Public Schools
Donnelly v. Greenburgh Central School District, a recent federal court decision, addresses one of the core eligibility issues under the Federal Family & Medical Leave Act (FMLA).
The court focused on what hours must be counted toward the 1,250 hours of actual work when determining whether an employee is eligible for leave under the FMLA leave. In particular, the court focused on counting work from home or away from the workplace. The former high school teacher alleged that he was denied tenure in retaliation for taking FMLA leave. The district defended by arguing that Donnelly was not eligible for FMLA leave because he had not worked at least 1,250 hours during the previous 12 months.
The district relied on the certificated collective bargaining agreement to calculate the number of hours Donnelly actually worked. The collective bargaining agreement provided that the maximum work day for a teacher was 7.5 hours, which is one hour longer than the school day. The district multiplied this number by the number of days Donnelly worked during the previous year and found that he worked 1,247 hours (only three hours shy of qualifying for FMLA leave).
Donnelly argued that he typically worked 1.5 hours before and after class and that additional time should be included in calculating his FMLA eligibility. A judge disagreed and relied upon the maximum work day in the collective bargaining agreement in finding that Donnelly was not eligible for FMLA leave because he could not produce reliable evidence showing that he actually worked 1.5 hours each day before and after class performing work that was integral to his teaching job. Accordingly, the judge dismissed his FMLA retaliation claim.
Brokers who place School Board and Educators Legal Liability insurance are beginning to notice that the marketplace has gotten more difficult. Layoffs from budget cuts have triggered an increase in Employment Practices Liability (EPL) claims, while the tough job market has led to an increased amount of "failure to educate" claims.
The very public proceedings involving Penn State University have recently reminded us that sexual abuse and molestation are critical claim issues for schools. Any article written about a class of business that touches Personally Identifiable Information (PII) and doesn't mention Cyberliability fails to address another major source of trouble.
Based on these and other factors, insurers are either non-renewing business or re-underwriting their book, which leads to a restriction in terms.
Effective December 30, 2012, the California Department of Fair Employment & Housing has a whole new set of disability discrimination regulations to enforce under the Fair Employment & Housing Act (FEHA). The regulations govern the rights of job applicants and employees with disabilities in every aspect of the employment relationship, from recruiting and hiring, to terms and conditions of employment, performance management, discipline, and discharge. And of course a primary focus is the mandated timely, good faith interactive process for evaluating and implementing reasonable accommodations in the workplace.
A significant emphasis in the FEHA, and the new regulations, involves defining unlawful employment practices — particularly those that result in adverse employment consequences to an applicant or employee based on a disability. The new FEHA regulations add "involuntary transfer or reassignment" to the list of potential adverse employment actions for which an employee can make a disability discrimination claim, which may have a significant impact on school districts as employers.
Administrators will soon begin making staffing decisions that involve involuntary reassignments for the coming school year. They should be aware of the impact the disability regulations may have on their decision making process. This is particularly important in situations where the district either has been on notice that the affected employee has a disability, or one of the factors in choosing the employee for the reassignment involves disability-related issues (such as erratic attendance due to the condition, prior use of medical leave, or prior requests for accommodation).
This article provides further explanation about this issue and the anticipated impact on California school districts. In addition, this article draws a distinction between involuntary reassignments and reassignments that are offered during an interactive process as a reasonable accommodation.
On June 25, 2012, in Boliou v. Stockton Unified School District, an appeals court ruled that once a school district schedules a termination hearing against a tenured teacher, it cannot unilaterally rescind the dismissal charges and thereby avoid paying the teacher's attorneys' fees and costs. The district is required to conclude the proceedings only as provided by statute, with the Commission on Professional Competence rendering a decision.
Stockton Unified filed an accusation against tenured teacher Mr. Boliou, specifying conduct it claimed merited his dismissal. He denied the conduct and demanded a hearing, which the district scheduled. After 18 months of vigorous litigation and some unfavorable rulings, the district moved to dismiss the charges. Boliou objected and demanded a ruling from the Commission that he should not be dismissed from his employment. This would entitle him to reasonable attorney fees and costs under Education Code §44944(e)(2). The Commission granted the district's motion to dismiss the charges.
Boliou then went to court, and a judge granted his Petition for Writ of Administrative Mandamus, ordering the Commission to modify its dismissal order to include an express determination that Boliou should not be dismissed. The court also ordered the district to pay Boliou's reasonable attorneys' fees and costs.
The district appealed, and the appellate court upheld the writ. Even though no evidence was taken, the Commission was bound to conduct the hearing, once scheduled. Given the district's dismissal of all charges against Boliou, the court found the only appropriate disposition was a finding that Boliou "should not be dismissed or suspended." Once the Commission entered that finding, Boliou was also entitled to his reasonable attorney fees and costs.
On April 26, 2012, the California Fourth Appellate District in San Diego ruled that the anti-retaliation provision of the Reporting by School Employees of Improper Governmental Activities Act does not exempt management employees from liability, where those employees act in a supervisory capacity when they retaliate (Hartnett v Crosier).
Rodger Hartnett worked as a claims coordinator in the San Diego County Office of Education's risk management department. He was discharged for incompetence, insubordination, and dishonesty. He believed that he was actually fired in retaliation for disclosing that several colleagues referred the Education Office's legal business to friends and family in exchange for unlawful benefits, including discounted personal legal services. So, he sued them individually for retaliation in violation of Education Code §44113(a). He also sought punitive damages and attorney fees under Education Code §44114(c).
This Act bars "an employee" from using his or her official position to retaliate against "any person" to deter the person from making a disclosure of wrongdoing covered by the Act, which includes public expenditures.
At issue was whether the individual defendants were "employees" such that the statute prohibited their alleged retaliatory acts and permitted a civil action against them. "Employee" means a person employed by a public school employer except, among others, management employees. Management employees are those with significant responsibilities for formulating policies or administering programs.
The individuals prevailed initially, when a judge concluded the Act did not apply to them because they were management employees.
The California Supreme Court issued its decision in C.A. v. William S. Hart Union High School District On March 8, 2012, ruling that school districts may be held liable if a supervisory or administrative employee is found to have negligently exposed a student to a foreseeable danger of sexual abuse by a school employee.
The decision establishes that district administrators have a "legal duty" to protect students from harm from employees. Breach of that legal duty by negligently hiring or supervising the wrongdoer can support a lawsuit for damages. In turn, the district may be held vicariously liable for the negligent acts of supervisors or administrators.
The student, referred to as "C.A." claims that when he was 14 and 15, his guidance counselor sexually harassed and molested him on numerous occasions at the school, at shopping malls and in the counselor's car. He alleges that the counselor used her position of authority and trust to force him to engage in sexual activities ranging from massages to intercourse.
His legal theory is based on the premise that his injuries arose not only from the sexual abuse, but also from the district's failure (through school administrators) to properly hire, train and supervise the counselor and to prevent her from harming him. The lawsuit charges that district officials knew or should have known that she had an alleged previous history of molestation and were negligent in hiring and supervising her.
A Los Angeles judge initially dismissed the case against the district, finding no statutory authority to hold a public agency liable for negligently hiring or supervising an employee. A divided appellate court agreed, accepting the district's argument that principals, administrators and the Superintendent have no special relationship with individual students that would trigger a legal duty to protect them from third-party harm. The Supreme Court forcefully rejected this argument and reversed the Appeals Court's ruling that school districts can't be sued on theories of negligent supervision, hiring, or training of subordinate employees.
The issue before the Supreme Court was not whether the district may be strictly liable for the conduct of the counselor, because her conduct was clearly outside the scope of her employment. Rather, the focus was whether the district itself could be held liable for the negligence of supervisory or administrative personnel who allegedly "knew, or reasonably should have known" of the counselor's propensities and nevertheless hired, retained and inadequately supervised her.
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