Total Articles: 49
Heads Up For Schools With TIAA CREF 403(b) Plan Documents
We try to alert our clients when we begin to see a trend developing. One trend our benefits attorneys have been addressing for private school clients is the fact that their third-party plan auditors have found that schools using 403(b) plan documents prepared by TIAA CREF do not (and cannot, as written) match their actual administration of plan eligibility.
Making The Grade: Ensure Your School is Following Best Hiring Practices
The holiday break is over. Classes are back in full swing. For most schools across the nation, this is the time to evaluate current staffing needs and begin the recruitment and hiring process for the upcoming school year. The ultimate goal when embarking on a mission to hire is always to find the best teacher or individual for the job.
The State of the Social-Media Mess in Public Schools
Teachers and social media. If you're in the business of writing news stories about poor judgment, this is the gift that just keeps giving. If, however, you're an educator, a school administrator, or a parent, this is a combination with potentially grave consequences. Here's yet another shocking example of a teacher who seemingly lost all perspective when she posted about her students on her Facebook page.
Education Update: "Dear Colleague . . . "
With that disarming salutation, a little over a year ago Vice President Joe Biden and Secretary of Education Arne Duncan announced new Department of Education mandates, issued under Title IX of the Education Amendments of 1972, to eliminate sexual assault on American campuses. Simply worded, but vastly complex as well as controversial in application, Title IX prohibits sex discrimination in public and private K-12 schools and universities that receive any federal financial assistance.
Has Your School Had a Check Up Recently?
Now that school has started, it is time to ensure that your house is in order for the school year. Each year we highlight those area in which we see trends developing or issues with which schools consistently have challenges. It is far better to address these issues preventively rather than waiting for a claim or problem to occur.
Students, Teachers, and Social Media
Delaware was the first State to legislate the privacy of students' social-media passwords. California's legislature was the first and, so far, the only State to pass a bill that protects students' and employees' social-networking passwords. That bill is awaiting the signature of California's Governor. For more information about the California law, check out this great post at Seyfarth Shaw's Trading Secrets blog in which the authors were nice enough to mention my previous post on the topic. (Even if they did call me by [gasp] my legal name, Margaret. It's not their fault my parents couldn't pick just one name and stick with it.)
Supreme Court Decision of Interest for Religious Schools
In a recent unanimous decision, the United States Supreme Court held that the First Amendment protects religious organizations', including religious schools', employment decisions regarding ministers, from the anti-discrimination laws. The Courts of Appeals have long recognized the ministerial exception, a First Amendment doctrine that bars most employment-related lawsuits brought against religious organizations by employees that perform religious functions. On Jan. 11, 2012, in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission et al., the Supreme Court acknowledged the ministerial exception, finding that it is based in the Establishment and Free Exercise Clauses of the First Amendment (the "Religion Clauses").
Education Industry: Avoiding Unemployment Claims For Summer Break
In a recent denial of unemployment for a substitute teacher, a Florida court provided guidance to schools hoping to avoid unemployment claims for summer breaks. The case involved an unemployment claim by a substitute teacher following her submission of a renewal application to the school that stated: "I understand that returning the Renewal Application will ensure that I have a reasonable assurance of re-employment as a substitute teacher for the school term applied for."
Education Industry: Compensation and Benefits Checkup
Schools are beginning to realize that the laws applicable to their operations are much more complicated than the Heads, Boards, and Business Managers thought. From 403(b) issues, to health insurance deviations, to wage-hour classifications, to stipends for coaching activities, each of these decisions has a specific impact on the school that could create large liability.
U.S. Department of Education Offers Guidance on ADA Amendments
The Department of Education issued a Dear Colleague letter and Frequently Asked Questions document providing guidance for elementary and secondary schools on the requirements of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504). The guidance addresses changes to the ADA and Section 504 made by the ADA Amendments Act of 2008 (the Amendments Act), which became effective on
January 1, 2009.
DCFS: College and University Staff Must Report Suspected Child Abuse
In the wake of the Penn State child abuse allegations, a spokesperson from the Illinois Department of Children and Family Services (DCFS) has stated that DCFS interprets the State’s Abused and Neglected Child Reporting Act, 325 ILCS 5/1 et seq., (ANCRA) to require college and university employees to report suspected child abuse. This development was reported in the Chicago Tribune on November 11, 2011, and it may require prompt action by post-secondary institutions operating within the State of Illinois.
Wage & Hour Law On Campus - Your Webinar Questions Answered
Last Wednesday, my partner Ed Druck and I hosted a webinar on wage and hour law for colleges and universities. (For those who missed it, you can check out the recording.) We had a great turnout and a wonderfully responsive audience. We were thrilled to receive nearly 50 questions, but could only get to a handful of them during the webinar. Over the next several weeks, we will try to answer a number of them here on the blog. If we don't get to yours, please feel free to contact me or Ed.
Is The "Post" Man Coming To Your School?
Imagine that on November 14, 2011, as the Director of the St. James Interdenominational Faith Academy, one of the school's teachers comes into your office and informs you that unless the school immediately posts the National Labor Relations Board notice advising employees of their rights, including the right to form a union and bargain over their wages and other terms of employment, he will file a complaint with the NLRB forcing you to post it and also seek to have the NLRB impose the full penalties allowed by law. You have never heard of such a notice. Is it really required? The school has no union and isn't the NLRB only concerned with unions? Aren't religious schools exempt from such laws? What do you do? Where do you begin?
Education Department's Clarification of New Incentive Compensation Payments Regulations Raises Questions
The Department of Education has released general guidance in a “Dear Colleague†letter to clarify issues arising under its new Title IV Program Integrity Regulations. The regulations, scheduled to take effect on July 1, 2011, extend the ban on incentive compensation to athletic personnel who engage in recruiting activities for colleges and universities. While the clarification seems to answer some questions, it raises others.
Oh, The Tangled Web: Avoiding Liability for Employees' Off-Campus Activities With School Students
You've just received a phone call advising that one of the school's employees is being sued for engaging in inappropriate activity with students attending the birthday party for the employee's child. The parent tells you that he is also considering bringing a claim against the school. This type of situation is occurring with more frequency today. Unfortunately, many schools have not yet taken action to assess the potential school liability for an employee's off-duty behavior.
Education Industry: The Art Of Investigation
One of the most challenging, but increasingly common, tasks a school will face is conducting an investigation into misconduct by a student, employee – or possibly even a parent. Nearly every instance of alleged wrongdoing a school learns about mandates some type of investigation. For example, schools should conduct investigations when a student complains of teacher misconduct, an employee complains of co-worker harassment, or the school suspects a student has cheated on a test.
Teachers: To Be Or Not To Be (Under Contract)
The vast majority of U.S. businesses employ workers on an "at-will" basis. The most significant exception to this general rule? Independent schools.
The New School Year: Three Challenges Schools Will Face
The business of running a school is much more difficult today than it was ten years ago. Independent schools have been forced to recognize that they are part of the corporate world with all of the resulting legal liability. Parents and employees are quick to make demands to enforce their actual or perceived legal rights and the media loves the negative attention. So, while it is still early in the school year, this is the ideal time to understand the challenges so that you can assess the areas where your school, its board or administration, may be weak and take steps now to begin to shore up the school's position and defenses.
Education Update: Today's John Hancock.
As the business of running a school becomes more time consuming and legalistic, many schools are assessing whether to consider going paperless by using electronic signatures in the application, enrollment, and other processes. To help schools understand the issues, this article summarizes the law in this area and some best practice guidelines.
Revised ADA Regulations Cover Service Animals and Auxiliary Aids
Attorney General Eric Holder signed revised regulations that implement Title II of the Americans with Disabilities Act (ADA), which applies to school districts. The major changes include new provisions on service animals and updated provisions regarding auxiliary aids and services
Education: Requiring Use of Electronic Book Readers May Violate ADA/504.
On June 29, 2010, the U.S. Departments of Justice and Education issued a joint letter to college and university presidents nationwide expressing concern that their institutions might be requiring students to use electronic book readers (e.g., Kindle, iPad) that are inaccessible to those with visual impairments
Education Industry: Willkommen, Bienvenue, Welcome.
In today's global economy, more and more educational institutions are seeking to create a culturally diverse educational experience at the elementary, secondary and post-secondary levels through foreign student enrollment and through accessing the international community for faculty and professional staff. Attracting top notch students, teachers and researchers from other countries not only adds to the bottom line (especially in these tougher economic times) but opens doors to an international reputation and recognition.
Are Your Students "Sexting"? Are Your teachers?
"Sexting" is the act of sending sexually-explicit images via cell phones, emails, iPods, pagers or social-networking sites. Unfortunately, the "sexting" phenomenon has exploded across the nation in the last decade and news reports of students engaged in sexting scandals are becoming all too common. Criminal prosecution of teenagers sending "sexts," lawsuits instituted against schools and school officials due to their response to incidents of sexting, and even reports of teenagers allegedly committing suicide after sexting incidents spiraled out of control have received nationwide media coverage.
Social Networking In Schools.
As more students, parents, teachers and administrators tap into social networking sites such as Facebook, MySpace, Twitter and YouTube for educational, school communication, admissions marketing and other purposes, the lines between educational and personal networking are becoming more and more blurred.
3d Cir. Upholds Discipline of Student Based on Out-Of-School Conduct.
J.S. v. Blue Mountain School District is a First Amendment claim in the school-law context. The case was filed by J.S., a student at a middle school in Pennsylvania’s Blue Mountain School District. The student claimed that she had been suspended for 10 days in violation of her right to free speech. The suspension was in response to a fake MySpace profile the student had created.
Education Industry: Legal Considerations For Tough Economic Times.
Even though there are signs that the economy is recovering, many schools are still finding that they are overstaffed in light of their budget needs. Although most private schools issue contracts for new and returning teachers between February and April, they may not know the full extent of their re-enrollment commitments until later in the spring. Worse yet, parents who do commit in the spring may change their mind if the parents' financial situation changes after signing the re-enrollment contract. Schools then find that they are faced with a need for a reduction in force.
Should Your School's Dress Code Address Transgender Students?
Teenagers who push the limits of school dress codes are nothing new. Experimenting with clothing, hairstyles, and even make-up is a way for teens to explore their identities and test the limits of socially-acceptable behavior. Although school officials might find dress code enforcement challenging, dress code violations in the past tended to be fairly routine and usually revolved around prohibiting overtly sexually suggestive clothing or outward signs of gang affiliation.
FTC's Enforcement of the Red Flags Rule Delayed to June 1, 2010.
On October 29, 2009, we alerted schools to the looming November 1, 2009 deadline of the Federal Trade Commission's Red Flags Rule. This rule was implemented by the Federal Trade Commission (FTC) and mandates that financial institutions and creditors with covered accounts develop and implement a written program that detects, prevents, and mitigates identity theft.
Eductation Industry: Raising A Red Flag.
Many schools have been contacted by vendors advising that the school must set up an identity theft program to comply with the new federal regulations called the "Red Flags Rule." This rule was implemented by the Federal Trade Commission (FTC) and mandates that financial institutions and creditors with covered accounts develop and implement a written program that detects, prevents, and mitigates identity theft.
Education Update: "ID, Please" – School Security In The 21st Century.
Having just observed the eighth anniversary of the September 11 attacks, it's worth considering how much we have become accustomed to enhanced security measures in our day-to-day lives. Anyone who has traveled through a U.S. airport, shown up for jury duty at the local courthouse, or even attended a ball game over the past few years, knows that things aren't what they used to be. We've all become used to increased security, and we're usually willing to go along with the inconveniences and invasions of privacy, especially if it's clear the enhanced measures actually decrease the chances of an incident.
Court Hands School A Victory On Issue Of Student Sexuality.
Issues of student sexuality have been emerging in private schools for the last five years or so. Questions abound regarding student sexual-orientation rights in religious and non-religious schools, regarding the rights of students to create gay and lesbian school clubs, and regarding the propriety of administrators' disclosure of student same-sex relationships to parents. In some situations, private schools have been sued for taking strong action where the administration determined that students who are engaging in same-sex relationships have violated the school's religious principles.
Education Update: New Law, New Recordkeeping Headaches
Under recently-enacted legislation, educational institutions may find themselves defending discrimination claims arising from tenure or other types of employment decisions made long ago.
Education Update: Student Golfer's Lawsuit Lands In The Rough.
A school's right to control student membership in extracurricular activities was upheld recently as a North Carolina judge dismissed a breach-of-contract lawsuit brought by a collegiate golfer expelled from the school's team. The story received national media attention because it involved a prestigious school (Duke University), the son of a famous politician (Andrew Giuliani, son of former NYC Mayor and Presidential candidate Rudy Giuliani), and a set of facts and allegations more befitting a soap opera than a college campus. Here's a summary:
Pre-Injury Releases Now in Question in Florida.
A recent Florida Supreme Court decision leaves more questions than answers when it comes to the enforceability of pre-injury releases executed by parents on behalf of a minor child who participates in school-sponsored activities. In the decision released on December 11, 2008, the Supreme Court held that a parent does not have the authority to execute a pre-injury release on behalf of a minor child when the release involves participation in a commercial activity. But the Supreme Court left open the possibility that, despite differing policy considerations, its reasoning may apply to pre-injury releases involving school or community activities.
Tough Economic Times Mean Tough Decisions for Schools.
As the economic crisis in our country continues, schools are trying to make predictions and hard decisions regarding staffing. Many schools are trying to determine whether and where they should cut staffing and programs based on projections for enrollment next year. Although most private schools issue contracts for returning teachers between February and April, they may not know the full extent of their re-enrollment commitments until later in the spring. Worse yet, parents who do commit in the spring may change their mind if the parent's financial situation changes after signing the re-enrollment contract.
Education Labor Letter: School Found Liable in Off-Duty Injury of Student.
"Be friendly, but do not be their friend," is an old adage often used to remind parents and educators of their responsibilities when dealing with students. Today's teachers and school administrators face the daunting task of trying to relate to high school students while maintaining a position of authority. The lines are often blurred and easily crossed with damaging, and in one instance deadly, results.
Education Labor Letter: Engaging Non-Teaching Staff Members.
Schools generally do a wonderful job of evaluating students and teachers on a regular basis. Surprisingly, very few schools have formal processes for evaluating non-teaching staff. Yet despite an absence of formal evaluations, every school has their "stars" – non-teaching staff members who are motivated without any prodding from their administrator. They go the extra mile and figure out what must be done and do it without being told. They anticipate problems from teachers and parents and solve them with a smile on their face.
Education Labor Letter: Foreign Students: What Are Your School's Rights and Obligations?
As the Admissions Director of a private elementary or secondary school, you receive a call that one of your students was stopped by U.S. Immigration at the border and will not be allowed to return to school because he does not have a "student visa." How did this happen? And what are the obligations of a private school regarding the immigration status of foreign students who are enrolled or want to attend your school?
Top Five Mistakes Made by Independent Schools.
A new school year approaches and the momentum to "start fresh" is at its annual high. Take advantage of this momentum and spend a few minutes reviewing your school's employment procedures, practices and policies. To help you, we have compiled a "Top Five" list of the most common mistakes made by independent schools....
Education Labor Letter: New Requirements for 403(b) Plans.
403(b) plans are tax-qualified retirement plans maintained only by nonprofit organizations and public school systems. Plan assets are invested in annuity contracts or custodial accounts instead of a tax-exempt trust, like 401(k) plan assets. Historically, 403(b) plans were subject to very little regulation by the IRS and DOL.
Education Labor Letter: Trans(cending) Gender in Schools.
A ninth grader at your school asks to exempted from the school's dress and appearance requirements based on her gender identity. Another student advises that his doctor recommends that he no longer use the boy's bathroom due to intimidation that the student is experiencing in the restroom by some of the boys that view him as too feminine.
Education Labor Letter: Why Your School Needs an Employee Handbook.
No matter the school size, any school benefits from an up-to-date, lawful employee handbook. Comparatively, the larger the school, the larger the benefits to the school.
Education Labor Letter: When Can (and Should) a School Require a Student to Undergo a Medical Evaluation?
A ninth grade student is sitting in your office because he said "wouldn't it be nice if you died tomorrow" to another student. And you learned that days prior to the comment, the same student had punched the student to whom he made the comment. Your first inclination is to require the student to submit to a psychiatric evaluation. But should you do so? Teachers and school administration frequently take a holistic view of dealing with students. Such an approach at times may be inconsistent with the Americans with Disabilities Act and Section 504 of the Rehabilitation Act (for schools receiving federal funding).
Education Labor Letter: Learning Disabled – But Compared To Whom?
Is a failing medical student "disabled" under the Americans with Disabilities Act (ADA) merely because she is no longer a scholastic success at the graduate school level? The U.S. Court of Appeals for the District of Columbia Circuit recently answered "no."
Education Labor Letter: Private Entity Found Not Liable Under IDEA.
The U.S. Courts of Appeals for the 2nd and 6th Circuits, have each held that a private school is not liable under the federal Individuals with Disabilities Education Act (IDEA) to handicapped students or their parents who allege that they are not receiving an appropriate specialized education program. But, what about a private entity that actually contracts with the state to provide an "individualized education program" and provides the education program in the public classroom building?
Education Labor Letter: Service Animals-in-Training: Must You Allow Non-Disabled Employees To Train Service Animals on Your Campus?
Your school librarian tells you that next month, she will begin bringing to school a service dog that she is currently training and tells you that the dog is a great, unbiased listener for slower reading children. Before you automatically reject this fairly unique concept, read on.
Supreme Court’s "IDEA" Boon To Private Schools.
The U.S. Supreme Court recently resolved the issue of whether the Individuals with Disabilities Education Improvement Act (IDEA) provides for private school tuition reimbursement for students that have not received special education from a public agency. On October 10, 2007, the Court, in a four-four split, ruled in favor of respondent Tom F. and held that the IDEA does provide for private school tuition reimbursement for students who have not attempted a public school education.
Combating School Violence.
From Columbine to Virginia Tech to the "Jena 6," media coverage of violence in our schools spotlights what appears to be a growing problem. With another recent school shooting again making headlines, we may not realize that serious violent crimes – rape, sexual assault, robbery and aggravated assault – occurring in our schools are actually on the decline.
New IRS Rule Won't Affect Teacher Salaries In Upcoming School Year.
On August 7 the Internal Revenue Service reassured teachers and other school employees that new deferred-compensation rules under Section 409A (discussed in the July/August 2007 issue of the Fisher & Phillips' Education Labor Letter entitled "Are Teachers' Salaries Deferred Compensation?") will not affect the way their pay is taxed during the upcoming school year.