Breathe In, Breathe Out: Counting to Ten

While administrators collectively breathe a sigh of relief that student discipline is not a daily activity in the summer, the dog days of summer are a great time for school administrators to refresh their knowledge about student discipline.  We want you to be ready for when those little jerks your amazing students return to school this fall.  One area in particular that most administrators need to review is federal law regarding special education students.  Administrators frequently call KSB asking for clarification regarding the 10-day rule and which removals cause days to be counted toward that number.  As a reminder the 10-day rule provides that special education students who are suspended for more than 10 school days are entitled to additional procedures from the school.  The rule is found at 34 C.F.R. §300.530(b)(1) which provides: 

School personnel under this section may remove a child with a disability who violates a code of student conduct from his or her current placement to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 consecutive school days (to the extent those alternatives are applied to children without disabilities), and for additional removals of not more than 10 consecutive school days in that same school year for separate incidents of misconduct (as long as those removals do not constitute a change of placement under § 300.536).

We have compiled a list of the top questions we receive regarding the 10-days, discipline and resources we recommend school administrators review this summer.

Does ISS count towards the 10 days?

The safest answer is to count ISS days and call your lawyer to talk it over when you get to 7 or 8 total days of ISS.  This is because the determination of whether to count ISS days is very fact-specific legal analysis.  The IDEA commentary provides that ISS days would not count towards the 10-days as long as the child is given the opportunity to: (1) continue to appropriately progress in their curriculum, (2) continue to receive their IEP services, and (3) continue to participate with nondisabled children to the extent they would have in their usual placement.  The third part of that list is what trips up many districts.  Most schools will struggle to prove that the ISS room does not limit the child’s participation with nondisabled peers.  Districts should further be on alert that OSEP provided guidance in its July 19, 2022 Q&A document stating: “[T]he repeated use of in-school suspension may indicate that a child’s IEP, or the implementation of the IEP, does not appropriately address their behavioral needs.” 

Do partial day disciplinary removals count towards the 10-days?

Again, the answer isn’t entirely clear, so we advise schools to count each partial day as 1 day of removal and to call your attorney when you get close to the 10 day limit.  The Feds have said “portions of a school day that a child has been suspended may be considered a removal in determining whether there is a pattern of removals.”  71 Fed. Reg. 46,715 (2006).  Additionally, OSEP’s Q&A document provides: “In general, the use of informal removals to address a child’s behavior, if implemented repeatedly throughout the school year, could constitute a disciplinary removal from the current placement.  Therefore, the discipline procedures in 34 C.F.R. §§ 300.530 through 300.536 would generally apply.”  Partial day disciplinary removals and informal removals likely will count towards the 10-days. 

Do I count days, occurrences, or hours when counting towards the 10-days?

Again, as an initial matter, we advise you to count each partial removal as a day, and to seek legal clarification when you get close to 10.  The IDEA’s implementing regulations define school day as any day, including a partial day, that children attend school for instructional purposes.  34 C.F.R. § 300.11(c). However, the regulation continues by saying that: “School day has the same meaning for all children in school, including children with and without disabilities.” 

What does this mean practically?  Our position is that in counting school days we should use the same standard units as we would for counting attendance of any student.  For example, if your attendance for general education students is accounted for by fractions of a school day (such as by class periods) we contend that the same should apply in counting days of removal for special education students.  

Do bus disciplinary removals count towards the 10-days?

It depends. (Seeing the pattern here?)  OSEP has stated:

“Whether a bus suspension would count as a day of suspension would depend on whether the bus transportation is part of the child’s IEP. If the bus transportation is part of the child’s IEP, a bus suspension would be treated as a suspension under Sec. 300.530 unless the public agency provides the bus service in some other way, because that transportation is necessary for the child to obtain access to the location where services will be delivered. If the bus transportation is not a part of the child’s IEP, a bus suspension is not a suspension under Sec. 300.530.”

If a student’s IEP requires transportation as a related service and the student is suspended from the bus, the bus suspension would count as a suspension from school unless the district provides an alternative means of transportation.  If the district provides transportation to all students as a general education service, there is an argument that a student with a disability would be entitled to manifestation before he or she is removed from the general population of bus transportation for more than 10 days.  This is a good reminder that your transportation staff need to be trained on special education issues generally, and informed of the needs of specific students on their routes before school starts next year. 

Resources to Review

If you are looking for some light reading this summer, OSEP issued a Q&A document last summer addressing issues related to informal removals.  The document is available here.  We also blogged about the guidance here and here.  
Please do not hesitate to call Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara or send us an email at ksb@ksbschoollaw.com if you have any questions regarding special education or student discipline. 

Summer is in the Air, and The Federal Government Has Big News to Share: The Pregnant Workers Fairness Act Goes Into Effect June 27, 2023

While all of us at KSB hope school administrators have a calm and relaxing summer, we have important legislation to brief you on.  In a previous blog post, we discussed the implications of the PUMP Act which was signed by President Biden on December 29, 2022.  At the same time, he also signed the Pregnant Workers Fairness Act (PWFA) which goes into effect on June 27, 2023.  (The EEOC actually has a countdown clock until the law’s “due date” which is available here.)  This new law requires employers with 15 or more employees to provide “reasonable accommodations” to workers affected by pregnancy, childbirth, or related medical conditions.  The definition of “reasonable accommodation” is the same definition found in the ADA.  Such accommodations under the PWFA are required unless the accommodation will cause the employer an “undue hardship.” 

What might these reasonable accommodations look like?  The House Committee on Education and Labor Report on the PWFA was kind enough to provide us with several examples.  For instance, a pregnant teacher may request an accommodation to receive closer parking or have the ability to keep a mini-refrigerator in her classroom with snacks and beverages to assist with any blood sugar issues.  Another example would be a school custodian who may be excused from strenuous activity due to her pregnancy. 

The PWFA also prohibits a host of other activities including: requiring the employee to accept an accommodation without a discussion regarding the accommodation, denying a job or employment opportunity to a qualified individual based on the person’s need for a reasonable accommodation, requiring an employee to take leave if another reasonable accommodation can be provided that would allow the employee to keep working, or retaliating against an individual for reporting a PWFA violation.  The PWFA does not limit an employee’s access to other applicable federal laws such as Title VII, the ADA, the FMLA, or the PUMP Act.

Good news for the Nebraska school districts - Nebraska already has an existing state law which provides equivalent protections.  The Nebraska Fair Employment Practice Act (Neb. Rev. Stat. § 48-1101) contains many of the same antidiscrimination protections which are now found in the PWFA.  South Dakota schools - there are no current state protections in South Dakota.  Therefore, we recommend you review the PWFA and ensure compliance with this new law.

If you have any questions about the PWFA or applicable state laws regarding pregnancy, 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.

33 Years of the Americans with Disabilities Act: Reminders for School Districts

This summer the Americans with Disabilities Act (ADA) will turn 33.  (This happens to coincide with the ages of Tyler and Sara . . . who we know look much younger than 33. *wink, wink*)  In our experience, business officials, bookkeepers, and other administrators may not immediately think of the ADA when interacting with employees.  As a reminder, the ADA (subsequently called the Americans with Disabilities Act Amendments Act “ADAAA” - thank you to the federal government for such a succinct name)  bars an employer from discriminating “against a qualified individual on the basis of disability.”  See 42 U.S.C. § 12112(a).  In order for an employee to be a “qualified individual” under the ADA, the employee must “(1) possess the requisite skill, education, experience, and training for the position, and (2) be able to perform the essential job functions, with or without reasonable accommodation.”  42 U.S.C. § 12111(8). 

There are countless cases where employers have faced lawsuits due to an employer’s failure to accommodate.  If a school district employee requests an accommodation due to a disability, the District has a duty to engage in an “interactive process.”  The process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.  Essentially, this can be as simple as a meeting between an administrator and the staff member to help the District understand the employee’s abilities and limitations and whether there is a solution.  This meeting should be documented in some manner.  At KSB, we recommend an ADA Interactive Process Checklist.

If a district fails to engage in the interactive process in good faith, the District may be liable under the ADA if a reasonable accommodation would have been possible.  What is a reasonable accommodation?  A reasonable accommodation is assistance or changes to a position or workplace that will enable an employee to do his or her job despite having a disability.  Under the terms of the ADA, “reasonable accommodation” can include: (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.  42 U.S.C. § 12111(9).  If the accommodation would create an undue hardship for the employer, the accommodation would not be required.  42 U.S.C. § 12111(10)(B).

School administrators should be aware that the definition of “disability” under the ADA is quite broad, and Congress did that on purpose.  It includes obvious and apparent conditions you may know about such as diabetes, cancer,  and mobility impairments, but it also can include mental health conditions and others you may not know about.  In general, it is easy to have a disability under the ADA, and once you have knowledge of a possible disability and need for possible accommodations, you as the employer should engage in the interactive process.  Additionally, reasonable accommodations can vary and can include changes such as providing reserved parking, shades for bright lights, noise-canceling headphones, or daily schedule changes.  

Finally, employers always need to keep in mind that the ADAAA is only one of several laws that could require action when an employee has a disability, such as the FMLA, state disability laws, work comp, and of course your own policies, handbooks, and contracts.
If you have any questions about the ADAAA or would like to purchase a copy of the ADA Interactive Process Checklist, 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.

Save the Date–Policy Updates and Webinar!

School is out! Which for South Dakotans means it’s time for boating, grilling, questionable firework decisions, and of course, school district policy review!  Well fine, maybe that last one isn’t as exciting as the others. As we type this message grateful for the fingers we’ve only narrowly avoided losing, we are certainly excited to get started on our end. 

For KSB Policy Service Subscribers, we will send out our complete policy updates on Tuesday, June 27.  These updates will include:

• A redline version of each policy to be updated;

• A clean version of each policy to be updated;

• A memorandum explaining each change and whether KSB advises that the change is mandatory, recommended, or optional; and  

• A list of all required annual notices to be given.

On Thursday, June 29, KSB will then host a webinar where we will go through each change and discuss any questions subscribers may have.  After the webinar, subscribers will be able to adopt the updates at their annual meetings in July.  We will also record this webinar and send it out to subscribers who aren’t able to attend live. 

For anyone reading this who is not a subscriber, our policy service is always looking to take some things off of your plate.  We have grown our subscriber list significantly in the last year.  Our policy service is first and foremost exactly that – a service.  It is not a book of policies we provide without explanation of our decisions.  Instead, we provide policies to our subscribers and then go through the policies with the client.  Some schools tweak or add to the policies while some adopt them “as is.”  Once the adoption process is complete, all policy questions and most instances of unique drafting are included in the original subscription and are not billed.  We also provide handbooks which are a companion to the KSB policies and are up-to-date for legal compliance as well.  If you have any questions about policy compliance or KSB’s policy service, reach out to Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at ksb@ksbschoollaw.com. 

“An Ounce of Prevention, is Worth a Pound of Cure:” Required Staff Trainings

Ahh, the joys of summer break.  Nothing is sweeter to administrators’ ears than the silence of the school building in summer.  Before you turn on your autoresponder, blend up a pitcher of pina coladas and head to the beach for the summer, now is an excellent time to review mandatory and recommended staff trainings and place them on the district’s calendar for when your staff returns this fall. 

MANDATORY TRAININGS

Title IX.  As of August 14, 2020, the members of your Title IX Team (i.e., Title IX Coordinator, Investigator, Decision-Maker, Appellate Decision-Maker, and Informal Resolution Facilitator) must all receive specific Title IX training.  If that hasn’t been completed—or if you have a new member to your Title IX Team who has not received that training—that training must occur as soon as possible.  As you have most likely heard us say before, we strongly recommend that all district employees and board members also receive basic Title IX training, with an emphasis on the legal definitions of sexual harassment and how to report it to the appropriate people.  We anticipate the new federal regulations will require ALL staff receive training.  While you are enjoying your well-deserved summer break, the KSB attorneys will monitor the Title IX situation and will let everyone know what the final regulations require when they are published.   

Child Find Obligations/Section 504/MTSS/PBIS.  The IDEA and South Dakota Administrative Rules require training for “appropriate” staff to be able to carry out the district’s “child find” obligations under state and federal law.  These obligations also apply to Section 504.  Any presentation about MTSS and PBIS should also remind staff of ongoing child find obligations regardless of the tiered intervention system your district uses.

Suicide Awareness and Prevention. All teachers, administrators, and other educational professions must receive one hour of suicide awareness and prevention training in order to be issued an initial certificate and a renewal certificate as required by SDCL 13-42-71.

HIGHLY RECOMMENDED TRAININGS

Sex Harassment and Discrimination. Staff should, at a minimum, know where to locate your policy and handbook provisions on antidiscrimination based on sex.  This includes your sex harassment policy, complaint procedure, and grievance procedure (for certified staff).  They should also understand who your Title IX coordinator is and how that person can be contacted.  That will be in your nondiscrimination notices, but reviewing it with staff is a good idea.  Ideally, you would review prohibited conduct.

Section 504 and ADA.  Staff have a right to be accommodated if they have a disability.  The school must provide reasonable accommodations to allow the employee to perform the essential functions of their positions.  You should, at a minimum, cover your process for staff requesting accommodations, reporting workplace injuries, and your complaint and grievance procedures in the context of a staff member with a disability.  

Mandatory Child Abuse Reporting.  South Dakota statute 26-8A-3 requires teachers and school counselors to report child abuse when the employee “who has reasonable cause to suspect that a child under the age of eighteen has been abused or neglected.”  You should train on this obligation and on your district’s mandatory reporting policy and procedures.

Restraint and Seclusion.  Under SDCL 13-32-20, each district must have a restraint and seclusion policy.  We recommend reviewing it and your practices with your staff.  

Professionalism and SD Administrative Rule Chapter 24:08:03.  You should review your board’s expectations for professionalism by way of policies such as appropriate relationships, technology use, and others.  This should include a review of certified staff conduct rules laid out in South Dakota Administrative Rules Code of Professional Ethics.  Ideally staff will certify that they have read Chapter 24:08:03 each year.

STUDENT ASSEMBLIES

Digital Citizenship Assembly (AKA “Digcit”).  The calendars are already filling up for the fall.  We recommend reaching out to book your student digcit assemblies now.  As a quick overview, Digcit is an hour-long assembly focused on educating students about sexting, inappropriate pictures, cyberbullying and the related consequences, both school based and criminal.  All assemblies are sprinkled with the usual KSB sass and humor.  Typically, the sessions are separated into middle school or junior high and high school.

UPCOMING SUMMER SPECIAL EDUCATION TRAINING 

If you just can’t get enough special education training, there is an excellent national conference close to home this summer.  The Midwest Educational Leadership Conference will be held June 19-21 in beautiful Breckenridge, Colorado.  The speakers include KSB School Law’s own Karen Haase.  If you would like more information or to sign up, just click here.  

If you have any questions about trainings or would like to schedule the KSB crew to conduct a staff in-service or Digcit, 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.    

“An Ounce of Prevention, is Worth a Pound of Cure:” Required Staff Trainings

Ahh, the joys of summer break.  Nothing is sweeter to administrators’ ears than the silence of the school building in summer.  Before you turn on your autoresponder, blend up a pitcher of pina coladas and head to the beach for the summer, now is an excellent time to review mandatory and recommended staff trainings and place them on the district’s calendar for when your staff returns this fall. 

MANDATORY TRAININGS

Dating Violence.  Schools must provide dating violence training to staff deemed appropriate by a school district's administration.  The dating violence training must include, but is not limited to, basic awareness of dating violence, warning signs of dating violence, and the school district's dating violence policy.  Neb. Rev. Stat. § 79-2,141.  NDE’s website has good resources to use for this training.

Concussion Awareness.  The school must make available training approved by the chief medical officer on how to recognize the symptoms of a concussion or brain injury and how to seek proper medical treatment for a concussion or brain injury to all coaches of school athletic teams.  The NSAA used to require this training annually, but that has never been required by the statute.  The NSAA issued an “approved ruling” which now allows the training every 3 years, with training in the first year for new sponsors.

 Behavioral and Mental Health.  LB 705 changes the suicide awareness training to Behavioral and Mental Health Training.  It will require “all public school employees who interact with students and any other appropriate personnel” as determined by the superintendent to receive at least one hour of behavioral and mental health training with a focus on suicide awareness and prevention training each year.  The change is not effective until September 10, 2023. 

Evaluator Training (Evaluating Administrators Only). All evaluators must be “trained to use the evaluation system used in the district.”  This would include all evaluators (superintendents, principals, etc.), but there is an exception for boards of education that evaluate the superintendent.  NDE Rule 10 § 007.06(B).

Pupil Transportation Vehicle Drivers/Safe Pupil Transportation Plan.   Districts must annually provide a 2-hour training for individuals who drive pupil transportation vehicles required by Rule 91.  Additionally, Districts must provide one-time training to pupil transportation vehicle drivers of small vehicles on activity trips prior to driving.  

Training for All School Resource Officers and All Administrators in Buildings with SROs.  Section 79-2704 of the Nebraska statutes requires each school resource officer or security guard and at least one administrator in each building which has an SRO assigned to it to “attend a minimum of twenty hours of training focused on school-based law enforcement, including, but not limited to, coursework focused on school law, student rights, understanding special needs students and students with disabilities, conflict de-escalation techniques, ethics for school resource officers, teenage brain development, adolescent behavior, implicit bias training, diversity and cultural awareness, trauma-informed responses, and preventing violence in school settings.”  If your SRO or building administrator have not received this state-mandated training, then this summer is the perfect time to get that completed.  Here is a link to KSB’s SRO training.

Title IX.  As of August 14, 2020, the members of your Title IX Team (i.e., Title IX Coordinator, Investigator, Decision-Maker, Appellate Decision-Maker, and Informal Resolution Facilitator) must all receive specific Title IX training.  If that hasn’t been completed—or if you have a new member to your Title IX Team who has not received that training—that training must occur as soon as possible.  As you have most likely heard us say before, we strongly recommend that all district employees and board members also receive basic Title IX training, with an emphasis on the legal definitions of sexual harassment and how to report it to the appropriate people.  We anticipate the new federal regulations will require ALL staff to receive training.  While you are enjoying your well-deserved summer break, the KSB attorneys will monitor the Title IX situation and will let everyone know what the final regulations require when they are published. 

STUDENT ASSEMBLIES

Digital Citizenship Assembly (AKA “Digcit”).  The calendars are already filling up for the fall.  We recommend reaching out to book your student digcit assemblies now.  As a quick overview, Digcit is an hour-long assembly focused on educating students about sexting, inappropriate pictures, cyberbullying and the related consequences, both school based and criminal.  All assemblies are sprinkled with the usual KSB sass and humor.  Typically, the sessions are separated into middle school or junior high and high school.  

UPCOMING SUMMER SPECIAL EDUCATION TRAINING 

If you just can’t get enough special education training, there is an excellent national conference close to home this summer.  The Midwest Educational Leadership Conference will be held June 19-21 in beautiful Breckenridge, Colorado.  The speakers include KSB School Law’s own Karen Haase.  If you would like more information or to sign up, just click here.  

If you have any questions about trainings or would like to schedule the KSB crew to conduct a staff in-service or Digcit, 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.    

THE POLICIES ARE COMING! THE POLICIES ARE COMING! THE POLICIES ARE…COMING?

Well 2022-23 was a heck of a ride, amirite?  The “end” of a novel pandemic; a “novel” Unicameral session; real angry folks all over the place; and oh yeah, some herculean efforts to provide an awesome education in the middle of a staffing crisis.  First and foremost, congrats and great work!

You’ve been asking about policy updates, and we finally got some clarity.  With the passage of LB 705 (the education Christmas tree bill), most of the state-level policy updates are becoming clearer.

Here are a few key policy changes that LB 705 will require:

1. Major changes to student discipline policies and practices.  There are new timelines across the process, hearing officer challenges, and prohibitions on suspension of younger students.  Now don’t you fret Boba Fett--KSB plans to offer training for administrators and hearing officers this summer, along with new discipline forms, to get you ready for the new law.

2. Major changes to option enrollment, particularly addressing option enrollment for students receiving special education services.

3. Major changes to part-time enrollment and participation in extracurricular activities.

4. FAFSA, youth organizations and access, behavior intervention training, and quite a bit more.

If you are a KSB policy service subscriber, here is our plan for getting you the updated policies you will need after the legislative session ends: 

1. June 2: KSB will release our policy update packet.

2. June 7: KSB will hold our annual policy updates webinar (link sent later, and it will be recorded and shared for those who can’t make it live).

3. June 12: Likely board meeting date for most schools.

4. June 16 (or before): KSB plans to release our handbook updates

Before we close the book on the 2023 policy updates, here’s what could shake things up:

1. If the Unicameral moves any other education-impacting bills through in the last few days, we will adjust but still plan to get out everything we can by that first week of June.  July meetings are already packed with hearings and reviews, so we felt strongly about giving you the option of getting as much updating done in June as possible.

2. The U.S. Department of Education (USDOE) is expected to release updated Title IX regulations any day now.  They’ve promised May 2023, but they’ve been late before.  If you remember 2020 (LOL) they released regulations in May effective in August.  The newest regs as proposed would require training for ALL staff, so if that sticks, the effective date will greatly impact additional policy updates and training schedules.  We plan to do on-demand training again, if needed.

3. The USDOE just finished up a 30-day public comment period on its proposed gender participation in athletics rule under Title IX.  Reminder--the proposed rule would ban categorical restrictions but permit schools to make participation decisions using important educational objectives such as competitive fairness and prevention of injury.  If this rule becomes final and effective, it will require policy changes at some point.

4. Oh, and the USDOE is also working on new Section 504 and FERPA regulations.  Let’s hope they have enough on their plates for 23-24.

This is certainly enough to chew on for now, but if you have any questions about the policy updates for this year, drop us a line at ksb@ksbschoollaw.com or give us a shout at 402-804-8000.

I Need Money, Not a Job: Hiring High School Workers for the Summer

Detasseling.  Babysitting.  Bag boy at the local grocery store.  We all remember our first jobs.  The glory of 5:30 AM bus rides to wet cornfields to detassel corn.  A true midwest gift to teenagers 13 through 18 trying to earn a few bucks.  But can a school district be a student’s first summer employment experience?  Recently, we have received an uptick in calls from school administrators who are looking to fill temporary custodial positions with high school workers during the summer months.  High school students may be an excellent solution for schools during the three months of summer.  However, there are certain considerations Nebraska school administrators should review when hiring high school workers.

Minimum Wage

Nebraska law carves out an exception to the state minimum wage for school districts.  Specifically, Neb. Stat. § 48-1202(2) states: "Employer . . . shall not include the United States, the state, or any political subdivision thereof . . .."  This language means that school districts are excluded from the category of employers to which the state minimum wage applies and are not subject to the Wage and Hour Act.  Instead, a school is only required to comply with the federal minimum wage requirements.  The federal minimum wage is currently $7.25 per hour.  While high school students may be unwilling to work for $7.25 an hour, it is legally permissible.

Employment Certificate for Minors 14 and 15 Years of Age

The Nebraska Department of Labor requires a form be completed by a school administrator regarding any minors who are 14 and 15 years of age and seeking employment in any workplace.  The form is available here.  If the school district hires a 14- or 15-year old, the Department of Labor also requires Form 110 for employers which should be posted in the area the minor will be working to alert supervisors of the hour limitations.  Fourteen and 15 year olds are limited to working no more than 40 hours in a non-school week.  Additionally, their work cannot begin before 7:00 AM nor last beyond 9:00 PM. 

Driving “On-The-Job” 

Minors under 17 may not drive on public roadways as part of the minor’s job.  A 17 year old may drive on public roadways as part of the 17 year old’s job if the following requirements are met: 1) the driving occurs during daylight hours, 2) the 17 year old holds a valid driver’s license, 3) the driver has completed a driver’s education course, 4) the driver has no record of any moving violation at the time of hire, 5) the vehicle does not exceed 6,000 pounds gross vehicle weight, and 6) the vehicle has seat belts for the driver.  Additionally, driving may not include driving more than a 30 mile radius beyond the work site and transporting more than three passengers.

Lawn Mowing

One area we often see schools use minors for is mowing the school grounds.  Be aware that the federal Fair Labor Standards Act limits 14 and 15 year olds from certain activities.  For example, 14 and 15 year olds may help with “clean-up work and grounds maintenance,” but they may not “use power-driven mowers, cutters, and trimmers.”  See a complete list of limitations here.  If your high school workers are 16 or older, the limitations for work are substantially fewer.

Conclusion  

If you have any questions about hiring minors, 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.

I Need Money, Not a Job: Hiring High School Workers for the Summer

Detasseling.  Babysitting.  Picking Rocks.  Bag boy at the local grocery store.  Working as summer help at the school?  We all remember our first jobs.  The glory of 5:30 AM bus rides to wet cornfields to detassel corn.  A true midwest gift to teenagers 13 through 18 trying to earn a few bucks.  Recently, we have received an uptick in calls from school administrators who are looking to fill temporary custodial positions with high school workers during the summer months.  High school students may be an excellent solution for schools during the three months of summer.  However, there are certain considerations South Dakota school administrators should review when hiring high school workers.

Minimum Age and Wage

South Dakota law provides that no minor under the age of 14 may be employed.  SDCL 60-12-1.  Additionally, minors who are 14 and 15 are limited to working no more than eight hours a day and no more than forty hours a week.  SDCL 60-12-2.  School districts are also required to pay minimum wages as established by SDCL 60-11-3.  The 2023 South Dakota minimum wage is $10.80 per hour.

Driving “On-The-Job” 

Minors under 17 may not drive on public roadways as part of the minor’s job.  A 17 year old may drive on public roadways as part of the 17 year old’s job if the following requirements are met: 1) the driving occurs during daylight hours, 2) the 17 year old holds a valid driver’s license, 3) the driver has completed a driver’s education course, 4) the driver has no record of any moving violation at the time of hire, 5) the vehicle does not exceed 6,000 pounds gross vehicle weight, and 6) the vehicle has seat belts for the driver.  Additionally, driving may not include driving more than a 30 mile radius beyond the work site and transporting more than three passengers.

Lawn Mowing

One area we often see schools use minors for is mowing the school grounds.  Be aware that the FLSA limits 14 and 15 year olds from certain activities.  For example, 14 and 15 year olds may help with “clean-up work and grounds maintenance,” but they may not “use power-driven mowers, cutters, and trimmers.”  See a complete list of limitations here.  If your high school workers are 16 or older, the limitations for work are substantially removed.

Conclusion  

If you have any questions about hiring minors, 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.

On Our Radar: New Federal Legislation for Nursing Mothers

“And pump it (louder), pump it (louder), pump it (louder) . . ..”  Now that I have you all singing the famous 2009 Black Eyed Peas song Pump It Harder (released the same year Jordan finished his freshman year of high school . . . let’s think about that for a minute), it is time to dive into the newest federal legislation on our KSB radar, the “Providing Urgent Maternal Protections for Nursing Mothers Act” or (shortened slightly but still a mouthful) the “PUMP for Nursing Mothers Act.”  This legislation was signed into law by President Biden on December 29, 2022.  The PUMP for Nursing Mothers Act expands on current legislation to provide workplace protections to breastfeeding employees.  Presently, the FLSA requires employers to provide nursing mothers reasonable break time to express breast milk after the birth of a child for up to one year after childbirth.  Employers must provide a place, other than a bathroom, that is shielded from view and free from intrusion to express breast milk.  Also, employers may not deny a covered employee a needed break to pump.  

The PUMP for Nursing Mothers Act expands the FLSA requirement to cover salaried employees such as teachers who previously were exempt from these requirements.  Additionally, the time an employee spends expressing breast milk must be considered hours worked if the employee is also working.  Employees who use a break to pump are not required to be paid for that time.  If an employer fails to comply, the employee can seek monetary remedies against the employer such as back wages, liquidated damages, and attorney’s fees.    

Here are the most common compliance questions we receive from school districts:

Is a private bathroom a permissible location for the employee to pump?

Answer: No. Even if the bathroom is private, it does not comply with the requirements of the FLSA which explicitly provide the location must be “a place, other than a bathroom.”

Do we have to pay a staff member who uses break time to express breast milk?

Answer: No, if the employee is completely relieved from duty. If the employee is not completely relieved from duty, the employee must be paid.  For example, if you have a paraprofessional who corrects papers while pumping breast milk, she must be compensated for the time spent pumping and doing the work at the same time.

What is a reasonable break time for an employee to express milk? I have a custodian who takes three 40 minute breaks a day to pump.

Answer: The DOL gives wide latitude for nursing mothers.  Specifically, it states “the frequency and duration of breaks needed to express milk will likely vary depending on factors related to the nursing employee and the child.”  We discourage schools from placing arbitrary time limits on pumping breaks for nursing mothers. 

Is there still an exception for schools who employ less than 50 employees? 

Answer: The FLSA carves out an exception for employers with less than 50 employees if such requirements would “impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.”  We recommend contacting your school attorney prior to making a decision to deny a pumping request.

If you have any questions about the FLSA or the PUMP for Nursing Mothers Act, 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.

The Popular Question of the Week: Are classified staff eligible for unemployment compensation during the summer?

Working at KSB School Law is always an adventure.  While the popular question last week was not “Where are we going to lunch?” (ahem Jordan), “Who is creating the powerpoint for our next presentation?” (looking at you Tyler), or “Which Disney movie is the greatest of all time?” (Sara, guilty as charged, but please send me your votes because we all know Emperor's New Groove wins), the most popular question we fielded in our office was “Are classified staff eligible for unemployment compensation in the summer?”  As the calendar inches closer to summer, business managers and superintendents are addressing unemployment compensation and eligibility questions from substitute teachers and classified staff.  As long as certain conditions are met, the answer is “no” in both Nebraska and South Dakota.

Nebraska law provides that school district employees are disqualified from receiving unemployment benefits for periods of unemployment which fall between regular school terms if they performed services for a school district during the first term and have a contract or a reasonable assurance of employment to perform similar services on comparable terms for any school district during the second term.  NEB. REV. STAT. § 48-628.06.  Similarly, South Dakota law states “With respect to services performed in any other capacity for an educational institution, no benefits may be paid to an individual on the basis of the individual's services for any week that commences between two successive academic years or terms if the individual performs the services in the first academic year or term and there is a reasonable assurance that the individual will perform the services in the second one.”  SDCL 61-6-15.

Both states specifically address an employee’s ability to have “reasonable assurance” of continued employment.  To guard against unemployment compensation claims, we recommend districts issue a “reasonable assurance” form to substitute teachers and classified staff.  This form gives employees an assurance of the school district's intention to continue their employment the following school year without guaranteeing them re-employment.  This form can be used as evidence in unemployment compensation cases of the district’s intent to continue employment in the subsequent school year. 

If you have any questions about unemployment claims or would like a sample reasonable assurance form, 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.

Bullying and Special Education: What is the Impact on FAPE?

As school administrators, you likely have been involved with many claims of “bullying” within your district.  Bullying has regularly been a hot topic within the education world for the past decade.  While bullying is an issue that has the potential to impact all students, data suggests special education students face bullying at higher incident rates than general education students.  For example, children with disabilities are two to three times more likely to be bullied than their nondisabled peers.  Disabilities: Insights from Across Fields and Around the World; Marshall, Kendall, Banks & Gover (Eds.), 2009. 

School districts have both legal and educational obligations to these students.  In a 2014 Dear Colleague Letter, OCR stated that “bullying on any basis of a student with a disability who is receiving IDEA FAPE services or Section 504 FAPE services can result in the denial of FAPE that must be remedied under Section 504.”  Office of Civil Rights, Dear Colleague Letter, U.S. Department of Education (October 21, 2014).  OCR goes on to provide an actionable response for the school which includes convening “the IEP team or the Section 504 team to determine whether, as a result of the effects of the bullying, the student’s needs have changed such that the student is no longer receiving FAPE.”  Id.        

What steps should a district follow if a bullying complaint is submitted by a student on an IEP or Section 504 plan?  First, the IEP or 504 team must determine whether the effects of bullying have adversely affected the student’s receipt of FAPE.  OCR recommends considering indications such as “a sudden decline in grades, the onset of emotional outbursts, an increase in the frequency or intensity of behavioral interruptions, or a rise in missed classes or sessions of Section 504 services.”   Id.  If the team determines there are no adverse effects due to the bullying, the team does not need to revise the student’s plan.

Alternatively, if the team determines the bullying has adversely affected the student’s receipt of FAPE, the team must identify additional supports the student needs in order to continue receiving FAPE.  The plan should be revised, and the amended IEP or 504 plan should be distributed to the appropriate staff and the parents.  In both scenarios, the team should issue a prior written notice explaining the basis for its decision.

School districts can also be proactive in order to avoid circumstances that may lead to bullying.  For example, school districts should train staff on the signs of bullying unique to students with disabilities.  Additionally, schools should appropriately respond to and document allegations of bullying.  Lastly, consider implementing social skills training as a tool for students with disabilities. 

If you have any questions about special education or Section 504, 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.  

Why Are You So Obsessed With Me? Application of “Sunshine Laws” to Local School Boards

“So oh oh, so oh oh,” sings Bobby.  O wait, you are here for a blog post and not a visual reminder of what Bobby sings every day on his commute?  Just as the infamous Mariah Carey belts out these lines in her classic hit, board members might be feeling this pressure from public scrutiny lately.  Part of the scrutiny stems from state “Sunshine  laws” (like the Nebraska Open Meetings Act and the South Dakota open meetings laws) which inherently (and with good public policy reasoning) safeguard the public’s access to meetings and right to information.  Here are a few common questions and areas of concern which lead to potential open meetings violations.

1. Question: I am the superintendent.  Can I send an e-mail to all the board members simultaneously without a violation?

Answer: This makes us nervous!   Under the Nebraska Open Meetings Act, a meeting is defined as “all regular, special, or called meetings, formal or informal, of any public body for the purposes of briefing, discussion of public business, formation of tentative policy, or the taking of any action of the public body.”   Neb. Rev. Stat. § 84-1409.  Similarly, South Dakota law defines an official meeting of a public body to be “any meeting of a quorum of a public body at which official business of the public body is discussed or decided, or public policy is formulated, whether in person or by means of teleconference.”  SDCL 1-25-1.  If a board member hits “reply all” to an e-mail message, a violation of the open meetings law almost certainly occurred.  If a superintendent would like to send an email to all of the board members, the better practice is for the superintendent to send an email to himself or herself with the board members blind copied (BCC’d) on the email so as to avoid the dreaded “Reply All.”

2. Question: I am the board president.  Are there ramifications if I text another board member during a board meeting? 

Answer: Yes.  This is a violation of open meetings laws.  Board members cannot text each other during the school board meeting about school business.  The same would be true about any other form of communication such as social media.  

3. Question: I am the board president.  What limits, if any, can I place on public comment?

Answer: In Nebraska, the public is guaranteed the right to attend and speak at meetings of a public body.  Neb. Rev. Stat. § 84-1412.  The right of the public to provide input may be limited or prohibited at certain meetings so long as it is not forbidden at all meetings, and the public body may require a member of the public to identify themselves as a condition to addressing the body.  The Nebraska Attorney General has provided guidance that allowing public comment at least quarterly is sufficient to comply with the Act.  

In South Dakota, the public body is required to reserve time for public comment at regularly scheduled meetings.  SDCL § 1-25-1.  The public body may exercise discretion in limiting public comment but may not eliminate any public comment.  Senate Bill 162 which was signed by the Governor in February 2023 will change the law to require public comment at every official meeting with several exceptions.  

Reasonable and necessary boundaries can be placed on public comment in both Nebraska and South Dakota.  For example, uniform time limits can be placed on speakers such as two or three minutes per speaker.  Additionally, a board president has the discretion to stop speech or other conduct that the board president reasonably perceives to be or imminently threatens to cause a disruption of the orderly and fair progress of the meeting.  Similarly, swearing or profanity can be prohibited. 

4. Question: I am a board president.  Can I limit public comment criticizing school officials? 

Answer: In an effort to protect the reputation, privacy, and due process rights of school officials and employees, some school boards have adopted policies or practices of prohibiting citizens from publicly criticizing school officials or employees in open school board meetings.  These policies are typically deemed unlawful by the courts.  Therefore, citizens who speak critically of school employees must be allowed to do so unless their comments, coupled with other behavior, clearly threaten to disrupt the meeting.  To put it simply, each time the board provides the public the opportunity for public comment, it must permit the public to provide comment on any subject.  

If you have any questions about open meetings laws, 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.

In Like a Lion, Out Like a Lamb

The snow is melting, the birds are chirping, and March has arrived.  As the popular saying goes, “March comes in like a lion and out like a lamb.”  Just as the weather in March can oscillate from snow to sunshine, so can the adventures and challenges that walk into a Superintendent or Business Manager’s office.  One area of concern our firm is seeing lately is the lack of ADA-compliant job descriptions.  Many of you are in the process of renewing or issuing employment contracts or renewal agreements which makes this a great time to review job descriptions.  Schools should not wait until they receive a request for an accommodation–or worse, yet, a lawsuit–before developing or reviewing job descriptions. 

Although job descriptions are not required by either state or federal law, they are a key component of ADA compliance.  If you have well-drafted job descriptions, they can protect your school district from claims of disability discrimination.  That is because a well-crafted job description will include a list of “essential functions.”  Essential functions “are those functions that the individual who holds or desires the position must be able to perform unaided or with the assistance of a reasonable accommodation.”  Essential job functions are crucial to 1) determining if a potential employee can perform the essential functions of the job, 2) defending the District from any disability discrimination claims, and 3) requesting medical certification under the Family and Medical Leave Act. 

Our Recommendations.  Spring is the perfect time for schools to update job descriptions.  Even if your district has them in a file somewhere (possibly collecting dust), positions evolve over time (and attorneys learn how to draft more specific lists of “essential functions.”)   After updating your job descriptions, we recommend that you share them with employees.  Each employee should sign the job description to attest to receiving the description and indicating the employee can perform the essential functions of the job.  Now is an opportune time to have staff review and sign for receipt of job descriptions.  When you issue contracts and work agreements to staff, include a copy of their job description for review.  We do not recommend job descriptions be included in board policy.  

If you have any questions about drafting job descriptions, would like assistance with the job analysis process, or would like sample job descriptions, 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.

A Rose by Any Other Name ...

Shakespeare could have been talking about military leave when he asked:

What's in a name? That which we call a rose 

By any other name would smell as sweet;

 Juliet argues that it does not matter that Romeo is from a rival family; what we call something does not affect what it really is. Romeo and Juliet is a tragedy, but your understanding of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) does not have to be. This bit of prose reminds us that regardless of how a type of paid leave is categorized the law seeks to protect military members from workplace discrimination based on military service. 

As a reminder, USERRA protects military service members and veterans from employment discrimination on the basis of their service and allows them to regain their civilian jobs following a period of uniformed service.  Within the last two years, Courts have consistently expanded the interpretation of USERRA in regard to paid military leave. Based on this new trend of case law, we can determine when a request for paid military leave for short-term assigned duties; such as guard duty, drill, or training, should be treated as a request for any other type of paid leave by analyzing the law. 

 The USERRA requires an employer to provide pay and other benefits to a service member during periods of leave necessitated by military service to the same extent as it would provide a similarly situated employee pay and benefits during comparable periods.  White v. United Airlines, Inc., 987 F.3d 616 (7th Cir. 2021).  See also, Travers v. Fed. Express Corp., 8 F.4th 198, 209 (3d Cir. 2021); Won v. Amazon.com, Inc., 2022 U.S. Dist. LEXIS 149208 (E.D.N.Y. Aug. 19, 2022.)  

 The Department of Labor specified three factors to be considered when determining if two types of leave are comparable:

1.   The duration of the leave

2.   The purpose of the leave.

3.   The ability of the employee to choose when to take the leave. 

Imagine that an army reservist, who is also an employee in your district, is notified that they must report for training for two days for training the following month. Are you obligated to pay them for that leave?

It is up to the employee to demonstrate the leave they are requesting is comparable to a type of leave offered to employees for non-military purposes. When considering the request, the district should first look at the most important element; duration of the leave requested. If employees have access to paid jury duty leave for two days, then a request for paid military leave for the same duration of time would be comparable. Courts have also found bereavement leave to be comparable. Next, the purpose of the leave is considered. If the employee indicates that the purpose for the military leave is part of their civic duty, much like jury duty, it is likely that the purpose would be found comparable. The employee must be given the most favorable treatment accorded to any comparable form of leave when he or she performs service in the uniformed services. 20 C.F.R. § 1002.150 (2023). 

 Finally, the ability of the employee to choose when to take leave is analyzed. Though signing up to serve in the armed forces is voluntary, the courts consider only whether the timing of the leave is under the employee’s control. The courts do not look at the voluntary nature of participation in the armed services itself. Once commitment to military service is made, it is the employee’s lack of choice in when they take the necessary leave that weighs in favor of being paid for their requested leave.  

 Conclusion: This relatively new clarification of USERRA might have you wondering if paid military leave is “to be or not to be.” In light of the requirements of the USERRA, school districts may wish to reconsider the extent to which they offer paid leave that would be considered comparable to military leave, or whether they would alternatively offer leave that entitles the employee to differential pay. We recommend reviewing your current USERRA policies and also the types of paid leave offered by your District. 

If you have any questions about the USERRA, 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.

“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

Let’s Un-PPACA Some Recent Obamacare News

Administrators, please do us a favor.  Forward this to your school business officials right now.  We have two reasons for making this request  

First, we’ve set a date for our 2022 PPACA Reporting Workshop.  It’ll take place December 14, 2022, from 9 AM to noon central time, and it will be recorded and accessible afterwards if you (and/or your business officials) can’t make it live.  You can register here.  This webinar will be useful for all school business officials who have PPACA reporting obligations.

Second, we’re hoping to save you a lot of angst and confusion about some recent regulations released by the IRS regarding “affordability” calculations of insurance offers under PPACA/Obamacare and their impact on compliance.  We’ve received several questions on what, exactly, this means.  We’re hoping this post helps clarify things.

What regulations?  On October 11, 2022, the IRS released these regulations.  The same day, President Biden released this statement.  In summary, the regulations are designed to “fix” what has been called the “family glitch” under PPACA.  It’s called a “glitch” because, ironically, the better the offer of coverage from employer to employee, the fewer options the employee’s family may have to find reasonably priced insurance elsewhere.  We’ll discuss this below.  From the headlines, it is hard to understand what happened and what impact it may have on school district and service agency compliance.

The Good News.  You do not need to change your insurance offers because of these regulations.  Nor are you going to be subjected to additional tax penalties because of these regulations. 

Whether you’re a seasoned veteran or novice to the PPACA employer compliance game, you know one of the key questions we answer during reporting every year is whether your insurance offers to your “full time” employees are “affordable,” and whether your offer allowed your employees to “enroll” their families in your plan.  If a full-time employee receives an offer that is not “affordable” and that employee obtains insurance and premium tax credits through the healthcare.gov marketplace, the employer may be subject to a “pay or play” tax penalty.  However, the “affordability” calculation (and whether you may owe a penalty) is based on the cost of employee-only coverage compared to the employee’s household income, and not what it would cost to insure their entire family.  As a reminder, only applicable large employers (ALEs) are subject to this requirement.  You are an applicable large employer if you averaged at least 50 full-time employees, including full-time equivalent employees, during the prior calendar year. 

Thankfully, these new regulations did not change this analysis.  All of the employer compliance computations and all of that reporting will still be based on the cost of employee-only coverage.  In other words, the rules as we’ve all come to know them from the ALE compliance perspective did not change.

As the IRS put it: these regulations do not change when an employer could be subject to tax penalties, nor do they affect “any information reporting requirements for employers,” including Form 1095-C.  If you’re satisfied by knowing your insurance offer, 1095-C reporting, and possible tax penalty obligations were not really affected, no need to read on.  If you want more info on what did happen, read on, my friend.

Okay, so what really happened?  The reason it’s called the “family glitch” is pretty straightforward.  Let’s assume Employee A is a full-time paraprofessional that works for School District X, and School District X offers to pay Employee A’s full single premium and allows Employee A to pay out of pocket to enroll his spouse and kids.  Whether or not Employee A accepts the offer and enrolls, or declines the offer to seek insurance elsewhere, School District X will not owe a tax penalty on Employee A because the cost to Employee A for single-only coverage is $0.  In other words, School District X has satisfied its obligation to “offer” affordable insurance to its full-time employee and allow him to enroll the rest of his family through the school’s plan.  This is true even if Employee A’s family has to pay $17,000 more out of pocket to enroll their full family, because compliance is based on the single-only offer to the employee.

Sounds like you’ve done it correctly, right?  From the school’s compliance perspective, you have!  However, that offer could have a meaningful impact on the insurance options available to Employee A’s family.  It’s awesome that Employee A can receive single coverage at little or no cost, but what about Employee A’s spouse and kids?  What if Employee A’s spouse is self-employed, they have 3 children, and they can’t afford to pay the $17,000 difference between employee-only and full family coverage?  

Under the rules prior to these new regulations, because Employee A received an affordable offer from the employer, Employee A’s family was not eligible for premium tax credits or assistance if they tried to enroll through the healthcare.gov insurance marketplace.  Thus, the “family glitch.”  The Biden Administration (and most who commented on the proposed regulations) did not like that outcome.  Employee A’s family really needed the benefit of premium assistance through the marketplace, but they weren’t eligible for that assistance because Employee A received an “affordable” offer from School District X.  Marketplace eligibility was based on the cost of employee-only coverage, not the full cost to enroll the entire family.

These newest regulations changed that in an effort to “fix the glitch.”  Starting with the next healthcare.gov open enrollment period (which began Nov. 1, 2022), Employee A’s family now may be eligible for premium tax credits.  The new rules will compare the cost of enrolling Employee A’s full family on School District X’s plan against their household income.  If the percentage difference is low enough, then Employee A’s family may be eligible for premium assistance through healthcare.gov even if Employee A’s offer was “affordable.”  

Bottom line, the good ol’ “affordability” test for employer offers/reporting remains the same, but there’s a new “affordability” test for eligibility for premium assistance on healthcare.gov.  As an employer, you will still only owe a tax penalty if you fail to offer a full-time employee “affordable” single-only insurance coverage and that employee obtains coverage and premium assistance on the healthcare.gov marketplace.

What does it all mean?!  For our clients, not much from a purely legal compliance perspective.  However, practically speaking you may see more employees and their families seek out marketplace insurance.  They may do that by having the school’s employee take the district’s coverage and then insuring the employee’s family through the marketplace.  Or, maybe the entire family will head to the marketplace.  Will it lead to more negotiations over cash-in-lieu options; or more employees turning to healthcare.gov?  We’ll see.

If you have any questions about these new regulations or your PPACA compliance, please contact your attorney or drop us a line at ksb@ksbschoollaw.com.