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Issue 7 · September 10,
2012
Welcome to Education
Administration Headlines + More!
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professionals a speedy and authoritative source of information
needed to run a modern teaching and learning enterprise, from pre-K
to university, from small school to multi-level system. Our mission
is to help you stay on top of the kaleidoscope of issues that
confronts you every day in a busy, constantly moving educational
institution. Human resources management, student achievement,
teacher performance, technology and innovation, financial
management, regulatory and standards compliance, community dialog,
and risk mitigation -- we cover it all. Our editors follow what's
happening daily and bring it to you in a concise and easy-to-read
format. Plus!
we follow legal developments in our "Education in the
Courts" feature and provide insights from leading thinkers and
experts in the field of education. In addition, we notify you of
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General
Public Is "Down" on Public Schools
The general public rates public schools below private schools,
charter schools, and other education providers, but the funny thing
is: the parents of public school students think their kids are
getting a fine education.
School
and Coach Not Liable for Athlete's Injuries
When students partake in extracurricular sports and recreation,
they assume responsibility for the physical risks, as long as the
school exercises ordinary reasonable care to protect their student
athletes.
Webinars
Begin This Week!
Sign Up Now!
School
Bullying: How to Build a Bully-Free Campus and Staff
Wednesday, September 12, 2012 @ 1 PM Eastern
About one-third of students are bullied each year, and even adults
can be bullied in a school setting, as evidenced recently by the
school bus monitor who was brought to tears by her young
tormentors. This briefing will examine the nature of bullying and
describe the steps that visionary schools are taking to become
no-bully zones.
How
to Write an Effective Anti-Harassment Policy and Related Procedures
to Include
Wednesday,
October 24, 2012 @ 1 PM Eastern
An effective anti-harassment policy must encompass all types of
harassment (including sex- and race-based), all channels (from
face-to-face to social media), and all types (student-to-student,
staff-to-student, staff-to-staff, and student-to-staff). Get
guidance on how to capture all these situations in a comprehensive
policy that defines your responsibilities and lowers your legal
risks.
Constitutional
Protections of Employees During Misconduct Investigations
Thursday,
November 1, 2012 @ 1 PM Eastern
Understand how to investigate alleged employee misconduct without
violating the employee's constitutional rights -- particularly in
situations where law enforcement becomes involved in the
investigation. Learn about the scope of free speech rights, due
process, and other relevant legal and constitutional principles.
No Time Now?
All Webinars Will Be Accessible on CD!
What if you have a time conflict and can't participate
in a webinar of interest on its scheduled date and time? Don't
worry. You can still take advantage of our CD option. Soon after
completion of each webinar, the program will be available on CD. Click
here for the complete listing and future
ordering information.
Three Hours Short? Not Enough to
Disqualify Teacher in FMLA Lawsuit
To be eligible for protection under the Family and
Medical Leave Act (FMLA), an employee must work at least 1,250
hours during the previous 12-month period. This threshold may not
necessarily apply to teachers, however, ruled the Second Circuit
Court of Appeals in Donnelly
v. Greenburgh Central School District No. 7.
In this case, the plaintiff, a former high school
teacher, claimed that he had been unlawfully denied tenure for
having taken protected leave under the FMLA. As is common practice
in school districts around the country, new teachers in the
Greenburgh Central School District are hired under a three-year
probationary contract period, after which they are evaluated for
tenure and either receive or are denied a permanent teaching
position.
During the plaintiff's third and final year of his
probationary contract, he became ill and had gall bladder surgery,
which resulted in him missing more than a week of teaching. Prior
to his surgery, the plaintiff had earned consistently high ratings
for his performance in the classroom. Post-leave, after numerous
absences, his evaluations fell, with his high school principal
criticizing him orally and in writing for his absences, including
those taken during his medical leave. At the conclusion of the
three-year probationary period, the plaintiff was denied tenure.
The plaintiff sued, alleging that the district had denied him
tenure in retaliation for his taking leave pursuant to the FMLA.
The federal district court sided with the school
district. The court ruled that, even if the plaintiff were eligible
for FMLA leave, he had not shown that he was qualified for tenure
under standards established in Zahorik
v. Cornell Univ., a case involving discriminatory
denial of tenure to assistant professors at the university.
Considering that issue "dispositive," the district court
did not address Donnelly's arguable FMLA eligibility.
On appeal, the court ruled that Zahorik
applies only in the context of colleges and universities; it does
not apply to high school teachers challenging allegedly unlawful
tenure denials. Consequently, the appeals court turned to the FMLA
aspect of the case.
The court rejected the argument that the plaintiff was
not eligible for FMLA leave. The school district argued that the
plaintiff had worked only 1,247 hours during the preceding year --
3 hours short of the 1,250 threshold for FMLA leave eligibility.
The 1,247 figure was arrived at by calculating the number of hours
teachers were required to work under their union's collective
bargaining agreement (CBA) -- namely, 7 hours and 15 minutes per
day for 172 days worked of a 189-day school year.
The plaintiff claimed that "most teachers
regularly work in excess of a total of 1 hour before and after
class," and that he "typically worked a total of 1.5
hours before and after class every day." There was no record
as to whether the plaintiff actually worked additional hours beyond
that required by the CBA, but the court noted that the CBA
explicitly stated that teachers work extra hours outside of the
hours anticipated by the CBA.
The court also noted that the burden of proof lies with
the school district in this case, citing the Department of Labor's
regulations interpreting the FMLA as follows:
"[I]n the event an employer does not maintain an
accurate record of hours worked by an employee, including for
employees who are exempt from FLSA's requirement that a record be
kept of their hours worked ..., the employer has the burden of
showing that the employee has not worked the requisite hours. An
employer must be able to clearly demonstrate, for example, that
full-time teachers ... of an elementary or secondary school system,
or institution of higher education, or other educational
establishment or institution (who often work outside the classroom
or at their homes) did not work 1,250 hours during the previous 12
months in order to claim that the teachers are not eligible for
FMLA leave."
Thus, the appeals court reversed the district court and
remanded the case for trial.
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