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Searching for Articles by Kevin J.T. Terry
Kevin J.T. Terry
Wausau Office
Found 26 Results.

Allergy Relief

Posted on May 9, 2014, Authored by Kevin J.T. Terry, Filed under Local Governments and School Districts

Through the signing of Senate Bill 375, school districts now have more flexibility in assisting students with life-threatening allergies. Prior to the signing of this bill in April, only certain authorized school personnel were allowed to administer an epinephrine auto-injector, also known as EpiPen (a device designated to prevent or treat a life-threatening allergic reaction). Now, this provision is repealed and a school district has the option to draft and adopt a plan for the management of students who suffer from life-threatening allergies. The plan may allow school nurses to provide treatment and manage the individual student's care program. Additionally, the bill grants immunity from civil liability for a school and school personnel for injuries resulting from the administration or self-administration of an EpiPen. School boards and school district administrators may want to take some time this summer to review the number of students in the district who suffer from these life-threatening allergies. Time should be taken to draft policies, train staff, and educate teachers about how the school district is going to assist these students.

Liquidated Damages: A Tool for Teacher Retention?

Posted on February 7, 2017, Authored by Kevin J.T. Terry, Filed under Local Governments and School Districts

A common struggle for school districts across Wisconsin is how to attract and retain quality teachers and administrative staff.  In a post-Act 10 world where districts are free to recruit the best and the brightest from their neighboring school district, administrators and school board members wrestle with how to effectively retain quality teachers and soften the blow when quality teachers leave for a higher paying job.  The first place administrators often look is to the liquidated damages provision in the teacher’s individual contract. Liquidated damages are damages whose amount the district and the individual teacher agree upon during the formation of the individual teaching contract for the district to collect as compensation upon the teacher’s breach by resignation during the term of the contract.  Liquidated damages are not intended to be punishment for the teacher’s breach, but rather to permit the district to recover the cost of finding a replacement for the departing teacher.  Because courts have determined that specific performance, or forcing the teacher to continue under the terms of the individual teaching contract, is not an available remedy for the teacher’s breach, the liquidated damages provision identifies the agreed upon cost borne by the district upon a teacher’s breach.  The difficulty for districts is twofold:  (1) the cost to the district for a teacher’s breach is not the same for every departing teacher; and (2) while not the primary goal, liquidated damage clauses help to dissuade teachers from leaving employment and liquidated damage clauses that call for small monetary awards do not assist districts with retention.  So what should districts consider when reviewing the liquidated damages provision in their teaching contracts?  First, it is important to know that districts are able to vary these provisions depending on the individual teacher hired.  For example, in Wisconsin, we know that it is difficult to replace quality teachers in specific fields such as technology.  Districts may want to consider raising the liquidated damage amount for those types of teachers.  Second, the district should think about how it intends to enforce this liquidated damage clause.  At times, teachers will choose to breach their current contract and accept new employment in a neighboring district even though doing so is a violation of their current contract.  Additionally, at times, teachers do not make the required payments under the liquidated damages provision.  How will your district handle this scenario?  One option to consider is to utilize the small claims process rather than filing a lawsuit in district court.  Pursuing the collection of liquidated damages in small claims restricts district’s recovery to no more than $10,000 plus costs, however, it assures that a determination on the breach of contract claim will be reached much quicker than a traditional lawsuit.  Further, districts have had success recovering these costs in front of small claims court judges as these judges understand and are empathetic to the district’s position when a teacher breaches their contract and is not willing to pay costs he or she agreed to in the contract. At the end of the day, districts do not have many options to combat against a teacher who is seeking employment elsewhere and who is highly valuable to the district.  The liquidated damages provision is one of a handful of tools available to districts to attempt to retain the teacher and alternatively to soften the blow of the departing teacher.  It is important for districts to review their current individual teaching contracts and assess whether the liquidated damages amount is a sufficient reflection of the costs incurred by the district when a teacher departs.  Working with legal counsel is important when amending your individual teacher contracts and if your district needs assistance, please do not hesitate to contact myself or any of the members of the School Law Group at Ruder Ware.

Retaliation Against a Public Employee for Giving Testimony is a No-No

Posted on June 25, 2014, Authored by Kevin J.T. Terry, Filed under Local Governments and School Districts

A recent decision by the United States Supreme Court has clarified a very murky area of the law. Statements by a government employee may or may not be protected speech based upon the content of the speech and the circumstances under which the statements are made. Generally speaking, statements by a government employee that clearly address matters of general concern about government activities would be considered protected speech and a local government could not retaliate against that employee for making those statements. On the other hand, statements by a government employee that are really focused on items of interest or impact the specific situation involving the employee would not be considered protected speech and thus the government employee could be subject to discipline (including termination) based upon those public statements. The standards must be applied with very careful review of the situation that has caused the public speech to be made by the government employee. In the recent U.S. Supreme Court decision, it was held that statements made by a government employee when subpoenaed to give testimony in a hearing should be considered protected speech even though the statements are made about the government employee's workplace and are made during work time. The lower court held that the employer could take disciplinary action against the employee (termination in this case) based upon the content of the statements made, because the statements were made during work hours and involved accusations against a public official based on conduct the employee had knowledge of from the workplace. The seven justices held that these statements should be protected under the First Amendment because the statements were given during an administrative hearing and the government employee was under subpoena to come to the hearing and give that testimony. The Supreme Court held that retaliation against the employee in the form of dismissal when the employee was testifying under oath to information he was aware of should not be allowed and the speech/testimony should be considered protected speech. Local government officials are most often better off not trying to discipline a public employee for political speech or public statements that are critical of local government activities. The use of social media, however, has made these types of public statements far more common and some justification exists for discipline depending upon the nature of the comments and the scope of the comments made. Public officials should not decide whether to take discipline without conferring with legal counsel about the protections that may exist under the state and federal constitutions.

Legal Updates on Bills Affecting Employers, Schools, and Local Governments

Posted on November 17, 2015, Authored by Kevin J.T. Terry, Filed under Employment

As a service to our clients, contributors to the Blue Ink will be drafting legal updates regarding the recent bills signed by Governor Walker. Many of the bills directly affect both public sector and private sector employers. The first update in this series relates to a school district or local government unit’s duty to post a notice. A link to this legal update, and to future updates, can be found here.  Watch for future blog posts detailing these updates.

E-mail Communication to Board Members Creates Meeting?

Posted on May 19, 2016, Authored by Kevin J.T. Terry, Filed under Local Governments and School Districts

At our recent Local Government Seminar, a question was asked as to whether other states are aggressively enforcing open meeting or public meeting laws involving local governments.  A recent decision by an Appellate Court in Ohio shows that other states are actively enforcing open meeting or “sunshine” laws in their jurisdictions. In this case, a School Board member sent an e-mail to all other Board members advocating for action on a particular policy being considered by the School Board at an upcoming meeting.  It was determined that this e-mail communication sent to all other Board members constituted an open meeting of the School Board even though the other Board members did not specifically react or communicate their position in response to the e-mail communication from the one Board member.  The e-mail communication was between four Board members and the School Superintendent and was held to be a discussion of public business because the discussion involved a majority of the public body’s members.  The Court held that the conduct of public business could only be held in a meeting which meant a face-to-face meeting amongst the majority of the School Board members.  It was therefore concluded that this communication about a School Board policy which involved a majority of the Board members constituted a discussion of public business that was not held in a face-to-face format. One can easily see that this is an aggressive enforcement of the Open Meeting Law in Ohio.  It is likely that a violation of the Wisconsin Open Meeting Law would occur if an e-mail is sent by one Board member to a majority of the Board members and then there is an interactive response to that e-mail communication (typically using the reply to all function) such that a “walking quorum” of Board members would have occurred.  That is why elected officials in Wisconsin must be very careful about e-mail communication with other Board members and ensure that there is not a continued exchange of discussion and communication such that a meeting is taking place without proper notice and without proper access for the public.


Posted on June 16, 2014, Authored by Kevin J.T. Terry, Filed under Local Governments and School Districts

If it hasn't happened yet, trust me, it will. Every public official seems to be put in a position of conflict while in office. Here is a link to a recent article about a City of Green Bay public official who has chosen to abstain from any further voting on a public issue involving Walmart. The article does not specify what the exact conflict was that Mr. Moore had, however, the article does a great job of illustrating the proper way an elected official and a local government body should handle known conflicts. By abstaining from voting on the matter moving forward, Mr. Moore has properly addressed his personal and official conflict. The Wisconsin Statutes govern the ethics of local officials. And while the below list is not all inclusive, here are a couple of bits to remember when dealing with conflict issues: No local official may take any official action substantially affecting a matter in which the official, a member of his or her immediate family, or an organization with which the official is associated has a substantial financial interest. No local official may use his or her office in a way that produces or assists in the production of a substantial benefit, direct or indirect, for the official, one or more members of the official's immediate family either separately or together, or an organization with which the official is associated. There are penalties for violating the code of ethics as it relates to conflicts. ALWAYS ASK! It is prima facie evidence of intent to comply with Wis. Stat. 19.59, or any ordinance enacted thereunder, when a person refers a matter to and abides by the advisory opinion, if the material facts are as stated in the opinion request. Our local government attorneys are always available to assist local government units and local officials as it relates to ethics issues and specifically conflict issues. Asking ahead of time will assure the municipality and local officials stay out of hot water!

When it Comes to Criminal Background Checks, Honesty is the Best Policy (For Employers Too!)

Posted on October 28, 2015, Authored by Kevin J.T. Terry, Filed under Employment

Last week I was asked to present, along with a panel of attorneys, to a group of law students. For a group of students facing a tough job market, the most common theme of the discussion related to the hiring process and how these students could maximize their likelihood of landing a job. The panel’s message was simple – honesty is the best policy. When interviewing for a job, candidates are asked questions about their skills, their likes/dislikes, and their personal history. In every situation, it behooves the candidate, and the employer, for the candidate to answer honestly. This message, honesty is the best policy, is no more true than when an employer asks about a candidates criminal background. Lying on your application about your criminal history can get you out of the running before much consideration is given to the rest of your qualifications.  Eliminating the pool of applicants for an open position is often an overwhelming and tedious task. Some of the easiest applications to toss aside are those that contain lies or misinformation from an applicant. With the help of CCAP, many companies are quickly able to detect an applicant who has lied about whether or not they have been convicted of a crime in the past five years.  When the company finds an applicant who has lied or omitted the truth, the law supports the decision to deny hiring the candidate. So it is easy to see why honesty is always the best policy for applicants to a position. The flip side of this scenario, and the thing that employers tend to have trouble with, is that it is also always in the best interest of the employer to honestly communicate with an applicant the reasons for not hiring him or her. I am currently working with a client who denied an application because the criminal background check revealed two things: (1) that the applicant lied on his application; and (2) that the crimes the applicant was convicted of substantially relate to the position he was applying for. The employer appropriately denied the applicant employment for these reasons; however, when it sent a letter communicating the reasons why the applicant was not hired, it did not clearly state that the applicant lied about his criminal background and that the background check revealed the applicant was convicted of a crime that substantially related to the position he was applying for. The letter simply stated that a background check revealed that the applicant was “not a good fit” for the employer. This is a problem. In Wisconsin, employers, generally, may not discriminate against an applicant based on his or her arrest and conviction record. Employers may, however, deny employment to an applicant because he or she lied on their job application or because they have been convicted of a crime that substantially relates to the position they are applying for. This is not a new revelation in the law. It is the framework within which many employers are very comfortable. For some reason though, employers have difficulty being brutally honest with applicants who have not been selected for a position because they’ve lied or because their criminal conviction record substantially relates to the position they are applying for. Employers need to be told the same message that the panel shared with the law students – “Honesty is the best policy.” When an employer conducts a lawful background check and appropriately assesses the results, it needs to “tie the loop” and clearly communicate with the applicant the decision it made. If it doesn’t, the employer risks unnecessary litigation that starts with the employer behind the eight-ball.

Cruel Intentions

Posted on May 13, 2014, Authored by Kevin J.T. Terry, Filed under Local Governments and School Districts

Last week, a Wisconsin Court of Appeals decided the case of Ardell v. Milwaukee Board of School Directors and Lynne A. Sobczak. The case is important to school districts and local governments alike because the outcome may change the way municipalities review and respond to public records requests. Ardell sought disclosure of certain public records from the Milwaukee School District (MSD) relating to an MSD employee's personnel file. MSD initially allowed the disclosure of records, but then reconsidered, denying the request because "the public interest in protecting the safety and welfare of the employee clearly outweighed the public interest in disclosure" - Ardell appealed this decision. The appeal was rooted in the general principal that a municipality may not consider the identity of the requester when making its decision. The court recognized that the general principal is exactly that a municipality should not consider the identity of the requester when determining whether information should be released under the Wisconsin open records law. However, in this case, Ardell had a history of violence and harassment of the MSD employee, as well as a criminal history of domestic abuse against the employee. The court agreed that Ardell's purpose in requesting the employment records was not a legitimate one; rather, his intent was to continue to harass and intimidate the MSD employee. In sum, the facts of the case favored nondisclosure of the records, despite the presumption favoring public access to records, based upon concerns for the safety of the employee. While this case may simply be an exception to the general rule of disclosure, municipalities can add this decision to its resources when responding to public records requests. It shows that municipalities do have tools to protect its employees from dangerous and harassing behavior in the form of records requests.

Trump Administration Withdraws Transgender Guidance

Posted on February 23, 2017, Authored by Kevin J.T. Terry, Filed under Local Governments and School Districts

On February 22, 2017, one day before briefs were submitted to the Supreme Court in a case involving a transgender student in Pennsylvania, the Trump Administration, through the Department of Justice (DOJ) and the Department of Education (DOE) changed the landscape, once again, for transgender students in Wisconsin and for School Districts looking to adopt legally compliant policies. By issuance of a “Dear Colleague” letter, the DOJ and DOE have withdrawn statements of policy and guidance reflected in two significant documents: Letter to Emily Prince from James A. Ferg-Cadima, Acting Deputy Assistant Secretary for Policy, Office for Civil Rights at the Department of Education dated January 7, 2015; and, Dear Colleague Letter on Transgender Students jointly issued by the Civil Rights Division of the Department of Justice and the Department of Education dated May 13, 2016. The previously issued guidance documents took the position that Title IX’s prohibition of discrimination on the basis of “sex” requires Districts to afford a transgender student access to restroom and locker room facilities, among other things, consistent with their gender identity, rather than the gender assigned to the student at birth. Employers interested in this news should remember that this Dear Colleague letter does not directly impact guidance and policy statements previously issued by the EEOC and OSHA which require employers to permit employees to utilize restroom facilities consistent with their gender identity. Through yesterday’s Dear Colleague letter, this Administration asserted that it will not rely on the views expressed by the DOJ and DOE under the Obama Administration. To support this change of course, the Dear Colleague letter cites conflicting case law interpretation of Title IX and ongoing federal litigation in Texas which resulted in a nationwide injunction prohibiting the enforcement of the guidance documents. For school district administrators, board members, teachers, students and parents, the February 22, 2017, Dear Colleague letter offers little in terms of answers to questions related to the education and rights of transgender students. In an attempt to provide clarity on this Administration’s interpretation of Title IX, the Dear Colleague letter does note that: “This withdrawal of these guidance documents does not leave students without protections from discrimination, bullying, or harassment. All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment.  The Department of Education Office for Civil Rights will continue its duty under law to hear all claims of discrimination and will explore every appropriate opportunity to protect all students and to encourage civility in our classrooms. The Department of Education and the Department of Justice are committed to the application of Title IX and other federal laws to ensure such protection.” It is clear that Districts must protect transgender students from discrimination, bullying, and harassment. It is equally clear that, at this time, guidance regarding the treatment of transgender students, and particularly with respect to restroom and locker room access, remains inconsistent. The Supreme Court received briefing in Gloucester County School Board v. G.G. today. As a result of yesterday’s Dear Colleague letter, the Court may choose to exercise a number of options. It may send the case back to the 4th Circuit for it to weigh in more fully on Title IX or they could forge ahead and rule on that question themselves. We should know more about which direction the Court chooses to pursue when they hear oral argument in the case next month, if not before. If you have questions as to how this news affects your District and its policies, please do not hesitate to contact me or any member of the Ruder Ware School Law team.

New Proposed EEOC Guidelines on Retaliation

Posted on January 29, 2016, Authored by Kevin J.T. Terry, Filed under Employment

On January 21, 2016, the EEOC issued its Proposed Enforcement Guidance on Retaliation and Related Issues which is to be used as a reference for staff investigators on charges alleging retaliation and other related issues.  The stated purpose of the guidance is to replace the EEOC’s 1998 Compliance Manual on Retaliation.  While much of the 73-page document is simply a re-statement of the current state of retaliation law, there are some key areas of interest employers should be aware of. The proposed guidance draws a distinction between a claim of retaliation based on an employee’s participation in protected activity versus a claim based on an employee’s opposition to perceived discrimination in the workplace.  This distinction is important because the EEOC interprets the “participation clause” to apply to individuals, regardless of the reasonableness of their underlying allegations of discrimination.  Conversely, the “opposition clause” applies only to those who object to practices they reasonably believe are unlawful.  This position taken by the EEOC is in contrast to the position taken by some federal courts.  Proposed guidance also highlights the “manager rule”.  The EEOC rejects a position held by some courts that managers may engage in protective activity only to the extent they are doing so when they “step outside of their management role and assume a position adverse to the employer.”  This is an attempt by the EEOC to expand the pool of individuals who may file a retaliation claim.     Finally, the EEOC identifies some examples of actions it would consider to be “adverse actions” which give rise to a retaliation-based claim.  Some of these examples are a bit concerning and are not recognized by courts across the country.  For example, the EEOC states that threatening reassignment, removing supervisory responsibilities, and “taking any other action that might well deter reasonable individuals from engaging in protected activity” are all adverse actions.  This third example is certainly concerning to employers.  It seems to be a catch-all provision that could be interpreted broadly by EEOC investigators and is very hard to interpret by management. The EEOC also provides some recommended best practices for employers to adopt to “help reduce the likelihood that unlawful retaliation will occur.”  While these recommended best practices will not prevent an investigator from finding against the employer, they may be helpful when dealing with employees who may bring retaliation claims.  The following are some of the best practices provided in the EEOC proposed guidance: Employers should have an anti-retaliation policy that includes actions that the employer believes to be retaliatory actions and includes instructions on how to report and resolve employee concerns about retaliation. Employers should train all employees on the implemented policy. When an EEO allegation is raised, employers should inform individuals of its anti-retaliation policy, it should instruct management to refrain from discussing the allegation with others, it should provide guidance to employees on avoiding actual or perceived retaliation, and it should monitor employee activity during the pendency of an EEO matter to ensure no retaliation occurs. The EEOC guidance does not dramatically alter our understanding of how the EEOC interprets retaliation claims; however, it does put employers on notice that the EEOC will be pursuing these types of claims in the months and years to come.  Now is a good time to review company anti-retaliation policies and remind employees of their duty to refrain from retaliation against an employee who files an equal employment opportunity claim.  If you have any questions about the proposed rules or are looking for assistance in handling a discrimination claim, we are always here to help.

Town’s TIF Participation Expanded

Posted on December 1, 2015, Authored by Kevin J.T. Terry, Filed under Local Governments and School Districts

...multijurisdictional tax incremental financing districts. Wisconsin Statute Section 66.1105(18)(c) was amended to read “Any town which may create a tax incremental district under th...

Legislative Changes Affecting Local Government Units

Posted on February 8, 2016, Authored by Kevin J.T. Terry, Filed under Local Governments and School Districts

On Thursday, February 4th Governor Walker signed 21 bills into law at the Wisconsin State Capitol in Madison.  Many of these laws addressed transportation, hunting, and other miscellaneous issues.  Two of these bills however directly affect municipalities and I want to briefly describe them in this blog. The first is Assembly Bill 439 which changes the publication notice requirement from 10-days to 15-days for most local governments which make certain specified changes to their budgets.  Assembly Bill 439 will standardize publication requirements for municipalities.  Hopefully, this bill will reduce confusion for municipalities dealing with the recent changes to notice posting requirements in Wisconsin. The second is Assembly Bill 372 which guarantees municipal governments in a Lake District have the power to fully choose who represents them on a Lake District Board.  Current law disqualifies some municipality officials from being able to represent their municipalities on a Lake District Board.  This was never the intent of the law and Assembly Bill 372 changes the law to assure that municipal officials are able to represent their home municipalities on a Lake District Board. Both of these legislative changes are effective immediately.  We will continue to provide updates on legislative changes affecting municipalities here on the Blue Ink Blog.  Thanks.  Have a great weekend.

Do Municipalities have to Disclose Driver’s License Information?

Posted on May 12, 2016, Authored by Kevin J.T. Terry, Filed under Local Governments and School Districts

On Tuesday, May 10, the Wisconsin Court of Appeals ruled that the Drivers Privacy Protection Act, or DPPA, a federal law protecting drivers license data, does not allow Wisconsin police departments to withhold driver information from accident reports.  This ruling reversed St. Croix County Circuit Judge Howard Cameron’s finding that complying with the Public Records Law was a police function that met an exemption exception under the DPPA.  Congress passed the DPPA in 1994 after a stalker obtained a Hollywood actress’s home address through motor vehicle records and then killed her.  The DPPA restricts the use of personal information obtained from motor vehicle departments.  Although Wisconsin Attorney General assured that this federal law did not require wholesale redaction of information from public records just because it might also be on a drivers license record, many municipal insurers advised municipalities to redact this information to avoid being subject to class actions under federal law. The Wisconsin Court of Appeals did not buy the City of New Richmond’s argument that the DPPA always preempts Wisconsin’s Public Records Law.  However, the Court was also unwilling to interpret the DPPA as allowing unfettered disclosure of personal information in response to public records requests.  The Court therefore sent the case back to Judge Cameron for more litigation to determine whether or not an exception under the DPPA existed allowing municipalities to redact certain information contained on a drivers license in response to a public records request.  As this case develops, we will continue to analyze how the decision affects municipality’s assessment of public records requests related to drivers license information.  If you have any questions, please contact the author of this post or Dean R. Dietrich at (715) 845-4336.

Protecting Your Workplace May Be Getting Easier

Posted on August 27, 2014, Authored by Kevin J.T. Terry, Filed under Employment

On numerous occasions, we have received a phone call from a client that goes something like this: "An employee has reported to human resources that their (family member/friend/acquaintance) has been engaging in harassing behavior that the employee is concerned may continue into the workplace. What can we do to protect the employees (or students), our customers (or parents), and our business (or school district)?" Unfortunately, our suggested course of action always seemed to lack teeth. We could monitor the employee in the workplace and respond quickly to any threats, but there were not many proactive steps available to an institution in this scenario. Thanks to a recent Wisconsin Supreme Court decision, my advice may change moving forward. For the first time, Wisconsin law recognizes that institutions, not just individuals, are protected under Wisconsin's harassment injunction statute. In U.W. Board of Regents v. Decker, 2014 WI 68 (July 16, 2014), the university system sought and obtained a temporary restraining order to address the harassing conduct of a former student. The student appealed and argued that harassment injunctions cannot be granted to protect institutions, and his actions had a legitimate purpose: to protest the Board of Regent's activities. The Board of Regents argued that Wisconsin statutes define a "person" as including corporate and political bodies, and the Board of Regents is both. The supreme court agreed with the Board of Regents, rejecting Decker's arguments on this point. The conduct of Decker in this matter was extreme and clearly harassing. We are not suggesting that school districts and employers should immediately run to a judge to obtain a restraining order every time an employee or student feels harassed outside of work or school. However, it is important to recognize that this option may now exist. Many employers have felt a bit helpless and vulnerable to the harassing behavior of third parties in the past. Moving forward, employers must continue to utilize all available resources to protect its business, its employees, and its customers.

Council of State Governments Provides Recommendations for Student Discipline

Posted on June 12, 2014, Authored by Kevin J.T. Terry, Filed under Local Governments and School Districts

One of the more difficult areas of our practice deals with assisting school districts through student discipline and serving as counsel to districts during student expulsions. This week, I came across an interesting article in the Washington Post which addresses the increasing difficulty districts have in dealing with student discipline, get it here: Schools Get Road Map for Improving Discipline Practices. The article focuses on a report released by the Council of State Government's Justice Center that included 60 recommendations intended to help schools reduce suspensions and create better learning conditions for students. The 60 recommendations for change cover a number of topics and suggest that suspension be used only after taking other steps like: peer conferences, referrals to support teams and restorative practices that help make up for harms done. Here is a link to the lengthy report - The School Districts Consensus Report.

DOJ Provides Guidance to School Districts

Posted on November 18, 2014, Authored by Kevin J.T. Terry, Filed under Local Governments and School Districts

Over the weekend, I was able to read a letter from the U.S. Department of Justice, Civil Rights Division, which addressed the responsibility of public schools to ensure effective communication with students with hearing, vision, or speech disabilities. Three Federal laws – the Individuals with Disabilities Education Act (IDEA), Title II of the Americans with Disabilities Act of 1990, and Section 504 of the Rehabilitation Act of 1973 – uniquely address the obligations of public schools in this area. Many times, an individual’s education program under the IDEA will meet the requirements of the other Federal laws, but at times, the District must comply with both Federal laws independently. To help with the interplay of the IDEA and Title II requirements, the U.S. Department of Justice provided a lengthy FAQ which is linked here Take some time to review the FAQ and if you have questions about how these issues may affect your District – let’s discuss!

Obesity as a Disability Under the ADA

Posted on July 8, 2014, Authored by Kevin J.T. Terry, Filed under Employment

Recent court actions continue to support a claim that obesity is a covered disability. America's Car-Mart (Car-Mart) reached a mutual agreement to settle a claim brought by a former employee alleging that Car-Mart discharged him from his General Manager position because of his severe obesity and because his employer regarded him as being substantially limited in the major life activity of walking. In April, Car-Mart brought a motion to dismiss the disability discrimination claim on the grounds that severe obesity is not a "disability" under the ADA in the absence of an underlying physiological disorder. Judge Limbaugh, in the Eastern District of Missouri, rejected this argument relying on the EEOC's passage of the ADAAA and its position that severe obesity is a disability under the ADA. While this settlement is not a clear interpretation on how obesity will be treated by the courts, the decision by Judge Limbaugh to allow these types of claims to continue is not unique in the post ADAAA case law that we have seen. What is still unknown is how courts will treat varying degrees of obesity and just when obesity crosses the line into a protected condition under the ADA. For employers, the take away is that a conservative approach with employees is to treat all forms of obesity as a disabling condition under the ADA. That means employers should engage in the interactive process with employees to determine if reasonable accommodations exist to assist issues in job performance based on an employee's obesity.

Overtime Final Rule for State and Local Governments

Posted on May 27, 2016, Authored by Kevin J.T. Terry, Filed under Local Governments and School Districts

The Department of Labor’s final overtime rule (“the Final Rule”) updates the salary level required for the executive, administrative, and professional (“white collar”) exemption to overtime pay requirements to assure that the FLSA’s intended overtime protections are fully implemented, including for state and local governments. The Final Rule updates the salary threshold under which most white collar workers are entitled to overtime to equal the 40th percentile of weekly earnings of full-time salaried workers in the lowest wage census region, currently the south. The Final Rule raises the salary threshold from $455 per week ($23,660 for a full-year worker) to $913 per week ($47,476 for a full-year worker) effective December 1, 2016. Neither the FLSA or the Department’s regulations provide a blanket exemption from overtime requirements for state and local governments, nor for public sector workers. However, the FLSA contains several provisions unique to state and local governments, including compensatory time. Comp time: State and local governments may arrange, through an agreement with employees, for their employees to earn comp time instead of cash payment for overtime hours. Most state and local government employees may accrue up to 240 hours of comp time. None of the changes to the overtime Final Rule affect the unique provision of comp time. Fire and police small agency exemption: The FLSA also provides an exemption from overtime protections for fire protection or law enforcement employees, if they are employed by an agency that employs fewer than five fire protection or law enforcement employees, respectively. None of the changes to the Final Rule affected this provision. “Work periods” v. “work weeks” for fire protection or law enforcement employees:  Employees engaged in fire protection or law enforcement may be paid overtime on a work period basis rather than the usual 40-hour work week of the FLSA. For example, if a law enforcement employee works a 14-day work period, the department’s regulations provide that he/she must receive overtime compensation after working 86- hours in the work period. None of the changes to the Final Rule affect this provision. Many employee of state and local governments will not be affected by the Final Rule changes. Hourly workers: The Final Rule will have no impact on the pay of workers paid hourly. Generally, all hourly workers are entitled to overtime pay or comp time regardless of how much they make if they work more than 40-hours. Nothing in the Final Rule changes that. Highly compensated workers: White collar workers who fail the standard duties test but are “highly-compensated”, earn more than $134,004 in a year, are almost all ineligible for overtime under the highly-compensated employee exemption, which has a minimal duties test. Elected officials: These state and local government employees who are elected officials are not covered by the FLSA and will not be impacted by the Final Rule. In terms of compliance with the Final Rule, local government employees have many of the the same options in front of them as employers in the private sector. Local government units can raise salaries, pay overtime above a salary, evaluate and re-align employee work loads, or utilize comp time as a way to stay compliant with FLSA requirements under the Final Rule. While many of these options are not desirable, it is important to understand them moving forward. If you have questions regarding how the new overtime rule affects your specific municipality or which direction in terms of compliance best suits your local government, please contact any of the attorneys at Ruder Ware in the Local Government Focus Team including the author.

BREAKING: Supreme Court to Weigh in on Transgender Restroom Access in Schools

Posted on October 28, 2016, Authored by Kevin J.T. Terry, Filed under Local Governments and School Districts

The U.S. Supreme Court on Friday accepted a closely watched case over restroom access for transgender students. Gloucester County School Board v. G.G., will examine whether the Title IX education code’s prohibition on “sex” discrimination includes discrimination based on gender identity. The U.S. Department of Education says that it does, and the Fourth Circuit did not agree. A ruling on transgender rights is likely to be closely divided at the Supreme Court, and the continued lack of a ninth justice means that a tie is possible. Should the Court fail to come to a decision, the Fourth Circuit’s interpretation would stand and the transgender student’s claim would fail. For Wisconsin School Districts, this means that a definitive answer may be on the horizon regarding whether or not students must be allowed to utilize restroom facilities consistent with their gender identity, rather than the gender assigned at birth. Until this decision is announced, school districts should continue to work with legal counsel on specific transgender student related matters. If you have any questions about the education of transgender students in your district, please do not hesitate to contact Kevin Terry or Dean Dietrich.  

EEOC Releases Proposed Guidelines on Retaliation

Posted on January 29, 2016, Authored by Kevin J.T. Terry, Filed under Local Governments and School Districts

We recently posted a blog to our Employment Blog that might be of interest to this group.

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