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Reporting Educator Misconduct – “Who, What & When” as of September 1, 2017

by Dean Micknal

The Texas Legislature passed Senate Bill 7 (“SB 7”) this summer in an effort to address the increasing number of inappropriate relationships between educators and students being reported.  The legislation, which became effective on September 1, 2017, included significant changes to the requirements for reporting educator misconduct found in Section 21.006 of the Texas Education Code.

Principal to Superintendent

Prior to the passage of SB 7, TEC 21.006 required a “superintendent or director of a school district, open-enrollment charter school, regional education service center, or shared services arrangement” to report certain acts of misconduct to the State Board for Educator Certification (SBEC).  SB 7 added TEC 21.006(b-2), expanding the applicability of the law to the campus level in two instances.

As of September 1, 2017, principals are now required to notify the superintendent (not SBEC) no later than the seventh business day after the date the principal obtains information about the criminal record of an educator employed by or seeking employment by the district by a means other than the criminal history clearinghouse established under Section 411.0845 Government Code.

Additionally, principals are now required to notify the superintendent (not SBEC) no later than the seventh business day after the date of an educator’s termination or resignation following an alleged incident of misconduct that is described in TEC 21.006(b)(1).  This list (which should already be familiar to superintendents) includes:

  • abuse or another unlawful act with a student or minor;
  • a romantic relationship with or solicitation of or engaging in sexual contact with a student or minor;
  • possession, transfer, sale, or distribution of a controlled substance, as defined by Chapter 481, Health and Safety Code, or by 21 U.S.C. Section 801 et seq.;
  • the illegal transfer, appropriation, or expending of funds or other property of the school district;
  • an attempt by fraudulent or unauthorized means to obtain or alter a professional certificate or license for the purpose of promotion or additional compensation;
  • a criminal offense or any part of a criminal offense on school property or at a school-sponsored event; or
  • conduct that violates the assessment instrument security procedures established under Texas Education Code Section 39.0301.

As written, the new law does not provide any exceptions for circumstances in which the superintendent is already aware of the information that the principal is required to report.  Regardless of whether this was intentional or the result of a legislative oversight, at this time we strongly encourage principals to err on the side of caution and file a report even when doing so may appear redundant.

Superintendent to SBEC

Under the revised law, superintendents must still report to SBEC not later than seven business days after learning about an educator’s termination or resignation following an alleged incident of misconduct described by TEC 21.006(b) or learning about an educator’s criminal record.  However, SB 7 amended TEC 21.006(c) to include a third reporting trigger.  Consequently, superintendents must also make a SBEC report not later than seven business days after receiving a report from a principal, as described above.  Again, there does not appear to be any exceptions for incidents in which the superintendent already knew (or already reported on) the information conveyed by the principal’s report.

Superintendents should also be aware of another seemingly minor tweak made by SB 7 that could have major implications. Prior to September 1, 2017, TEC 21.006(b)(2) required notification if an educator was terminated or resigned based on evidence that the educator engaged in misconduct.  SB7 broadened this provision to now require notification if an educator is terminated or resigned and there is evidence that the educator engaged in the described misconduct.  In other words, the actual basis of the employment action is no longer determinative as to whether the report must be filed.

District to Parent or Guardian

Senate Bill 7 also added Section 21.0061, which requires a district to notify the parent or guardian of a student with whom an educator allegedly engaged in abuse or an inappropriate relationship as soon as feasible after the district becomes aware the alleged misconduct may have occurred.  Under the new law, the notice must inform the parent or guardian 1) that the alleged misconduct occurred, 2) whether the educator resigned or was terminated in light of an investigation, and 3) whether a report was submitted to SBEC concerning the alleged misconducted.

All District Employees

Finally, employees should be reminded that these reporting requirements are in addition to, and do not replace, their existing legal obligation to report suspected abuse or neglect to law enforcement or Child Protective Services within 48 hours.

It is critical that District personnel understand and comply with these mandates. While current law already allows SBEC to impose sanctions on superintendents for failing to provide required notice, SB 7 extends the allowable sanctions to principals who fail to provide notice to the superintendent.  An administrative penalty of between $500 and $10,000 is added for superintendents or principals who fail to provide timely notice.  Additionally, failure to provide timely notice with an intent to conceal an educator’s criminal record or alleged incident of misconduct is a state jail felony.  If you have any questions about these new and revised requirements, please do not hesitate to contact the school attorneys at Leasor Crass, P.C.

The Truth About Grievances

by Rhonda Crass

Texas law prohibits collective bargaining and strikes by public employees, but it preserves the right to redress of grievances. Tex. Gov’t Code Ann. §617.005 provides: “This chapter does not impair the right of public employees to present grievances concerning their wages, hours of employment, or conditions of work either individually or through a representative that does not claim the right to strike.”  Further, Tex. Gov’t Code § 617.005 has been construed broadly to include evaluations, salary disputes, grading policies, sick leave, and “any other matter which is appropriate for communications from employees to employer concerning an aspect of their relationship.”  A school district must provide parents, students, employees, and the general community the opportunity to have their complaints and concerns heard by those in positions of authority.  Administrators and school boards are those “invested with the powers of government” in a school district, and they are the persons to whom citizens must present grievances.

School districts in Texas that use the TASB Policy service have grievance policies in accordance with state law under the legal policies and have adopted local guidelines for grievances in their local polices.  The three types of grievances are employee grievances, student grievances and community grievances. Policy DGBA (Legal and Local) addresses employee grievances, while Policy FNG (Legal and Local) addresses student grievances.  Community Grievances guidelines are found in Policy GF (Legal and Local).  These local policies normally provide three levels at which the complaint should be heard.  In large urban districts, some have four levels for grievances.

While the terms “complaint” and “grievance” are used interchangeably, basically, anything that has to do with the school district—from the reading materials in the library to the color of paint in the gym—may be the subject of a grievance.  Grievances tend to be an inherently adversarial action because the grievant is challenging a decision made by an administrator, supervisor or your local school board. However, the importance of a grievance is that if a decision has been made that highlights an ineffective policy, bad local practice, or poor decision from a supervisor, the best practice is to revise the policy and not carve out exceptions to the rule.

Districts also hold a public forum at the beginning of each board meeting.  Public forum is not the place for individuals to air grievances.  Board policy states that the presiding officer or designee shall determine whether a person addressing the Board has attempted to solve a matter administratively through resolution channels established by policy. If not, the person shall be referred to the appropriate individual to seek resolution.  Individuals should not be allowed to seek an audience with the Board in closed session unless the grievance policy is followed.  Furthermore, levels I or II should not be waived to expedite a hearing before the board unless the board is the lowest level at which the requested relief may be granted.  Because there are strict guidelines regarding the time frame for bringing grievances, individuals will often attempt to use the public forum avenue to bring their concerns to the board when the grievant has failed to meet the deadlines for bringing a grievance.

As a rule, board members do not necessarily enjoy hearing level III grievances as they are elected officials and generally do not like having to say no to constituents.  Also, grievants are often their friends or neighbors which makes these decisions especially difficult. For that reason, the Board encourages students and parents to discuss their concerns and complaints through informal conferences with the appropriate teacher, principal, or other campus administrator.  Even after initiating the formal complaint process, students and parents are encouraged to seek informal resolution of their concerns.

As a final reminder, it is important to check your local policy to ensure that the level I, II and III grievance forms are in your board policies DGBA, FNG and GF as an exhibit to the local policies.  Many school district administrators have access to them, but it is important that the employees, students, parents, community members and key stakeholders have access as well.  In reviewing your level I, II and III grievance policies, it is important to include a place on the form for not only the grievant’s physical address, but email and phone contact information as well.

For more information regarding grievances, please contact Leasor Crass.  We also provide a training for administrators, supervisors and central office personnel on best practices for conducting grievance hearings.

Unfortunately, There is More Than One Bad Apple

by Mike Leasor

The Texas Legislature passed, and the Governor recently signed, Senate Bill 7 in an attempt to address what many have come to view as an epidemic of inappropriate relationships between educators and students.  This piece of legislation, which becomes effective on September 1, 2017, is one of the most talked about coming out of this legislative session.  It is imperative that administrators pay close attention to this law and the topic it covers.  Your certificate may depend on it.

Following is a bullet point list of the significant additions to the law in this area:

  • The principal must notify the superintendent not later than the seventh business day after the date of an educator’s termination of employment or resignation following an alleged incident of misconduct or the principal knew about an educator’s criminal record.
  • The superintendent must now notify the State Board for Educator Certification (“SBEC”) by filing a report with the board not later than the seventh business day after the date the superintendent receives a report from a principal.
  • Immunity is still provided for reports made in good faith.
  • An educator is now prohibited from inappropriate behavior with any student known to be enrolled in any public or private primary or secondary school.
  • Mandatory reporting by a superintendent to SBEC under 21.006(b)(2) is now triggered by termination and evidence of wrongdoing rather than termination based on evidence of wrongdoing.
  • The superintendent must complete an investigation of any allegation involving abuse, unlawful acts, romantic relationships, or sexual contact with a student or minor and report it to SBEC even if the educator is terminated or leaves the district.
  • Requires notice to parents of a student with whom an educator is alleged to have engaged in misconduct involving abuse, an unlawful act, romantic relationship, or sexual contact.
  • Although districts currently have policies in place regarding staff/student electronic communications, the policy must now have a provision that staff personal phone numbers and email addresses are not required to be disclosed.
  • SBEC is now authorized to impose administrative penalties of up to $10,000 against principals and/or superintendents who fail to comply with the reporting requirements.
  • Failure to comply with the reporting requirements with the intent to conceal an educator’s criminal record or alleged incident of misconduct is punishable as a state jail felony.
  • Applicants must now disclose if they have even been charged with having an inappropriate relationship with a student.
  • If a certified employee assists an educator who has had an inappropriate relationship with a student in gaining employment in another district, that employee’s certificate may be revoked.
  • If an educator is convicted of a felony involving an inappropriate relationship, it prohibits TRS payments.

If you would like more information on this topic or seek a review of your district’s policies or procedures regarding this new law, please do not hesitate to contact one of the attorneys at Leasor Crass, P.C.

Whistle While You Work – “Adverse Employment Action” Under the Texas Whistleblower Act

by Heather Castillo

School districts should be aware of a recent court of appeals decision concerning the Texas Whistleblower Act. In Burleson v. Collin County Community College District, the court of appeals reversed the trial court’s decision to grant the College’s plea to the jurisdiction because it found that some personnel actions might be considered “adverse personnel actions” under certain circumstances when the Texas Whistleblower Act (the “Act”) is involved. At issue were personnel actions that school districts would typically consider benign or routine. For example, changing an employee’s schedule or shift, or issuing an employee a “coaching” memo that is not typically considered formal discipline.

Texas Whistleblower Act Overview

Generally, governmental entities such as school districts and colleges are immune from suit and liability under the sovereign immunity doctrine. However, the Act waives immunity from suit to the extent that a governmental entity is liable under the Act’s provisions. See Tex. Gov’t Code § 554.0035. The Act protects “a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority.” Tex. Gov’t Code § 554.002(a). The Act prohibits retaliation by providing that: “a state or local governmental entity may not suspend or terminate the employment of, or take other adverse personnel action against, a public employee” who makes such a report. Id. (emphasis added). The Act defines “personnel action” as: “an action that affects a public employee’s compensation, promotion, demotion, transfer, work assignment, or performance evaluation.” Tex. Gov’t Code §554.001(3). However, the Act does not define what constitutes an “adverse personnel action.

The Texas Supreme Court has adopted a test used in a United States Supreme Court decision to determine whether retaliation has occurred in violation of the Act. The test is this: for a personnel action to be adverse within the meaning of the Act, it must be material and likely to deter a reasonable, similarly situated employee from reporting a violation of the law. This test is meant to separate “petty slights” and “minor annoyances” from legitimate retaliatory actions that would be likely to deter an employee from reporting violations of law.

Burleson v. Collin County Community College District

In the recent Burleson v. Collin County Community College District case, plaintiffs Jon Mark, Craig Bennight, and Billy Burleson, are police officers working for the Collin County Community College District. All three officers sued the College alleging violations of the Whistleblower Act claiming that they suffered retaliation in the form of adverse personnel actions after they reported crimes.

In a plea to the jurisdiction, the College claimed that sovereign immunity defeated subject matter jurisdiction because the College did not take adverse personnel action against the three officers. The College also argued that two of the officers did not meet the jurisdictional prerequisites for a whistleblower grievance. The trial court granted the College’s plea, so the officers appealed.

Mark alleges that he was retaliated against after he reported illegal activity. Specifically, he reported that he was ordered to lock an intoxicated person in a closet for four hours and that such action constituted the crime of official oppression. After making this report, he received an “employee coaching” form write-up and a schedule change to “deep nights” (6 p.m.-6 a.m.) in light of “violations claimed in the coaching report.” He filed a grievance, which was denied by the College.

Bennight and Burleson had been investigating the theft of books from the College bookstore when they began to suspect a scheme to defraud the College, corruption, and a cover-up by high ranking officials. They reported violations of the law related to the bookstore, including coercion of a public servant, public corruption, tampering with evidence, and tampering with a witness to various law enforcement authorities. They also reported to the College’s police chief that employees were stealing from the bookstore, but they assert that they were then ordered to close their investigation. Bennight alleged retaliation because his schedule was changed to “deep nights” and he was assigned to another campus. Bennight asserted that he was hired to be an investigator, but that he could no longer do his normal duties on the new late night shift because he could not file cases with the district attorney when the courts are closed. Burleson also alleged retaliation because his schedule was changed from the 10 a.m.-6 p.m. shift to the 2 p.m.-10 p.m. shift and he was removed from “flex time.” Burleson asserted that the College police chief had previously allowed Burleson to work a flexible schedule because he was aware of Burleson’s “precarious” financial situation following a divorce. Further, Burleson alleged that the Chief was aware that Burleson would have even less time with his three young children under this new shift schedule. Bennight and Burleson also filed grievances, which were denied by the College.

The College argued that the above-described personnel decisions, i.e., issuing a “coaching form” and making schedule changes, were not adverse personnel actions as defined by the Act. However, the court of appeals disagreed. The court of appeals looked at the specific facts underlying the personnel actions concerning the officers. Regarding Mark, the court of appeals found that even though the “employee coaching form” stated that it was not a “formal disciplinary action,” it also warned of possible termination and “was unreasonable in a number of respects.” The court of appeals also stated that “a schedule change that affected an employee’s ability to earn extra income in other part-time jobs, and that affected the employee’s ability to spend time with his children, could constitute an adverse personnel action.”

The case is not over. The court of appeals reversed the trial court’s decision to grant the College’s plea to the jurisdiction and remanded the case back to the trial court for further proceedings.  The College will now have additional opportunities to prove its claims to the trial court.

What are the consequences for taking adverse personnel action against a whistleblower?

A plaintiff is entitled to sue for: (1) injunctive relief; (2) actual damages; (3) court costs; and (4) reasonable attorney fees. Further, a plaintiff who was suspended or terminated in violation of the Act is entitled to: (1) reinstatement to his former position or an equivalent one; (2) lost wages; and (3) reinstatement of fringe benefits and seniority rights.

If you or your staff have questions about taking personnel action against an employee who claims to be a whistleblower, or how to respond to a grievance filed by an employee who asserts whistleblower protection, or you would like training related to these issues, the attorneys at Leasor Crass stand ready to assist.

Teacher and Administrator Evaluations: How Confidential Are They?

by Tommy Fisher

The Texas Education Code 21.355 is simple and straightforward:

A document evaluating the performance of a teacher or administrator is confidential.

Tex. Ed. Code § 21.355(a).

What exactly is covered by the words “document evaluating the performance” and whether the documents are actually privileged has been left to courts to decide.

There are very few cases that deal with § 21.355.  The two most recent, North East ISD v. Greg Abbott and Fairchild v. Liberty ISD show that the confidentiality of the evaluations may depend on the court from which the subpoena originated.

Abbott v. N. E. Indep. Sch. Dist., 212 S.W.3d 364, (Tex. App. Austin 2006) was filed in the 345th District Court of Travis County.  North East ISD received a request for records regarding a teacher.  It sought guidance from the Attorney General, Greg Abbott. Attorney General Abbott ruled that one document, a memorandum from the school principal memorializing a meeting with the teacher concerning performance issues, was not privileged.  The District filed suit seeking a declaration that the document was confidential and exempt from disclosure.  The District Court granted summary judgment in favor of the District finding that the memorandum was “a document evaluating the performance of a teacher”.  On appeal, the Third Circuit Court of Appeals in Austin found that the memorandum evaluates the teacher because it reflects the principal’s judgment regarding her actions, gives corrective direction and provides for further review.  As a result, the memorandum was confidential under TEC 21.355. Similarly, other evaluative documents will likely be confidential as well.

However, if the reviewing court is a Federal District Court, the result will likely be different.  In Fairchild v. Liberty Indep. Sch. Dist., 466 F. Supp. 2d 817, (E.D. Tex. 2006), affirmed on other grounds, the U.S. Eastern District Court, Beaumont Division, found that the state law privilege set forth in TEC 21.355 does not protect the performance evaluations of a defendant teacher.  Julia Fairchild was a former teacher’s aide who filed an action against the District and the teacher in charge of her classroom, Jessica Lanier, alleging that she was fired in retaliation for complaining about Lanier’s dereliction of duty.  During discovery, Fairchild sought performance evaluations of Lanier.  The district argued that the evaluations were privileged under TEC 21.355.  Following a lengthy analysis of process by which state law privileges are applied by the Federal Court, the Federal District Court found that the evaluations were not privileged and that any privacy concerns can be preserved by entry of an appropriate protective order limiting further disclosure.

What does this mean for a District that receives a PIA request for teacher evaluations?  In Texas State Court and at the Attorney General’s Office, the TEC § 21.355 privilege will be recognized.  However, in Federal Court, there is a substantial risk that the evaluation will be produced.  A District producing such a report should seek to have a protective order entered by the Court that restricts the use and distribution of the report by those receiving it.

If you have questions about the release of evaluative documents, the attorneys at Leasor Crass stand ready to assist.

 

Sorry, Not Sorry

by Heather Castillo

Have you ever been involved in a Board-level grievance hearing and wondered, “How in the world did it get to this point?” It began with a simple mistake, a misunderstanding, or a less-than-respectful interaction, and then grew and festered into a grievance that went on for months. If the “offending party” had just promptly apologized or respectfully acknowledged his mistake, the grievance might have been resolved at the campus level or might not have been filed at all. The Administration finds itself in front of the Board at 10:00 p.m. (or later) because the “offending party” refused to apologize or acknowledge a mistake, or worse, attempted to justify it or shift the blame to someone else. In some cases, the “offending party” is not even present at the Board hearing.

Who is this “offending party”? It could be any employee. Here’s an example: A teacher who inadvertently miscalculates a grade. When a parent or the student questions the grade, the teacher responds in a condescending way and is slow to correct the grade.

Many grievances include a request (or demand) for an apology as part of the requested relief. Are these requests reasonable? Not usually, but in some cases, yes. Can a school district or one of its employees apologize or admit a mistake without creating legal liability? In some cases, yes. It depends on the specific facts of each case.

There are multiple legal articles that analyze the potential legal consequences for apologizing, the potential of apologies to avoid litigation, and the laws of various states that address the admissibility of apologies in court. For example, Texas Civil Practice & Remedies Code § 18.061 provides that a court in a civil case cannot admit evidence of a communication made to an accident victim or his family that “expresses sympathy or a general sense of benevolence relating to the pain, suffering, or death of an individual involved in an accident” if it is offered to prove liability. However, a communication which also includes a statement concerning negligence or culpable conduct pertaining to an accident or event is admissible to prove liability.

A March 1, 2017, article written by John Council for Texas Lawyer magazine, entitled “In Litigation, Sometimes All It Takes Is Saying ‘Sorry’” discusses how apologies, while rare, sometimes assist in the settlement of lawsuits.[i] An interesting point in this article comes from Mark Lanier, a successful Houston plaintiffs’ attorney. He says he never asks the defendants he sues (drug manufacturers and medical devices companies) for an apology for fear that they will actually offer one. He wants juries to hear that no one ever offered his client an apology. Lanier says: “I’d hate for a witness to say ‘I’m sorry this happened.’ That takes the sting away from the jury. We live in a society that grants repentance and I want [the defendant] to be punished. I’ll only ask for an apology if they’re not going to apologize.”

Granted, school district grievances usually pale in comparison to lawsuits involving serious personal injuries and claims for millions in damages. But think of the Board of Trustees as the jury – a jury who can overturn the Administration’s grievance decisions or craft any other relief for the grievant that they see fit. A Board of Trustees generally expects the Administration to do all that it reasonably can to resolve grievances. The Administration will probably be in a better position before the Board if it can provide evidence that some type of apology was offered (if one was clearly due), or that a mistake was acknowledged and corrected.

Of course, some grievances cannot be avoided.  Some grievants are unreasonable. And, some will simply not stop until they get a Board hearing. As stated above, offering an apology or admitting wrongdoing can be complicated. It is always best to seek legal advice before doing so, especially if you might do so in writing, e.g., in a grievance decision letter.

If you or your staff have questions about a grievance, need assistance with responding to a parent or employee concern before a grievance is filed, or would like training related to any of these issues, the attorneys at Leasor Crass stand ready to assist.

[i] http://www.texaslawyer.com/id=1202779050706/In-Litigation-Sometimes-All-It-Takes-Is-Saying-Sorry

Absence Makes the Heart Grow Fonder…of Your Absence

by Melissa Mozingo

The Americans with Disabilities Act (ADA) compels employers to be accommodating and flexible, but the harsh reality is that there are some jobs that a person with certain disabilities simply cannot do.  When an employee suffering from a disability can no longer perform the essential functions of her job with or without a reasonable accommodation, the ADA allows the employer to terminate her.  Although this rule might be more easily applied when dealing with a physical disability that prevents an employee from completing critical tasks, it also holds true for an employee with a mental or emotional disability, particularly one that prevents her from working at all. The Sixth Circuit made this crystal clear in Williams v. AT&T Mobility Services LLC.

The Williams case involved an AT&T customer service representative (CSR) who suffered from depression and anxiety attacks that caused her to frequently miss work.  Because of her excessive absenteeism, AT&T terminated Williams for job abandonment and violating the attendance policy.  Williams sued AT&T under the ADA for failing to provide a reasonable accommodation, failing to engage in the interactive process, and terminating her based on her disability.  The U.S. District Court for the Western District of Tennessee granted summary judgment to AT&T as to all of Williams’s claims.  Williams appealed, arguing that she could have performed her job despite her depression and anxiety attacks if AT&T had given her leave from work for treatment, flexible scheduling, and additional breaks during her shifts.  The Sixth Circuit disagreed.

Regular Attendance Was an Essential Job Function.

Citing EEOC v. Ford Motor Co., the Sixth Circuit first explained that regular attendance qualified as an essential job function, so employees with excessive absences were not qualified individuals under the ADA because they failed to perform that essential function (i.e., regularly attend their jobs).  Considering AT&T’s strict Attendance Guidelines and declarations from two AT&T managers regarding the CSR position, the Sixth Circuit held that regular attendance was an essential function of the CSR position.  The court noted Williams’s poor attendance record, including being absent from work for entire months in two different years, taking a six-month leave and nearly three-month leave, and not getting her unscheduled absences approved for short-term disability leave.  Given this record, the Sixth Circuit held that Williams could not perform the essential function of regularly attending her job and was not qualified to be a CSR without a reasonable accommodation.

Williams Did Not Request Reasonable Accommodations.

Because Williams failed to show how her proposed accommodations would have enabled her to perform the essential functions of a CSR, the Sixth Circuit also found that AT&T did not fail to accommodate her.  Williams admitted that her anxiety attacks were unpredictable, she could not perform her job duties during her attacks, she could not function in a call center environment, and she could not focus due to her mental illness.  Importantly, neither Williams nor her health care providers explained how flexible scheduling and additional breaks would have mitigated these issues and enabled Williams to do her job.  Furthermore, the Sixth Circuit held that requiring AT&T to grant Williams additional leave was an unreasonable accommodation because Williams had a history of taking leaves, her condition never improved during those leaves, and she repeatedly failed to return to work when her health care providers estimated that she would be able to return.

After reiterating that an employer’s failure to engage in the interactive process is only actionable if the employee can demonstrate that she was qualified for the position, the Sixth Circuit stated that it was unnecessary to consider whether AT&T failed to engage in the interactive process because Williams was unqualified for her position with or without a reasonable accommodation.  The court also agreed with the district court that Williams failed to establish a prima facie case of disability discrimination or retaliation and affirmed the district court’s summary judgment ruling in favor of AT&T.

Takeaways.

So, what is the Sixth Circuit telling us about how to deal with a mental disability that prevents an employee from coming to work? First, clearly articulate the essential functions of an employee’s job, preferably in writing (e.g., job description, employee handbook), and be sure to mention attendance is essential.  Second, assess whether the employee is performing the essential functions of her job (including coming to work), being sure to document and promptly inform the employee about deficiencies.  Third, discuss whether there are any reasonable accommodations available that would allow the employee to do her job.  Ask for recommendations from the employee’s health care providers during this interactive process.  If you and the employee (and the employee’s doctor) cannot come up with a reasonable accommodation that does not eliminate an essential job function of the position (i.e., coming to work), and you do not have a vacant position in which you can reasonably accommodate her, you may have to terminate the employee.  Although handling this type of issue may take some time, in this case the Sixth Circuit declared that AT&T did all that the ADA required.  Employers should follow its example.

If you or your staff would like training on this issue, or just require further information, the attorneys at Leasor Crass stand ready to assist.

A President’s Day Reminder: Authorities Still Matter

by Bobby Padgett

A Texas Court of Appeals has found that a former school employee reported suspected law violations to an appropriate law enforcement authority when she reported Penal Code violations to district police officers.  As such, the Court overturned the dismissal of her lawsuit and sent it back to the trial court for appropriate disposition.  This case is important because it delineates the type of authority and sufficiency of reporting necessary for a Whistleblower claim to proceed.

The former employee was the Director of Compliance for a Texas school district.  Her job required her to oversee compliance with UIL rules, identify problems that might affect UIL compliance, and provide training, ongoing support, and communication to district staff concerning compliance and eligibility requirements for all UIL activities.  The employee uncovered what she believed were serious problems related to the residency of student-athletes and potential falsification by coaches of Prior Athletic Participation Forms, which are required to ensure student-athletes that transfer to new high schools actually live within the new school’s attendance zone.  She reported her suspicions of wrongdoing to three departments within the district: the Office of Professional Responsibility; the Internal Audit Department; and the Professional Standards Office (PSO).  All of these departments were responsible for internal, administrative investigations of employee wrongdoing.  Additionally, the employee made reports of wrongdoing to the Chief and Assistant Chief of the district police department.  The PSO investigated the allegations and released a report confirming virtually all of her reports of wrongdoing. The day after the PSO released their report, the district terminated the employee.

While the district argued that the informal report to the district police department was insufficient to substantiate a Whistleblower claim, the court concluded that the employee’s conversations with district police officers sufficiently apprised them of her suspicion that district athletic personnel were tampering with governmental records in violation of the Texas Penal Code.  As the district police department had the authority to investigate such an offense, the court concluded that the employee had sufficiently reported criminal violations within the meaning of the Whistleblower Act and remanded that claim to the trial court.

The lessons here are those which should be carefully heeded.  First, before a district seeks to take employment action against an employee who has made reports of law violations to any district departments or individuals, an analysis should be conducted to find out if these departments or individuals qualify as appropriate law enforcement agencies to sustain a Whistleblower claim.  Second, before taking employment action against a district employee, an analysis should also be conducted to ensure that the employee cannot file a retaliation claim for engaging in a protected activity, such as reporting criminal law violations to appropriate authorities.

Leasor Crass, P.C. will continue to monitor these issues and provide guidance as new information becomes available.  In the meantime, please do not hesitate to contact our office should you have questions or concerns regarding existing Whistleblower and/or retaliation issues and the implications they may have for your district.

What Happened to that New Overtime Rule?

by Heather Castillo

The Fair Labor Standards Act (“FLSA”) and its implementing regulations provide minimum wage and overtime standards and protections. Workers are exempt from the FLSA minimum wage and overtime standards if they are employed in a bona fide executive, administrative, or professional capacity, as those terms are defined in the Department of Labor’s (“DOL”) regulations at 29 CFR part 541. This exemption from the FLSA is sometimes referred to as the “white collar” or “EAP” (executive, administrative, or professional) exemption.

In March 2014, President Obama signed a Presidential Memorandum directing the DOL to update regulations defining which workers are protected by the FLSA’s minimum wage and overtime standards. The regulations have not been updated since 2004.

The DOL went through the rule-making process and in May 2016, published the Final Rule updating the overtime regulations. The Final Rule was to become effective on December 1, 2016. The Final Rule would, among other things, increase the salary requirement for employees that are exempt from overtime, from $23,660 annually to $47,476. This was anticipated to make overtime available to an additional 4 million workers. Employers all over the country, including school districts in Texas, took action to prepare for the December 1, 2016, effective date by identifying employees who would be affected by the Final Rule and by making changes, or at least announcing changes to come, either by raising some employees’ salaries and/or by preparing some salaried employees to become hourly employees who would now be eligible for overtime.

However, prior to the December 1 effective date, numerous states filed a lawsuit to block the Final Rule from going into effect. On November 22, 2016, a U.S. District Court in Texas granted an Emergency Motion for Preliminary Injunction and enjoined the DOL from implementing and enforcing the Final Rule. (State of Nevada, et al. v. United States Department of Labor, et al.; No: 4:16-CV-00731, in the United States District Court, Eastern District of Texas, Sherman Division).

On December 1, 2016, the Department of Justice, on behalf of the DOL, filed a notice to appeal the preliminary injunction to the U.S. Circuit Court of Appeals for the Fifth Circuit. The Department has moved to expedite the appeal, which was approved by the Court.

The 5th Circuit will soon hear the expedited appeal of the preliminary injunction and briefs are due on January 31, 2017. Meanwhile, the original case continues in the U.S. District Court, which is considering a plaintiffs’ motion to end the Final Rule immediately, without a trial, and a motion by the Texas AFL-CIO to intervene in the lawsuit if the Department of Justice and DOL under President Trump’s new administration decide not to defend the Final Rule.

Until these legal challenges are resolved, the 2004 regulations remain in effect. We will keep you updated on the Final Rule on overtime and the 5th Circuit’s handling of the appeal of the preliminary injunction.

If you or your staff have questions about overtime, the Fair Labor Standards Act, the status of the Final Rule, or would like training related to these issues, the attorneys at Leasor Crass stand ready to assist.

Joking in the Boys’ Room: An Extreme Guide to a Hostile Work Environment (Pt. 2)

by Melissa Mozingo

Then presidential nominee Donald Trump’s 2005 ‘locker room talk’ video, which was leaked in October 2016, sparked an intense dialogue among voters about what constitutes sexual harassment.  Sexually suggestive comments, inappropriate touching, and sexual innuendos can all be construed as sexual harassment.  However, there should be no confusion in the workplace as to what is inappropriate.

Sexual harassment is the subject of more than 20 percent of the enforcement actions pursued by the Equal Employment Opportunity Commission (EEOC) every year.  Not all inappropriate behavior is actionable.  Under Title VII of the United States Civil Rights Act and its construing case law, sexual harassment occurs:

  • When a work-related benefit is conditioned on the granting of a sexual favor;
  • An employee or co-worker is subjected to unwanted sexual advances;
  • Where hostile conduct is based on the victim’s gender; or
  • When there is offensive, sexually charged workplace behavior.

Generally, one offensive comment or an isolated incident alone will not support a claim of sexual harassment.  However, unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature rise to the level of sexual harassment when the conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment. Courts typically consider several factors to determine whether an environment is hostile, including:

  • Whether the conduct was verbal, physical, or both;
  • How frequently it was repeated;
  • Whether the conduct was hostile or patently offensive;
  • Whether the alleged harasser was a co-worker or supervisor;
  • Whether others joined in perpetrating the harassment; and
  • Whether the harassment was directed at more than one individual.

The key to a sexual harassment claim is whether the actions were severe and pervasive so as to change the conditions of employment and create an abusive environment, judged either by an objective standard (in other words, any reasonable person would find the conduct abusive); and a subjective standard (in other words, the employee in question found the conduct abusive).

The 1982 landmark case Henson vs. Dundee, 682 F.2d 897 (11th Circuit 1982) established two different sets of legal grounds for claiming sexual harassment under Title VII:

  • “Harassment in which a supervisor demands sexual consideration in exchange for job benefits (quid pro quo);” and
  • “Harassment that creates and offensive environment.”

This ruling established that a plaintiff must also show some tangible job detriment in addition to the hostile work environment created by sexual harassment.

Sexual harassment at work is not limited to men harassing women.  The federal courts have also determined that workplace harassment can be applied to incidents in which the discrimination or harassment was between members of the same sex, incidents in which the employer or harasser has engaged in gender stereotyping, and incidents based on perceived or actual sexual orientation.

Any one comment can lead to a sexual harassment claim being made against the employer and often results in demoralized employees and possibly litigation.  If an employer does not promptly begin an investigation after any sexual harassment complaint is made (which may uncover a pattern of such comments), the employer may be regarded as not sufficiently concerned about or endorsing inappropriate conduct in the workplace.

As with other workplace issues, it is not effective to simply have policies and procedures in place.  One of the best ways to maintain a respectful and compliant workplace is ensure documentation is kept to show supervisors and employees have been trained about what constitutes sexual harassment, how to report conduct believed to be sexual harassment, and each employee’s obligation to promote respect and civility in the workplace.

In addition, it goes without saying that workplace culture usually has a “trickle-down” effect.  Therefore, it is the responsibility of administration at all levels to set the right tone for ending workplace harassment.  This includes avoiding conduct that may be construed as sexually harassing and keeping in mind that supervisors serve as a role model for employees.  Consequently, administration should never ignore “locker room talk,” even if no one complains.

If you have questions or would like training for your employees on this or any other school law topic, please do not hesitate to contact the attorneys at Leasor Crass, P.C.