That Time of Year - Graduation Regalia

For families of high school seniors, graduation season means ordering an elaborate cake and opening congratulatory cards from Aunt Irene with a $10 bill tucked inside. For school administrators, graduation season brings questions from students and families about wearing cultural, religious, or symbolic attire during ceremonies. While schools have some authority over what students can wear during commencement ceremonies, that authority exists within constitutional limitations found in the First Amendment and state law.

First, know that you can regulate graduation attire when the regulation is tied to legitimate educational goals. The First Amendment protects student expression, but not all student speech is created equal. Courts draw a distinction between private student speech and school-sponsored speech. Because graduation ceremonies are school-sponsored events, courts have found that student regalia is considered school-sponsored speech, meaning schools can regulate what’s worn if the policy is reasonably related to legitimate pedagogical concerns (e.g., class unity, academic focus, avoiding controversy).

For example, in one case from Colorado, Villasano v. Garfield County School District 16 (D. Colo. 2023), a student was denied permission to wear a sash with Mexican and American flags at graduation to honor her heritage. The court ruled in favor of the school, holding that graduation regalia was school-sponsored speech and could be regulated based on the school’s interest in controlling the tone and message of the ceremony—even if that included allowing some regalia and disallowing others. Likewise, Dreaming Bear v. Fleming (D.S.D. 2010), a Native American student was required to wear a cap and gown over traditional clothing. The court found the graduation ceremony was a nonpublic forum and the school could impose restrictions so long as they were tied to educational goals. The school’s policy did not violate the student’s rights.

It is really important to remember that schools must not apply their regulation of graduation regalia selectively. For example, in Waln v. Dysart School District (9th Cir. 2022), a student who was an enrolled member of a Native American tribe asked the school district to accommodate her religious practice by allowing her to wear an eagle feather on her cap during her high school graduation. The school district refused to make an exception. The student arrived at her commencement wearing an eagle feather; and the school district prohibited her from attending the ceremony. In the lawsuit, the student alleged that other high school students were allowed to wear caps that violated the commencement dress code policy, such as a breast cancer awareness sticker. The court ruled in favor of the student, finding particular fault in the district’s selective enforcement of its policy such as not excluding a student’s secular message while burdening the student’s religious expression. The student also prevailed on her free speech claim.

Bottom line - schools may limit what students wear, as long as the restrictions relate to legitimate educational interests and are applied fairly and consistently.

In South Dakota, we have several laws which govern commencement regalia. For example, SDCL 13-1-66 states that schools “may not prohibit any Native American student from wearing an eagle feather, eagle plume, or an appropriate beaded graduation cap at a school honoring or graduation ceremony. A school administrator may determine if a beaded graduation cap is appropriate.” This legislative session a new law was passed regarding military-enlistment decoration which became effective March 11, 2025. SDCL 13-1-66.1 provides:

A student who is enrolled in a school district and has enlisted in the South Dakota National Guard or in a branch of the armed forces, as defined in § 36-1-2, may wear a sash, stole, or other military decoration at a school graduation ceremony, if the sash, stole, or decoration was issued to the student by the South Dakota National Guard or a branch of the armed forces, for the purposes of being worn at the graduation ceremony.

Both of these statutes are in effect this graduation season and you should keep them in mind if you receive a special request from a student seeking to wear commencement regalia that differs from board policy.

If you have any questions, please do not hesitate to contact us at ksb@ksbschoollaw.com or 402-804-8000.

Double Duty: Managing Employee Rights Under Both FMLA and ADA

With Nebraska and South Dakota both hosting their state business officials conferences this week, we figured there’s no better time to dive into two of every school business manager’s favorite acronyms—FMLA and ADA.  These laws show up often in school settings, and it’s usually up to business managers to spot where they apply and make the right call. But as you probably know, the FMLA and ADA don’t always play nice together, and the overlap can be tricky.

Understanding FMLA Obligations

Quick refresher - The FMLA entitles eligible employees to up to 12 weeks of unpaid, job-protected leave for specified family and medical reasons.  As we approach the end of the school year, don’t forget there are special FMLA rules which apply to instructional staff.  The DOL posted a fact sheet about this topic here.  Here is a hypothetical scenario we created to demonstrate how this works:

Amanda, a high school science teacher, notified her principal on March 1 that she needs to take FMLA leave for surgery scheduled on April 1. Her recovery is expected to take six weeks, which means she would return to the classroom on May 14.  Classes for the school year end on May 23. 

Because Amanda is an instructional employee requesting leave more than five weeks before the end of the term and will be out for more than three weeks, the district has the option to require her to continue her leave through the end of the academic term. Under FMLA's special rules for instructional employees, this helps minimize disruption to students and allows the district to ensure continuity in classroom instruction.

In this case, the district determines that it would be less disruptive to place a long-term substitute in the classroom for the remainder of the term. They notify Amanda that her FMLA leave will be extended through May 23, even though she may be medically cleared to return earlier. This is permissible under the FMLA’s instructional staff provisions, as long as it is clearly communicated and documented.

ADA and Reasonable Accommodations

Under the ADA, employers must provide reasonable accommodations to qualified employees with disabilities, unless doing so would cause undue hardship. A recent school district case from the state of Virginia (Jordan v. School Board of the City of Norfolk, 640 F.Supp. 3d 431 (E.D. Va. 2022)) highlights the importance of understanding what constitutes a reasonable accommodation.  In this case, a school principal's request to work remotely due asthma and restrictive lung disease was denied, with the court ruling that physical presence was an essential function of her role as a principal. (Double-check your job descriptions!)

Interplay Between FMLA and ADA

There are scenarios where both FMLA and ADA considerations apply.  For instance, an employee may exhaust their FMLA leave yet still be entitled to additional leave as a reasonable accommodation under the ADA.  Schools must assess such situations carefully to ensure compliance with both statutes. 

Best Practices for Administrators

• Proactive Communication: Maintain open lines of communication with employees. Remember - employees do not have to utter “magic words” requesting leave under the FMLA or an accommodation under the ADA.

• Documentation: Keep thorough records of all leave requests, accommodations, and related communications.​

• Training: Ensure business managers, bookkeepers, and supervisors are well-versed in FMLA and ADA requirements.

If this blog post makes you worried that you or your principals may be lacking on FMLA or ADA training, we have good news!  This week we are launching two on-demand video series to help school administrators - one for the ADA and one for the FMLA.  The videos are quick 20 minute on-demand content to help train your team on how to recognize and respond to requests.  The FMLA series also includes a handy flowchart which works through the special rules for instructional staff.  To register or request more information, click here.  If you have any questions regarding ADA or FMLA compliance, send us all an email at ksb@ksbschoollaw.com.

You Heard Us Say It Once, You Will Hear Us Say It Again: The Importance of the ADA Interactive Process for School Employees

Another ADA blog post? You bet!  We continue to see superintendents, principals and business managers have questions on this hot topic.  To check out previous blog posts on the ADA, go here, here, or here. On March 25, 2025, the United States Court of Appeals for the Second Circuit issued an interesting decision in Tudor v. Whitehall Central School District, addressing the obligations of school districts under the Americans with Disabilities Act (ADA).  While our NE, SD, and WY schools are not in the Second Circuit, this case demonstrates the importance of employee accommodations.

In this case, a high school math teacher with approximately 20 years of service at a school district had suffered from post-traumatic stress disorder (PTSD) stemming from prior workplace incidents at another employer involving sexual harassment and sexual assault. To manage her condition which impacted her neurological functioning and speech, the teacher had an accommodation since 2008 allowing her to leave the school for brief 15 minute periods during her prep periods to alleviate PTSD symptoms.​

In 2016, the school district implemented a policy prohibiting teachers from leaving school grounds during prep periods.  Despite informing the administration of her existing accommodation, the teacher’s requests to continue her off-campus breaks were denied, leading to reprimands for insubordination when she attempted to adhere to her prior ADA accommodation.  She subsequently filed a lawsuit alleging that the district failed to accommodate her disability as required by the ADA.​

The district court granted summary judgment in favor of the school district, reasoning that since the teacher could perform her essential job functions without the accommodation, the district was not obligated to provide it.  However, the Second Circuit disagreed and ruled in favor of the teacher,  clarifying that an employee's ability to perform essential job functions without accommodation does not negate the employer's duty to provide reasonable accommodations for known disabilities.  The Court specifically said:

​an employer must, absent undue hardship, offer a reasonable accommodation--such as a modified work schedule--to an employee with a disability if that employee is capable of performing the essential functions of her job with or without the accommodation. Under a straightforward reading of the phrase “with or without,” the fact that an employee can perform her job responsibilities without a reasonable accommodation does not mean that she must: she may be a “qualified individual” entitled to reasonable accommodation even if she can perform the essential functions of her job without one.  (emphasis added). 

What We Want School Administrators To Know

1. Proactive Engagement in the Interactive Process: Administrators must actively engage with employees who request accommodations (or those who indicate they may have a disability), even if the employee can perform their job duties without them.  The ADA requires employers to explore reasonable accommodations that enable employees to manage their disabilities effectively.​

2. Documentation and Consistency: Maintain thorough records of all accommodation requests and the district's responses.  If you do not have an ADA interactive checklist for this process, reach out to us as we have one available for purchase.

3. Training and Awareness: Provide regular training for administrative staff on ADA requirements and the importance of accommodations.  Mark this as a topic to cover at staff inservice.  We also have a training video available on our portal for on-demand access.

If you have any questions or would like to purchase the ADA webinar or interactive process checklist, please shoot us an email at ksb@ksbschoollaw.com or give us a call at 402-804-8000. 

Brainstorming Accommodations

When you hear the word accommodations, where does your brain go? If your mind immediately went to ADA workplace accommodations, that may be a sign you need a vacation. But thankfully, that also means you are in the right headspace to read about a tool from the Department of Labor. 

If you have ever had an employee request accommodations through the ADA, the process and the costs associated with those accommodations can sometimes feel daunting. When it comes to cost, survey data from the Job Accommodation Network indicate that the majority of accommodations reported by employers cost nothing to implement. If an accommodation costs money, 37% of the survey respondents report it as a one-time expenditure with a median cost of $300. For the 7% that reported ongoing costs, the median annual cost was reported at $1,925. 

Additionally, brainstorming the types of accommodations that exist can be a hurdle you just need a little nudge to overcome. The Job Accommodation Network launched a “Situations and Solutions Finder,” intended as a helpful starting point to get ideas about the kinds of accommodations that could be possible. Even though accommodations are an individualized determination informed through the ADA interactive process, this tool may just be the nudge needed. 

If you have any questions about the ADA, accommodations or would like to purchase our ADA interactive checklist  (or need vacation travel spots), give us a call at (402) 804-8000 or email ksb@ksbschoollaw.com.

FMLA, IEPs, and OMG—What Employers Should Know

Typically, when you see the word IEP in a title from KSB, it has something to do with legal compliance related to the IDEA. However, variety is the spice of life, which means let’s talk about compliance issues related to IEP meetings when it comes to the FMLA (yay?). 

The U.S. Department of Labor, in its letter FMLA 2019-2-A, addresses whether FMLA leave can be used for a parent to attend their child’s IEP meetings. The FMLA permits twelve weeks of unpaid leave for an employee “to care for the spouse, or a son, daughter, or parent, of the employee” if such person has a “serious health condition.” 29 U.S.C. § 2612(a)(1)(C). A serious health condition “means an illness, injury, impairment, or physical or mental condition that involves—(A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11).

In this case, the employee received certification from their child’s doctor that supports the employee’s need to take leave. DOL concludes that attendance at IEP meetings to address “the educational and special medical needs of your children—who have serious health conditions as certified by a health care provider—is a qualifying reason for taking intermittent FMLA leave.” The letter further states that the employee's attendance helps “participants make medical decisions concerning your children’s medically-prescribed speech, physical, and occupational therapy; to discuss your children’s wellbeing and progress with the providers of such services; and to ensure that your children’s school environment is suitable to their medical, social, and academic needs.”

So, what does this mean? If an employee requests FMLA leave to attend an IEP meeting for their child, the district must consider that request carefully. The logic of this letter likely also extends to requests to attend Section 504 meetings. The DOL letter presumed the child had a “serious health condition” and discussed the importance of attendance at the IEP meeting because of the parents ability to address both educational and medical needs.  Additionally, if you have a parent with whom it has been challenging to schedule an IEP meeting during the workday, you can suggest that the parent pursue FMLA leave through their employer.

Eligibility under the IDEA does not automatically mean a child has a serious health condition for purposes of the FMLA. If you receive such a request from an employee, you can still require the employee to provide medical certification that supports the child has a serious health condition. Additionally, the DOL letter seems to indicate that leave is permissible when the IEP meeting is about meeting the educational and medical needs of a child. However, if it is established that the child has a serious health condition, the hurdle of the meeting having to discuss medical needs seems rather low because the DOL discussed medical decisions in the context of school therapy providers (think OT, PT, etc.).

If this situation arises and you have any questions, call us at (402) 804-8000 or email ksb@ksbschoollaw.com. 

Ps. School administrators - We just released the “What School Lawyers Want You to Know” series of 20-minute on demand videos for South Dakota special education teachers and administrators on our webinar portal.  To register and read video descriptions, click here.  For Nebraska folks, our 24-25 Special Education Rookie & Refreshers series is available on our webinar portal as well.  If you missed registration and videos earlier in the fall, you can still register here and watch the recorded videos at your convenience!

Navigating Open Enrollment: Special Education Edition

Ask and you shall receive! At the South Dakota State Special Education Conference, we heard that open enrollment involving special education students is an area you all want more information on. So, what do you do when you receive an open enrollment application? What do you do if a student seeking to transfer needs special education and related services? Hopefully, this blog can help spark a conversation about the review process of those open enrollment applications within your district. Additionally, we have created a free resource to provide a visual representation of what that open enrollment application process can look like for applications involving students that need special education services. (Yay flowcharts for our visual processors!) 

First and most importantly, if a student requesting a transfer needs special education and related services, that cannot be an automatic reason to reject the request. Instead, the district must individually review the student’s records and needs.

What does that mean practically when you first get that application? First, the district should work at obtaining “copies of all relevant student education records.” SDCL 13-28-42.1. The best practice is to request those records from the student's resident district rather than seeking those records directly from a parent. Once you receive those records and you see that a student has an IEP, those records need to make their way into the hands of the appropriate special education professional based on the student’s grade level and district administration structure. 

Once they are in the hands of the special education professional, that person must review the records and assess the student’s needs and the District’s ability to meet them. Additionally, the district is responsible for directly communicating “with the student's parent or guardian and representatives of the resident district regarding the student's special education or special education and related services needs.” SDCL 13-28-42.1. At this point, two outcomes could happen. First, the district may determine that it can provide the appropriate program and meet the student's needs. If that is the determination, the district should complete its open enrollment process, follow the five-day decision communication deadline (discussed below), and enroll the student. In addition, the district would need to determine if the student requires transportation as a related service. 

In the second option, if the district believes it cannot meet the needs, it must “initiate an individual education program team meeting consisting of representatives from both the resident and nonresident districts to determine whether the nonresident district can provide an appropriate instructional program, facilities, and transportation, if necessary.” SDCL 13-28-42.1. Based on that meeting, it would have to be determined if the nonresident district can meet the student's needs or if the nonresident district cannot. Once a decision is made, that decision needs to be communicated within five days by following the guidelines on the open enrollment application form. Additionally, we recommend that the district send an accompanying letter reflecting that decision. KSB offers an open enrollment denial letter that can help serve as a starting point for a flat fee. 

If you have any questions about open enrollment or want to learn more about purchasing a denial letter template, please email us at ksb@ksbschoollaw.com. 

Ps. School administrators - We just released the “What School Lawyers Want You to Know” series for special education teachers and administrators on our webinar portal.  The series consists of fourteen 20-minute on demand videos that provide quick hits of essential legal knowledge that are perfect for watching during lunch breaks, planning periods, or using for staff professional development.  To register and read video descriptions, click here.

Are Evaluations Happening? Boards Can't Peek, But They Can Verify.

School boards don’t get to play Big Brother with staff evaluations—they’re confidential for good reason. But that doesn’t mean administrators get a free pass. How can boards ensure evaluations are happening without violating privacy?

Evaluation Requirements in Nebraska

Nebraska law sets clear guidelines for the evaluation of staff members who hold certificates from the Nebraska Department of Education. 

• Probationary staff (those in their first three full years) must be evaluated each semester. 

• Tenured staff are evaluated per board policy—some annually, others on a 2-3 year cycle. 

• Other certificated staff, including principals, counselors, social workers, and media specialists, must be evaluated under the same tenure laws.

Key Deadlines for Boards & Teachers

• March 15: Is the earliest date districts can require teachers to return binding renewal agreements or new contracts for the next school year. Given the significant teacher shortage in Nebraska, we have many districts who utilize the March 15 renewal deadline.  Be careful, however, as the teacher who returns his/her contract or renewal agreement on March 15 can argue that the district is also required to employ the teacher next year – in other words, if you are considering nonrenewal or termination, do NOT issue a contract or renewal agreement with a March 15 return date to that staff member.

• April 15: Deadline for non-renewal or termination notices. After this date, the district is automatically required to employ the teacher next year unless the district has issued notice of nonrenewal or termination to the teacher by that date.  

• April 15 applies to teachers too! After this date, teachers are contractually locked in regardless of whether they have signed and returned a contract unless they resigned earlier or your board policy/negotiated agreement allows late resignations.  If so, it’s time to change that.

Accountability Without Overreach

Boards can’t review evaluations in anticipation of these deadlines, but they can require proof that the evaluations are happening. By the same token, administrators don’t get the chance to share the results of the hours they spend on great staff evaluation, but administrators can ensure that the board knows that they’ve completed this vital work.  As an example of how this accountability can occur, we’ve created sample spreadsheets as a board-accessible tracking tool that can be shared by the administration in a board report without violating confidentiality.  Cells gray out based on tenure status and whether a tenured teacher is on- or off-cycle, making it easy to verify compliance.  If you would like to see a copy of the spreadsheet, fill out this Google form and we’ll email you the spreadsheet that corresponds with your board’s policies. (We promise we won’t use your email from this sheet for any other purpose!)    

We are constantly trying to find new ways to make the lives of school boards, administrators, and the education community easier.  If you have questions about these spreadsheets, or if you would like them customized to your district, let us know.  And if you have questions about the evaluation and contract renewal process generally, we’re happy to help.  Please call us at (402) 804-8000 or email ksb@ksbschoollaw.com if you have any questions. 

Are Evaluations Happening? Boards Can't Peek, But They Can Verify.

School boards don’t get to play Big Brother with staff evaluations; administrators are hired for a reason. But that doesn’t mean administrators get a free pass. How can boards ensure evaluations are happening without violating privacy?

Evaluation Requirements in South Dakota

South Dakota law sets clear guidelines for the evaluation of teachers who hold certificates from the South Dakota Department of Education. 

• Nontenured staff (those in years one through three) must be evaluated not less than annually.  Some negotiated agreements change this requirement to each semester.

• Tenured staff (teachers in their fourth contract year or beyond) are to be evaluated not less than every other year.  However, check your negotiated agreement as many provide yearly evaluations. 

• Principals and assistant principals must be evaluated at least once per year for the first four years of employment with a district and at least every other year thereafter. 

Key Deadlines for Boards & Teachers

• April 15: Deadline for non-renewal notices.  Teachers in years 1-3 of a consecutive term of employment, may be nonrenewed for any reason without further process.  When a teacher is in year 4 or beyond, just cause for termination must exist with an opportunity for a hearing.  After April 15, the district is automatically required to employ the teacher next year unless the district has issued notice of nonrenewal to the teacher by that date.  

• April 15 applies to teachers too! After this date, teachers are contractually locked in regardless of whether they have signed and returned a contract unless they resigned earlier or your board policy/negotiated agreement allows late resignations/liquidated damages.  

Accountability Without Overreach

Boards can’t review evaluations in anticipation of these deadlines, but they can require proof that the evaluations are happening. By the same token, administrators don’t get the chance to share the results of the hours they spend on great staff evaluation, but administrators can ensure that the board knows that they’ve completed this vital work.  As an example of how this accountability can occur, we’ve created sample spreadsheets as a board-accessible tracking tool that can be shared by the administration in a board report without violating confidentiality.  Cells gray out based on tenure status and whether a tenured teacher is on- or off-cycle, making it easy to verify compliance.  If you would like to see a copy of the spreadsheet, fill out this Google form and we’ll email you the spreadsheet that corresponds with your board’s policies. (We promise we won’t use your email from this sheet for any other purpose!)  Also, South Dakota schools need to check their negotiated agreement as your mileage may vary for these spreadsheets.

We are constantly trying to find new ways to make the lives of school boards, administrators, and the education community easier.  If you have questions about these spreadsheets, or if you would like them customized to your district, let us know.  And if you have questions about the evaluation and contract renewal process generally, we’re happy to help.  Please call us at (402) 804-8000 or email ksb@ksbschoollaw.com if you have any questions. 

It May Be Time to Throw Out the Junk…Fees

The Agriculture Secretary announced that starting in 2027-2028, students eligible for free and reduced-priced school meals cannot be charged junk fees. The USDA Food and Nutrition Service issued a memo as part of this announcement. For this fee policy, school meal programs encompass a School Breakfast Program, Special Milk Program, and National School Lunch Program (including after-school snacks). Additionally, the fees at issue are those associated with electronic payments (AKA credit card payments). 

Students who qualify for reduced-price school meals can be charged up to $0.40 per lunch or $0.30 per breakfast. Beginning with the 2027-2028 school year, students who qualify cannot be charged fees when they use electronic payment. This applies to transaction fees associated with credit/debit card payments, bank account/ACH transfers, one-time program fees, annual fees, and convenience fees. For schools that choose to provide electronic payment services, the following must occur: (1) provide a free and accessible method of making deposits, (2) provide a method of deposit that does not require computer access, (3) notify families of available payment options, and (4) ensure that all families have access to every payment method made available for adding money to meal accounts. 

The 2027-2028 school year start date is designed to allow school districts to begin making arrangements to comply with their vendors and contracts. Schools “are encouraged to implement this requirement as soon as they are able and may use funds in the nonprofit school food service account to cover the fees under their current contract.” One requirement to comply with this policy is to ensure that negotiating contracts with payment processing companies does not lead to fee shifts or fee increases for those students paying full price. 

Even though 2027 seems like a million years away, now is the time to review your school's practices and determine what needs to be done to comply. Please call us at (402) 804-8000 or email ksb@ksbschoollaw.com if you have any questions. 

P.S. The IRS released guidance related to the recent federal legislation that changed PPACA requirements, allowing for notice as a method of furnishing 1095 forms. As predicted, the notice requirements are in line with past IRS practices. Review our previous blog post for a full review of those notice rules.  By the end of today, make sure you have either posted notice of the availability to request or provided copies. 

Dealing with Opinionated Opinions

Public comment, everyone’s favorite topic! Alright, maybe that is a bit of a stretch for some, but the reality is public comment is here to stay and remains a legally tricky issue to navigate. 

When the public speaks at board meetings, this directly implicates an individual's First Amendment rights. Inevitably, there will be times when a board would want to consider establishing rules and guidelines for the public comment process. We are here to remind you of some of the legal issues that can arise by unpacking a decision from the 11th Circuit. 

In Moms for Liberty v. Brevard Pub. Sch., No. 23-10656, 2024 U.S. App. LEXIS 25394 (11th Cir. Oct. 8, 2024), the 11th Circuit found that a school district’s public comment policy in Florida was unconstitutional. The policies at issue were: (1) “no person may address or question Board members individually,” and (2) the barring of statements “too lengthy, personally directed, abusive, obscene, or irrelevant.” Throughout the court’s opinion, it became clear that a significant issue the school district faced was having an ill-defined understanding of terms like “abusive” or “obscene” and, historically, inconsistent application of the policies. Ultimately, the court found the ban on abusive speech, the rule against personally directed speech, and the prohibition on obscene speech all unconstitutional under the First Amendment. 

What does all of this mean for school districts here? The key takeaways are as follows:

1. Boards generally cannot bar speech that is “offensive.”  Obscene speech?  Sure.  But just “offensive” may not cut it.  In Brevard, the board used the policy restricting such speech to ban name-calling. Even though name-calling is not everyone’s cup of tea, the First Amendment likely protects this kind of speech. Rules that prohibit viewpoint-neutral speech characteristics are more likely to pass constitutional muster. An example of a viewpoint-neutral characteristic rule would be a time limit. 

2. Any time a board has a rule restricting public comment, the history of enforcement is critical if challenged. A court will examine whether a rule has been enforced arbitrarily or haphazardly. This means boards need to be on the same page about the meaning of any rules in place. 

3. Make sure rules in place tie back to a clear goal. The court in Brevard struggled with the rule against personally directed comments because, in light of the inconsistent enforcement, the court could not see how the policy advanced the goal of “preventing disruption” or “maintain[ing] decorum.” As the 11th Circuit stated, “To be sure, sometimes meetings can get tense—no one enjoys being called out negatively, and some may even dislike public praise. But that is the price of admission under the First Amendment.”

4. Bans on speech that is “obscene,” “lewd,” “profane,” or “defamatory” can be lawful but are tricky. Words like “obscenity” under the First Amendment have been constructed in a relatively narrow manner. If a board uses these types of terms as criterion for regulating public comment (such as in KSB’s model public comment rules), consider how you’ve enforced those and whether some basic training on spotting speech of that variety might help, especially with new board presidents and board members taking over this time of year. 

The 11th Circuit ultimately concluded its opinion by expressing that the “government has relatively broad power to restrict speech in limited public forums—but that power is not unlimited. Speech restrictions must still be reasonable, viewpoint-neutral, and clear enough to give speakers notice of what speech is permissible.” Remember, boards can make and enforce reasonable rules and regulations regarding public comment, but boards need to be looking at the application and understanding of the terms present in those rules. 

If you have any comments of the nonpublic variety regarding these issues, give us a call at 402-804-8000 or shoot us all an email at ksb@ksbschoollaw.com. 

The Surprising Secret Sauce for High Student Achievement: Great School Boards

What if the biggest factor in student success wasn’t test scores, funding, or curriculum—but the school board itself? Research shows that when boards lead with clarity, vision, and collaboration, entire districts thrive. Strong boards don’t just govern; they shape the culture, priorities, and progress that drive better student outcomes.  This should make every board member rejoice: what you do really matters!  But it also gives every board member pause: what you do really matters! 

One of the most compelling studies on this topic is the Lighthouse Project, a decade-long research initiative that explored how school board governance impacts school improvement and student learning. As newly sworn board members start to fully engage in their roles, now is the perfect time for both new and experienced board members to consider how your board can maximize its impact. 

What makes a Board Effective? 

The Lighthouse Project identified five key functions of highly effective school boards: 

1. Setting clear and high expectations

2. Holding the system accountable to the expectations

3. Creating conditions for success

4. Building collective will

5. Learning together as a board team 

The Lighthouse research indicates that when boards embrace these five functions, they move beyond routine oversight and become true catalysts for improvement. The board’s leadership ripples through the entire district, ultimately shaping a stronger, more successful learning environment for students.

The Power of a Positive Board-Administrator Dynamic 

One of the study’s biggest takeaways is that the relationship between the board and the superintendent directly affects student success.  In high-achieving districts, board members don’t attempt to micromanage, but they don’t just rubber-stamp decisions either.  Instead, they engage in thoughtful, strategic leadership.  

Likewise, superintendents in these districts don’t view the board as a necessary evil, but as a critical partner in shaping the district’s future. When this relationship is built on trust and shared purpose, district leaders can focus on systemic improvements that drive real results.  This isn’t just an idealistic hope – it’s backed by data.  Strong board leadership leads to stronger schools. 

Want to Strengthen Your Board? 

The time and effort that it takes to focus on strengthening your board’s key skills is worth the investment.  There are many resources available to boards that are ready to take the next step.  One of those options is to access some of KSB’s resources.  We offer both onsite board training with an attorney and online training through our app.  We will also be rolling out a tool this spring to help boards evaluate their strengths and weaknesses in critical skill areas, which will help you know where to focus your self-improvement. 

For now, the most important thing to remember is this: SCHOOL BOARDS MATTER!  But we at KSB have known that all along.  <3 

If you want to talk board training (onsite training with a KSB attorney or online modules through our App) or have any questions, please call us at (402) 804-8000 or email ksb@ksbschoollaw.com.

Navigating President Trump’s First Two Weeks

As promised, we are back to highlight some of the developments from President Trump’s first two weeks back in office. On Inauguration Day, President Trump signed 26 executive orders and rescinded 78. Here are a few quick highlights of actions you should  be aware of because they may impact schools.

On January 20, 2025, President Trump issued an executive order titled “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.”  This executive order states that the administrative agencies of the federal government must treat “sex” as binary: either male or female.  It also instructs agencies of the federal government that civil rights laws related to sex discrimination cannot be expanded to apply to sexual orientation or gender identity.  Essentially, this executive order seeks to undo the Biden administration's position on the applicability of sex discrimination laws to questions of gender identity.  We anticipate the US Department of Education will be issuing more guidance on this topic in upcoming weeks, including how it impacts Title IX.  Speaking of which…

OCR also issued a Dear Colleague Letter on January 31, 2025 available here clarifying OCR’s position on Title IX enforcement under the 2020 Title IX regulations instead of the 2024 Title IX regulations.  It specifically  mentioned the 2020 investigative process but said nothing about all of the related issues, like updating policies, handbooks, etc.  We think schools should be patient before they make any sweeping changes to Title IX policies, training or practices.  If you have a Title IX complaint come in over the next few months, call legal counsel before making promises or taking any next steps.  The situation on this issue is so fluid, we don’t want schools to get caught in a vicious cycle of changing everything all the time.  That’s not to mention the other executive orders mentioned in this article and state level bills and laws on issues like athletics participation.  Instead, we are awaiting further developments and doing some deep thinking before we make our next substantive recommendations on Title IX. 

Additionally, President Trump announced the executive order “Protecting the American People Against Invasion.”  In this executive order, the administration pronounced that “sensitive locations” such as schools and churches are no longer outside the purview of ICE enforcement actions.  We do not think ICE will raid a lot of schools, because there are not a lot of undocumented employees in school buildings.  Nevertheless, schools should start thinking ahead about what to do if ICE does conduct raids in your community.  Do you have a lot of students who would not have an adult to pick them up from school if ICE raids one of your community’s employers?  Make a plan for what your protocol will be for those students.  Reach out to members of immigrant communities within your district and offer to connect them with resources for executing temporary guardianships for children who might be left without parents in the short term.  As a reminder, a student’s immigration status has no effect on the student’s ability or access to attend school, even if President Trump successfully revokes birthright citizenship.  The 1982 Supreme Court Decision of Plyler v. Doe requires schools to educate all students in their communities regardless of immigration status.  457 U.S. 202 (1982).  If you are interested in more information regarding this topic, a webinar recording hosted by the Center for Immigrant and Refugee Advancement is available here with password .gKqH@&4.  We want to thank CIRA for graciously agreeing to allow KSB to share this resource.

On January 30, President Trump issued the executive order “Ending Radical Indoctriniation in K-12 Schooling.”  Essentially, this order says federal funding will be cut to schools that teach “discriminatory equity ideology” (AKA critical race theory) and “gender ideology.”  It also reinstates Trump’s 1776 Commission to promote “patriotic education.”  We don’t believe many midwest schools are at risk under this order, but you should call your school attorney if you are worried.  However, you should be ready to assure any concerned member of the public that your district is complying with this order.      

Schools should also be aware that President Trump issued an executive order disbanding resources and guidance related to diversity, equity, inclusion (DEI).  In the executive order “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” the Department of Labor was ordered to cease promoting diversity, enforcing affirmative action, and encouraging federal contractors to engage in preferential treatment based on consideration of race, color, sex, sexual preference, religion, or national origin.  Every federal contractor for a grant award must now include a term certifying the contractor will not operate any programs related to DEI.  We’ll likely be following up on this during policy updating season to determine if it will affect any federal procurement policy requirements.

If political fodder brings you joy, you can also read the list of executive orders President Trump rescinded here.  In line with President Trump’s campaign platform, the Office of Civil Rights recently announced its dismissal of eleven complaints related to “book bans.”  As of January 24, 2025, OCR has “rescinded all department guidance issued under the theory that a school district’s removal of age-inappropriate books from its libraries may violate civil rights laws.”  Keep in mind there are court cases out there that make this analysis more complicated than a “do what you think best” approach.  There are First Amendment and other implications, but we feel most boards have already wrestled with it by adopting some kind of policy or process for review of library materials.

We know that it seems like there are a lot of edicts being issued every day, but the fundamental work of teaching students and serving your school communities remains unchanged.  We will monitor developments and let you know when you need to take some action.  Resist the urge to let agitated news reports (from any part of the political spectrum) prompt your district to take precipitous action.  Please reach out to us at ksb@ksbschoollaw.com or 402-804-8000 or your school’s attorney if you have any questions about these executive orders and their impact on schools.

Yay! It’s a PPACA Reporting Update?

Administrators--if your rockstar business official has given you the luxury of handling all of the PPACA/Obamacare reporting on your behalf, please forward this on to them!

Two new pieces of federal legislation have been signed into law. Oftentimes, the words “new,” “federal,” and  “legislation” can cause a bit of heartburn. Thankfully, no antacid is needed today because these pieces of legislation are intended to decrease the burden of Affordable Care Act reporting.  (Insert a chorus of business managers rejoicing here!) 

Since the inception of PPACA reporting, all “applicable large employers” have had to provide a copy of the applicable 1095 forms to all full-time employees and to the IRS. The Paperwork Burden Reduction Act (H.R. 3797), passed recently, now provides some flexibility in terms of providing a copy of the applicable 1095 forms to employees. 

If an employer follows the requirements of this new law, the employer is no longer required to provide employees with a copy of the form(s). Instead, an employer must provide a “clear, conspicuous, and accessible notice” that employees can request a copy of their form. The IRS is in charge of releasing guidance on how to fulfill this notice requirement.  Unfortunately, they haven’t done that yet. 

If the IRS uses “notice” rules for this new reporting option that are similar to other PPACA notice rules the IRS has used, it may look something like this: 

• “The employer must provide clear and conspicuous notice, in a location on its website that is reasonably accessible to all individuals, stating that individuals may receive a copy of their statement upon request.”

• “The notice must include an email address, a physical address to which a request for a statement may be sent, and a telephone number that individuals may use to contact the employer with any questions.”

• “The employer must post the notice on its website by March 3, 2025, and retain the notice in the same location on its website through October 15, 2025.”

The new law is effective “to statements with respect to returns for calendar years after 2023,” meaning you could take advantage of it for your 2024 PPACA reporting. If you would like to do so, following the IRS’s notice posting rules outlined above may be your best bet given that the IRS has not yet put out guidance on the new law.  So, it’s a bit aggressive but may be worth it if you dread sending out all those 1095 forms to your employees.  However, that notice may be subject to change based on what the IRS eventually decides regarding this provision. We will keep you updated on the release of that guidance. 

If you opt to go this route, once an employee requests their 1095 form, you must provide a copy within 30 days or, if later, by January 31.  Don’t forget that the new law did not change filing requirements with the IRS, so all applicable large employers must still file their 1094 and all 1095 forms with the IRS.

We’ve heard from a few of you who have already sent 1095 forms to their employees.  That’s great!  Even though this new flexibility exists, there is no requirement that you take advantage of it.  You can always choose to do it next year even if you continue sending the forms to employees this year, as you have in the past.   

The second piece of legislation, the Employer Reporting Improvement Act (H.R. 3801), amends various sections of the Internal Revenue Code. One amendment to be aware of is that employers can now report an individual's full name and date of birth on 1095-B forms and Part III of 1095-C forms if that individual’s taxpayer identification number (TIN) is missing. Additional amendments include the provision of consent for electronic delivery of 1095-B and 1095-C forms, which is indefinite until revoked, meaning forms can be provided to individuals electronically year after year without having to obtain new consent annually.  The employee consent for electronic delivery of these PPACA forms can be a bit clunky, so if you need a refresher you should contact your school attorney or tax professional.

Even better, for districts that have received an IRS Letter 226J assessing penalties under the Affordable Care Act, we now have 90 days to respond to the letter instead of 30 days. This new deadline applies to assessments and penalties proposed in taxable years after December 23, 2024. (Reminder, if you get a 226J letter, call us ASAP to help you.) Lastly, there is now a six year statute of limitations for the IRS’s assessment of ACA penalties beginning with returns filed in 2025 and beyond.

As we wait for IRS guidance to clarify the notice requirements for this act, please do not hesitate to contact us with any questions at ksb@ksbschoollaw.com or (402) 804-8000. 

P.S. We are expecting the incoming Trump Administration to begin issuing Executive Orders right away today. We are tracking the executive orders and will put out another blog post soon with any pertinent information educators and boards need to know!

The Title IX Saga Continues: Policy Updates Required After 2024 Regulations Vacated

In a pivotal decision, the U.S. District Court for the Eastern District of Kentucky vacated the 2024 Title IX regulations.  The case is State of Tennessee, et al. v. Cardona, Civil Action No. 2:24-cv-00072-DCR (E.D. Ky. Jan. 9, 2025). This ruling nullifies the 2024 regulations entirely, meaning in effect it has a nationwide application.  Typically when a court vacates regulations, it means you return to the previous regulations.  In this situation, that would mean returning to the 2020 Title IX framework.

The 2024 regulations attempted to expand Title IX protections to include sexual orientation and gender identity, redefine harassment standards, and introduce procedural changes. The court rejected these efforts, finding that the Department exceeded its statutory authority and violated the constitution while doing so. This ruling underscores the ongoing legal battles over Title IX’s scope and the proper process for regulatory changes.

What Does This Mean for Schools?

Schools must now revert to the 2020 Title IX framework, which requires immediate planning and action.

Policy Updates Are Essential

We know you do NOT want to hear this, but school districts are going to have to update their Title IX policies to align with the 2020 regulations at some point fairly soon. The court’s decision invalidates any adjustments made to comply with the now-vacated 2024 rules. KSB School Law has already begun drafting updated policies for our policy service subscribers. However, we recommend waiting until after President Trump’s inauguration to finalize changes, as we expect an executive order or other executive position may further alter or complicate the status of the Title IX litigation and regulations.

Prepare for More Litigation

Legal challenges to the 2020 regulations will likely resurface, alongside ongoing cases involving the rights of transgender students. These lawsuits will continue to shape the Title IX landscape, requiring schools to remain vigilant and flexible.

Plan for Additional Training

Administrators should plan for additional Title IX training during the second semester of the 2024-25 school year. Everyone involved in the Title IX process—investigators, decision-makers, and appellate decision-makers—will need updated training to ensure compliance with the reimplemented 2020 regulations and prepare for any new guidance.  Anyone not previously trained on the 2020 regulations will need training if you plan to have them serve in your Title IX team KSB will offer new, streamlined training sessions on our portal, and we promise these will be shorter than the lengthy sessions required in 2020 (though we all know you’ll miss our Hamilton references)!

New Complaints

If you get a new complaint of sexual harassment and the misconduct occurred after January 8, 2025, you should contact your school lawyer.  Until schools can get their 2020 regulation policies and processes in place, we’ll have to navigate inconsistency between the law post-ruling and your policies, procedures, forms, etc.

How KSB Can Help

We are finalizing updated Title IX policy templates and will release them to policy service subscribers after we evaluate any new information from the Trump Administration as they take office.

You should dust off your 2020 policies and forms and share those with administrative staff, so everyone has a refresher on those processes as we work toward updated policies to enact in the coming weeks.  You can contact KSB for assistance with updates, training, and legal guidance. If you have any questions, please don’t hesitate to reach out to us at ksb@ksbschoollaw.com or (402) 804-8000. 

Stepping into the New Year: New Board Member Reminders

The New Year is here, so introducing new board members is just around the corner. In preparation for those January board meetings, we are sending out our short list of frequently asked questions for your reference. 

What are the oath requirements for new board members?

Technically, there are no oath requirements. Section 11-101 of the Nebraska statutes contains an oath of office that “state, district, county, precinct, township, municipal, and especially appointed officers” must take.  However, the Nebraska Supreme Court has interpreted this provision in a way that makes it inapplicable to boards of education. Frans v. Young, 30 Neb. 360, 46 N.W. 528 (1890). Additionally, courts outside of Nebraska that have addressed statutory oath requirements have consistently found oath requirements to be unconstitutional.

What does this mean for you? If board members desire to take the oath, let them.  But, if board members object to taking the oath, don’t force them to do so.

What if I don’t have enough old board members to constitute a quorum to open the January board meeting?

Open the meeting with your new board members.  The new board members may sign their oaths before the meeting opens, or you may open the meeting and begin with swearing in the new board members.

Can the old board members wrap up the old business at the January meeting? 

No. Old board members cannot take any formal action because they automatically lose their authority to act on behalf of the school district when their terms expire, regardless of when their replacements are seated.  Terms expire the first Thursday after the first Tuesday in January, which for 2025 would mean board terms expire January 9.  At most, board members whose terms have expired may perform ceremonial acts.  

What do I need to know about the election of officers? 

Section 79-564 now requires that “[a]t the first meeting of each school board or board of education elected in a Class I, II, or III school district, and annually thereafter, the board shall elect from among its members a president and vice president. The board shall also elect a secretary who need not be a member of the board. If the secretary is a member of the board, an assistant secretary may be named and his or her duties and compensation set by the board.” 

In terms of how this vote has to happen, unlike roll call votes taken by the board, section 84-1413 allows you to elect officers by secret ballot as long as the “total number of votes for each candidate” is recorded in the minutes.  Practically speaking, a simple motion and second then allows the board to cast secret ballots, and then the number of votes for each candidate is recorded in the minutes.

In case of a tie, be aware that there is no statutory process for breaking that tie. We encourage you to review your policies to see if they include a method to break any officer election ties.  Boards that have adopted KSB’s Policy 2002 likely have approved one of the methods for breaking ties. 

Are there any specific designations the Board must make at the January meeting? 

There are two designations the board may consider making at the January meeting: (1) designating a bank, and (2) designating a law firm. 

A district must designate the district’s bank, capital stock financial institution, or qualifying mutual financial institution “from time to time . . . by formal resolution duly recorded.” Neb. Rev. Stat. § 77-2350.  “Time to time” does not necessarily mean annually, though we know many boards make this designation each January.  The designated bank or financial institution must be situated within the district’s boundaries.  If no such entity is located within the district’s boundaries, the board may designate any such institution within the state. This designation can be made at the January meeting, or the designation can be done in policy. 

There is no technical requirement that a board must designate legal counsel. However, it is common for a board to designate the law firms(s) that they will work with for the next calendar year. Even though not technically required, such a designation can help clarify a school’s authority to work with legal counsel under section 79-513. 

How do I get new board members up to speed with their responsibilities and obligations? 

Board member training is an important part of onboarding new board members, so we recommend you look into some formal training. KSB offers a board training video series and board retreats to assist in that process. 

We hope this information will help you prepare for your January meeting.  If you have any questions about your January meeting or board training, please don’t hesitate to contact us at ksb@ksbschoollaw.com or (402) 804-8000. 

New Year Reminders for School Boards and Administrators

It’s hard to believe that 2025 is here. In the hustle and bustle of this time of year, we thought it best to provide a few reminders for this January. 

School Board Elections

School board elections are required to “be held between the second Tuesday in April and the third Tuesday in June between the hours of seven a.m. and seven p.m. of the day of the election.” SDCL 13-7-10. The statute goes on to provide that the school board must “select the date of the election by resolution no later than the first regular meeting after January first of each year.” 

Make sure at the first regular meeting in January that election date gets established. Additionally, the 2025 School Board Election Calendar is a helpful starting point to begin to think about the election process for this coming year.  

Legislative Session

Nothing dampens the holiday spirit quite like thinking about a few hundred non-educators talking about all the problems with education.  With a minimal increase in state funding expected as well as new faces in committees, it is likely to be an eventful session (the last thing schools want to hear).  Whether it's vouchers, homeschool, cell phones, or libraries, we will be monitoring each and every bill that affects schools and will provide updates as they come. 

Tax Forms

While we’re dampening spirits, it is time to talk taxes. Please be aware that employee W-2s have to be delivered to employees by January 31, 2025. Those W-2s must be filed electronically with the IRS. Furthermore,1099s must be delivered to recipients by January 31, 2025.  Now is the time to make sure all your government login information works and that you remember your passwords. Nothing is more tragic than spending six hours on hold with the IRS attempting to retrieve your FIRE password.  

Districts also have reporting obligations under the Affordable Care Act, and those deadlines are approaching. KSB has a PPACA webinar, focused on 1094-C and 1095-C reporting, to assist school business officials if needed. Please email sara@ksbschoollaw.com for any questions regarding the webinar or those obligations. 

We hope this information will help you prepare for January. If you have any questions, please don’t hesitate to reach out to us at ksb@ksbschoollaw.com or (402) 804-8000. 

From “Likes” to Litigation

When it comes to social media, even our attorneys can’t agree. One of us thinks TikTok dances are harmless fun (we won’t name names, but they may have attempted the “Renegade” in the office - thank God Steve’s health insurance premiums are paid up), while another is convinced Snapchat is the downfall of society (you know that isn’t Shari!). Regardless of where you fall on the spectrum, there’s no denying that social media is changing the school landscape—and not always for the better.

Screen Time, Social Media and Mental Health

With social media dominating students' lives, school administrators must grapple with its profound impact on mental health, the rise of deepfakes, and the contentious issue of banning phones.  On December 3rd, we hosted a three-hour webinar that was a deep dive into these issues.  Among other things, we discussed the latest research on social media’s damaging effects on student mental health, a look at the emerging law on “deepfakes,” and practical strategies to mitigate risks for schools.  If you missed it, the recording of the webinar and all of the associated materials are available on the KSB portal.

Social Media Litigation

Our webinar also discussed how litigation against platforms like TikTok continues to highlight the dangers of addictive social media design. Internal documents reveal that features like infinite scroll and autoplay are intentionally built to foster compulsive use. For teens, addiction can take hold in as little as 35 minutes of scrolling. This creates a ripple effect of consequences, from disrupted sleep to poor academic performance.

Hundreds of districts have joined in a consolidated lawsuit seeking to recover damages that schools suffered as a result of students’ use and misuse of social media.  The theory is that since the developers designed these apps to be addictive, they should be held responsible for the harm caused by that addiction.  KSB has partnered with a California education law firm to help our clients who may want to join in this litigation.  If your district wants to learn more, sign up here for details. (Please be aware that the attorneys will be compensated by receiving a proportion of the ultimate award, if any.  If you sign up via KSB School Law, we may receive a portion of the lawyer’s share, but your recovery will not be reduced.  This may technically be a “solicitation” under the attorney ethical rules, and we want you to understand that you can work with any law firm if you want to join this litigation or not join it at all.)

Cell Phone Policies and Bans

If your district is considering revising its cell phone policy, implementing new limitations, or pursuing an outright ban, some new guidance may be helpful. Last week, the Office of Educational Technology released a “Playbook for Student Personal Device Policies.” The playbook encourages the following four-step process to guide the decision process: (1) build a team, (2) define your goals, (3) build a collective understanding, and (4) gather data and insights. The playbook provides strategies, case studies, and tools to help a district work through those four steps. Limiting student cell phone use or banning devices in schools can be a hot-button issue in some communities; if that sounds like your district, this playbook may be a helpful starting point.  

Parent Digital Citizenship Training On Demand

Finally, we believe that parental involvement is a missing component of these discussions.  KSB has developed a short (for lawyers) parent digital citizenship training course that can be purchased through the KSB portal. This resource is designed to help parents manage their children’s online presence and reinforce positive partnerships with schools regarding digital citizenship. It’s available for purchase by any KSB client, and if we’ve provided Digital Citizenship training at your school in person this year, it is available at a reduced rate.  Email shari@ksbschoollaw.com if you would like to know more. 

The Bottom Line

Social media is a bit like cafeteria spaghetti: messy, sometimes hard to swallow, but unavoidable. Whether you’re dealing with TikTok-addicted teens or deepfakes that make you question reality, schools are at the center of the digital storm. Stay informed, stay flexible, and maybe avoid taking legal advice from a trending meme. In the meantime, we’ll keep an eye on the lawsuits—so you can focus on making sure your students don’t reenact the latest TikTok challenge in the science lab.

FLSA Update 2.0: Same Song… Same Dance

Several days ago, a federal district court in Texas put the brakes on the 2024 FLSA rule from the Department of Labor.  For those that don’t remember, we blogged about that rule here.  If a Texas judge issuing a nationwide injunction against a DOL rule sounds familiar, seven years ago, a Texas court did practically the same thing.

The 2024 rule provided for the two-phased minimum salary increases regarding the executive, administrative, and professional exemptions. Before the 2024 rule, the minimum salary requirement was $684/week ($35,568 annually). The first increase of $844/week ($43,888 annually) went into effect on July 1, 2024, with the second increase to $1,128/week ($58,656 annually) due to go into effect on January 1, 2025. The Texas court ultimately found that the DOL exceeded its authority by increasing the salary floor to such a marked degree that the “duties test” was now just a salary test. 

What does all of this mean? The court’s order vacates the rule nationwide. Vacating the rule means that the increase that went into effect in July is also vacated; therefore, we have returned to the pre-2024 rule, where the salary threshold for these exemptions is $684 a week or $35,568 annually.  

The Department of Labor can theoretically appeal this decision, and that appeal could be filed before the Trump administration takes office. However, the Trump administration would be under no obligation to continue to push for the Biden administration increase. It seems unlikely that the Trump administration will defend the salary increase. If that prediction--much like our Husker predictions--turns out to be incorrect, we will provide an update. 

If you increased salaries for your FLSA-exempt staff in July and/or were planning on it in January, at least for now those rules are no longer in effect.  There’s no legal obligation to raise salaries to meet those new thresholds in order to remain exempt under the FLSA. Additionally, any salary bumps from July could be reduced in the future, and we leave to your good judgment the employee morale issues that could arise. Whatever you decide, please note it is not permissible to try to recover any increases that have been paid already before the rule got a Texas-sized boot. 

In our last FLSA blog post discussing the increase, we offered flowcharts for purchase. We will contact those who have purchased to provide an edited chart, but the good news is that those charts are still relevant in terms of the tests to apply to meet those exemptions minus the increased salary threshold denoted within.

Speaking of the upcoming change in administration, we’ve been thinking a lot about what to expect.  As more information emerges about cabinet picks and policy proposals or changes, we plan to share out what you should prepare for in the coming months.  That may be a blog post, webinar, or something in between.  Stay tuned, and  if you have any questions about the FLSA and the Texas injunction, feel free to give us a call at (402) 804-8000 or email us at ksb@ksbschoollaw.com.

2024 PPACA Reporting Workshop

KSB will host its annual PPACA 1094-C and 1095-C reporting workshop from 9:00 a.m. to 12:00 p.m. Central Time on Thursday, December 12, 2024. If you cannot attend live at that time, the zoom will be recorded, and all who register will have access to the recording and materials shortly after it is completed live.  CLICK HERE TO REGISTER

Where: The webinar will be conducted via Zoom, and all participants will be able to ask questions during and after the presentation.  All registrants will receive a copy of the slides, materials used in the webinar, and this year’s version of the instructions and forms, plus IRS documents establishing affordability, reporting deadlines, etc.

Cost: The cost will be $350 per school. 

What We'll Cover: If the words "1095-C" and "lines 14, 15, and 16" don't ring a bell, you're either new or have tried to forget it since last year. We'll start with a quick refresher and update on the legal and political discussion around PPACA.

As always, the bulk of the presentation will dig into the PPACA reporting requirements, forms, and deadlines.  We'll go through the forms (1094-C and 1095-C) line-by-line and explain the various coding options and data you’ll need to ensure your reporting is accurate.  Even if your software company runs these reports for you, you will have to know and understand the reporting obligations and double check the forms for accuracy. Remember, these forms are what the IRS uses to determine your compliance with PPACA (and assess penalties)!

Finally, we'll have plenty of time during and after the presentation to talk through how to report on common and unique employees and answer your questions. 

Prorate Like a Pro: FLSA Update

In April of 2024, the US Department of Labor announced that it is significantly increasing the minimum salary threshold that salaried employees must be paid to qualify as exempt from the FLSA.  Beginning January 1, 2025, for an exempt employee to remain exempt, the employee’s salary must be $1,128 per week, which is equivalent to $58,656 annually.  With the next salary increase for the FLSA approaching, now is the time to review employee salaries, duties, and possible FLSA exemptions. 

As part of their increase in the salary levels, the Department of Labor released a Frequently Asked Questions document regarding the exemptions. Question 33 specifically looks at how the salary level applies to employees at schools and states “exempt employees do not need to be paid for any workweek in which they perform no work.” 

Practically speaking, that means that an exempt employee who works only a certain number of months out of the year needs to receive the salary level only during those months worked. Furthermore, “employers may prorate over a full year the salary of an otherwise exempt employee who has a duty period of less than one year.” This situation can apply, for example, if an employee works on a 10-month basis but has payments spread over 12 months. As long as the standard salary level is met for the weeks the employee works, those payments prorated over 12 months can fall below the standard salary level. 

A few other reminders: 

• The teacher exemption from the salary requirements remains.  Therefore, teachers do not need to be paid the salary threshold minimums. 

• To qualify for an exemption, the employee must meet all requirements for either the executive, administrative, professional, or computer employee exemptions. We created a flowchart that outlines those specific requirements to consider.  If you are interested in purchasing the flowchart, please send an email to ksb@ksbschoollaw.com.   

• Some academic administrative employees whose primary duties relate to academic instruction or training can meet the salary basis by either (1) being paid the standard salary level; or (2) “at least equal to the entrance salary for teachers in the educational establishment by which the employee is employed.” 

If you have specific questions about an employee's exemption status, call us at (402) 804-8000 or email ksb@ksbschoollaw.com.