While employers at most educational entities, such as K-12 schools, must follow applicable federal employment laws, there are unique provisions within those employment laws and other regulations that these employers must keep in mind.
Of course, many schools have collective bargaining agreements, as well as applicable state and local statutory and regulatory provisions that they must follow, which must always be considered in tandem with federal employment laws. However, in addition, laws such as the Family Medical Leave Act (“FMLA”) and the Fair Labor Standards Act (“FLSA”) have special provisions for instructional employees. There are also procedures pursuant to Title IX of the Education Amendments of 1972 (“Title IX”) to be followed in conjunction with the Civil Rights Act (“Title VII”) or state/local requirements for employment discrimination matters. An overview of some of these special provisions is outlined below.
The FMLA provides leave rights to eligible employees of covered employers for certain reasons. While the main provisions of the FMLA may be more utilized, it is important to remember that the FMLA also has certain special rules that apply to employees of local educational agencies, including public school boards and elementary and secondary schools under their jurisdiction, and private elementary and secondary schools. The special rules do not apply to other educational institutions, such as colleges and universities, trade schools, and preschools. Of note, educational institutions are covered by the FMLA and these special rules, and the FMLA’s 50-employee coverage test does not apply (though employees who work at such institutions with less than 50 employees within a 75-mile radius may not be eligible for such leave).
The special rules affect the taking of intermittent leave or leave on a reduced leave schedule, or leave near the end of an academic term (semester), by instructional employees (see 29 CFR § 825.600). Instructional employees are those whose principal function is to teach and instruct students in a class, a small group, or an individual setting. This term includes teachers, athletic coaches, driving instructors, and special education assistants such as signers for people who are deaf or hard of hearing. It does not include (and the special rules do not apply to) teacher assistants or aides whose principal job is not teaching or instructing. Nor does it include auxiliary personnel such as counselors, psychologists, or curriculum specialists. It also does not include cafeteria workers, maintenance workers, or bus drivers.
Special rules for instructional employees under the FMLA include (see 29 CFR § 825.601-603):
- Leave taken for a period that ends with the school year and begins the next semester is leave taken consecutively rather than intermittently. The period during the summer vacation when the employee would not have been required to report for duty is not counted against the employee’s FMLA leave entitlement. An instructional employee who is on FMLA leave at the end of the school year must be provided with any benefits over the summer vacation that employees would normally receive if they had been working at the end of the school year.
- Suppose an eligible instructional employee needs intermittent leave or leave on a reduced leave schedule to care for a family member with a serious health condition, to care for a covered servicemember, or for the employee’s own serious health condition, which is foreseeable based on planned medical treatment, and the employee would be on leave for more than 20 percent of the total number of working days over the period the leave would extend. In that case, the employer may require the employee to choose either to: (i) Take leave for a period or periods of a particular duration not greater than the duration of the planned treatment; or (ii) Transfer temporarily to an available alternative position for which the employee is qualified, which has equivalent pay and benefits and which better accommodates recurring periods of leave than does the employee’s regular position.
- If an instructional employee does not give required notice of foreseeable FMLA leave to be taken intermittently or on a reduced leave schedule, the employer may require the employee to take leave of a particular duration or to transfer temporarily to an alternative position. Alternatively, the employer may require the employee to delay taking leave until the notice provision is met.
- There are also different rules for instructional employees whose leave affects the last three weeks of the academic term (meaning the school semester, which typically ends near the end of the calendar year and the end of spring each school year). Regular rules apply except in circumstances when:
- An instructional employee begins leave more than five weeks before the end of a term. The employer may require the employee to continue taking leave until the end of the term if (i)The leave will last at least three weeks, and (ii) The employee would return to work during the three-week period before the end of the term.
- The employee begins leave during the five weeks before the end of a term because of the birth of a son or daughter; the placement of a son or daughter for adoption or foster care; to care for a spouse, son, daughter, or parent with a serious health condition; or to care for a covered servicemember. The employer may require the employee to continue taking leave until the end of the term if (i)The leave will last more than two weeks, and (ii) The employee would return to work during the two-week period before the end of the term.
- The employee begins leave during the three-week period before the end of a term because of the birth of a son or daughter; the placement of a son or daughter for adoption or foster care; to care for a spouse, son, daughter, or parent with a serious health condition; or to care for a covered servicemember. The employer may require the employee to continue taking leave until the end of the term if the leave will last more than five working days.
- If an employee chooses to take leave for periods of a particular duration in the case of intermittent or reduced schedule leave, the entire period of leave taken will count as FMLA leave. In the case of an employee who is required to take leave until the end of an academic term, only the period of leave until the employee is ready and able to return to work shall be charged against the employee’s FMLA leave entitlement. However, the employer shall be required to maintain the employee’s group health insurance and restore the employee to the same or equivalent job, including other benefits at the conclusion of the leave.
Special rules also apply to restoration to an equivalent position (see 29 CFR § 825.604).
The FLSA establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments. Employees with a primary duty of teaching, tutoring, instructing or lecturing in the activity of imparting knowledge and who are employed and engaged in this activity as a teacher in an educational establishment by which the employee is employed, are exempt employees under the FLSA. Teachers with a teaching certificate qualify for the exemption regardless of the terminology the State uses to refer to different kinds of certificates. In addition, a teacher who is not certified may be considered for exemption, provided that the individual is employed as a teacher by the employing school or school system. Substitute teachers also qualify for the exemption if their primary duty is teaching and imparting knowledge in an educational establishment.
The FLSA indicates that its general rules for professional employees and salary requirements do not apply to exempt teaching professionals. Therefore, according to the Department of Labor Field Operations Handbook, employers may dock the pay of those teachers for partial-day absences without losing the exemption (see also WHD Opinion Letter FLSA2005-34). Pay may not typically be docked for partial-day absences from other types of exempt employees unless there is a specific permitted reason to do so (for example, unpaid FMLA absences).
The FLSA regulations also set a special alternative for certain academic administrative employees’ standard duties and salaries requirements. Specifically, the administrative exemption applies to an employee who is employed by an educational establishment, whose primary duty is performing administrative functions directly related to academic instruction or training in the educational establishment, and who is compensated on a salary or fee basis at not less than the standard salary level or on a salary basis equal to at least the entrance salary for teachers in the employing educational establishment (see 29 CFR 541.204(a)).
Sexual Harassment Complaints and Title IX Considerations
Most employers are aware of Title VII’s prohibition of sex discrimination, including sexual harassment, in employment. However, employers at certain educational institutions must also be aware of Title IX sexual harassment procedures.
Title IX applies to educational institutions that receive federal financial assistance (please consult with your legal counsel to confirm whether Title IX applies to your entity). Title IX is not just applicable to instances of sex discrimination involving students. Title IX is also implicated when there are allegations of sex discrimination involving staff members, and employers must fulfill their obligations under Title VII and Title IX. Therefore, it is important to note that if Title IX covers the educational institution and receives a report or complaint involving sexual harassment covered by Title IX, the employment administrators may not just proceed through its typical sex discrimination or harassment investigation process. Instead, the educational institution’s Title IX Coordinator must promptly reach out to the alleged victim, supportive measures must be considered, and the Title IX grievance procedure must be followed. Per the current Title IX regulations issued in 2020, which will likely be subject to change in the near future (see Dickinson Wright’s previous All Things HR blog post on the proposed new Title IX regulations), the Title IX grievance procedure for alleged sexual harassment must include, among other procedural requirements:
- written notice of the allegations, including and not limited to identification of the parties, sent to the parties when a formal complaint is filed (therefore, the alleged victim cannot remain anonymous);
- the right to have an advisor (who may or may not be an attorney) present during all proceedings;
- written notice to a party of all investigative interviews with sufficient time to prepare;
- the sharing of all evidence directly related to the allegations with the parties, and allow ten days for review and response;
- a formal investigative report which is provided to the parties for review and response at least ten days before any hearing (if applicable) or decision;
- a written question and answer period or hearing (if applicable);
- a written decision issued by someone who did not perform the investigation; and
- formal, specific, training of those administrators involved in the process.
If you have any questions about the above or about the FMLA, FLSA, or Title IX, please do not hesitate to contact the author.
About the Author:
Chelsea Canaday is an attorney in Dickinson Wright’s Columbus office. She focuses her practice primarily in the areas of education and employment law. Chelsea can be reached at 614-591-5496 or firstname.lastname@example.org, and you can visit her bio here.