Connecticut Education Law Blog

Connecticut Education Law Blog

Circuit Split Over FAPE Standard Poised for Resolution

Posted in Individuals with Disabilities Education Act (IDEA)

Starting on January 11, the Supreme Court will hear oral arguments for Endrew F. v. Douglas County School District, an appeal from the Tenth Circuit in which the Court is tasked with determining whether school districts must provide students with disabilities an “educational benefit” that is “more than de minimis” in order to satisfy the requirement of a free appropriate public education (FAPE) pursuant to the Individuals with Disabilities Education Act (IDEA).  In doing so, the Supreme Court may resolve an ongoing split among the United States Courts of Appeals, which vary significantly with respect to the standard applied when assessing whether FAPE has been provided to a student with special education needs.

Endrew F. involves a fifth-grade student with Autism, Attention Deficit Hyperactive Disorder (ADHD), and significant behavioral issues.  The student attended public elementary school with an Individualized Educational Program (IEP) in place through the fourth grade.  The parents rejected the school district’s proposed IEP for the fifth grade, opting instead for unilateral placement at a private school for children with Autism.  The parents alleged that the district failed to provide adequate progress reports and failed to develop and implement an appropriate plan to address the student’s behavioral needs.  The administrative law judge (ALJ) ruled in favor of the school district, and both appeals courts affirmed.

In affirming the lower court decision, the Tenth Circuit examined whether the student was offered FAPE by applying the “some educational benefit” standard previously adopted in that Circuit, defined there as something more than a “de minimis” educational benefit.  While the student’s proposed fifth grade IEP had not yet been implemented, the Tenth Circuit cited the student’s educational progress based on his prior IEPs as evidence that the fifth grade IEP was reasonably designed to afford “some” educational benefit.  The proposed IEP addressed all of the student’s disabilities and behavioral concerns, and was thus sufficient to provide a FAPE.

The “some educational benefit” standard adopted by the Tenth Circuit is also used, in some form, by a majority of the other circuit courts of appeals.  The Second, Third and Sixth Courts of Appeals, however, have adopted the more stringent “meaningful educational benefit” standard.  This standard, based on other language in Rowley, requires school districts to develop IEPs designed to afford an educational benefit which is measured for appropriateness in relation to the child’s potential.  While there is considerable dispute regarding the true difference between the competing standards, it is generally accepted that the higher “meaningful” benefit standard requires something beyond a “more than de minimis” educational benefit.

The Second Circuit has maintained the “meaningful educational benefit” standard since its 1998 ruling in Walczak v. Florida Union Free Sch. Dist.  In that case, the parents of a special education student with significant academic, behavioral, and social limitations sought reimbursement by the school district for unilateral placement at a private residential program, which they alleged was necessary for the student to make appropriate progress in the aforementioned areas.  While the Second Circuit acknowledged that an appropriate education is one that is “likely to produce progress,” as opposed to only “trivial advancement,” it ultimately denied the parents’ request for reimbursement.  The student had made consistent, albeit slow, academic, behavioral and social progress at her prior day placement within the district.  The mere fact that residential placement offered more opportunities for social interactions was not enough to render continued day placement inadequate for a FAPE.  Indeed, while the Second Circuit adopted the higher FAPE standard, it echoed the Supreme Court’s sentiment in Rowley that the IDEA does not require states to develop IEPs that “maximize the potential of handicapped children.”

Shortly after the appeal of Endrew F. to the Supreme Court, the Solicitor General, on behalf of the Obama administration, submitted an amicus curiae brief advocating for the higher “meaningful educational benefit” standard.  The Solicitor General submitted that Congress would not have instructed states to develop IEPs requiring measurable annual progress if all that was truly required was a “non-trivial” benefit.  Finally, the Solicitor General highlighted the Rowley court’s emphasis on “meaningful” (versus non-trivial) access to education, and the overall remedial purpose of the IDEA in advocating for the higher FAPE standard.  While we in the Second Circuit have been accustomed to the “meaningful educational benefit” standard, it remains to be seen how the Supreme Court will interpret its prior decision in the Rowley case, and whether the uniform standard for FAPE under IDEA will be “some” educational benefit, “meaningful” educational benefit, or a third possibility not yet articulated.  For practitioners in this field, further articulation of the Rowley standard can only be helpful and provide clarity to complex decision-making.

Attorneys at Berchem, Moses & Devlin, P.C. are available to consult to school districts regarding special education matters in the State of Connecticut.  For further information, please contact Attorney Michelle Laubin at

Changes to Student Discipline Laws Usher in New School Board Duties to Expelled Students

Posted in Regular Education

In 2016, the Connecticut General Assembly passed Public Act 16-147, which ushered in a series of changes regarding public school student discipline and expulsions.  Among its many notable provisions, the new law created changes to a Board of Education’s duty to offer an alternative educational opportunity to expelled students.

At present, Connecticut law provides that school districts must offer expelled students an alternative educational program in certain circumstances – namely, if the student is under the age of sixteen, or for some students between the ages of sixteen and eighteen if certain conditions are met.  (See Connecticut General Statute sec. 10-233d, subd. (d).)  Despite this mandate, the existing statute does not define what constitutes an alternative educational opportunity.  In the absence of clear guidance, school officials have often looked to Connecticut regulations governing homebound instruction in order to develop an appropriate alternative educational opportunity.

Public Act 16-147 will amend General Statute 10-233d, and consequently, will change prior practices by offering clearer guidance to schools regarding the provision of an alternative educational opportunity to expelled students.   Under the new law, which will go into effect on August 15, 2017, students under the age of sixteen and, in most circumstances, students between the ages of sixteen and eighteen who are expelled for the first time must be offered an alternative educational opportunity.

Alternative Educational Opportunity Re-defined

The new law indicates that an alternative educational opportunity must be “equivalent to alternative education, as defined by [Connecticut General Statute] section 10-74j, with an individualized learning plan.”

General Statute section 10-74j provides that an alternative education is a school or program maintained and operated by a local or regional board of education, which must also comply with the Connecticut General Statutes 10-15 and 10-16, as well as federal and state laws governing public schools.  General Statutes 10-15 and 10-16 require that schools must provide a minimum of 180 school days per year and a minimum of 900 hours of school work for full-day kindergarten students and grades one through twelve.  In practice, this may require schools to offer alternative educational opportunities constituting a full-school year of five-hour school days for eligible expelled students.  In addition, the new law will require that an alternative educational opportunity must include the provision of an individualized learning plan.  Unfortunately, the term “individualized learning plan” is not defined.

Implications for the Future

In light of the above-described changes, school officials will have increased responsibilities when providing expelled students with alternative educational opportunities.  These changes will likely require Boards of Education to significantly increase the amount of resources, in terms of both staff time and financial allotments, needed to provide compliant alternative educational programs.

Nonetheless, substantial uncertainly remains regarding the exact duties the new law will create.  At present, interested stakeholders are awaiting updated guidelines from the State Board of Education, which should shed light on critical questions such as “what constitutes an individualized learning plan?”  While awaiting additional guidance, however, school officials should prepare for the substantial changes to come.  Education Law Attorneys at Berchem, Moses & Devlin, P.C. will monitor the status of this statute and provide analysis of any new guidance when it is available.

The education team at Berchem, Moses & Devlin, P.C. offers representation and guidance to school district clients across the State of Connecticut.  For inquiries regarding Public Act 16-147 and more, visit, or email us at

The United States Supreme Court Grants Certiorari in 4th Circuit Transgender Student Case

Posted in Student Matters, Transgender issues

On Friday, October 28, 2016, the United States Supreme Court announced that it will hear an appeal from a ruling by the 4th Circuit in the controversial case of G.G. v. Gloucester County School Board, 116 LRP 15374 (4th Cir. 04/19/16).  In Gloucester, a transgender male high school student sought a preliminary injunction to allow his use of a school’s restroom consistent with his male gender identity (G.G. v. Gloucester County Sch. Bd., No. 4:15-cv-54 (E.D. Va. June 29, 2015). The  student alleges that his local Virginia school district denied him equal treatment and subjected him to discrimination based on sex in violation of the Title IX by passing a board policy that prohibited his continued use of the boys’ restroom for not being “biologically male.”  The highest court will consider only two issues on appeal: 1) whether deference should extend to an unpublished letter by the U.S. Department of Education, Office of Civil Rights (OCR) , which does not carry the weight of law and was adopted in the context of the dispute at hand, indicating that Title IX applies to gender identity, and 2) with or without deference to the agency, should the Department’s specific interpretation of Title IX be given effect.

In  G.G. v. Gloucester County Sch. Bd., No. 4:15-cv-54 (E.D. Va. June 29, 2015), a three-member panel of the District Court found that the student failed to state a claim under Title IX and also denied the preliminary injunction. The District Court did not agree that transgender students must be treated in accordance with their gender identity. The United States Department of Justice supported the student’s preliminary injunction arguing that discrimination based on a person’s gender identity, a person’s transgender status, or a person’s nonconformity with sex stereotypes constitutes discrimination based on sex.

On April 19, 2016, the U.S. Court of Appeals for the 4th Circuit reversed and remanded the lower court’s ruling in the Gloucester case. The 4th Circuit concluded  that the District Court erred in two ways: 1) applying the wrong standard for preliminary injunctions; and 2) by failing to give deference to the Department of Education’s interpretation of its own Title IX regulations as set out in OCR’s Letter to Prince. In May 2016, the 4th Circuit stayed the ruling in response to an emergency petition filed by the school board. Until the United State Supreme Court’s decision, the school board’s policy requiring bathroom use by biological sex remains in effect.

Legal challenges similar to the one at the heart of Gloucester case are occurring nationwide.  These challenges are being brought by states, civil rights advocacy groups, concerned parents and school districts that either support or oppose the use of public facilities such as school bathroom and locker rooms by transgender students based upon their gender identity.  The death of Justice Antonin Scalia in early 2016 created a vacancy on the United States Supreme Court that has yet to be filled. An appointment of a Justice to the Court is expected sometime after the November 2016 Presidential election, but depending upon the outcome of the election, the vacancy may not be filled until 2017. Upon appointment of a Justice, it is expected that the Court will hear and decide the Gloucester case with a decision predicted for either late spring or early summer. Stay tuned as the Supreme Court’s ruling promises to have far reaching implications for transgender individuals, school districts, and our nation.

CCEJF v. Rell: Where Do We Stand?

Posted in Constitutional Issues

On September 7, 2016, Superior Court Judge Thomas Moukawsher issued a 255-page Memorandum of Decision in Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, a case that has been pending for more than 10 years. The decision held that the State provides a constitutionally acceptable amount of funding for education, but the distribution of the funding is irrational and contributes to disparate outcomes for rich and poor districts in Connecticut.

The Court ordered the State to submit proposed reforms within 180 days on:

  • The relationship between the state and local government in education;
  • An educational aid formula;
  • A definition of elementary and secondary education;
  • Standards for hiring, firing, evaluating, and paying education professionals; and
  • Funding, identification, and educational services standards for special education.

Each reflects an area in which the Court held the State’s educational policies were unconstitutional because they were not “rationally, substantially, and verifiably” linked to teaching children and thus did not pass muster under the State Constitution. Judge Moukawsher’s decision effectively orders an overhaul to Connecticut’s education system affecting matters from labor relations with teachers to what it means to earn a “credit” toward graduation.

The State has appealed the ruling to the Connecticut Supreme Court, which has agreed to hear the case. The State contends that the standard that educational policies must be “rationally, substantially, and verifiably” linked to teaching children is “entirely made up and has the effect of giving the judiciary broad control over educational policy.” The State also contends that it cannot present the plans ordered by the Court because only the legislature has the authority to address such issues and no executive-branch entity has the authority to speak for the legislature.

The Connecticut Supreme Court agreed to the State’s request for a stay of Judge Moukawsher’s order pending the appeal. This means that the 180-day requirement for proposed reforms is held in abeyance until the Connecticut Supreme Court decides the case. Based on the briefing schedule, a decision should not be expected until late 2017 at the earliest.

Since the issues presented in this litigation addressed disparities allegedly created at the State level, local and regional boards of education are not compelled to take any action as a result of this ruling. Even if the order ultimately goes into effect, the State (most likely through the legislature) will need to act before any impact is felt at the local level. This does not mean that the General Assembly cannot take action sooner to address the issues identified by Judge Moukawsher. Likewise, even if the Connecticut Supreme Court sides with the State and finds the State’s educational policy constitutional, Judge Moukawsher’s scathing indictment of how the General Assembly addresses educational policy (particularly as it relates to allocation of funding) may lead to legislative soul-searching and a particular interest in addressing the issues identified in the decision.

Right now, boards of education should wait and see what happens with this appeal. The decision has potentially monumental implications for the future of education in Connecticut. It is clear that change is coming, but the form that change will take remains unclear.

ESSA Amendments Effective October 1, 2016 Change School’s Obligations to Homeless Students

Posted in Every Student Succeeds Act (ESSA)

The McKinney-Vento Act governs the way states and local education agencies (LEAs) are required under federal law to support their homeless student populations. The McKinney-Vento Act requires schools to have policies and practices in place that encourage the immediate enrollment of homeless students, remove barriers to enrollment, including transportation, ensure the full participation of homeless students in school, support school stability and require care to ensure that homeless students are not stigmatized. Following the last reauthorization of McKinney-Vento in 2001, the U.S. Department of Education issued non-regulatory informal guidance that schools have been following since to help interpret their obligations under McKinney-Vento. The Every Student Succeeds Act (ESSA) amendments effective as of October 1, 2016 not only codify the informal guidance that schools have been following, but also change in several significant ways how schools must support homeless students, including modifying the definitions of homeless students and youth, and the definition of school or origin, expanding duties for McKinney-Vento Homeless liaisons and clarifying privacy obligations to homeless students to name some.

While ESSA leaves most of the McKinney-Vento Act definitions intact, it removes “students awaiting foster care” from the definition of “homeless child or youth” effective December 10, 2016, and creates new rights for such children and youth under Title I, Part A. Many of these rights fall within the state Title I Plan provisions. LEAs receiving Title I funds must have LEA Title I plans that contain assurances that it will collaborate with state or local child welfare agencies regarding the provision of transportation to and from the school of origin, if in the student’s best interest. It is contemplated that transportation is to be paid from local welfare agency funds unless an LEA agrees otherwise. LEAs must designate a foster care point of contact, and that individual may be the McKinney-Vento liaison, assuming the person can fulfill the demands of both roles. Additionally, ESSA added a requirement that SEAs and LEAs report annually on the academic achievement and graduation rates for children in foster care as a separate subgroup to show how foster youth are performing relative to their peers.

Most notably under the ESSA Amendments, the term “school of origin” has been redefined and expanded to now include preschools and “the designated receiving school at the next grade level for all feeder schools”. Unfortunately, preschool is not defined under the ESSA Amendment.[1]

Further, the amendments require a presumption that it is in a student’s best interest to remain in the school of origin, add professional development requirements for homeless liaisons which will likely be interpreted to require some annual training, expand upon immediate enrollment requirements, add credit accrual and college readiness requirements and add a requirement that state coordinators monitor LEA’s to ensure compliance with McKinney-Vento. Additionally, the amendments clarify that information about a homeless student’s living arrangement is FERPA protected and their address and living situation is not directory information.

For further information about how ESSA impacts the rights of children in your school district who are experiencing homelessness, please consult our office with specific questions. Additional information can also be found at

[1]The definition of preschool program for federal data collection purposes is a helpful reference. Examples of preschool programs for federal data collection purposes includes head start programs receiving funding from an LEA or for which the LEA is a grant recipient, preschool programs operated or administered by an LEA, preschool special education services, operated or funded by the LEA or mandated under the IDEA; preschool programs and services administered or funded by the LEA through use of Title I or similar grants or home-based early childhood educational services funded and administered by an LEA. National Center for Homeless Education (2015). Guide to Reporting Federal Data.

New Title II Regulations Set To Take Effect in October: How They May Impact You

Posted in Americans with Disabilities Act

On October 11, 2016, less than a week away, a final rule amending the regulations for Title II of the Americans with Disabilities Act (ADA) will take effect.  The new regulations will provide guidance to local government entities, including school districts, regarding the interpretation and application of the ADA Amendments Act of 2008 (ADAAA).  Important for educators, the regulations will help school districts determine their responsibilities to students with disabilities under Section 504 of the Rehabilitation Act of 1973 (Section 504) due to Section 504’s reliance on the ADA’s regulations.

ADA Amendments Act of 2008

In response to two major Supreme Court decisions narrowing the definition of what constituted a disability under the ADA, Congress took action and passed the ADAAA in 2008.  The ADAAA clarified Congress’ intent and interpretation of what constitutes a disability for the purposes of protection under the ADA.  Of importance for school districts nationwide, the ADA’s definitions and regulatory structure are relied upon for determining a student’s eligibility for, and the scope of, services or accommodations required under Section 504.  Though the ADAAA took effect in 2009 and educators may already be familiar with its provisions, these regulations will provide helpful guidance for school officials in both special and regular education matters.

Changes to the Title II Regulations

The main objective of the new regulations is to help clarify the purpose of the ADAAA – largely, to establish that the term “disability” is to be defined broadly.  Congress’ intent was to shift the legal focus away from battling over whether an individual has a disability, and instead focus attention on determining whether qualified entities, such as school districts, have satisfied their duty to avoid disability discrimination.  To this end some highlights of the new regulations include:

  • An expansion of the definition of “major life activities,” including the addition of “writing,” “learning,” “reading,” “concentrating,” and “thinking” as a major life activities;
  • Guidance that the term “substantially limits”  must be construed broadly and in favor of coverage under the ADA;
  • The addition of Attention-Deficit/Hyperactivity Disorder (ADHD) as an example of a physical or mental impairment;
  • A prohibition against considering the ameliorative effects of mitigating measures (i.e. hearing aids, medication, or assistive technology) other than ordinary eyeglasses or corrective lenses when determining whether an individual has a disability for purposes of the ADA;
  • Recognition that episodic impairments (i.e. occasional epileptic seizures) or impairments in remission can still be a disability under the ADA if they substantially limit a major life activity when active; and
  • Guidance that only individuals who have a disability or individuals with a record of a disability are entitled to reasonable modifications under the ADA.  Individuals who are “regarded as” having a disability, while not entitled to reasonable modifications, may not be discriminated against.

If you have any questions about the new Title II regulations, the education team at Berchem, Moses & Devlin, P.C. can help.  For inquiries regarding the ADA, Section 504 compliance and more, visit, or email us at

OCR Publications Clarify District Obligations to Student with ADHD under Section 504

Posted in Regular Education, Special Education

School is back in session once again, and districts are confronting the perennial challenge of educating students with a multitude of physical, cognitive and behavioral limitations. Among these conditions, Attention Deficit Hyperactivity Disorder (ADHD) stands out in both its ubiquity and its potential to thrust parents and school districts into conflict over appropriate educational programming. In fact, the United States Department of Education’s Office for Civil Rights (OCR) has received over 2,000 complaints involving allegations of discrimination against students with ADHD in the past five years alone. The staggering number of complaints is testimony to both the elusive nature of ADHD and the difficulties school districts are experiencing in identifying, evaluating, and providing appropriate programming to students with the disorder. Absent clarification of the rights of students with ADHD and the responsibilities of the school districts that serve them, the surge in complaints and litigation is unlikely to subside in the foreseeable future.

Fortunately, school districts are beginning the new school year armed with guidance for meeting their obligations to students with ADHD under federal law. Over the summer, the OCR published a Dear Colleague letter highlighting the recurring problems school districts are facing with respect to ADHD and emphasizing the need for school districts to tailor their responses in compliance with Section 504 of the Rehabilitation Act of 1973. The letter was accompanied by a comprehensive Resource Guide outlining the applicable federal law, providing step-by-step instructions for compliance with substantive obligations, and reminding school districts of their duty to notify families of their rights and procedural protections. These publications can aid school districts in revising their policies and procedures in accordance with federal law, which will likely result in better programming for students with ADHD and a reduction in complaints and litigation.

The OCR publications detail the bases for many of the complaints by families of students with ADHD. These allegations include the failure of school districts to identify and properly evaluate students with ADHD, to provide appropriate regular or special education and related services, to educate teachers and staff regarding students’ needs, and to notify families of their procedural and substantive rights under Section 504.

School districts are reminded of their “Child Find” obligation to identify and locate students suspected of having “disabilities” under Section 504. A student has a “disability” if she has a physical or mental impairment that substantially limits one or more major life activities, and is also protected from discrimination if the student has a record of such an impairment, or is regarded as having such an impairment. The OCR emphasizes some examples of major life activities that could be substantially limited by ADHD, including concentrating, reading, thinking, and functions of the central nervous system/brain. Once a student is identified as possibly having a disability, school districts are obligated under Section 504 to conduct an evaluation at no costs to the student’s family. The evaluation must be conducted by appropriate personnel, without undue delay, and without regard to the effects of “mitigating measures” such as medication. Importantly, OCR states its own presumption that a student diagnosed with ADHD is substantially limited in one or more major life activities, and thus qualifies as a student with a disability under Section 504 unless proven otherwise. Overall, the definition of “disability” is to be construed broadly, and the determination of whether a student has a disability should not demand extensive analysis.

A student with a disability under Section 504 is entitled to a free appropriate public education (FAPE) comprised of regular or special education and related and/or supplementary services, modifications, and accommodations. FAPE must be individually tailored to a student’s particular needs, and provided without inappropriate consideration of administrative and financial burdens. With respect to ADHD, OCR cautions against the “blanket” provision of boilerplate services to any student diagnosed with the disorder. Instead, a “Section 504 plan” should be developed and implemented by a team of administrators and staff knowledgeable of the student’s particular needs. For example, a student with ADHD-predominantly inattentive type may supports such as prompting and redirection, while a student with ADHD-predominantly hyperactive/impulsive type may require a smaller classroom setting and reduced auditory or visual stimulation. The Section 504 plan should be disseminated to all of the student’s teachers in order to ensure uniform and consistent implementation.

Finally, school districts are obligated to notify families of their rights and procedural safeguards under Section 504. If a parent believes her child has a disability, she has the right to request an evaluation at district expense. If the school district refuses to conduct an evaluation, an explanation must be provided, and the parent must be able to challenge the district’s decision. Similarly, a parent must be able to challenge the determination that a student does not qualify as having a disability under Section 504. Finally, if a parent disagrees with the programming implemented for her child, she must be able to challenge the adequacy of the programming before a neutral hearing officer.

The OCR Dear Colleague letter and Resource Guide should be embraced by all school districts as the new school year begins. The existing confusion surrounding ADHD and the obligations of school districts under federal law indisputably drains educational resources and has resulted in a plethora of complaints and litigation. School districts are encouraged to heed the instructions and suggestions detailed in the OCR publications, and to revise their policies and procedures related to students with disabilities accordingly. In doing so, school districts will not only preserve scarce resources and avoid costly litigation, but more importantly, they will ensure that students with disabilities such as ADHD are being provided appropriate programming and afforded an equal opportunity to receive a quality education.

The education team at Berchem, Moses & Devlin, P.C. offers representation and guidance to school district clients across the State of Connecticut. For inquiries regarding Section 504 compliance and more, visit, or email us at

Public Act 16-67: New Hiring Requirements for Board of Education Personnel

Posted in Labor and Employment

Effective July 1, 2016, local or regional boards of education, governing councils of state or local charter schools and inter-district magnet school operators (collectively “BOEs”), are going to have to follow new requirements for hiring education personnel.  The state legislature recently enacted Public Act 16-67 (“the Act”) in response to a new provision in the federal Every Student Succeeds Act (“ESSA”). The new ESSA provision, entitled “Prohibition on Aiding and Abetting Sexual Abuse”, is aimed at preventing school employees who have engaged in sexual misconduct with students from being passed from one school district to another, by requiring states, state educational agencies and local school districts that receive federal funding to establish laws, regulations and policies that prevent employment of school personnel where there is reason to believe that person has previously engaged in sexual misconduct with a student or minor.

Who is impacted by the new requirements?

The Act has broad application and seeks to identify potential predators earlier in the hiring process. Significantly, the Act applies to applicants, rather than those offered employment, and prohibits the employment of any applicant who fails to meet the new requirements.  The Act makes no distinction between certified and non-certified personnel, but instead applies to all “applicants for a position, including any position which is contracted for, if such applicant would have direct student contact”.  “Direct student contact” is not defined by the Act, but positions with direct student contact would include teachers, administrators, paraprofessionals, behavioral therapists, coaches, food service workers, custodians, clerical/administrative support staff in the schools, and school nurses.  There are specific provisions for temporary positions (less than 90 days), substitute teachers and contractors, but even applicants for these positions must comply with the requirements for criminal and employment background checks.  Student employees remain excluded from the requirement of a criminal background check under Conn. Gen. Stat. §10-221d.

What is required under the Act?

The Act imposes significant changes on existing laws regarding hiring of education personnel, specifically impacting Conn. Gen. Stat. §§ 10-221d (criminal and child abuse registry background checks), 10-222c (hiring policy) and 10-145 (substitute teachers). Continue Reading

Major Overtime Rule Change Effective December 1 – What You Need To Know To Prepare Now

Posted in Labor and Employment

The U.S. Department of Labor just issued its final rule, requiring minimum wage and overtime for some employees who are currently “exempt” from these requirements. Employers need to plan ahead for implementation, as the rule change could lead to seismic shifts in some payrolls.

The federal Fair Labor Standards Act (“FLSA”) requires that employees receive minimum wage and overtime (calculated at one-and-a-half times the regular rate of pay for hours over 40) unless they are “exempt” from one or both requirements. The most popular exemptions are the so-called “white collar exemptions,” which apply to executive, administrative, and professional employees who meet rigorous criteria based on their duties. To be exempt, these employees must be paid a salary of at least $455 per week and the employer must pay on a salary basis (meaning no docking for partial workweeks, subject to limited exceptions). Doctors, lawyers, and teachers can be exempt under the FLSA even if they are not paid on a salary basis and there is no minimum salary for these employees. (The computer professional exemption has special rules under which employees can be paid hourly, but in any event, there is no computer professional exemption under Connecticut state law.)

The rule change more than doubles the salary threshold from $455 per week ($23,660 annually) to $913 per week ($47,476 annually). Further, these thresholds will be subject to inflationary increases every three years. Nondiscretionary bonuses and incentive payments (including commissions) may account for up to 10 percent of the minimum salary level. By contrast, discretionary bonuses do not count toward the minimum salary level.  The duties tests are not changing under this rule. The threshold for the “highly compensated employee” exemption increases from $100,000 to $134,004, but Connecticut does not recognize this exemption, so employers should not rely upon it for employees in the state.

Raising the salary threshold is expected to transform millions of exempt employees into non-exempt employees overnight. Some employers will be able to weather this change better than others. Virtually every employer in the country is subject to the FLSA, even if there is only one employee. This includes non-profits and public sector employers. In Connecticut, where the cost of living is high, the effect of this change may be lower than elsewhere in the country. It is more likely here than elsewhere that employees who meet the duties tests are already earning at least $913 per week. However, non-profit, low-profit, and government employers may find that many of their employees are subject to this rule change and these employers may have more rigid budgets that cannot withstand the impact. Employers with an annual volume of sales or business of less than $500,000 may wish to consult an employment lawyer to see if they are one of the very few employers not subject to the FLSA.

To comply with the rule, employers need to either raise salaries of affected employees to ensure they meet the threshold or begin treating these employees as non-exempt. Raising salaries is straightforward, but remember that the rule is likely to require inflationary increases, so the amount will change going forward. If employers do not wish to raise salaries, the employees must be treated as non-exempt. This means that employers must keep records of their hours worked and they must be paid overtime for hours over 40. It is legally permissible to cap hours at 40 by prohibiting employees from working overtime and some employers may choose to hire multiple employees to do what was once one employee’s job. Collective bargaining agreements may limit employers’ options.

It cannot be overstated how important it is to ensure that employees are properly exempted if they are not going to be paid overtime. Consider the following scenario. A passionate, well educated executive director of a nonprofit organization earns a salary of $912 per week – just one dollar short of the new threshold. She labors with love, working 70 hours most weeks. A disgruntled employee complains to the Department of Labor that he is owed overtime and the agency examines the payroll practices of the entire organization. The Department of Labor finds that the executive director is not exempt. It is not that she is underpaid by fifty-two dollars. It is that she is not exempt at all. She is owed unpaid overtime of more than $20,000 (more if the salary was only intended to cover a certain number of hours) all because she was paid one dollar per week too little to qualify as exempt.  She would likely also be eligible for liquidated damages, doubling the underlying liability. (There are some arguments an employer could make to apply more favorable damages calculations, but these arguments have yet to be successful in the Second Circuit.) That is the legal significance of the salary threshold and why employers must be extremely careful. For that matter, when considering the duties tests as well, employers should recognize how a small mistake in classifying an employee or a group of employees could add up to huge liability.

Employers should take time now to review their payroll practices to ensure they are in compliance with state and federal laws now and in the future. For each employee believed to be exempt, ensure that he or she meets the duties tests for the applicable exemption, is paid on a salary if required by the exemption, and is paid a salary that is high enough to support the exemption. In considering the duties of a position, employers should be concerned not with titles or job descriptions, but with how the employee actually spends his or her time. It is a good idea to update job descriptions to match reality.

Ensure that all non-exempt employees’ hours are being tracked, including time spent offsite performing work, on call, or traveling, to the extent required by law. Ensure that break periods of fewer than 20 minutes are treated as working time.

Now is a good time to change payroll practices without raising alarm that perhaps things were not done properly before. Employers can connect changes with the new overtime rule to minimize suspicion, particularly in cases of misclassification. Internal review of payroll practices should be aided by a competent labor and employment attorney, as the rules can be excruciatingly detailed. Using non-attorney human resource consultants or payroll companies for this activity is not advised, as communications will not be privileged. Changes to payroll practices, hours, or other terms or conditions of employment should be communicated to employees well in advance, ideally at least 30 days.

Our team of labor and employment attorneys can assist employers in adjusting to the new white-collar exemption requirements and ensuring compliance with all applicable labor and employment laws.  Contact us to arrange a wage-and-hour self-audit for your organization.

U.S. Department of Education Tackles Discrimination of Refugees

Posted in Regular Education

On December 31, 2015, the Department of Education issued a Dear Colleague Letter before the beginning of the new year to remind schools of the importance of providing a discrimination free learning environment. The letter specifically focused on discrimination and harassment in schools based on race, religion, and national origin in light of the large number of families fleeing violence in Syria.

The Department of Education emphasized that the United States must welcome these refugees while also being committed to safeguarding the safety and security of the American people during this time of heightened fear and anger. One important aspect the Department of Education highlighted was ensuring that a student’s ability to learn was not affected due to inappropriate school conduct or discrimination.

Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color, and national origin for public and private agencies that receive Federal funding. While Title VI does not expressly prohibit discrimination based on one’s religion, discrimination against persons who belong to a religious group based on their actual or perceived characteristics is a violation of Title VI.

The letter speaks to both K-12 and higher education institution’s duty to provide a safe learning environment, and limiting behavior that causes hostile environments. It additionally clarified that protecting free speech means allowing students, staff, and community members to express speech, even if it is at odds with the institution’s beliefs.

Some examples the Department of Education gave for helping facilitate the appropriate environment included encouraging students to express disagreement in a respectful manner, clearly communicating that harassment and bullying will not be tolerated, and creating opportunities for cultural groups to engage with each other and the school community.

The Department of Education acknowledged the difficulty of the work, but reiterated that schools have a responsibility to challenge past efforts, and welcome the refugees by working together to prevent discrimination.