LEGAL ALERT- CORONAVIRUS: EMPLOYMENT UPDATE

03/22/20

The unprecedented COVID-19 (Coronavirus) outbreak has unsettled the entire nation, demanding immediate adjustments to limit the transmission of the virus. Throughout our country, public schools closed to limit social interactions with others and slow the spread of COVID-19. Consequently, employers now face unique challenges. In school districts, important concerns revolve around the implementation of the Families First Coronavirus Response Act and whether classified employees should be paid during government mandated closures.

Special Provision(s)- H.R.6201- Families First Coronavirus Response Act

On March 18, 2020, the U.S. Senate passed H.R.6201, the Families First Coronavirus Response Act (Act), to assist with the COVID-19 crisis. This Act addresses immediate public health related matters and impacts employers. Specifically, the Act addresses paid family medical leave, paid sick leave, and unemployment insurance. The provisions will go into effect on April 2, 2020, and will expire on December 31, 2020.

Paid Family Medical Leave – The bill provides for 12 weeks of job-protected paid Family and Medical Leave Act (FMLA) leave; the first 10 days may be unpaid. Furthermore, employees may use accrued personal or sick leave during the first 10 days, but employers may not require employees to do so. Following the first 10 days, employers must compensate employees in an amount that is not less than two-thirds of the employee’s regular rate of pay up to $200 per day or $10,000 in the aggregate. However, these pay requirements apply to only the COVID-19-related triggering events allowing the employee to: self-quarantine, seek preventive care or a diagnosis, or receive treatment for COVID-19, care for a family member or a child whose school or childcare provider is closed due to COVID-19. This leave benefit covers employees who have been working for at least 30 calendar days and applies to any private sector employers under 500 employees.

Paid Sick Leave – Regarding paid sick leave, the Act states that employers with fewer than 500 employees will be required to provide full-time employees 2 weeks (80 hours) of paid sick leave for specific circumstances related to COVID-19. Alternatively, part-time employees are entitled to the number of hours of paid sick time equal to the average number of hours they work over a 2-week period. Employers are required to compensate employees for any paid sick time they take at their regular rates of pay and to post a notice informing employees of their rights to leave. Furthermore, the Act does not preempt existing state or local paid sick leave entitlements.

Unemployment Insurance – The Act provides for $1 billion in emergency unemployment insurance (UI) relief to the states. $500 million will be allocated towards costs associated with increased administration of each state’s UI program and $500 million will be held in reserve to assist states with a 10 percent increase in unemployment. Additionally, to receive a portion of this grant money, states must temporarily relax certain UI eligibility requirements, such as waiting periods and work search requirements.  South Carolina is currently expected to see a surge in unemployment claims resulting from COVID-19; employers may apply for benefits for their released employees to ensure they receive compensation.  Employers will not be fiscally penalized for the rise of unemployment claims related to COVID-19.

Current Trends – Pay for Classified Staff

The majority of school districts appear to limit the adverse effects of COVID-19 by continuing to pay their employees. However, while school districts agree on paying employees, the reach of who will be paid greatly varies. An array of considerations must be weighed in making this decision including budget constraints, morale, and legal requirements. Among these considerations, the financial impact prevails. For now, many school districts have funding, which was previously budgeted, to pay all employees. Nonetheless, frustration stems from the subsequent understanding that school districts will see their finances strained if schools, for instance, make-up for lost time during the summer, resulting in the necessity of continued employment for staff members.

School districts around the country have taken different approaches to resolving the financial doubts surrounding staffing concerns. Certain districts will continue to pay all staff, including substitutes and seasonal workers, who will be paid based on the average number of hours they worked daily in the months before the closures. However, other districts’ plans for substitutes and seasonal workers are not as clear. For example, in New York City, teachers, paraprofessionals, and long-term substitutes will continue to teach students remotely and receive pay for throughout the upcoming weeks. However, daily substitutes will not be paid unless they work in-person at regional emergency childcare centers. In Nevada, a superintendent shared plans to pay contracted employees but has not decided about staff who are typically paid only when school is in session. Finally, several school districts have even gone as far as ensuring that all, or most, staff can continue to expect paychecks.

What’s Next?

COVID-19 presents unforeseen circumstances that will challenge our nation to respond timely and appropriately. Consequently, school districts are forced to make significant decisions, including navigating the new legislation and paying their employees. As the situation unfolds, many more decisions will need to be made, and both short-term and long-term effects should be acknowledged. This is the time to communicate with fellow board members, superintendents, and state and federal departments of education to meet the needs of our communities.

We are receiving a number of questions about working remotely and teachers’ responsibilities during that time, so that topic will be the subject of our next Legal Alert.  White & Story will continue to monitor changes in legislation and other issues related to the virus pandemic and operate to serve our clients.  

 

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LEGAL ALERT- CORONAVIRUS: BOARD MEETINGS AND FOIA

03/22/20

On March 15, 2020, Governor Henry McMaster announced the temporary closure of schools across the state as a result of the COVID-19 (Coronavirus) outbreak. McMaster’s decision applies to South Carolina’s public schools and has consequently triggered an array of concerns by school district personnel, board members, families, and students. Specifically, a concern of unique importance revolves around school board meetings being conducted in accordance with new COVID-19 gathering restrictions while ensuring compliance with FOIA regulations.

The Freedom of Information Act (FOIA)

FOIA is often described as the law that keeps citizens in the know about their government. The purpose of these provisions is to maximize citizen participation in government process and decision-making. FOIA provisions apply to meetings by school boards and also include board committees and subcommittees. Meetings are considered to be any convening of a quorum (majority of members) of a public body to discuss or act upon the business of the public body and applies to both in-person and electronic gatherings. However, it is essential to note that FOIA will apply regardless of if a committee or subcommittee is composed of a quorum of the board or if there are other individuals on the committee or subcommittee.

 

Common FOIA violations often occur through interpersonal communications regarding business that should be discussed in public meetings. An example of these inappropriate communications would be discussing business matters through casual conversation or electronic messaging. Consequently, FOIA requirements, when coupled with COVID-19 gathering restrictions, have created an environment in which board members must be especially cautious in their approach to meeting and discussing business.

COVID-19 and Board Meetings   

The Center for Disease Control and Prevention (CDC) has expressed that the best way to prevent COVID-19 infection is to avoid being exposed to the virus that causes it. The CDC proposes a surplus of “community-based” interventions, including social distancing and cancelling public gatherings, that may slow the spread of COVID-19. As a result, adjustments to the way that business will be conducted is essential. For example, just last week various city councils still met but encouraged people to remotely watch live streaming of the meeting, allowing these cities to conduct business and comply with FOIA. While this is just one option to ensure safety, there are multiple options that districts may exercise. The following strategies, which comport with FOIA, may be a good fit for your board during this time:

·         Cancelling non-essential board meetings;

·         Allowing non-essential staff members to provide written reports instead of appearing before the board;

·         Live-streaming board meetings or utilizing teleconferencing to encourage members of the public to access meetings from home;

·         Rescheduling student and public participation in board meetings;

·         Rescheduling awards, presentations, and other similar activities that typically occur during board meetings; and/or

·         Temporarily eliminating public comment period.

These strategies are suggestions that have proven beneficial and may work for your district. Throughout this challenging time, we all can support one another and ensure compliance with legal provisions by utilizing the resources that are available and displaying flexibility in the weeks to come. White & Story continues to monitor this and other issues related to the virus pandemic and will continue to operate to serve our clients.

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Richland County Bar announces 2020 leadership

01/15/20

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Back Row (L to R): Charlie Moore, Walt Cartin, and Jack McKenzie (2018 President).

Front Row (L to R): Harrison Saunders, Kristen Horne, Ashley Story and Mike Polk.

 

The Richland County Bar Association (RCBA) has announced its new leadership for 2020 following formal confirmation at the association’s December 2019 meeting. The RCBA is one of the largest county bars in South Carolina, serving nearly 2,000 attorneys living and working in Richland County. Charles F. Moore, Turner Padget Graham & Laney, PA will serve as the RCBA’s president. Joining Moore as officers will be Ashley C. Story, White & Story, LLC as president-elect, and Derrick L. Williams, Mickle & Bass, LLC as treasurer.

Returning members of the Executive Committee are Walter H. Cartin, Parker Poe Adams & Bernstein LLP; S. Harrison Saunders, VI, and immediate past president Kristen E. Horne, Unum Group who was honored for her outstanding board service in 2019. Michael J. Polk, Belser & Belser, PA was elected as the newest member of the Executive Committee at the annual meeting.

For questions, please contact Mandy Wren, RCBA Executive Director at (803) 771-9801 or mandy.wren@scbar.org.

Source: https://whosonthemove.com/richland-county-bar-announces-2020-leadership/

 

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LEGAL ALERT: Transgender Students’ Rights: The Impact of the Grimm Case on South Carolina School Districts

11/12/19

On August 9, 2019, a federal district trial court in Eastern Virginia sided with a transgender student who filed suit against his school district for transgender discrimination and is allowing the lawsuit to move forward. This most recent decision comes years after the suit was initially filed in June 2015, after Gavin Grimm (“Gavin”), a female to male transgender student, was prohibited from using the boys’ bathroom by the school district’s board policy in the fall of 2014. Now that a Virginia federal court has ruled in favor of Grimm and allowed him to proceed with his case, school districts across the country – and particularly in the southeast, including South Carolina – are trying to understand how the
court’s decision will impact their students and what, if any, steps should be taken next.

Recent Grimm News

On August 9, 2019, the trial court in the Eastern District of Virginia, ruled in favor of Grimm, deciding that he should be permitted to move forward with his Title IX discrimination claim and Fourteenth Amendment (equal protection) claim. Concerning the Title IX claim, the court found the school district’s argument that its “policy treats all students equally on the basis of physiological or anatomical characteristics” unpersuasive. It also found the school district “crafted a policy that is based on stereotypes about gender . . . and the board had engaged in discriminatory treatment because it prevented [Grimm] from using the restroom that matched his gender identity.” 

The trial court then took up Grimm’s Fourteenth Amendment (equal protection) claim and concluded the school board failed to show that the challenged policy is "substantially related" to protecting student privacy. In making decisions relating to transgender students, many school districts often rely upon this argument. In this case, however, the court was not convinced, relying on the fact that “the Board received no complaints regarding any encounter with Mr. Grimm in a restroom.” It also noted the school board “conceded that there is no privacy concern for other students when a transgender student walks into a stall and shuts the door.” Based on this, the court will allow Grimm to proceed with his case. At this stage of the lawsuit, we will have to wait and see how the facts develop and whether a trial will be scheduled to determine the overall outcome of the case.

How does a Virginia transgender lawsuit affect a school district in South Carolina?

The United States has two court systems: a federal court system, dividing our country into thirteen federal court circuits (areas); and fifty state court systems, one for each state. Generally, Federal courts resolve disputes that involve federal laws, and our state courts rule on state law issues. With regard to federal law, South Carolina is part of the Fourth Judicial Circuit along with Virginia, Maryland, West Virginia, and North Carolina. In a nutshell, that means that the federal courts located in our state are often persuaded by rulings of other federal courts in the Fourth Circuit, including those in Virginia.

In the Grimm case, because the student sued the school district for violations of his federal legal rights, the U.S. federal court system is responsible for making decisions about the lawsuit. Specifically, as Gavin’s case involved a school district in Virginia, the Fourth Circuit and its courts were in charge of making decisions about the case. Thus, school districts, especially in the Fourth Circuit, including South Carolina, are closely following and monitoring the outcome of the Grimm case and may notice a rise in transgender student lawsuits. For example, if a school district implements policies that restrict a transgender student’s rights, other students are likely to follow in Gavin Grimm’s footsteps and file lawsuits alleging violations of their federal rights, which may be costly for both the school district and its insurance companies. We also anticipate a rise in controversial requests by transgender students seeking permission to use bathrooms and locker rooms assigned to the gender with which they identify rather than their biological genders, and they – along with parents and transgender rights groups – will often lean on and rely on the Grimm case to support their belief that they are entitled to have these requests granted.undefined

Figure 1. The geographic boundaries ofthe Fourth Circuit Court of Appeals
delineating the District Courts whereGrimm will have a prece den tial impact.

While the Grimm case seems to indicate that Virginia federal courts will not permit school districts to implement bathroom policies that prohibit transgender students from using the bathrooms associated with their genders, those specific court holdings, while important and persuasive, are not binding on South Carolina at this time.

This issue remains underdeveloped and provides no precise guidance for school districts in South Carolina. It is certain that school districts’ exposure to legal liability regarding the protection of transgender students’ rights will increase and may create negative media attention. However, with no clear statutory or consistent judicial guidance, the way school districts chose to handle requests for transgender students must be handled with care and caution. We continue to encourage school districts in South Carolina to consider the best interests of all students and work as a team – along with transgender students and their parents – to formulate a plan that will continue to allow the student to succeed in the school setting while making any necessary accommodations district administration feels
comfortable granting, weighing the pros and cons for all those involved. At this time, school districts in our state are not legally required to permit a transgender student to use the bathroom of his choice and may, instead, choose to provide other alternatives. Nevertheless, as this issue continues to be battled in court, we expect more definitive answers, especially for our state, in the near future.

If you have any questions about the Grimm case and its impact on your school district, please let us know. We wish you continued success this school year and look forward to sharing our next Issue of the Month.

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Get on the Bus and Buckle Up: Navigating Liability in Transporting Students

07/29/19

 

Bus drivers are essential team members in a school district; they are the first and, usually, the last employee who has contact with students each school day.  To that end, districts must hire, train and, when required, discipline drivers with student safety and supervision in mind.  For districts to operate efficiently and appropriately, bus drivers must be supported by transportation personnel along with building administrators and teachers. It takes a village to raise a child – nowadays, bus drivers and bus assistants not only transport students but also serve as mentors and disciplinarians.  Drivers must possess the necessary skills to communicate with parents; resolve behavior problems; ensure proper supervision; and routinely maintain documentation.

Over the past several years, we have seen an increase in the number of lawsuits filed against districts arising from an incident involving a school bus.  These suits include an incident where a driver stopped the bus in a rural area to allow a kindergarten student to relieve herself rather than wet herself; an incident where a student fell asleep on the bus and was not discovered by the driver during the post-route inspection; and several incidents where a bus assistant allegedly assaulted a student.  Suits also are common where a parent/guardian alleges that, because of inappropriate supervision on the bus, their child was sexually assaulted by another student.  While the South Carolina Department of Education (DOE) is responsible for carrying liability insurance to cover roadway accidents that result in injury to bus passengers and/or third parties, because drivers are employed by a district rather than DOE, districts are responsible for defending against claims that a student was injured because the driver did not properly supervise students.

Anyone interested in becoming a bus driver must complete and submit a district employment application; complete and submit an application to DOE to attend the required new bus driver class; attend the 20-hour new bus driver class; pass the DOE test; obtain a Department of Transportation (DOT) physical; obtain the requisite medical tests; pass the behind-the-wheel training and commercial driver’s license (CDL) test; and successfully complete a physical performance test, drug screening, and SLED background check. 

In addition to pre-employment training, bus drivers must participate in a minimum of ten hours of in-service annual training.  While half of these hours consist of mandated DOE modules, five of the hours are selected by the employing district.  These hours should include training on supervising students, handling student misconduct and interacting with special education students.  To train bus drivers and assistants who transport special needs students, many districts ask their drivers and bus assistants to complete “The People Factor” and “Transporting Students with Special Needs” DOE modules.  In June 2018, DOE instituted a new in-service training called “Get on the Bus! Behavior Supports for Bus Drivers and Paraprofessionals.”  All drivers also should be trained on the district policies that impact their employment, including use of social media and sexual harassment.

Special education bus drivers are required to have an additional four hours of training every two years. This training should include the following topics: special education disciplinary requirements, confidentiality requirements pursuant to the Family Education Rights and Privacy Act (FERPA), and disciplinary documentation. Dependent upon the needs of the students on a specific bus, districts also may train drivers on the use of appropriate restraints and the handling of medical needs. Because driving a school bus is much more than monitoring the roadways, we recommend that districts develop a strategic training plan involving not only transportation personnel but also building and district level administration.

Though buses are operated by district employees, DOE controls and performs maintenance on buses as necessary.  If a bus needs to be repaired, a bus driver must complete the requisite form and provide it to the transportation coordinator/supervisor. The supervisor must then forward the form to the appropriate department. Drivers should never attempt to drive a bus that is not safe and must ensure that appropriate inspections and safety assessments are completed daily. Inspections should include checking that the bus turns on, that all lights work, that all cameras are working, that the emergency door(s) are locked, that the bus has a First-Aid kit, and that the bus radio is working. 

While not required by law, most school buses have one or more cameras installed to promote the safety of passengers.  Though school buses are maintained by DOE, if a district decides to install cameras on its buses, the district should ensure that all cameras are properly installed, inspected, and maintained, as DOE does not assume responsibility for cameras.

Recordings from bus cameras can be used for student disciplinary purposes as well as for determining whether students were appropriately supervised on the bus.  Because of the increased number of fights and alleged sexual incidents occurring on buses – oftentimes captured both by bus footage and students using personal cell phones, districts must have working cameras on the buses and know and follow the district’s video retention policy.  If the camera over-records every thirty days, it is important to know when and if the recordings are automatically uploaded to a remote server or if the recordings must be manually copied to a server or other electronic device for storage.

We recommend cameras be inspected routinely to ensure they are properly working and that significant recordings are not be over-recorded or otherwise lost.  If a bus driver knows or suspects that a camera is not working, the bus driver should immediately report the malfunction to the transportation supervisor.  The supervisor or transportation director should then document the malfunction, inspect the camera and repair as necessary.  If a district is sued over a bus incident, it is extremely important that district officials are able to locate the relevant camera footage.

We trust this information will be helpful as districts begin to prepare for the upcoming school year.  If you have questions or would like us to assist in training your bus drivers and bus assistants, please feel free to contact our office.

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