Education Law Alert  September 7, 2010

Education Law Practice Group Contacts

John L. Gierak

248.988.5845

Barbara A. Ruga

616.608.1105

Contributor

Kurt M. Graham 616.608.1144

Education Law Practice Group
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Dana L. Abrahams

Kristin B. Bellar

Roderick S. Coy

James M. Crowley

John L. Gierak

Kurt M. Graham 

Marshall W. Grate

Edward C. Hammond

Mark W. McInerney

Daniel H. Minkus 

William A. Moore 

Jeremy S. Motz
Nancy L. Mullett

Kevin M. Nalu

Barbara A. Ruga

Roger A. Swets

Alan D. Szuma

Joseph E. Turner, Jr.

Reginald M. Turner, Jr.

Joseph B. Urban

Ann L. VanderLaan 

Education Law Alert

Welcome Back: What Happened During Summer Vacation?

by Barbara A. Ruga & Kurt M. Graham

Since school ended last June, there have been a number of legal developments that may affect your school's Human Resources functions.  The United States Department of Labor ("DOL"), in particular, had a busy summer.  Hoping that many of you had a meaningful chance to regroup and recharge your batteries without much attention to electronic media, this e-alert summarizes key developments of which you should be aware.

1. FMLA Update.  On June 22, 2010, the DOL issued an Administrator Interpretation of "son or daughter" under the Family Medical Leave Act.  The new Interpretation applies to situations where there is no legal or biological relationship between an employee who requests FMLA leave for the birth or placement of a son or daughter, or otherwise care for a son or daughter with a serious health condition.  The Interpretation notes that the words "son or daughter" include a biological relationship, adopted children and "foster child, stepchild, legal ward or in loco parentis" if:  (a) under 18 years of age or (b) incapable of self-care because of a physical or mental disability. 

Essentially, the Interpretation requires that the words "son or daughter" are to be given the same expansive meaning for purposes of FMLA leaves as the term  "parent" under FERPA.  Son or daughter includes not only biological or adopted children, but also individuals who have a parent-child relationship without a formal legal process that recognizes that fact.  The DOL acknowledges that this is a relationship where the employee has day-to-day responsibilities for the alleged son or daughter and that many factors will be considered in making this determination.  The Interpretation is AI 2010-3 and

can be found at:

http://www.dol.gov/whd/opinion/adminIntrprtn/FMLA/2010/FMLAAI2010_3.htm

2. Breaks for Nursing Mothers Clarified.  On July 22, 2010, the U.S. Department of Labor issued Fact Sheet #73 concerning the new break time requirement for nursing mothers as  part of the Patient Protection and Affordable Care Act effective March 23, 2010.  The new Fact Sheet provides more detail about the Act's requirements.  Of importance to school HR administrators, these requirements are applicable only to employees who are not exempt from the federal wage and hour laws, that is, employees designated as "hourly employees" or salaried employees who are not exempt because of the nature of their duties.  Within the Fact Sheet, the DOL explains that bathrooms do not satisfy the requirement of providing a private space for working moms to express breast milk.

While it seeks to clarify, the Fact Sheet is somewhat confusing because it states that breaks are not required to be compensated unless other break periods are compensated.  However, applicable law is clear that non-exempt employees who take a break 20 minutes or less must be paid for that work time, so the reference within the Fact Sheet is difficult to apply.

You should check your collective bargaining agreements and board policies, where applicable, to determine if a nursing mother's break to express breast milk must be compensated.  The new Fact Sheet can be found at: http://www.dol.gov/whd/regs/compliance/whdfs73.htm

3. Michigan Attorney General Provides Guidance on Outsourcing.  In January of 2010, Section 15 of the Public Employment Relations Act ("PERA"), was amended by Public Act 201 of 2009.  Public school districts and the bargaining units which provide various non-instructional support services for public school districts, have been at odds regarding the scope of the new amendments, which are highlighted as follows:

(3)  Collective bargaining between a public school employer and a bargaining representative shall not include any of the following subjects: 

(f) The decision of whether or not to contract with a third party for one or more noninstructional support services; or the procedures for obtaining a contract for noninstructional support services other than bidding described in this subdivision; or the identity of the third-party; or the impact of the contract for noninstructional support services on individual employees or the bargaining unit.  However, this subdivision applies only if the bargaining unit that is providing the noninstructional support services is given an opportunity to bid on the contract for the noninstructional support services on an equal basis as other bidders. 

(4) Except as otherwise provided in Subsection 3(f), the matters described in Subsection (3) are prohibited subjects of bargaining between a public school employer and a bargaining representative of its employees, and, for the purposes of this Act, are within the sole authority of the public school employer to decide.

Based on these amendments, bargaining units facing privatization have sent public school districts broadly worded demands to bargain over any and all aspects of the public school district's decisions and procedures for outsourcing the non-instructional support service(s) provided by the bargaining unit, including, but not limited to, the specific content of the Request For Proposal ("RFP"), the procedures for bidding and the scope of the contract between the public school district and the selected third-party contractor. 

On June 15, 2010, the Michigan Attorney General issued Opinion No. 7249 to provide guidance as to the scope of the these amendments to Section 15 of PERA.  After a thorough analysis of the amendments to Section 15, along with the legislative history of Public Act 201, the Attorney General opined that the new phrase "other than bidding described in this subdivision" in the first sentence and the addition of the second sentence in subdivision (f), when read together, create only a narrow exception to the prohibited subjects of bargaining in Section 15.  The exception created by the amendments to Section 15 applies only to whether a public school district will allow the bargaining unit to bid on the contract on an equal basis as other bidders.

If the "bargaining unit that is providing the noninstructional support services is given the opportunity to bid on the contract on an equal basis as other bidder - whether as a consequence of collective bargaining or otherwise - the prohibitions against collective bargaining on the four other listed subjects in subdivision (f) apply."  The Attorney General further opined that allowing the bargaining unit to bargain over all aspects of the procedures for outsourcing noninstructional support services would render subdivision (f) meaningless, and create the appearance, if not the substance, of a competitive advantage for the collective bargaining unit in the bidding process. Attorney General

Opinion No. 7249 can be found at:

http://www.ag.state.mi.us/opinion/datafiles/2010s/op10326.htm

4. United States Supreme Court Upholds Public Employer's Search of Its Employee's Text Messages.  In City of Ontario v. Quon, 130 S. Ct. 2619 (2010), the United States Supreme Court held on June 17, 2010, that a public employer's search of an employee's text messages sent and received on an employer-owned pager, was reasonable and did not violate the Fourth Amendment of the U.S. Constitution. 

Important to the decision, the OPD had a Computer Usage, Internet and E-Mail Policy ("Policy") in which the City reserved "the right to monitor and log all network activity including e-mail and Internet use, with or without notice."  The Policy also notified employees that they "should have no expectation of privacy or confidentiality when using these resources."  Although the Policy did not cover text messages, the City made clear to employees, including Quon, that it treated text messages in the same manner as e-mails. 

The Court stated that when conducted for a "noninvestigatory, work-related purpose" or for the "investigation of work-related misconduct," a public employer's warrantless search is reasonable if it is "justified at its inception" and if "the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the circumstances giving rise to the search."  

While no bright line rule emerged on the scope of employees' privacy rights while using employer-provided electronic equipment, in order to strengthen its argument that an employee has no reasonable expectation of privacy, a district should regularly review and update its acceptable use policies to cover evolving electronic technologies, expressly state that such technologies may be monitored, and advise employees that they have no expectation of privacy in their usage. 

Further, when conducting work-related misconduct investigations involving employee usage of electronic communications, any search of electronic communications must be reasonably related to the objectives of the investigation, and not excessively intrusive in light of the circumstances.  In other words, even where a school district has a right to access an employee's technology usage to investigate possible misconduct or a policy violation, its access should not go beyond what is absolutely necessary in order to determine whether misconduct or a policy violation has occurred.

5. FOIA Requests for Mandatory Reports of Suspected Child Abuse Properly Denied.

In Bloch v. Davison Community Schools (No.29709), an unpublished Michigan Court of Appeals opinion, the Court upheld the denial of a FOIA request for records relating to a report of suspected child abuse by a District employee.  The FOIA requester was the father of a student involved in what the court referred to as a rancorous divorce in which allegations of abuse were made by the mother.  After being cleared of the allegations, the father claimed the school employee had made the report in bad faith and he was thus entitled to the records from the school.

The Court supported the District's denial of the reports, noting that the identity of the reporting party is confidential under the Child Protection Law (CPL) and can be disclosed only with the consent of the reporting  party or court order.  MCL 722.625.  The Court also upheld the district's decision to provide the requested reports, but with all names and text blacked out.  The reporter had handwritten the report and thus, the Court agreed that divulging the record could have led to the identification of the reporter in violation of the CPL.   The District was not under any obligation to create a typed record to reduce the possibility of identification of the reporter. 

Significantly, the Court went so far as to say that even a claim of bad faith reporting did not alter its holding.  Divulging the identity of a reporter would not only violate the CPL, it could have a significant chilling effect on a reporter's willingness to make a report which would be contrary to the best interest of children in need of protection.  Thus, even where a claim is made that a report was made in bad faith, the confidentiality exclusion of the CPL applies and makes these reports exempt from FOIA requests.

6. Michigan Supreme Court Opens Door, Perhaps, to Suits Against District for Failure to Expel Students.

The Michigan Supreme Court ruled teachers may now have legal standing to challenge a district's failure to expel students under one of the "zero tolerance" laws enacted by the Michigan Legislature in 1999. 

In Lansing Schools Education Association v. Lansing Board of Education, a group of teachers sued their district for failing to expel students for alleged teacher assaults, as required by MCL §380.1311a.  The district argued that the teachers had no legal standing to challenge the district's action.  The Ingham County Circuit Court disregarded the standing argument, holding instead that the district had the discretion to determine whether a physical assault occurred within the meaning of the statute, that the district had determined that the students' conduct did not constitute assault under the statute, and that courts should not oversee - that is second-guess - the disciplinary decisions of a district.  The Circuit Court dismissed the teachers' case. 

Relying on a 2001 Michigan Supreme Court case, the Court of Appeals affirmed that the teachers did not have standing to challenge the district's discipline decisions, and thus affirmed the dismissal of the teachers' case on that basis alone.  The teachers appealed to the Michigan Supreme Court.  In an extensive decision, the Supreme Court reversed the 2001 decision and reinstated the standing rules that had previously existed.

Under the newly resurrected standing rules, where, as in this case, the statute in question did not expressly grant a potential litigant standing, that litigant might nevertheless be entitled to sue "if the litigant has a special injury or right, or substantial interest, that will be detrimentally affected in a manner different from the citizenry at large."  The Supreme Court noted that one of the primary purposes of the statutory provisions dealing with assaults on school employees was the protection of those employees, and the Supreme Court concluded that that connection gave the teachers a "special injury" or interest sufficient to confer legal standing. 

The Supreme Court declined to determine whether this particular case could go forward, and, instead, sent the case back to the Court of Appeals.  The Court of Appeals must now review the reasons the Circuit Court gave for dismissing the teachers' claims.  Foremost among those reasons was the school district's determination that the student conduct in question did not qualify as an "assault" under MCL §380.1311a, and that courts should defer to schools' judgment and should not oversee the individual disciplinary decisions of a local school board.  That principle of deference to the discretion of school administrators has been recognized and applied in a number of cases over the years, and may ultimately be sufficient in this case to support upholding the school's decision.  

By the time the Court of Appeals issues a new decision and another appeal is likely made to the Supreme Court, it may take years to receive a final answer.  In the meantime, districts should continue following the "zero tolerance" laws to the best of their ability, recognizing that third party challenges for failure to impose mandatory expulsions for violations of those laws remain unlikely to prevail.  

It has been a busy summer and odds are the pace will quicken now that school is back in session.  Please feel free to call your Clark Hill Education Practice Group attorney for any assistance you may need this year.

For further information about the content of this Education Law Update, please contact John Gierak or Barbara Ruga. To find out more about Clark Hill and our Education Law team, visit clarkhill.com or call 800.949.3124

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