Buried in the nearly 900 page document which is the biennial budget legislation are two sentences that impose a new requirement on boards of education.  Specifically, Section 157 of Public Act 17-2 from the June Special Session provides:

Sec. 157.  (NEW)(Effective from passage) Any local board of education shall file forthwith a signed copy of any contract for administrative personnel with the town clerk, which town clerk shall post a copy of any such contract on the town’s Internet web site.  Any regional board of education shall file a copy of any such contract with the town clerk in each member town, which town clerk shall post a copy of any such contract on the town’s Internet web site. Continue Reading Budget Legislation Requires That “Administrative” Contracts Be Provided To And Posted By The Town Clerk

Typically this time of year school district administrators ponder whether to “non-renew” non-tenured teachers in response to budget uncertainty, as opposed to waiting for the fiscal picture to become clear and possibly laying off teachers at a later time.  Given the state budget crisis, and unprecedented major cuts in funding on the table, the uncertainty is worse this year than ever before.  This has caused even superintendents and other administrators who previously were not inclined to non-renew teachers for economic reasons, to give serious consideration to doing so.

So what are the advantages and disadvantages of non-renewal relative to laying off non-tenured teachers?  If a teacher is non-renewed for economic reasons pursuant to C.G.S. Section 10-151(c), he/she has no recall rights and no right to a hearing before the Board of Education.  Moreover, if after the budget is settled the district decides to continue the employment of some but not all non-renewed teachers, it can pick and choose to whom it decides to offer reinstatement, thereby, enabling it to select the best and brightest. Continue Reading The May 1st Dilemma: Non-Renewal vs. Layoff

Over the past few weeks, there have been several cyberattacks on Connecticut municipalities and boards of education.  On the municipal side, internet thieves have intercepted wire transfer instructions in two Connecticut municipalities resulting in the theft of significant sums.

Most recently, an outside party accessed a Superintendent’s email and requested W-2 information for the school district’s employees.  While local police, IRS and FBI are investigating the matter, it is believed this information was stolen with the intent of filing false tax returns for the affected employees. Continue Reading Internet Thieves Are Targeting Municipalities and Boards of Education

Ever since the enactment of Public Act 16-67 last summer, school employers and contractors servicing them have faced the challenge of complying with new requirements for background checks for employees who will have direct contact with students. The central aspect of the legislation is a prohibition against offering employment to an applicant for a position with direct student contact unless the applicant is first required:

• To list the names and contact information for current or former school employers or other employers if the position otherwise caused the applicant to have contact with children;
• To provide a written authorization consenting to and authorizing current and former employers and the state Department of Education to disclose records and information and to release those entities from liability from such disclosures; and
• To provide a written statement giving certain information on prior abuse investigations involving the applicant.

The prospective employer must then contact the current and former employers listed and the state Department of Education to conduct a background check, seeking certain specified information. The law requires the current or former employers contacted to respond to the request for information.

The state Department of Education published a form for employers to use to conduct these checks. However, the employers cannot rely solely on the form, as it does not include the written authorization for the former employers and the state Department of Education to provide the information. Some of our clients have experienced resistance, particularly from private-sector employers, to disclosing the information. It is possible that the lack of a release form is driving this resistance. Our firm has developed an authorization/release form to fix this problem. We have also developed an applicant disclosure statement so that the applicant can indicate whether any of the scenarios pertaining to prior abuse investigations apply. In other words, using the state-developed forms will not, on its own, suffice for meeting the authorization/release and disclosure requirements.

Another issue employers have been facing is determining what it means for a position to involve “direct student contact.” The background checks are necessary before hiring for positions involving direct student contact, but where should the line be drawn? We have generally advised that any position in a school building should be treated as having direct student contact.

A similar issue is what it means for a current or former non-school position to have “caused the applicant to have contact with children.” These are the non-school-based positions that may need to be included in the background check. It is clear that a day care would need to be checked. But what if the applicant worked at an ice cream shop? What about a department store? We have advised clients to take a common-sense approach and contact the current or former employer if the position likely involved frequent interactions with children, but that it is not necessary if there is occasional, incidental contact.

Public Act 16-67 created several new obligations for school employers and, as is often the case, it may take a few years to work through the logistical implications and implement legislative fixes to certain problems. For now, employers should make good faith efforts to comply with the law in all respects, as it provides mechanisms designed to help schools avoid hiring employees with a history of child abuse.

Our team of labor/employment and education attorneys can assist with implementation of these new employment requirements for BOE personnel.

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

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.

Teachers generally enjoy job protection which is much greater than all other public sector employees.  Such laws have been much criticized in recent years as a result of the increased focus on student performance.  Reports of “rubber rooms” in New York, where incompetent teachers were parked, have been much publicized and much maligned.  Some states, such as Wisconsin and Florida, have repealed or watered-down teacher tenure laws.

In a groundbreaking ruling, a Los Angeles court struck down five California statutes related to teacher tenure, saying they violated the equal protection clause of the California constitution.  In Vergara v. State of California, the court said that the Permanent Employment Statute, Dismissal Statutes, and Last-In-First-Out Statute have kept “grossly ineffective” teachers in the classroom, disproportionately affecting poor and minority students.  The Permanent Employment Statute requires tenure decisions to be made in less than two years, even before teaching credentials are granted, resulting in some cases in which teachers are not permitted to teach, but cannot be fired.  The Dismissal Statutes require what the court called “über due process,” making it so burdensome for school districts to fire teachers that they often do not even try.  The Last-In-First-Out Statute requires that the last teacher hired be the first let go during layoffs, no matter how effective she is and no matter how ineffective more senior teachers may be.  Relying on social science research, the court concluded that these students lost educational opportunities and ultimately suffered reduced lifetime earnings because of these laws.  Therefore, the court reasoned, poor and minority students were not receiving equal protection of the law with respect to their fundamental right to education.  This decision is expected to have ripple effects throughout the country.  Could teacher tenure be struck down in Connecticut?

Connecticut’s laws are similar to California’s laws in most relevant respects.  Connecticut jurisprudence deems education to be a fundamental right, so the constitutional analysis would be similar.  However, the Connecticut Constitution’s equal protection clause applies only to “religion, race, color, ancestry, or national origin.”  Therefore, “poor” students would not be a protected class.  However, if racial or ethnic disparities could be shown, a similar equal protection argument could prevail.  Connecticut’s statute pertaining to teacher tenure is similar with respect to “über due process,” requiring costly hearings to terminate a tenured teacher, even for proper causes.  Connecticut’s Teacher Tenure Act requires that non-tenured teachers be laid off before tenured teachers, resulting in the situation that an ineffective tenured teacher would have more job security than a superstar new teacher.  However, unlike the California law, the Connecticut law does allow factors other than seniority to be taken into account within those bands of tenured and non-tenured teachers.  The most significant difference between the two statutory schemes is the amount of time before tenure is granted.  Connecticut provides for tenure after four years, while California required such decisions in less than two years.  Therefore, while a similar case could prevail in Connecticut, the laws are not as uncompromising as California’s, so it would be a more difficult battle.

Is this the beginning of the end of teacher tenure?  Perhaps.  But given the politics in Connecticut and the strength of the teachers’ unions, it would appear unlikely that the Teacher Tenure Act will be repealed.  We will have to wait and see if anyone is willing to challenge the law as unconstitutional.  Assuming the California decision withstands appeal, the prospects of such a challenge in Connecticut will certainly increase.

 

While the concept is intuitive, a recent study has confirmed that teacher absenteeism has a direct and measurable impact on student learning.  In a report entitled “Roll Call:  The Importance of Teacher Attendance” the National Center on Teacher Quality found that teachers miss on average 11 out of 186 days of school; and one in six teachers has chronic absenteeism with 44% of teachers out more than 10 days per year.

Data maintained by the State of Connecticut Department of Education, though notoriously outdated, shows similar trends in Connecticut.  In addition, Connecticut law requires school districts to provide teachers with a minimum of 15 sick days annually — for a 10 month work year!  With statistics showing a national average of approximately six sick days per employee (only two of which are bona fide illness), that number seems excessive.

Adding to the problem is the trend in recent years to allow sick days to be used for family illness, as well as the teacher’s own illness.

That all stated, control of excess sick leave utilization remains by and large something which can be controlled by good management practices including:

  • Encourage regular attendance and point out the impact on learning to staff
  • Regularly reviewing reports of teacher absenteeism
  • Considering publishing such reports to put public pressure on teachers to curb any abuse
  • Counseling teachers who, in a given year are trending high and do not have a clear injury or illness to explain the anomaly, or who show a pattern of excessive absenteeism over multiple years
  • Apply progressive discipline to teachers who do not respond to counseling efforts

 

In what is one of, if not the first decision of its type in Connecticut, an independent hearing officer has ruled that the Groton Board of Education had grounds to terminate Paul Kadri its Superintendent of Schools.  

As in most districts, Kadri was under contract which provided for grounds for termination similar to those found in the Teacher Tenured Act, including “other due and sufficient cause.”  It also provided that the Board would conduct a hearing before termination.  Kadri, however, through his counsel raised concerns regarding alleged predetermination on the part of certain board members.  Out of an abundance of caution, the Board agreed to place the decision in the hands of an independent arbitrator, Mr. Timothy Bornstein, which decision the Parties agreed, would be final and binding.

In a decision issued March 4, Mr. Bornstein ruled that due to mistreatment of staff, including numerous physical and verbal assaults, the Groton Board of Education had just cause to terminate his employment.