA policies (be sure you aren’t giving more FMLA leave that you are obligated to provide) and sick banks (We hate them.  A lot.  Don’t get us started.) 

During Negotiations: Consider having KSB review the proposed agreement.

If you are building a house, you call an architect. If you need stitches, you call a doctor.  When you negotiate a legal agreement, you call your attorney.  KSB’s attorneys provide comprehensive reviews of negotiated agreements and provide boards and administrators with a report containing areas of concern and recommended revisions including updated legal language.  The cost is substantially less than $235,000 per second. 

Post-Negotiations: Review your negotiated agreement.

The people who create ads for the world’s most expensive athletic event are already working on the ads for 2024.  If you are looking over your agreement and realize that you have problems in that document, like tying early retirement to a specific age cap, there is no time like the present to consider a new version for next year.  When an agreement identifies a specific age cap for eligibility for a benefit, it can fall under the protection of the Age Discrimination in Employment Act (ADEA), which prohibits employees 40 years of age and older from discrimination on the basis of age in hiring, promotion, discharge, compensation, or terms, conditions or privileges of employment.  Protect your employees by making the conditions of retirement hinge on years of service instead. 

Enjoy the big game, the snacks, the commercials, and Rhianna; then get prepared for your upcoming negotiations–or, if you are too busy watching Monday morning quarterbacking, call KSB to think about it for you by contacting your attorney or dropping us a line at ksb@ksbschoollaw.com.

“You Can Check Out Anytime You Like, But You Can Never Leave”

Strategies for Avoiding Marathon IEP Meetings

One of the top special education questions we receive is “how does an IEP team avoid incredibly lengthy IEP meetings?”  First, it is necessary to dispel any misinformation that IEP meetings are required to last for a certain length of time.  Neither the IDEA nor its implementing regulations prescribe the specific length of time for an IEP meeting.  Additionally, the IDEA does not set forth the number of IEP meetings to be held.  However, the IDEA makes clear the school district must allow sufficient time to ensure meaningful parental participation.  In practice, this allows school districts to establish reasonable time limits on meetings and then take appropriate action.

Establishing Reasonable Time Limits

School districts may establish reasonable time limits for IEP meetings as nothing in the IDEA prohibits such time limits.  In El Paso Independent School District, 34 IDELR 226 (February 16, 2001), the school administrator informed the meeting participants that the meeting would last no longer than two hours and any unresolved issues could be addressed at a follow-up meeting.  The parent’s objected to the time limitation.  The parents filed a procedural complaint alleging multiple concerns, including the two hour time limit.  The hearing officer found the two hour time limit to be reasonable, and it was not a denial of due process.  However, the hearing officer noted the two hour time limit should have been communicated to parents prior to the start of the meeting.    

Honor Meeting Times Listed in Meeting Notice  

An IEP meeting must be held at a mutually agreed to time.  C.F.R. § 300.322(a)(2).  In Boward County School Board, 113 LRP 22496 (February 28, 2013), the school district issued a meeting notice to parents indicating the meeting would be held from 9:00 A.M. to 12:30 P.M.  However, the meeting continued until 3:30 P.M.  The parents filed a request alleging a due process violation as a result of the duration of the IEP meeting exceeding the time limit listed in the notice.  The administrative law judge held that even if the meeting's extended length amounted to a procedural violation, it did not impede the child’s right to FAPE, the parent's opportunity to participate in the decision-making process, nor caused actual deprivation of educational benefits.  However, if the district simply honored its reasonable time limit in the first place, it may have avoided costly due process proceedings.

Ending an IEP Meeting Early

A school district must afford parents meaningful participation in a child’s IEP by informing parents of the child’s needs and progress, ensuring the parents meaningful participation in the child’s IEP meetings, and ensuring parents have opportunities to express disagreement with the IEP team's conclusions and request revisions to the IEP.  In Compton Unified School District, 115 LRP 15206 (March 27, 2015), the parents filed a due process hearing request alleging the school district violated the IDEA’s parental participation requirements when the school district ended the IEP meeting early.  At the IEP meeting, the point of contention involved the continuum of appropriate placements for a sixth grade student with ADHD and a mood disorder.  The parents refused to discuss any placement except the one the parents requested.  The school district ended the meeting and requested the IEP team reconvene when the parties were willing to discuss all placement options.  The administrative law judge found the school district did not improperly conclude the meeting, and the school district did not ignore parental input. 

To that end, we often get asked whether a school district must end an IEP meeting early, and reconvene later, if the parent walks out of the meeting.  In those cases, unless the parent’s absence is related to a previously communicated commitment or emergency, we generally recommend that the team feel confident in continuing the meeting without the parents.  The team should communicate to the parent that the team will continue prior to their departure and should request that they stay and finish the meeting.  However, if the parent refuses, the team may continue and complete its work.

Our Tips    

• Consider establishing a time limit for the IEP meeting.

• Include time limits in the meeting notice.   

• If there are many issues to cover, you may consider breaking the IEP meeting up into shorter meetings.

• Ensure you allow for meaningful parental participation, but after robust discussion the meeting leader should feel empowered to move the meeting forward to the next agenda item.

• If necessary, conclude a meeting and reschedule for a follow-up if the meeting becomes unproductive. 

Conclusion

If you have any questions about IEP meetings, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.

*This blog post was edited on February 22, 2023