School Law Handbook

School Law Handbook

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School Law Handbook

Chapter 1 Board Meetings

Agendas
Conflict of Interest
July Organizational Meeting
Kansas Open Meetings Act

Agendas

Q: Are we required to have an agenda for board meetings?

A: No. The law does not require a board to have an agenda for a meeting, but if an agenda is prepared, it must be made available to the public.

Amending the Agenda

Q: Once an agenda for a regular meeting is printed can the agenda be amended?

A: Generally, yes. The board can amend the agenda, so long as it is not intentionally leaving items off the agenda to deceive the public. This would potentially result in a violation of the Kansas Open Meetings Act. In Klein v. Johnson County Bd. Of County Commissioners, 2003 WL 221760 (Kan. App. 2003), the court found the failure to include a planned topic of discussion on the agenda violated KOMA.

Q: When can the agenda be amended?

A: Unless otherwise limited by board policy, an agenda may be amended at any time during a meeting. To the extent possible, it is preferable to amend the agenda at the beginning of the meeting.

Q: May we amend the agenda of a special meeting?

A: No. A special meeting must be called for a specific purpose; the agenda should not be amended.

Providing Copies of the Agenda

Q: Our board will hold a special meeting in three days. Must we provide copies of the agenda and supporting documents with the notice?

A: No. While board members are entitled to written notice of the time, place, and purpose of a special meeting, only notice of the time and place of the meeting must be given to other persons who have requested notice; a copy of the agenda and supporting documents need not be attached. However, pursuant to the Kansas Open Records Act, a copy of the agenda and supporting documents which are not exempt from the open records requirement, must be provided upon request.

Conflict of Interest

What a Board Member with a Conflict Should Do

Q: If I have a conflict of interest and do not wish to vote, what should I do?

A: Leave the meeting until voting on the issue has concluded. Because
K.S.A. 72-1138 requires an abstaining vote to count as a “no” vote, this is the recommended procedure a board member should follow when there is a conflict of interest.

Legal Definition of a Conflict

Q: When does a board member have a conflict of interest?

A: Legally a board member has a conflict of interest only if the board member has a substantial interest in a contract. There may be other issues in which there is an ethical or moral conflict, but there are no legal restrictions on a board member’s actions on these issues.

Q: What is a substantial interest in a contract?

A: K.S.A. 75-4301a defines “substantial interest.” An individual is deemed to have a substantial interest in the following situations:

  • If an individual or his or her spouse, either individually or collectively, has owned within the preceding 12 months a legal or equitable interest exceeding $5,000 or 5 percent of any business, whichever is less;
  • If an individual or his or her spouse, either individually or collectively, has received during the preceding calendar year compensation which is or will be required to be included as taxable income on federal income tax returns of the individual and spouse in an aggregate amount of $2,000 from any business or combination of businesses;
  • If an individual or his or her spouse, either individually or collectively, has received in the preceding 12 months, without reasonable and valuable consideration, goods or services having an aggregate value of $500 or more from a business or combination of businesses;
  • If an individual or his or her spouse holds the position of officer, director, associate, partner or proprietor of any business, other than certain 501(c) tax exempt organizations, irrespective of the amount of compensation received by the individual or individual’s spouse; and
  • If an individual or his or her spouse receives compensation which is a portion or percentage of each separate fee or commission paid to a business or combination of businesses, the individual has a substantial interest in any client or customer who pays fees or commissions to the business from which fees or commissions the individual or his or her spouse, either individually or collectively, received an aggregate of $2,000 or more in the preceding calendar year.
Q: How is a business defined?

A: “Business” means any corporation, association, partnership, proprietorship, trust, joint venture, and every other business interest, including ownership or use of land for income.

Duty to Declare a Conflict

Q: Can the board require that a board member declare a conflict of interest?

A: No. The duty is on the board member to declare the conflict.

Q: Can I, as a board member, do anything if I believe a board member has a conflict and refuses to do anything?

A: You may talk with the board member about your concerns.

Advisory Opinions

Q: Can we get an opinion from anyone on whether certain actions would create a conflict?

A: You may seek an opinion from the Kansas Governmental Ethics Commission. A request for an advisory opinion should be sent to the Secretary of State who in turn notifies the Commission. K.S.A. 75-4303a.

Contracting with the School District

Q: Does this mean a board member can never contract with the school district?

A: No. It simply means the board member cannot participate as a board member in the making of the contract. A local governmental officer or employee does not make or participate in the making of a contract if the officer or employee abstains from any action in regard to the contract. Further, the prohibition does not apply to:

  • Contracts let after competitive bidding has been advertised for by published notice; and
  • Contracts for property or services for which the price or rate is fixed by law. K.S.A. 75-4304.

Penalty for Violations

Q: What happens if a board member violates the conflict of interest law?

A: If convicted, the board member would forfeit his or her board office. K.S.A. 75-4304(e).

Participation in Negotiations

Q: Can a board member participate in negotiations if his or her spouse is a teacher in the same school district?

A: Yes. This question was posed to the Kansas Governmental Ethics Commission in Opinion No. 1991-17. The Commission noted that the law prohibits a school board member from participating in the making of a contract with any person or business by which the board member is employed or in whose business the board member has a substantial interest. Because a governmental unit is not included in the definition of “business” under the conflict of interest law that applies to local units of government, the Commission concluded a board member is not precluded from serving on the board’s negotiating team in this circumstance.

July Organizational Meeting

Election of Officers

Q: When do we elect our president and vice president?

A: Annually at the July organizational meeting. K.S.A. 72-1133.

Scheduling Board Meetings

Q: When do we set our board meeting dates, times and locations?

A: Annually at the July organizational meeting. K.S.A. 72-1138.

Q: Are we required to have a certain number of meetings of the board?

A: You must meet at least monthly. Beyond that there are no further requirements.

Other Appointments and Actions

Q: Are there other actions we should take at the July organizational meeting?

A: Yes. You should do the following:

  • Appoint a clerk and treasurer;
  • Appoint a KPERS representative, a food service program representative, a deputy clerk, and a school attorney;
  • Appoint an impact aid representative if your district receives impact aid;
  • Appoint a hearing officer for free and reduced price meal application appeals;
  • Appoint representatives to any service center boards or AVTS boards, if necessary;
  • Designate the individuals in each building responsible for reporting children truant pursuant to K.S.A. 72-3121;
  • Designate a coordinator for homeless children duties;
  • Designate compliance coordinator(s) for federal anti-discrimination laws including Title VI, Title VII, Title IX, ADA and Section 504;
  • Designate the official depository for school district funds and review bank signatures on file, K.S.A. 9-1401;
  • Adopt the annual waiver of requirements for generally accepted accounting principles, K.S.A. 75-1120a;
  • Adopt an early payment request policy and designate an employee authorized to make such payments, K.S.A. 12-105b(e);
  • Establish student fees, K.S.A. 72-3353, student meal prices, textbook rental fees, K.S.A. 72-3346 and the reimbursement rate for mileage, K.S.A. 75-3203;
  • Adopt a school calendar and designate inclement weather make-up days if your district wants them, K.S.A. 72-3115;
  • Adopt a resolution to establish petty cash accounts and petty cash limits, K.S.A. 72-1177;
  • Adopt guidelines for activity funds and gate receipts, K.S.A. 72-1178;
  • Rescind all policy actions from the previous year and adopt current written policies as those that will govern for the school year;
  • Approve district, school and/or athletic handbooks;
  • Select the official district newspaper for publication of official notices, K.S.A. 64-101.
Q: Are there other things we should do at the July meeting?

A: The Kansas State Department of Education suggests you should also:

  • Review units of credit offered at each attendance center to make sure each center is in compliance with accreditation rules and regulations;
  • Review the preliminary budget;
  • Review records in storage for possible destruction of old records pursuant to K.S.A. 72-1629;
  • Review the district’s insurance policies, including types of coverage, names of companies, and schedule for renewal;
  • Review the capital outlay mill levy authority to see if renewal is needed;
  • Review the immunization policy to ensure it is in compliance with statute. K.S.A. 72-6261.

Official Newspaper

Q: Can we select any newspaper to be our official newspaper?

A: No. The newspaper must be one having general circulation in the district. This is defined as one that:

  • Is published at least weekly 50 times each year;
  • Is entered at the post office in the school district of publication as periodical class mail matter;
  • Has general paid circulation on a daily, weekly, monthly or yearly basis in the school district;
  • Is not a trade, religious or fraternal publication; and
  • Is published in the school district publishing the official publication or notice. K.S.A. 64-101.
Q: We have a new weekly newspaper just starting up in our town. May they be our official newspaper?

A: No. The newspaper must have been published at least weekly 50 times per year for one year before you can consider it a newspaper having general circulation in the district. K.S.A. 64-101(c)(1).

Q: No newspaper is published in our district. What should we do?

A: If there is no newspaper published in the school district, you may use a newspaper which is published in Kansas and has general circulation in the school district. K.S.A. 64-101(c)(4).

Kansas Open Meetings Act

Purpose

Q: What is the purpose of the Kansas Open Meetings Act?

A: Its purpose is to ensure that the proceedings of public governing bodies are open to the public. K.S.A. 75-4317. The law requires a board of education to:

  • Conduct its affairs and transact its business in meetings which are open to the public;
  • Refrain from taking any binding action by secret ballot;
  • Provide notice of the date, time and place of any regular or special meeting to anyone requesting such notice;
  • Make the agenda, if one is prepared, for any meeting available to anyone requesting the agenda;
  • Recess into executive session only for those reasons stated in the statute.

What Constitutes a Meeting

Q: What is a meeting for KOMA purposes?

A: A meeting is defined as “any gathering or assembly in person or through the use of a telephone or any other medium for interactive communication by a majority of the membership of a public body or agency subject to this act for the purpose of discussing the business or affairs of the public body or agency.” K.S.A. 75-4317a.

To be a meeting subject to KOMA’s requirements, the gathering must meet three conditions:

  • It must include four or more board members. Because by law school boards consist of seven members, four members constitute a majority;
  • It must be for the purpose of discussing school board business;
  • It must involve interactive communication.

Quasi-judicial Capacity

Q: Are there any exceptions?

A: One exception to this definition occurs when the board sits in a quasi-judicial capacity (e.g., when a student appeals a long-term suspension or an expulsion to the board). When deliberating on matters relating to a decision involving quasi-judicial functions, the board is not required to have an open meeting. However, any vote taken as a result must occur in open session. K.S.A.75-4318(g)(1).

Social or Informal Gatherings

Q: What about social gatherings?

A: Generally, there will be no meeting under KOMA if four or more board members happen to be at the same social gathering, be it a wedding, a concert, a holiday party or a golf tournament. On these occasions, even though four or more board members may be present, the purpose of the gathering is not discussing school business. On the other hand, if the four or more board members, once at the otherwise innocuous social event, retreat to a quiet corner to discuss school business, a violation has arguably occurred. To avoid a violation, board members should refrain from discussing school business with other board members at social gatherings.

Q: What about informal gatherings of the board?

A: Although board members may comply with KOMA for the formal board meeting, violations may occur if four or more board members informally gather and discuss business before, after, or during recesses of the meeting. Coggins v. Public Employee Relations Board, 2 Kan. App. 2d 416 (1978).

Meeting with State Employees

Q: Four members of the board of education desire to drive to Topeka to visit with KSDE personnel. Will this violate the Kansas Open Meetings Act?

A: In order to avoid a violation of the KOMA, the board of education should provide notice of the meeting to all persons who have requested notice of their meetings. Further, board members should not discuss board business while traveling. If three or fewer members of the board were meeting with the state employee, the potential for a violation would be eliminated.

Meetings Initiated by Outside Groups

Q: What if outside groups initiate the meeting?

A: When outside groups–the Chamber of Commerce, the PTO, the local NEA, or others–request that four or more board members attend one of their meetings for the purpose of discussing school issues, the gathering is a meeting of the board for the purposes of KOMA. Notice of the meeting should be given to anyone who has requested notice under KOMA. The meeting does not need to be treated as a board meeting in other respects (i.e., the clerk does not need to take minutes).

Retreats or Study Sessions

Q: Are retreats or study sessions of the board, where no action will be taken, meetings for KOMA purposes?

A: Yes. Frequently boards of education decide to have retreats or study sessions for setting goals and future planning. At these sessions, discussion is informal and no votes are taken. Regardless of the formality or informality of the session, it is a meeting at which the affairs of the school district are discussed and therefore is a meeting which must be open to the public under the Act.

Conference Calls

Q: What about conference calls with four or more board members?

A: Telephone calls among four or more board members who discuss school business are meetings subject to KOMA.

Serial Meetings

Q: As a board member, may I call four or more other board members, one at a time, to discuss a particular issue?

A: It depends. Serial meetings are subject to KOMA’s openness requirement, but only if:

  • They collectively involve a majority of the membership of the board;
  • They share a common topic of discussion concerning the business affairs of the school board; and
  • They are intended by any or all of the participants to reach agreement on a matter that would require binding action to be taken by school board. K.S.A. 75-4318(f).
Q: For serial meetings, does the conversation have to be contemporaneous?

A: No. Just interactive.

Q: What if a parent talks to four or more of us about the same issue?

A: If a third party, such as a parent or a newspaper reporter, communicates with four or more board members in a series of communications about the same issue, KOMA is not violated, unless the third party is acting at the request of a board member.

Q: Can four or more of us talk about adding items to the agenda?

A: According to the Attorney General, discussion of purely procedural issues, such as adjustments in the agenda, even if they involve more than a majority of members of the board, are not the type of topics contemplated for KOMA coverage. Such conversations do not violate KOMA unless they lead to discussion of the substantive issues involved. In other words, if a board member asks the board president to add an item to the agenda, but only if there will be enough votes to pass the item, and the board president then calls various other members to determine how they would vote on the issue, a violation occurs.

Q: Can the superintendent or another staff member brief board members on an issue without violating KOMA?

A: Yes. A staff member can brief all board members on an issue and elicit their comments and concerns on the issue. The staff member cannot, however, discuss one board member’s concerns and comments with another board member in a way that makes a majority of the membership aware of and able to respond to each other’s concerns outside of the parameters of an open public meeting.

Q: What about a “chat room” for board members on our computer system?

A: Interactive electronic communication between four or more board members in this manner would constitute a meeting.

Written Memoranda

Q: What about written memoranda?

A: Although KOMA does not prohibit the exchange of written materials, it is likely that the use of written documents to prevent discussion of an issue at a public meeting would be viewed unfavorably by those who enforce KOMA.

Committee Meetings

Q: Are meetings of committees of the board subject to KOMA?

A: Yes. Because the school board is a taxing subdivision of the state which receives public funds, any body subordinate to the board, whether or not it receives public funds, is automatically covered by KOMA. K.S.A. 75-4318(a).

Meetings for Negotiations

Q: Are negotiations meetings subject to KOMA?

A: Generally, yes. The Kansas Professional Negotiations Act provides that meetings, conferences, consultations and discussions between the teachers’ organization and the board, or between their respective negotiating teams, during the course of professional negotiations are subject to KOMA. Hearings before the Secretary of Human Resources to determine the existence of an impasse are also meetings which must be open to the public. Certain meetings held in connection with the negotiation process, however, are specifically exempt from KOMA’s provisions:

  • Meetings, conferences, consultations and discussions held by the secretary for investigation of the question of the existence of impasse;
  • Meetings, conferences, consultations and discussions held in the course of and in connection with mediation and fact-finding; or
  • The meeting required between the parties after the fact-finding report is submitted to the parties. K.S.A. 72-2228(c).

Notice

Q: In what form must notice be given under KOMA?

A: The notice need not be in any particular form, but it must be personal notice. K.S.A. 75-4318(b). Contrary to popular belief, publishing notice of meetings in the local newspaper or having the time of meetings announced on a local radio station does not fulfill the notice requirements. To comply with KOMA, written notice may be mailed directly to the person requesting notice or oral notice may be given either in person or by telephone. Providing a single notice containing the list of all meetings suffices under KOMA, but the board still must provide additional notice for any meetings not included on the original list.

Q: How long is the request for notice effective?

A: Once notice is requested, the request continues in effect until it is withdrawn. The school board, at its discretion, may require that the request for notice be renewed at the beginning of each fiscal year.

Q: Can notice be discontinued?

A: Yes. However, before discontinuing notice, the school board must notify the requester that notice will be discontinued unless the person submits a new request. K.S.A. 75-4318(b)(3).

Q: Who has a duty to see that requesters get notice?

A: While the task of notification generally falls to the clerk of the board or the school district’s secretarial staff, the statutory duty to furnish notice rests with the board president or other person calling the meeting. K.S.A. 75-4318(c).

Q: Are there time restrictions on giving notice?

A: Nothing in the statutes requires that notice to requesters be given within a specific period of time. In general, the time at which notice should be given is a question of reasonableness. If the board attempts to provide notice in a reasonable manner, it substantially complies with KOMA. If, on the other hand, the board consistently gives notice five minutes before the meeting begins, a violation might be found by those charged with enforcement of the Act. If there is not time to mail written notice and a requester cannot be reached by telephone or in person, all attempts to notify the requester should be documented and maintained in a file.

Q: Must we send agendas and supporting materials to KOMA requesters?

A: No. Nothing in Kansas law requires a board of education to prepare or publish an agenda for its meetings, but in practice, most boards do. If an agenda is prepared, under KOMA it must be “made available” prior to the meeting, to any person requesting it. K.S.A. 75-4318(d). The law does not require that the agenda be sent to requesters; posting the agenda in the central office in a place   where persons who wish to see the agenda can read it or making the agenda available at other public places fulfills the requirements of the law.

An agenda is a public record. Any person may request access to or a copy of the agenda under the Kansas Open Records Act (KORA), K.S.A. 45-215, et seq. The school must comply with the request as soon as possible and may charge a reasonable fee for copying pursuant to their open records policy.

The same rules apply to materials distributed to board members with or in addition to the agenda. Some materials distributed to board members may indeed be public records. However, other materials may be exempted. Consult the statute, or the questions dealing with KORA in the “School Districts” chapter of this Handbook to determine which records are exempt from KORA requirements.

Recording Meetings

Q: Do members of the public have a right to record our meetings?

A: If anyone wants to record the meeting, KOMA requires that “the use of cameras, photographic lights and recording devices shall not be prohibited.” K.S.A. 75-4318(e). The option to record applies only to open meetings. There is no right to record executive sessions.

Q: Do we have any control over how recording devices are used?

A: Yes. The board may design reasonable rules for the use of these devices to ensure the orderly conduct of the meeting.

Meeting Out of District

Q: Can we hold a meeting out of the district?

A: While KOMA places no requirements on meeting locations, if a meeting is held in a place which is virtually inaccessible to most patrons, it is likely the courts would conclude that the choice of meeting location was designed to subvert KOMA and that a violation of the Act had occurred. Boards should attempt to hold meetings in a place that is accessible to patrons.

Meetings to Discuss Consolidation

Q: Are there any special rules for conversations about consolidation of school districts?

A: Yes. Boards considering consolidation are authorized to hold meetings to discuss and vote on issues related to consolidation within the boundaries of any of the districts involved. K.S.A. 72-708.

Executive Session

Q: When can we go into executive session?

A: Although KOMA promotes openness and requires that all formal action by a board of education be taken in open session, the Act does allow closed or executive sessions in which the board may discuss matters for which there are statutorily prescribed justifications. In each case the discussion in executive session is allowed because the privacy rights of individuals deserve protection, or because the public interest is better served by not requiring discussion of the topic in open session.

Whether to discuss an item in executive session rests with the discretion of the board. Under the statute, a board may recess into executive session for discussion using the following justifications:

  • To discuss personnel matters of non-elected personnel;
  • For consultation with an attorney for the board which would be deemed privileged in the attorney-client relationship;
  • To discuss matters relating to employer-employee negotiations;
  • To discuss confidential data relating to financial affairs or trade secrets of corporations, partnerships, trusts and individual proprietorships;
  • To discuss matters relating to actions adversely or favorably affecting a student;
  • For preliminary discussions relating to the acquisition of real property; or
  • To discuss matters relating to security measures, if the discussion of such matters at an open meeting would jeopardize security measures, that protect: (A) Systems, facilities or equipment used in the production, transmission or distribution of energy, water or communications services; (B) transportation and sewer or wastewater treatment systems, facilities or equipment; (C) a public body or agency, public building or facility or the information system of a public body or agency; or (D) private property or persons, if the matter is submitted to the agency for purposes of this paragraph. K.S.A. 75-4319(b).

Additional justifications for going into executive session listed in the statute apply only to specifically designated boards, not boards of education.

Q: Can we vote on issues in executive session?

A: Under the Kansas Open Meetings Act, any binding action taken by the board must be done in open session at an open meeting. K.S.A. 75-4318(a). You may reach consensus in executive session, but you may not vote or take binding action.

Q: Can our board hold an executive session without having a regular or special board meeting?

A: No. The board must be in open session before and after the executive session.

Nonelected Personnel

Q: May we discuss personnel policies in executive session?

A: Generally, not. The personnel exception applies only to discussion of specific individuals to protect their privacy rights. Discussion of policies for personnel in general should occur in open session.

Attorney-Client Privilege

Q: May we discuss correspondence from our attorney in executive session under the second exception?

A: Not unless the attorney is present.

Q: Does the attorney have to be physically present?

A: No. The attorney could be “present” by telephone or other means of interactive communication.

Attendance at Executive Session

Q: Who has a right to be in an executive session?

A: A board member, and only a board member, has a right to attend an executive session. Board members cannot vote to exclude other board members from an executive session.

Q: May we invite others into executive session?

A: The board may invite others to attend the executive session, but only if those invited will provide information or participate in its deliberations. Persons other than board members cannot be invited to attend the session simply as observers.

Q: Does the superintendent have a right to be in executive session with the board?

A: No. The superintendent may be invited into executive session with the board if he or she provides the board with information or recommendations. However, the superintendent has no right to be in executive session unless the board requests it.

Q: Does the clerk have a right to be in executive session with the board?

A: No. The clerk will generally be excluded from executive session but must be present to record the motion for going into executive session and the time at which the board reconvenes in open session. The clerk may be invited into executive session to provide information to the board.

Q: Can the board invite newly elected, but not yet serving, board members into executive session for the purpose of observing executive session?

A: Generally, not. Unless the newly elected board members are there for a participatory purpose, not merely observers to see how executive sessions work. They should not participate in executive sessions generally because they have no duty to keep executive session discussions confidential and have no immunity from liability for things they might say.

Confidentiality of Executive Session

Q: Should board members keep information discussed in executive session confidential?

A: Boards of education recess into executive session to protect either the public interest or the privacy interest of a particular individual. A board member who publicizes the matter addressed in executive session violates the public trust.

In matters where individual privacy rights are involved, discussion outside of executive session may result in the violation of an individual’s privacy right by the individual board member making the statements. In other words, by discussing these matters outside of the executive session, a board member may subject himself to being sued as an individual and have personal liability. The immunity which protects board members from liability for things said in executive session of the board meeting would not apply if statements are made outside of the executive session.

Q: May a board member divulge what was discussed in executive session at a due process hearing or in court?

A: Maintaining the confidentiality of an executive session should not be confused with any evidentiary privilege. The fact that the board discusses an item in executive session does not mean the substance of that conversation cannot be revealed under subpoena in hearings or court proceedings.

Penalties

Q: What are the penalties for violating KOMA?

A: Substantial civil penalties of up to $500 per violation may be ordered against individual board members. Further, any action taken by a board in a meeting which is not in substantial compliance with the requirements of the Act may be voided in an action brought by the county attorney or attorney general within 21 days of the meeting. The district court of the county in which the meeting occurs also has broad powers to issue injunctions and other equitable relief to achieve compliance with the Act. A violation of KOMA is grounds for recall of a board member under the recall statutes, or ouster from office. K.S.A. 75-4320.

Q: Will the school district indemnify me for penalties if I violate KOMA?

A: No. The liability for penalties is personal liability. The school district can neither pay the penalties nor indemnify board members for these costs.

Enforcement

Q: Who may seek enforcement of KOMA?

A: Any person, not just the attorney general or county attorney, may apply to the district court for enforcement of the Act. K.S.A. 75-4320a. However, only the Attorney General or county attorney may seek the imposition of civil penalties or the voidance of board action. K.S.A. 75-4320.

Q: How are complaints of KOMA violations submitted to the Attorney General?

A: They must be submitted on a form developed by the Attorney General. The person bringing the complaint must set forth the facts the person believes constitute a violation of KOMA and attest to the facts under penalty of perjury. K.S.A. 75-4320e.

Q: What actions may the court take in a KOMA action?

A: The district court has authority to enforce KOMA by injunction, mandamus, declaratory judgment or other appropriate order. K.S.A. 75-4320a(a). The attorney general or county or district attorney may also resolve the matter by accepting a consent judgment, which must be approved by the district court. K.S.A. 75-4320f.

Q: Who bears the burden of proof in a KOMA action?

A: The burden of proof is on the school board. K.S.A. 75-4320a(b).

Q: Who pays the court costs for a KOMA action?

A: The district court may require the school district to pay the court costs, if the court finds the KOMA was violated. These costs are assessed against the board, not individual board members. Conversely, if the court finds that the action brought by an individual was frivolous, the court may require the person seeking enforcement to pay the court costs. K.S.A. 75-4320a(c) and (d).

Consent Judgment

Q: What remedies are available if the Attorney General or county or district attorney seeks a consent judgment?

A: A consent judgment may contain any remedy available to the district court except:

  • An award of reasonable expenses;
  • Investigation costs; and
  • Attorney fees.

Investigations

Q: Who has authority to investigate alleged violations of KOMA?

A: The attorney general or county or district attorney has broad power to investigate alleged violations of both KOMA and KORA. K.S.A. 75-4320b. These powers include authority to:

  • Subpoena witnesses, evidence, documents or other material;
  • Take testimony under oath;
  • Examine or cause to be examined any documentary material of whatever nature relevant to the alleged violation;
  • Require attendance during the examination of documentary material and take testimony under oath or acknowledgement with respect to documentary material; and
  • Serve interrogatories; and
  • Administer oaths and affirmations. K.S.A. 75-4320b(a).
Q: In the investigation of an alleged violation, what if we fail to file a response to a request for information, respond to interrogatories or obey a subpoena?

A: The Attorney General or county or district attorney may ask the district court to issue an order requiring a response or compliance or grant such other relief as may be required. K.S.A. 75-4320b(c).

Consent Orders and Findings of Violation

Q: If the Attorney General finds we have violated KOMA, will it always result in court action, or are there other options?

A: Prior to filing an action in court, the Attorney General may either enter into a consent order with the school district or issue a finding of violation to the school district. K.S.A. 75-4320d.

Q: What might the consent order contain?

A: It may contain admissions of fact and any or all of the following:

  • Mandated training approved by the attorney general concerning the requirements of KOMA;
  • Imposition of a civil penalty in an amount not to exceed $250 for each violation; and
  • An agreement that the school district will comply with the requirements of KOMA; and
  • The consent order must be signed by the superintendent, any officer found to have violated KOMA, and any other person required by the attorney general. K.S.A. 75-4320d(a)(1).
Q: What might the finding of violation contain?

A: If the attorney general issues a finding of violation to school district, it may contain findings of fact and conclusions of law and require the public body or agency to do any or all of the following:

  • Cease and desist from further violation;
  • Comply with KOMA;
  • Complete training approved by the attorney general concerning the requirements of KOMA; and
  • Pay a civil penalty in an amount not to exceed $500 for each violation. K.S.A. 75-4320d(a)(2).
Q: How will the Attorney General know if we have done the things required in a consent order or finding of violation?

A: The Attorney General may require submission of proof that the requirements have been satisfied. K.S.A. 75-4320d(b).

Q: What if the district does not comply with the consent order or finding of violation?

A: The Attorney General can apply to the district court to enforce the order. However, the Attorney General must first demand compliance of the school district and afford the district a reasonable opportunity to cure its violation. K.S.A. 75-4320d(c)(1).

Q: What can the court do in this type of enforcement action?

A: Unless the court finds the Attorney General abused his discretion in entering into the consent order or issuing the finding of violation, the court will enter an order that:

  • Enjoins the school district to comply with the consent order or finding of violation;
  • Imposes a civil penalty in an amount not less than the amount ordered by the attorney general, nor more than $500 for each violation;
  • Requires the school district to pay the attorney general’s court costs and costs incurred in investigating the violation; and
  • Provides for any other remedy authorized by KOMA that the court deems appropriate. K.S.A. 75-4320d(c)(3).

If the court finds KOMA was violated, or if the violation was not made in good faith and without a reasonable basis in fact or law, the court may also require the school district to pay the Attorney General’s reasonable attorney fees. K.S.A. 75-4320d(c)(4).

Q: How do we get a finding of violation?

A: The Attorney General must serve it on you by certified mail or like a petition in a civil lawsuit. K.S.A. 75-4320d(d).

Q: What happens with the consent orders and findings of violation?

A: The Attorney General must maintain a file of all consent orders and finding of violation and make them available for public inspection. K.S.A. 75-4320d(e). They can be accessed on the Attorney General’s website at: https://ag.ks.gov/open-government/enforcement-actions

Print Chapter 2


School Law Handbook

Chapter 2 – Board Members

Access to Information
Employment of Board Members
Officers & Duties
Recall & Ouster
Residency & Eligibility
Vacancies

Access to Information

Academic Achievement Information

Q: How do we get information about the educational performance of students in our district?

A: The academic achievement testing program of the district should be designed to assess the educational performance of students in the district. K.S.A: 72-3219 requires a board to have an annual report on the academic achievement testing program of the district prepared and presented at a regular board meeting. The board may specify the form of the report and the manner in which it will be presented.

Student Records

Q: Do individual board members have a right to look at individual student records?

A: No. Not without the consent of the student (if the student is 18) or of the parents of the student (if the student is under 18). See the Section on student records in the Student section of this Handbook.

Records & Privacy Rights: FERPA

Q: Does the board have a right to look at individual student records?

A: In instances where the board has a legitimate educational interest, personally identifiable student records may be disclosed to the board in executive session without the consent of the student or parents, but only if board policy on the issue of student records allows for disclosure of records to school officials who have a legitimate educational interest and sets forth the criteria for determining which parties are school officials and what constitutes a legitimate educational interest. If policy does not allow for this, consent to disclosure would be required. 34 C.F.R. §§ 99.6 and 99.31.

Personnel Records

Q: Does an individual member of the school board have a right to examine a teacher’s evaluation?

A: No. K.S.A: 72-2411 allows the evaluation documents to be released to certain individuals and entities, including “the board.” Teacher evaluations may be released to the board as a whole and may be reviewed and discussed by the board as a whole in executive session, but an individual board member has no greater rights than any other citizen to access a teacher evaluation.

Q: What if the teacher gives the evaluation to a board member?

A: The teacher may disclose the evaluation document to anyone he or she chooses, including an individual board member. The law is designed to protect the teacher’s right to privacy.

Q: What about other documents in a personnel file? Does an individual board member have access to this information?

A: Again, a person’s status as a board member does not afford that person greater rights than any other citizen. The Kansas Open Records Act indicates that information in a personnel file is not required to be disclosed except for the following information: name, position, length of service in the district, salary and the individual contract. An individual board member would have access to this information, but not generally access to other information in the personnel file.

Employment of Board Members

Teachers as Board Members

Q: Is a teacher prohibited from serving on a school board?

A: Applying common law principles of incompatibility of office, in U.S.D. No. 501 v. Baker, 269 Kan. 239(2000), the Kansas Supreme Court held a teacher was disqualified from serving on the school board in the district that employed her.

Q: Is a teacher prohibited from serving on any school board?

A: No. A teacher is only prohibited from serving on the board in the district where he or she is employed. If the teacher works in one district but resides in a second district, the teacher can be a school board member in the second district.

Q: What about a retired teacher?

A: If the teacher is no longer an employee of the district, the teacher can be a board member in the district. It is serving in the dual capacity of employer/employee at the same time which creates the common law incompatibility of office.

Q: Does the holding apply to substitute teachers as well as full-time teachers?

A: Yes. The holding applies to any teacher in the school district.

Q: Does the holding prohibit a teacher from running for the school board?

A: No. A teacher can run for school board, and, if elected could serve on the board if he or she resigned from his or her employment before accepting the board position.

Other Employees as Board Members

Q: Does the holding disqualify other employees from serving on the school board?

A: Not directly. Although common law principles of incompatibility of office apply equally in this situation, there is a question whether the Kansas legislature has authorized classified employees to serve on boards by not specifically excluding them from board service in K.S.A: 72-1137. Until this question is answered by the court or the legislature, a board who allows a classified employee to serve on the board runs a risk that a court may later find such employees were disqualified from board service.

Board action involving the disqualified member might be voidable if challenged. Further, it is unlikely the school district’s insurance policies would cover actions by a disqualified member.  Because these employees are generally employees- at-will, the board can easily avoid these potential consequences by terminating existing employment or not offering further employment to board members. Alternatively, these individuals could resign from the board and retain their employment.

Q: Are any employees prohibited by statute from serving on the board of education?

A: Superintendents, assistant superintendents, principals, other supervisors, the clerk and the treasurer are statutorily prohibited from serving on the board. K.S.A: 72-1134, 72-1136 and 72-1136.

Community College Trustees

Q: May a community college trustee be employed by the college?

A: No. K.S.A: 71-1403(d) provides: “No member of the board of trustees of a community college shall be an employee of the community college.” The Attorney General has interpreted the term employee to include those persons whose service to the community college is subject to the control and direction of the community college, provided such control and direction includes directing the manner in which the services are performed, regardless whether the person receives compensation from the community college. This interpretation was based on the premise the purpose of the statute is to prevent situations in which a person as a member of the board of trustees of a community college exercises authority over employment matters regarding the person as an employee of the community college.

Nepotism

Q: May a board member’s family be employed by the district?

A: Nepotism is not forbidden by law but it may be regulated by board policy.

Q: Are nepotism laws or policies generally legal?

A: Yes. However, it is questionable if they can be applied retroactively to require an employee to be fired.

Expenses

Q: May board members be reimbursed for expenses?

A: Yes. board members may be reimbursed for their necessary expenses incurred in the performance of their official duties. K.S.A: 72-1140

Q: Most of our board members take their spouses with them to conventions and other meetings. May board members be reimbursed for expenses incurred by their spouses if their spouses accompany them on board business meetings?

A: No.

Q: Are there tax consequences for board members if they are reimbursed for expenses?

A: There may be. board members should check with their tax attorney if they have questions about specific reimbursements.

Oath of Office

Q: Must all elected board members take an oath of office?

A: Yes. You qualify for office by filing the oath of office. K.S.A: 25-2023

Q: Is there a specific oath that must be used?

A: Yes. The oath is set forth in K.S.A: 54-106 which provides:
“I do solemnly swear [or affirm, as the case may be] that I will support the constitution of the United States and the constitution of the state of Kansas, and faithfully discharge the duties of ___________. So help me God.”

Q: When must the oath of office be filed?

A: You must file an oath of office not later than 10 days after the election or five days after the issuance of your certificate of election, whichever is later. K.S.A: 25-2023

Q: Where is the oath filed?

A: You must file an oath of office with the county election officer. K.S.A: 25-2023

Q: Must an appointed member take an oath of office, and if so, where must it be filed?

A: Yes. The oath must be filed with the county election officer. K.S.A: 25-2024

Officers & Duties

Term of Office

Q: Can a board president or vice-president be elected to a term of longer than one year?

A: No. Board officers may run for re-election, without limit on the number of terms they may serve, but the term cannot be for longer than one year. K.S.A: 72-1133

Presiding at Meetings

Q: What are the duties of the board president?

A: To preside at meetings of the board and to perform other duties as required by law. K.S.A: 72-1133

Q: If the president is absent from a meeting, the vice-president presides. Who presides if they both are absent?

A: The remaining board members select a member to sit in the capacity of president for that meeting. K.S.A: 72-1133

Q: Who presides at the July organizational meeting before the new president is elected?

A: The board president remains board president until his or her successor is elected and should preside. If the board president is no longer on the board, the vice-president or a member selected to serve in the capacity of president should preside.

Recall & Ouster

Methods for Removing a Board Member from Office

Q: Can a majority of the school board remove another member of the board?

A: No. The means by which a board member may be removed from office are by recall petition and vote pursuant to K.S.A: 25-4318, et seq., or by ouster pursuant to K.S.A: 60-1205

Recall

Q: Who may start a petition for recall of a board member?

A: Any registered elector of the district, using the form prescribed in K.S.A: 25-4320

Q: Who may sign a recall petition?

A: Any registered elector of the election district from which the board member was elected. Depending on the voting plan the district uses, this may include the entire school district or just a member district.

Q: What constitutes grounds for recall?

A: Conviction of a felony, misconduct in office or failure to perform duties prescribed by law. K.S.A: 25-4302(a)

Q: What does misconduct in office mean?

A: A violation of law by the board member that impacts the board member’s ability to perform the official duties of the office. K.S.A: 25-4302(b)

Q: Who determines if the grounds for recall stated in the recall petition are sufficient?

A: The county or district attorney of the county where the petitions are required to be filed, in this case the home county of the school district. K.S.A: 25-4322(b) and 25-4318. In Unger v. Horn, 240 Kan. 740 (1987), the Supreme Court noted that the statute requires specificity when stating grounds for recall. For instance, a petition which alleges “misconduct in office” is insufficient, but one which alleges “violations of the Kansas Open Meetings Law,” specifying the misconduct, is sufficient.

Ouster

Q: May a board member be removed from office other than through recall?

A: Yes. A board member may be ousted from office pursuant to K.S.A: 60-1205

Q: What are the grounds for ouster?

A: A board member can be ousted from office if he or she:

  • Willfully engages in misconduct while in office;
  • Willfully neglects to perform any duty required by law;
  • Demonstrates mental impairment such that the person lacks the capacity to manage the office held; or
  • Commits any act constituting a violation of any penal statute involving moral turpitude. K.S.A: 60-1205
Q: Who can start proceedings to oust a board member from office?

A: The County Attorney or Attorney General, with or without a written complaint. K.S.A: 60-1206

Q: Is there an election on an ouster proceeding?

A: No. A petition is filed in district court by the County Attorney or District Attorney. The board member has a right to a full hearing before the court on the application for ouster. K.S.A: 60-1207

Residency & Eligibility

Moving to Another Member District in the School District

Q: One of our board members from member district #1 moved to member district #2. May he remain on the board?

A: Yes. So long as he still resides in the school district he may complete his term. If he desires to run again, however, he must run for a seat in member district #2 or for the at-large position. He cannot continue to run for the member district #1 seat if he no longer lives in that member district. K.S.A: 25-2022A

Moving Outside the School District

Q: One of our board members moved out of the school district. May she continue to serve on the board for the remainder of her term?

A: Probably not. If the board member has changed her residence, and the change is not temporary, she cannot continue to serve.

Q: If she refuses to resign, when does a vacancy occur?

A: A vacancy in the membership of the board is deemed to exist as of the date that the county election officer determines that a change of residence has occurred. Talk to the county election officer about the situation.

Q: One of our board members is getting divorced. He is looking for a place to live in the district but has rented an apartment in an adjoining district at present. He indicates this is a temporary situation and that he will move back to the district as soon as a rental property becomes available. Can he remain on the board?

A: If the board member has “established residence” outside the district, a request could be made to the county election officer to determine that a vacancy exists. The key question, however, is whether the board member has established a new residence. Residence requires two elements: (1) bodily presence at a location, and (2) an intent to remain there permanently or for an indefinite period of time. To constitute a change of residence, the board member must physically move to the new abode and intend to remain there.

In residency cases, courts examine all the surrounding circumstances, including the intent of the person to determine if residency is established. In Gleason v. Gleason, 159 Kan. 448 (1945), the court noted that when a person goes to another place for a temporary purpose and does so with the intention of returning to his fixed home, that the temporary absence does not effect a change of residence. In Perry v. Perry, 5 Kan. App.2d 636 (1981), the court concluded that one does not lose one’s residence by mere physical presence elsewhere unless that presence is accompanied by an intention to abandon the old residence and adopt the new. Further, once established, a residence is presumed to continue until a new residence is established.

If a board member intends to live outside the district only until he is able to find a place to rent back in the district, it would appear that a change of residence, in the legal sense of the word, does not occur. However, because the question is one of both fact and intent, changes in any of the facts or his intent, could result in a change of residence.

Vacancies

Publishing Notice of Vacancy

Q: One of our board members resigned. How do we fill the position?

A: You may appoint a replacement. When the vacancy occurs, the board should publish notice in the newspaper that a vacancy has occurred, and that the vacancy will be filled by appointment not sooner than 15 days after the publication. K.S.A: 25-2022

Length of Appointment

Q: Can someone be appointed to fill most of a full four-year term?

A: No. If the vacancy occurs prior to May 1 of an odd numbered year, a year in which there will be a general election for board members in November, the appointee can serve only until the second Monday in January after the following general election as an appointee. In the election in November, there must be an election “to fill the unexpired term.” The appointee and any other qualified elector may run in the election. Whoever is elected takes office on the second Monday in January following the general election for a term of two years.

Interviewing Applicants

Q: Can the board interview or discuss applicants for vacant board positions in executive session?

A: No. No exception in the Kansas Open Meetings Act authorizes the board to recess to executive session to discuss applicants for board positions. An exception exists with respect to non-elected personnel, but board members, even those who are appointed, are not non-elected personnel.

Q: May we ask applicants not to sit in on interviews of other applicants for the vacant board positions?

A: You may ask, but you cannot require that they absent themselves from the meeting. Like any other member of the public, an applicant for a position on the board has a right, under the Kansas Open Meetings Law, to watch the board meeting.

Timeline for Filling a Vacancy

Q: How soon after a vacancy occurs must we advertise and fill the position?

A: The law sets no timelines, but the board should act in a reasonable manner. Generally, you should try to fill vacancies as soon as possible.

Q: If a board member announces that he or she intends to resign in another month or two, can we publish the notice now and be ready to appoint someone when he or she actually resigns?

A: No. The law says you must publish notice after the vacancy occurs. Until the board member actually resigns, there is no vacancy.

When a Majority of the Board Resigns

Q: If it takes four board members to take any action, what do we do if four or more board members resign?

A: The clerk of the board must certify the vacancies to the governor. The governor then appoints as many board members as necessary to bring the total to four. Those four must appoint three others to fill the remaining vacancies, as they would fill any other vacancy on the board. In this case the statute requires the vacancies be filled within six months. K.S.A: 25-2022b

Q: Our board recently appointed a board member to fill the unexpired term of a member who resigned. Must the appointed member take an oath of office, and if so, where must it be filed?

A: Yes. The oath must be filed with the county election officer. K.S.A: 25-2024

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School Law Handbook

Chapter 3 – Discrimination Laws

Age Discrimination in Employment Act of 1967
Americans with Disabilities Act of 1990
Equal Pay Act of 1963
Genetic Information Nondiscrimination Act
Section 504 of the Rehabilitation Act of 1973
Title VI of the Civil Rights Act of 1964
Title VII of the Civil Rights Act of 1964
Title VII: Sexual Harassment
School District Liability for Harassment
Title IX of the Education Amendments of 1972

Age Discrimination in Employment Act of 1967

What’s Prohibited?

Q. What does the ADEA prohibit?

A. ADEA prohibits discrimination on the basis of age in all aspects of the employment relationship, including compensation, terms, conditions, or privileges of employment. Hiring and promotion decisions, including decisions about allowing an employee to achieve tenure, cannot be predicated on age.

Who’s Protected?

Q. Which employees are protected by the Age Discrimination in Employment Act?

A. Employees who are 40 and older are protected from discrimination in employment on the basis of their age by the Age Discrimination in Employment Act of 1967. Applicants for employment are protected as well as actual employees.

Q. Are any employees exempt from coverage?

A. Yes. Some are exempted from coverage under ADEA. The Act does not cover a person elected to public office, a member of that person’s staff or bona fide executives or high policymakers, such as a superintendent or president of a college. See EEOC v. Board of Trustees, 723 F.2d 509 (6th Cir. 1983).

Enforcement

Q. Who enforces the ADEA?

A. When enacted, the ADEA was enforced by the Department of Labor. In 1979 enforcement functions were transferred to the Equal Employment Opportunity Commission (EEOC).

Q. What procedures are followed in investigating ADEA claims?

A. Generally, the procedures outlined for Title VII claims are followed. However, ADEA allows for concurrent rather than sequential state and federal administrative jurisdiction. A complainant may file charges concurrently with Kansas Human Rights Commission (KHRC) and EEOC.

Application to Schools

Q. Does the ADEA apply to schools?

A. The ADEA applies to private employers with 20 or more employees and to state and local governments. ADEA applies to employers, including public schools, employment agencies and labor organizations.

Age as a Factor in Employment Decisions

Q. Does the ADEA prohibit mandatory retirement at a certain age?

A. The ADEA generally prohibits establishing a mandatory retirement age for any class of employees. While an institution may establish incentives for voluntary retirement, in most cases the courts have concluded mandatory retirement based solely on age violates the ADEA. Although ADEA frowns on mandatory retirement requirements, the law does allow for bona fide employee benefit plans which may include a voluntary early retirement incentive plan consistent with the purposes of ADEA. If early retirement is offered, it must be offered to all eligible employees. The key challenge to early retirement programs is whether retirement is actually voluntary. The alternative to “voluntary” retirement cannot be such that the retirement is, in fact, coerced.

Q. Can age ever be a factor considered in employment decisions?

A. Yes. The ADEA allows age to be a consideration in employment decisions where age is a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of the employer. To establish age as a lawful factor in employment decisions involving transportation employees, a school must prove:

  • The existence of a job qualification reasonably necessary to the essence of the school’s business; and
  • The school is compelled to rely on age as a proxy for safety-related considerations.
Q. Can we require bus drivers be under a certain age for safety reasons?

A. Maybe, but the courts are split on this issue. Instead of relying on age, educational institutions are well-advised to require physical examinations of drivers, along with stress tests, driving tests, and tests to assess dynamic visual acuity. The National Highway Traffic Administration’s manual recommends the following:

  • No person over the age of 65 should be hired to be a bus driver;
  • Those who reach the age of 65 while employed may be permitted to drive as long as health and operating skills permit;
  • Physical examinations for drivers over 65 should be required more frequently than for younger drivers. At least once every six months is recommended.
Q. Does granting credit on a salary schedule for prior experience violate the ADEA?

A. Granting credit on a salary schedule for prior experience does not violate the ADEA. See Wooden v. Board of Educ., 931 F.2d 376 (6th Cir. 1991).

Standard of Proof

Q. What does an individual have to show to prove a claim of age discrimination?

A. The standards of proof developed in Title VII litigation are applied to ADEA claims. For a prima facie age discrimination case, an employee must show:

  • He or she is in the protected age group;
  • He or she was unfavorably affected by an employment action;
  • At the time of the adverse action, he or she was performing his or her job at a level that met the employer’s legitimate expectations; and
  • Following the adverse employment action, he or she was replaced by someone of comparable qualifications outside the protected class.
Q. Do low ratings in an evaluation indicate an individual is not meeting the employer’s expectations?

A. Probably not. The Tenth Circuit has required only a minimal showing that performance is satisfactory to meet the prima facie burden, suggesting evidence of performance issues can be raised by the school in rebutting the prima facie case. Denison v. Swaco Geolograph Co., 941 F.2d 1416 (10th Cir. 1991).

Q. Does the employee win if they can just establish a prima facie case of discrimination?

A. No. Once the plaintiff has established a prima facie case of age discrimination, the employer must produce evidence of a nondiscriminatory reason for the employment action. The burden then returns to the employee to show these reasons are not true, but merely a pretext for age-based discrimination. The ultimate burden of persuasion remains at all times with the employee. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981).

Q. What if an employee quits before any adverse action occurs? Can they bring an action under the ADEA?

A. Probably. As in other types of employment discrimination actions, the adverse employment action may be a “constructive discharge.” The standard used for determining if a constructive discharge occurred is whether a reasonable person in the employee’s position would have felt compelled to resign. Hirschfeld v. New Mexico Corrections Dep’t., 916 F.2d 572 (10th Cir. 1990). In Schartz v. Unified School Dist. No. 512, 953 F. Supp. 1208 (D. Kan. 1997), the court noted “intolerable working conditions” do not require harassment or physical discomfort but may be created where an employer makes known its desires to be rid of a particular employee. Additionally, the court noted a claim of constructive discharge may be based on the fact an employee was given a choice between retirement or termination.

Specific Defenses to an ADEA Claim

Q. Are there any specific defenses to an ADEA claim?

A. Yes. The ADEA provides several defenses found at 29 U.S.C. § 623(f). A claim for age discrimination will not succeed where:

  • Age is a bona fide occupational qualification reasonably necessary to the normal operation of the employer;
  • The differentiation is based on reasonable factors other than age;
  • The individual is discharged or otherwise disciplined for good cause;
  • The action is taken in observation of the terms of a bona fide seniority system that is not intended to evade the purpose of ADEA. The seniority system may not require or permit the involuntary retirement of any individual because of age; or
  • The action is taken in observation of the terms of a bona fide employee benefit plan, but the employer’s contribution for an older worker must be no less than that made on behalf of a younger worker or pursuant to a voluntary early retirement incentive plan consistent with the purposes of ADEA.

Court Actions

Q. When can an action in court be brought under ADEA?

A. No civil action can be brought under ADEA until 60 days after a charge is filed with EEOC. Upon dismissal of the charge or termination of the EEOC proceedings, EEOC must notify the individual who then has 90 days in which to commence a civil action. In Kansas, an age discrimination claimant must file a complaint with KHRC and wait 60 days before filing a federal civil action. Filing of the federal action operates to stay the state administrative proceeding.

Q. Why is the EEOC sometimes a party in lawsuits involving the ADEA?

A. The EEOC may bring civil actions under ADEA. The individual’s right to bring a civil action ceases upon the commencement of an action by the EEOC. However, if the individual commences action prior to the EEOC action, the action remains viable. EEOC may either file a separate action or intervene in the individual action. ADEA claimants who litigate their individual claims in an individual action cannot obtain individual relief in subsequent EEOC actions based on the same claims.

Remedies

Q. What remedies are available under the ADEA?

A. ADEA remedies are enforced through provisions of the Fair Labor Standards Act which provide employers are liable for such legal or equitable relief as may be appropriate, “including without limitation judgments compelling employment, reinstatement or promotion.” 29 U.S.C. § 626(b). Courts, including the Tenth Circuit, have generally concluded that compensatory damages are not available under ADEA, but some courts have allowed for the recovery of compensatory damages. See Moskowitz v. Trustees of Purdue University, 5 F.3d 279 (7th Cir. 1993); Bruno v. Western Elec. Co., 829 F.2d 957 (10th Cir. 1987). Liquidated or double damages may be awarded when the violation is found to be willful.

Q. When are actions considered willful?

A. An employer’s actions are willful if, “the employer…knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA.” TWA v. Thurston, 469 U.S. 111, 126 (1985).

Statute of Limitations

Q. What is the statute of limitations for bringing an ADEA action?

A. The statute of limitations is two years, except in cases of willful violations where it is three years.

Waiver of Rights in Settlement Agreements

Q. Can employees waive their right to bring an ADEA action as part of a settlement agreement?

A. Yes. But the waiver must be knowing and voluntary and must comply with the specific requirements in the law. 29 U.S.C. § 626(f).

Q. What requirements must the waiver meet?

A. At a minimum the waiver must:

  • Be part of an agreement between the individual and the employer that is written in a manner calculated to be understood by such individual, or by the average individual eligible to participate;
  • Specifically refer to rights or claims arising under ADEA;
  • State the individual does not waive rights or claims that may arise after the date the waiver is executed;
  • Provide the individual waives rights or claims only in exchange for consideration in addition to anything of value to which the individual already is entitled;
  • Advise the individual in writing to consult with an attorney prior to executing the agreement;
  • Give the individual a period of at least 21 days within which to consider the agreement;
  • Provide that for a period of at least seven days following the execution of the agreement, the individual may revoke the agreement, and the agreement shall not become effective or enforceable until the revocation period has expired.

Americans with Disabilities Act of 1990

What’s Prohibited?

Q. What does the ADA prohibit?

A. The Americans with Disabilities Act of 1990 prohibits discrimination on the basis of an individual’s disability in employment, public services and transportation, public accommodations and telecommunications. The expressed purpose of the Act is to establish a clear and comprehensive prohibition of discrimination on the basis of disability.

As public entities, public school districts who receive federal funding have been prohibited from discriminating on the basis of handicap or disability for nearly 20 years under Section 504 of the Rehabilitation Act of 1973. Requirements under the ADA are strikingly similar to those under Section 504, but the ADA applies to the private, as well as the public sector.

Q. What does the ADA prohibit in terms of employment?

A. The ADA prohibits discrimination on the basis of disability against a qualified individual in application procedures, hiring, advancement, discharge, compensation, job training or other terms and conditions of employment.

Individual with a Disability

Q. Who is an individual with a disability under the ADA?

A. An individual with a disability is a person with physical or mental impairment that substantially limits major life activities, a person who has a record of having such an impairment, or a person who is regarded as having such an impairment.

Q. Are there any exclusions?

A. “Disability” does not include current illegal drug use, homosexuality, bisexuality, transvestitism, exhibitionism, gender identity disorders, sexual behavior disorders, compulsive gambling, kleptomania, minor or trivial impairments, simple physical characteristics, or environmental or cultural disadvantages.

Major Life Activities

Q. What are major life activities?

A. Major life activities include seeing, hearing, walking, caring for oneself, learning, breathing, eating, sleeping, standing, lifting, bending, learning, reading, concentrating, thinking, communicating and working. A major life activity also includes the operation of a major bodily function, including but not limited to functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.

Substantially Limit

Q. When does an impairment substantially limit the ability to work?

A. When a person is substantially limited in their ability to perform the functions of the job they desire. An individual need not be precluded from performing a broad class of jobs.

Q. Are mitigating measures considered in determining if there is a substantial limitation?

A. No. The ADA Amendments of 2008 forbid consideration of mitigating measures other than eyeglasses.

Q. What about temporary conditions?

A. An impairment need not be permanent to be a disability under ADA. However, broken bones and illnesses that are temporary in duration normally will not be considered a disability for ADA purposes. The nature, severity and actual or expected duration of the disability and the resulting impact of the impairment on the individual’s ability to perform major life activities are factors which must be considered in determining if a temporary condition qualifies as a disability for ADA purposes.

Qualified Individual

Q. For employment purposes, who is a qualified individual?

A. A qualified individual is a disabled individual who, with or without reasonable accommodation, can perform the essential functions of the employment position.

Essential Functions of the Position

Q. What are essential functions of the employment position?

A. The ADA does not define essential functions of the employment position. The regulations suggest that such functions must be determined in the context of the entire work environment and be consistent with business necessity. They must be tasks other than those which bear only a marginal relationship to the job in question. In determining essential job functions, consideration will be given to the employer’s judgment and written job descriptions prepared before advertising or interviewing applicants for the job.

Pre-Employment Inquiries

Q. May we ask job applicants about their disabilities?

A. An employer may not make a pre-employment inquiry on an application form or in an interview as to whether, or to what extent, an individual is disabled. You may ask a job applicant whether he or she has the ability to perform particular job functions.

Reasonable Accommodation

Q. What are our obligations to accommodate?

A. Under the ADA an employer must make reasonable accommodations to known physical or mental limitations of a disabled individual, unless the accommodations would impose an undue hardship on the operation of the school. Reasonable accommodation includes making existing facilities readily accessible and usable, and may include job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, adjustment or modifications of training materials or policies, or the provision of qualified readers or interpreters.

An employer is only required to accommodate a known disability. If the individual does not request an accommodation, the employer is not obligated to provide one. However, the EEOC enforcement guidance states an employer should initiate the accommodation process if the employer knows or has reason to know that an employee is disabled, is experiencing problems because of a disability, or suffers from a disability that prevents him from asking for an accommodation.

Leave

Q. Is granting leave a reasonable accommodation?

A. An allowance of time for medical care or treatment may constitute a reasonable accommodation. However, if the employee gives no indication of when and under what conditions he might return to work, an indefinite unpaid leave is not a reasonable accommodation. See Hudson v. MCI Telecommunications Corp., 87 F.3d 1167 (10th Cir. 1996).

Reassignment

Q. Is reassignment to an open position required?

A. It depends. The ADA may require an employer to reassign an employee to a vacant position where the disability precludes performing the essential functions of the current job. However, reassignment is not required if other reasonable accommodations would allow the employee to continue working in his current job. The employer is not required to create an opening where none exists. Further, the employee must be qualified to perform the essential functions of the vacant job.

Q. How do we determine an appropriate accommodation?

A. Each school should establish a procedure for determining reasonable accommodations for an employee. The process should be flexible, interactive, and include input from the employee. An accommodation must be reasonable but need not be the best accommodation.

Refuse to Accommodate

Q. May we ever refuse to accommodate?

A. Each school may refuse to accommodate if the individual is not otherwise qualified for the job, if the accommodation would eliminate an essential function of the job, or if the accommodation would impose undue hardship. The school has the burden to prove undue hardship.

Undue hardship may be shown if the needed accommodation would result in significant difficulty or excessive cost to the school. Additionally, if the employment of the individual would result in a threat to the health or safety of the employee or others and the significant risk of substantial harm cannot be avoided through a reasonable accommodation, accommodation may not be required.

Enforcement

Q. Who enforces the ADA employment provisions?

A. The employment provisions of the Act are enforced by the EEOC pursuant to Title VII of the Civil Rights Act of 1964.

Public Services

Q. What are our obligations under ADA with regard to public services?

A. Title II of the ADA provides that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

Q. What does the Act mean by public services?

A. Public services include any service, program, or benefit which you provide. In addition to educational services for students, this may include sports activities, plays, assemblies, adult education programs, board meetings, and other programs or activities.

Q. For public services, who is a qualified individual?

A. A qualified individual with a disability is one who meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by the public entity with or without reasonable modifications to rules, policies, or practices; the removal of architectural, communication or transportation barriers; or the provision of auxiliary aids and services.

Auxiliary Aids and Services

Q. What are auxiliary aids and services?

A. Auxiliary aids and services may include providing qualified interpreters, note takers, written materials or telecommunication devices for the deaf (TDDs); providing qualified readers, taped texts, audio recordings, Brailled materials; acquiring or modifying equipment and devices; and other similar services or actions. In furnishing appropriate auxiliary aids, the school must give primary consideration to the request of the individual requesting the aid. Personal devices need not be provided.

Program Accessibility

Q. What obligation do we have to make programs accessible?

A. A service, program, or activity must be operated in a manner so that, when viewed in its entirety, it is readily accessible to and usable by individuals with disabilities. In existing facilities this may be accomplished through redesign of equipment, reassignment of services to accessible sites, the assignment of aides, the delivery of services at alternate accessible sites, or any other method which makes services accessible. A school district is not required to make changes which would result in a fundamental alteration in the nature of the service, program or activity, make structural changes in existing facilities where other methods are effective in achieving compliance, or make changes which would result in undue financial and administrative burdens. New construction must meet federal accessibility standards.

Q. What federal accessibility standards do we follow?

A. Either the Uniform Federal Accessibility Standards (UFAS) or the Americans with Disabilities Act Accessibility Guidelines (ADAAG). You must choose one of these two and follow it in all aspects.

Self-Evaluation

Q. Are there any reporting requirements?

A. Each school was required to complete a self-evaluation which consisted of a review of services, policies and practices and their effects on individuals with disabilities, a consideration of necessary modifications, an opportunity for interested persons to participate in the process by submitting comments shortly after ADA was enacted in 1990.

Q. Are we required to keep the self-evaluation available to the public?

A. While that may be the best practice, the law required schools to maintain the self-evaluation for only three years.

Other Requirements

Q. Must we take any other actions?

A. A school must designate a person responsible for compliance with the ADA provisions, adopt a grievance procedure for dealing with complaints under the Act, and post notice of rights under the Act.

Q. What are our obligations with regard to communications?

A. TDDs or equally effective telecommunication systems must be used to communicate with individuals with impaired hearing or speech.

Schools must post the international symbol for accessibility at each accessible entrance to buildings. Schools must provide signs at all inaccessible entrances directing users to accessible entrances or to an accessible location where they can obtain information.

Q. Do we need to do anything with our school buses under the transportation provisions?

A. No. Buses used for public transit must meet certain standards, but school buses were specifically exempted from the transportation provisions.

Claims under ADA

Q. How are claims brought under ADA?

A. ADA incorporates the Title VII administrative and judicial enforcement procedures: a disabled individual may pursue a civil action after filing a timely discrimination charge with the EEOC or KHRC.

Q. Can a person who is qualified for disability benefits under Social Security claim to be a qualified individual with a disability under the ADA?

A. Yes. In Cleveland v. Policy Management Systems Corp., 526 U.S. 795(1999), the Supreme Court held application for and receipt of Social Security Disability Insurance benefits does not automatically stop the recipient from pursuing a claim under the ADA.

Q. Can individuals be sued under ADA?

A. The Tenth Circuit has held ADA precludes personal capacity suits against individuals who do not otherwise qualify as employers under the statute. Butler v. City of Prairie Village Kansas, 172 F.3d 736 (10th Cir. 1999).

Remedies

Q. What remedies are available under ADA?

A. Back pay, reinstatement, injunctive relief, and other equitable remedies are generally available. Compensatory and punitive damages may be available in cases of intentional disparate treatment. However, an employer can avoid liability for damages if it shows it made a good faith effort, in consultation with the employee, to identify and make a reasonable accommodation to a known disability. The damage caps under Title VII apply to ADA damages as well. A prevailing party is entitled to reimbursement for attorney fees and litigation expenses.

Equal Pay Act of 1963

What’s Prohibited?

Q. What does the Equal Pay Act prohibit?

A.  Sex discrimination in payment of wages and other compensation by private employers, as well as by federal, state, and local governments. The Act requires equal pay in jobs substantially equal in skill, effort, and responsibility and performed under similar working conditions in the same establishment. The Equal Pay Act, which is actually a part of the Fair Labor Standards Act, prohibits an employer from maintaining wage differentials based upon sex and prohibits a labor organization from causing or attempting to cause an employer to discriminate in violation of the act. The EPA applies only to sex discrimination in the form of unequal pay for equal work. Retaliation against an employee for filing a complaint or testifying in a proceeding is prohibited.

Q. How does the EPA differ from Title VII?

A. The scope of the EPA is far more restrictive, proscribing only the payment of unequal wages while Title VII proscribes all practices which create inequality in employment opportunities due to discrimination on the basis of sex. While the EEOC and some courts have concluded that a violation of EPA is also a violation of Title VII, the courts have not always agreed. In Fallon v. State of Illinois, 882 F.2d 1206 (7th Cir. 1989), the court noted that the burden of proof is different under the statutes. Under Title VII, the burden is on the plaintiff at all time to show discriminatory intent. The EPA does not require proof of discriminatory intent.

Application

Q. Does the EPA apply to public schools and colleges?

A. Yes. When the EPA was enacted, coverage did not extend to public schools or colleges in any form. In 1966, the EPA was amended to include employees of public schools, bringing non-certificated staff within its coverage. Additional amendments in 1972 eliminated the professional employee exemption, bringing teachers and administrators within the EPA coverage as well.

Q. Do courts look at a single building or the entire district in evaluating EPA claims?

A. For purposes of EPA application, the entire school district, not a single building, is considered the establishment. See, e.g. Brennan v. Goose Creek Consolidated Independent Sch. Dist., 519 F.2d 53 (5th Cir. 1975). At the college and university level, courts have reached differing results. See Alexander v. University of Michigan-Flint, 509 F. Supp. 627 (E.D. Mich.1980) (single campus) and EEOC v. Maricopa County Community College District, 29 FEP 383 (D. Ariz. 1982), aff’d on other grounds, 736 F.2d 510 (9th Cir. 1984) (all campuses).

Enforcement

Q. Who enforces the Equal Pay Act?

A. The EEOC is responsible for enforcement. Lawsuits may be filed by the EEOC or by the aggrieved individual. No charge need be filed with EEOC as a precondition to private suit. EEOC has authority to investigate to determine if the EPA is being violated on its own volition or at the request of a person who believes the Act is being violated. A school cannot have liability under the EPA if it relies in good faith on any written regulation, order, ruling, interpretation, practice or enforcement policy of the EEOC.

Standard of Proof

Q. What must an employee prove to show a violation of the EPA?

A. Generally, to prove a violation of the EPA an employee must show that a male and female who work in the same establishment, performing equal work are paid different wages on the basis of sex. To be considered “equal” the work performed must be “substantially equal” in skill, effort and responsibility and performed under similar working conditions.

Defenses

Q. What are an employer’s defenses?

A. In defending an action under the EPA, a school district employer may rebut those elements by showing that skill, effort or responsibility are not equal in the two positions or by showing that the work is not performed under similar working conditions. Additionally, the school district may prove that the unequal pay resulted because of a permitted exception under the law. Those exceptions include:

  • Wages paid pursuant to a seniority system;
  • Wages paid pursuant to a merit system;
  • Wages paid pursuant to a system that measures the quantity or quality of goods produced; or
  • Unequal pay based on a factor other than sex.

Court Action

Q. Can an individual bring an action in court under the EPA?

A. Yes. An employee may bring a civil action directly in any federal court. The action may be individual or on behalf of others who are similarly situated.

Q. Is exhaustion of administrative remedies required?

A. Exhaustion of administrative remedies is not required, nor is an attempt at EEOC conciliation.

Q. Can EEOC bring action on its own?

A. Yes. EEOC may bring civil actions on behalf of an employee or employees to recover unpaid wages and liquidated damages. EEOC may also seek injunctive relief for all affected employees.

Q. What is the statute of limitations for EPA actions?

A. Civil actions under the EPA must be commenced within two years of their accrual. In the case of “willful” violations, i.e., the employer knew or showed reckless disregard for the matter of whether its conduct was prohibited by the EPA, civil actions may be commenced within three years of their accrual.

Remedies

Q. What are the remedies for EPA violations?

A. The EPA is part of the Fair Labor Standards Act. An employer who violates FLSA provisions is liable for unpaid wages or overtime compensation and such legal or equitable relief as may be appropriate including employment, reinstatement and promotion. 29 U.S.C. § 206(d)(3). An employee’s wage rate cannot be reduced to remedy an unlawful differential in pay. 29 U.S.C. § 206(d)(1) and 29 CFR § 1620.12. An amount equal to the amount of wages determined to be owing for lost wages or overtime compensation are available in EPA cases where the school cannot show it acted in good faith and had reasonable grounds for believing it was not violating the EPA.

Penalties

Q. Are there any penalties for employers who willfully violate the EPA?

A. Yes. A person who willfully violates the EPA is subject to a $10,000 fine and up to six months imprisonment, or both, for a second or subsequent conviction. 29 U.S.C. § 216(a).

Genetic Information Nondiscrimination Act

What’s Prohibited?

Q. What does the Genetic Information Nondiscrimination Act (GINA) prohibit?

A. GINA prohibits the use of genetic information in employment. It restricts employers from requesting, requiring, or purchasing genetic information, and strictly limits the disclosure of genetic information.

Genetic Information

Q. What is “genetic information”?

A. Under the law, “genetic information” includes:

  • Information about an individual’s genetic tests;
  • Information about the genetic tests of a family member;
  • Family medical history;
  • Requests for, and receipt of, genetic services by an individual or a family member; and
  • Genetic information about a fetus carried by an individual or family member, or about an embryo legally held by the individual or family member using assisted reproductive technology.

Genetic Tests

Q. What are examples of genetic tests?

A. Tests used to determine whether an individual has a certain genetic variant associated with an increased risk of acquiring a disease in the future are genetic tests. For example, a test to determine whether an individual has the genetic variants associated with a predisposition to certain types of breast cancer is a genetic test. Carrier screenings of adults using genetic analysis to determine the risk of conditions such as cystic fibrosis, sickle cell anemia, spinal muscular atrophy, or fragile X syndrome in future offspring are additional examples of genetic tests.

Q. What are some examples of tests that are not genetic tests?

A. Examples of tests that are not genetic tests include an HIV test, a cholesterol test, or a test for the presence of drugs or alcohol.

Genetic-Based Impairments

Q. Does GINA protect individuals from discrimination on the basis of impairments that have a genetic basis?

A. No. GINA is concerned primarily with protecting those individuals who may be discriminated against because an employer thinks they are at increased risk of acquiring a condition in the future. However, other laws, such as the Americans with Disabilities Act, may provide protection.

Harassment and Retaliation

Q. Does GINA prohibit harassment?

A. Yes. GINA prohibits a wide range of discrimination, including harassment.

Q. Does GINA prohibit retaliation?

A. Yes. GINA includes a specific provision prohibiting employers from retaliating against employees who oppose employment practices made unlawful by GINA or who participate in an investigation, proceeding, or hearing under GINA.

Health Benefits

Q. May an employer use genetic information about an applicant or employee to make decisions concerning health benefits?

A. No. Health benefits are part of the compensation, terms, conditions, and privileges of employment.

Enforcement

Q. Who enforces GINA?

A. The EEOC is responsible for enforcement.

Remedies

Q. What are the remedies for a violation of GINA Title II?

A. The same remedies available under Title VII of the Civil Rights Act of 1964 are available under Title II of GINA. An aggrieved individual may seek reinstatement, hiring, promotion, back pay, injunctive relief, pecuniary and non-pecuniary damages (including compensatory and punitive damages), and attorneys’ fees and costs. Title VII’s cap on combined compensatory and punitive damages also applies to actions under Title II of GINA. Punitive damages are not available against federal, state, or local government employers.

Requesting Genetic Information

Q. Are there any situations in which a small business may obtain genetic information without violating GINA?

A. Yes, there are six narrow exceptions to the rule that an employer may not request, require, or purchase genetic information about an applicant or employee. Those that may apply in a public school setting include:

  • Where the information is acquired inadvertently;
  • As part of health or genetic services, including wellness programs, provided on a voluntary basis;
  • In the form of family medical history, to comply with the certification requirements of the Family and Medical Leave Act, state or local leave laws, or certain employer leave policies; and
  • When the information comes from sources that are commercially and publicly available, such as newspapers, books, magazines, and even electronic sources.

Medical Examination

Q. May an employer ask for family medical history as part of a medical examination of a job applicant or employee?

A. No. Although an employer may conduct medical examinations after making a job offer or during employment as permitted by the Americans with Disabilities Act (ADA), the examination may not include collection of family medical history. An employer must tell its health care providers not to collect genetic information as part of an employment-related medical exam, and, if it finds out that family medical histories are being collected, the employer must take measures within its control to prevent this from happening in the future.

Wellness Programs

Q. What does GINA say about the acquisition of genetic information when an employer offers health or genetic services, like a wellness program?

A. GINA and the final rule say that an employer may acquire genetic information about an employee or his or her family members when it offers health or genetic services, including wellness programs, on a voluntary basis. The individual receiving the services must give prior written authorization that is both voluntary and knowing. Individualized genetic information can be provided to the individual receiving the services, but genetic information may only be provided to the employer in aggregate form. Further, while employers may offer certain kinds of financial inducements to encourage participation in health or genetic services, they may not offer an inducement for individuals to provide genetic information.

Warning to Employee Required

Q. What should an employer do to comply with GINA when lawfully requesting health-related information from an employee?

A. When an employer makes a request for health-related information to support an employee’s request for reasonable accommodation under the ADA or a request for sick leave, it should warn the employee and/or health care provider not to provide genetic information. The warning may be in writing or oral. The regulations suggest language such as the following may be used:

  • The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.
Q. What if, even after the warning, we still get information that could be considered genetic information?

A. If this type of warning is provided, any acquisition of genetic information will be considered inadvertent, and therefore not in violation of GINA.

Q. How often must the warning be provided?

A. It is best to provide the warning each time health-related information is requested.

Confidentiality Required

Q. Does GINA have rules on confidentiality?

A. Yes. An employer in possession of genetic information about applicants or employees must treat it the same way it treats medical information. It must keep the information confidential and, if in writing, apart from other personnel information in separate medical files. However, genetic information may be kept in the same file as medical information subject to the ADA.

Filing a Charge

Q. How does an employee file a charge under GINA?

A. An individual who believes that his or her employment rights have been violated on the basis of genetic information may file a “charge of discrimination” with the EEOC within 180 days from the date of the alleged violation, or within 300 days if a state or local agency enforces a law that prohibits employment discrimination on the basis of use or acquisition of genetic information or genetic testing.

Kansas Act Against Discrimination

Q. What is the Kansas Act Against Discrimination (KAAD)?

A. It is the Kansas law that prohibits discrimination on the basis of race, religion, color, sex, disability, familial status, national origin or ancestry in employment and public accommodations. K.S.A. 44-1001, et seq.

Q. To whom do the Kansas Act Against Discrimination apply?

A. Any employer who employs four or more persons, agents of employers and labor organizations, and all political subdivisions of the state, including school districts and community colleges.

Kansas Human Rights Commission

Q. Who administers the KAAD?

A. The Kansas Human Rights Commission (KHRC).

Q. Who serves on the KHRC?

A. The commission consists of seven members appointed by the governor. By law two must be representatives of industry, two must be representatives of labor, one must be licensed to practice law, one must be a representative of the real estate industry, and one is appointed at large.

Complaints

Q. How do complaints of discrimination originate with the KHRC?

A. Any person who believes that they have been discriminated against in employment or in a public accommodation may file a verified complaint with the KHRC or have an attorney file the complaint on their behalf. The commission itself or the attorney general may also file complaints.

Q. Can the complaint be lodged orally?

A. No. The complaint must be in writing and articulate a prima facie case of discrimination pursuant to recognized theories of discrimination.

Q. When must the complaint be filed?

A. Complaints must be filed within six months after the alleged act of discrimination occurs, unless the act complained of constitutes a continuing pattern or practice of discrimination in which event it must be filed within six months of the last act.

Q. If the complaint is filed with KHRC, how does the school find out about the complaint?

A. The commission serves a copy of the complaint on you within seven days.

Q. Can the person also file a complaint with EEOC for the same conduct?

A. It is not necessary. Complaints filed with the KHRC are dually filed with the federal Equal Employment Opportunity Commission unless the complainant requests only to file with KHRC. If the complaint is first filed with KHRC, it is the agency which will initiate the investigation of the complaint.

Responding to the Complaint

Q. We received a letter accompanied by a complaint and a request for information from KHRC. How should we respond?

A. When a copy of the complaint is served on the school district, it is generally accompanied by a letter requesting that certain information be provided to assist in the investigation of the complaint. Although school district personnel may respond to this request, it is recommended any such response be reviewed by your school attorney before it is sent to the KHRC.

Q. The letter asks for the evaluations of several staff members. Can we release this information to KHRC?

A. The Kansas Evaluation of Certificated Personnel Act, K.S.A. 72-9001 et seq., limits the ability of the district to comply with this request. Generally, the complainant will have signed a form authorizing the release of such information to the KHRC, which will allow the district to forward the requested material on the complainant. Without such a release, however, the district should either seek a release from other employees itself or request that the KHRC subpoena the information prior to releasing the information.

Mediation

Q. The letter from KHRC asks if we want to participate in mediation. Should we do this?

A. Probably. You may be able to resolve the issues at this level.

Investigation

Q. What if mediation does not resolve the issues?

A. If the issues are not resolved through mediation, the complaint is assigned to a KHRC field investigator for complete investigation.

Q. What does the investigation involve?

A. The investigation may include a review of written documents, telephone interviews or on-site interviews of witnesses or documents.

Probable Cause and Conciliation

Q. What happens after the investigation?

A. The commissioner assigned to the case must make a determination of whether there is probable cause to believe discrimination has or is occurring. If the commissioner determines that there is no probable cause, written notice of this finding is served on the complainant and the school district within 10 business days after the determination is made. If the commissioner finds there is probable cause, KHRC attempts to get the parties to agree to settle the matter through conciliation within 45 days after the probable cause determination is made. The parties may agree to extend the time period.

KHRC Hearing

Q. What if conciliation efforts are unsuccessful?

A. If conciliation fails, the commission may commence a hearing in the matter. The hearing procedure is governed by provisions of the Kansas Administrative Procedure Act.

Q. Who hears the matter?

A. At least four commissioners and a presiding officer.

Q. Who is the presiding officer?

A. Either a staff hearing examiner or a contract hearing examiner.

Q. Where is the hearing held?

A. In the county where the school is located and the acts complained of occurred.

Q. Can information and witnesses be subpoenaed?

A. Yes. The presiding officer has authority to issue subpoenas for witnesses or documents and is required to do so at the request of either party.

Q. Can conversations which occurred during conciliation be introduced into evidence at the hearing?

A. No. Any endeavors at conciliation cannot be used as evidence at the hearing.

Dismissal of a Complaint

Q. When are complaints dismissed?

A. Complaints may be dismissed by the Commission on its own initiative. Complaints must be dismissed upon the written request of the complainant, or if the commission has not issued a finding of probable cause or no probable cause or taken other administrative action dismissing the complaint within 300 days of the filing of the complaint. The complaint must be dismissed if the hearing results in a no probable cause finding.

Q. Are we notified if the complaint is dismissed?

A. Yes. The commission must mail written notice to all parties of the dismissal of a complaint within five days of dismissal.

Q. Is a dismissal order subject to review?

A. Dismissal of a complaint in this manner constitutes final action by the commission and is deemed to exhaust all administrative remedies under the Act for the purpose of allowing subsequent filing of the matter in court by the complainant, without the requirement of filing a petition for reconsideration pursuant to K.S.A. 44-1010.

Remedies

Q. What are the remedies if the hearing panel concludes discrimination has occurred?

A. If the presiding officer finds the school has engaged in or is engaging in any discriminatory practice, the presiding officer must render an order requiring the school to cease and desist from the practice and to take such affirmative action, including the hiring, reinstatement, or upgrading of employees, with or without back pay, as, in the judgment of the presiding officer, will effectuate the purposes of the act. The order may also include an award of damages for pain, suffering and humiliation, not to exceed the sum of $2,000, which are incidental to the act of discrimination.

Reconsideration and Judicial Review of the Order

Q. Is the order subject to review?

A. Yes. Either party may petition the commission for reconsideration of the matter in accordance with the provisions of K.S.A. 77-529. Unless the party petitions for reconsideration, no cause of action accrues in any court. Further, a party cannot urge or rely on any ground not set forth in the petition for reconsideration if the matter proceeds to court.

Q. After petitioning for reconsideration, is the order subject to further review?

A. Yes. Any action of the commission under KAAD is subject to review in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions except:

  • Determinations of no probable cause are specifically exempted;
  • The attorney general or county or district attorney, in addition to those persons specified by K.S.A. 77-611, and amendments thereto, has standing to bring an action for review; and
  • On review, the court must hear the action by trial de novo with or without a jury in accordance with the provisions of K.S.A. 60-238, and amendments thereto, and the court, in its discretion, may permit any party or the commission to submit additional evidence on any issue.
Q. What may the court do on review?

A. After hearing, the court may affirm the adjudication, set aside or modify it in whole or in part, or may remand the proceedings to the commission for further disposition in accordance with the order of the court.

Posting Notice of Rights

Q. Do we have to post notice of rights under KAAD?

A. Yes. Notice of rights under the Kansas Act Against Discrimination must be posted in conspicuous places in each school.

Penalties

Q. Are there penalties for violating the KAAD?

A. In some cases. A person who willfully resists, prevents, impedes or interferes with the commission in the performance of their duties under the act or who willfully violates an order of the commission is guilty of a misdemeanor and upon conviction may be punished by imprisonment for not more than one year, or by a fine of not more than five hundred dollars, or both.

Age Discrimination

Q. Why isn’t age included in the KAAD?

A. Age discrimination claims in Kansas are controlled by the Kansas Age Discrimination in Employment Act, K.S.A. 44-1111 et seq. Complaints under the KADEA are handled by the KHRC in the same manner as complaints under the KAAD.

Section 504 of the Rehabilitation Act of 1973

What’s Prohibited?

Q. What does Section 504 prohibit?

A. Discrimination against an otherwise qualified individual with a disability, solely on the basis of disability, by any program or activity receiving federal financial assistance.

Individual with a Disability

Q. For purposes of Section 504, who is an individual with a disability?

A. The definition of a disability adopted for the Americans with Disabilities Act by the ADA Amendments Act of 2008 applies to Section 504. An individual with a disability is one who has a physical or mental impairment that substantially limits one or more major life activities, has a record of having such an impairment or is regarded as having such an impairment.

Major Life Activity

Q. What is a major life activity?

A. Major life activities include seeing, hearing, walking, caring for oneself, learning, breathing, eating, sleeping, standing, lifting, bending, learning, reading, concentrating, thinking, communicating and working. A major life activity also includes the operation of a major bodily function, including but not limited to functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.

Qualified Individual with a Disability

Q. Are all individuals with disabilities entitled to protection under Section 504?

A. No. In order to be protected by Section 504 an individual must be “qualified” for the employment position, program or service offered by the school.

Q. Who is “qualified” for employment purposes?

A. For employment purposes, a qualified individual with a disability is one who meets the qualification standards for the job and is able to perform the essential functions of the job, with or without reasonable accommodation. The Supreme Court has interpreted Section 504 to mean that an otherwise qualified person is one who is able to perform the duties and responsibilities of the position in question, in spite of his disability. Southeastern Community College v. Davis, 442 U.S. 397, 407 (1979).

Q. Are any persons deemed “unqualified” because of the nature of the handicap?

A. Occasionally. Individuals who have a currently contagious disease or infection which would constitute a direct threat to the health or safety of others or who are unable to perform the essential functions of the job are generally deemed unqualified, thus not entitled to protection.

Q. What is “undue hardship?”

A. Under Section 504, “undue hardship” means undue financial or administrative burdens or a fundamental alteration in the nature of the program. Factors to consider in determining undue hardship include the overall size of the school, taking into account the number of employees, the number and type of facilities, and the size of the budget. Additionally, the nature and cost of the accommodation are factors to consider.

Q. What about drug users or alcoholics?

A. Drug addiction and alcoholism are both conditions which may result in a finding the drug user or alcoholic are handicapped individuals under Section 504. However, both the ADA and Section 504 exclude an individual who is currently engaging in the illegal use of drugs from protection. An individual who is not currently engaging in the illegal use is protected if he or she has successfully completed or is participating in a supervised rehabilitation program.

Section 504 also excludes from protection an individual who is an alcoholic whose current use of alcohol prevents the individual from performing the duties of the job or whose employment, by reason of the alcohol abuse, would constitute a direct threat to the property or safety of others. The ADA does not exclude alcoholics from the definition of an individual with a disability, but does provide that an employer may hold an alcoholic or illegal drug user to the same qualification or job performance standards as other employees.

Reasonable Accommodation

Q. Are we required to provide accommodations for employees or others under Section 504?

A. Yes. For more information on reasonable accommodation see the ADA section of this chapter. As with the ADA, the courts interpreting Section 504 have required reasonable accommodation of known disabilities unless the employee would remain unable to perform the essential functions of the job or providing the accommodation would result in undue hardship.

Protections for Students and Patrons

Q. Are students covered by Section 504?

A. Yes. Elementary, secondary, postsecondary and adult education students are covered by Section 504. At the postsecondary level, colleges and universities must provide students with reasonable accommodations if students are qualified for the program and accommodation would not fundamentally alter the nature of the program. At the elementary and secondary level, students must be evaluated and provided with a free appropriate public education. For students identified under IDEA, IDEA procedures suffice to meet Section 504 standards. For those not eligible under IDEA, most districts use Section 504 accommodation. For comprehensive information on Students and Section 504, see the KASB Section 504 Handbook. Also see the section on Discrimination in the Student section of this Handbook which can be accessed at this link: Discrimination: Based on Disability

Q. Are parents and patrons of the district protected by Section 504?

A. Yes. If you offer programs or services for parents and patrons (e.g., school plays, athletic events, parent-teacher conferences, ceremonies and banquets, etc.) you cannot discriminate against an individual because of their handicap.

Enforcement

Q. Who enforces Section 504?

A. For educational institutions, Section 504 is enforced by the Office for Civil Rights of the Department of Education.

Remedies

Q. What are the remedies under Section 504?

A. Remedies under Section 504 mirror those available under Title VI. Aggrieved individuals may file complaints with OCR. A violation of Section 504 can result in action by the Department of Education to terminate federal funding for the violating school or college. Additionally, aggrieved individuals may bring action in court against the educational institution. Generally, an aggrieved individual need not exhaust administrative remedies prior to filing private lawsuits. Greater Los Angeles Council on Deafness, Inc. v. Community Television of Southern California, 719 F.2d 1017 (1983), cert. denied, 467 U.S. 1252, rehearing denied, 468 U.S. 1224 (1984). A prevailing party in an action brought under Section 504 may be awarded attorney’s fees pursuant to the provisions of 42 U.S.C. § 1988.

Steps to Ensure Compliance

Q. What steps should school districts take to ensure compliance with Section 504?

A. Schools should take the following steps:

  • Adopt a policy which prohibits discrimination, including harassment, on the basis of disability or handicap;
  • Designate a school employee responsible for coordinating the school’s efforts under Section 504;
  • Adopt a complaint or grievance procedure that provides for the prompt and equitable resolution of complaints;
  • Adopt due process procedures for hearings involving students;
  • Take appropriate and continuing steps to notify students, employees and patrons of the school that the school does not discriminate on the basis of disability;
  • Ensure complaints of discrimination are investigated and resolved promptly and equitably; and
  • Provide training to staff and students on the elements of the policy and enforcement of the policy.

Title VI of the Civil Rights Act of 1964

What’s Prohibited?

Q. What does Title VI prohibit?

A. Title VI prohibits exclusion from participation in, denial of benefits of, and discrimination under federally assisted programs on the basis of race, color, or national origin. The law prohibits intentional practices as well as those with a discriminatory effect. Guardians Association v. Civil Service Commission of New York, 463 U.S. 582 (1983). Title VI contains an express limitation on its applicability to employment related actions. Relief for employment discrimination is available only “where a primary objective of the federal financial assistance is to provide employment.” 42 U.S.C. § 2000d-3; Reynolds v. School District No. 1, 69 F.3d 1523 (10th Cir. 1995).

Q. Does Title VI apply to students?

A. Yes. For additional information about this subject, see the “Discrimination: Based on Race, Color and National Origin” section in the Students chapter of this Handbook which can be accessed at this link: Discrimination: Based on Race, Color or National Origin

Q. Does Title VI cover racial harassment?

A. Yes. OCR has issued guidance on the investigation of allegations of racial harassment under Title VI. Schools should have policies which prohibit such harassment.

Enforcement

Q. Who enforces Title VI?

A. In the case of educational institutions, the Office for Civil Rights of the Department of Education. The Department may initiate investigations based on a complaint that indicates noncompliance with the Act, an annual report, or a periodic compliance review. Incidents of noncompliance may be referred to the Department of Justice for proceedings under any applicable federal, state, or local law. A private right of action exists. Cannon v. University of Chicago, 441 U.S. 677 (1979). An aggrieved individual may file a lawsuit without first exhausting available administrative remedies. Chowdhury v. Reading Hospital Medical Center, 677 F.2d 317 (3rd Cir. 1982).

Remedies

Q. What are the remedies under Title VI?

A. Loss of federal funding. An individual may obtain only injunctive, declarative, or prospective relief. Money damages may also be available. Attorney fees are available under 42 U.S.C. § 1988.

Q. Can federal funding be terminated without any formal proceedings?

A. No. Prior to instituting enforcement proceedings, the law requires the Department of Education to advise the school of the noncompliance and attempt to secure voluntary compliance. Enforcement proceedings cannot begin until the Department determines that voluntary compliance cannot be obtained. Further, there must be an express finding of noncompliance on the record, after an opportunity for a hearing, before funding may be refused or revoked. Further, the department is required to file a written report outlining the grounds for termination or refusal to fund with Congress.

Steps to Comply with Title VI

Q. What steps should the school take to comply with Title VI?

A. The Title VI regulations, like the Title IX and Section 504 regulations, suggest you should take the following steps:

  • Adopt a policy which prohibits discrimination, including harassment, on the basis of race, color or national origin;
  • Designate a school employee responsible for coordinating the school’s efforts under Title VI;
  • Adopt a complaint or grievance procedure that provides for the prompt and equitable resolution of complaints;
  • Take appropriate and continuing steps to notify students, employees and patrons of the school that the school does not discriminate;
  • Ensure complaints of discrimination are investigated and resolved promptly and equitably; and
  • Provide training on the elements of the policy and enforcement of the policy.

Title VII of the Civil Rights Act of 1964

What’s Prohibited?

Q. What does Title VII prohibit?

A. Title VII prohibits discrimination in employment with respect to compensation, terms, conditions, or privileges of employment, based on race, color, national origin, religion, or sex by private employers with 15 or more employees, as well as by federal, state and local governments.

Q. What types of discrimination are prohibited?

A. Unlawful discrimination includes overt or “disparate treatment” discrimination, “disparate impact” discrimination, sexual and racial harassment and retaliation. Under § 701(k), added to Title VII by the Pregnancy Discrimination Act of 1980, sex discrimination includes discrimination “on the basis of pregnancy, childbirth or related medical conditions.”

Retaliation

Q. Does Title VII protect individuals from retaliation?

A. Yes. Title VII, like most anti-discrimination laws, makes it unlawful for an employer to take action against an individual because that individual has opposed practices which are in violation of Title VII or has participated in a Title VII proceeding. The protection afforded is not absolute; acts by an employee which are disruptive, insubordinate, or damaging to the employer’s legitimate business interests may fall outside the statutory protection against retaliation. See Jennings v. Tinley Park Community Consol. School Dist. No. 146, 864 F.2d 1368 (7th Cir. 1988).

Q. What must an employee show to succeed on a claim of retaliation?

A. In order to succeed on a claim of retaliation under Title VII, an employee must show:

  • He or she engaged in protected activity;
  • An adverse employment action was taken; and
  • There was a causal connection between the employment action taken and the protected activity.

Disparate Treatment and Disparate Impact

Q. What are “disparate treatment” and “disparate impact”?

A. Title VII case law has developed two frameworks for analyzing discrimination claims: one for cases which involve intentionally discriminatory treatment, commonly referred to as disparate treatment, and one for disparate impact cases which involve facially neutral policies or practices which have a discriminatory impact. Proof of discriminatory motive is critical in disparate treatment cases, but is not required in disparate impact cases. International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977). Discriminatory intent may be inferred, however, from surrounding circumstances. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

Q. What must an employee do to establish a disparate treatment claim?

A. In some cases there may be direct evidence of discrimination. In other cases, it must be inferred from the circumstances. In two early Title VII cases, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981), the Supreme Court developed the criteria for establishing a case of intentional discrimination in the absence of direct evidence of unlawful motivation. This scheme requires the employee to establish a prima facie case of discrimination. The elements of a prima facie case include:

  • Membership in a class of persons protected by Title VII;
  • Qualification for the position in question;
  • An adverse employment action (failure to hire, failure to promote, termination of employment, etc.); and
  • A continuing need for a person with the plaintiff’s qualifications in the position, or the filling of the position with someone outside of the protected class.

After the employee establishes a prima facie case, the employer must then rebut the presumption of discrimination by producing evidence of nondiscriminatory reasons for the employment action. Once the employer has articulated legitimate, nondiscriminatory reasons for the employment action, the employee must prove that the proffered reasons are mere pretext, and convince the fact-finder that discrimination was a motivating factor for the adverse employment action.

Q. What must an employee do to establish a disparate impact claim?

A. In Griggs v. Duke Power Co., 401 U.S. 424 (1971), the Supreme Court held that facially neutral practices which operate as “built-in headwinds” for minority groups and are not related to measuring job performance capability violate Title VII regardless of the employer’s lack of discriminatory intent. In these cases, a plaintiff must show, by statistics or otherwise, that the employment practice in question results in a substantially disproportionate underrepresentation of a group of protected persons in order to establish a prima facie disparate impact case.

Once the employee has set forth a prima facie case, the burden shifts to the employer to show it had a business necessity for the challenged practice. The employer must demonstrate that the practice is “job related for the position in question and consistent with business necessity.” 42 U.S.C. § 2000e-2(k)(1)(A)(i).

Even if the employer demonstrates a business necessity, the employee can still prevail by showing the existence of an alternative practice which the employer refused to adopt, demonstrating that the asserted business necessity defense is mere pretext. Cost and effectiveness of the asserted alternative are factors which the court will consider in determining if the employee has met the rebuttal burden. 42 U.S.C. § 2000e-2(k)(1)(A)(ii).

Discrimination on the Basis of Sexual Preference or Gender Identity

Q. Does Title VII provide protection on the basis of sexual preference?

A. Until recently, most courts had held Title VII does not provide protection to individuals on the basis of sexual preference such as homosexuality. However, recently some courts have ruled differently. The U.S. Supreme court has not yet addressed the issue. Similarly, courts are splitting on the issue of coverage for transgender individuals.

Discrimination on the Basis of Religion

Q. What protection does Title VII provide for religion or religious beliefs?

A. Title VII prohibits discrimination in employment on the basis of an individual’s religion which is defined to include all aspects of religious observance and practice, as well as belief. Title VII protects an employee’s religious practices and observances whether or not the employee belongs to a particular religious sect, so long as the practices are based upon “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” 29 C.F.R. § 1605.1. If the belief of an individual is sincerely held and a motivating force in the individual’s life, an employer must make reasonable accommodation to the employee’s religion, in the absence of undue hardship on the employer’s business.

Q. What must an employee show to establish a case of religious discrimination?

A. To establish a prima facie case, an employee must show:

  • He or she had a bona fide religious belief;
  • The employer was informed of the religious belief and that it was in conflict with the employee’s responsibilities; and
  • He or she was threatened with or subjected to discriminatory treatment for the inability to perform the disputed job duty.

The question then becomes whether the employer is required to provide a reasonable accommodation for the religious belief.

Q. Is requiring employees to take leave without pay for religious observances a reasonable accommodation?

A. Probably. In Ansonia Board of Education v. Philbrook, 479 U.S. 60 (1986), the Supreme Court considered a challenge to a school district’s practice of requiring that days of religious observance be taken as leave without pay after three days of religious observance leave were exhausted and upheld the practice. The Tenth Circuit Court of Appeals similarly upheld the use of unpaid leave as a reasonable accommodation for a teacher’s religious beliefs in Pinsker v. Joint Dist. No. 28J, 735 F.2d 388 (10th Cir. 1984).

Q. Isn’t having to get a substitute for a teacher’s absences for religious reasons an undue hardship?

A. Most courts say no. Schools have unsuccessfully argued that being required to secure a substitute for a teacher’s absences constitutes an undue hardship in several cases. See Niederhuber v. Camden County Vocational & Technical School Dist., 495 F. Supp. 273 (D.N.J. 1980); Rankins v. Commission on Professional Competence of the Ducor Union School Dist., 593 P.2d 852(Cal. 1979). This has been true even where the district is unable to secure a substitute with proper qualification in the discipline. See Wangsness v. Watertown School Dist., 541 F. Supp. 332 (D.S.D. 1982).

Enforcement

Q. Who enforces Title VII?

A. The EEOC is responsible for enforcing Title VII. This is done through the processing of charges filed by individuals and the filing of lawsuits by the EEOC. The individual may also file his or her own lawsuit at the conclusion of the EEOC’s processing of the charge.

Remedies

Q. What are the remedies under Title VII?

A. Until passage of the Civil Rights Act of 1991, a plaintiff under Title VII or the ADA was entitled to traditional equitable remedies, such as reinstatement, backpay, front pay, and injunctive relief. As enacted, Title VII made no mention of legal damages, and except for nominal damages, such damages were generally considered unavailable under these laws. The Civil Rights Act of 1991, however, allows for recovery of compensatory and punitive damages in Title VII or ADA cases which involve acts of intentional discrimination. Such damages are not available in disparate impact cases.

Punitive damages are available against a respondent only if it is shown that the respondent engaged in the discriminatory practice with malice or reckless indifference to the federally protected rights of the victim. Punitive damages cannot be imposed on a government, government agency, or a political subdivision such as a public school district or community college.

Compensatory damages may be awarded to compensate individuals for their actual losses, and can include such things as medical expenses, future pecuniary losses, emotional pain and suffering, mental anguish, loss of enjoyment of life. The total amount of damages which may be awarded in cases is capped by the law. The amount of the cap is predicated on the number of employees employed by the school or college. The caps are as follows: more than 14 but fewer than 101 employees: $50,000; more than 100 but fewer than 201 employees: $100,000; more than 200 but fewer than 501 employees: $200,000; and more than 500 employees: $300,000.

Attorney fees may be awarded to the prevailing party. A jury trial is available under Title VII.

Q. Are punitive damages available?

A. Not against a school district, but they may be available against individual defendants.

Title VII: Sexual Harassment

Definition of Sexual Harassment

Q. What is sexual harassment?

A. The EEOC’s guidelines indicate unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:

  • Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment;
  • Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or
  • Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment. 29 CFR § 1604.11.

School District Liability for Harassment

By Supervisory Personnel

Q. Is a school district liable for sexual harassment by its supervisory personnel?

A. The types of harassment explained in numbers one and two of the EEOC definition are generally called quid pro quo harassment. There is strict liability for an employer for quid pro quo harassment by a supervisor who has the authority to take action against an employee. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986).

In Faragher v. City of Boca Raton, 524 U.S. 775(1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742(1998), the Supreme Court held an employer is always liable for a supervisor’s harassment if it results in a tangible employment action. However, if the employer has not taken adverse job action against the victim of the harassment, the employer may raise an affirmative defense to liability. The defense has two elements:

  • The employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and
  • The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm.
Q. Who qualifies as a supervisor?

A. According to the EEOC Enforcement Guidance, an individual qualifies as an employee’s supervisor if the individual has authority to undertake or recommend tangible employment decisions affecting the employee or has authority to direct the employee’s daily work activities. A person outside the employee’s direct chain of command may also “qualify” as a supervisor if the employee reasonably believes the harasser has broad authority over or could influence employment decisions with regard to the employee.

Q. What is a tangible employment action?

A. It is a significant change in employment status. Examples include hiring, firing, promotion, demotion, failure to promote, undesirable reassignment, a significant change in benefits, compensation decisions and work assignments.

Q. How can we show we exercise reasonable care to prevent and promptly correct harassment?

A. Adopt, publicize and even-handedly enforce a harassment policy and complaint procedures. Provide employees with copies of the policy and complaint procedure, redistribute the policy periodically, and provide employees with training on the policy and procedures.

Q. How can we show an employee acted unreasonably?

A. An employer may be able to show an employee acted unreasonably by showing the employee provided it with no information about the harassment; provided it with untruthful information about the harassment; failed to cooperate in the investigation of the complaint or unreasonably delayed in filing a complaint.

Q. What makes an employee’s refusal to file a complaint reasonable?

A. Generally it will be difficult for an employer to show the employee acted unreasonably if the employee can show she or he had a reasonable fear of retaliation, there were obstacles to filing complaints, or she or he perceived the complaint process to be ineffective.

By Non-Supervisory Co-Workers or Non-Employees

Q. Is the district liable for sexual harassment by non-supervisory co-workers and/or non-employee individuals?

A. Both the courts and the EEOC take the position the employer is liable if it knew or should have known of the conduct and failed to take steps to remedy the situation.

Paramour Preferences

Q. Is there any potential liability for paramour preferences?

A. The courts are split on whether a plaintiff denied promotion, advances, etc., in favor of someone romantically involved with the decision-maker has a valid cause of action. Compare Toscano v. Nimmo, 570 F.Supp. 1197 (D. Del. 1983) and Priest v. Rotary, 634 F.Supp. 571 (N.D. Cal. 1986) [violation found] with Miller v. Aluminum Company of America, 679 F.Supp. 495 (W.D.Pa. 1988); aff’d, 856 F.2d 184 (3rd Cir. 1988) and DeCintio v. Westchester County Medical Center, 807 F.2d 304 (2d Cir. 1986), cert. denied, 484 U.S. 825 (1987) [no violation].

Sexual Harassment Policy Components

Q. What should a sexual harassment policy contain?

A. At a minimum the policy should include:

  • A clear explanation of prohibited conduct;
  • Assurance that employees who make complaints of harassment or provide information related to such complaints will be protected against retaliation;
  • A clearly described complaint process that provides accessible avenues of complaint;
  • Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible;
  • A complaint process that provides a prompt, thorough, and impartial investigation; and
  • Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred.

Corrective Action

Q. What type of corrective action should we take if harassment occurs in our school?

A. Corrective action should be designed to stop the harassment, correct its effects on the employee, and ensure that the harassment does not recur. Remedial measures need not be those that the employee requests or prefers, as long as they are effective.

Disciplinary measures should be proportional to the seriousness of the offense. If the harassment was minor, such as a small number of “off-color” remarks by an individual with no prior history of similar misconduct, then counseling and an oral warning might be all that is necessary. On the other hand, if the harassment was severe or persistent, then suspension or discharge may be appropriate.

Corrective action should not adversely affect the complainant but should correct the effects of the harassment. It should be designed to put the employee in the position she or he would have been in if the misconduct had not occurred.

No Application to Students

Q. Does Title VII apply to students?

A.  No. Not unless they are also employees of the district. However, sexual harassment of students is covered by Title IX. See the discrimination section of the Students chapter of this Handbook for more information on student harassment which can be accessed at this link: Discrimination: Based on Sex: Sexual Harassment

Steps to Comply with Title VII

Q. What steps should school districts take to limit liability for sexual harassment in employment?

A. Schools should take the following steps:

  • Adopt a policy which prohibits discrimination, including harassment, on the basis of sex;
  • Designate a school employee responsible for coordinating the school’s efforts under Title VII;
  • Adopt a complaint or grievance procedure that provides for the prompt and equitable resolution of complaints;
  • Take appropriate and continuing steps to notify employees that the school does not discriminate on the basis of sex;
  • Ensure complaints of discrimination are investigated and resolved promptly and equitably; and
  • Provide training on the elements and enforcement of the policy for staff.
Q. Is having a sexual harassment policy really that important?

A. Yes, the existence of a policy forms the basis for the defense to liability under the most recent Supreme Court cases.

Employee on Student Harassment

Q. Can the district have liability if an employee harasses a student?

A. Yes, but not under Title VII. A student may have a damage remedy under Title IX of the Education Amendments of 1972, but only if a school official who has authority to address the alleged harassment has actual knowledge of the harassment and fails to adequately respond. A school district may also have liability for tort claims under state law.

Title IX of the Education Amendments of 1972

What’s Prohibited?

Q. What does Title IX prohibit?

A. Discrimination on the basis of sex in private or public educational programs receiving federal funds.

Enforcement

Q. Who enforces Title IX?

A. The Office for Civil Rights of the Department of Education enforces the Act. Periodic compliance reviews or a complaint filed by an aggrieved individual may trigger an investigation. As with Title VI and Section 504, complaints of discrimination under Title IX can be filed with OCR.

Application

To Employees

Q. Does Title IX cover employment discrimination?

A. Unlike Title VI, after which Title IX was patterned, none of the statutory exemptions under Title IX apply to employment. However, until the Supreme Court decision in North Haven Board of Education v. Bell, 456 U.S. 512 (1982), most courts limited Title IX’s protections to direct beneficiaries of the federal financial assistance and did not extend those protections to victims of employment discrimination. In North Haven, however, the Supreme Court upheld regulations issued by the Department of Health, Education and Welfare which prohibited discrimination on the basis of sex in employment under Title IX.

Q. What standards do courts apply to claims of sexual harassment in employment under Title IX?

A. Courts have generally concluded that developing separate standards for sex discrimination under Title IX and Title VII would serve no purpose, and have applied Title VII analysis to Title IX claims involving employment discrimination. See Mabry v. State Bd. of Community Colleges Occupational Educ., 813 F.2d 311 (10th Cir.), cert. denied, 484 U.S. 849 (1987); Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir. 1988).

To Students

Q. Does Title IX protect to students?

A. Yes. See the discrimination section of the chapter on “Students” in this Handbook for more information on this topic. Discrimination: Based on Sex: Athletic Programs; Discrimination: Based on Sex: Pregnant or Married Students

Q. Do courts apply different standards to claims of sexual harassment by students under Title IX?

A. Yes. See the discrimination section of the chapter on “Students” in this Handbook for more information on this topic. Discrimination: Based on Sex: Sexual Harassment

Remedies

Q. What remedies are available?

A. Federal funding may be terminated. An aggrieved individual may file a private right of action. Cannon v. Univ. of Chicago, 441 U.S. 677, 706-708 (1979). An aggrieved individual may obtain injunctive relief, e.g., an order that the individual be hired, as well as attorney fees. Money damages are available. Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60(1992).

Steps to Comply with Title IX

Q. What steps should school districts take to ensure compliance with Title IX?

A. Schools should take the following steps:

  • Adopt a policy which prohibits discrimination, including harassment, on the basis of sex;
  • Designate a school employee responsible for coordinating the school’s efforts under Title IX;
  • Adopt a complaint or grievance procedure that provides for the prompt and equitable resolution of complaints;
  • Take appropriate and continuing steps to notify students, employees and patrons of the school that the school does not discriminate on the basis of sex;
  • Ensure complaints of discrimination are investigated and resolved promptly and equitably; and
  • Provide training on the elements and enforcement of the policy for students and staff.

Print Chapter 4


School Law Handbook

Chapter 4 – Elections

Board Member Elections
Method of Election & Voting Plans
Member District Boundaries
Campaign Finance

Board Member Elections

When Held

Q. When are school board elections?

A. The general election is on the first Tuesday following the first Monday in November of odd numbered years. Primary elections, if a primary is necessary, are held on the first Tuesday in August of odd-numbered years. K.S.A. 25-2006.

Q. When is the filing deadline?

A. Noon on June 1 of odd numbered years, or if such date falls on a Saturday, Sunday or holiday, the before noon of the next following day that is not a Saturday, Sunday or holiday. K.S.A. 25-2007(c); K.S.A. 25-205.

Q. When must we hold a primary?

A. A primary election must be held if needed to reduce the number of candidates for each office in the general election to not more than three candidates. A primary election is prohibited unless by holding the primary two or more candidates will be eliminated and if there are not more than three times the number of candidates as there are offices to fill.

Eligibility to be a Candidate

Q. A person who owns considerable farmland in our district, but whose home is in a neighboring district, wants to run for our board. Is he eligible?

A. No. Only residents of the district are eligible.

Q. Can a resident of the school district run for any board seat?

A. Any qualified elector who is a resident of the district may run for an at-large position. If your school district uses a member district method of voting, a candidate must be a resident of both the school district and the member district to be eligible for the member district seat.

Certifying the List of Offices to be Voted Upon

Q. Does the school district have any responsibility with regard to school board member elections?

A. Yes. By May 1 of each odd numbered year, the clerk must certify to the county election officer a list of all school offices to be voted upon at each school election, any boundary changes in member districts, and the voting plan of the district.

If the district is in more than one county, the home county election officer receives the original certification. The county election officers in other counties must be given copies of the certification. K.S.A. 25-2017A.

Write-In Votes

Q. Can people be elected to a board through write-in votes?

A. Yes. K.S.A. 25-2021 allows for write-in votes.

Filing the Oath of Office

Q. After being elected, must a person take any other action to qualify to fill the board position?

A. Yes. You must file an oath of office with the county election officer. K.S.A. 25-2023.

Method of Election & Voting Plans

Method of Election Options

Q. We are thinking of changing our method of election. What are our options?

A. Four options are available:

  • Two-member districts: three board members in each district, and one board member at large;
  • Three-member districts: two board members in each district and one at-large;
  • Six-member districts: one board member in each district and one at-large; or
  • All board members elected at-large. K.S.A. 72-1089.

Voting Plan Options

Q. What are our voting plan options?

A. Voting Plan A which allows all voters to vote for all candidates in both the general and primary election.

Voting Plan B which allows all voters to vote for all positions in the general election, but allows voters to vote only for candidates in their member district in primary elections.

Voting Plan C which allows voters to vote for only candidates in their member district in both the general and primary elections. K.S.A. 72-1083.

Procedures for Changing the Method of Election or Voting Plan

Q. What procedure do we follow to change our voting plan or method of election?

A. The board may adopt a resolution to change the method of election, the voting plan, or both, and file the resolution with the county election officer. An election and approval by the voters is required before the change can be implemented. K.S.A. 72-1081 and K.S.A. 72-1085.

Plan of Change

Q. Must we do anything prior to the adoption of the resolution?

A. Yes. You must first prepare a plan of change showing:

  • The territory, numbering and estimated population of each of the proposed member districts (unless at-large method);
  • The same characteristics for each of the existing member districts (unless at-large method); and
  • The proposed and existing voting plans. K.S.A. 72-1082.
Q. What do we do with the plan of change once it is completed?

A. Keep it on file in the board clerk’s office. K.S.A. 72-1085.

Resolution to Change the Method of Election, or Voting Plan, or Both

Q. What must the resolution contain?

A. The resolution must state the board’s intent to change the method of election, or voting plan, or both; must specify that the proposed change will be made only if it is approved by the voters; and must state that the plan of change is on file in the clerk of the board’s office. K.S.A. 72-1085.

Patron Initiated Change

Q. If the board does nothing to change the method of election or voting plan, can the patrons of the district force a change?

A. Yes. Ten or more electors in the district may prepare a plan of change and submit the plan to the clerk of the board and the Kansas State Board of Education. If the plan meets the statutory criteria, the State Board must certify it to the county election officer and the school district. The persons seeking the change must be notified by the county election officer that the plan has been certified by the State Board. At that point, they may circulate petitions and if they get the requisite number of signatures, force an election on the change. K.S.A. 72-1086.

Election

Q. Must we publish notice of the election?

A. Notice of the election must be published, but it is the duty of the county election officer, not the school district, to publish notice. K.S.A. 72-1087. The notice must be published in not less than 45 days and not more than 60 days from the passage of the resolution. It also must be published not less than three days prior to the election.

Q. Are there any restrictions on when we can pass a resolution seeking a change in the method of election or voting plan?

A. Yes. You can only make a change between the first Wednesday in November of an even numbered year and the first Tuesday in June of an odd numbered year, if the change is also approved in an election before the end of the period. K.S.A. 72-1085.

Member District Boundaries

Adjusting Boundaries

Q. If population shifts in our school district result in member districts that do not have substantially equal populations, must we take any action?

A. Yes. The board must change the boundaries of member districts if the population of a member district is more than five percent above or below the mean population of member districts in the school district. K.S.A. 72-1077.

Q. How do we determine the population of member districts?

A. Use the most recent federal census data or population estimates determined by the county election officer of your home county. K.S.A. 72-1077.

Q. Are there restrictions on how the boundaries are drawn?

A. Yes. Member districts must be drawn as compactly and as equally as possible and should include whole voting precincts to the extent practicable. K.S.A. 72-1077.

Adopting a Resolution

Q. What action does the board take to make the changes in the boundaries?

A. The board adopts a resolution which specifies the changes in the boundaries. K.S.A. 72-1077.

Q. Doesn’t the resolution need to be adopted in October?

A. No. At one time the law required action to be take in October of even-numbered years, but it now allows the action to be taken any time except during the 90-day period preceding a regular school board election. K.S.A. 72-1077.

Q. Does the resolution have to be published?

A. Yes. Once in a newspaper having general circulation in the district and within two weeks after the board adopts the resolution. K.S.A. 72-1077.

Consequences of Failing to Act

Q. Are there any penalties if we take no action?

A. No. But the county or district attorney may give notice of the failure to carry out its duty to make changes and may file an action in district court asking the court to compel the board to make changes to the boundaries if the board fails to change the boundaries within 60 days after receiving the notice. K.S.A. 72-1077.

Q. Can patrons challenge the changes and force an election?

A. No. The county attorney or attorney general may challenge the new boundaries by filing a challenge in court if such action is taken within 60 days after the publication of the resolution. There is no statutory procedure allowing for a citizen challenge of the action. However, a citizen of the district might be able to challenge the constitutionality of the member districts in an action brought pursuant to the equal protection clause of the Fourteenth Amendment.

Campaign Finance

Required Reports

Application of the Kansas Campaign Finance Act

Q. When I run for board office, do I have to file any campaign finance reports?

A. Yes. If your school district has more than 35,000 pupils, you are subject to the Kansas Campaign Finance Act and must follow its reporting requirements. Candidates in smaller districts must follow the less stringent requirements of the laws governing local government elections.

Affidavit of Intent

Q. I am from a small school district. I rarely have opposition for my board seat and do not spend much money on my campaign. What are my requirements?

A. If you intend to expend less than $1000, excluding your filing fee, and receive campaign contributions in an aggregate amount or value of less than $1,000 in each the primary and the general election you may file an affidavit of this intent and you are not required to file a report. K.S.A. 25-904(a).

Q. I signed an affidavit of intent to spend less than $1,000, but now it looks like I may spend more. What do I have to do?

A. You have to file the statements of expenditures and receipts as if you had not filed the affidavit. K.S.A. 25-904(d).

Itemized Statements

Q. I have competition this year and might raise or spend more than $1000. What do I need to do?

A. You must file an itemized statement under oath with the name and address of each person who has contributed in excess of $50 during the election period together with the amount and date of the contributions. You must also file an itemized statement of all expenditures made or obligations incurred by you in connection with each primary, general or special election. K.S.A. 25-904(b).

Filing Reports

Q. Where do I file the affidavit of intent?

A. With the county election officer of the county of your residence.

Q. When do I file the affidavit of intent?

A. Not later than the ninth day preceding the primary election.

Q. If I need to file an itemized statement, where do I file it?

A. With the county election officer of the county of your residence.

Q. If I need to file one, when do I file the itemized statement?

A. Within 30 days after each primary, general or special election.

Q. Do school board members in districts with more than 35,000 have to file these reports in addition to the ones required under the Campaign Finance Act?

A. No. They are exempt from the requirements of K.S.A. 25-904(b).

Penalties for Failure to File Reports

Q. What if I fail to file the report?

A. You can be found guilty of a misdemeanor and fined up to $1,000. K.S.A. 25-905(a).

Q. What if I did not know I had to file these reports?

A. The county election officer should notify you that you failed to file the statement in a timely manner. If you file the statement within 10 days after receiving the notice, the penalties will not be imposed.

Q. When does the county election officer send this notice?

A. Within 10 days from the expiration of the time for filing such statement and before any action is brought to enforce the penalties.

Campaign Committee Reporting

Q. If I have a campaign committee are there additional requirements?

A. Yes. You must have a treasurer and keep a detailed account of all moneys or anything of value it receives and the manner in which it is expended. Additionally, you must file a statement of all the committee’s receipts and expenditures, “showing in detail from whom such moneys or property or other thing of value were received, to whom such moneys or property or other thing of value were paid, for what specific purposes each payment was made, and the exact nature of the service rendered in consideration thereof.” K.S.A. 25-901.

Q. When does the statement have to be filed?

A. Annually, on or before December 31.

Q. What period does the statement have to cover?

A. The period ending on December 1 immediately preceding the filing.

Q. What is the penalty for failing to comply?

A. Any person violating any of the provisions of K.S.A. 25-901, is guilty of a misdemeanor, and upon conviction must be fined not more than $100. K.S.A. 25-902.

Public Funds & Campaigning

We have a bond election coming up in our district. Can the board print “Vote Yes” literature to promote the election?

A. No. The general rule is that school boards may provide information on an issue but may not use public funds to advocate for or against passage of a particular proposal. School officials must maintain a “semblance of neutrality” and make sure that no public funds are used to advocate for passage or the defeat of any proposal that comes before the voters of the district in an election. Kansas Electric Power Co. v. City of Eureka, 142 Kan. 117, 120 (1935).

Q. May a board of education advocate for passage of a local option budget?

A. No. A school district has the obligation to educate the electorate regarding issues to be voted on but may not advocate a position regarding the issue. Kimsey v. Board of Education, 211 Kan. 618, 624 (1973); Kansas Attorney General Opinion No. 93-33 (1993).

Q. Does this mean I can never speak in favor of a bond issue or other election issue?

A. No. School officers and employees may advocate a position on an issue in an election in their individual capacities, just not in their official positions using school funds or school time.

Q. As a board member or school employee, may I participate with a group of other citizens in promoting the election?

A. Yes. You may, so long as you are not acting in your official capacity.

Q. In my official capacity, may I give presentations about what the money raised by the local option budget or bond election will be used for?

A. Absolutely. This is educating the electorate, so they can be informed when they cast their votes. You can and should provide this type of information to the voters. You also can urge them to vote; you just cannot urge them to vote in a particular way.

Question-Submitted Elections

Q. What is a “question submitted election?”

A. Any election at which a special question, such as whether to authorize a capital outlay mill levy, is to be voted on by the voters in the district. K.S.A. 25-2007(a).

Q. Who conducts question submitted elections?

A. The county election officer.

Q. What if the county election officer refuses to hold an election when we request it?

A. In some instances, the Secretary of State has authority to resolve differences, but in other instances, the election officer’s ruling is conclusive. Check with counsel to determine your rights to an election on specific question. K.S.A. 25-2011.

Using a Mail Ballot Election

Q. When may we use a mail ballot election?

A. You may use a mail ballot election for a question submitted election at which all of the qualified electors of the school district are the only electors eligible to vote, unless the election is for disorganization of the district pursuant to K.S.A. 72-634, et seq.

A mail ballot election must:

  • Be conducted on a date, mutually agreed upon by the school board and the county election officer, not later than 120 days following the date the request is submitted by the board;
  • Be conducted pursuant to a written plan, which must include a written timetable for the conduct of the election, submitted by the county election office? and approved by the secretary of state;
  • Be non-partisan;
  • Not involve the election of a candidate for office; and
  • Not be held on the same date as another election in which the qualified electors of that subdivision of government are eligible to cast ballots. K.S.A. 25-432.
Q. Who mails the ballots in a mail ballot election?

A. The county election officer mails all official ballots with a return identification envelope and instructions sufficient to describe the voting process to each elector. K.S.A. 25-433(a).

Q. When are the ballots mailed?

A. Not sooner than the 20th day before the date of the election and not later than the 10th day before the date of the election. Ballots are mailed by first-class mail, addressed to the address of each elector appearing in the registration records, and placed in an envelope which is prominently marked “Do Not Forward”? K.S.A. 25-433(a).

Q. How are votes cast in a mail ballot election?

A. The elector may return the marked ballot to the county election officer by United States mail, if it is received by the county election officer by the date of the election, or personally deliver the ballot to the office of the county election officer before noon on the date of the election. The ballot must be returned in the return identification envelope? K.S.A. 25-433(b).

Q. What if a qualified elector does not receive a ballot in the mail?

A. If the ballot is destroyed, spoiled, lost or not received by the elector, the elector may obtain a replacement ballot from the county election officer. K.S.A. 25-433(d).

Q. Which ballots are counted in a mail ballot election?

A. A ballot is counted only if:

  • It is returned in the return identification envelope;
  • The envelope is signed by the elector to whom the ballot is issued; and
  • The signature has been verified. K.S.A. 25-433(e).
Q. How is the signature verified?

A. The county election officer verifies the signature of each elector on the return identification envelope with the signature on the elector’s registration records.

Print Chapter 5


School Law Handbook

Chapter 5 Employees

 

In General
Evaluation
Family & Medical Leave Act
Notice and Posting Requirements
First Amendment Rights
Test for Determining if Speech is Protected
Health Issues
Supplemental Contracts
Tenure

In General

Authority to Hire

Q. May we hire any employees we want?

A. Generally, yes. The board has the authority to appoint employees to serve at the pleasure of the board and fix their rate of compensation. K.S.A. 72-1137.

Q. Do administrators have the authority to hire the employees who work under them?

A. No. In public school districts administrators have authority to interview applicants and make employment recommendations to the board. However, the board must approve all employee contracts.

Lobbyists

Q. May school boards employ lobbyists?

A. Yes. K.S.A. 72-9935 specifically authorizes the employment of lobbyists by school districts.

School Security or Law Enforcement Officers

Q. May we hire school security or law enforcement officers?

A. Yes. K.S.A. 72-6146 authorizes the employment of such personnel and defines their powers and authority. Additionally, the statute authorizes schools or community colleges to employ campus police officers who have the power and authority of law enforcement officers:

(1) On school property;

(2) At school events;

(3) On the streets and highways adjacent to school property;

(4) Within the city or county where the school is located, as necessary to protect the health, safety or welfare of students and faculty, with the agreement of local law enforcement officials pursuant to an agreement approved by both the board and the city or county;

(5) When in fresh pursuit of a person;

(6) When transporting persons in custody to an appropriate facility;

(7) In coordination with local law enforcement, when there is reason to believe a crime occurred on the property.

When engaged in protective functions, campus police officers are subject to the agreements in the memorandum of understanding, developed between the schools, law enforcement, the courts and relevant others under the School Safety and Security Act, K.S.A. 72-6141, et seq., in compliance with directive in the Juvenile Justice Reform Act of 2016 (Senate Bill 367).

Attorneys

Q. May we hire attorneys to defend our employees if they are sued for a situation arising out of their employment?

A. Yes. K.S.A. 72-1138(d).

Long Term Contracts

Q. May we enter into long-term contracts with employees?

A. You may contract with superintendents, assistant superintendents, supervisors and principals for a term of not more than three years. There is no authority in statute to enter into long-term contracts with other employees.

Q. Should we enter into long-term contracts?

A. There is no definitive answer to this question. Before entering into a long-term contract, you should carefully review the facts of your situation with your board attorney.

Bullying

In Employment

Q. Is there a law that addresses bullying in employment?
  1. Yes. K.S.A. 72-6147 deals with bullying in schools for both students and staff.
Q. What does the law require school to do?

A. The law requires the board to adopt a policy to prohibit bullying by any student, staff member or parent towards a student or staff member on or while utilizing school property, in a school vehicle or at a school-sponsored activity or event. K.S.A. 72-6147(b).

It also requires the board to adopt and implement a plan to address bullying by students, staff or parents toward students or staff on school property, in a school vehicle or at a school-sponsored activity or event. K.S.A. 72-6147(c).

Training

Q. Does the law require training for staff?

A. Yes. K.S.A. 72-6147(c) indicates the plan to address bullying must include provisions for training and educating both staff members and students.

Definition of Bullying

Q. How does the law define bullying?

A. The law defines bullying to include:

Any intentional gesture or any intentional written, verbal, electronic or physical act or threat that is sufficiently severe, persistent or pervasive that it creates an intimidating, threatening or abusive educational environment for a student or staff member that a reasonable person, under the circumstances, knows or should know will have the effect of:

  • Harming a student or staff member, whether physically or mentally;
  • Damaging a student’s or staff member’s property;
  • Placing a student or staff member in reasonable fear of harm to the student or staff member; or
  • Placing a student or staff member in reasonable fear of damage to the student’s or staff member’s property; or
  • Cyberbullying; or
  • Any other form of intimidation or harassment prohibited by the board of education of the school district in policies concerning bullying. K.S.A. 72-6147(a)(1).
Q. What is cyberbullying?

A. Cyberbullying is bullying that uses any electronic communication device. It includes bullying through things like e-mail, instant messaging, text messages, blogs, mobile phones, pagers, online games and websites. K.S.A. 72-6147(a)(2).

School Vehicle includes Private Vehicles

I know the school owned buses, vans and cars are school vehicles, but what if we transport students to school activities in private vehicles?

A. The definition of school vehicle in the bullying law includes private vehicles used to transport students or staff members to and from school or any school-sponsored activity or event. K.S.A. 72-6147(a)(3).

When Bullying is Harassment

Q. How do we handle bullying that is based on a protected factor like sex or race?

A. It should be investigated and handled under the harassment policies. It should be investigated, and you should take appropriate corrective action. The action should be designed to stop the harassment, prevent it from recurring and prevent retaliation against the person being bullied and harassed.

Compensation, Bonuses & Salary Deductions

Payment of Salary: Teachers

Q. Most of our teachers are on nine-month contracts. Do we pay them in nine monthly installments?

A. No. K.S.A. 74-4940 provides that certificated personnel in a school district shall be paid in not less than 12 substantially equal installments, paid once, or more often, each month. However, a teacher may request to have the last three installments (June, July and August) paid as a lump sum no later than June 30 of the year.

Q. Does the contract have to start in September?

A. No. The law used to require that contracts begin in September but that requirement was removed from the law.

Lump Sum Payment for Summer Months
Q. When and how must a request for a lump sum payment be made?

A. The request must be in writing and must be filed with the district by April 1.

Q. Does a teacher have to make the request every year?

A. No. The request remains in effect unless the employee requests that it be revoked.

Payment of Salary: Classified Staff

Our cooks and janitors who are on nine-month contracts have asked to be paid in twelve monthly installments like our teachers. May we do this?

A. Maybe. K.S.A. 74-4940 creates a required exception to the general rules set forth in the Kansas Wage Payment Act, K.S.A. 44-301 et seq., that employees be paid for work completed within 15 days after the end of the pay period and that a pay period cannot exceed one month but requires the exception only for certificated personnel. The law was amended in 1996 to allow the board to adopt a policy allowing other school employees to be paid their contractual compensation each school year in not less than 12 substantially equal installments. If the board chooses to adopt such a policy, a copy of the policy must be provided to all noncertificated employees. If the board does not adopt such a policy, the rule of the Wage Payment Act applies to cooks and janitors and would prohibit you from paying those persons in August for work which was completed in May.

Bonuses and Incentives

Q. May we pay retention bonuses or employment incentives to our employees?

A. To some employees, yes. K.S.A. 72-2244 allows a board to pay employment incentive or retention bonuses to certificated employees. Additionally, K.S.A. 72-2166 requires payment of $1,000 per year incentive bonuses to teachers who obtain master teacher certification. These bonuses are permissibly, but not mandatorily negotiable.

Bonuses for other employees are not authorized by statute but a board may be able to pay such bonuses pursuant to its home rule powers.

Paycheck Deductions

Q. May we make deductions from employees’ paychecks for specific purposes?

A. Yes. In order to do so, the board must pass a resolution which provides for deductions for specified purposes and which requires written authorization from each employee in specific terms as to the amount, purpose and disposition of any amounts so deducted. K.S.A. 72-2241(a).

Q. Must we have written authorization for deductions of social security or taxes?

A. No. Those deductions are required by law and written authorization is not required.

Q. Several of our teachers have authorized deductions for payment of their professional association dues. Is a new authorization required each year?

A. No. Authorizations for deductions of dues are effective until modified or revoked in writing by the employee or the professional association. K.S.A. 72-2241(a).

Q. Some of our employees have requested salary deductions for the purchase of tax sheltered annuities. Are we required to do this?

A. K.S.A. 72-2243 requires you to contract with any employees for reductions in compensation and contribution for tax sheltered annuities as permitted in the federal tax code.

Q. May we include tax sheltered annuities as an option under our Section 125 cafeteria plan?

A. No. Federal law prohibits this.

Q. May we contribute to our employee’s tax-sheltered annuity or deferred compensation plan?

A. Yes. K.S.A. 72-2243 authorizes boards of education to contribute to an employee’s tax-sheltered annuity or deferred compensation plan.

Dress Codes

Q. May we have a dress code for teachers?

A. Probably. But the subject is mandatorily negotiable.

In Kelley v. Johnson, 425 U.S. 238 (1976), the Supreme Court, without deciding whether there was a “liberty interest” in personal appearance under the Fourteenth Amendment, placed the burden on the employee to show grooming regulations were so irrational as to be arbitrary. Under the Kelley decision a person, at most, has a basic liberty interest in his personal appearance that cannot be infringed without some showing of a rational basis related to a legitimate governmental interest. Courts will consider the context of the regulation in determining the level of deference to be granted to local education officials. Regulations governing dress or hair must be rationally related to a legitimate school district interest in order to support infringing on a person’s personal liberty interests under the Fourteenth Amendment.

Mandated Dress or Grooming

Q. May we require male teachers to wear ties?

A. Probably. But again, the issue is mandatorily negotiable. In East Hartford Education Ass’n v. Board of Education of Town of East Hartford, 562 F.2d 838 (2nd Cir. 1977), the court concluded a requirement that a teacher wear a necktie did not impermissibly infringe on his First Amendment right to free expression or his rights to privacy and liberty.

Q. May we require that male teachers or other employees be clean shaven?

A. The Kelley decision would suggest Courts have split on this issue. In Domico v. Rapides Parrish School Bd., 675 F.2d 100 (5th Cir. 1982), the school district had a no-beard policy for all students and employees. The court found the regulation was a legitimate means of furthering the school district’s interests in teaching hygiene, instilling discipline, asserting authority, compelling uniformity and could be applied to employees as well as students.

However, in Pence v. Rosenquist, 573 F.2d 395 (7th Cir. 1974), the court found that a school district’s regulation which required bus drivers to be clean shaven to be wholly irrational and arbitrary. The court found “no relationship whatever between the wearing of a beard or mustache and the ability to drive a bus.”

Jewelery, Body Piercings or Tattoos

Q. May we prohibit employees from wearing jewelry in body piercings or having visible tattoos?

A. Probably. If you can show you have legitimate reasons for doing so. In Piercy v. Maketa, 480 F.3d 1192 (10th Cir. 2007), an employee was fired for wearing a tongue stud, after being directed not to do so, in violation of the employer’s uniform policy. The court concluded the employer had a legitimate, nondiscriminatory reason for discharging and employee that was not a pretext for retaliation in violation of Title VII.

Religious Garb or Slogans

Q. May we prohibit the wearing of religious garb by employees?

A. Except in states where state statutes prohibit the wearing of religious garb (Kansas does not) most courts considering this issue have concluded that religious attire alone is insufficient to violate the Establishment Clause. Generally, the courts conclude that a teacher’s right to free speech and to freely exercise religion outweigh the school’s interest in not promoting religion. If the wearing of religious attire is accompanied by preaching or praying, or constitutes a material disruption of school operations, however, the activity, as well as the attire, can generally be regulated.

Q. May we prohibit the wearing of clothing with religious slogans?

A. In Fender v. Kansas Social and Rehabilitation Services, 168 F.Supp.2d 1216 (D.Kan. 2001), a state hospital employee was unable to show her supervisor’s enforcement of a dress code policy that prevented her from wearing clothing with religious slogans at work placed a substantial burden on her religious beliefs. Therefore, the court concluded the supervisor was entitled to qualified immunity on the employee’s First Amendment claim.

In a school, where the wearing of clothing with religious slogans could be viewed as promoting religion in the eyes of young, impressionable children, the arguments would be even more compelling, and might include an Establishment Clause defense.

Due Process Rights

Q. When does an employee have a right to due process?

A. The constitution provides that a person cannot, through state action, be deprived of life, liberty or property without due process of law. In order for an employee to have a due process right, he must have either a liberty interest or a property interest in continued employment.

Liberty Interest

Q. What must an employee show to establish a liberty interest?

A. To succeed on a claim of infringement of liberty interests, a plaintiff must prove:

  • False characterizations were made by a public official;
  • The false characterizations impugned his good name, reputation, honor or integrity, or stigmatized him so as to foreclose future employment opportunities;
  • The false characterizations were made public; and
  • As a result of the false characterizations a right or status previously recognized by state law was distinctly altered or extinguished.
Q. What kinds of false statements impugn a person’s reputation?

A. Charges of dishonesty, immorality or racism have been found to create liberty interests.

Q. Are allegations of improper job performance enough to create a liberty interest?

A. Allegations of improper job performance are not so stigmatizing as to injure the employee’s reputation or foreclose future employment. Weathers v. West Yuma County Sch. Dist, 530 F. Supp. 1335 (10th Cir. 1976). The fact an employee may be less attractive to future employers is insufficient. Martin v. U.S.D. No. 434, 728 F.2d 453 (10th Cir. 1984). However, when the allegations go to the overall capacity or ability of the individual to perform the job, rather than just some inadequacies, a liberty interest may arise. Miller v. City of Mission, 705 F.2d 368 (10th Cir. 1983).

Q. Are communications in executive session or between the board and superintendent sufficient to make the statements public?

A. Generally not. If a board discusses an employee in executive session and does not disclose the information discussed to a third party, there is no publication of the statements. Negative recommendations about an employee from the superintendent to a board in an executive session do not constitute publication. Codgill v. Comal Ind. Sch. Dist., 630 F. Supp. 47 (W.D. Tex. 1985). Statements made at a board meeting while the meeting is open to the public, however, may constitute publication. The mere communication of negative statements does not implicate a liberty interest unless the employer has made or is likely to make the stigmatizing charges public in any official or intentional manner.

Q. Does a statement which defames an individual always create a liberty interest and result in a due process requirement?

A. No. Defamation of an individual, standing alone, does not involve due process protection, absent an accompanying loss of employment. Termination or nonrenewal of an employment contract satisfies the change of status requirement. McGhee v. Draper, 639 F.2d 643 (10th Cir. 1981). Internal transfer, reassignment, demotion, lack of promotion, short-term suspension with pay, and critical evaluations without a change in employment status do not satisfy the requirement.

Property Interest

Q. What creates a property interest in continuing employment?

A. In the employment context, property interests are generally created by continuing contract laws, tenure laws, or provisions in contracts, employment policies, or employee handbooks.

Q. When do teachers have a property interest in employment?

A. The protections of the Kansas Due Process Procedures Act, K.S.A. 72-2252, et. seq., now applies only to teachers at postsecondary institutions, specifically technical colleges, community colleges and Washburn Institute of Technology. These provisions used to apply to public school district teachers, but these teachers were removed from the law’s protections by the legislature in 2014.

Any teacher who has completed three consecutive years of employment in a postsecondary institution and is offered a fourth contract, has a property interest in continuing employment. Any teacher who has completed two consecutive years of employment in a postsecondary institution and is offered a third contract, may also have a property interest, if that teacher had previously attained tenure in another Kansas postsecondary. Teachers who meet these requirements are generally referred to as tenured teachers and they always have a property interest in continuing employment created by the Kansas Due Process Procedures Act.

Q. Do teachers ever have a property interest in employment?

A. Yes. Under K.S.A. 72-2251(a), a teacher, at the school district or postsecondary level, must be given notice of the intent to nonrenew his contract on or before the third Friday in May of each year. If a teacher is not given written notice of the intent to nonrenew his contract by that date, the teacher continues in the school district’s employ for another school year. The teacher then has a property interest in the contract for the term of the contract.

A school district could not fire the teacher during the term of the contract without providing due process. A teacher whose contract is terminated during the term of the contract is entitled to constitutional due process, not the statutory due process procedures which apply to tenured teachers only. Additionally, the professional agreement between the board and its teachers may create a right to due process prior to nonrenewal or termination of a contract.

Plan of Assistance Not Required

Q. Are we required to place a teacher on a plan of assistance prior to nonrenewing a contract?

A. No. Some state statutes require plans of assistance for teachers whose performance issues are remediable, but Kansas is not one of them.

Classified Personnel

Q. What about our noncertificated personnel?

A. This is a question which is answered by the employee’s contract. If the contract is for a specific term, for instance September 1, 2016 through June 1, 2017, the employee has a property interest in employment for the term of the contract. However, if the employee is hired as an employee-at-will, generally the employee may be fired at any time, or may be fired with the requisite notice if your contract requires notice. In this case there is no property interest and no due process right.

In this context the courts have looked closely at employee handbooks and board policies to determine if there is an implied contract which would create a property interest. Statements in handbooks or policies which suggest an employee may be terminated only for cause or oral representations to employees such as, “As long as you do a good job, you’ll have a job here,” may also serve as evidence to create a property interest in continuing employment. When in doubt, consult your attorney and err on the side of providing due process.

Q. What types of actions “deprive” a person of a property interest?

A. In the employment context, generally it is an action which takes away the right to compensation under the employment contract. Actions which require some sort of due process include nonrenewal of a tenured teacher, termination of any employee during the term of the contract and suspension without pay.

Constitutional vs. Statutory Due Process

Q. What is the difference between constitutional due process and statutory due process?

A. Due process has two aspects. Substantive due process requires that state action not be arbitrary. Procedural due process requires that an employee be afforded certain procedures prior to dismissal to protect against arbitrary dismissal.

The Supreme Court has held in numerous cases that, at a minimum, due process requires notice of the reasons for the dismissal and an opportunity to be heard at a meaningful time and in a meaningful manner. The constitution and the courts have not set definite procedures which must be used to fulfill the constitutional requirements.

Case law suggests that the following procedures should be afforded:

  • Written notice of the reason(s) for the action;
  • An opportunity to request a hearing, and reasonable time between the notice and the hearing for the employee to prepare a defense to the charges. Ten to 45 days would probably be reasonable;
  • An opportunity for a hearing before an impartial tribunal. The board itself can generally serve as the impartial tribunal;
  • At the hearing, it is recommended that the employee have the right to counsel, the right to call witnesses and present documentary evidence and the right to cross examine school district witnesses;
  • Written findings of fact and conclusions by the impartial tribunal, within a reasonable time (probably no more than 30 days) after the hearing. The findings should be based only on evidence presented at the hearing.

For tenured postsecondary (community college) teachers, the procedures which must be afforded are dictated by law:

  • S.A. 72-2253 governs the contents of the notice and the manner in which a hearing officer is selected.
  • S.A. 72-2254 defines the procedural rights of the teacher and board during the hearing.
  • S.A. 72-2258 requires a written opinion from the hearing officer and defines the rights of the parties to appeal the decision.

The statutory procedures generally provide rights in excess of what the constitution would require.

Q. If a postsecondary teacher alleges her contract is being nonrenewed or termination in violation of her constitutional rights, are the same due process procedures utilized?

A. To some extent. In a typical nonrenewal or termination action, the burden is on the school district to show it has good cause for taking the action. When a teacher alleges violation of a constitutional right, such as the right to free speech, K.S.A. 72-2262 requires a hearing office to apply these burden-shifting procedures:

  • The teacher alleging an abridgment of a constitutionally protected right must notify the board of the allegation within 15 days after receiving the notice of intent to not renew or terminate the teacher’s contract. The notice must specify the nature of the activity protected, and the times, dates and places of such activity;
  • The hearing officer decides if there is substantial evidence to support the teacher’s claim the teacher’s exercise of a constitutionally protected right was the reason for the nonrenewal;
  • If the hearing officer determines there is not substantial evidence to substantiate the claim, the board’s decision not to renew the contract stands;
  • If the hearing officer determines there is substantial evidence to support the teacher’s claim, the board must to submit any reasons which may have been involved in the nonrenewal to the hearing officer;
  • If the board presents any substantial evidence to support its reasons, the board’s decision not to renew the contract must be upheld

Suspension without Pay

Q. Do the statutory due process procedures apply if a tenured teacher is suspended without pay?

A. No. The statutory procedures are mandated only for nonrenewal or termination actions. A hearing before the board will suffice for suspension without pay.

Suspension with Pay

Q. Is there a right to a hearing prior to suspending an employee with pay?

A. No. A suspension with pay does not implicate a property interest.

Administrators

Q. Do school administrators have any due process rights?

A. As with any employee, an administrator has a constitutional right to due process if his contract for a term is terminated during the school year. Otherwise, for nonrenewal, administrator rights are limited. For principals or administrators other than the superintendent, after two complete years of employment in the district, have a right to request a meeting with the board after they receive written notice of the intent to nonrenew their contract.

If a meeting is requested, the administrator and board meet in executive session. The board must tell the administrator the reason(s) for the nonrenewal proposal and the administrator must have an opportunity to respond. Neither side may have an attorney at the meeting. Kansas Administrators’ Act, K.S.A. 72-2281, et. seq. The rights under this Act are executive, not judicial, in nature, requiring only a “meeting” not a “hearing.” Brown v. U.S.D. No. 333, 261 Kan. 134 (Kan. 1996).

Evaluation

Application

Licensed Employees Only

Q. Do the evaluation statutes, K.S.A. 72-2407 et seq., cover all school employees?
  1. No. These statutes apply only to licensed employees of school districts and of nonpublic schools and all instructional and administrative employees of area vocational-technical schools.
Q. Are part-time employees covered?
  1. Yes. The law applies to part-time employees.

Community College Employees

Q. Doesn’t the law cover community college employees as well?

A. At one time it did but in 2006 community college employees were taken out of this law. Provisions governing evaluation of community college personnel are now found in Chapter 71 of the Kansas Statutes Annotated. The community college evaluation law applies to full-time instructional and administrative employees. K.S.A. 71-215 et seq.

Policy Required

Q. What does the school evaluation law require?

A. It requires a board to adopt a written policy of personnel evaluation procedure.

Q. Does the law require that the policy contain certain specific provisions?

A. Yes. The policy must:

  • Include evaluation procedures applicable to all employees;
  • Require evaluation documents to be in writing;
  • Require evaluation documents and responses to be maintained in a personnel file for at least three years;
  • Require that employees be evaluated by certain dates. K.S.A. 72-2409.

Frequency of Evaluation

Q. How often must employees be evaluated?

A. For employees in their first or second year of employment in the district, at least once each semester by the 60th school day of the semester.

For employees in their third and fourth years of employment in the district, at least once a year by February 15.

For employees with more than four years of employment in the district, at least once every three years by February 15 of the year in which the evaluation occurs. K.S.A. 72-2409(d).

Q. Why does the statute require that evaluations be completed by February 15 after the first and second years of employment?

A. Part of the purpose behind the evaluation statute is to improve staff performance. If an employee is notified of deficiencies in performance by mid-February, theoretically the employee has about two months to improve his or her performance before the decision has to be made by the third Friday in May on nonrenewal.

Q. May we evaluate employees more often?

A. The statute only sets the minimums, not maximums. The board policy can allow for more frequent evaluation but for teachers the issue is negotiable.

Q. Are there any restrictions on our ability to increase the number of evaluations?

A. Yes. Evaluation procedures are mandatorily negotiable. You could not unilaterally change the number of evaluations required but would be required to negotiate any changes.

There may also be time constraints on your staff members who are responsible for evaluation. You should discuss the idea of increasing the number of evaluations required with your administrative staff prior to making any changes.

Who Evaluates?

Q. Who is responsible for evaluating our personnel?

A. The board is responsible for evaluating the superintendent or the director of the area vocational-technical schools. Primary responsibility for evaluation of other employees must go to the administrative staff. Generally, the person in charge of supervising an employee should be the person responsible for completing the evaluation of the employee.

Board Role

Q. We do not like the way our superintendent evaluates our building principals. May we do the evaluation ourselves as a board?

A. Primary responsibility for evaluation of persons other than the superintendent must be placed on the administrative staff. K.S.A. 72-2410(d). The board should not get involved in the day-to-day administration of the school, which includes evaluation of staff.

If the board is dissatisfied with the way in which evaluation is being done, the board should first consider why it is dissatisfied with the current evaluation. Is it because the policy and procedures used for evaluation do not accurately reflect performance indicators which the board considers important or is it because the employee doing the evaluation has done a poor job of completing the evaluation? If the problem is that the policy and procedures do not provide for evaluation of criteria the board considers important, the board should amend the policy. For administrative staff evaluation the board may change both evaluation criteria and evaluation procedures through policy.

For teaching staff, evaluation criteria is not mandatorily negotiable, but evaluation procedures are mandatorily negotiable. The board could unilaterally change the criteria, but not the procedure. If the board desires changes in the evaluation procedures used for teaching staff, it should notice the item for negotiation and get the changes through the negotiation process.

If the problem is that an employee is doing a poor job of evaluating personnel, this employee’s evaluation should reflect this deficiency and be used as a factor in determining whether he or she will be rehired. The board may also want to consider placing the employee on a plan of assistance to improve performance in this area.

Q. What employee performance criteria should be included in our evaluation documents?

A. The law requires you to consider efficiency, professional qualities, professional deportment, ability, results and performance, including improvements in the academic performance of pupils in so far as the evaluated employee has authority to cause such improvement. For teachers you are also required to consider the teacher’s capacity to maintain control of students. The board may include any other matters deemed material. K.S.A. 72-2410(a). The law also requires that community attitudes, support and expectations with regard to educational programs be reflected in your evaluation policy and procedures. K.S.A. 72-2410(b). The board should carefully consider the goals, objectives, and priorities of the district in determining the criteria to be evaluated.

Q. Are there sample evaluation forms we can just adopt?

A. Yes. But it is not advisable. Any sample form should be closely examined and adapted to meet the unique needs of your district.

Q. If we have questions or want to make changes in our policy, who should we consult?

A. You must consult with the persons being evaluated and the persons responsible for making evaluations. K.S.A. 72-2410(c). To the extent practicable, you should consider comments and suggestions from other community interests as well. You may want to consult with outside professionals in the area of evaluation, such as a member of the KASB Legal and Labor Relations staff.

Q. As a board member, I have a right to see teacher evaluations, don’t I?

A. As an individual you do not have this right. The board, sitting as a board, has this right, but an individual board member does not, unless the employee specifically authorizes you to have access.

Is it illegal for me to look at a teacher’s evaluation if the teacher herself shows it to me?

A. Absolutely not. There are no legal constraints on the teacher’s release of the document. The teacher may release the document to anyone.

Employee Rights

Q. What rights does an employee have regarding evaluation and evaluation documents?

A. An employee has a statutory right to:

  • Participate in the evaluation process, K.S.A. 72-2410(c);
  • Be afforded an opportunity for self-evaluation, K.S.A. 72-2410(c);
  • Have the written evaluation document presented to him, K.S.A. 72-2411;
  • Respond in writing to the evaluation, K.S.A. 72-2411; and
  • Have the response maintained with the evaluation document. K.S.A. 72-2411(c).
Q. Does an employee have a right to have a representative of the union present at an evaluation conference?

A. No. Not unless your negotiated agreement or policies grant such a right.

Q. Does an employee have a right to grieve his evaluation?

A. Again, not unless your negotiated agreement or policies grant such a right.

Q. Does an employee have to sign the evaluation? What if the employee refuses to sign?

A. Yes. The law requires a signature. If the employee refuses to sign, show the employee a copy of K.S.A. 72-2411 which states, “the employee shall acknowledge such presentation by his or her signature thereon.” Assure the employee that his or her signature does not mean that he or she agrees, merely that he or she has seen the document. If the employee still refuses to sign, document the attempts to get the signature and maintain the documentation with the evaluation.

Releasing Evaluation Documents

Q. May we release employee evaluation documents to persons who request to see them?

A. Unless the employee consents to the release in writing, generally the documents cannot be available for inspection by others. The statute allows for you to make evaluation documents available to:

  • The evaluated employee;
  • The board;
  • Appropriate administrative staff members designated by the board;
  • The school attorney at the request of the board;
  • The state board of education; and
  • The board and administrative staff of any school where the employee has applied for employment. K.S.A. 72-2411.

A court of competent jurisdiction may also subpoena the records. Any other person must have the written authorization of the employee in order to see the evaluation documents.

Consequences for Non-Compliance

Q. What happens if our staff fails to evaluate in compliance with our policy and/or the statute?

A. The law provides that the contract of a certificated person cannot be nonrenewed on the basis of incompetence unless an evaluation which is in substantial compliance with the board’s policy on evaluation has been made prior to the notice of nonrenewal. K.S.A. 72-2410(f). The precise meaning of this language is unclear. In Burk v. U.S.D. No. 329, 646 F.Supp. 1557 (D. Kan. 1986), the court concluded that the evaluation statute and the district’s policy of evaluation could not be read to create an implied contract which would give a nontenured individual a property interest in continuing employment.

The Kansas Court of Appeals reached the same conclusion in Miller v. U.S.D. No. 470, 12 Kan. App.2d 368 (1987). On appeal, the Kansas Supreme Court decided the case on contractual grounds and rendered the conclusion of the Court of Appeals (that contractual provisions with regard to evaluation which would create a property interest in continuing employment for nontenured employees were beyond the authority of the board and void) mere dicta with no precedental value for future litigation.

To date the courts that have considered this issue have concluded that the evaluation statute cannot be read to override the board’s authority to dismiss a nontenured teacher for any reason which is not in violation of constitutional rights.

Q. What happens if our staff fails to evaluate teachers by the statutory deadline in any given year?

A. The question of whether evaluations which are completed after the February 15 statutory deadline are invalid and must be removed from an employee’s personnel file was answered negatively by the Kansas Supreme Court in Marais de Cygnes Valley Teachers’ Association v U.S.D. No. 456, 264 Kan. 247 (1998). In this declaratory judgment action, the teacher’s association sought invalidation of tardy evaluations for three tenured teachers on the basis they were not completed by the statutory deadline, February 15. In each case, the tenured teacher had been placed on a written improvement plan because of at least one “must improve” rating on their evaluation.

The Kansas Supreme Court concluded the language of the Evaluation of Certificated Personnel Act which states evaluations after the second year of employment “shall” be completed by February 15 was directory, not mandatory. Noting the overriding purpose of the Act is to provide a systematic method for the improvement of school personnel and the educational system, the court refused to interpret the Act in a manner contrary to this expressed goal.

Additionally, the court noted the Act contains no provisions which would require the remedy of invalidating evaluations. The court did not address the question of whether a tardy evaluation could be used to support nonrenewal of a teacher. In an unpublished opinion involving the nonrenewal of a tenured teacher, the Court of Appeals concluded that an evaluation completed by February 28 was in substantial compliance with the statutory language.

Q. Does our evaluation policy have to be on file anywhere?

A. No. The requirement that it be filed with the state board was repealed in 2004.

Fair Labor Standards Act

Q. Generally, what is the Fair Labor Standards Act?

A. The Fair Labor Standards Act (FLSA) is the federal law that establishes the minimum wage, the right to overtime pay for some employees, the right to equal pay regardless of sex and child labor standards. The provisions regarding overtime are most problematic. In a nutshell, the law requires the school to define its workweek and to pay employees who are not exempt from the overtime requirements overtime for any hours worked in excess of 40 in the workweek.

Application and Coverage

Q. Does the FLSA apply to school districts?

A. Yes.

Q. Does the FLSA cover all individuals?

A. No. The Act does not apply to bona fide volunteers, independent contractors and possibly some other individuals. Boards should consult their attorney before determining the act does not apply.

Volunteers

Q. Can a school employee volunteer to assist the school district?

A. If the volunteer work is not related to the employee’s regular employment, the employee may volunteer to do the work with no pay or for pay that is less than minimum wage. If the volunteer work directly relates to their regular employment, the time spent on the task must count as hours worked under the Fair Labor Standards Act. Employees cannot volunteer to perform the same type of services they are employed to perform. A secretary cannot volunteer to type the school newsletter at home after work hours, nor can a custodian volunteer to clean the gym after a local charity uses the gym for an event on a Saturday afternoon.

Q. Are some employees exempt from the provisions of the FLSA?

A. Yes. Some employees who are covered by the FLSA may be exempt from some provisions of the act. Generally, executive, administrative and professional employees are exempt from some provisions of the act such as the overtime requirement. The act contains statutory definitions of these employees. Boards should consult their attorney before determining whether a particular employee falls under one of the definitions of an exempt employee. Additional questions about exemptions are found later in this chapter at Fair Labor Standards Act: Exempt Employees.

Enforcement

Q. Who enforces the FLSA?

A. The FLSA is administered and enforced by the U.S. Department of Labor, Wage and Hour Division.

Q. Where can the board find information on the FLSA with respect to a particular question?

A. In addition to seeking advice from legal counsel, the Wage and Hour Division often publishes rulings and opinions. Much of this information is available on the U.S. Department of Labor website at www.dol.gov. The interactive advisor for the FLSA can be found at www.dol.gov/elaws/flsa.htm.

Not Required by FLSA

No Limit on Hours Worked

Q. Is there a limit on the number of hours an employee can work?

A. Except for the child labor provisions, the FLSA does not limit the number of hours an employee can be required to work. Rather, it requires overtime pay for hours in excess of 40 in any workweek for employees who are not exempt from the overtime provisions.

Paid Vacations or Holidays

Q. Does the FLSA require paid vacations or paid holidays?

A. No.

Q. Are we required to pay one and one-half the hourly rate for weekend or holiday work?

A. The FLSA does not require extra pay for working on weekends or holidays unless working on these days makes the total hours worked exceed 40 in the workweek. Schools may, by policy or through contracts, agree to pay extra for holiday or weekend work but they are not required to do so.

Notice Prior to Termination

Q. Does the FLSA require an employer to give notice prior to termination?

A. No. However, board policies, handbooks, contracts or verbal representations may create a notice requirement for some or all employees.

Break Periods

Q. Are employees entitled to a break period?

A. No. FSLA does not require a break period. However, if a break or rest period is provided, it must be counted as hours worked if the break is less than 20 minutes or if the employee is not free from duty during the break.

In two other circumstances, schools may be able to pay students less than the minimum wage but only after receiving a certificate from the U.S. Department of Labor authorizing payment at this lower rate. If students are employed on a part-time basis pursuant to a bona fide vocational education training program, the school may obtain a certificate and pay the student no less than 75 percent of the minimum wage. Additionally, full-time students may be employed at subminimum wages in retail or service establishments, agriculture or in the institutions of higher education which students are attending. Full-time students employed under these certificates may be paid no less than 85 percent of the statutory minimum wage.

Minimum Wage

Student Worker Exceptions

Q. Do you have to pay special education students who work in the school lunch program as part of their individual education plan?

A. No. Provided it is a part of the student’s training and is within the regular school day.

Q. What is the minimum wage for students working after school hours for the school district?

A. The school may pay employees under the age of 20 a “youth minimum wage” of not less than $4.25 an hour during the first 90 consecutive days of initial employment. After that period has passed, or when the employee reaches age 20, the student must be paid the regular minimum wage of $7.25 an hour. The school cannot, however, displace any employee in order to hire a student at this lower wage.

Extracurricular Activities

Q. Do you have to pay teachers the minimum wage for supervision of extracurricular activities, such as coaching or being club sponsors?

A. No. Teachers, as professional employees, are specifically exempt from the minimum wage requirements of the Fair Labor Standards Act if the duty requires their professional expertise.

Q. Do you have to pay teachers the minimum wage for extra duties required by the school district such as ticket taking, timekeeping, scorekeeping, security, etc.?

A. Generally not. A teacher is usually an exempt professional employee so long as he or she spends a majority of his or her time working performing professional duties as a teacher in the classroom. If time spent on nonexempt functions exceeds 51 percent, however, the exemption may be lost.

Q. Do you have to pay noncertified employees the minimum wage for these extra duties?

A. Yes.

Application to Employees and Students

Q. Do all our aides, clerical staff, paraprofessionals, cooks, custodians, bus drivers, maintenance workers, etc., have to be paid minimum wage?

A. Yes.

Q. Do you have to pay noncertified employees in supervisory positions the minimum wage?

A. If such persons fit within the definition of executive, administrative or professional personnel, they are not subject to the minimum wage requirement; otherwise, yes.

Q. Does a school district have to pay students the minimum wage for timekeeping, scorekeeping, etc., at ball games or other activities when they do so at the school district’s request?

A. Yes.

Q. Do we have to pay students for doing these functions if they volunteer?

A. No.

Q. How does the minimum wage law affect a school bus driver who is also employed as a classroom teacher?

A. Classroom teachers are exempt under the Fair Labor Standards Act overtime provisions if his or her primary duty is teaching. If the person is not spending enough time teaching to be exempt from the overtime provisions of FLSA and must be paid minimum wage and overtime.

Overtime

Q. What is the overtime rate and when does it attach?

A. At least one and one-half times the employee’s regular rate for all hours worked over 40 in a workweek.

Q. Are school districts required to pay overtime for employees such as the board clerk who may work more than a 40-hour week?

A. Yes. Unless the board clerk would qualify under the statutory definitions of an executive, administrative or professional employee.

Q. Are directors of transportation, maintenance, food service, etc., exempt from the FLSA?

A. Maybe. If these personnel meet the definition of executive, administrative or professional personnel, they are exempt from the FLSA overtime requirements. Otherwise they not exempt. This chapter contains specific information about exempt employees later in this chapter. Fair Labor Standards Act: Exempt Employees

Q. Are all teachers and substitute teachers exempt from the FLSA?

A. Yes. They are exempt from the overtime pay provisions. As long as their primary duty is teaching and they generally qualify for exemption as learned professionals.

Q. If a person is employed by a school district as a teacher aide or coaching aide on an hourly rate, is such person covered by the FLSA?

A. Yes.

Computation of Overtime Pay

Q. Are fringe benefits required to be included in the computation of overtime pay?

A. No.

Q. If cash is an option under a fringe benefit package, is the cash received counted in computing the minimum wage for overtime pay?

A. Yes, unless the cash is in lieu of a specific fringe benefit and is equal to the amount of the fringe benefit.

Determining Hours Worked

Q. Must vacation, sick leave and other leave be counted in the hours in computing overtime pay?

A. No. Assume an employee is sick on Monday and uses 8 hours of sick leave. Because of weekend activities, the employee works 38 hours. The employee will be paid for 46 hours, but will not be entitled to any overtime pay because the employee only worked 38 hours. Overtime is based on hours worked, not the number of hours for which the employee receives pay.

Q. Do paid holidays count as hours worked?

A. An employee may be given paid holidays but these hours do not count as hours worked in computing overtime.

Q. When a school bus driver is required to take an overnight trip, for what hours is the driver required to be paid?

A. Any time employees are required to be on duty, they are covered under the FLSA. Any time employees are unable to use the time effectively for their own purpose, and employees are under the control of the employer, such time is covered under the FLSA.

If an employee is completely relieved of duty for a period long enough to enable the employee to use the time effectively for his or her own purposes, such hours are not hours worked under the FLSA. An employee is not completely relieved of duty and cannot use the time effectively for his or her own purposes unless the employee is definitely told in advance that he or she may leave the job and that the employee will not have to commence work until a specified time. Whether the time is long enough to enable the employee to use the time effectively for his or her own purposes depends upon all the facts and circumstances of each case.

Q. When a bus driver is required to take an activity trip and the driver has about six hours in which his services are not needed prior to the return trip home, are the six hours considered hours worked?

A. No. Those six hours would not be considered hours worked under the FLSA, provided the individual is completely relieved of duty.

Methods of Payment

Q. May a school district pay a bus driver on a rate per mile?

A. Yes. Provided it equates to at least the minimum wage and overtime is paid for hours worked beyond 40.

Q. May a school district pay a school bus driver a flat amount for activity trips?

A. Yes. Provided such flat amount is at least equal to the minimum wage and time and a half is paid for all overtime.

Q. May a district guarantee a minimum of 50 hours at a set rate, including overtime for the last 10 hours and pay an employee for the full 50 hours even though they may work fewer hours?

A. No. For example, a school could not employ a custodian for 40 hours per week at $10 per hour and 10 hours per week at $15 per hour and guarantee such employee a minimum of 50 hours even though the employee may actually work less than 50 hours.

Q. May a school district employ a noncertified person such as a custodian or cook on a yearly basis and pay such employee a fixed salary with fluctuating hours?

A. The regular rate for an employee whose hours of work fluctuate from week to week, who is paid a stipulated salary with the clear understanding that it constitutes straight-time pay for all hours worked, whatever their number and whether few or many, will vary from week to week. The employee’s regular rate is determined each week by dividing the salary by the number of hours he or she worked in that week. The regular rate cannot be less than the applicable minimum wage. Since the employee has been paid his or her straight-time compensation, s/he must receive additional overtime pay for each overtime hour worked in the week at not less than one-half the regular rate.

Assume an employee works no more than 50 hours and is compensated on a fluctuating workweek basis at a weekly salary of $800. Assume further that over a four-week period, the employee works 40, 44, 50 and 48 hours. The employee’s compensation would be computed as follows:

First week hours worked: 40 hrs.
First week regular rate: $20.00 ($800 divided by 40)
Overtime:   None
Total compensation:  $800.00

Second week hours worked: 44 hrs.
Second week regular rate: $18.18 ($800 divided by 44)
Overtime:   $36.36 (9.09 x 4 hours)
Total compensation:  $836.36 (44 hours at $18.18/hr. + overtime)

Note: Since the employee has been paid his or her straight-time pay for all hours worked, only additional half-time pay (18.18/2=9.09 per hour) is due.

Third week hours worked: 50 hrs.
Third week regular rate: $16.00 ($800 divided by 50)
Overtime:   $80.00 ($8.00 x 10 hours)
Total compensation:  $880.00 (50 hours at $16.00/hr + overtime)

Fourth week hours worked: 56 hrs.
Fourth week regular rate: $14.28 ($800 divided by 48)
Overtime:   $114.24 ($7.14 x 16 hours)
Total compensation:  $914.24 (56 hours at $14.28/hr + overtime)

Q. If a school district employs a secretary on an hourly rate and the same person serves as a board treasurer, does the FLSA apply to both jobs?

A. Yes. If the employee is paid at a different rate for each job, use a weighted average to determine the overtime pay as illustrated in the question below.

Q. How do you compute overtime pay when an employee works in two different jobs at two different rates of pay?

A. Where an employee in a single work week works at two or more different jobs for which different straight-time rates have been established, the employee’s regular rate for that week is the weighted average of such rates. That is, the earnings from all such rates are added together and this total is then divided by the total number of hours worked at all jobs. The employee’s pay would be computed as follows:

$10.00 per hour for 30 hours = $300.00
$15.00 per hour for 20 hours = $300.00
50 hours   $600.00
Average hourly wage ($600 divided by 50) $12.00
Overtime factor  x .50
Additional amount per hour for overtime pay $  6.00
number of hours of overtime  x 10
Overtime pay $60.00
Total wages for week $660.00

Compensatory Time

Q. If a person works more than 40 hours during a specific work week, may that person receive compensatory time rather than overtime pay?

A. Yes. State and local governments are allowed to give their employees compensatory time off in lieu of immediate overtime pay in cash, at a rate of not less than one and one-half hours for each hour of overtime worked but only pursuant to a collective bargaining agreement or an agreement or understanding arrived at between the employer and employee before performance of the work.

Q. How much compensatory time can an employee accrue?

A. The maximum compensatory time that can be accrued by any employee is 240 hours.

Q. What do we do when an employee has accrued 240 hours of compensatory time?

A. An employee who has accrued the maximum number of compensatory hours must be paid overtime compensation in cash for any additional overtime hours of work.

Q. When can an employee use the compensatory time?

A. If an agreement to permit the use of compensatory time exists, an employee must be permitted to use accrued compensatory time within a reasonable period after it is requested unless to do so would unduly disrupt the operations of the employer.

Q. Can we require employees to use their compensatory time?

A. Yes.

Q. What do we do if someone quits or is fired and has compensatory time accrued? How is the rate of pay calculated?

A. Payment for accrued compensatory time upon termination of employment must be calculated at the average regular rate of pay for the final three years of employment, or the final regular rate received by the employee, whichever is the higher.

Occasional and Sporadic Exception

Q. What is the occasional and sporadic exception?

A. Employees of a state or local government agency may, at their own option, undertake employment for the same employer on an occasional or sporadic basis in a part-time job in a different capacity than their regular employment. The hours of work in the different job are not counted as hours worked for overtime pay purposes on the regular job.

Recordkeeping

Q. How do we document the hours that employees who are subject to the FLSA work?

A. It is essential that adequate time cards be kept to document hours worked for all employees who are covered by the Fair Labor Standards Act.

Fair Labor Standards Act: Child Labor Laws

Q. What is the youngest age at which a person can be employed by the school?

A. The FLSA sets 14 as the minimum age for most nonagricultural work. However, at any age, youths may deliver newspapers, perform in radio, television, movie, or theatrical productions, work in businesses owned by their parents, perform babysitting or perform minor chores around a private home. State law exempts these services as well but provides that these exempt services cannot be performed by a child attending school during hours in which the public school is in session in the district in which such child resides. K.S.A. 38-614. State law also provides additional protections for minor child entertainers in K.S.A. 38-615 through K.S.A. 38-622.

Work Permit

Q. Does FLSA require a youth have a work permit in order to work?

A. No. But state law requires a work permit for children under the age of 16 if they are not enrolled in and attending secondary school. K.S.A. 38-604.

Restrictions on Type of Work

Q. Are there restrictions on the kinds of work students can perform?

A. Permissible jobs, by age, are as follows:

  • Young workers 18 and older may perform any job, whether hazardous or not;
  • Young workers 16 and 17 years old may perform any nonhazardous jobs; and
  • Young workers 14 and 15 years old may work outside school hours in various nonmining, nonmanufacturing and nonhazardous jobs.
Q. What are hazardous jobs for child labor law purposes?

A. Hazardous jobs in a school context might include driving a motor vehicle or being an outside helper on a motor vehicle, jobs requiring the use of any of the following power-driven machines: woodworking machines, hoisting apparatus, metal-forming, punching or shearing machines, bakery machines, paper-product machines, circular saws, band saws and guillotine shears, or the following types of operations: wrecking, demolition, roofing or excavation operations. In some of these occupations, there may be limited student-learner exceptions.

Q. Are there other restrictions?

A. Yes. In addition, a 14- or 15-year-old may not work in the following occupations:

  • Construction or repair jobs;
  • Driving a motor vehicle or helping a driver;
  • Power-driven machinery or hoisting apparatus other than typical office machines;
  • Processing occupations;
  • Public messenger jobs;
  • Transporting of persons or property;
  • Workrooms where products are manufactured, mined or processed;
  • Warehousing and storage.

A 14- or 15-year-old may work in retail stores, food service establishments and gasoline service stations. However, a 14- or 15-year-old may not perform the following jobs in the retail and service industries:

  • Baking;
  • Boiler or engine room work, whether in or about;
  • Cooking, except at soda fountains, lunch counters, snack bars and cafeteria serving counters;
  • Freezers or meat coolers work;
  • Loading or unloading goods on or off trucks, railcars or conveyors;
  • Meat processing area work;
  • Maintenance or repair of a building or its equipment;
  • Operating, setting up, adjusting, cleaning, oiling or repairing power-driven food slicers, grinders, choppers or cutters and bakery mixers;
  • Outside window washing or work standing on a window sill, ladder, scaffold or similar equipment;
  • Warehouse work, except office and clerical work.
  • The jobs a 14- or 15-year-old may do in the retail and service industries include:
  • Cashiering, selling, modeling, art work, advertising, window trimming or comparative shopping;
  • Cleaning fruits and vegetables;
  • Clean-up work and grounds maintenance (the young worker may use vacuums and floor waxers, but he or she cannot use power-driven mowers, cutters and trimmers);
  • Delivery work by foot, bicycle or public transportation;
  • Kitchen and other work in preparing and serving food and drinks but not cooking or baking;
  • Office and clerical work;
  • Pumping gas, cleaning and polishing cars and trucks (but the young worker cannot repair cars, use garage lifting rack or work in pits).

Restrictions on Hours Worked

Q. Are there restrictions on the number of hours youths can work?

A. Yes. FLSA limits the hours worked by 14- and 15-year-olds to nonschool hours. These youths cannot work more than three hours in a school day, 18 hours in a school week, eight hours in a nonschool day or 40 hours in a nonschool week. Work must occur between 7 a.m. and 7 p.m. except from June 1 through Labor Day when evening hours are extended to 9 p.m.

State law contains similar provisions. See K.S.A. 38-603. State law provides these restrictions do not apply to any student engaged in school food service preparation or the employment of a student-learner who is enrolled in a course of study and training in a cooperative vocational training program under a recognized state or local educational authority. However, the student-learner must be employed under a written agreement that must provide:

  • The work of the student-learner is incidental to his or her training, and is under the supervision of a teacher-coordinator employed by the school; and
  • A schedule of organized and progressive work processes to be performed on the job has been prepared.

This written agreement must include the name of the student-learner and be signed by the employer and the school coordinator or principal.

Special Requirements

Q. Are there any other special requirements if we hire students under the age of 16?

A. Yes. You must post a notice that contains the following information: the maximum number of hours such child may be required or permitted to work on each day of the week, the hours of commencing and stopping work and the hours allowed for dinner or other meals. K.S.A. 38-605.

Fair Labor Standards Act: Exempt Employees

Which employees are exempt from the FLSA overtime requirements?

A. For school purposes, FLSA contains three classifications for employees who are exempt from the minimum wage and overtime requirements: executive employees, administrative employees and professional employees.

Salaried Does Not Mean Exempt

Q. Aren’t all salaried employees exempt from the overtime provisions?

A. No. Only salaried employees qualify for exemptions, but the fact a person is paid on a salary basis does not necessarily mean the employee is exempt.

Q. Doesn’t a person’s job title determine if they are exempt from the overtime provisions of FLSA?

A. No. Job titles do not determine exempt status. In order for this exemption to apply, an employee’s specific job duties and compensation must meet all the requirements for exemption in the regulations. 29 CFR § 541.2.

Exemption Qualifications

Q. How does an employee qualify to be exempt?

A. In order to qualify for an exemption, an employee must meet the salary level test, be paid on a salary basis and satisfy one of the job duties tests.

Salary Level Test

Q. What is the salary level test?

A. Under FLSA regulations issued in 2004, the employee must be paid a minimum of $455 per week ($23,660 per year). 29 CFR § 541.600(b).

Q. Wasn’t the minimum salary raised in 2016 salary level test?

A. Proposed changes to the regulations during the Obama administration would have raised that amount to $913 per week ($47,476 per year), effective December 1, 2016. However, the proposed regulations were stopped from taking effect by a court and abandoned by the Trump administration.

Q. Does the employee have to be paid on a weekly basis?

A. No. The $455 per week may be paid in equivalent amount for periods longer than one week but not shorter than one week. For instance, the individual could be paid no less than $910 bi-weekly; $985.83 semi-monthly or $1971.66 monthly. 29 CFR § 541.600(b).

Q. If we provide board or lodging for the employee, can the value of those be included as salary to reach the weekly amount?

A. No. The employee must be compensated on a salary basis rate of not less than weekly amount, exclusive of board, lodging, meals at school cafeterias, dormitory rooms or tuition furnished by a college to student employees, merchandise, food, household effects or transportation to and from work.

Q. Are there any exceptions to this requirement for schools?

A. For professional employees, the compensation requirements do not apply to teachers, lawyers and doctors. They do apply to nurses, social workers, psychologists and other professions that service the medical profession. 29 CFR § 541.600(e).

For academic administrative employees, the salary level test is met if the employee’s pay rate is at least equal to the beginning teacher salary. 29 CFR § 541.600(c).

For computer employees, a salary of at least $27.63 per hour is permissible in lieu of the weekly rate.

Paid on a Salary Basis

Q. What does being paid on a salary basis mean?

A. It means an employee regularly receives each pay period a predetermined amount of compensation which is not subject to reduction because of the variations in the quality or quantity of the employee’s work. Unless an exception applies, exempt employees must be paid their entire salary for any workweek in which they perform any work, without regard to the number of days or hours worked.

Q. What if the employee does not do any work for an entire workweek?

A. If no work is performed in a workweek, the school does not need to pay the individual, but, the absence from work must be due to the employee, not the school. If the employee is willing to work, but the school is closed because of inclement weather of other reasons, the school must pay for those days.

Q. Is this rule violated if we make deductions from accrued leave accounts?

A. No. You may take deductions from accrued leave accounts without jeopardizing the employee’s exempt status.

Q. May we require exempt employees to record their hours or work a specified schedule?

A. Yes. Neither of these actions will affect the employee’s exempt status.

Q. Are there instances in which we can make deductions from an employee’s pay?

A. Yes. The regulations provide for exceptions to the general rule that an employee must be paid for a full workweek for any week in which they perform any work. Those exceptions allow deductions for:

  • Absence from work for one or more full days for personal reasons, other than sickness or disability;
  • Absences of one or more full days due to sickness or disability if the deduction is made in accordance with a plan, policy, or practice of providing compensation for loss of salary for such absences (e.g., worker’s compensation or salary protection insurance, disability insurance);
  • Offsetting amounts received as payment for jury fees, witness fees or military pay;
  • Penalties imposed against employees in good faith for violating safety rules of major significance;
  • Unpaid disciplinary suspensions of one or more full days for violation of workplace conduct rules;
  • Proportionate parts of time actually worked in the first and last week of employment; or
  • Unpaid leave taken under the Family and Medical Leave Act. 29 CFR § 541.602(b).
Q. Are there other exceptions?

A. Yes. Public employees who meet the other requirements of the salary basis test are not disqualified because they are paid according to a pay system under which the employee accrues personal leave and sick leave or under which the employee can be placed on leave without pay for absences for personal reasons. Additionally, policies may allow for an individual’s pay to be reduced for absences because of illness or injury of less than one work-day when accrued leave is not used by an employee because:

  • Permission for its use has not been sought or has been sought and denied;
  • Accrued leave has been exhausted; or
  • The employee chooses to use leave without pay. 29 CFR § 541.710(a).
Q. What happens if we make improper deductions from an employee’s pay?

A. The school can lose the exemption for the employee, and for all employees in the same job classification working for the same manager, if the facts demonstrate that the school did not intend to pay employees on a salary basis. If the school has an actual practice of making improper deductions, the exemption will be lost. 29 CFR § 541.603.

Q. How will the Department of Labor determine we have an actual practice of making improper deductions?

A. It will look at the following factors:

  • The number of improper deductions, particularly as compared to the number of employee infractions warranting discipline;
  • The time period during which improper deductions were made;
  • The number and geographic location of employees whose salary was improperly reduced;
  • The number and geographic location of managers responsible for taking the improper deductions; and
  • Whether the school has a clearly communicated policy permitting or prohibiting improper deductions.
Q. What if we inadvertently make an improper deduction?

A. Isolated or inadvertent improper deductions will not result in the loss of exemption if the school reimburses the employees for such deductions. 29 CFR § 541.603(c).

Q. How does a policy help in this area?

A. The regulations provide if a school has a clearly communicated policy that prohibits improper pay deductions and includes a complaint mechanism, reimburses employees for improper deductions, and makes a good faith commitment to comply in the future, the school will not lose the exemption for its employees. However, if the school willfully violates the policy, fails to reimburse employees or continues to make improper deductions, the exemption will be lost. It is best if the policy is in writing and distributed to employees prior to the improper deductions. 29 CFR § 541.603(d).

Executive Exemption

Q. What is the test for meeting the executive exemption?

A. To qualify for the executive employee exemption, all of the following tests must be met:

  • The employee must be compensated on a salary basis at a rate not less than $455 per week;
  • The employee’s primary duty must be managing the enterprise or managing a customarily recognized department or subdivision of the enterprise;
  • The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and
  • The employee must have the authority to hire or fire other employees or his or her suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight. 29 CFR § 541.100.
Q. What does “two or more other employees” mean?

A. The phrase “two or more other employees” means two full-time employees or their equivalent. For example, one full-time and two half-time employees are equivalent to two full-time employees. The supervision can be distributed among two, three or more employees but each such employee must customarily and regularly direct the work of two or more other full-time employees or the equivalent. For example, a department with five full-time nonexempt workers may have up to two exempt supervisors if each supervisor directs the work of two of those workers. 29 CFR § 541.104.

Q. How do we know if an employee’s recommendations meet the “particular weight” requirement?

A. Factors to be considered in determining whether an employee’s recommendations as to hiring, firing, advancement, promotion or any other change of status are given “particular weight” include, but are not limited to, whether it is part of the employee’s job duties to make such recommendations and the frequency with which such recommendations are made, requested, and relied upon. Occasional suggestions are insufficient. However, even if a higher level manager’s recommendation has more importance and even if the employee does not have authority to make the ultimate decision as to the employee’s change in status, the “particular weight” requirement is not defeated. 29 CFR § 541.105.

Administrative Exemption

Q. What is the test for the administrative exemption?

A. To qualify for the administrative employee exemption, all of the following tests must be met:

The employee must be compensated on a salary basis at a rate not less than $455 per week;

The employee’s primary duty must be the performance of office or nonmanual work directly related to the management or general business operations of the employer or the employer’s customers; and

The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance. 29 CFR § 541.200.

Q. Are there any specific definitions for schools?

A. Yes. The regulations suggest the administrative exemption is available to employees compensated on a salary basis at a rate not less than $455 a week, and whose primary duty is performing administrative functions directly related to academic instruction or training in an educational establishment. Academic administrative functions include operations directly in the field of education, and do not include jobs relating to areas outside the educational field. 29 CFR § 541.204.

Q. Do the regulations contain any examples of the types of positions that may qualify for exemption in the school setting?

A. Yes. The regulations indicated employees engaged in academic administrative functions include: the superintendent or other head of an elementary or secondary school system and any assistants responsible for administration of such matters as curriculum, quality and methods of instructing, measuring and testing the learning potential and achievement of students, establishing and maintaining academic and grading standards, and other aspects of the teaching program; the principal and any vice-principals responsible for the operation of an elementary or secondary school; department heads in institutions of higher education responsible for the various subject matter departments; academic counselors and other employees with similar responsibilities. 29 CFR § 541.204(c)(1).

Professional Exemption

Q. What is the test for the professional exemption?

A. There are two types of professional exemptions: learned professionals and creative professionals. To qualify as a learned professional the salary level and salary basis tests must be met and:

  • The employee’s primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment;
  • The advanced knowledge must be in a field of science or learning; and
  • The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction. 29 CFR § 541.301.

To qualify for the creative professional employee exemption, the salary level and salary basis tests must be met and the employee’s primary duty must be the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor. This includes such fields as, for example, music, writing, acting and the graphic arts. 29 CFR § 541.302.

Q. Do teachers fall within the professional exemption?

A. Yes. Teachers are exempt if their primary duty is teaching, tutoring, instructing or lecturing in the activity of imparting knowledge and if they are employed and engaged in this activity as a teacher in an educational establishment. Exempt teachers include, but are not limited to, regular academic teachers, kindergarten or nursery school teachers, teachers of gifted or disabled children, teachers of skilled and semi-skilled trades and occupations, teachers engaged in automobile driving instruction, aircraft flight instructors, home economics teachers and vocal or instrument music teachers. The salary and salary basis requirements do not apply to bona fide teachers. 29 CFR § 541.303.

Computer Employee Exemption

Q. What are the tests for the computer employee exemption?

A. For the computer employee exemption, the following tests must be met:

  • The employee must be compensated either on a salary or fee basis at a rate not less than $455 per week; or if compensated on an hourly basis, at a rate not less than $27.63 an hour;
  • The employee must be employed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field performing the duties described below;
  • The employee’s primary duty must consist of:
  • The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications;
  • The design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;
  • The design, documentation, testing, creation or modification of computer programs related to machine operating systems; or
  • A combination of the aforementioned duties, the performance of which requires the same level of skills. 29 CFR § 541.400 and 402.

The computer employee exemption does not include employees engaged in the manufacture or repair of computer hardware and related equipment. Employees whose work is highly dependent upon, or facilitated by, the use of computers and computer software programs but who are not primarily engaged in computer systems analysis and programming or other similarly skilled computer-related occupations identified in the primary duties test described above, are also not exempt under the computer employee exemption. 29 CFR § 541.401.

Highly Compensated Employees

Q. If a person makes above a certain amount of salary are they automatically exempt?

A. Maybe. Highly compensated employees performing office or nonmanual work and paid total annual compensation of $100,000 or more (which must include at least $455 per week paid on a salary or fee basis) are exempt from the FLSA if they customarily and regularly perform at least one of the duties of an exempt executive, administrative or professional employee identified in the standard tests for exemption. This exemption does not apply to blue collar workers or those performing manual tasks. 29 CFR § 541.601.

Exemption Lost

Q. What happens if an employee’s exemption is lost?

A. The employee is then subject to the FLSA overtime provisions and the school must pay them overtime, or allow them to accrue compensatory time, whenever they work more than forty hours in any workweek.

Family & Medical Leave Act

Requirements

Q. What is the Family and Medical Leave Act of 1993 (FMLA) and what does it require?

A. FMLA is a federal law which generally requires private sector employers of 50 or more employees, and public agencies, to provide up to 12 workweeks of unpaid, job-protected leave to eligible employees for certain specified family and medical reasons, to maintain eligible employees’ preexisting group health insurance coverage during periods of FMLA leave and to restore eligible employees to their same or an equivalent position with equivalent employment benefits, pay and other terms and conditions of employment at the conclusion of their FMLA leave. 29 CFR § 825.100.

Eligibility for Leave

Q. Who is eligible to take leave under FMLA?

A. An employee who has been employed by the employer for at least 12 months, has been employed for at least 1,250 hours of service during the 12-month period immediately preceding the commencement of the leave (full-time teachers are deemed to have met the 1,250 hour test) and is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite. 29 CFR § 825.110.

Q. Does the definition of “teacher” include teacher assistants or aides or primarily noninstructional employees such as counselors, psychologists, curriculum specialists, cafeteria workers, maintenance workers, or bus drivers?

A. No. Teacher is defined as an employee employed principally in an instructional capacity whose principal function is to teach and instruct students. This includes athletic coaches, driving instructors and special education assistants such as signers for the hearing impaired. 29 CFR § 825.800.

Covered Employees

Q. Are public schools subject to FMLA?

A. Yes. Public as well as private elementary and secondary schools are covered employers without regard to the number of employees employed. 29 CFR § 825.104, 825.108.

Reasons for Leave

Q. Under what circumstances are employers required to grant FMLA leave?

A. Eligible employees may take FMLA leave for the birth and care of a newborn child, the placement of a child with the employee for adoption or foster care, when the employee is needed to care for a family member (child, spouse or parent) with a serious health condition or when the employee’s own serious health condition makes the employee unable to perform the functions of his or her job. 29 CFR § 825.112.

Q. What do “spouse,” “parent,” “son,” and “daughter” mean for purposes of an employee qualifying to take FMLA leave?

A. “Spouse” means a husband or wife as defined or recognized under state law, including common law marriages which are recognized in Kansas.

“Parent” means a biological, adoptive, step or foster father or mother or an individual who stands or stood in loco parentis to an employee when the employee was a son or daughter. The term does not include parents “in law.”

“Son” or “daughter” means a biological, adopted or foster child, a stepchild, a legal ward or a child of a person standing in loco parentis, who is either under the age of 18, or age 18 or older and “incapable of self-care because of a mental or physical disability” at the time the leave commences. 29 CFR § 825.122.

Serious Health Condition

Q. What is a “serious health condition” entitling an employee to FMLA leave?

A. “Serious health condition” means an illness, injury, impairment or physical or mental condition that involves inpatient care (i.e., an overnight stay) in a hospital, hospice or residential medical care facility, including any period of incapacity (which means an inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment thereof, or recovery therefrom) or any subsequent treatment in connection with such inpatient care. Continuing treatment by a health care provider except for routine physical, eye and dental examinations is also included. 29 CFR § 825.113.

Q. What is not a “serious health condition?”

A. Cosmetic treatments generally are not serious health conditions. Ordinarily, unless complications arise, the common cold, the flu, earaches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc., are examples of conditions that do not meet the definition of serious health condition and do not qualify for FMLA leave. 29 CFR § 825.113.

Birth, Adoption or Foster Care Placement of a Child

Q. Can the father take leave for the birth, adoption or foster care placement of a child?

A. Yes. The right to take leave under FMLA applies equally to male and female employees. A father, as well as a mother, can take leave for the birth, placement for adoption or foster care of a child. 29 CFR § 825.112.

Q. How much leave may a husband and wife take if they are employed by the same employer?

A. A husband and wife who are eligible for FMLA leave and are employed by the same covered employer may be limited to a combined total of 12 weeks of leave during any 12-month period if the leave is taken for the birth and care of the employee’s newborn child, for placement for adoption or foster care or to care for the child after placement, or to care for the employee’s parent with a serious health condition. This applies even if the husband and wife are employed at two different worksites of an employer located more than 75 miles from each other or by two divisions of the same company. If one spouse is ineligible for FMLA leave the other is entitled to a full 12 weeks of FMLA leave. 29 CFR § 825.120, 121 and 201.

Q. Must the leave be taken all at once?

A. No. FMLA leave may be taken intermittently or on a reduced leave schedule. The employee may work a part-time schedule. 29 CFR § 825.203.

Leave Issues

Intermittent Leave

Q. When may an employee take FMLA leave intermittently?

A. FMLA leave may be taken intermittently or on a reduced leave schedule when it is medically necessary to take care of a qualified family member who has a serious health condition or because of the employee’s own serious health condition. FMLA leave taken in connection with the birth, adoption or foster care of a son or daughter cannot be taken intermittently or on a reduced leave schedule unless the employee and employer agree. Similarly, an employee using leave for a planned medical treatment must make “reasonable efforts” to schedule the treatment to not unduly disrupt the employer’s operations. 29 CFR § 825.203.

Q. How do you determine the amount of FMLA leave used if leave is not taken all at once?

A. If an employee takes FMLA leave on an intermittent or reduced leave schedule, only the amount of leave actually taken may be counted toward the 12 weeks of leave to which the employee is entitled. 29 CFR § 825.205.

Q. What limitations apply to the taking of intermittent leave or leave on a reduced leave schedule?

A. 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.

If an eligible instructional employee needs intermittent leave or leave on a reduced leave schedule to care for a family member, to care for a covered service member, 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, the employer may require the employee to choose either to:

  • Take leave for a period or periods of a particular duration, not greater than the duration of the planned treatment; or
  • 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.

These rules apply only to a leave involving more than 20 percent of the working days during the period over which the leave extends. “Periods of a particular duration” means a block or blocks of time beginning no earlier than the first day for which leave is needed and ending no later than the last day on which leave is needed and may include one uninterrupted period of leave. 29 CFR § 825.601.

Amount of Leave

Q. How much leave may an employee take?

A. Except in the case of leave to care for a covered service member with a serious injury or illness, which will be discussed later in this chapter, an eligible employee’s FMLA leave entitlement is limited to a total of 12 workweeks of leave during any 12-month period. 29 CFR § 825.200.

Q. Can an employee be required to take more FMLA leave than is necessary?

A. No. An employee may not be required to take more FMLA leave than necessary to resolve the circumstance that precipitated the need for leave. 29 CFR § 825.311.

Leave Near End of Academic Term

Q. What limitations apply to the taking of leave near the end of an academic term?

A. There are also different rules for instructional employees who begin leave more than five weeks before the end of a term, less than five weeks before the end of a term, and less than three weeks before the end of a term. 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 (a) the leave will last at least three weeks, and (b) the employee would return to work during the three-week period before the end of the term;
  • The employee begins leave for a purpose other than the employee’s own serious health condition during the five-week period before the end of a term. The employer may require the employee to continue taking leave until the end of the term if (a) the leave will last more than two weeks, and (b) the employee would return to work during the two-week period before the end of the term; or
  • The employee begins leave for a purpose other than the employee’s own serious health condition during the three-week period before the end of a term, and the leave will last more than five working days. The employer may require the employee to continue taking leave until the end of the term.

For purposes of these provisions, “academic term” means the school semester, which typically ends near the end of the calendar year and the end of spring each school year. In no case may a school have more than two academic terms or semesters each year for purposes of FMLA. 29 CFR § 825.602.

Q. Is all leave taken during “periods of a particular duration” counted against the FMLA leave entitlement?

A. 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 counts 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 can be charged against the employee’s FMLA leave entitlement. 29 CFR § 825.603.

Determining the 12-month Period

Q. How do you determine the 12-month period?

A. The employer is permitted to choose one of several methods of determining the 12-month period in which the 12 weeks of leave entitlement occurs:

  • The calendar year;
  • Any fixed 12-month “leave year” such as a fiscal year, a year required by state law or a year starting on an employee’s “anniversary date;
  • The 12-month period measured forward from the date any employee’s first FMLA leave begins; or
  • A “rolling” 12-month period measured backward from the date an employee uses any FMLA leave (except that such measure may not extend back before August 5, 1993). The employee’s service need not be consecutive in order to achieve the 12-month service requirement. 29 CRF § 825.200.

Paid or Unpaid

Q. Is FMLA leave paid or unpaid?

A. Generally, FMLA leave is unpaid. FMLA permits an eligible employee to choose to substitute paid leave for FMLA leave. If an employee does not choose to substitute accrued paid leave, the employer may require the employee to substitute accrued leave for FMLA leave through its leave policies. In this way FMLA leave and paid leave may run concurrently. However, neither the employee nor the employer can require substitution of paid leave when the employee is receiving paid disability. It is the employer’s responsibility to designate leave, paid or unpaid, as FMLA-qualifying and give notice to the employee. 29 CFR § 825.207 and 300.

Benefits while on Leave

Q. Is an employee entitled to benefits while using FMLA leave?

A. During any FMLA leave, an employer must maintain the employee’s coverage under any group health plan on the same conditions as coverage would have been provided if the employee had been continuously employed during the entire leave period. The employee on FMLA leave must be provided the same changed benefits as all other employees if during the period of leave the employer changes the coverage. 29 CFR § 825.209.

Q. How do employees on FMLA leave pay their share of group health benefit premiums?

A. Any share of the group health plan premiums paid by the employee prior to FMLA leave must continue to be paid by the employee during the FMLA leave period. If premiums are raised or lowered, the employee would be required to pay the new premium rates. Methods of payment include the method normally used by the employer, payment to the insurer or by agreement between the employee and the employer. 29 CFR § 825.210.

Q. What do we do if an employee on FMLA leave fails to pay his or her portion of the health insurance premiums?

A. If the employee fails to pay his or her portion of the health insurance premium during the leave, the employer may drop the employee’s coverage after the employee’s payment is over 30 days late. Before coverage can be dropped, however, the employer needs to send a written notice to the employee of his or her delinquency and advising the employee that coverage will be dropped on a specified date at least 15 days after the date of the letter unless payment is received. 29 CFR § 825.212.

Notice and Posting Requirements

Employers

Q. What posting and notice requirements does FMLA place on employers?

A. Every covered employer is required to post and keep posted, on its premises, in conspicuous, prominent places, where it can be readily seen by employees and applicants for employment, information on FMLA and whether or not the employer has any eligible employees. The notice must explain FMLA provisions and provide information concerning the procedures for filing a complaint regarding violations with the Wage and Hour Division. If an FMLA covered employer has any eligible employees and has any written guidance to employees concerning benefits or leave rights, such as an employment handbook, it must contain information on FMLA. 29 CFR § 825.300 and 301.

Employees

Q. What notice must the employee provide when the need for FMLA leave is foreseeable?

A. An employee must give the employer at least 30 days advance notice before FMLA leave is to begin if leave is foreseeable. 29 CFR § 825.302.

Q. What if the need for FMLA leave is not foreseeable?

A. When the need for FMLA leave is not foreseeable, notice should be given as soon as practicable under the facts and circumstances of the particular case. 29 CFR § 825.303.

Q. What recourse does the employer have if the employee does not provide the notice?

A. An employer may waive employees’ FMLA notice obligations or the employer’s own internal rules on leave notice requirements. If the employee fails to give the required notice and has no reasonable excuse for the delay, the employer may delay the taking of FMLA leave until at least 30 days after the date the employee provides notice to the employer of the need for FMLA leave. Before FMLA leave can be delayed, it must be clear the employee had actual notice of the FMLA notice requirements. 29 CFR § 825.304.

Medical Certification

Q. When must an employee provide medical certification to support FMLA leave?

A. An employer may require that an employee’s leave be supported by certification issued by the health care provider of the employee or the employee’s ill family member. An employer must give notice of a requirement for medical certification each time it is required.

In most cases, the employer should request that an employee furnish certification at the time the employee gives notice of the need for leave or within five business days thereafter or, in the case of unforeseen leave, within five business days after the leave commences. The employer may request certification at some later date if the employer later has reason to question the appropriateness of the leave or its duration.

The employee must provide the requested certification to the employer within 15 calendar days after the employer’s request, unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts or the employer provides more than 15 calendar days to return the requested certification. 29 CFR § 825.305.

Return to Work

Q. What are an employee’s rights on returning to work from FMLA leave?

A. An employee is entitled to be returned to the same position the employee held when leave commenced or to an equivalent position with equivalent benefits, pay and other terms and conditions of employment. Equivalent position means one that is virtually identical to the employee’s former position including privileges, prerequisites and status. It must involve the same or substantially similar duties and responsibilities which must entail substantially equivalent skill, effort, responsibility and authority. 29 CFR § 825.214 and 215.

Q. What if an employee is unable to perform an essential function of the position?

A. The employee has no right to restoration to another position under FMLA; however, the employer may have obligations under the Americans with Disabilities Act (ADA). 29 CFR § 825.214.

Notice of Intent to Return

Q. What notice may an employer require regarding an employee’s intent to return to work?

A. An employer may require an employee on FMLA leave to report periodically on the employee’s status and intent to return to work. The employer’s policy regarding such reports may not be discriminatory and must take into account all relevant facts and circumstances related to the individual employee’s leave situation. 29 CFR § 825.311.

Q. What are the employer’s obligations if the employee notifies the employer of the employee’s desire to return to work notwithstanding the employee’s indication that return to work may not be possible?

A. The employer’s obligations continue. 29 CFR § 825.311.

Notice of Intent Not to Return

Q. What are our obligations if the employee notifies us of the unequivocal intent not to return to work?

A. The employer is no longer obligated under FMLA to maintain health benefits (subject to COBRA requirements) or to restore the employee to employment. 29 CFR § 825.311.

Recordkeeping Requirements

Q. What records must an employer keep to comply with the FMLA?

A. FMLA provides that covered employers shall make, keep and preserve records pertaining to their obligations under the Act in accordance with the recordkeeping requirements of Section 11(c) of the Fair Labor Standards Act (FLSA) and in accordance with FMLA regulations. No particular order or form of records is required. Records must be kept for no less than three years and made available for inspection, copying, and transcription by representatives of the Department of Labor upon request. 29 CFR § 825.500.

Q. Specifically, what information must be kept?

A. Covered employers who have eligible employees must maintain records that must disclose the following:

  • Basic payroll and identifying employee data, including name, address, and occupation; rate or basis of pay and terms of compensation; daily and weekly hours worked per pay period; additions to or deductions from wages; and total compensation paid;
  • Dates FMLA leave is taken by FMLA eligible employees (e.g., available from time records, requests for leave, etc., if so designated). Leave must be designated in records as FMLA leave; leave so designated may not include leave required under state law or an employer plan which is not also covered by FMLA;
  • If FMLA leave is taken by eligible employees in increments of less than one full day, the hours of the leave;
  • Copies of employee notices of leave furnished to the employer under FMLA, if in writing, and copies of all general and specific written notices given to employees as required under FMLA and these regulations. Copies may be maintained in employee personnel files;
  • Any documents (including written and electronic records) describing employee benefits or employer policies and practices regarding the taking of paid and unpaid leaves;
  • Premium payments of employee benefits;
  • Records of any dispute between the employer and an eligible employee regarding designation of leave as FMLA leave, including any written statement from the employer or employee of the reasons for the designation and for the disagreement.

Covered employers with no eligible employees must maintain the records set forth in paragraph 1. If FMLA eligible employees are not subject to FLSA’s recordkeeping regulations for purposes of minimum wage or overtime compliance (i.e., not covered by or exempt from FLSA), an employer need not keep a record of actual hours worked provided that:

  • Eligibility for FMLA leave is presumed for any employee who has been employed for at least 12 months; and
  • With respect to employees who take FMLA leave intermittently or on a reduced leave schedule, the employer and employee agree on the employee’s normal schedule or average hours worked each week and reduce their agreement to a written record which is maintained. 29 CFR § 825.500.
Q. Are any records considered confidential?

A. Individual personnel records are not considered open records under the Kansas Open Records Act. Additionally, records and documents relating to medical certifications, recertifications or medical histories of employees or employees’ family members, created for purposes of FMLA, must be maintained as confidential medical records in separate files from the usual personnel files. If ADA is also applicable, the records must be maintained in conformance with ADA confidentiality requirements except that:

  • Supervisors and managers may be informed regarding necessary restrictions on the work or duties of an employee and necessary accommodations;
  • First aid and safety personnel may be informed (when appropriate) if the employee’s physical or medical condition might require emergency treatment; and
  • Government officials investigating compliance with FMLA (or other pertinent laws) must be provided relevant information upon request? 29 CFR § 825.500.

Filing Complaints or Private Lawsuits

Q. What can employees do who believe that their rights under FMLA have been violated?

A. The employee has the choice of:

  • Filing, or having another person file, a complaint with the Secretary of the Department of Labor; or
  • Filing a private lawsuit pursuant to Section 107 of FMLA.

If the employee files a private lawsuit, it must be filed within two years after the last action which the employee contends was in violation of the Act, or three years if the violation was willful.

If an employer has violated one or more provisions of FMLA and if justified by the facts of a particular case, an employee may receive one or more of the following: wages, employment benefits, or other compensation denied or lost to such employee by reason of the violation; or, where no such tangible loss has occurred, such as when FMLA leave was unlawfully denied, any actual monetary loss sustained by the employee as a direct result of the violation, such as the cost of providing care, up to a sum equal to 12 weeks of wages for the employee or up to 26 weeks of wages in a case involving leave to care for a covered service member.

In addition, the employee may be entitled to interest on such sum, calculated at the prevailing rate. An amount equaling the preceding sums may also be awarded as liquidated damages unless such amount is reduced by the court because the violation was in good faith and the employer had reasonable grounds for believing the employer had not violated the Act.

When appropriate, the employee may also obtain appropriate equitable relief, such as employment, reinstatement and promotion. When the employer is found in violation, the employee may recover reasonable attorney’s fees, reasonable expert witness fees and other costs of the action from the employer in addition to any judgment awarded by the court. 29 CFR § 825.400.

Military Family & Medical Leave Act

Q. Can an employee take FMLA leave for military-related circumstances?

A. Yes. In January 2008, the FMLA was expanded to include two instances when an eligible employee could utilize FMLA leave for military-related reasons. The new law now allows leave in certain qualifying exigency and caregiver situations. The key to understanding these changes is realizing that the individuals afforded additional FMLA rights under these provisions are employees who have a particular relationship to a covered service member not the service member him or herself. 29 CFR § 825.112.

Qualifying Exigency

Q. What constitutes a “qualifying exigency?”

A. Eligible employees may take up to 12 workweeks of FMLA leave while the employee’s spouse, son, daughter, or parent (the “covered military member”) is on active duty or has been called to active duty status. Leave is available for one or more of the following qualifying exigencies:

  • Short notice deployment, in order to address any issue that arises from the fact that a covered military member is notified of an impending call or order to active duty in support of a contingency operation seven or less calendar days prior to the date of deployment;
  • Military events and related activities, such as, but not limited to, ceremonies, briefings and family support assistance;
  • Childcare and school activities, such as arranging for alternative childcare in the covered military member absence or enrolling children in a new school;
  • Financial and legal arrangements, such as preparing and executing financial and healthcare powers of attorney, transferring back account signature authority, or updating wills;
  • Counseling, to attend counseling provided by someone other than a health care provider for the employee, the covered military member or the employee’s minor child if the need for counseling arises from the call to active duty of the covered military member;
  • Rest and recuperation, to spend up to five days in leave at a time with a covered military member who is on short-term, temporary rest and recuperation leave during the period of deployment;
  • Post-deployment activities, such as arrival ceremonies and reintegration briefings occurring within 90 days of the termination of the covered military member’s active duty status; and
  • Additional related activities that the employer agrees to allow FMLA leave for so long as the employee and employer agree to both the timing and duration of the leave. 29 CFR § 825.126.

Covered Military Member

Q. Who is a “covered military member” for the purposes of the qualifying exigency provisions?

A. A “covered military member” means the employee’s spouse, son, daughter, or parent on active duty or call to active duty status. 29 CFR § 825.126.

Call to Active Duty
Q. What does “active duty or call to active duty status in support of a contingency operation” mean for purposes of determining FMLA eligibility?

A. Employees are eligible to take FMLA leave because of a qualifying exigency when the covered military member is on active duty or call to active duty status in support of a contingency operation as either a member of the reserve components (including Army National Guard of the United States, Army Reserve, Navy Reserve, Marine Corps Reserve, Air National Guard of the United States, Air Force Reserve, and Cost Guard Reserve) or a retired member of the Regular Armed Forces or Reserve.

An employee whose family member is on active duty or call to active duty status in support of a contingency operation as a member of the Regular Armed Forces is not eligible to take leave because of a qualifying exigency. Similarly, a call to active duty for purposes of leave taken for a qualifying exigency refers to a federal call to active duty. State calls to active duty are not covered unless under order of the President of the United States. 29 CFR § 825.126.

Asking for Evidence of Qualification

Q. As an employer, what kind of certification can we ask for to prove an employee would qualify for FMLA leave under the qualifying exigency provision?

A. The first time an employee requests leave for a qualifying exigency arising out of the active duty or call to active duty status of a covered military member, an employer may require the employee to provide a copy of the covered military member’s active duty orders or other documentation issued by the military which indicates the covered military member is on active duty or call to active duty status in support of a contingency operation and the dates of the covered military member’s active duty service. If the need for leave arises out of a different active duty or call to active duty status of the same or another covered military member, the employee shall supply a copy of the new orders and documentation issued by the military.

Specifically, an employer may require that leave for any qualifying exigency be supported by a certification from the employee setting forth the following:

  • A statement or description, signed by the employee, of appropriate facts regarding the qualifying exigency for which FMLA leave is requested, which are sufficient to support the need for leave and include any supporting documentation;
  • The approximate date on which the qualifying exigency commenced or will commence;
  • If an employee requests leave because of a qualifying exigency for a single, continuous period of time, the beginning and end dates for such absence;
  • If an employee requests leave because of a qualifying exigency on an intermittent or reduced schedule basis, an estimate of the frequency and duration of the qualifying exigency; and
  • If the qualifying exigency involves meeting with a third party, appropriate contact information for the individual or entity with whom the employee is meeting and a brief description of the purpose of the meeting. 29 CFR § 825.309.

Caregiver Leave

Q. What does caregiver leave under the military FMLA provisions entail?

A. Eligible employees are entitled to up to 26 workweeks of FMLA leave per 12-month period to care for a current member of the Armed Forces, including a member of the National Guard or Reserves, or a member of the Armed Forces, the National Guard, or Reserves who is on the temporary disability retired list, who has a serious injury or illness incurred in the line of duty on active duty for which he or she is undergoing medical treatment, recuperation, or therapy; is in outpatient status for or is placed on the temporary disability retired list for.

Eligible employees may not take leave to care for former members of the Armed Forces, former members of the National Guard and Reserves and members on the permanent disability retired list under the military caregiver provisions. 29 CFR § 825.127.

Q. What is a “serious injury or illness” for the purposes of military caregiver leave?

A. It means an injury or illness incurred by a covered service member in the line of duty on active duty that may render the service member medically unfit to perform the duties of his or her office, grade, rank or rating. 29 CFR § 825.127.

Q. What relationship must the employee be to the service member before he or she is eligible to take military caregiver leave for this purpose?

A. In order to care for a covered service member, an eligible employee must be the spouse, son, daughter, parent or next of kin of a covered service member. For the purposes of this section, a “son or daughter” can be of any age. “Next of kin of a covered service member” means the nearest blood relative, other than the covered service member’s spouse, parent, son, or daughter in order of priority which is described in this regulation. 29 CFR § 825.127, 825.122.

Q. How is the 12-month period determined for the purposes of military caregiver leave?

A. It begins on the first day the eligible employee takes FMLA leave to care for a covered service member and ends 12 months after that date. An employee who utilizes military caregiver leave gets a total of 26 workweeks for all FMLA leave in one 12-month period. Only 12 of those weeks can be for other FMLA qualifying reasons. 29 CFR § 825.127.

Q. What kind of medical certification can we ask for in military caregiver leave situations?

A. An employer can require the health care provider of the covered service member to provide the following: the contact information of the health care provider including the provider’s type of practice; whether the service member’s injury or illness was incurred in the line of duty on active duty; the approximate date on which the serious injury or illness commenced and its probable duration; a statement or description of appropriate medical facts regarding the service member’s health condition; and sufficient information to establish the service member is in need of care and to approximate how long it will be needed. 29 CFR § 825.310.

First Amendment Rights

Rights Protected

Q. What rights of employees does the First Amendment protect?

A. Freedom of speech, freedom of association and the right to freely exercise one’s religion, are generally the areas of protection that result in legal challenges concerning employees in the school setting.

How Lawsuits are Brought

Q. How do lawsuits alleging a violation of First Amendment rights generally arise?

A. Most often employees file lawsuits under Section 1983 which is fully discussed in the chapter on “Liability” in this Handbook. Section 1983: Civil Rights. If a community college or technical college teacher, tenured or nontenured, is nonrenewed or terminated for the exercise of First Amendment rights, the teacher may also request a due process hearing pursuant to K.S.A. 72-2262.

First Amendment Rights: Association

Q. What rights does the freedom of association generally protect?

A. Political affiliations and affiliations with groups.

Affiliations

We have just discovered that one of our teachers is a member of the Nazi party. Can we terminate him?

A. No. Termination of public school employees for their political beliefs and affiliation violates the First Amendment. Martinez v. Cotulla Independent School District, 700 F.Supp. 17 (S.D. Tex. 1988). Further, in Keyishian v. Board of Regents, 385 U.S. 589 (1967), the Supreme Court struck down a state law making communist party membership prima facie evidence of disqualification for employment in the public school system. The court struck down the law as an over-broad interference with associational rights because it prohibited membership in an organization without any showing of specific intent that the teacher intended to further the organization’s unlawful aims.

Q. Can we require employees to disclose the names of the organizations they belong to?

A. Generally not. In Shelton v. Tucker, 364 U.S. 479 (1960), the Supreme Court held that absent a “substantial relation” between the school’s interest and the information required to be disclosed, a school could not compel a teacher to disclose his affiliations as a condition of employment.

Union Activity

Q. Does the First Amendment protect union activity?

A. Yes. The right of association protects teachers who are members of a union or employees’ association in advocating the objectives of the organization. NAACP v. Button, 371 U.S. 415 (1963).

Friendships

Q. Are friendships or personal relationships protected by the First Amendment?

A. Probably not. In Copp v. U.S.D. No. 501, 882 F.2d 1547 (10th Cir. 1989), the court found that the First Amendment right to associate does not include emotional bonds between public employees. Friendship between employees is not the type of association that the First Amendment was intended to protect.

First Amendment Rights: Religion

Q. Is the right to freely exercise one’s religion an absolute right?

A. No. The freedom to believe is absolute, but the freedom to act on those beliefs is not. A school district can restrict an employee’s right to free exercise only if it can show a compelling interest which is served by the regulation.

Q. In this context, what constitutes a compelling interest?

A. In addition to guaranteeing the right to freely exercise one’s religion, the first amendment prohibits governments from establishing religion. A school district could legitimately prohibit a teacher from opening class with a prayer, reading Bible verses, or proselytizing about religion to students because the school has a compelling interest in not violating the Establishment Clause.

Religious Material in the Classroom

Q. Does an employee have a right to have a Bible or other religious materials in the classroom?

A. Probably. So long as the employee is not using these materials to promote or proselytize religion, having the items in the classroom for personal use is not a violation of the Establishment Clause. In Warnock v. Archer, 380 F.3d 1075 (8th Cir. 2004), the Eighth Circuit found the superintendent’s personal religious effects in his office were constitutionally protected. But, in Roberts v. Madigan, 921 F.2d 1047 (10th Cir. 1990), the Tenth Circuit found that a school district did not violate a teacher’s rights when, after receiving complaints from parents, it ordered a teacher to cease reading his Bible silently to himself during reading periods. Similarly, the court found no violation of the teacher’s First Amendment rights in Johnson v. Poway Unified Sch. Dist., 658 F.3d 954 (9th Cir. 2011), where the teacher was ordered to remove banners emphasizing God from his classroom.

In Freshwater v. Mt. Vernon City Sch. Dist., 137 Ohio St. 3d 469 (Ohio 2013), the court concluded the school violated the teacher’s First Amendment rights by asking the teacher to remove a Bible, inconspicuously placed on this desk and not used or referenced in instruction, from his classroom. However, the court also concluded the teacher was insubordinate in failing to remove another Christian-themed book and a poster depicting governmental officials in prayer as directed. The court indicated these items were not related to his free exercise of religion, but intended to “make a point” after the controversy about the Bible arose.

If the materials are deemed to be curricular in nature, the result might be different. In Lee v. York County School, 484 F.3d 687 (4th Cir. 2007), the court found a teacher’s First Amendment rights were not violated when he was directed to remove materials with religious overtones from his classroom bulletin board. Concluding the items were curricular in nature, the court indicated they were subject to regulation by the school.

Use of Facilities for Religious Meetings

Q. Do employees have a right to use school facilities for religious meetings before or after school?

A. The rights of a teacher in this instance are no greater or lesser than the rights of other outside groups. If you have created a public forum with your school facilities, a teachers’ group would have the right to use the school facilities; if you haven’t created a public forum, the teacher would not have a right to use the facilities. See the Handbook section entitled “School Property: Use of Facilities.”

Q. Is administrator led prayer at staff meetings permissible?

A. Probably not. In Warnock v. Archer, 380 F.3d 1075 (8th Cir. 2004), a teacher successfully challenged the superintendent’s practice of praying at mandatory staff meetings and trainings. The court concluded this practice violated the Establishment Clause.

Teaching about Religion

Q. Can teachers teach about religion in their classes?

A. Yes. Teachers can teach about religion, but they cannot teach a religion or proselytize about their particular religious beliefs. For more information, see the Handbook section entitled Religion: Curriculum.

Religious Holidays

Q. Can teachers have religious symbols in their classrooms or have students sing religious songs during the holidays?

A. Maybe. See the Handbook section entitled Religion: Religious Holidays.

See You at the Pole

Q. Can teachers participate in “See You at the Pole” activities with students?

A. It is not recommended. In Doe v. Wilson County School System, 564 F.Supp.2d 766 (D. Tenn. 2008), some teachers and school administrators participated in “See You at the Pole” and National Day of Prayer events. While they did not lead the prayers, they bowed their heads and wore “I Prayed” stickers following the event. The court concluded a reasonable observer of the event could conclude the event was sponsored or endorsed by the school and thus violated the Establishment Clause.

However, in Wigg v. Sioux Falls School District 49-5, 382 F.3d 807 (8th Cir. 2004), the court concluded a teacher’s participation in after-school religious activities with students held on school property was private speech, which did not put the school at risk of violating the Establishment Clause. The court noted students participated in the activities with the written permission of their parents, and the teacher proposed information about the meetings should include a disclaimer explaining that any school district employees participating in the activities were acting as private citizens and did not represent the school district in any way. For more information, see the Handbook section entitled Religion: See You at the Pole.

Church Activity

Q. Can teachers be involved with student groups in their churches?

A. Absolutely. Teachers can teach Sunday School or be advisors to church youth groups outside of school time.

First Amendment Rights: Speech

Q. Do employees have free speech rights while at school?

A. Yes. The question of the extent of those rights generally arises when a school district attempts to fire an employee because of statements he has made. It is well settled that a state may not discharge a public employee on a basis that infringes upon the employee’s constitutionally protected interest in freedom of speech. See, e.g., Rankin v. McPherson, 483 U.S. 378 (1987); Connick v. Myers, 461 U.S. 138 (1983); Pickering v. Board of Education, 391 U.S. 570 (1968).

Test for Determining if Speech is Protected

Pursuant to Job Responsibilities

Q. How do courts determine whether an employee has been properly discharged or disciplined for engaging in speech?

A. First courts consider whether the employee’s speech was made pursuant to the employee’s job responsibilities in his or her capacity as an employee. When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. Garcetti v. Ceballos, 547 U.S. 410 (2006); Brammer-Hoelter v. Twin Peaks Charter Academy, 492 F.3d 1192 (10th Cir. 2007); Casey v. West Las Vegas Independent School District, 473 F.3d 1323 (10th Cir. 2007); Deschenie v. Central Consolidated School District No. 22, 473 F.3d 1271 (10th Cir. 2007); Green v. Board of County Comm’rs, 472 F.3d 794 (10th Cir. 2007).

Next, the courts will balance the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the state, as an employer, in promoting the efficiency of the public service it performs through its employees. The threshold question in applying the balancing test is whether the employee’s speech may be “fairly characterized as constituting speech on a matter of public concern.” Connick, 461 U.S. at 146.

Matter of Public Concern

Q. When is speech deemed to be on a matter of public concern?

A. Whether an employee’s speech addresses a matter of public concern is determined by the content, form and context of the given statements, as revealed by the whole record. This inquiry is ultimately a question of law for the court to decide. Hullman v. Board of Trustees of Pratt Community College, 725 F.Supp. 1536, 1544 (D. Kan. 1989.) Because almost anything that occurs with a public agency could be of concern to the government, a court does not focus on inherent interest or importance of the matters discussed by a terminated public employee, but rather the court decides whether the speech at issue in a particular case was made primarily in the employee’s role as citizen or primarily in his role as employee. The fact that the speech was one in which the public might or would have had a great interest is of little moment. See Terrell v. University of Texas System Police, 792 F.2d 1360 (5th Cir. 1986).

In evaluating the issue of public concern, courts have focused on the extent to which the context of the speech was calculated to disclose wrongdoing or inefficiency or other malfeasance on the part of governmental officials in the context of their duties. Koch v. City of Hutchinson, 847 F.2d 1436, 1445 (10th Cir. 1988), cert. denied, 109 S.Ct. 262.

Courts have consistently found the public concern element satisfied when the speech discloses evidence of corruption, impropriety, wrongful conduct, or malfeasance of public officials. Speech on the internal administration of the educational system and personal grievances are usually not protected. Hullman, 725 F.Supp. at 1545. Although the motive behind a public employee’s speech is relevant in determining whether matters of public concern are implicated, motive alone is not disposition of the question of whether the speech is protected by the First Amendment. See, Berg v. Hunter, 854F.2d 238 (7th Cir. 1988).

Q. Does the employee’s speech have to be made publicly?

A. No. Remarks made in private may be protected. Givhan v. Western Line Consolidated School District, 439 U.S. 410 (1979).

Q. What if the speech is on a matter of personal concern?

A. Speech addressing matters of personal concern are not protected by the First Amendment. Employee complaints over internal affairs are not protected. Thus, speech concerning transfer policies, office morale, the need for grievance committees or the level of confidence in supervisors is not protected. Connick v. Myers, 461 U.S. 138 (1983).

Q. What about speech that doesn’t concern the school but concerns controversial political or social issues?

A. As long as the speech addresses a matter of public concern, a teacher has the right to comment not only on matters concerning the operation of the public school, but also to make out-of-class statements concerning controversial political or social issues. For instance, a federal appellate court has upheld a teacher’s right to send other faculty members an invitation to participate in a peace program against the Vietnam War. Stolberg v. Board of Trustees, 474 F.2d 485 (2nd Cir. 1973). Another federal appellate court has ruled that a teacher’s letter to a local newsletter supporting the legalization of marijuana was protected by the First Amendment. Wagle v. Murray, 546 F.2d 1329 (9th Cir. 1976), vacated on other grounds, 431 U.S. 935 (1977). The inappropriate or controversial character of the statement is irrelevant to the question of whether the statement deals with a matter of public concern.

Balancing Interests

Q. If we think that the speech is on a matter of public concern, are we prohibited from taking any action against the employees?

A. Not necessarily. Once it has been determined that the speech addresses a matter of public concern, the court will balance the employee’s interest in making this statement against the school’s interest in promoting the efficiency of the public services it performs. In performing the balancing test, the courts will not consider the statement in a vacuum. The manner, time and place of the speech are relevant, as is the context in which the speech arose. In balancing the interests the courts will consider the following factors:

  • Whether the speech impairs discipline by superiors;
  • Whether the speech impairs harmony among co-workers;
  • Whether the speech has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary;
  • Whether the speech impedes the performance of the teacher’s duties;
  • Whether the speech interferes with the regular operation of the school;
  • Whether the speech damages professional reputations; and
  • The degree of authority and public accountability of the employee making the speech.

Substantial Motivating Factor

Q. We have a teacher whose performance has been poor. She is now writing letters to the editor criticizing our proposed bond issue. Does this block our ability to nonrenew based on the poor performance?

A. Proceed with the nonrenewal. In dismissal based on a mixture of protected and unprotected activity, the employee must show that the conduct was constitutionally protected and that it was a “substantial” or “motivating” factor in the decision to terminate the employment. The court then determines if the school district has shown, by a preponderance of the evidence, that it would have reached the same decision even in the absence of the protected conduct. Whether the speech was a substantial factor in the employment decision and whether the employer can show that it would have reached the same decision in the absence of the protected speech are questions of fact for the jury. Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274 (1977); Trant v. Oklahoma, 754 F.3d 1158 (10th Cir. 2014).

Speech on Social Media Sites

Q. Does the same standard apply to a teacher’s speech on a social media site?

A. Probably. In Munroe v. Central Bucks Sch. Dist., 805 F.3d 454 (3rd Cir. 2015), the court held a teacher’s blog post, full of rude and disparaging remarks about her students, was not entitled to First Amendment protection. The court found the comments arguably were not on a matter of public concern. The court indicated even if the comments implicated a matter of public concern, applying the Pickering balancing test, the school district’s interest in promoting efficiency and avoiding workplace disruption outweighed the teacher’s or the public’s interest in the speech.

The court in In re O’Brien, 2013 WL 132508 (N.J. Super. 2013), upheld the dismissal of O’Brien, a first grade teacher, who posted, “I’m not a teacher—I’m a warden for future criminals!,” on her Facebook page. Addressing the issue of whether her comments were entitled to First Amendment protection, the court found the statements were not an effort to comment on student behavior as a matter of public interest, but driven by her own dissatisfaction with her job and the behavior of some of her students. The court added that even if the comments were on matters of public concern, her right to express those comments was outweighed by the district’s interest in the efficient operation of its schools. Under Pickering, her Facebook posts were not protected speech.

Classroom Speech

Q. Does the same standard apply to a teacher’s speech in the classroom?

A. Although some courts apply the Pickering and Mt. Healthy tests to classroom speech, in Miles v. Denver Public Schools, 944 F.2d 773 (10th Cir. 1991), the Tenth Circuit Court of Appeals concluded that a teacher’s classroom speech should be subject to the test enunciated by the Supreme Court in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). Under that standard, a school may regulate school sponsored expression so long as the regulation is related to legitimate pedagogical concerns.

In Miles, a high school teacher was reprimanded for statements he made in the classroom about rumors that two students had been making out on the tennis court. The court found that the district’s interests in preventing a teacher from using his position of authority to confirm an unsubstantiated rumor or disassociating itself from speech it considered inappropriate; in ensuring that its teacher employees exhibit professionalism and sound judgment; and, in providing an educational atmosphere where teachers do not make statements about students that embarrass those students among their peers were all legitimate pedagogical interests which were furthered by suspending the teacher with pay pending investigation of the incident and placing a letter of reprimand in his file.

Prior Restraints on Speech

Q. May we require school employees to discuss school problems with the administration prior to making public comments?

A. Generally, the courts have viewed prior restraints on speech with disfavor. A school rule prohibiting cafeteria employees from talking to anyone but the principal about “school problems” and impliedly threatening adverse employment actions was found to impermissibly place a prior constraint on a cafeteria employee’s complaints about unsanitary practices in violation of the First Amendment in Luethje v. Peavine School Dist. of Adair Co., 872 F.2d 352 (10th Cir. 1989).

In Knapp v. Whitaker, 577 F.Supp. 1265 (D.C. Ill. 1983), the court concluded school board policy requiring communications to the school board to be made through the superintendent was unconstitutional both on its face and as applied to a high school teacher who was reprimanded for communications made directly to the board criticizing grievance procedures. Further, in U.S.D. No. 503 v. McKinney, 689 P.2d 860 (Kan. 1984), the court concluded that an injunction barring a school district employee and others from holding meetings or from speaking at school board meetings was an unconstitutional prior restraint.

Health Issues

Physical Examinations

Q. May we require all finalists for an open position in our district to have a physical examination?

A. No. Preemployment health examinations are prohibited under the Americans with Disabilities Act.

Q. May we condition an offer of employment on passing of a physical?

A. Yes. But only if you require post-offer physicals of all potential hires in the same job classification.

Q. After we hire an individual, may we require a physical examination?

A. Yes. K.S.A. 72-6266 requires a board to require all persons who come in regular contact with students to submit a certification of health to the district. The form of the certificate is prescribed by the Department of Health and Environment.

Health Certificates

Q. Are we required to pay for the cost of getting the health certificate for our employees?

A. K.S.A. 72-6266 allows, but does not require, the board to pay such costs.

Q. If we think an employee may be ill, may we require additional certifications of health?

A. Yes. Certifications of health are required in order to protect the health, safety and welfare of students. If the board has reason to believe that an employee is suffering from an illness detrimental to the health of pupils, a new certificate of health may be required.

Q. If we have reason to believe that an employee may have mental health problems, may we require a mental health assessment?

A. While the statute does not specifically authorize mental health examinations, neither does it prohibit such examinations. Because the purpose of the statute is to protect the health, safety and welfare of students, a district could make a strong argument that the authority to require a mental health examination when an employee’s mental condition may jeopardize student welfare is implied in K.S.A. 72-6266.

Health Insurance

Q. Do teachers who leave the school district have a right to continue in our health insurance plan?

A. In some cases, yes. See the section of this Handbook entitled Liability: Insurance: Health Insurance for Retirees.

Random Drug Testing

Q. May we do random drug testing of our employees?

A. Generally not. You are required to do random testing of bus drivers, but unless employees are in safety sensitive positions, it is likely random drug testing would violate an employee’s rights under the Fourth Amendment. If the school has reasonable suspicion an individual employee is under the influence of drugs or alcohol, the school could require an individual to submit to a drug test at that time.

Licensure

Q. What are a school district’s responsibilities with regard to teachers’ or administrators’ licenses?

A. The district has a responsibility to see that the people it hires are properly licensed to perform the jobs for which they are hired. The responsibility to renew a license or to get additional areas of licensure added to a license rests with the teacher or administrator.

Unlawful to Pay without Proper Licensure

Q. Are there restrictions on or penalties for allowing personnel to work in areas where they do not have proper licensure?

A. Yes. Although the state department generally issues only a warning and gives a district time to correct the situation, failure to have properly licensed personnel could result in loss of accreditation.

Further, K.S.A. 72-2159 makes it unlawful for the board to issue an order for payment of the salary of any licensed employee who does not hold a valid license for the kind of work to be performed.

Q. Are there exceptions for emergency situations?

A. There may be. Check with the licensure division of the Kansas State Department of Education with regard to specific situations.

Grounds for Nonrenewal

Q. Is not having a valid license grounds for nonrenewal or termination of a teacher’s contract?

A. Yes. Most courts have concluded that lack of certification renders a teacher unqualified for a position. If the teacher leaves the district while the teacher is under a contractual obligation to the district, the teacher’s certificate may be suspended for the period of the contract by the state board. In this case, to get the certificate suspended, a complaint must be signed by two-thirds of the members of the board and forwarded to the state board. The state board must have a hearing on the matter before suspending the certificate. Generally, the state board refuses to suspend a certificate for contract jumping if a district’s policies or negotiated agreement allow for liquidated damages.

Q. With several weeks of school remaining, we have learned that our math teacher’s teaching certificate expires next Monday? What should we do?

A. This question involves several statutory, contractual and constitutional issues, and there is not a clear answer. Kansas statutes prohibit classroom instruction by a noncertificated teacher. Thus, the teacher should be suspended upon the expiration of his certificate. K.S.A. 72-2159 also prohibits paying a teacher who is not appropriately certified. However, the school board is obligated to pay the teacher under the terms of the employment contract and is obligated to afford the teacher due process prior to suspension without pay.

At a minimum the board should suspend the teacher with pay and give notice of the intent to terminate the contract for lack of qualification. Additionally, the board may want to suspend without pay pending the outcome of the termination hearing if the teacher is tenured. This would require a due process hearing before the board.

Q. Our contract says that it is void if the teacher does not maintain appropriate licensure. Can’t we just declare the contract void and avoid a due process hearing if the teacher lets his license lapse?

A. No. The Kansas Court of Appeals held a teacher whose license expires must be afforded due process before the contract may be terminated. In Rettie v. USD 475, 167 P.3d 810 (Kan. App. 2007), the court held, even though the license had lapsed, the teacher was still entitled to the protections of the Teacher Due Process Act. While those protections have been repealed for public school teachers, a teacher whose contract is terminated during the term of the contract would be entitled to constitutional due process.

Cancellation of a License

Q. For what reasons may a teacher’s license be canceled?

A. A teacher’s license may be canceled on grounds of immorality, gross neglect of duty, contract jumping or for any other reason which would have justified not granting a certificate in the first place. K.S.A. 72-2155 and K.S.A. 72-2216.

Q. Does the conduct have to impair the teacher’s ability to teach?

A. The Kansas Supreme Court answered this question negatively in the case of Hainline v. Bond, 250 Kan. 217 (Kan. 1992). In that case, Hainline sought review of the state board of education’s decision suspending his teaching certificate based on his commission of a burglary. In upholding the suspension of the certificate, the Supreme Court, held:

  • The board was not required to find the teacher’s felonious conduct impaired his ability to perform his job before suspension could be imposed;
  • The suspension of a teaching certificate for conduct unrelated to work did not violate the teacher’s constitutional right to privacy; and
  • The term “immorality” as used within the statute was not unconstitutionally vague.
Q. Can a teacher’s certificate be affected if a teacher fails to pay child support and is held in contempt of court?

A. Yes. Pursuant to K.S.A. 74-146 and K.S.A. 74-147, the state board must adopt procedures for the suspension, termination, nonrenewal or denial of a teacher’s authority to teach if the teacher is found guilty of contempt of court under K.S.A. 20-1204a for failure to pay child support.

Q. What should we do if a teacher engages in conduct which constitutes grounds for canceling a certificate?

A. In order to have the state department take action to cancel the certificate, you should report the conduct to the state department. The district, apart from the state, may also want to take action to suspend or terminate the teacher’s contract.

Denial of or Failure to Renew a License

Q. Are there reasons for which a person can be denied the original issuance or renewal of a license?

A. Yes. K.S.A. 72-2165(a) provides a teaching certificate cannot be renewed or issued to an individual who has been convicted of any of the following crimes:

  • Rape, as defined in K.S.A. 21-5503;
  • Indecent liberties with a child, as defined in K.S.A. 21-5506(a);
  • Aggravated indecent liberties with a child, as defined in K.S.A. 21-5506(b);
  • Criminal sodomy, as defined in K.S.A. 21-5504(a)(3) or (a)(4);
  • Aggravated criminal sodomy, as defined in K.S.A. 21-5504(b);
  • Indecent solicitation of a child, as defined in K.S.A. 21-5508(a);
  • Aggravated indecent solicitation of a child, as defined in K.S.A. 21-5508(b);
  • Sexual exploitation of a child, as defined in K.S.A. 21-5510;
  • Aggravated incest, as defined in K.S.A. 21-5604(b);
  • Aggravated endangering a child, as defined in K.S.A. 21-5601(b);
  • Abuse of a child, as defined in K.S.A. 21-5602;
  • Capital murder, as defined in K.S.A. 21-5401;
  • Murder in the first degree, as defined in K.S.A. 21-5402;
  • Murder in the second degree, as defined in K.S.A. 21-5403;
  • Voluntary manslaughter, as defined in K.S.A. 21-5404;
  • Involuntary manslaughter, as defined in K.S.A. 21-5405;
  • Involuntary manslaughter while driving under the influence of alcohol or drugs, as defined in K.S.A. 21-3442, prior to its repeal;
  • Sexual battery, as defined in K.S.A. 21-5505(a), when, at the time the crime was committed, the victim was less than 18 years of age or a student of the person committing such crime;
  • Aggravated sexual battery, as defined in K.S.A. 21-5505(b);
  • Commercial sexual exploitation of a child, as defined in K.S.A. 21-6422;
  • Human trafficking, as defined in K.S.A. 21-5426(a);
  • Aggravated human trafficking, as defined in K.S.A. 21-5426(b);
  • Attempt, under K.S.A. 21-5301, to commit any act specified above;
  • Conspiracy under K.S.A. 21-5302, to commit any act specified above;
  • An act in another state or by the federal government that is comparable to any act described in this subsection; or
  • An offense in effect at any time prior to 2015 that is comparable to an offense contained in this list.
Q. Can a license be denied for the commission of other crimes?

A. Yes. Except in limited circumstances, the state department cannot issue or renew the teaching license of an individual who has been convicted of the following crimes, excluding those crimes previously outlined that constitute grounds for permanent denial of a license:

  • A felony under K.S.A. 21-36a01 through 21-36a17, or article 57 of chapter 21 of the Kansas Statutes Annotated, or any felony violation of any provision of the uniform controlled substances act prior to July 1, 2009;
  • A felony described in any section of article 54 of chapter 21 of the Kansas Statutes Annotated, or K.S.A. 21-6104, 21-6325, 21-6326 or 21-6418, other than an act specified in subsection (a), or a battery, as described in K.S.A. 21-5413(a), or domestic battery, as described in K.S.A. 21-5414, if the victim is a minor or student;
  • A felony described in any section of 55 of chapter 21 of the Kansas Statutes Annotated, or K.S.A. 21-6419 through 21-6421, other than an act specified in subsection (a);
  • Any act described in any section of article 36 of chapter 21 of the Kansas Statutes Annotated, prior to their repeal, or article 56 of chapter 21 of the Kansas Statutes Annotated, and amendments thereto, other than an act specified in subsection (a);
  • A felony described in 58 of chapter 21 of the Kansas Statutes Annotated, or K.S.A. 21-6412(a)(6);
  • Promoting obscenity, as described in K.S.A. 21-6401(a), promoting obscenity to minors, as described in K.S.A. 21-6401(b), or promoting to minors obscenity harmful to minors, as described in K.S.A. 21-6402;
  • Endangering a child, as defined in K.S.A. 21-5601(a);
  • Driving under the influence of alcohol or drugs in violation of K.S.A. 8-1567 or 8-2,144, when the violation is punishable as a felony;
  • Attempt under K.S.A. 21-5301, to commit any act specified in this list;
  • Conspiracy under K.S.A. 21-5302, to commit any act specified in this list.

Additionally, a license cannot be issued if the individual has been convicted in another state or federal court for similar offenses. Similarly, if an individual has entered into a criminal diversion agreement after being charged with one of these crimes, a license cannot be issued or renewed. K.S.A. 72-2165(b).

Exceptions for Permanent Exclusion

Q. What are the exceptions for permanent exclusion?

A. Permanent exclusion is not required if a person is convicted of one of the crimes listed in K.S.A. 72-2165(b). In these cases, if the state board determines the person has been rehabilitated for a period of at least five years from the date of the conviction or has satisfied the terms and condition of the diversion agreement, the state department may issue a license.

What factors may the state board consider?

A. In determining whether to grant a certificate to a person who claims to be rehabilitated, the board may consider, but is not limited to, these factors:

  • The nature and seriousness of the act;
  • The conduct of the person subsequent to the commission of the act;
  • The time elapsed since the commission of the act;
  • The age of the person at the time of the act;
  • Whether the act was an isolated or recurring incident; and
  • Discharge from probation, pardon or expungement. K.S.A. 72-2165(c).
Q. Can the state board simply deny a license on these grounds, or is a hearing required?

A. The person seeking the certificate must be given notice and an opportunity for a hearing in accordance with the provisions of the Kansas Administrative Procedure Act. K.S.A. 72-2165(d).

Q. How will the state board know if persons applying for certificates have been convicted of these crimes?

A. The law requires the county or district attorney of each county to file a report with the state board indicating the name, address and social security number of any person who has been determined to have committed the specified offenses. Additionally, the county attorney must file a report with the state board indicating the name, address and social security number of any person who has entered into a criminal diversion agreement after being charged with the specified offenses. These reports must be filed within 30 days of the date the person is found guilty or enters into the diversion agreement. K.S.A. 72-2165(e).

Q. Can the state board have liability for denying a license under these provisions?

A. No. The state board is granted immunity from liability for civil damages if the state board complies in good faith with the provisions of the law. K.S.A. 72-2165(f).

Licensure: Master Teachers

Q. Who can be issued a master teacher’s license by the state board of education?

A. Teachers who have attained certification from the national board for professional teaching must be issued a master teacher’s license from the Kansas State Board of Education. K.S.A. 72-2166(a).

Q. How long is a master teacher’s license valid?

A. Ten years and renewable every 10 years thereafter so long as the teacher complies with the continuing education and professional development requirements established by the state board. K.S.A. 72-2166(a).

Q. Are those with master teacher licenses treated differently than other teachers?

A. Yes. Under the state National Board for Professional Teaching Standards Certification Incentive Program, a school must pay master teachers an incentive bonus of $1000 per school year, not to exceed 10 years. K.S.A. 72-2166(a).

Q. When do we have to pay these incentive bonuses?

A. In any school year that the teacher retains eligibility for the payment.

Q. Where does the money for paying these bonuses come from?

A. The school district pays the bonuses like it would any other payment. You may then apply to the state board for state aid based on the amount of these payments. K.S.A. 72-2166(b).

Q. Are we reimbursed the full amount of all payments made?

A. You should be. The law requires you certify the amount of payments you have made to the state board. The state board then certifies these amounts to the state director of accounts and reports who must make payment to each school district on vouchers approved by the state board of education. K.S.A. 72-2166(c).

Q. How are these funds treated once they come to the school district?

A. They are considered reimbursements to the district and must be deposited in the general fund. These funds may be expended, whether or not they have been budgeted. K.S.A. 72-2166(d).

Q. Are there any programs to help teachers attain a master teacher license?

A. The state board may provide scholarships to teachers. Such scholarships cannot exceed $1100 per year for initial licensure and $500 per year for renewal programs. K.S.A. 72-2166(e).

Personnel Files

Q. Does an individual member of the school board have a right to examine a teacher’s personnel file?

A. No. K.S.A. 72-2411 allows the evaluation documents to be released to certain individuals and entities, including “the board.” Teacher personnel files, which contain teacher evaluations, may be released to the board and may be reviewed and discussed by the board in executive session. However, a person’s status as a board member does not afford that person greater rights than any other citizen. Further, the topic of access to personnel files is mandatorily negotiable. Restrictions on access may be included in the negotiated agreement.

Contents

Q. What should be included in the employee’s official personnel file?

A. Kansas statutes do not specifically itemize what must be contained in a personnel file. K.S.A. 72-2409, however, requires that evaluations and responses thereto be maintained in a personnel file for at least three years. In addition to the formal evaluations, it is recommended that the board place other important information regarding the employee’s performance in the official file. Employees should be notified of documents placed in their files and allowed an opportunity to respond to such documents.

Private Files

Q. Is it legal for an administrator to maintain a private file on individual employees?

A. There is probably no statutory or common law violation if an administrator maintains a private personnel file. Some administrators desire to collect notes and written observations to assist them in completing an employee’s evaluation. However, a private file should not be used as a substitute for the official file. That is, matters of significance (e.g., letters of reprimand and reports of misconduct or incompetency) belong in the official file. Documents and information contained in private files, but not in the official file, are arguably of little value in due process hearings.

Former Personnel

Q. Can the board destroy personnel records of retired or former teachers?

A. Yes. You may destroy records of obviously temporary importance after a reasonable time. The statute on record destruction, K.S.A. 72-1630, does not specify a certain time for keeping personnel records. It is recommended that you keep these records for at least five years after an employee leaves your employ.

Q. At negotiations, our teachers are proposing that teachers’ personnel files be purged of all evaluations and disciplinary information which is three or more years old. Should we agree to such a proposal?

A. Although agreeing to such a proposal would not be illegal, it is not recommended. It is preferable to maintain evaluations and other information in an employee’s personnel file for the duration of their employment. This can be particularly beneficial in situations where the employee’s pattern of conduct over a period of years provides a basis for the nonrenewal.

Preemployment Inquiries

Q. Are there restrictions on questions we may ask applicants for employment?

A. Yes. Discrimination laws, the First Amendment and privacy rights of individuals may limit the types of questions you may ask. Generally, all the questions you ask should be job related.

Address

Q. May we ask questions about an applicant’s address or residence?
  1. A. You may ask for a mailing address or for how long the person has been a resident of the city or state. You should not ask where the applicant lived previously.

Age or Birthdate

Q. May we ask for age or birth date?

A. You may ask if the applicant is over the age of 18. To avoid claims of age discrimination, you should not ask for age or birth date.

Convictions

Q. May we ask if the applicant has ever been convicted of a felony or any offense involving moral turpitude? If so, when, where and the nature of offense?

A. Yes. But inquiries may not be made regarding arrests for any crime.

Place of Birth

Q. May we ask the applicant his or her place of birth?

A. No. Inquiries may be made regarding birthplace of applicant, his or her parents, spouse or other close relative. You may not require an applicant to submit birth certificate, naturalization or baptismal records prior to an offer of employment.

Citizenship

Q. May we ask the applicant if he or she is a citizen of the U.S.?

A. You may ask this question only to determine whether applicant has a legal right to work in the U.S. No inquiry may be made as to what country applicant is a citizen, whether applicant is naturalized or native-born or whether applicant’s parents or spouse are naturalized or native-born citizens of the U.S.

Dependents

Q. May we ask the applicant if he or she has dependents?

A. You may not ask an applicant if he or she has children, the ages of the children, if there are other dependents or what child care arrangements have been made.

Disabilities or Health Problems

Q. May we ask the applicant if he or she has any disabilities, health or pregnancy problems?

A. You may ask the applicant if there are any positions for which he or she should not be considered or job duties he or she cannot perform. Inquiries may be made into contagious or communicable diseases which may endanger others. You may not ask the applicant if she is pregnant, using contraceptives, planning to have a family, that she be given a pelvic examination; if he or she has a disability or handicap, if he or she uses any adaptive device or aid, or if he or she has ever been treated for specific diseases.

Driver’s License

Q. May we ask the applicant if he or she has a driver’s license?

A. You may ask this only if driving is necessary for the job.

Education

Q. May we ask the applicant how much education he or she has?

A. You may inquire into the academic, vocational, or professional education of the applicant and the schools attended.

Emergency Contact Information

Q. May we ask an applicant for the name and address of person to notifiy in case of an emergency?

A. You may ask for the name and address of a person to notify in case of an emergency. You may not ask for the name and address of the nearest relative to be notified in case of an emergency.

Prior Work Experience

Q. May we ask applicant to disclose his or her prior work experience?

A. You may inquire into the applicant’s work experience.

Height or Weight

Q. May we inquire about the height or weight of the applicant?

A. You may not inquire regarding applicant’s height or weight unless it is a bona fide job qualification.

Housing

Q. May we inquire regarding the applicant’s housing?

A. No. You may not inquire if the applicant owns a home or is a renter.

Foreign Language Ability

Q. May we inquire if the applicant speaks or writes any foreign languages fluently?

A. You may inquire if the applicant speaks or writes any foreign language fluently only if use of the foreign language is job related.

Marital or Family Status

Q. May we ask the applicant his or her marital or family status?

A. Generally not. You may not inquire regarding how the applicant wishes to be addressed, e.g., Ms., Mr., Miss or Mrs. or ask any questions regarding family planning. You may ask if the applicant is related to a board member or employee of the district if the board has a nepotism policy.

Military Service

Q. May we ask if the applicant has had military service?

A. You may only ask the question of military service as it relates to prior employment or possessing special skills or training.

National Origin

Q. May we ask the applicant his or her national origin?

A. Generally not. You may only inquire into the language that the applicant speaks or writes if it is relevant to the job.

Memberships

Q. May we ask the applicant if he or she is a member of any organizations?

A. You may inquire into membership in professional organizations or hobby groups only to the extent that they are relevant to the job.

Personal Traits

Q. May we ask the applicant questions regarding personal traits, e.g., do you smoke, do you drink alcoholic beverages, what books do you read, what is the value of your assets, how much insurance do you carry, how often are you sick or do you have any hobbies?

A. No. You may not ask any of these questions.

Photograph

Q. May we ask the applicant for a photograph?

A. You may require that applicant submit a photograph either before or after the preemployment inquiry.

Race

Q. May we ask the applicant his or her race or color?

A. You may not ask questions regarding complexion or color of skin, national origin, ancestry, etc.

References

Q. May we ask the applicant for references?

A. You may ask who suggested that the applicant apply and for the name and address of person(s) for reference.

Relatives

Q. May we ask the applicant questions regarding his or her relatives?

A. You may ask if the applicant has relatives already employed by the school system.

Religious Preference

Q. May we ask the applicant about his or her religious preference?

A. You may only ask the applicant general questions regarding work hours, such as: “Are you available to work the hours and days required for the job?” You may not inquire into the applicant’s religious affiliation, the religious holidays the applicant observes or if the applicant goes to church.

Special Skills

Q. May we ask if the applicant has any special skills?

A. You may inquire into special skills such as foreign languages, writing, operating computers, etc., if job related.
NOTE: Once an individual is hired, additional information may be obtained such as marital status, dependents, health information which is needed for insurance and income tax purposes.

Programs for Employees

Early Retirement Incentive Program

Q. May we have an early retirement incentive program for our employees?

A. Yes. K.S.A. 72-2291 authorizes such programs. Such programs are mandatorily negotiable for your teaching staff.

Q. Are there any requirements for early retirement programs?

A. Yes. You cannot make payments to an individual under the program prior to retirement under KPERS. Further, the district must submit a budget report on their early retirement program to the Kansas State Department of Education beginning in FY 2002 and at least once every three years thereafter. The requirement for actuarial valuations of these programs was removed from the law by the 2002 Kansas Legislature. K.S.A. 72-2291.

Q. What must the report contain?

A. The report is to be submitted on a form developed by the state board of education and must contain the following information:

  • Three years of budget data on the program, including actual costs and current year and future years’ budget data for three to five years;
  • Current costs and benefits of the program for three to five years;
  • Current and projected number of participants in the program; and
  • Other information as required by the state board of education. K.S.A. 72-2291(b).

Employee Assistance Program

Q. May we have employee assistance programs for employees?

A. Yes. You may enter into contracts for the provision of an employee assistance program designed to assist in the identification and resolution of personal problems which may affect the employee’s performance, but you are not required to have such programs. K.S.A. 72-2571.

Professional Development Programs

Q. Are we required to have professional development programs for certificated employees?

A. Yes. K.S.A. 72-2547 requires boards to establish and maintain a professional development program for certificated personnel of the district. You may develop professional development program plans based on the identified needs at the individual building and district levels and contract with others to provide these programs.

Q. How should professional development programs be evaluated, reviewed and approved?

A. The state board creates standards for evaluation, review and approval based, in part, on measuring and assessing the impact of the programs on improving the instructional skills of certificated employees and improving the academic performance of pupils. K.S.A. 72-2546.

Q. When may these professional development programs be scheduled?

A. At any time during the school year. K.S.A. 72-2547(b)(2).

Q. Are state funds available to pay for professional development programs?

A. Yes. You may apply for state aid on forms provided by the state board. K.S.A. 72-2549 through K.S.A. 72-2551.

Incentive Bonus Programs

Q. Are we required to have any incentive bonus programs for employees?

A. Yes. K.S.A. 72-2166 establishes the national board for professional teaching standards incentive program. It requires that teachers who are issued a master teacher’s certificate be paid an incentive bonus of $1,000 per year each school year the teacher remains employed by the district and retains a valid master teaching certificate. See the section of this chapter entitled “Certification: Master Teachers.”

Mentor Teachers

Q. Are there any programs available to assist new teachers?

A. Yes. K.S.A. 72-2561 through K.S.A. 72-2564 require the Kansas State Department of Education to establish guidelines for a mentor teacher program. Under this law, a local board may establish and maintain a mentor teacher program for the purpose of providing nontenured teachers with professional support and the continuous assistance of an on-site mentor teacher.

Q. Who can be a mentor teacher?

A. A tenured teacher in the district, selected by the local board on the basis of having demonstrated exemplary teaching ability, may serve as a mentor teacher. The teacher must also participate in and complete a training program for mentor teachers in accordance with state guidelines.

Q. How many teachers can a mentor supervise?

A. Not more than two.

Q. Will state funding be available under this program?

A. Funding may be available through state grants. The law requires that mentor teachers be paid an additional $1,000 for each probationary teacher they mentor each year and authorizes a state grant program.

Q. How do we apply for grants under this program?

A. File a Mentor Teacher Program Application for Reimbursement with KSDE. Applications are generally due by May 1. Moneys received under the grant must be deposited in the general fund and are considered reimbursements for the purpose of school finance.

References & Background Checks

Immunity from Liability

Q. If a school district employer discloses information about a current or former employee to a prospective employer, does the school district have any liability?

A. Maybe. An employer has “qualified immunity” from civil liability if the reference was given in good faith, without malice and the school district has a factual basis for believing it is true. K.S.A. 44-119a.

Q. If the employer discloses only the date of employment, the pay level, job description and duties and wage history, does the employer have any greater protection from civil liability?

A. Yes. If the employer only discloses these four facts then the employer has absolute immunity from civil liability. K.S.A. 44-119a(b).

Qualified Privilege

Q. Are there any other protections?

A. Yes. In Turner v. Halliburton Co., 240 Kan. 1 (1986), the Kansas Supreme Court held in a defamation action brought by an employee against a former employer, a qualified privilege existed with respect to communications between the former employer and an employer with whom the employee had applied for a position.

Q. Why is the privilege “qualified?”

A. Because it can be defeated with a showing the statement to the prospective employer was made with actual malice.

Background Checks Not Required

Q. Are schools required to do any kind of background check on new employees?

A. No. The law passed by the 2000 Kansas Legislature that required background checks of all school employees expired at the end of one year and was not reauthorized.

Q. May we do background checks on our employees or applicants for employment?

A. Yes. The No Child Left Behind Act amended the National Child Protection Act of 1993 to include individuals employed by or who seek to be employed by any school in any capacity as “providers” who can be subject to criminal history background checks.

Q. How do we make arrangements to get a criminal history records check done on applicants for employment?

A. Contact the Kansas Bureau of Investigation for information on criminal history background checks.

Payment for Background Checks

Q. Who pays for the background check?

A. Generally, the school district must pay the cost of the background check.

Fair Credit Reporting Act Requirements

Outside Investigators

Q. Can we hire a private investigator or firm to conduct a background check on applicants for employment in the district?

A. Yes. When you hire an outside investigator to do a background check, the investigator is considered a “consumer reporting agency” and any communication coming to the district from the investigator is considered a “consumer report” for purposes of the federal Fair Credit Reporting Act.

Q. What is a consumer reporting agency?

A. A consumer reporting agency is a business that assembles consumer reports for other businesses.

Q. What is a consumer report?

A. Reference checks, credit histories, driving records or criminal histories can all be considered consumer reports if a school district hires an outside party or firm to gather the information. A consumer report is defined by law as any communication used by a consumer reporting agency bearing on a consumer’s character, general reputation, personal characteristics or mode of living used as a factor to establish the consumer’s eligibility for employment.

School Personnel

Q. What if school personnel do the reference checks?

A. If reference checks are done by school personnel, the Fair Credit Reporting Act does not apply. It is only when a consumer reporting agency is involved that the Act applies.

Compliance with FCRA

Q. What must we do to comply with the Fair Credit Reporting Act if we use an outside agency to do background checks?

A. Before you ask the company to do the background check, the school must:

  • Notify the individual in writing that a report may be obtained. This notice must be on a document consisting solely of this notice, separate from other notices the school may give to the employee or applicant.
  • Get the individual’s written authorization to obtain the report.
Q. After we receive the report, do we have any additional obligations under FCRA?

A. Yes. If you rely on the report to support an “adverse action” such as denying employment, you must do the following:

  • Before taking the adverse action, the school must give the individual a preadverse action disclosure that includes a copy of the report and a copy of a document entitled “A Summary of Your Rights Under the Fair Credit Reporting Act,” a document prescribed by the Federal Trade Commission, the agency that enforces the act;
  • After taking the adverse action, the school must give the individual an “adverse action notice.”
Q. What if we decide not to employ an individual because of information contained in the report?

A. The “adverse action notice” must include the following:

  • The name, address and phone number of the consumer reporting agency (CRA) that supplied the report;
  • A statement that the CRA that supplied the report did not make the decision to take the adverse action and cannot give specific reasons for it; and
  • A notice of the individual’s right to dispute the accuracy or completeness of any information the agency furnished and his or her right to an additional free consumer report from the agency upon request within 60 days.
Q. Does the adverse action notice have to be in any particular form?

A. No. The notice can be given orally, in writing or electronically. The school should ensure it keeps a record to show the appropriate notice was given.

Q. Do we have to do anything before giving the individual a copy of their consumer report?

A. Before giving the school the consumer report, the CRA will require the school to certify that it is in compliance with the FCRA and that it will not misuse any information in the report in violation of federal or state equal employment opportunity laws or regulations.

Q. What if there is nothing negative about the applicant in the report, but something in it that makes us decide not to hire the applicant?

A. The information does not have to be negative. If it is a factor in the decision not to hire the individual, the pre-adverse action disclosure and adverse action notice are required.

Remedies

Q. What remedies does an applicant or employee have under FCRA?

A. The FCRA allows individuals to sue employers for damages in federal court. Prevailing parties can recover court costs and reasonable legal fees. Additionally the Federal Trade Commission may sue employers for noncompliance and obtain civil penalties.

KBI Criminal Background Checks not Subject to FCRA

Q. Does criminal history background information obtained through the KBI fall under the protection of the Fair Credit Reporting Act?

A. Federal Trade Commission advisory opinions suggest they do not. Criminal history reports obtained in this manner are not considered consumer reports because they are done by public agencies carrying out their mandate to protect the public by assisting employers in monitoring individuals hired in a sensitive sector. Similar reports generated by private companies hired to prepare the report would, however, be subject to the FCRA requirements.

Required Employees

Q. What employees or officers is a school district required by law to have?

A. A superintendent, a clerk, a treasurer, and any others the board deems necessary. K.S.A. 72-1134, K.S.A. 72-1135, K.S.A. 72-1136 and K.S.A. 72-1137. State Board regulations also set requirements on employees for accreditation purposes.

Board Clerk

Q. What are the duties of the clerk?

A. The clerk must:

  • Keep an accurate record of the proceedings of the board;
  • Have care and custody of the records, books and documents of the board; and
  • Prepare and submit all reports to or for the board as required by the board or by law. K.S.A. 72-1135.

These are the statutorily defined duties of the clerk. The board may assign other duties as well.

Q. Our board clerk is in the hospital and will be unable to attend our next board meeting. What should we do?

A. Appoint an acting clerk for the meeting.

Q. Can a board member or the superintendent be the clerk?

A. No. The law prohibits the clerk from being a board member, the superintendent or the treasurer. K.S.A. 72-1135.

Q. Is the clerk an employee of the board or of the superintendent?

A. In the capacity of clerk of the board, the clerk is a direct employee of the board and serves at the pleasure of the board. The clerk may also serve the district in other capacities such as secretary to the superintendent, business manager of the district, etc. For these purposes the clerk’s supervisor may be someone other than the board.

Superintendent

Q. Are we required to have a superintendent?

A. Yes. K.S.A. 72-1134 requires the board to appoint a superintendent of schools.

Q. May a board member be the superintendent?

A. No. This is expressly forbidden by law.

Q. Can we appoint an acting superintendent while we do a comprehensive search to find a replacement?

A. Yes. K.S.A. 72-1134(b) authorizes this.

Q. Can we simply go without a superintendent while we do the search?

A. No.

Q. What are the powers of the superintendent?

A. The superintendent has charge and control of the schools of the district, subject to the policies and rules of the board. The board sets policy; the superintendent is in charge of the day-to-day administration of the district.

Q. May we share a superintendent with another school district?

A. Yes. By resolution you may enter into an agreement with another school district to share the services of certificated personnel, including the superintendent. K.S.A. 72-13,102.

Q. Are such agreements subject to any conditions?

A. Yes. The agreement cannot be for a term of more than five years, it is subject to change by the legislature and it may be changed or terminated by the mutual agreement of the boards who have entered into the agreement.

Q. What provisions must such an agreement contain?

A. Each district should consult with their attorney in determining what the agreement should contain. By law the agreement must, at a minimum, specify the following:

  • The duration of the agreement;
  • The manner and method of performance of the responsibilities, duties and functions of boards under the provisions of K.S.A. 72-1134 and Article 54 of Chapter 72 of the Kansas Statutes Annotated (negotiations, continuing contract, due process, etc.)
Q. May we contract with a third-party provider for a superintendent rather than hiring the superintendent as our employee?

A. No. In Attorney General Opinion No. 2002-38, the Attorney General concluded the superintendent must be an employee of the school district.

Treasurer

Q. Who is eligible to be treasurer of the board?

A. Anyone except the superintendent, the clerk, or a board member. The person who is appointed treasurer must furnish a surety bond to the district prior to assuming any duties as treasurer. K.S.A. 72-1136.

Q. What are the duties of the treasurer?

A. The treasurer must:

  • Deposit all school district moneys;
  • Prepare a monthly written report on the finances of the school district; and
  • Prepare other reports as required by the board or by law. K.S.A 72-1136.

Residence

Q. Can a school district legally require employees to live within the school district boundaries?

A. Probably. If it is imposed as a condition of initial employment. Courts have taken divergent views as to whether a residency requirement is a valid factor to be considered in determining if a teacher is qualified for employment. While some courts have struck down requirements that teachers reside within the boundaries of the school district in which they teach, others have sustained residency requirements for public school teachers on the basis of the rational relationship test. The Tenth Circuit, of which Kansas is a part, has upheld residency requirements for administrators but has not considered the issue with regard to teachers.

Q. Can we impose a residency requirement on current employees who reside outside the district?

A. Although case law suggests that a residency requirement as a condition of initial employment may be upheld, requiring employees to move after they’ve been employed is more difficult. Unless you can show a compelling interest which would justify the requirement, it is unwise to impose such a requirement on current employees who have been allowed to live out of district.

Q. Can we require employees to send their children to school in our district even if they aren’t residents?

A. No. Such a requirement would infringe on the constitutional rights of the employee as a parent.

Search & Seizure

Q. It is my understanding that the Fourth Amendment to the U.S. Constitution may limit our ability to search employees. What does that amendment provide?

A. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause…”

Unreasonable Searches Prohibited

Q. Does the Fourth Amendment prohibit all searches unless we have a warrant?

A. No. The Fourth Amendment forbids only unreasonable searches. The legality of a search, therefore depends on what is reasonable under the circumstances.

Q. How do courts determine if a search is reasonable or unreasonable?

A. To determine the reasonableness of a search, the court balances: the need to search (maintain discipline and security; preserve a proper educational atmosphere) against the invasion of privacy which the search entails. Only action which invades an individual’s justifiable expectation of privacy constitutes a search.

School Standard: Reasonable under the Circumstances

Q. I know that the police need probable cause and a warrant to search but do the same rules apply in the school setting?

A. No. In New Jersey v. T.L.O., 105 S.Ct. 733 (1985), a case involving searches of students, the Supreme Court concluded that warrants and probable cause are not necessary in the school setting and that the legality of the search should depend simply on the reasonableness of the search under the circumstances. In O’Connor v. Ortega, 480 U.S. 709 (1987), the Supreme Court extended the application of the T.L.O. test to searches by government employers or supervisors of the personal property of their employees.

Where police officers are involved in the search at the request of school officials, this standard probably will apply. However, if police officers, rather than school officials, initiate the search, probable cause and a warrant are probably still required.

Q. Do employees have an expectation of privacy in their desks, file cabinets, etc.?

A. The extent to which they have an expectation of privacy may depend on your office practices, or policies and regulations. Public employees’ expectation of privacy in their offices, desks and file cabinets, may be reduced by actual office practices and procedures, or by legitimate regulation. If employees have reason to believe that only they have access to a locked desk or file cabinet drawer, there is probably an expectation of privacy.

Q. Under the T.L.O. reasonableness test, when is a search okay?

A. In order to pass the T.L.O. reasonableness test:

The search must be justified at its inception (i.e., there must be reasonable suspicion that the search will turn up evidence that the searchee is violating the law or school rules);

The search must be reasonably related in scope to the circumstances which justified the interference in the first place (i.e., related to the objectives of the search and not excessively intrusive).

Types of Searches

Q. What types of searches are covered in searches of employees?

A. Searches of employees may include noninvestigatory work-related intrusions or investigatory searches for evidence of suspected work-related employee malfeasance or misconduct. O’Connor v. Ortega, 480 U.S.709, 725-26 (1987). In either case, courts have recognized that wide latitude must be given to public employers.

Q. What constitutes reasonable suspicion in this context?

A. Ordinarily in this situation, a search will be justified at its inception where there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct or that the search is necessary for a noninvestigatory work-related purpose such as to retrieve a needed file.

Supplemental Contracts

Meetings before or after the School Day

Q. Can teachers be required to attend meetings scheduled before or after the contractual school day?

A. Probably. The answer to this question will depend on the negotiated agreement, the past practice of the district and possibly the nature of the meeting.

Modifying Curriculum

Q. Can teachers be required to individualize a course for special education students or for slow learners who are not special education students?

A. Yes. In both cases, this is part of the teacher’s primary duty to teach all of the students in his or her classroom.

Sponsorships

Q. Can certified staff be required to assist with sponsorship of extracurricular activities, class sponsorships, etc.?

A. No. A teacher cannot be required to accept assignments which are covered by supplemental contracts. A teacher’s primary teaching contract cannot be offered on the condition that the teacher accept a supplemental contract nor can a teacher be fired for refusing to do supplemental duties.

Supplemental Assignments

Q. What assignments are supplemental duties?

A. K.S.A. 72-2217 defines a supplemental contract as a contract for services other than those covered in the principal or primary contract. These services may include, but are not limited to, coaching, supervising, directing and assisting extracurricular activities, chaperoning, ticket taking, lunch room supervision and other similar and related activities.

Q. Can we put primary and supplemental assignments all in one contract?

A. Yes. But it is preferable to have two separate contracts. If all duties are listed in one document, the court will determine which duties are primary and which are supplemental. Swager v. U.S.D. No. 412, 9 Kan. App. 2d 648 (1984).

Q. Can teachers agree to be assigned supplemental duties in a negotiated agreement?

A. No. In Swanson v. U.S.D. No. 241, 11 Kan. App. 2d 171 (1986), the court found that language in a negotiated agreement which required teachers to accept supplemental assignments violated K.S.A. 72-2217 and was unenforceable. They found that a teacher who refused to accept a supplemental duty under the terms of the negotiated agreement could not be fired for refusing to be assigned a supplemental duty.

Not Part of Teaching Contract during School Day

Q. If supplemental duties are scheduled during the school day can we require teachers to accept those duties to fill out their full-time teaching contract?

A. No. This situation was addressed by the court in Hachiya v. U.S.D. No. 307, 242 Kan. 572 (1988). In that case two teachers resigned from junior high coaching positions. Practice sessions for these sports were held during the last period of the school day and students received a grade for the activity. When they resigned from their coaching contracts, the board offered them 6/7 time contracts, arguing that the practice period, which was a graded activity, was part of the primary contract. The court disagreed and determined that the teachers had achieved tenure in a full-time contract and were entitled to remain on full-time contracts.

In order to avoid this problem, school districts should make sure that the primary contract offered to the teacher accurately reflects the primary duties, and cover the remainder in a supplemental contract, e.g., originally offer a 6/7 contract and a supplemental contract which includes pay for the supplemental duties performed during the school day.

Not Required to Assign

Q. We have a teacher whose contract is being reduced from full-time to part-time because of declining enrollment. Are we required to assign him supplemental duties to create a full-time position?

A. No. In Butler v. U.S.D. No. 440, 244 Kan. 458 (1989), the Kansas Supreme Court held that just as a school district cannot require a teacher to accept a supplemental contract, a teacher cannot demand a supplemental contract.

Other Similar and Related Activities

Q. What does the statute mean by “other similar and related activities?”

A. In NEA-Goodland v. U.S.D. No. 352, 13 Kan. App. 2d 558 (1989), a teacher argued that supervision of noon recess was a similar activity to lunch room supervision or other tasks specifically listed in the statute. The court did not agree, concluding that noon recess duty, like mid-morning or mid-afternoon recess duty, was intricately related to the education process and controlled by the primary contract. In reaching this conclusion the court noted that any teacher’s supervision of children participating in extracurricular activities must be governed by a supplemental contract. But, any teacher supervision of children which is entwined with the duty of educating should be considered a part of the teacher’s primary teaching obligation.

Supplemental Pay for Primary Duty

Q. May we have supplemental pay for duties which are primary duties?

A. Yes. But the board should carefully consider which duties are required to fall under a supplemental contract and the primary duties for which it is willing to give additional compensation. Supplemental pay for a primary duty is subject to continuing contract law while supplemental contracts are not.

Not Subject to Continuing Contract

Q. Are we required to give notice of our intent to nonrenew a supplemental contract on or before the third Friday in May?

A. No. Supplemental contracts are not subject to continuing contract or tenure laws. Unless you have offered a supplemental contract for the next year and the individual has accepted it, you are under no obligation to offer a contract. The individual who is not offered a supplemental contract has no right to a hearing.

Contractual Obligation during Term of Contract

Q. A teacher in our district accepted a supplemental contract for coaching football. Halfway through the season, he refuses to continue coaching. Do we have any recourse?

A. Once the teacher accepts the contract, he has a contractual obligation to perform under the contract. The teacher breaches the contract when he refuses to perform. You may quit paying the teacher under the supplemental contract and you may bring a breach of contract action against the teacher. In this situation it is unclear if the teacher could be fired from all of his duties for neglect of duty or insubordination as a result of his failure to perform the supplemental contract. However, the teacher’s supplemental contract clearly could be terminated.

Supplemental Contracts in RIF Situation

Q. Can we consider supplemental contracts when deciding which teachers to nonrenew in a RIF situation?

A. Probably. A teacher’s overall contribution to the school, including involvement in supplemental activities, should be a valid factor to consider.

Tenure

Application of the Kansas Due Process Procedure Act
Q. Which teachers are entitled to “tenure” (i.e., due process protections under the Kansas Due Process Procedures Act)?

A. Since the 2014 amendments, the Kansas Due Process Procedures Act no longer applies to teachers in public school districts in the state of Kansas. Any due process rights school teachers have are defined in your negotiated agreement with the teachers.

The protections of the Kansas Due Process Procedures Act apply only to postsecondary teachers at technical colleges, community colleges or the Washburn Institute of Technology:

  • Who complete three consecutive years of teaching in the postsecondary institution and are offered a fourth contract; and
  • Who complete two consecutive years of teaching in your institution, and are offered a third contract, if they have previously achieved tenure in another Kansas postsecondary institution. K.S.A. 72-2260.

Attaining Tenure

Q. Can the two- or three-year time period ever be extended?

A. No. Provisions that allowed for extension were removed from the law.

Q. A teacher taught in our college for more than three years, left for a few years, and now desires to return. How long before she achieves tenure?

A. You hire her back with tenure. Once an employee achieves tenure in a district, a break in employment does not alter the rights. Arneson v. U.S.D. No. 236, 8 Kan. App. 2d 178 (1982).

Q. A teacher taught in our college for two years, took one year off and now wants to return. When will she be tenured?

A. The teacher must teach for three more consecutive years to achieve tenure. Because the break in employment occurred in the first two years of teaching, which were not consecutive to the next year of teaching, the first two years do not count in the tenure calculation.

Part-Time Teachers

Q. A teacher has been teaching part-time for three years in our college. Does the teacher have tenure?

A. Yes. The teacher has tenure for purposes of the Teacher Due Process Procedures Act. Schmidt v. U.S.D. No. 497, 231 Kan. 267 (1982).

Q. Does a part-time tenured teacher have a right to a full-time position over a nontenured teacher in a RIF situation?

A. The law is unclear whether a teacher who has obtained tenure through part-time employment should receive a full-time position to the exclusion of a nontenured full-time teacher. The safest option would be to offer the position to the tenured teacher, despite the part-time status.

Q. A full-time tenured teacher at our college has requested a half-time position for one year. If we grant the request, will we be required to provide her a full-time position next year?

A. Possibly. There is no clear answer to this question. Arguably, the teacher would only be tenured in a half-time position. If the board does not desire to guarantee a full-time position the following year, the board should request and obtain a written resignation from the full-time position. The board’s position can be further strengthened by giving the teacher a letter confirming the teacher’s resignation and stating that the board cannot guarantee the teacher full-time employment in the future. A copy of the letter should be retained by the district.

Anniversary Date

Q. We hired a teacher at our college in January two years ago and at the end of this year the teacher will have completed 2½ consecutive years of teaching. When does she become tenured?

A. On the anniversary date of her contract. In other words, if you offer the teacher a contract for the coming school year, she will be tenured in January. If you have concerns about the teacher, your safest option would be to give her notice of your intent to nonrenew by May 1 of her second complete teaching year.

Use of Credit Cards by Employees

Q. Can the school district obtain credit cards in the school’s name for use by our employees?

A. Yes. The board must adopt a policy that provides for the acquisition of credit cards in the name of the school district and for use of the credit cards by designated officers and employees of the school.

Policy

Q. What does a policy on credit card use have to contain?

A. The policy must prescribe limitations and restrictions on the use of the credit cards and on the amounts and categories of expenses which may be paid through the use of the credit cards. The policy must also provide for the maintenance of a public record of all expenditures for payment of charges incurred by the school district through use of credit cards. K.S.A. 72-1175. In addition to these statutory requirements, it is recommended that the board:

  • Establish the amount which can be charged in any given period of time, what may be purchased and by whom;
  • Establish a timeframe for submitting receipts and logs of use;
  • Have credit card purchases made by employees reviewed by the business office and/or superintendent before they are submitted to the board for payment;
  • Have credit card purchases made by the superintendent reviewed by the board president or a designated school board member prior to submission to the board for payments; and
  • State the penalties or consequences for violation of the board’s rules for credit card use in the policy.
Q. Can the credit cards be used by teachers to buy supplies for their classrooms?

A. Yes. If the policy allows the school’s credit card to be used for this purpose.

Q. Can the credit cards be used to cover tuition, hotel and other expenses of school employees when they attend school-related conferences or seminars?

A. Yes. If the policy allows the school’s credit card to be used for this purpose.

Requirements for Use

Q. Should we require school employees to do anything before or after using credit cards?

A. Yes. You should require school employees:

  • To officially sign all credit card purchases;
  • To make only school-related purchases, not personal purchases, on school credit cards;
  • To submit credit card receipts, inI loovoices and logs to the school district’s business office on a regular basis;
  • To report all lost or stolen credit cards immediately;
  • To require crediting of the credit card account, not cash, if an item purchased with the credit card is returned; and
  • To ensure merchants are aware of the school’s sales tax exemption when purchasing merchandise.

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School Law Handbook

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School Law Handbook

Chapter 1 Board Meetings

Agendas
Conflict of Interest
July Organizational Meeting
Kansas Open Meetings Act

Agendas

Q: Are we required to have an agenda for board meetings?

A: No. The law does not require a board to have an agenda for a meeting, but if an agenda is prepared, it must be made available to the public.

Amending the Agenda

Q: Once an agenda for a regular meeting is printed can the agenda be amended?

A: Generally, yes. The board can amend the agenda, so long as it is not intentionally leaving items off the agenda to deceive the public. This would potentially result in a violation of the Kansas Open Meetings Act. In Klein v. Johnson County Bd. Of County Commissioners, 2003 WL 221760 (Kan. App. 2003), the court found the failure to include a planned topic of discussion on the agenda violated KOMA.

Q: When can the agenda be amended?

A: Unless otherwise limited by board policy, an agenda may be amended at any time during a meeting. To the extent possible, it is preferable to amend the agenda at the beginning of the meeting.

Q: May we amend the agenda of a special meeting?

A: No. A special meeting must be called for a specific purpose; the agenda should not be amended.

Providing Copies of the Agenda

Q: Our board will hold a special meeting in three days. Must we provide copies of the agenda and supporting documents with the notice?

A: No. While board members are entitled to written notice of the time, place, and purpose of a special meeting, only notice of the time and place of the meeting must be given to other persons who have requested notice; a copy of the agenda and supporting documents need not be attached. However, pursuant to the Kansas Open Records Act, a copy of the agenda and supporting documents which are not exempt from the open records requirement, must be provided upon request.

Conflict of Interest

What a Board Member with a Conflict Should Do

Q: If I have a conflict of interest and do not wish to vote, what should I do?

A: Leave the meeting until voting on the issue has concluded. Because
K.S.A. 72-1138 requires an abstaining vote to count as a “no” vote, this is the recommended procedure a board member should follow when there is a conflict of interest.

Legal Definition of a Conflict

Q: When does a board member have a conflict of interest?

A: Legally a board member has a conflict of interest only if the board member has a substantial interest in a contract. There may be other issues in which there is an ethical or moral conflict, but there are no legal restrictions on a board member’s actions on these issues.

Q: What is a substantial interest in a contract?

A: K.S.A. 75-4301a defines “substantial interest.” An individual is deemed to have a substantial interest in the following situations:

  • If an individual or his or her spouse, either individually or collectively, has owned within the preceding 12 months a legal or equitable interest exceeding $5,000 or 5 percent of any business, whichever is less;
  • If an individual or his or her spouse, either individually or collectively, has received during the preceding calendar year compensation which is or will be required to be included as taxable income on federal income tax returns of the individual and spouse in an aggregate amount of $2,000 from any business or combination of businesses;
  • If an individual or his or her spouse, either individually or collectively, has received in the preceding 12 months, without reasonable and valuable consideration, goods or services having an aggregate value of $500 or more from a business or combination of businesses;
  • If an individual or his or her spouse holds the position of officer, director, associate, partner or proprietor of any business, other than certain 501(c) tax exempt organizations, irrespective of the amount of compensation received by the individual or individual’s spouse; and
  • If an individual or his or her spouse receives compensation which is a portion or percentage of each separate fee or commission paid to a business or combination of businesses, the individual has a substantial interest in any client or customer who pays fees or commissions to the business from which fees or commissions the individual or his or her spouse, either individually or collectively, received an aggregate of $2,000 or more in the preceding calendar year.
Q: How is a business defined?

A: “Business” means any corporation, association, partnership, proprietorship, trust, joint venture, and every other business interest, including ownership or use of land for income.

Duty to Declare a Conflict

Q: Can the board require that a board member declare a conflict of interest?

A: No. The duty is on the board member to declare the conflict.

Q: Can I, as a board member, do anything if I believe a board member has a conflict and refuses to do anything?

A: You may talk with the board member about your concerns.

Advisory Opinions

Q: Can we get an opinion from anyone on whether certain actions would create a conflict?

A: You may seek an opinion from the Kansas Governmental Ethics Commission. A request for an advisory opinion should be sent to the Secretary of State who in turn notifies the Commission. K.S.A. 75-4303a.

Contracting with the School District

Q: Does this mean a board member can never contract with the school district?

A: No. It simply means the board member cannot participate as a board member in the making of the contract. A local governmental officer or employee does not make or participate in the making of a contract if the officer or employee abstains from any action in regard to the contract. Further, the prohibition does not apply to:

  • Contracts let after competitive bidding has been advertised for by published notice; and
  • Contracts for property or services for which the price or rate is fixed by law. K.S.A. 75-4304.

Penalty for Violations

Q: What happens if a board member violates the conflict of interest law?

A: If convicted, the board member would forfeit his or her board office. K.S.A. 75-4304(e).

Participation in Negotiations

Q: Can a board member participate in negotiations if his or her spouse is a teacher in the same school district?

A: Yes. This question was posed to the Kansas Governmental Ethics Commission in Opinion No. 1991-17. The Commission noted that the law prohibits a school board member from participating in the making of a contract with any person or business by which the board member is employed or in whose business the board member has a substantial interest. Because a governmental unit is not included in the definition of “business” under the conflict of interest law that applies to local units of government, the Commission concluded a board member is not precluded from serving on the board’s negotiating team in this circumstance.

July Organizational Meeting

Election of Officers

Q: When do we elect our president and vice president?

A: Annually at the July organizational meeting. K.S.A. 72-1133.

Scheduling Board Meetings

Q: When do we set our board meeting dates, times and locations?

A: Annually at the July organizational meeting. K.S.A. 72-1138.

Q: Are we required to have a certain number of meetings of the board?

A: You must meet at least monthly. Beyond that there are no further requirements.

Other Appointments and Actions

Q: Are there other actions we should take at the July organizational meeting?

A: Yes. You should do the following:

  • Appoint a clerk and treasurer;
  • Appoint a KPERS representative, a food service program representative, a deputy clerk, and a school attorney;
  • Appoint an impact aid representative if your district receives impact aid;
  • Appoint a hearing officer for free and reduced price meal application appeals;
  • Appoint representatives to any service center boards or AVTS boards, if necessary;
  • Designate the individuals in each building responsible for reporting children truant pursuant to K.S.A. 72-3121;
  • Designate a coordinator for homeless children duties;
  • Designate compliance coordinator(s) for federal anti-discrimination laws including Title VI, Title VII, Title IX, ADA and Section 504;
  • Designate the official depository for school district funds and review bank signatures on file, K.S.A. 9-1401;
  • Adopt the annual waiver of requirements for generally accepted accounting principles, K.S.A. 75-1120a;
  • Adopt an early payment request policy and designate an employee authorized to make such payments, K.S.A. 12-105b(e);
  • Establish student fees, K.S.A. 72-3353, student meal prices, textbook rental fees, K.S.A. 72-3346 and the reimbursement rate for mileage, K.S.A. 75-3203;
  • Adopt a school calendar and designate inclement weather make-up days if your district wants them, K.S.A. 72-3115;
  • Adopt a resolution to establish petty cash accounts and petty cash limits, K.S.A. 72-1177;
  • Adopt guidelines for activity funds and gate receipts, K.S.A. 72-1178;
  • Rescind all policy actions from the previous year and adopt current written policies as those that will govern for the school year;
  • Approve district, school and/or athletic handbooks;
  • Select the official district newspaper for publication of official notices, K.S.A. 64-101.
Q: Are there other things we should do at the July meeting?

A: The Kansas State Department of Education suggests you should also:

  • Review units of credit offered at each attendance center to make sure each center is in compliance with accreditation rules and regulations;
  • Review the preliminary budget;
  • Review records in storage for possible destruction of old records pursuant to K.S.A. 72-1629;
  • Review the district’s insurance policies, including types of coverage, names of companies, and schedule for renewal;
  • Review the capital outlay mill levy authority to see if renewal is needed;
  • Review the immunization policy to ensure it is in compliance with statute. K.S.A. 72-6261.

Official Newspaper

Q: Can we select any newspaper to be our official newspaper?

A: No. The newspaper must be one having general circulation in the district. This is defined as one that:

  • Is published at least weekly 50 times each year;
  • Is entered at the post office in the school district of publication as periodical class mail matter;
  • Has general paid circulation on a daily, weekly, monthly or yearly basis in the school district;
  • Is not a trade, religious or fraternal publication; and
  • Is published in the school district publishing the official publication or notice. K.S.A. 64-101.
Q: We have a new weekly newspaper just starting up in our town. May they be our official newspaper?

A: No. The newspaper must have been published at least weekly 50 times per year for one year before you can consider it a newspaper having general circulation in the district. K.S.A. 64-101(c)(1).

Q: No newspaper is published in our district. What should we do?

A: If there is no newspaper published in the school district, you may use a newspaper which is published in Kansas and has general circulation in the school district. K.S.A. 64-101(c)(4).

Kansas Open Meetings Act

Purpose

Q: What is the purpose of the Kansas Open Meetings Act?

A: Its purpose is to ensure that the proceedings of public governing bodies are open to the public. K.S.A. 75-4317. The law requires a board of education to:

  • Conduct its affairs and transact its business in meetings which are open to the public;
  • Refrain from taking any binding action by secret ballot;
  • Provide notice of the date, time and place of any regular or special meeting to anyone requesting such notice;
  • Make the agenda, if one is prepared, for any meeting available to anyone requesting the agenda;
  • Recess into executive session only for those reasons stated in the statute.

What Constitutes a Meeting

Q: What is a meeting for KOMA purposes?

A: A meeting is defined as “any gathering or assembly in person or through the use of a telephone or any other medium for interactive communication by a majority of the membership of a public body or agency subject to this act for the purpose of discussing the business or affairs of the public body or agency.” K.S.A. 75-4317a.

To be a meeting subject to KOMA’s requirements, the gathering must meet three conditions:

  • It must include four or more board members. Because by law school boards consist of seven members, four members constitute a majority;
  • It must be for the purpose of discussing school board business;
  • It must involve interactive communication.

Quasi-judicial Capacity

Q: Are there any exceptions?

A: One exception to this definition occurs when the board sits in a quasi-judicial capacity (e.g., when a student appeals a long-term suspension or an expulsion to the board). When deliberating on matters relating to a decision involving quasi-judicial functions, the board is not required to have an open meeting. However, any vote taken as a result must occur in open session. K.S.A.75-4318(g)(1).

Social or Informal Gatherings

Q: What about social gatherings?

A: Generally, there will be no meeting under KOMA if four or more board members happen to be at the same social gathering, be it a wedding, a concert, a holiday party or a golf tournament. On these occasions, even though four or more board members may be present, the purpose of the gathering is not discussing school business. On the other hand, if the four or more board members, once at the otherwise innocuous social event, retreat to a quiet corner to discuss school business, a violation has arguably occurred. To avoid a violation, board members should refrain from discussing school business with other board members at social gatherings.

Q: What about informal gatherings of the board?

A: Although board members may comply with KOMA for the formal board meeting, violations may occur if four or more board members informally gather and discuss business before, after, or during recesses of the meeting. Coggins v. Public Employee Relations Board, 2 Kan. App. 2d 416 (1978).

Meeting with State Employees

Q: Four members of the board of education desire to drive to Topeka to visit with KSDE personnel. Will this violate the Kansas Open Meetings Act?

A: In order to avoid a violation of the KOMA, the board of education should provide notice of the meeting to all persons who have requested notice of their meetings. Further, board members should not discuss board business while traveling. If three or fewer members of the board were meeting with the state employee, the potential for a violation would be eliminated.

Meetings Initiated by Outside Groups

Q: What if outside groups initiate the meeting?

A: When outside groups–the Chamber of Commerce, the PTO, the local NEA, or others–request that four or more board members attend one of their meetings for the purpose of discussing school issues, the gathering is a meeting of the board for the purposes of KOMA. Notice of the meeting should be given to anyone who has requested notice under KOMA. The meeting does not need to be treated as a board meeting in other respects (i.e., the clerk does not need to take minutes).

Retreats or Study Sessions

Q: Are retreats or study sessions of the board, where no action will be taken, meetings for KOMA purposes?

A: Yes. Frequently boards of education decide to have retreats or study sessions for setting goals and future planning. At these sessions, discussion is informal and no votes are taken. Regardless of the formality or informality of the session, it is a meeting at which the affairs of the school district are discussed and therefore is a meeting which must be open to the public under the Act.

Conference Calls

Q: What about conference calls with four or more board members?

A: Telephone calls among four or more board members who discuss school business are meetings subject to KOMA.

Serial Meetings

Q: As a board member, may I call four or more other board members, one at a time, to discuss a particular issue?

A: It depends. Serial meetings are subject to KOMA’s openness requirement, but only if:

  • They collectively involve a majority of the membership of the board;
  • They share a common topic of discussion concerning the business affairs of the school board; and
  • They are intended by any or all of the participants to reach agreement on a matter that would require binding action to be taken by school board. K.S.A. 75-4318(f).
Q: For serial meetings, does the conversation have to be contemporaneous?

A: No. Just interactive.

Q: What if a parent talks to four or more of us about the same issue?

A: If a third party, such as a parent or a newspaper reporter, communicates with four or more board members in a series of communications about the same issue, KOMA is not violated, unless the third party is acting at the request of a board member.

Q: Can four or more of us talk about adding items to the agenda?

A: According to the Attorney General, discussion of purely procedural issues, such as adjustments in the agenda, even if they involve more than a majority of members of the board, are not the type of topics contemplated for KOMA coverage. Such conversations do not violate KOMA unless they lead to discussion of the substantive issues involved. In other words, if a board member asks the board president to add an item to the agenda, but only if there will be enough votes to pass the item, and the board president then calls various other members to determine how they would vote on the issue, a violation occurs.

Q: Can the superintendent or another staff member brief board members on an issue without violating KOMA?

A: Yes. A staff member can brief all board members on an issue and elicit their comments and concerns on the issue. The staff member cannot, however, discuss one board member’s concerns and comments with another board member in a way that makes a majority of the membership aware of and able to respond to each other’s concerns outside of the parameters of an open public meeting.

Q: What about a “chat room” for board members on our computer system?

A: Interactive electronic communication between four or more board members in this manner would constitute a meeting.

Written Memoranda

Q: What about written memoranda?

A: Although KOMA does not prohibit the exchange of written materials, it is likely that the use of written documents to prevent discussion of an issue at a public meeting would be viewed unfavorably by those who enforce KOMA.

Committee Meetings

Q: Are meetings of committees of the board subject to KOMA?

A: Yes. Because the school board is a taxing subdivision of the state which receives public funds, any body subordinate to the board, whether or not it receives public funds, is automatically covered by KOMA. K.S.A. 75-4318(a).

Meetings for Negotiations

Q: Are negotiations meetings subject to KOMA?

A: Generally, yes. The Kansas Professional Negotiations Act provides that meetings, conferences, consultations and discussions between the teachers’ organization and the board, or between their respective negotiating teams, during the course of professional negotiations are subject to KOMA. Hearings before the Secretary of Human Resources to determine the existence of an impasse are also meetings which must be open to the public. Certain meetings held in connection with the negotiation process, however, are specifically exempt from KOMA’s provisions:

  • Meetings, conferences, consultations and discussions held by the secretary for investigation of the question of the existence of impasse;
  • Meetings, conferences, consultations and discussions held in the course of and in connection with mediation and fact-finding; or
  • The meeting required between the parties after the fact-finding report is submitted to the parties. K.S.A. 72-2228(c).

Notice

Q: In what form must notice be given under KOMA?

A: The notice need not be in any particular form, but it must be personal notice. K.S.A. 75-4318(b). Contrary to popular belief, publishing notice of meetings in the local newspaper or having the time of meetings announced on a local radio station does not fulfill the notice requirements. To comply with KOMA, written notice may be mailed directly to the person requesting notice or oral notice may be given either in person or by telephone. Providing a single notice containing the list of all meetings suffices under KOMA, but the board still must provide additional notice for any meetings not included on the original list.

Q: How long is the request for notice effective?

A: Once notice is requested, the request continues in effect until it is withdrawn. The school board, at its discretion, may require that the request for notice be renewed at the beginning of each fiscal year.

Q: Can notice be discontinued?

A: Yes. However, before discontinuing notice, the school board must notify the requester that notice will be discontinued unless the person submits a new request. K.S.A. 75-4318(b)(3).

Q: Who has a duty to see that requesters get notice?

A: While the task of notification generally falls to the clerk of the board or the school district’s secretarial staff, the statutory duty to furnish notice rests with the board president or other person calling the meeting. K.S.A. 75-4318(c).

Q: Are there time restrictions on giving notice?

A: Nothing in the statutes requires that notice to requesters be given within a specific period of time. In general, the time at which notice should be given is a question of reasonableness. If the board attempts to provide notice in a reasonable manner, it substantially complies with KOMA. If, on the other hand, the board consistently gives notice five minutes before the meeting begins, a violation might be found by those charged with enforcement of the Act. If there is not time to mail written notice and a requester cannot be reached by telephone or in person, all attempts to notify the requester should be documented and maintained in a file.

Q: Must we send agendas and supporting materials to KOMA requesters?

A: No. Nothing in Kansas law requires a board of education to prepare or publish an agenda for its meetings, but in practice, most boards do. If an agenda is prepared, under KOMA it must be “made available” prior to the meeting, to any person requesting it. K.S.A. 75-4318(d). The law does not require that the agenda be sent to requesters; posting the agenda in the central office in a place   where persons who wish to see the agenda can read it or making the agenda available at other public places fulfills the requirements of the law.

An agenda is a public record. Any person may request access to or a copy of the agenda under the Kansas Open Records Act (KORA), K.S.A. 45-215, et seq. The school must comply with the request as soon as possible and may charge a reasonable fee for copying pursuant to their open records policy.

The same rules apply to materials distributed to board members with or in addition to the agenda. Some materials distributed to board members may indeed be public records. However, other materials may be exempted. Consult the statute, or the questions dealing with KORA in the “School Districts” chapter of this Handbook to determine which records are exempt from KORA requirements.

Recording Meetings

Q: Do members of the public have a right to record our meetings?

A: If anyone wants to record the meeting, KOMA requires that “the use of cameras, photographic lights and recording devices shall not be prohibited.” K.S.A. 75-4318(e). The option to record applies only to open meetings. There is no right to record executive sessions.

Q: Do we have any control over how recording devices are used?

A: Yes. The board may design reasonable rules for the use of these devices to ensure the orderly conduct of the meeting.

Meeting Out of District

Q: Can we hold a meeting out of the district?

A: While KOMA places no requirements on meeting locations, if a meeting is held in a place which is virtually inaccessible to most patrons, it is likely the courts would conclude that the choice of meeting location was designed to subvert KOMA and that a violation of the Act had occurred. Boards should attempt to hold meetings in a place that is accessible to patrons.

Meetings to Discuss Consolidation

Q: Are there any special rules for conversations about consolidation of school districts?

A: Yes. Boards considering consolidation are authorized to hold meetings to discuss and vote on issues related to consolidation within the boundaries of any of the districts involved. K.S.A. 72-708.

Executive Session

Q: When can we go into executive session?

A: Although KOMA promotes openness and requires that all formal action by a board of education be taken in open session, the Act does allow closed or executive sessions in which the board may discuss matters for which there are statutorily prescribed justifications. In each case the discussion in executive session is allowed because the privacy rights of individuals deserve protection, or because the public interest is better served by not requiring discussion of the topic in open session.

Whether to discuss an item in executive session rests with the discretion of the board. Under the statute, a board may recess into executive session for discussion using the following justifications:

  • To discuss personnel matters of non-elected personnel;
  • For consultation with an attorney for the board which would be deemed privileged in the attorney-client relationship;
  • To discuss matters relating to employer-employee negotiations;
  • To discuss confidential data relating to financial affairs or trade secrets of corporations, partnerships, trusts and individual proprietorships;
  • To discuss matters relating to actions adversely or favorably affecting a student;
  • For preliminary discussions relating to the acquisition of real property; or
  • To discuss matters relating to security measures, if the discussion of such matters at an open meeting would jeopardize security measures, that protect: (A) Systems, facilities or equipment used in the production, transmission or distribution of energy, water or communications services; (B) transportation and sewer or wastewater treatment systems, facilities or equipment; (C) a public body or agency, public building or facility or the information system of a public body or agency; or (D) private property or persons, if the matter is submitted to the agency for purposes of this paragraph. K.S.A. 75-4319(b).

Additional justifications for going into executive session listed in the statute apply only to specifically designated boards, not boards of education.

Q: Can we vote on issues in executive session?

A: Under the Kansas Open Meetings Act, any binding action taken by the board must be done in open session at an open meeting. K.S.A. 75-4318(a). You may reach consensus in executive session, but you may not vote or take binding action.

Q: Can our board hold an executive session without having a regular or special board meeting?

A: No. The board must be in open session before and after the executive session.

Nonelected Personnel

Q: May we discuss personnel policies in executive session?

A: Generally, not. The personnel exception applies only to discussion of specific individuals to protect their privacy rights. Discussion of policies for personnel in general should occur in open session.

Attorney-Client Privilege

Q: May we discuss correspondence from our attorney in executive session under the second exception?

A: Not unless the attorney is present.

Q: Does the attorney have to be physically present?

A: No. The attorney could be “present” by telephone or other means of interactive communication.

Attendance at Executive Session

Q: Who has a right to be in an executive session?

A: A board member, and only a board member, has a right to attend an executive session. Board members cannot vote to exclude other board members from an executive session.

Q: May we invite others into executive session?

A: The board may invite others to attend the executive session, but only if those invited will provide information or participate in its deliberations. Persons other than board members cannot be invited to attend the session simply as observers.

Q: Does the superintendent have a right to be in executive session with the board?

A: No. The superintendent may be invited into executive session with the board if he or she provides the board with information or recommendations. However, the superintendent has no right to be in executive session unless the board requests it.

Q: Does the clerk have a right to be in executive session with the board?

A: No. The clerk will generally be excluded from executive session but must be present to record the motion for going into executive session and the time at which the board reconvenes in open session. The clerk may be invited into executive session to provide information to the board.

Q: Can the board invite newly elected, but not yet serving, board members into executive session for the purpose of observing executive session?

A: Generally, not. Unless the newly elected board members are there for a participatory purpose, not merely observers to see how executive sessions work. They should not participate in executive sessions generally because they have no duty to keep executive session discussions confidential and have no immunity from liability for things they might say.

Confidentiality of Executive Session

Q: Should board members keep information discussed in executive session confidential?

A: Boards of education recess into executive session to protect either the public interest or the privacy interest of a particular individual. A board member who publicizes the matter addressed in executive session violates the public trust.

In matters where individual privacy rights are involved, discussion outside of executive session may result in the violation of an individual’s privacy right by the individual board member making the statements. In other words, by discussing these matters outside of the executive session, a board member may subject himself to being sued as an individual and have personal liability. The immunity which protects board members from liability for things said in executive session of the board meeting would not apply if statements are made outside of the executive session.

Q: May a board member divulge what was discussed in executive session at a due process hearing or in court?

A: Maintaining the confidentiality of an executive session should not be confused with any evidentiary privilege. The fact that the board discusses an item in executive session does not mean the substance of that conversation cannot be revealed under subpoena in hearings or court proceedings.

Penalties

Q: What are the penalties for violating KOMA?

A: Substantial civil penalties of up to $500 per violation may be ordered against individual board members. Further, any action taken by a board in a meeting which is not in substantial compliance with the requirements of the Act may be voided in an action brought by the county attorney or attorney general within 21 days of the meeting. The district court of the county in which the meeting occurs also has broad powers to issue injunctions and other equitable relief to achieve compliance with the Act. A violation of KOMA is grounds for recall of a board member under the recall statutes, or ouster from office. K.S.A. 75-4320.

Q: Will the school district indemnify me for penalties if I violate KOMA?

A: No. The liability for penalties is personal liability. The school district can neither pay the penalties nor indemnify board members for these costs.

Enforcement

Q: Who may seek enforcement of KOMA?

A: Any person, not just the attorney general or county attorney, may apply to the district court for enforcement of the Act. K.S.A. 75-4320a. However, only the Attorney General or county attorney may seek the imposition of civil penalties or the voidance of board action. K.S.A. 75-4320.

Q: How are complaints of KOMA violations submitted to the Attorney General?

A: They must be submitted on a form developed by the Attorney General. The person bringing the complaint must set forth the facts the person believes constitute a violation of KOMA and attest to the facts under penalty of perjury. K.S.A. 75-4320e.

Q: What actions may the court take in a KOMA action?

A: The district court has authority to enforce KOMA by injunction, mandamus, declaratory judgment or other appropriate order. K.S.A. 75-4320a(a). The attorney general or county or district attorney may also resolve the matter by accepting a consent judgment, which must be approved by the district court. K.S.A. 75-4320f.

Q: Who bears the burden of proof in a KOMA action?

A: The burden of proof is on the school board. K.S.A. 75-4320a(b).

Q: Who pays the court costs for a KOMA action?

A: The district court may require the school district to pay the court costs, if the court finds the KOMA was violated. These costs are assessed against the board, not individual board members. Conversely, if the court finds that the action brought by an individual was frivolous, the court may require the person seeking enforcement to pay the court costs. K.S.A. 75-4320a(c) and (d).

Consent Judgment

Q: What remedies are available if the Attorney General or county or district attorney seeks a consent judgment?

A: A consent judgment may contain any remedy available to the district court except:

  • An award of reasonable expenses;
  • Investigation costs; and
  • Attorney fees.

Investigations

Q: Who has authority to investigate alleged violations of KOMA?

A: The attorney general or county or district attorney has broad power to investigate alleged violations of both KOMA and KORA. K.S.A. 75-4320b. These powers include authority to:

  • Subpoena witnesses, evidence, documents or other material;
  • Take testimony under oath;
  • Examine or cause to be examined any documentary material of whatever nature relevant to the alleged violation;
  • Require attendance during the examination of documentary material and take testimony under oath or acknowledgement with respect to documentary material; and
  • Serve interrogatories; and
  • Administer oaths and affirmations. K.S.A. 75-4320b(a).
Q: In the investigation of an alleged violation, what if we fail to file a response to a request for information, respond to interrogatories or obey a subpoena?

A: The Attorney General or county or district attorney may ask the district court to issue an order requiring a response or compliance or grant such other relief as may be required. K.S.A. 75-4320b(c).

Consent Orders and Findings of Violation

Q: If the Attorney General finds we have violated KOMA, will it always result in court action, or are there other options?

A: Prior to filing an action in court, the Attorney General may either enter into a consent order with the school district or issue a finding of violation to the school district. K.S.A. 75-4320d.

Q: What might the consent order contain?

A: It may contain admissions of fact and any or all of the following:

  • Mandated training approved by the attorney general concerning the requirements of KOMA;
  • Imposition of a civil penalty in an amount not to exceed $250 for each violation; and
  • An agreement that the school district will comply with the requirements of KOMA; and
  • The consent order must be signed by the superintendent, any officer found to have violated KOMA, and any other person required by the attorney general. K.S.A. 75-4320d(a)(1).
Q: What might the finding of violation contain?

A: If the attorney general issues a finding of violation to school district, it may contain findings of fact and conclusions of law and require the public body or agency to do any or all of the following:

  • Cease and desist from further violation;
  • Comply with KOMA;
  • Complete training approved by the attorney general concerning the requirements of KOMA; and
  • Pay a civil penalty in an amount not to exceed $500 for each violation. K.S.A. 75-4320d(a)(2).
Q: How will the Attorney General know if we have done the things required in a consent order or finding of violation?

A: The Attorney General may require submission of proof that the requirements have been satisfied. K.S.A. 75-4320d(b).

Q: What if the district does not comply with the consent order or finding of violation?

A: The Attorney General can apply to the district court to enforce the order. However, the Attorney General must first demand compliance of the school district and afford the district a reasonable opportunity to cure its violation. K.S.A. 75-4320d(c)(1).

Q: What can the court do in this type of enforcement action?

A: Unless the court finds the Attorney General abused his discretion in entering into the consent order or issuing the finding of violation, the court will enter an order that:

  • Enjoins the school district to comply with the consent order or finding of violation;
  • Imposes a civil penalty in an amount not less than the amount ordered by the attorney general, nor more than $500 for each violation;
  • Requires the school district to pay the attorney general’s court costs and costs incurred in investigating the violation; and
  • Provides for any other remedy authorized by KOMA that the court deems appropriate. K.S.A. 75-4320d(c)(3).

If the court finds KOMA was violated, or if the violation was not made in good faith and without a reasonable basis in fact or law, the court may also require the school district to pay the Attorney General’s reasonable attorney fees. K.S.A. 75-4320d(c)(4).

Q: How do we get a finding of violation?

A: The Attorney General must serve it on you by certified mail or like a petition in a civil lawsuit. K.S.A. 75-4320d(d).

Q: What happens with the consent orders and findings of violation?

A: The Attorney General must maintain a file of all consent orders and finding of violation and make them available for public inspection. K.S.A. 75-4320d(e). They can be accessed on the Attorney General’s website at: https://ag.ks.gov/open-government/enforcement-actions

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School Law Handbook

Chapter 2 – Board Members

Access to Information
Employment of Board Members
Officers & Duties
Recall & Ouster
Residency & Eligibility
Vacancies

Access to Information

Academic Achievement Information

Q: How do we get information about the educational performance of students in our district?

A: The academic achievement testing program of the district should be designed to assess the educational performance of students in the district. K.S.A: 72-3219 requires a board to have an annual report on the academic achievement testing program of the district prepared and presented at a regular board meeting. The board may specify the form of the report and the manner in which it will be presented.

Student Records

Q: Do individual board members have a right to look at individual student records?

A: No. Not without the consent of the student (if the student is 18) or of the parents of the student (if the student is under 18). See the Section on student records in the Student section of this Handbook.

Records & Privacy Rights: FERPA

Q: Does the board have a right to look at individual student records?

A: In instances where the board has a legitimate educational interest, personally identifiable student records may be disclosed to the board in executive session without the consent of the student or parents, but only if board policy on the issue of student records allows for disclosure of records to school officials who have a legitimate educational interest and sets forth the criteria for determining which parties are school officials and what constitutes a legitimate educational interest. If policy does not allow for this, consent to disclosure would be required. 34 C.F.R. §§ 99.6 and 99.31.

Personnel Records

Q: Does an individual member of the school board have a right to examine a teacher’s evaluation?

A: No. K.S.A: 72-2411 allows the evaluation documents to be released to certain individuals and entities, including “the board.” Teacher evaluations may be released to the board as a whole and may be reviewed and discussed by the board as a whole in executive session, but an individual board member has no greater rights than any other citizen to access a teacher evaluation.

Q: What if the teacher gives the evaluation to a board member?

A: The teacher may disclose the evaluation document to anyone he or she chooses, including an individual board member. The law is designed to protect the teacher’s right to privacy.

Q: What about other documents in a personnel file? Does an individual board member have access to this information?

A: Again, a person’s status as a board member does not afford that person greater rights than any other citizen. The Kansas Open Records Act indicates that information in a personnel file is not required to be disclosed except for the following information: name, position, length of service in the district, salary and the individual contract. An individual board member would have access to this information, but not generally access to other information in the personnel file.

Employment of Board Members

Teachers as Board Members

Q: Is a teacher prohibited from serving on a school board?

A: Applying common law principles of incompatibility of office, in U.S.D. No. 501 v. Baker, 269 Kan. 239(2000), the Kansas Supreme Court held a teacher was disqualified from serving on the school board in the district that employed her.

Q: Is a teacher prohibited from serving on any school board?

A: No. A teacher is only prohibited from serving on the board in the district where he or she is employed. If the teacher works in one district but resides in a second district, the teacher can be a school board member in the second district.

Q: What about a retired teacher?

A: If the teacher is no longer an employee of the district, the teacher can be a board member in the district. It is serving in the dual capacity of employer/employee at the same time which creates the common law incompatibility of office.

Q: Does the holding apply to substitute teachers as well as full-time teachers?

A: Yes. The holding applies to any teacher in the school district.

Q: Does the holding prohibit a teacher from running for the school board?

A: No. A teacher can run for school board, and, if elected could serve on the board if he or she resigned from his or her employment before accepting the board position.

Other Employees as Board Members

Q: Does the holding disqualify other employees from serving on the school board?

A: Not directly. Although common law principles of incompatibility of office apply equally in this situation, there is a question whether the Kansas legislature has authorized classified employees to serve on boards by not specifically excluding them from board service in K.S.A: 72-1137. Until this question is answered by the court or the legislature, a board who allows a classified employee to serve on the board runs a risk that a court may later find such employees were disqualified from board service.

Board action involving the disqualified member might be voidable if challenged. Further, it is unlikely the school district’s insurance policies would cover actions by a disqualified member.  Because these employees are generally employees- at-will, the board can easily avoid these potential consequences by terminating existing employment or not offering further employment to board members. Alternatively, these individuals could resign from the board and retain their employment.

Q: Are any employees prohibited by statute from serving on the board of education?

A: Superintendents, assistant superintendents, principals, other supervisors, the clerk and the treasurer are statutorily prohibited from serving on the board. K.S.A: 72-1134, 72-1136 and 72-1136.

Community College Trustees

Q: May a community college trustee be employed by the college?

A: No. K.S.A: 71-1403(d) provides: “No member of the board of trustees of a community college shall be an employee of the community college.” The Attorney General has interpreted the term employee to include those persons whose service to the community college is subject to the control and direction of the community college, provided such control and direction includes directing the manner in which the services are performed, regardless whether the person receives compensation from the community college. This interpretation was based on the premise the purpose of the statute is to prevent situations in which a person as a member of the board of trustees of a community college exercises authority over employment matters regarding the person as an employee of the community college.

Nepotism

Q: May a board member’s family be employed by the district?

A: Nepotism is not forbidden by law but it may be regulated by board policy.

Q: Are nepotism laws or policies generally legal?

A: Yes. However, it is questionable if they can be applied retroactively to require an employee to be fired.

Expenses

Q: May board members be reimbursed for expenses?

A: Yes. board members may be reimbursed for their necessary expenses incurred in the performance of their official duties. K.S.A: 72-1140

Q: Most of our board members take their spouses with them to conventions and other meetings. May board members be reimbursed for expenses incurred by their spouses if their spouses accompany them on board business meetings?

A: No.

Q: Are there tax consequences for board members if they are reimbursed for expenses?

A: There may be. board members should check with their tax attorney if they have questions about specific reimbursements.

Oath of Office

Q: Must all elected board members take an oath of office?

A: Yes. You qualify for office by filing the oath of office. K.S.A: 25-2023

Q: Is there a specific oath that must be used?

A: Yes. The oath is set forth in K.S.A: 54-106 which provides:
“I do solemnly swear [or affirm, as the case may be] that I will support the constitution of the United States and the constitution of the state of Kansas, and faithfully discharge the duties of ___________. So help me God.”

Q: When must the oath of office be filed?

A: You must file an oath of office not later than 10 days after the election or five days after the issuance of your certificate of election, whichever is later. K.S.A: 25-2023

Q: Where is the oath filed?

A: You must file an oath of office with the county election officer. K.S.A: 25-2023

Q: Must an appointed member take an oath of office, and if so, where must it be filed?

A: Yes. The oath must be filed with the county election officer. K.S.A: 25-2024

Officers & Duties

Term of Office

Q: Can a board president or vice-president be elected to a term of longer than one year?

A: No. Board officers may run for re-election, without limit on the number of terms they may serve, but the term cannot be for longer than one year. K.S.A: 72-1133

Presiding at Meetings

Q: What are the duties of the board president?

A: To preside at meetings of the board and to perform other duties as required by law. K.S.A: 72-1133

Q: If the president is absent from a meeting, the vice-president presides. Who presides if they both are absent?

A: The remaining board members select a member to sit in the capacity of president for that meeting. K.S.A: 72-1133

Q: Who presides at the July organizational meeting before the new president is elected?

A: The board president remains board president until his or her successor is elected and should preside. If the board president is no longer on the board, the vice-president or a member selected to serve in the capacity of president should preside.

Recall & Ouster

Methods for Removing a Board Member from Office

Q: Can a majority of the school board remove another member of the board?

A: No. The means by which a board member may be removed from office are by recall petition and vote pursuant to K.S.A: 25-4318, et seq., or by ouster pursuant to K.S.A: 60-1205

Recall

Q: Who may start a petition for recall of a board member?

A: Any registered elector of the district, using the form prescribed in K.S.A: 25-4320

Q: Who may sign a recall petition?

A: Any registered elector of the election district from which the board member was elected. Depending on the voting plan the district uses, this may include the entire school district or just a member district.

Q: What constitutes grounds for recall?

A: Conviction of a felony, misconduct in office or failure to perform duties prescribed by law. K.S.A: 25-4302(a)

Q: What does misconduct in office mean?

A: A violation of law by the board member that impacts the board member’s ability to perform the official duties of the office. K.S.A: 25-4302(b)

Q: Who determines if the grounds for recall stated in the recall petition are sufficient?

A: The county or district attorney of the county where the petitions are required to be filed, in this case the home county of the school district. K.S.A: 25-4322(b) and 25-4318. In Unger v. Horn, 240 Kan. 740 (1987), the Supreme Court noted that the statute requires specificity when stating grounds for recall. For instance, a petition which alleges “misconduct in office” is insufficient, but one which alleges “violations of the Kansas Open Meetings Law,” specifying the misconduct, is sufficient.

Ouster

Q: May a board member be removed from office other than through recall?

A: Yes. A board member may be ousted from office pursuant to K.S.A: 60-1205

Q: What are the grounds for ouster?

A: A board member can be ousted from office if he or she:

  • Willfully engages in misconduct while in office;
  • Willfully neglects to perform any duty required by law;
  • Demonstrates mental impairment such that the person lacks the capacity to manage the office held; or
  • Commits any act constituting a violation of any penal statute involving moral turpitude. K.S.A: 60-1205
Q: Who can start proceedings to oust a board member from office?

A: The County Attorney or Attorney General, with or without a written complaint. K.S.A: 60-1206

Q: Is there an election on an ouster proceeding?

A: No. A petition is filed in district court by the County Attorney or District Attorney. The board member has a right to a full hearing before the court on the application for ouster. K.S.A: 60-1207

Residency & Eligibility

Moving to Another Member District in the School District

Q: One of our board members from member district #1 moved to member district #2. May he remain on the board?

A: Yes. So long as he still resides in the school district he may complete his term. If he desires to run again, however, he must run for a seat in member district #2 or for the at-large position. He cannot continue to run for the member district #1 seat if he no longer lives in that member district. K.S.A: 25-2022A

Moving Outside the School District

Q: One of our board members moved out of the school district. May she continue to serve on the board for the remainder of her term?

A: Probably not. If the board member has changed her residence, and the change is not temporary, she cannot continue to serve.

Q: If she refuses to resign, when does a vacancy occur?

A: A vacancy in the membership of the board is deemed to exist as of the date that the county election officer determines that a change of residence has occurred. Talk to the county election officer about the situation.

Q: One of our board members is getting divorced. He is looking for a place to live in the district but has rented an apartment in an adjoining district at present. He indicates this is a temporary situation and that he will move back to the district as soon as a rental property becomes available. Can he remain on the board?

A: If the board member has “established residence” outside the district, a request could be made to the county election officer to determine that a vacancy exists. The key question, however, is whether the board member has established a new residence. Residence requires two elements: (1) bodily presence at a location, and (2) an intent to remain there permanently or for an indefinite period of time. To constitute a change of residence, the board member must physically move to the new abode and intend to remain there.

In residency cases, courts examine all the surrounding circumstances, including the intent of the person to determine if residency is established. In Gleason v. Gleason, 159 Kan. 448 (1945), the court noted that when a person goes to another place for a temporary purpose and does so with the intention of returning to his fixed home, that the temporary absence does not effect a change of residence. In Perry v. Perry, 5 Kan. App.2d 636 (1981), the court concluded that one does not lose one’s residence by mere physical presence elsewhere unless that presence is accompanied by an intention to abandon the old residence and adopt the new. Further, once established, a residence is presumed to continue until a new residence is established.

If a board member intends to live outside the district only until he is able to find a place to rent back in the district, it would appear that a change of residence, in the legal sense of the word, does not occur. However, because the question is one of both fact and intent, changes in any of the facts or his intent, could result in a change of residence.

Vacancies

Publishing Notice of Vacancy

Q: One of our board members resigned. How do we fill the position?

A: You may appoint a replacement. When the vacancy occurs, the board should publish notice in the newspaper that a vacancy has occurred, and that the vacancy will be filled by appointment not sooner than 15 days after the publication. K.S.A: 25-2022

Length of Appointment

Q: Can someone be appointed to fill most of a full four-year term?

A: No. If the vacancy occurs prior to May 1 of an odd numbered year, a year in which there will be a general election for board members in November, the appointee can serve only until the second Monday in January after the following general election as an appointee. In the election in November, there must be an election “to fill the unexpired term.” The appointee and any other qualified elector may run in the election. Whoever is elected takes office on the second Monday in January following the general election for a term of two years.

Interviewing Applicants

Q: Can the board interview or discuss applicants for vacant board positions in executive session?

A: No. No exception in the Kansas Open Meetings Act authorizes the board to recess to executive session to discuss applicants for board positions. An exception exists with respect to non-elected personnel, but board members, even those who are appointed, are not non-elected personnel.

Q: May we ask applicants not to sit in on interviews of other applicants for the vacant board positions?

A: You may ask, but you cannot require that they absent themselves from the meeting. Like any other member of the public, an applicant for a position on the board has a right, under the Kansas Open Meetings Law, to watch the board meeting.

Timeline for Filling a Vacancy

Q: How soon after a vacancy occurs must we advertise and fill the position?

A: The law sets no timelines, but the board should act in a reasonable manner. Generally, you should try to fill vacancies as soon as possible.

Q: If a board member announces that he or she intends to resign in another month or two, can we publish the notice now and be ready to appoint someone when he or she actually resigns?

A: No. The law says you must publish notice after the vacancy occurs. Until the board member actually resigns, there is no vacancy.

When a Majority of the Board Resigns

Q: If it takes four board members to take any action, what do we do if four or more board members resign?

A: The clerk of the board must certify the vacancies to the governor. The governor then appoints as many board members as necessary to bring the total to four. Those four must appoint three others to fill the remaining vacancies, as they would fill any other vacancy on the board. In this case the statute requires the vacancies be filled within six months. K.S.A: 25-2022b

Q: Our board recently appointed a board member to fill the unexpired term of a member who resigned. Must the appointed member take an oath of office, and if so, where must it be filed?

A: Yes. The oath must be filed with the county election officer. K.S.A: 25-2024

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School Law Handbook

Chapter 3 – Discrimination Laws

Age Discrimination in Employment Act of 1967
Americans with Disabilities Act of 1990
Equal Pay Act of 1963
Genetic Information Nondiscrimination Act
Section 504 of the Rehabilitation Act of 1973
Title VI of the Civil Rights Act of 1964
Title VII of the Civil Rights Act of 1964
Title VII: Sexual Harassment
School District Liability for Harassment
Title IX of the Education Amendments of 1972

Age Discrimination in Employment Act of 1967

What’s Prohibited?

Q. What does the ADEA prohibit?

A. ADEA prohibits discrimination on the basis of age in all aspects of the employment relationship, including compensation, terms, conditions, or privileges of employment. Hiring and promotion decisions, including decisions about allowing an employee to achieve tenure, cannot be predicated on age.

Who’s Protected?

Q. Which employees are protected by the Age Discrimination in Employment Act?

A. Employees who are 40 and older are protected from discrimination in employment on the basis of their age by the Age Discrimination in Employment Act of 1967. Applicants for employment are protected as well as actual employees.

Q. Are any employees exempt from coverage?

A. Yes. Some are exempted from coverage under ADEA. The Act does not cover a person elected to public office, a member of that person’s staff or bona fide executives or high policymakers, such as a superintendent or president of a college. See EEOC v. Board of Trustees, 723 F.2d 509 (6th Cir. 1983).

Enforcement

Q. Who enforces the ADEA?

A. When enacted, the ADEA was enforced by the Department of Labor. In 1979 enforcement functions were transferred to the Equal Employment Opportunity Commission (EEOC).

Q. What procedures are followed in investigating ADEA claims?

A. Generally, the procedures outlined for Title VII claims are followed. However, ADEA allows for concurrent rather than sequential state and federal administrative jurisdiction. A complainant may file charges concurrently with Kansas Human Rights Commission (KHRC) and EEOC.

Application to Schools

Q. Does the ADEA apply to schools?

A. The ADEA applies to private employers with 20 or more employees and to state and local governments. ADEA applies to employers, including public schools, employment agencies and labor organizations.

Age as a Factor in Employment Decisions

Q. Does the ADEA prohibit mandatory retirement at a certain age?

A. The ADEA generally prohibits establishing a mandatory retirement age for any class of employees. While an institution may establish incentives for voluntary retirement, in most cases the courts have concluded mandatory retirement based solely on age violates the ADEA. Although ADEA frowns on mandatory retirement requirements, the law does allow for bona fide employee benefit plans which may include a voluntary early retirement incentive plan consistent with the purposes of ADEA. If early retirement is offered, it must be offered to all eligible employees. The key challenge to early retirement programs is whether retirement is actually voluntary. The alternative to “voluntary” retirement cannot be such that the retirement is, in fact, coerced.

Q. Can age ever be a factor considered in employment decisions?

A. Yes. The ADEA allows age to be a consideration in employment decisions where age is a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of the employer. To establish age as a lawful factor in employment decisions involving transportation employees, a school must prove:

  • The existence of a job qualification reasonably necessary to the essence of the school’s business; and
  • The school is compelled to rely on age as a proxy for safety-related considerations.
Q. Can we require bus drivers be under a certain age for safety reasons?

A. Maybe, but the courts are split on this issue. Instead of relying on age, educational institutions are well-advised to require physical examinations of drivers, along with stress tests, driving tests, and tests to assess dynamic visual acuity. The National Highway Traffic Administration’s manual recommends the following:

  • No person over the age of 65 should be hired to be a bus driver;
  • Those who reach the age of 65 while employed may be permitted to drive as long as health and operating skills permit;
  • Physical examinations for drivers over 65 should be required more frequently than for younger drivers. At least once every six months is recommended.
Q. Does granting credit on a salary schedule for prior experience violate the ADEA?

A. Granting credit on a salary schedule for prior experience does not violate the ADEA. See Wooden v. Board of Educ., 931 F.2d 376 (6th Cir. 1991).

Standard of Proof

Q. What does an individual have to show to prove a claim of age discrimination?

A. The standards of proof developed in Title VII litigation are applied to ADEA claims. For a prima facie age discrimination case, an employee must show:

  • He or she is in the protected age group;
  • He or she was unfavorably affected by an employment action;
  • At the time of the adverse action, he or she was performing his or her job at a level that met the employer’s legitimate expectations; and
  • Following the adverse employment action, he or she was replaced by someone of comparable qualifications outside the protected class.
Q. Do low ratings in an evaluation indicate an individual is not meeting the employer’s expectations?

A. Probably not. The Tenth Circuit has required only a minimal showing that performance is satisfactory to meet the prima facie burden, suggesting evidence of performance issues can be raised by the school in rebutting the prima facie case. Denison v. Swaco Geolograph Co., 941 F.2d 1416 (10th Cir. 1991).

Q. Does the employee win if they can just establish a prima facie case of discrimination?

A. No. Once the plaintiff has established a prima facie case of age discrimination, the employer must produce evidence of a nondiscriminatory reason for the employment action. The burden then returns to the employee to show these reasons are not true, but merely a pretext for age-based discrimination. The ultimate burden of persuasion remains at all times with the employee. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981).

Q. What if an employee quits before any adverse action occurs? Can they bring an action under the ADEA?

A. Probably. As in other types of employment discrimination actions, the adverse employment action may be a “constructive discharge.” The standard used for determining if a constructive discharge occurred is whether a reasonable person in the employee’s position would have felt compelled to resign. Hirschfeld v. New Mexico Corrections Dep’t., 916 F.2d 572 (10th Cir. 1990). In Schartz v. Unified School Dist. No. 512, 953 F. Supp. 1208 (D. Kan. 1997), the court noted “intolerable working conditions” do not require harassment or physical discomfort but may be created where an employer makes known its desires to be rid of a particular employee. Additionally, the court noted a claim of constructive discharge may be based on the fact an employee was given a choice between retirement or termination.

Specific Defenses to an ADEA Claim

Q. Are there any specific defenses to an ADEA claim?

A. Yes. The ADEA provides several defenses found at 29 U.S.C. § 623(f). A claim for age discrimination will not succeed where:

  • Age is a bona fide occupational qualification reasonably necessary to the normal operation of the employer;
  • The differentiation is based on reasonable factors other than age;
  • The individual is discharged or otherwise disciplined for good cause;
  • The action is taken in observation of the terms of a bona fide seniority system that is not intended to evade the purpose of ADEA. The seniority system may not require or permit the involuntary retirement of any individual because of age; or
  • The action is taken in observation of the terms of a bona fide employee benefit plan, but the employer’s contribution for an older worker must be no less than that made on behalf of a younger worker or pursuant to a voluntary early retirement incentive plan consistent with the purposes of ADEA.

Court Actions

Q. When can an action in court be brought under ADEA?

A. No civil action can be brought under ADEA until 60 days after a charge is filed with EEOC. Upon dismissal of the charge or termination of the EEOC proceedings, EEOC must notify the individual who then has 90 days in which to commence a civil action. In Kansas, an age discrimination claimant must file a complaint with KHRC and wait 60 days before filing a federal civil action. Filing of the federal action operates to stay the state administrative proceeding.

Q. Why is the EEOC sometimes a party in lawsuits involving the ADEA?

A. The EEOC may bring civil actions under ADEA. The individual’s right to bring a civil action ceases upon the commencement of an action by the EEOC. However, if the individual commences action prior to the EEOC action, the action remains viable. EEOC may either file a separate action or intervene in the individual action. ADEA claimants who litigate their individual claims in an individual action cannot obtain individual relief in subsequent EEOC actions based on the same claims.

Remedies

Q. What remedies are available under the ADEA?

A. ADEA remedies are enforced through provisions of the Fair Labor Standards Act which provide employers are liable for such legal or equitable relief as may be appropriate, “including without limitation judgments compelling employment, reinstatement or promotion.” 29 U.S.C. § 626(b). Courts, including the Tenth Circuit, have generally concluded that compensatory damages are not available under ADEA, but some courts have allowed for the recovery of compensatory damages. See Moskowitz v. Trustees of Purdue University, 5 F.3d 279 (7th Cir. 1993); Bruno v. Western Elec. Co., 829 F.2d 957 (10th Cir. 1987). Liquidated or double damages may be awarded when the violation is found to be willful.

Q. When are actions considered willful?

A. An employer’s actions are willful if, “the employer…knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA.” TWA v. Thurston, 469 U.S. 111, 126 (1985).

Statute of Limitations

Q. What is the statute of limitations for bringing an ADEA action?

A. The statute of limitations is two years, except in cases of willful violations where it is three years.

Waiver of Rights in Settlement Agreements

Q. Can employees waive their right to bring an ADEA action as part of a settlement agreement?

A. Yes. But the waiver must be knowing and voluntary and must comply with the specific requirements in the law. 29 U.S.C. § 626(f).

Q. What requirements must the waiver meet?

A. At a minimum the waiver must:

  • Be part of an agreement between the individual and the employer that is written in a manner calculated to be understood by such individual, or by the average individual eligible to participate;
  • Specifically refer to rights or claims arising under ADEA;
  • State the individual does not waive rights or claims that may arise after the date the waiver is executed;
  • Provide the individual waives rights or claims only in exchange for consideration in addition to anything of value to which the individual already is entitled;
  • Advise the individual in writing to consult with an attorney prior to executing the agreement;
  • Give the individual a period of at least 21 days within which to consider the agreement;
  • Provide that for a period of at least seven days following the execution of the agreement, the individual may revoke the agreement, and the agreement shall not become effective or enforceable until the revocation period has expired.

Americans with Disabilities Act of 1990

What’s Prohibited?

Q. What does the ADA prohibit?

A. The Americans with Disabilities Act of 1990 prohibits discrimination on the basis of an individual’s disability in employment, public services and transportation, public accommodations and telecommunications. The expressed purpose of the Act is to establish a clear and comprehensive prohibition of discrimination on the basis of disability.

As public entities, public school districts who receive federal funding have been prohibited from discriminating on the basis of handicap or disability for nearly 20 years under Section 504 of the Rehabilitation Act of 1973. Requirements under the ADA are strikingly similar to those under Section 504, but the ADA applies to the private, as well as the public sector.

Q. What does the ADA prohibit in terms of employment?

A. The ADA prohibits discrimination on the basis of disability against a qualified individual in application procedures, hiring, advancement, discharge, compensation, job training or other terms and conditions of employment.

Individual with a Disability

Q. Who is an individual with a disability under the ADA?

A. An individual with a disability is a person with physical or mental impairment that substantially limits major life activities, a person who has a record of having such an impairment, or a person who is regarded as having such an impairment.

Q. Are there any exclusions?

A. “Disability” does not include current illegal drug use, homosexuality, bisexuality, transvestitism, exhibitionism, gender identity disorders, sexual behavior disorders, compulsive gambling, kleptomania, minor or trivial impairments, simple physical characteristics, or environmental or cultural disadvantages.

Major Life Activities

Q. What are major life activities?

A. Major life activities include seeing, hearing, walking, caring for oneself, learning, breathing, eating, sleeping, standing, lifting, bending, learning, reading, concentrating, thinking, communicating and working. A major life activity also includes the operation of a major bodily function, including but not limited to functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.

Substantially Limit

Q. When does an impairment substantially limit the ability to work?

A. When a person is substantially limited in their ability to perform the functions of the job they desire. An individual need not be precluded from performing a broad class of jobs.

Q. Are mitigating measures considered in determining if there is a substantial limitation?

A. No. The ADA Amendments of 2008 forbid consideration of mitigating measures other than eyeglasses.

Q. What about temporary conditions?

A. An impairment need not be permanent to be a disability under ADA. However, broken bones and illnesses that are temporary in duration normally will not be considered a disability for ADA purposes. The nature, severity and actual or expected duration of the disability and the resulting impact of the impairment on the individual’s ability to perform major life activities are factors which must be considered in determining if a temporary condition qualifies as a disability for ADA purposes.

Qualified Individual

Q. For employment purposes, who is a qualified individual?

A. A qualified individual is a disabled individual who, with or without reasonable accommodation, can perform the essential functions of the employment position.

Essential Functions of the Position

Q. What are essential functions of the employment position?

A. The ADA does not define essential functions of the employment position. The regulations suggest that such functions must be determined in the context of the entire work environment and be consistent with business necessity. They must be tasks other than those which bear only a marginal relationship to the job in question. In determining essential job functions, consideration will be given to the employer’s judgment and written job descriptions prepared before advertising or interviewing applicants for the job.

Pre-Employment Inquiries

Q. May we ask job applicants about their disabilities?

A. An employer may not make a pre-employment inquiry on an application form or in an interview as to whether, or to what extent, an individual is disabled. You may ask a job applicant whether he or she has the ability to perform particular job functions.

Reasonable Accommodation

Q. What are our obligations to accommodate?

A. Under the ADA an employer must make reasonable accommodations to known physical or mental limitations of a disabled individual, unless the accommodations would impose an undue hardship on the operation of the school. Reasonable accommodation includes making existing facilities readily accessible and usable, and may include job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, adjustment or modifications of training materials or policies, or the provision of qualified readers or interpreters.

An employer is only required to accommodate a known disability. If the individual does not request an accommodation, the employer is not obligated to provide one. However, the EEOC enforcement guidance states an employer should initiate the accommodation process if the employer knows or has reason to know that an employee is disabled, is experiencing problems because of a disability, or suffers from a disability that prevents him from asking for an accommodation.

Leave

Q. Is granting leave a reasonable accommodation?

A. An allowance of time for medical care or treatment may constitute a reasonable accommodation. However, if the employee gives no indication of when and under what conditions he might return to work, an indefinite unpaid leave is not a reasonable accommodation. See Hudson v. MCI Telecommunications Corp., 87 F.3d 1167 (10th Cir. 1996).

Reassignment

Q. Is reassignment to an open position required?

A. It depends. The ADA may require an employer to reassign an employee to a vacant position where the disability precludes performing the essential functions of the current job. However, reassignment is not required if other reasonable accommodations would allow the employee to continue working in his current job. The employer is not required to create an opening where none exists. Further, the employee must be qualified to perform the essential functions of the vacant job.

Q. How do we determine an appropriate accommodation?

A. Each school should establish a procedure for determining reasonable accommodations for an employee. The process should be flexible, interactive, and include input from the employee. An accommodation must be reasonable but need not be the best accommodation.

Refuse to Accommodate

Q. May we ever refuse to accommodate?

A. Each school may refuse to accommodate if the individual is not otherwise qualified for the job, if the accommodation would eliminate an essential function of the job, or if the accommodation would impose undue hardship. The school has the burden to prove undue hardship.

Undue hardship may be shown if the needed accommodation would result in significant difficulty or excessive cost to the school. Additionally, if the employment of the individual would result in a threat to the health or safety of the employee or others and the significant risk of substantial harm cannot be avoided through a reasonable accommodation, accommodation may not be required.

Enforcement

Q. Who enforces the ADA employment provisions?

A. The employment provisions of the Act are enforced by the EEOC pursuant to Title VII of the Civil Rights Act of 1964.

Public Services

Q. What are our obligations under ADA with regard to public services?

A. Title II of the ADA provides that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

Q. What does the Act mean by public services?

A. Public services include any service, program, or benefit which you provide. In addition to educational services for students, this may include sports activities, plays, assemblies, adult education programs, board meetings, and other programs or activities.

Q. For public services, who is a qualified individual?

A. A qualified individual with a disability is one who meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by the public entity with or without reasonable modifications to rules, policies, or practices; the removal of architectural, communication or transportation barriers; or the provision of auxiliary aids and services.

Auxiliary Aids and Services

Q. What are auxiliary aids and services?

A. Auxiliary aids and services may include providing qualified interpreters, note takers, written materials or telecommunication devices for the deaf (TDDs); providing qualified readers, taped texts, audio recordings, Brailled materials; acquiring or modifying equipment and devices; and other similar services or actions. In furnishing appropriate auxiliary aids, the school must give primary consideration to the request of the individual requesting the aid. Personal devices need not be provided.

Program Accessibility

Q. What obligation do we have to make programs accessible?

A. A service, program, or activity must be operated in a manner so that, when viewed in its entirety, it is readily accessible to and usable by individuals with disabilities. In existing facilities this may be accomplished through redesign of equipment, reassignment of services to accessible sites, the assignment of aides, the delivery of services at alternate accessible sites, or any other method which makes services accessible. A school district is not required to make changes which would result in a fundamental alteration in the nature of the service, program or activity, make structural changes in existing facilities where other methods are effective in achieving compliance, or make changes which would result in undue financial and administrative burdens. New construction must meet federal accessibility standards.

Q. What federal accessibility standards do we follow?

A. Either the Uniform Federal Accessibility Standards (UFAS) or the Americans with Disabilities Act Accessibility Guidelines (ADAAG). You must choose one of these two and follow it in all aspects.

Self-Evaluation

Q. Are there any reporting requirements?

A. Each school was required to complete a self-evaluation which consisted of a review of services, policies and practices and their effects on individuals with disabilities, a consideration of necessary modifications, an opportunity for interested persons to participate in the process by submitting comments shortly after ADA was enacted in 1990.

Q. Are we required to keep the self-evaluation available to the public?

A. While that may be the best practice, the law required schools to maintain the self-evaluation for only three years.

Other Requirements

Q. Must we take any other actions?

A. A school must designate a person responsible for compliance with the ADA provisions, adopt a grievance procedure for dealing with complaints under the Act, and post notice of rights under the Act.

Q. What are our obligations with regard to communications?

A. TDDs or equally effective telecommunication systems must be used to communicate with individuals with impaired hearing or speech.

Schools must post the international symbol for accessibility at each accessible entrance to buildings. Schools must provide signs at all inaccessible entrances directing users to accessible entrances or to an accessible location where they can obtain information.

Q. Do we need to do anything with our school buses under the transportation provisions?

A. No. Buses used for public transit must meet certain standards, but school buses were specifically exempted from the transportation provisions.

Claims under ADA

Q. How are claims brought under ADA?

A. ADA incorporates the Title VII administrative and judicial enforcement procedures: a disabled individual may pursue a civil action after filing a timely discrimination charge with the EEOC or KHRC.

Q. Can a person who is qualified for disability benefits under Social Security claim to be a qualified individual with a disability under the ADA?

A. Yes. In Cleveland v. Policy Management Systems Corp., 526 U.S. 795(1999), the Supreme Court held application for and receipt of Social Security Disability Insurance benefits does not automatically stop the recipient from pursuing a claim under the ADA.

Q. Can individuals be sued under ADA?

A. The Tenth Circuit has held ADA precludes personal capacity suits against individuals who do not otherwise qualify as employers under the statute. Butler v. City of Prairie Village Kansas, 172 F.3d 736 (10th Cir. 1999).

Remedies

Q. What remedies are available under ADA?

A. Back pay, reinstatement, injunctive relief, and other equitable remedies are generally available. Compensatory and punitive damages may be available in cases of intentional disparate treatment. However, an employer can avoid liability for damages if it shows it made a good faith effort, in consultation with the employee, to identify and make a reasonable accommodation to a known disability. The damage caps under Title VII apply to ADA damages as well. A prevailing party is entitled to reimbursement for attorney fees and litigation expenses.

Equal Pay Act of 1963

What’s Prohibited?

Q. What does the Equal Pay Act prohibit?

A.  Sex discrimination in payment of wages and other compensation by private employers, as well as by federal, state, and local governments. The Act requires equal pay in jobs substantially equal in skill, effort, and responsibility and performed under similar working conditions in the same establishment. The Equal Pay Act, which is actually a part of the Fair Labor Standards Act, prohibits an employer from maintaining wage differentials based upon sex and prohibits a labor organization from causing or attempting to cause an employer to discriminate in violation of the act. The EPA applies only to sex discrimination in the form of unequal pay for equal work. Retaliation against an employee for filing a complaint or testifying in a proceeding is prohibited.

Q. How does the EPA differ from Title VII?

A. The scope of the EPA is far more restrictive, proscribing only the payment of unequal wages while Title VII proscribes all practices which create inequality in employment opportunities due to discrimination on the basis of sex. While the EEOC and some courts have concluded that a violation of EPA is also a violation of Title VII, the courts have not always agreed. In Fallon v. State of Illinois, 882 F.2d 1206 (7th Cir. 1989), the court noted that the burden of proof is different under the statutes. Under Title VII, the burden is on the plaintiff at all time to show discriminatory intent. The EPA does not require proof of discriminatory intent.

Application

Q. Does the EPA apply to public schools and colleges?

A. Yes. When the EPA was enacted, coverage did not extend to public schools or colleges in any form. In 1966, the EPA was amended to include employees of public schools, bringing non-certificated staff within its coverage. Additional amendments in 1972 eliminated the professional employee exemption, bringing teachers and administrators within the EPA coverage as well.

Q. Do courts look at a single building or the entire district in evaluating EPA claims?

A. For purposes of EPA application, the entire school district, not a single building, is considered the establishment. See, e.g. Brennan v. Goose Creek Consolidated Independent Sch. Dist., 519 F.2d 53 (5th Cir. 1975). At the college and university level, courts have reached differing results. See Alexander v. University of Michigan-Flint, 509 F. Supp. 627 (E.D. Mich.1980) (single campus) and EEOC v. Maricopa County Community College District, 29 FEP 383 (D. Ariz. 1982), aff’d on other grounds, 736 F.2d 510 (9th Cir. 1984) (all campuses).

Enforcement

Q. Who enforces the Equal Pay Act?

A. The EEOC is responsible for enforcement. Lawsuits may be filed by the EEOC or by the aggrieved individual. No charge need be filed with EEOC as a precondition to private suit. EEOC has authority to investigate to determine if the EPA is being violated on its own volition or at the request of a person who believes the Act is being violated. A school cannot have liability under the EPA if it relies in good faith on any written regulation, order, ruling, interpretation, practice or enforcement policy of the EEOC.

Standard of Proof

Q. What must an employee prove to show a violation of the EPA?

A. Generally, to prove a violation of the EPA an employee must show that a male and female who work in the same establishment, performing equal work are paid different wages on the basis of sex. To be considered “equal” the work performed must be “substantially equal” in skill, effort and responsibility and performed under similar working conditions.

Defenses

Q. What are an employer’s defenses?

A. In defending an action under the EPA, a school district employer may rebut those elements by showing that skill, effort or responsibility are not equal in the two positions or by showing that the work is not performed under similar working conditions. Additionally, the school district may prove that the unequal pay resulted because of a permitted exception under the law. Those exceptions include:

  • Wages paid pursuant to a seniority system;
  • Wages paid pursuant to a merit system;
  • Wages paid pursuant to a system that measures the quantity or quality of goods produced; or
  • Unequal pay based on a factor other than sex.

Court Action

Q. Can an individual bring an action in court under the EPA?

A. Yes. An employee may bring a civil action directly in any federal court. The action may be individual or on behalf of others who are similarly situated.

Q. Is exhaustion of administrative remedies required?

A. Exhaustion of administrative remedies is not required, nor is an attempt at EEOC conciliation.

Q. Can EEOC bring action on its own?

A. Yes. EEOC may bring civil actions on behalf of an employee or employees to recover unpaid wages and liquidated damages. EEOC may also seek injunctive relief for all affected employees.

Q. What is the statute of limitations for EPA actions?

A. Civil actions under the EPA must be commenced within two years of their accrual. In the case of “willful” violations, i.e., the employer knew or showed reckless disregard for the matter of whether its conduct was prohibited by the EPA, civil actions may be commenced within three years of their accrual.

Remedies

Q. What are the remedies for EPA violations?

A. The EPA is part of the Fair Labor Standards Act. An employer who violates FLSA provisions is liable for unpaid wages or overtime compensation and such legal or equitable relief as may be appropriate including employment, reinstatement and promotion. 29 U.S.C. § 206(d)(3). An employee’s wage rate cannot be reduced to remedy an unlawful differential in pay. 29 U.S.C. § 206(d)(1) and 29 CFR § 1620.12. An amount equal to the amount of wages determined to be owing for lost wages or overtime compensation are available in EPA cases where the school cannot show it acted in good faith and had reasonable grounds for believing it was not violating the EPA.

Penalties

Q. Are there any penalties for employers who willfully violate the EPA?

A. Yes. A person who willfully violates the EPA is subject to a $10,000 fine and up to six months imprisonment, or both, for a second or subsequent conviction. 29 U.S.C. § 216(a).

Genetic Information Nondiscrimination Act

What’s Prohibited?

Q. What does the Genetic Information Nondiscrimination Act (GINA) prohibit?

A. GINA prohibits the use of genetic information in employment. It restricts employers from requesting, requiring, or purchasing genetic information, and strictly limits the disclosure of genetic information.

Genetic Information

Q. What is “genetic information”?

A. Under the law, “genetic information” includes:

  • Information about an individual’s genetic tests;
  • Information about the genetic tests of a family member;
  • Family medical history;
  • Requests for, and receipt of, genetic services by an individual or a family member; and
  • Genetic information about a fetus carried by an individual or family member, or about an embryo legally held by the individual or family member using assisted reproductive technology.

Genetic Tests

Q. What are examples of genetic tests?

A. Tests used to determine whether an individual has a certain genetic variant associated with an increased risk of acquiring a disease in the future are genetic tests. For example, a test to determine whether an individual has the genetic variants associated with a predisposition to certain types of breast cancer is a genetic test. Carrier screenings of adults using genetic analysis to determine the risk of conditions such as cystic fibrosis, sickle cell anemia, spinal muscular atrophy, or fragile X syndrome in future offspring are additional examples of genetic tests.

Q. What are some examples of tests that are not genetic tests?

A. Examples of tests that are not genetic tests include an HIV test, a cholesterol test, or a test for the presence of drugs or alcohol.

Genetic-Based Impairments

Q. Does GINA protect individuals from discrimination on the basis of impairments that have a genetic basis?

A. No. GINA is concerned primarily with protecting those individuals who may be discriminated against because an employer thinks they are at increased risk of acquiring a condition in the future. However, other laws, such as the Americans with Disabilities Act, may provide protection.

Harassment and Retaliation

Q. Does GINA prohibit harassment?

A. Yes. GINA prohibits a wide range of discrimination, including harassment.

Q. Does GINA prohibit retaliation?

A. Yes. GINA includes a specific provision prohibiting employers from retaliating against employees who oppose employment practices made unlawful by GINA or who participate in an investigation, proceeding, or hearing under GINA.

Health Benefits

Q. May an employer use genetic information about an applicant or employee to make decisions concerning health benefits?

A. No. Health benefits are part of the compensation, terms, conditions, and privileges of employment.

Enforcement

Q. Who enforces GINA?

A. The EEOC is responsible for enforcement.

Remedies

Q. What are the remedies for a violation of GINA Title II?

A. The same remedies available under Title VII of the Civil Rights Act of 1964 are available under Title II of GINA. An aggrieved individual may seek reinstatement, hiring, promotion, back pay, injunctive relief, pecuniary and non-pecuniary damages (including compensatory and punitive damages), and attorneys’ fees and costs. Title VII’s cap on combined compensatory and punitive damages also applies to actions under Title II of GINA. Punitive damages are not available against federal, state, or local government employers.

Requesting Genetic Information

Q. Are there any situations in which a small business may obtain genetic information without violating GINA?

A. Yes, there are six narrow exceptions to the rule that an employer may not request, require, or purchase genetic information about an applicant or employee. Those that may apply in a public school setting include:

  • Where the information is acquired inadvertently;
  • As part of health or genetic services, including wellness programs, provided on a voluntary basis;
  • In the form of family medical history, to comply with the certification requirements of the Family and Medical Leave Act, state or local leave laws, or certain employer leave policies; and
  • When the information comes from sources that are commercially and publicly available, such as newspapers, books, magazines, and even electronic sources.

Medical Examination

Q. May an employer ask for family medical history as part of a medical examination of a job applicant or employee?

A. No. Although an employer may conduct medical examinations after making a job offer or during employment as permitted by the Americans with Disabilities Act (ADA), the examination may not include collection of family medical history. An employer must tell its health care providers not to collect genetic information as part of an employment-related medical exam, and, if it finds out that family medical histories are being collected, the employer must take measures within its control to prevent this from happening in the future.

Wellness Programs

Q. What does GINA say about the acquisition of genetic information when an employer offers health or genetic services, like a wellness program?

A. GINA and the final rule say that an employer may acquire genetic information about an employee or his or her family members when it offers health or genetic services, including wellness programs, on a voluntary basis. The individual receiving the services must give prior written authorization that is both voluntary and knowing. Individualized genetic information can be provided to the individual receiving the services, but genetic information may only be provided to the employer in aggregate form. Further, while employers may offer certain kinds of financial inducements to encourage participation in health or genetic services, they may not offer an inducement for individuals to provide genetic information.

Warning to Employee Required

Q. What should an employer do to comply with GINA when lawfully requesting health-related information from an employee?

A. When an employer makes a request for health-related information to support an employee’s request for reasonable accommodation under the ADA or a request for sick leave, it should warn the employee and/or health care provider not to provide genetic information. The warning may be in writing or oral. The regulations suggest language such as the following may be used:

  • The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.
Q. What if, even after the warning, we still get information that could be considered genetic information?

A. If this type of warning is provided, any acquisition of genetic information will be considered inadvertent, and therefore not in violation of GINA.

Q. How often must the warning be provided?

A. It is best to provide the warning each time health-related information is requested.

Confidentiality Required

Q. Does GINA have rules on confidentiality?

A. Yes. An employer in possession of genetic information about applicants or employees must treat it the same way it treats medical information. It must keep the information confidential and, if in writing, apart from other personnel information in separate medical files. However, genetic information may be kept in the same file as medical information subject to the ADA.

Filing a Charge

Q. How does an employee file a charge under GINA?

A. An individual who believes that his or her employment rights have been violated on the basis of genetic information may file a “charge of discrimination” with the EEOC within 180 days from the date of the alleged violation, or within 300 days if a state or local agency enforces a law that prohibits employment discrimination on the basis of use or acquisition of genetic information or genetic testing.

Kansas Act Against Discrimination

Q. What is the Kansas Act Against Discrimination (KAAD)?

A. It is the Kansas law that prohibits discrimination on the basis of race, religion, color, sex, disability, familial status, national origin or ancestry in employment and public accommodations. K.S.A. 44-1001, et seq.

Q. To whom do the Kansas Act Against Discrimination apply?

A. Any employer who employs four or more persons, agents of employers and labor organizations, and all political subdivisions of the state, including school districts and community colleges.

Kansas Human Rights Commission

Q. Who administers the KAAD?

A. The Kansas Human Rights Commission (KHRC).

Q. Who serves on the KHRC?

A. The commission consists of seven members appointed by the governor. By law two must be representatives of industry, two must be representatives of labor, one must be licensed to practice law, one must be a representative of the real estate industry, and one is appointed at large.

Complaints

Q. How do complaints of discrimination originate with the KHRC?

A. Any person who believes that they have been discriminated against in employment or in a public accommodation may file a verified complaint with the KHRC or have an attorney file the complaint on their behalf. The commission itself or the attorney general may also file complaints.

Q. Can the complaint be lodged orally?

A. No. The complaint must be in writing and articulate a prima facie case of discrimination pursuant to recognized theories of discrimination.

Q. When must the complaint be filed?

A. Complaints must be filed within six months after the alleged act of discrimination occurs, unless the act complained of constitutes a continuing pattern or practice of discrimination in which event it must be filed within six months of the last act.

Q. If the complaint is filed with KHRC, how does the school find out about the complaint?

A. The commission serves a copy of the complaint on you within seven days.

Q. Can the person also file a complaint with EEOC for the same conduct?

A. It is not necessary. Complaints filed with the KHRC are dually filed with the federal Equal Employment Opportunity Commission unless the complainant requests only to file with KHRC. If the complaint is first filed with KHRC, it is the agency which will initiate the investigation of the complaint.

Responding to the Complaint

Q. We received a letter accompanied by a complaint and a request for information from KHRC. How should we respond?

A. When a copy of the complaint is served on the school district, it is generally accompanied by a letter requesting that certain information be provided to assist in the investigation of the complaint. Although school district personnel may respond to this request, it is recommended any such response be reviewed by your school attorney before it is sent to the KHRC.

Q. The letter asks for the evaluations of several staff members. Can we release this information to KHRC?

A. The Kansas Evaluation of Certificated Personnel Act, K.S.A. 72-9001 et seq., limits the ability of the district to comply with this request. Generally, the complainant will have signed a form authorizing the release of such information to the KHRC, which will allow the district to forward the requested material on the complainant. Without such a release, however, the district should either seek a release from other employees itself or request that the KHRC subpoena the information prior to releasing the information.

Mediation

Q. The letter from KHRC asks if we want to participate in mediation. Should we do this?

A. Probably. You may be able to resolve the issues at this level.

Investigation

Q. What if mediation does not resolve the issues?

A. If the issues are not resolved through mediation, the complaint is assigned to a KHRC field investigator for complete investigation.

Q. What does the investigation involve?

A. The investigation may include a review of written documents, telephone interviews or on-site interviews of witnesses or documents.

Probable Cause and Conciliation

Q. What happens after the investigation?

A. The commissioner assigned to the case must make a determination of whether there is probable cause to believe discrimination has or is occurring. If the commissioner determines that there is no probable cause, written notice of this finding is served on the complainant and the school district within 10 business days after the determination is made. If the commissioner finds there is probable cause, KHRC attempts to get the parties to agree to settle the matter through conciliation within 45 days after the probable cause determination is made. The parties may agree to extend the time period.

KHRC Hearing

Q. What if conciliation efforts are unsuccessful?

A. If conciliation fails, the commission may commence a hearing in the matter. The hearing procedure is governed by provisions of the Kansas Administrative Procedure Act.

Q. Who hears the matter?

A. At least four commissioners and a presiding officer.

Q. Who is the presiding officer?

A. Either a staff hearing examiner or a contract hearing examiner.

Q. Where is the hearing held?

A. In the county where the school is located and the acts complained of occurred.

Q. Can information and witnesses be subpoenaed?

A. Yes. The presiding officer has authority to issue subpoenas for witnesses or documents and is required to do so at the request of either party.

Q. Can conversations which occurred during conciliation be introduced into evidence at the hearing?

A. No. Any endeavors at conciliation cannot be used as evidence at the hearing.

Dismissal of a Complaint

Q. When are complaints dismissed?

A. Complaints may be dismissed by the Commission on its own initiative. Complaints must be dismissed upon the written request of the complainant, or if the commission has not issued a finding of probable cause or no probable cause or taken other administrative action dismissing the complaint within 300 days of the filing of the complaint. The complaint must be dismissed if the hearing results in a no probable cause finding.

Q. Are we notified if the complaint is dismissed?

A. Yes. The commission must mail written notice to all parties of the dismissal of a complaint within five days of dismissal.

Q. Is a dismissal order subject to review?

A. Dismissal of a complaint in this manner constitutes final action by the commission and is deemed to exhaust all administrative remedies under the Act for the purpose of allowing subsequent filing of the matter in court by the complainant, without the requirement of filing a petition for reconsideration pursuant to K.S.A. 44-1010.

Remedies

Q. What are the remedies if the hearing panel concludes discrimination has occurred?

A. If the presiding officer finds the school has engaged in or is engaging in any discriminatory practice, the presiding officer must render an order requiring the school to cease and desist from the practice and to take such affirmative action, including the hiring, reinstatement, or upgrading of employees, with or without back pay, as, in the judgment of the presiding officer, will effectuate the purposes of the act. The order may also include an award of damages for pain, suffering and humiliation, not to exceed the sum of $2,000, which are incidental to the act of discrimination.

Reconsideration and Judicial Review of the Order

Q. Is the order subject to review?

A. Yes. Either party may petition the commission for reconsideration of the matter in accordance with the provisions of K.S.A. 77-529. Unless the party petitions for reconsideration, no cause of action accrues in any court. Further, a party cannot urge or rely on any ground not set forth in the petition for reconsideration if the matter proceeds to court.

Q. After petitioning for reconsideration, is the order subject to further review?

A. Yes. Any action of the commission under KAAD is subject to review in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions except:

  • Determinations of no probable cause are specifically exempted;
  • The attorney general or county or district attorney, in addition to those persons specified by K.S.A. 77-611, and amendments thereto, has standing to bring an action for review; and
  • On review, the court must hear the action by trial de novo with or without a jury in accordance with the provisions of K.S.A. 60-238, and amendments thereto, and the court, in its discretion, may permit any party or the commission to submit additional evidence on any issue.
Q. What may the court do on review?

A. After hearing, the court may affirm the adjudication, set aside or modify it in whole or in part, or may remand the proceedings to the commission for further disposition in accordance with the order of the court.

Posting Notice of Rights

Q. Do we have to post notice of rights under KAAD?

A. Yes. Notice of rights under the Kansas Act Against Discrimination must be posted in conspicuous places in each school.

Penalties

Q. Are there penalties for violating the KAAD?

A. In some cases. A person who willfully resists, prevents, impedes or interferes with the commission in the performance of their duties under the act or who willfully violates an order of the commission is guilty of a misdemeanor and upon conviction may be punished by imprisonment for not more than one year, or by a fine of not more than five hundred dollars, or both.

Age Discrimination

Q. Why isn’t age included in the KAAD?

A. Age discrimination claims in Kansas are controlled by the Kansas Age Discrimination in Employment Act, K.S.A. 44-1111 et seq. Complaints under the KADEA are handled by the KHRC in the same manner as complaints under the KAAD.

Section 504 of the Rehabilitation Act of 1973

What’s Prohibited?

Q. What does Section 504 prohibit?

A. Discrimination against an otherwise qualified individual with a disability, solely on the basis of disability, by any program or activity receiving federal financial assistance.

Individual with a Disability

Q. For purposes of Section 504, who is an individual with a disability?

A. The definition of a disability adopted for the Americans with Disabilities Act by the ADA Amendments Act of 2008 applies to Section 504. An individual with a disability is one who has a physical or mental impairment that substantially limits one or more major life activities, has a record of having such an impairment or is regarded as having such an impairment.

Major Life Activity

Q. What is a major life activity?

A. Major life activities include seeing, hearing, walking, caring for oneself, learning, breathing, eating, sleeping, standing, lifting, bending, learning, reading, concentrating, thinking, communicating and working. A major life activity also includes the operation of a major bodily function, including but not limited to functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.

Qualified Individual with a Disability

Q. Are all individuals with disabilities entitled to protection under Section 504?

A. No. In order to be protected by Section 504 an individual must be “qualified” for the employment position, program or service offered by the school.

Q. Who is “qualified” for employment purposes?

A. For employment purposes, a qualified individual with a disability is one who meets the qualification standards for the job and is able to perform the essential functions of the job, with or without reasonable accommodation. The Supreme Court has interpreted Section 504 to mean that an otherwise qualified person is one who is able to perform the duties and responsibilities of the position in question, in spite of his disability. Southeastern Community College v. Davis, 442 U.S. 397, 407 (1979).

Q. Are any persons deemed “unqualified” because of the nature of the handicap?

A. Occasionally. Individuals who have a currently contagious disease or infection which would constitute a direct threat to the health or safety of others or who are unable to perform the essential functions of the job are generally deemed unqualified, thus not entitled to protection.

Q. What is “undue hardship?”

A. Under Section 504, “undue hardship” means undue financial or administrative burdens or a fundamental alteration in the nature of the program. Factors to consider in determining undue hardship include the overall size of the school, taking into account the number of employees, the number and type of facilities, and the size of the budget. Additionally, the nature and cost of the accommodation are factors to consider.

Q. What about drug users or alcoholics?

A. Drug addiction and alcoholism are both conditions which may result in a finding the drug user or alcoholic are handicapped individuals under Section 504. However, both the ADA and Section 504 exclude an individual who is currently engaging in the illegal use of drugs from protection. An individual who is not currently engaging in the illegal use is protected if he or she has successfully completed or is participating in a supervised rehabilitation program.

Section 504 also excludes from protection an individual who is an alcoholic whose current use of alcohol prevents the individual from performing the duties of the job or whose employment, by reason of the alcohol abuse, would constitute a direct threat to the property or safety of others. The ADA does not exclude alcoholics from the definition of an individual with a disability, but does provide that an employer may hold an alcoholic or illegal drug user to the same qualification or job performance standards as other employees.

Reasonable Accommodation

Q. Are we required to provide accommodations for employees or others under Section 504?

A. Yes. For more information on reasonable accommodation see the ADA section of this chapter. As with the ADA, the courts interpreting Section 504 have required reasonable accommodation of known disabilities unless the employee would remain unable to perform the essential functions of the job or providing the accommodation would result in undue hardship.

Protections for Students and Patrons

Q. Are students covered by Section 504?

A. Yes. Elementary, secondary, postsecondary and adult education students are covered by Section 504. At the postsecondary level, colleges and universities must provide students with reasonable accommodations if students are qualified for the program and accommodation would not fundamentally alter the nature of the program. At the elementary and secondary level, students must be evaluated and provided with a free appropriate public education. For students identified under IDEA, IDEA procedures suffice to meet Section 504 standards. For those not eligible under IDEA, most districts use Section 504 accommodation. For comprehensive information on Students and Section 504, see the KASB Section 504 Handbook. Also see the section on Discrimination in the Student section of this Handbook which can be accessed at this link: Discrimination: Based on Disability

Q. Are parents and patrons of the district protected by Section 504?

A. Yes. If you offer programs or services for parents and patrons (e.g., school plays, athletic events, parent-teacher conferences, ceremonies and banquets, etc.) you cannot discriminate against an individual because of their handicap.

Enforcement

Q. Who enforces Section 504?

A. For educational institutions, Section 504 is enforced by the Office for Civil Rights of the Department of Education.

Remedies

Q. What are the remedies under Section 504?

A. Remedies under Section 504 mirror those available under Title VI. Aggrieved individuals may file complaints with OCR. A violation of Section 504 can result in action by the Department of Education to terminate federal funding for the violating school or college. Additionally, aggrieved individuals may bring action in court against the educational institution. Generally, an aggrieved individual need not exhaust administrative remedies prior to filing private lawsuits. Greater Los Angeles Council on Deafness, Inc. v. Community Television of Southern California, 719 F.2d 1017 (1983), cert. denied, 467 U.S. 1252, rehearing denied, 468 U.S. 1224 (1984). A prevailing party in an action brought under Section 504 may be awarded attorney’s fees pursuant to the provisions of 42 U.S.C. § 1988.

Steps to Ensure Compliance

Q. What steps should school districts take to ensure compliance with Section 504?

A. Schools should take the following steps:

  • Adopt a policy which prohibits discrimination, including harassment, on the basis of disability or handicap;
  • Designate a school employee responsible for coordinating the school’s efforts under Section 504;
  • Adopt a complaint or grievance procedure that provides for the prompt and equitable resolution of complaints;
  • Adopt due process procedures for hearings involving students;
  • Take appropriate and continuing steps to notify students, employees and patrons of the school that the school does not discriminate on the basis of disability;
  • Ensure complaints of discrimination are investigated and resolved promptly and equitably; and
  • Provide training to staff and students on the elements of the policy and enforcement of the policy.

Title VI of the Civil Rights Act of 1964

What’s Prohibited?

Q. What does Title VI prohibit?

A. Title VI prohibits exclusion from participation in, denial of benefits of, and discrimination under federally assisted programs on the basis of race, color, or national origin. The law prohibits intentional practices as well as those with a discriminatory effect. Guardians Association v. Civil Service Commission of New York, 463 U.S. 582 (1983). Title VI contains an express limitation on its applicability to employment related actions. Relief for employment discrimination is available only “where a primary objective of the federal financial assistance is to provide employment.” 42 U.S.C. § 2000d-3; Reynolds v. School District No. 1, 69 F.3d 1523 (10th Cir. 1995).

Q. Does Title VI apply to students?

A. Yes. For additional information about this subject, see the “Discrimination: Based on Race, Color and National Origin” section in the Students chapter of this Handbook which can be accessed at this link: Discrimination: Based on Race, Color or National Origin

Q. Does Title VI cover racial harassment?

A. Yes. OCR has issued guidance on the investigation of allegations of racial harassment under Title VI. Schools should have policies which prohibit such harassment.

Enforcement

Q. Who enforces Title VI?

A. In the case of educational institutions, the Office for Civil Rights of the Department of Education. The Department may initiate investigations based on a complaint that indicates noncompliance with the Act, an annual report, or a periodic compliance review. Incidents of noncompliance may be referred to the Department of Justice for proceedings under any applicable federal, state, or local law. A private right of action exists. Cannon v. University of Chicago, 441 U.S. 677 (1979). An aggrieved individual may file a lawsuit without first exhausting available administrative remedies. Chowdhury v. Reading Hospital Medical Center, 677 F.2d 317 (3rd Cir. 1982).

Remedies

Q. What are the remedies under Title VI?

A. Loss of federal funding. An individual may obtain only injunctive, declarative, or prospective relief. Money damages may also be available. Attorney fees are available under 42 U.S.C. § 1988.

Q. Can federal funding be terminated without any formal proceedings?

A. No. Prior to instituting enforcement proceedings, the law requires the Department of Education to advise the school of the noncompliance and attempt to secure voluntary compliance. Enforcement proceedings cannot begin until the Department determines that voluntary compliance cannot be obtained. Further, there must be an express finding of noncompliance on the record, after an opportunity for a hearing, before funding may be refused or revoked. Further, the department is required to file a written report outlining the grounds for termination or refusal to fund with Congress.

Steps to Comply with Title VI

Q. What steps should the school take to comply with Title VI?

A. The Title VI regulations, like the Title IX and Section 504 regulations, suggest you should take the following steps:

  • Adopt a policy which prohibits discrimination, including harassment, on the basis of race, color or national origin;
  • Designate a school employee responsible for coordinating the school’s efforts under Title VI;
  • Adopt a complaint or grievance procedure that provides for the prompt and equitable resolution of complaints;
  • Take appropriate and continuing steps to notify students, employees and patrons of the school that the school does not discriminate;
  • Ensure complaints of discrimination are investigated and resolved promptly and equitably; and
  • Provide training on the elements of the policy and enforcement of the policy.

Title VII of the Civil Rights Act of 1964

What’s Prohibited?

Q. What does Title VII prohibit?

A. Title VII prohibits discrimination in employment with respect to compensation, terms, conditions, or privileges of employment, based on race, color, national origin, religion, or sex by private employers with 15 or more employees, as well as by federal, state and local governments.

Q. What types of discrimination are prohibited?

A. Unlawful discrimination includes overt or “disparate treatment” discrimination, “disparate impact” discrimination, sexual and racial harassment and retaliation. Under § 701(k), added to Title VII by the Pregnancy Discrimination Act of 1980, sex discrimination includes discrimination “on the basis of pregnancy, childbirth or related medical conditions.”

Retaliation

Q. Does Title VII protect individuals from retaliation?

A. Yes. Title VII, like most anti-discrimination laws, makes it unlawful for an employer to take action against an individual because that individual has opposed practices which are in violation of Title VII or has participated in a Title VII proceeding. The protection afforded is not absolute; acts by an employee which are disruptive, insubordinate, or damaging to the employer’s legitimate business interests may fall outside the statutory protection against retaliation. See Jennings v. Tinley Park Community Consol. School Dist. No. 146, 864 F.2d 1368 (7th Cir. 1988).

Q. What must an employee show to succeed on a claim of retaliation?

A. In order to succeed on a claim of retaliation under Title VII, an employee must show:

  • He or she engaged in protected activity;
  • An adverse employment action was taken; and
  • There was a causal connection between the employment action taken and the protected activity.

Disparate Treatment and Disparate Impact

Q. What are “disparate treatment” and “disparate impact”?

A. Title VII case law has developed two frameworks for analyzing discrimination claims: one for cases which involve intentionally discriminatory treatment, commonly referred to as disparate treatment, and one for disparate impact cases which involve facially neutral policies or practices which have a discriminatory impact. Proof of discriminatory motive is critical in disparate treatment cases, but is not required in disparate impact cases. International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977). Discriminatory intent may be inferred, however, from surrounding circumstances. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

Q. What must an employee do to establish a disparate treatment claim?

A. In some cases there may be direct evidence of discrimination. In other cases, it must be inferred from the circumstances. In two early Title VII cases, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981), the Supreme Court developed the criteria for establishing a case of intentional discrimination in the absence of direct evidence of unlawful motivation. This scheme requires the employee to establish a prima facie case of discrimination. The elements of a prima facie case include:

  • Membership in a class of persons protected by Title VII;
  • Qualification for the position in question;
  • An adverse employment action (failure to hire, failure to promote, termination of employment, etc.); and
  • A continuing need for a person with the plaintiff’s qualifications in the position, or the filling of the position with someone outside of the protected class.

After the employee establishes a prima facie case, the employer must then rebut the presumption of discrimination by producing evidence of nondiscriminatory reasons for the employment action. Once the employer has articulated legitimate, nondiscriminatory reasons for the employment action, the employee must prove that the proffered reasons are mere pretext, and convince the fact-finder that discrimination was a motivating factor for the adverse employment action.

Q. What must an employee do to establish a disparate impact claim?

A. In Griggs v. Duke Power Co., 401 U.S. 424 (1971), the Supreme Court held that facially neutral practices which operate as “built-in headwinds” for minority groups and are not related to measuring job performance capability violate Title VII regardless of the employer’s lack of discriminatory intent. In these cases, a plaintiff must show, by statistics or otherwise, that the employment practice in question results in a substantially disproportionate underrepresentation of a group of protected persons in order to establish a prima facie disparate impact case.

Once the employee has set forth a prima facie case, the burden shifts to the employer to show it had a business necessity for the challenged practice. The employer must demonstrate that the practice is “job related for the position in question and consistent with business necessity.” 42 U.S.C. § 2000e-2(k)(1)(A)(i).

Even if the employer demonstrates a business necessity, the employee can still prevail by showing the existence of an alternative practice which the employer refused to adopt, demonstrating that the asserted business necessity defense is mere pretext. Cost and effectiveness of the asserted alternative are factors which the court will consider in determining if the employee has met the rebuttal burden. 42 U.S.C. § 2000e-2(k)(1)(A)(ii).

Discrimination on the Basis of Sexual Preference or Gender Identity

Q. Does Title VII provide protection on the basis of sexual preference?

A. Until recently, most courts had held Title VII does not provide protection to individuals on the basis of sexual preference such as homosexuality. However, recently some courts have ruled differently. The U.S. Supreme court has not yet addressed the issue. Similarly, courts are splitting on the issue of coverage for transgender individuals.

Discrimination on the Basis of Religion

Q. What protection does Title VII provide for religion or religious beliefs?

A. Title VII prohibits discrimination in employment on the basis of an individual’s religion which is defined to include all aspects of religious observance and practice, as well as belief. Title VII protects an employee’s religious practices and observances whether or not the employee belongs to a particular religious sect, so long as the practices are based upon “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” 29 C.F.R. § 1605.1. If the belief of an individual is sincerely held and a motivating force in the individual’s life, an employer must make reasonable accommodation to the employee’s religion, in the absence of undue hardship on the employer’s business.

Q. What must an employee show to establish a case of religious discrimination?

A. To establish a prima facie case, an employee must show:

  • He or she had a bona fide religious belief;
  • The employer was informed of the religious belief and that it was in conflict with the employee’s responsibilities; and
  • He or she was threatened with or subjected to discriminatory treatment for the inability to perform the disputed job duty.

The question then becomes whether the employer is required to provide a reasonable accommodation for the religious belief.

Q. Is requiring employees to take leave without pay for religious observances a reasonable accommodation?

A. Probably. In Ansonia Board of Education v. Philbrook, 479 U.S. 60 (1986), the Supreme Court considered a challenge to a school district’s practice of requiring that days of religious observance be taken as leave without pay after three days of religious observance leave were exhausted and upheld the practice. The Tenth Circuit Court of Appeals similarly upheld the use of unpaid leave as a reasonable accommodation for a teacher’s religious beliefs in Pinsker v. Joint Dist. No. 28J, 735 F.2d 388 (10th Cir. 1984).

Q. Isn’t having to get a substitute for a teacher’s absences for religious reasons an undue hardship?

A. Most courts say no. Schools have unsuccessfully argued that being required to secure a substitute for a teacher’s absences constitutes an undue hardship in several cases. See Niederhuber v. Camden County Vocational & Technical School Dist., 495 F. Supp. 273 (D.N.J. 1980); Rankins v. Commission on Professional Competence of the Ducor Union School Dist., 593 P.2d 852(Cal. 1979). This has been true even where the district is unable to secure a substitute with proper qualification in the discipline. See Wangsness v. Watertown School Dist., 541 F. Supp. 332 (D.S.D. 1982).

Enforcement

Q. Who enforces Title VII?

A. The EEOC is responsible for enforcing Title VII. This is done through the processing of charges filed by individuals and the filing of lawsuits by the EEOC. The individual may also file his or her own lawsuit at the conclusion of the EEOC’s processing of the charge.

Remedies

Q. What are the remedies under Title VII?

A. Until passage of the Civil Rights Act of 1991, a plaintiff under Title VII or the ADA was entitled to traditional equitable remedies, such as reinstatement, backpay, front pay, and injunctive relief. As enacted, Title VII made no mention of legal damages, and except for nominal damages, such damages were generally considered unavailable under these laws. The Civil Rights Act of 1991, however, allows for recovery of compensatory and punitive damages in Title VII or ADA cases which involve acts of intentional discrimination. Such damages are not available in disparate impact cases.

Punitive damages are available against a respondent only if it is shown that the respondent engaged in the discriminatory practice with malice or reckless indifference to the federally protected rights of the victim. Punitive damages cannot be imposed on a government, government agency, or a political subdivision such as a public school district or community college.

Compensatory damages may be awarded to compensate individuals for their actual losses, and can include such things as medical expenses, future pecuniary losses, emotional pain and suffering, mental anguish, loss of enjoyment of life. The total amount of damages which may be awarded in cases is capped by the law. The amount of the cap is predicated on the number of employees employed by the school or college. The caps are as follows: more than 14 but fewer than 101 employees: $50,000; more than 100 but fewer than 201 employees: $100,000; more than 200 but fewer than 501 employees: $200,000; and more than 500 employees: $300,000.

Attorney fees may be awarded to the prevailing party. A jury trial is available under Title VII.

Q. Are punitive damages available?

A. Not against a school district, but they may be available against individual defendants.

Title VII: Sexual Harassment

Definition of Sexual Harassment

Q. What is sexual harassment?

A. The EEOC’s guidelines indicate unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:

  • Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment;
  • Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or
  • Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment. 29 CFR § 1604.11.

School District Liability for Harassment

By Supervisory Personnel

Q. Is a school district liable for sexual harassment by its supervisory personnel?

A. The types of harassment explained in numbers one and two of the EEOC definition are generally called quid pro quo harassment. There is strict liability for an employer for quid pro quo harassment by a supervisor who has the authority to take action against an employee. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986).

In Faragher v. City of Boca Raton, 524 U.S. 775(1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742(1998), the Supreme Court held an employer is always liable for a supervisor’s harassment if it results in a tangible employment action. However, if the employer has not taken adverse job action against the victim of the harassment, the employer may raise an affirmative defense to liability. The defense has two elements:

  • The employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and
  • The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm.
Q. Who qualifies as a supervisor?

A. According to the EEOC Enforcement Guidance, an individual qualifies as an employee’s supervisor if the individual has authority to undertake or recommend tangible employment decisions affecting the employee or has authority to direct the employee’s daily work activities. A person outside the employee’s direct chain of command may also “qualify” as a supervisor if the employee reasonably believes the harasser has broad authority over or could influence employment decisions with regard to the employee.

Q. What is a tangible employment action?

A. It is a significant change in employment status. Examples include hiring, firing, promotion, demotion, failure to promote, undesirable reassignment, a significant change in benefits, compensation decisions and work assignments.

Q. How can we show we exercise reasonable care to prevent and promptly correct harassment?

A. Adopt, publicize and even-handedly enforce a harassment policy and complaint procedures. Provide employees with copies of the policy and complaint procedure, redistribute the policy periodically, and provide employees with training on the policy and procedures.

Q. How can we show an employee acted unreasonably?

A. An employer may be able to show an employee acted unreasonably by showing the employee provided it with no information about the harassment; provided it with untruthful information about the harassment; failed to cooperate in the investigation of the complaint or unreasonably delayed in filing a complaint.

Q. What makes an employee’s refusal to file a complaint reasonable?

A. Generally it will be difficult for an employer to show the employee acted unreasonably if the employee can show she or he had a reasonable fear of retaliation, there were obstacles to filing complaints, or she or he perceived the complaint process to be ineffective.

By Non-Supervisory Co-Workers or Non-Employees

Q. Is the district liable for sexual harassment by non-supervisory co-workers and/or non-employee individuals?

A. Both the courts and the EEOC take the position the employer is liable if it knew or should have known of the conduct and failed to take steps to remedy the situation.

Paramour Preferences

Q. Is there any potential liability for paramour preferences?

A. The courts are split on whether a plaintiff denied promotion, advances, etc., in favor of someone romantically involved with the decision-maker has a valid cause of action. Compare Toscano v. Nimmo, 570 F.Supp. 1197 (D. Del. 1983) and Priest v. Rotary, 634 F.Supp. 571 (N.D. Cal. 1986) [violation found] with Miller v. Aluminum Company of America, 679 F.Supp. 495 (W.D.Pa. 1988); aff’d, 856 F.2d 184 (3rd Cir. 1988) and DeCintio v. Westchester County Medical Center, 807 F.2d 304 (2d Cir. 1986), cert. denied, 484 U.S. 825 (1987) [no violation].

Sexual Harassment Policy Components

Q. What should a sexual harassment policy contain?

A. At a minimum the policy should include:

  • A clear explanation of prohibited conduct;
  • Assurance that employees who make complaints of harassment or provide information related to such complaints will be protected against retaliation;
  • A clearly described complaint process that provides accessible avenues of complaint;
  • Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible;
  • A complaint process that provides a prompt, thorough, and impartial investigation; and
  • Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred.

Corrective Action

Q. What type of corrective action should we take if harassment occurs in our school?

A. Corrective action should be designed to stop the harassment, correct its effects on the employee, and ensure that the harassment does not recur. Remedial measures need not be those that the employee requests or prefers, as long as they are effective.

Disciplinary measures should be proportional to the seriousness of the offense. If the harassment was minor, such as a small number of “off-color” remarks by an individual with no prior history of similar misconduct, then counseling and an oral warning might be all that is necessary. On the other hand, if the harassment was severe or persistent, then suspension or discharge may be appropriate.

Corrective action should not adversely affect the complainant but should correct the effects of the harassment. It should be designed to put the employee in the position she or he would have been in if the misconduct had not occurred.

No Application to Students

Q. Does Title VII apply to students?

A.  No. Not unless they are also employees of the district. However, sexual harassment of students is covered by Title IX. See the discrimination section of the Students chapter of this Handbook for more information on student harassment which can be accessed at this link: Discrimination: Based on Sex: Sexual Harassment

Steps to Comply with Title VII

Q. What steps should school districts take to limit liability for sexual harassment in employment?

A. Schools should take the following steps:

  • Adopt a policy which prohibits discrimination, including harassment, on the basis of sex;
  • Designate a school employee responsible for coordinating the school’s efforts under Title VII;
  • Adopt a complaint or grievance procedure that provides for the prompt and equitable resolution of complaints;
  • Take appropriate and continuing steps to notify employees that the school does not discriminate on the basis of sex;
  • Ensure complaints of discrimination are investigated and resolved promptly and equitably; and
  • Provide training on the elements and enforcement of the policy for staff.
Q. Is having a sexual harassment policy really that important?

A. Yes, the existence of a policy forms the basis for the defense to liability under the most recent Supreme Court cases.

Employee on Student Harassment

Q. Can the district have liability if an employee harasses a student?

A. Yes, but not under Title VII. A student may have a damage remedy under Title IX of the Education Amendments of 1972, but only if a school official who has authority to address the alleged harassment has actual knowledge of the harassment and fails to adequately respond. A school district may also have liability for tort claims under state law.

Title IX of the Education Amendments of 1972

What’s Prohibited?

Q. What does Title IX prohibit?

A. Discrimination on the basis of sex in private or public educational programs receiving federal funds.

Enforcement

Q. Who enforces Title IX?

A. The Office for Civil Rights of the Department of Education enforces the Act. Periodic compliance reviews or a complaint filed by an aggrieved individual may trigger an investigation. As with Title VI and Section 504, complaints of discrimination under Title IX can be filed with OCR.

Application

To Employees

Q. Does Title IX cover employment discrimination?

A. Unlike Title VI, after which Title IX was patterned, none of the statutory exemptions under Title IX apply to employment. However, until the Supreme Court decision in North Haven Board of Education v. Bell, 456 U.S. 512 (1982), most courts limited Title IX’s protections to direct beneficiaries of the federal financial assistance and did not extend those protections to victims of employment discrimination. In North Haven, however, the Supreme Court upheld regulations issued by the Department of Health, Education and Welfare which prohibited discrimination on the basis of sex in employment under Title IX.

Q. What standards do courts apply to claims of sexual harassment in employment under Title IX?

A. Courts have generally concluded that developing separate standards for sex discrimination under Title IX and Title VII would serve no purpose, and have applied Title VII analysis to Title IX claims involving employment discrimination. See Mabry v. State Bd. of Community Colleges Occupational Educ., 813 F.2d 311 (10th Cir.), cert. denied, 484 U.S. 849 (1987); Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir. 1988).

To Students

Q. Does Title IX protect to students?

A. Yes. See the discrimination section of the chapter on “Students” in this Handbook for more information on this topic. Discrimination: Based on Sex: Athletic Programs; Discrimination: Based on Sex: Pregnant or Married Students

Q. Do courts apply different standards to claims of sexual harassment by students under Title IX?

A. Yes. See the discrimination section of the chapter on “Students” in this Handbook for more information on this topic. Discrimination: Based on Sex: Sexual Harassment

Remedies

Q. What remedies are available?

A. Federal funding may be terminated. An aggrieved individual may file a private right of action. Cannon v. Univ. of Chicago, 441 U.S. 677, 706-708 (1979). An aggrieved individual may obtain injunctive relief, e.g., an order that the individual be hired, as well as attorney fees. Money damages are available. Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60(1992).

Steps to Comply with Title IX

Q. What steps should school districts take to ensure compliance with Title IX?

A. Schools should take the following steps:

  • Adopt a policy which prohibits discrimination, including harassment, on the basis of sex;
  • Designate a school employee responsible for coordinating the school’s efforts under Title IX;
  • Adopt a complaint or grievance procedure that provides for the prompt and equitable resolution of complaints;
  • Take appropriate and continuing steps to notify students, employees and patrons of the school that the school does not discriminate on the basis of sex;
  • Ensure complaints of discrimination are investigated and resolved promptly and equitably; and
  • Provide training on the elements and enforcement of the policy for students and staff.
+ Chapter 4

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School Law Handbook

Chapter 4 – Elections

Board Member Elections
Method of Election & Voting Plans
Member District Boundaries
Campaign Finance

Board Member Elections

When Held

Q. When are school board elections?

A. The general election is on the first Tuesday following the first Monday in November of odd numbered years. Primary elections, if a primary is necessary, are held on the first Tuesday in August of odd-numbered years. K.S.A. 25-2006.

Q. When is the filing deadline?

A. Noon on June 1 of odd numbered years, or if such date falls on a Saturday, Sunday or holiday, the before noon of the next following day that is not a Saturday, Sunday or holiday. K.S.A. 25-2007(c); K.S.A. 25-205.

Q. When must we hold a primary?

A. A primary election must be held if needed to reduce the number of candidates for each office in the general election to not more than three candidates. A primary election is prohibited unless by holding the primary two or more candidates will be eliminated and if there are not more than three times the number of candidates as there are offices to fill.

Eligibility to be a Candidate

Q. A person who owns considerable farmland in our district, but whose home is in a neighboring district, wants to run for our board. Is he eligible?

A. No. Only residents of the district are eligible.

Q. Can a resident of the school district run for any board seat?

A. Any qualified elector who is a resident of the district may run for an at-large position. If your school district uses a member district method of voting, a candidate must be a resident of both the school district and the member district to be eligible for the member district seat.

Certifying the List of Offices to be Voted Upon

Q. Does the school district have any responsibility with regard to school board member elections?

A. Yes. By May 1 of each odd numbered year, the clerk must certify to the county election officer a list of all school offices to be voted upon at each school election, any boundary changes in member districts, and the voting plan of the district.

If the district is in more than one county, the home county election officer receives the original certification. The county election officers in other counties must be given copies of the certification. K.S.A. 25-2017A.

Write-In Votes

Q. Can people be elected to a board through write-in votes?

A. Yes. K.S.A. 25-2021 allows for write-in votes.

Filing the Oath of Office

Q. After being elected, must a person take any other action to qualify to fill the board position?

A. Yes. You must file an oath of office with the county election officer. K.S.A. 25-2023.

Method of Election & Voting Plans

Method of Election Options

Q. We are thinking of changing our method of election. What are our options?

A. Four options are available:

  • Two-member districts: three board members in each district, and one board member at large;
  • Three-member districts: two board members in each district and one at-large;
  • Six-member districts: one board member in each district and one at-large; or
  • All board members elected at-large. K.S.A. 72-1089.

Voting Plan Options

Q. What are our voting plan options?

A. Voting Plan A which allows all voters to vote for all candidates in both the general and primary election.

Voting Plan B which allows all voters to vote for all positions in the general election, but allows voters to vote only for candidates in their member district in primary elections.

Voting Plan C which allows voters to vote for only candidates in their member district in both the general and primary elections. K.S.A. 72-1083.

Procedures for Changing the Method of Election or Voting Plan

Q. What procedure do we follow to change our voting plan or method of election?

A. The board may adopt a resolution to change the method of election, the voting plan, or both, and file the resolution with the county election officer. An election and approval by the voters is required before the change can be implemented. K.S.A. 72-1081 and K.S.A. 72-1085.

Plan of Change

Q. Must we do anything prior to the adoption of the resolution?

A. Yes. You must first prepare a plan of change showing:

  • The territory, numbering and estimated population of each of the proposed member districts (unless at-large method);
  • The same characteristics for each of the existing member districts (unless at-large method); and
  • The proposed and existing voting plans. K.S.A. 72-1082.
Q. What do we do with the plan of change once it is completed?

A. Keep it on file in the board clerk’s office. K.S.A. 72-1085.

Resolution to Change the Method of Election, or Voting Plan, or Both

Q. What must the resolution contain?

A. The resolution must state the board’s intent to change the method of election, or voting plan, or both; must specify that the proposed change will be made only if it is approved by the voters; and must state that the plan of change is on file in the clerk of the board’s office. K.S.A. 72-1085.

Patron Initiated Change

Q. If the board does nothing to change the method of election or voting plan, can the patrons of the district force a change?

A. Yes. Ten or more electors in the district may prepare a plan of change and submit the plan to the clerk of the board and the Kansas State Board of Education. If the plan meets the statutory criteria, the State Board must certify it to the county election officer and the school district. The persons seeking the change must be notified by the county election officer that the plan has been certified by the State Board. At that point, they may circulate petitions and if they get the requisite number of signatures, force an election on the change. K.S.A. 72-1086.

Election

Q. Must we publish notice of the election?

A. Notice of the election must be published, but it is the duty of the county election officer, not the school district, to publish notice. K.S.A. 72-1087. The notice must be published in not less than 45 days and not more than 60 days from the passage of the resolution. It also must be published not less than three days prior to the election.

Q. Are there any restrictions on when we can pass a resolution seeking a change in the method of election or voting plan?

A. Yes. You can only make a change between the first Wednesday in November of an even numbered year and the first Tuesday in June of an odd numbered year, if the change is also approved in an election before the end of the period. K.S.A. 72-1085.

Member District Boundaries

Adjusting Boundaries

Q. If population shifts in our school district result in member districts that do not have substantially equal populations, must we take any action?

A. Yes. The board must change the boundaries of member districts if the population of a member district is more than five percent above or below the mean population of member districts in the school district. K.S.A. 72-1077.

Q. How do we determine the population of member districts?

A. Use the most recent federal census data or population estimates determined by the county election officer of your home county. K.S.A. 72-1077.

Q. Are there restrictions on how the boundaries are drawn?

A. Yes. Member districts must be drawn as compactly and as equally as possible and should include whole voting precincts to the extent practicable. K.S.A. 72-1077.

Adopting a Resolution

Q. What action does the board take to make the changes in the boundaries?

A. The board adopts a resolution which specifies the changes in the boundaries. K.S.A. 72-1077.

Q. Doesn’t the resolution need to be adopted in October?

A. No. At one time the law required action to be take in October of even-numbered years, but it now allows the action to be taken any time except during the 90-day period preceding a regular school board election. K.S.A. 72-1077.

Q. Does the resolution have to be published?

A. Yes. Once in a newspaper having general circulation in the district and within two weeks after the board adopts the resolution. K.S.A. 72-1077.

Consequences of Failing to Act

Q. Are there any penalties if we take no action?

A. No. But the county or district attorney may give notice of the failure to carry out its duty to make changes and may file an action in district court asking the court to compel the board to make changes to the boundaries if the board fails to change the boundaries within 60 days after receiving the notice. K.S.A. 72-1077.

Q. Can patrons challenge the changes and force an election?

A. No. The county attorney or attorney general may challenge the new boundaries by filing a challenge in court if such action is taken within 60 days after the publication of the resolution. There is no statutory procedure allowing for a citizen challenge of the action. However, a citizen of the district might be able to challenge the constitutionality of the member districts in an action brought pursuant to the equal protection clause of the Fourteenth Amendment.

Campaign Finance

Required Reports

Application of the Kansas Campaign Finance Act

Q. When I run for board office, do I have to file any campaign finance reports?

A. Yes. If your school district has more than 35,000 pupils, you are subject to the Kansas Campaign Finance Act and must follow its reporting requirements. Candidates in smaller districts must follow the less stringent requirements of the laws governing local government elections.

Affidavit of Intent

Q. I am from a small school district. I rarely have opposition for my board seat and do not spend much money on my campaign. What are my requirements?

A. If you intend to expend less than $1000, excluding your filing fee, and receive campaign contributions in an aggregate amount or value of less than $1,000 in each the primary and the general election you may file an affidavit of this intent and you are not required to file a report. K.S.A. 25-904(a).

Q. I signed an affidavit of intent to spend less than $1,000, but now it looks like I may spend more. What do I have to do?

A. You have to file the statements of expenditures and receipts as if you had not filed the affidavit. K.S.A. 25-904(d).

Itemized Statements

Q. I have competition this year and might raise or spend more than $1000. What do I need to do?

A. You must file an itemized statement under oath with the name and address of each person who has contributed in excess of $50 during the election period together with the amount and date of the contributions. You must also file an itemized statement of all expenditures made or obligations incurred by you in connection with each primary, general or special election. K.S.A. 25-904(b).

Filing Reports

Q. Where do I file the affidavit of intent?

A. With the county election officer of the county of your residence.

Q. When do I file the affidavit of intent?

A. Not later than the ninth day preceding the primary election.

Q. If I need to file an itemized statement, where do I file it?

A. With the county election officer of the county of your residence.

Q. If I need to file one, when do I file the itemized statement?

A. Within 30 days after each primary, general or special election.

Q. Do school board members in districts with more than 35,000 have to file these reports in addition to the ones required under the Campaign Finance Act?

A. No. They are exempt from the requirements of K.S.A. 25-904(b).

Penalties for Failure to File Reports

Q. What if I fail to file the report?

A. You can be found guilty of a misdemeanor and fined up to $1,000. K.S.A. 25-905(a).

Q. What if I did not know I had to file these reports?

A. The county election officer should notify you that you failed to file the statement in a timely manner. If you file the statement within 10 days after receiving the notice, the penalties will not be imposed.

Q. When does the county election officer send this notice?

A. Within 10 days from the expiration of the time for filing such statement and before any action is brought to enforce the penalties.

Campaign Committee Reporting

Q. If I have a campaign committee are there additional requirements?

A. Yes. You must have a treasurer and keep a detailed account of all moneys or anything of value it receives and the manner in which it is expended. Additionally, you must file a statement of all the committee’s receipts and expenditures, “showing in detail from whom such moneys or property or other thing of value were received, to whom such moneys or property or other thing of value were paid, for what specific purposes each payment was made, and the exact nature of the service rendered in consideration thereof.” K.S.A. 25-901.

Q. When does the statement have to be filed?

A. Annually, on or before December 31.

Q. What period does the statement have to cover?

A. The period ending on December 1 immediately preceding the filing.

Q. What is the penalty for failing to comply?

A. Any person violating any of the provisions of K.S.A. 25-901, is guilty of a misdemeanor, and upon conviction must be fined not more than $100. K.S.A. 25-902.

Public Funds & Campaigning

We have a bond election coming up in our district. Can the board print “Vote Yes” literature to promote the election?

A. No. The general rule is that school boards may provide information on an issue but may not use public funds to advocate for or against passage of a particular proposal. School officials must maintain a “semblance of neutrality” and make sure that no public funds are used to advocate for passage or the defeat of any proposal that comes before the voters of the district in an election. Kansas Electric Power Co. v. City of Eureka, 142 Kan. 117, 120 (1935).

Q. May a board of education advocate for passage of a local option budget?

A. No. A school district has the obligation to educate the electorate regarding issues to be voted on but may not advocate a position regarding the issue. Kimsey v. Board of Education, 211 Kan. 618, 624 (1973); Kansas Attorney General Opinion No. 93-33 (1993).

Q. Does this mean I can never speak in favor of a bond issue or other election issue?

A. No. School officers and employees may advocate a position on an issue in an election in their individual capacities, just not in their official positions using school funds or school time.

Q. As a board member or school employee, may I participate with a group of other citizens in promoting the election?

A. Yes. You may, so long as you are not acting in your official capacity.

Q. In my official capacity, may I give presentations about what the money raised by the local option budget or bond election will be used for?

A. Absolutely. This is educating the electorate, so they can be informed when they cast their votes. You can and should provide this type of information to the voters. You also can urge them to vote; you just cannot urge them to vote in a particular way.

Question-Submitted Elections

Q. What is a “question submitted election?”

A. Any election at which a special question, such as whether to authorize a capital outlay mill levy, is to be voted on by the voters in the district. K.S.A. 25-2007(a).

Q. Who conducts question submitted elections?

A. The county election officer.

Q. What if the county election officer refuses to hold an election when we request it?

A. In some instances, the Secretary of State has authority to resolve differences, but in other instances, the election officer’s ruling is conclusive. Check with counsel to determine your rights to an election on specific question. K.S.A. 25-2011.

Using a Mail Ballot Election

Q. When may we use a mail ballot election?

A. You may use a mail ballot election for a question submitted election at which all of the qualified electors of the school district are the only electors eligible to vote, unless the election is for disorganization of the district pursuant to K.S.A. 72-634, et seq.

A mail ballot election must:

  • Be conducted on a date, mutually agreed upon by the school board and the county election officer, not later than 120 days following the date the request is submitted by the board;
  • Be conducted pursuant to a written plan, which must include a written timetable for the conduct of the election, submitted by the county election office? and approved by the secretary of state;
  • Be non-partisan;
  • Not involve the election of a candidate for office; and
  • Not be held on the same date as another election in which the qualified electors of that subdivision of government are eligible to cast ballots. K.S.A. 25-432.
Q. Who mails the ballots in a mail ballot election?

A. The county election officer mails all official ballots with a return identification envelope and instructions sufficient to describe the voting process to each elector. K.S.A. 25-433(a).

Q. When are the ballots mailed?

A. Not sooner than the 20th day before the date of the election and not later than the 10th day before the date of the election. Ballots are mailed by first-class mail, addressed to the address of each elector appearing in the registration records, and placed in an envelope which is prominently marked “Do Not Forward”? K.S.A. 25-433(a).

Q. How are votes cast in a mail ballot election?

A. The elector may return the marked ballot to the county election officer by United States mail, if it is received by the county election officer by the date of the election, or personally deliver the ballot to the office of the county election officer before noon on the date of the election. The ballot must be returned in the return identification envelope? K.S.A. 25-433(b).

Q. What if a qualified elector does not receive a ballot in the mail?

A. If the ballot is destroyed, spoiled, lost or not received by the elector, the elector may obtain a replacement ballot from the county election officer. K.S.A. 25-433(d).

Q. Which ballots are counted in a mail ballot election?

A. A ballot is counted only if:

  • It is returned in the return identification envelope;
  • The envelope is signed by the elector to whom the ballot is issued; and
  • The signature has been verified. K.S.A. 25-433(e).
Q. How is the signature verified?

A. The county election officer verifies the signature of each elector on the return identification envelope with the signature on the elector’s registration records.

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School Law Handbook

Chapter 5 Employees

 

In General
Evaluation
Family & Medical Leave Act
Notice and Posting Requirements
First Amendment Rights
Test for Determining if Speech is Protected
Health Issues
Supplemental Contracts
Tenure

In General

Authority to Hire

Q. May we hire any employees we want?

A. Generally, yes. The board has the authority to appoint employees to serve at the pleasure of the board and fix their rate of compensation. K.S.A. 72-1137.

Q. Do administrators have the authority to hire the employees who work under them?

A. No. In public school districts administrators have authority to interview applicants and make employment recommendations to the board. However, the board must approve all employee contracts.

Lobbyists

Q. May school boards employ lobbyists?

A. Yes. K.S.A. 72-9935 specifically authorizes the employment of lobbyists by school districts.

School Security or Law Enforcement Officers

Q. May we hire school security or law enforcement officers?

A. Yes. K.S.A. 72-6146 authorizes the employment of such personnel and defines their powers and authority. Additionally, the statute authorizes schools or community colleges to employ campus police officers who have the power and authority of law enforcement officers:

(1) On school property;

(2) At school events;

(3) On the streets and highways adjacent to school property;

(4) Within the city or county where the school is located, as necessary to protect the health, safety or welfare of students and faculty, with the agreement of local law enforcement officials pursuant to an agreement approved by both the board and the city or county;

(5) When in fresh pursuit of a person;

(6) When transporting persons in custody to an appropriate facility;

(7) In coordination with local law enforcement, when there is reason to believe a crime occurred on the property.

When engaged in protective functions, campus police officers are subject to the agreements in the memorandum of understanding, developed between the schools, law enforcement, the courts and relevant others under the School Safety and Security Act, K.S.A. 72-6141, et seq., in compliance with directive in the Juvenile Justice Reform Act of 2016 (Senate Bill 367).

Attorneys

Q. May we hire attorneys to defend our employees if they are sued for a situation arising out of their employment?

A. Yes. K.S.A. 72-1138(d).

Long Term Contracts

Q. May we enter into long-term contracts with employees?

A. You may contract with superintendents, assistant superintendents, supervisors and principals for a term of not more than three years. There is no authority in statute to enter into long-term contracts with other employees.

Q. Should we enter into long-term contracts?

A. There is no definitive answer to this question. Before entering into a long-term contract, you should carefully review the facts of your situation with your board attorney.

Bullying

In Employment

Q. Is there a law that addresses bullying in employment?
  1. Yes. K.S.A. 72-6147 deals with bullying in schools for both students and staff.
Q. What does the law require school to do?

A. The law requires the board to adopt a policy to prohibit bullying by any student, staff member or parent towards a student or staff member on or while utilizing school property, in a school vehicle or at a school-sponsored activity or event. K.S.A. 72-6147(b).

It also requires the board to adopt and implement a plan to address bullying by students, staff or parents toward students or staff on school property, in a school vehicle or at a school-sponsored activity or event. K.S.A. 72-6147(c).

Training

Q. Does the law require training for staff?

A. Yes. K.S.A. 72-6147(c) indicates the plan to address bullying must include provisions for training and educating both staff members and students.

Definition of Bullying

Q. How does the law define bullying?

A. The law defines bullying to include:

Any intentional gesture or any intentional written, verbal, electronic or physical act or threat that is sufficiently severe, persistent or pervasive that it creates an intimidating, threatening or abusive educational environment for a student or staff member that a reasonable person, under the circumstances, knows or should know will have the effect of:

  • Harming a student or staff member, whether physically or mentally;
  • Damaging a student’s or staff member’s property;
  • Placing a student or staff member in reasonable fear of harm to the student or staff member; or
  • Placing a student or staff member in reasonable fear of damage to the student’s or staff member’s property; or
  • Cyberbullying; or
  • Any other form of intimidation or harassment prohibited by the board of education of the school district in policies concerning bullying. K.S.A. 72-6147(a)(1).
Q. What is cyberbullying?

A. Cyberbullying is bullying that uses any electronic communication device. It includes bullying through things like e-mail, instant messaging, text messages, blogs, mobile phones, pagers, online games and websites. K.S.A. 72-6147(a)(2).

School Vehicle includes Private Vehicles

I know the school owned buses, vans and cars are school vehicles, but what if we transport students to school activities in private vehicles?

A. The definition of school vehicle in the bullying law includes private vehicles used to transport students or staff members to and from school or any school-sponsored activity or event. K.S.A. 72-6147(a)(3).

When Bullying is Harassment

Q. How do we handle bullying that is based on a protected factor like sex or race?

A. It should be investigated and handled under the harassment policies. It should be investigated, and you should take appropriate corrective action. The action should be designed to stop the harassment, prevent it from recurring and prevent retaliation against the person being bullied and harassed.

Compensation, Bonuses & Salary Deductions

Payment of Salary: Teachers

Q. Most of our teachers are on nine-month contracts. Do we pay them in nine monthly installments?

A. No. K.S.A. 74-4940 provides that certificated personnel in a school district shall be paid in not less than 12 substantially equal installments, paid once, or more often, each month. However, a teacher may request to have the last three installments (June, July and August) paid as a lump sum no later than June 30 of the year.

Q. Does the contract have to start in September?

A. No. The law used to require that contracts begin in September but that requirement was removed from the law.

Lump Sum Payment for Summer Months
Q. When and how must a request for a lump sum payment be made?

A. The request must be in writing and must be filed with the district by April 1.

Q. Does a teacher have to make the request every year?

A. No. The request remains in effect unless the employee requests that it be revoked.

Payment of Salary: Classified Staff

Our cooks and janitors who are on nine-month contracts have asked to be paid in twelve monthly installments like our teachers. May we do this?

A. Maybe. K.S.A. 74-4940 creates a required exception to the general rules set forth in the Kansas Wage Payment Act, K.S.A. 44-301 et seq., that employees be paid for work completed within 15 days after the end of the pay period and that a pay period cannot exceed one month but requires the exception only for certificated personnel. The law was amended in 1996 to allow the board to adopt a policy allowing other school employees to be paid their contractual compensation each school year in not less than 12 substantially equal installments. If the board chooses to adopt such a policy, a copy of the policy must be provided to all noncertificated employees. If the board does not adopt such a policy, the rule of the Wage Payment Act applies to cooks and janitors and would prohibit you from paying those persons in August for work which was completed in May.

Bonuses and Incentives

Q. May we pay retention bonuses or employment incentives to our employees?

A. To some employees, yes. K.S.A. 72-2244 allows a board to pay employment incentive or retention bonuses to certificated employees. Additionally, K.S.A. 72-2166 requires payment of $1,000 per year incentive bonuses to teachers who obtain master teacher certification. These bonuses are permissibly, but not mandatorily negotiable.

Bonuses for other employees are not authorized by statute but a board may be able to pay such bonuses pursuant to its home rule powers.

Paycheck Deductions

Q. May we make deductions from employees’ paychecks for specific purposes?

A. Yes. In order to do so, the board must pass a resolution which provides for deductions for specified purposes and which requires written authorization from each employee in specific terms as to the amount, purpose and disposition of any amounts so deducted. K.S.A. 72-2241(a).

Q. Must we have written authorization for deductions of social security or taxes?

A. No. Those deductions are required by law and written authorization is not required.

Q. Several of our teachers have authorized deductions for payment of their professional association dues. Is a new authorization required each year?

A. No. Authorizations for deductions of dues are effective until modified or revoked in writing by the employee or the professional association. K.S.A. 72-2241(a).

Q. Some of our employees have requested salary deductions for the purchase of tax sheltered annuities. Are we required to do this?

A. K.S.A. 72-2243 requires you to contract with any employees for reductions in compensation and contribution for tax sheltered annuities as permitted in the federal tax code.

Q. May we include tax sheltered annuities as an option under our Section 125 cafeteria plan?

A. No. Federal law prohibits this.

Q. May we contribute to our employee’s tax-sheltered annuity or deferred compensation plan?

A. Yes. K.S.A. 72-2243 authorizes boards of education to contribute to an employee’s tax-sheltered annuity or deferred compensation plan.

Dress Codes

Q. May we have a dress code for teachers?

A. Probably. But the subject is mandatorily negotiable.

In Kelley v. Johnson, 425 U.S. 238 (1976), the Supreme Court, without deciding whether there was a “liberty interest” in personal appearance under the Fourteenth Amendment, placed the burden on the employee to show grooming regulations were so irrational as to be arbitrary. Under the Kelley decision a person, at most, has a basic liberty interest in his personal appearance that cannot be infringed without some showing of a rational basis related to a legitimate governmental interest. Courts will consider the context of the regulation in determining the level of deference to be granted to local education officials. Regulations governing dress or hair must be rationally related to a legitimate school district interest in order to support infringing on a person’s personal liberty interests under the Fourteenth Amendment.

Mandated Dress or Grooming

Q. May we require male teachers to wear ties?

A. Probably. But again, the issue is mandatorily negotiable. In East Hartford Education Ass’n v. Board of Education of Town of East Hartford, 562 F.2d 838 (2nd Cir. 1977), the court concluded a requirement that a teacher wear a necktie did not impermissibly infringe on his First Amendment right to free expression or his rights to privacy and liberty.

Q. May we require that male teachers or other employees be clean shaven?

A. The Kelley decision would suggest Courts have split on this issue. In Domico v. Rapides Parrish School Bd., 675 F.2d 100 (5th Cir. 1982), the school district had a no-beard policy for all students and employees. The court found the regulation was a legitimate means of furthering the school district’s interests in teaching hygiene, instilling discipline, asserting authority, compelling uniformity and could be applied to employees as well as students.

However, in Pence v. Rosenquist, 573 F.2d 395 (7th Cir. 1974), the court found that a school district’s regulation which required bus drivers to be clean shaven to be wholly irrational and arbitrary. The court found “no relationship whatever between the wearing of a beard or mustache and the ability to drive a bus.”

Jewelery, Body Piercings or Tattoos

Q. May we prohibit employees from wearing jewelry in body piercings or having visible tattoos?

A. Probably. If you can show you have legitimate reasons for doing so. In Piercy v. Maketa, 480 F.3d 1192 (10th Cir. 2007), an employee was fired for wearing a tongue stud, after being directed not to do so, in violation of the employer’s uniform policy. The court concluded the employer had a legitimate, nondiscriminatory reason for discharging and employee that was not a pretext for retaliation in violation of Title VII.

Religious Garb or Slogans

Q. May we prohibit the wearing of religious garb by employees?

A. Except in states where state statutes prohibit the wearing of religious garb (Kansas does not) most courts considering this issue have concluded that religious attire alone is insufficient to violate the Establishment Clause. Generally, the courts conclude that a teacher’s right to free speech and to freely exercise religion outweigh the school’s interest in not promoting religion. If the wearing of religious attire is accompanied by preaching or praying, or constitutes a material disruption of school operations, however, the activity, as well as the attire, can generally be regulated.

Q. May we prohibit the wearing of clothing with religious slogans?

A. In Fender v. Kansas Social and Rehabilitation Services, 168 F.Supp.2d 1216 (D.Kan. 2001), a state hospital employee was unable to show her supervisor’s enforcement of a dress code policy that prevented her from wearing clothing with religious slogans at work placed a substantial burden on her religious beliefs. Therefore, the court concluded the supervisor was entitled to qualified immunity on the employee’s First Amendment claim.

In a school, where the wearing of clothing with religious slogans could be viewed as promoting religion in the eyes of young, impressionable children, the arguments would be even more compelling, and might include an Establishment Clause defense.

Due Process Rights

Q. When does an employee have a right to due process?

A. The constitution provides that a person cannot, through state action, be deprived of life, liberty or property without due process of law. In order for an employee to have a due process right, he must have either a liberty interest or a property interest in continued employment.

Liberty Interest

Q. What must an employee show to establish a liberty interest?

A. To succeed on a claim of infringement of liberty interests, a plaintiff must prove:

  • False characterizations were made by a public official;
  • The false characterizations impugned his good name, reputation, honor or integrity, or stigmatized him so as to foreclose future employment opportunities;
  • The false characterizations were made public; and
  • As a result of the false characterizations a right or status previously recognized by state law was distinctly altered or extinguished.
Q. What kinds of false statements impugn a person’s reputation?

A. Charges of dishonesty, immorality or racism have been found to create liberty interests.

Q. Are allegations of improper job performance enough to create a liberty interest?

A. Allegations of improper job performance are not so stigmatizing as to injure the employee’s reputation or foreclose future employment. Weathers v. West Yuma County Sch. Dist, 530 F. Supp. 1335 (10th Cir. 1976). The fact an employee may be less attractive to future employers is insufficient. Martin v. U.S.D. No. 434, 728 F.2d 453 (10th Cir. 1984). However, when the allegations go to the overall capacity or ability of the individual to perform the job, rather than just some inadequacies, a liberty interest may arise. Miller v. City of Mission, 705 F.2d 368 (10th Cir. 1983).

Q. Are communications in executive session or between the board and superintendent sufficient to make the statements public?

A. Generally not. If a board discusses an employee in executive session and does not disclose the information discussed to a third party, there is no publication of the statements. Negative recommendations about an employee from the superintendent to a board in an executive session do not constitute publication. Codgill v. Comal Ind. Sch. Dist., 630 F. Supp. 47 (W.D. Tex. 1985). Statements made at a board meeting while the meeting is open to the public, however, may constitute publication. The mere communication of negative statements does not implicate a liberty interest unless the employer has made or is likely to make the stigmatizing charges public in any official or intentional manner.

Q. Does a statement which defames an individual always create a liberty interest and result in a due process requirement?

A. No. Defamation of an individual, standing alone, does not involve due process protection, absent an accompanying loss of employment. Termination or nonrenewal of an employment contract satisfies the change of status requirement. McGhee v. Draper, 639 F.2d 643 (10th Cir. 1981). Internal transfer, reassignment, demotion, lack of promotion, short-term suspension with pay, and critical evaluations without a change in employment status do not satisfy the requirement.

Property Interest

Q. What creates a property interest in continuing employment?

A. In the employment context, property interests are generally created by continuing contract laws, tenure laws, or provisions in contracts, employment policies, or employee handbooks.

Q. When do teachers have a property interest in employment?

A. The protections of the Kansas Due Process Procedures Act, K.S.A. 72-2252, et. seq., now applies only to teachers at postsecondary institutions, specifically technical colleges, community colleges and Washburn Institute of Technology. These provisions used to apply to public school district teachers, but these teachers were removed from the law’s protections by the legislature in 2014.

Any teacher who has completed three consecutive years of employment in a postsecondary institution and is offered a fourth contract, has a property interest in continuing employment. Any teacher who has completed two consecutive years of employment in a postsecondary institution and is offered a third contract, may also have a property interest, if that teacher had previously attained tenure in another Kansas postsecondary. Teachers who meet these requirements are generally referred to as tenured teachers and they always have a property interest in continuing employment created by the Kansas Due Process Procedures Act.

Q. Do teachers ever have a property interest in employment?

A. Yes. Under K.S.A. 72-2251(a), a teacher, at the school district or postsecondary level, must be given notice of the intent to nonrenew his contract on or before the third Friday in May of each year. If a teacher is not given written notice of the intent to nonrenew his contract by that date, the teacher continues in the school district’s employ for another school year. The teacher then has a property interest in the contract for the term of the contract.

A school district could not fire the teacher during the term of the contract without providing due process. A teacher whose contract is terminated during the term of the contract is entitled to constitutional due process, not the statutory due process procedures which apply to tenured teachers only. Additionally, the professional agreement between the board and its teachers may create a right to due process prior to nonrenewal or termination of a contract.

Plan of Assistance Not Required

Q. Are we required to place a teacher on a plan of assistance prior to nonrenewing a contract?

A. No. Some state statutes require plans of assistance for teachers whose performance issues are remediable, but Kansas is not one of them.

Classified Personnel

Q. What about our noncertificated personnel?

A. This is a question which is answered by the employee’s contract. If the contract is for a specific term, for instance September 1, 2016 through June 1, 2017, the employee has a property interest in employment for the term of the contract. However, if the employee is hired as an employee-at-will, generally the employee may be fired at any time, or may be fired with the requisite notice if your contract requires notice. In this case there is no property interest and no due process right.

In this context the courts have looked closely at employee handbooks and board policies to determine if there is an implied contract which would create a property interest. Statements in handbooks or policies which suggest an employee may be terminated only for cause or oral representations to employees such as, “As long as you do a good job, you’ll have a job here,” may also serve as evidence to create a property interest in continuing employment. When in doubt, consult your attorney and err on the side of providing due process.

Q. What types of actions “deprive” a person of a property interest?

A. In the employment context, generally it is an action which takes away the right to compensation under the employment contract. Actions which require some sort of due process include nonrenewal of a tenured teacher, termination of any employee during the term of the contract and suspension without pay.

Constitutional vs. Statutory Due Process

Q. What is the difference between constitutional due process and statutory due process?

A. Due process has two aspects. Substantive due process requires that state action not be arbitrary. Procedural due process requires that an employee be afforded certain procedures prior to dismissal to protect against arbitrary dismissal.

The Supreme Court has held in numerous cases that, at a minimum, due process requires notice of the reasons for the dismissal and an opportunity to be heard at a meaningful time and in a meaningful manner. The constitution and the courts have not set definite procedures which must be used to fulfill the constitutional requirements.

Case law suggests that the following procedures should be afforded:

  • Written notice of the reason(s) for the action;
  • An opportunity to request a hearing, and reasonable time between the notice and the hearing for the employee to prepare a defense to the charges. Ten to 45 days would probably be reasonable;
  • An opportunity for a hearing before an impartial tribunal. The board itself can generally serve as the impartial tribunal;
  • At the hearing, it is recommended that the employee have the right to counsel, the right to call witnesses and present documentary evidence and the right to cross examine school district witnesses;
  • Written findings of fact and conclusions by the impartial tribunal, within a reasonable time (probably no more than 30 days) after the hearing. The findings should be based only on evidence presented at the hearing.

For tenured postsecondary (community college) teachers, the procedures which must be afforded are dictated by law:

  • S.A. 72-2253 governs the contents of the notice and the manner in which a hearing officer is selected.
  • S.A. 72-2254 defines the procedural rights of the teacher and board during the hearing.
  • S.A. 72-2258 requires a written opinion from the hearing officer and defines the rights of the parties to appeal the decision.

The statutory procedures generally provide rights in excess of what the constitution would require.

Q. If a postsecondary teacher alleges her contract is being nonrenewed or termination in violation of her constitutional rights, are the same due process procedures utilized?

A. To some extent. In a typical nonrenewal or termination action, the burden is on the school district to show it has good cause for taking the action. When a teacher alleges violation of a constitutional right, such as the right to free speech, K.S.A. 72-2262 requires a hearing office to apply these burden-shifting procedures:

  • The teacher alleging an abridgment of a constitutionally protected right must notify the board of the allegation within 15 days after receiving the notice of intent to not renew or terminate the teacher’s contract. The notice must specify the nature of the activity protected, and the times, dates and places of such activity;
  • The hearing officer decides if there is substantial evidence to support the teacher’s claim the teacher’s exercise of a constitutionally protected right was the reason for the nonrenewal;
  • If the hearing officer determines there is not substantial evidence to substantiate the claim, the board’s decision not to renew the contract stands;
  • If the hearing officer determines there is substantial evidence to support the teacher’s claim, the board must to submit any reasons which may have been involved in the nonrenewal to the hearing officer;
  • If the board presents any substantial evidence to support its reasons, the board’s decision not to renew the contract must be upheld

Suspension without Pay

Q. Do the statutory due process procedures apply if a tenured teacher is suspended without pay?

A. No. The statutory procedures are mandated only for nonrenewal or termination actions. A hearing before the board will suffice for suspension without pay.

Suspension with Pay

Q. Is there a right to a hearing prior to suspending an employee with pay?

A. No. A suspension with pay does not implicate a property interest.

Administrators

Q. Do school administrators have any due process rights?

A. As with any employee, an administrator has a constitutional right to due process if his contract for a term is terminated during the school year. Otherwise, for nonrenewal, administrator rights are limited. For principals or administrators other than the superintendent, after two complete years of employment in the district, have a right to request a meeting with the board after they receive written notice of the intent to nonrenew their contract.

If a meeting is requested, the administrator and board meet in executive session. The board must tell the administrator the reason(s) for the nonrenewal proposal and the administrator must have an opportunity to respond. Neither side may have an attorney at the meeting. Kansas Administrators’ Act, K.S.A. 72-2281, et. seq. The rights under this Act are executive, not judicial, in nature, requiring only a “meeting” not a “hearing.” Brown v. U.S.D. No. 333, 261 Kan. 134 (Kan. 1996).

Evaluation

Application

Licensed Employees Only

Q. Do the evaluation statutes, K.S.A. 72-2407 et seq., cover all school employees?
  1. No. These statutes apply only to licensed employees of school districts and of nonpublic schools and all instructional and administrative employees of area vocational-technical schools.
Q. Are part-time employees covered?
  1. Yes. The law applies to part-time employees.

Community College Employees

Q. Doesn’t the law cover community college employees as well?

A. At one time it did but in 2006 community college employees were taken out of this law. Provisions governing evaluation of community college personnel are now found in Chapter 71 of the Kansas Statutes Annotated. The community college evaluation law applies to full-time instructional and administrative employees. K.S.A. 71-215 et seq.

Policy Required

Q. What does the school evaluation law require?

A. It requires a board to adopt a written policy of personnel evaluation procedure.

Q. Does the law require that the policy contain certain specific provisions?

A. Yes. The policy must:

  • Include evaluation procedures applicable to all employees;
  • Require evaluation documents to be in writing;
  • Require evaluation documents and responses to be maintained in a personnel file for at least three years;
  • Require that employees be evaluated by certain dates. K.S.A. 72-2409.

Frequency of Evaluation

Q. How often must employees be evaluated?

A. For employees in their first or second year of employment in the district, at least once each semester by the 60th school day of the semester.

For employees in their third and fourth years of employment in the district, at least once a year by February 15.

For employees with more than four years of employment in the district, at least once every three years by February 15 of the year in which the evaluation occurs. K.S.A. 72-2409(d).

Q. Why does the statute require that evaluations be completed by February 15 after the first and second years of employment?

A. Part of the purpose behind the evaluation statute is to improve staff performance. If an employee is notified of deficiencies in performance by mid-February, theoretically the employee has about two months to improve his or her performance before the decision has to be made by the third Friday in May on nonrenewal.

Q. May we evaluate employees more often?

A. The statute only sets the minimums, not maximums. The board policy can allow for more frequent evaluation but for teachers the issue is negotiable.

Q. Are there any restrictions on our ability to increase the number of evaluations?

A. Yes. Evaluation procedures are mandatorily negotiable. You could not unilaterally change the number of evaluations required but would be required to negotiate any changes.

There may also be time constraints on your staff members who are responsible for evaluation. You should discuss the idea of increasing the number of evaluations required with your administrative staff prior to making any changes.

Who Evaluates?

Q. Who is responsible for evaluating our personnel?

A. The board is responsible for evaluating the superintendent or the director of the area vocational-technical schools. Primary responsibility for evaluation of other employees must go to the administrative staff. Generally, the person in charge of supervising an employee should be the person responsible for completing the evaluation of the employee.

Board Role

Q. We do not like the way our superintendent evaluates our building principals. May we do the evaluation ourselves as a board?

A. Primary responsibility for evaluation of persons other than the superintendent must be placed on the administrative staff. K.S.A. 72-2410(d). The board should not get involved in the day-to-day administration of the school, which includes evaluation of staff.

If the board is dissatisfied with the way in which evaluation is being done, the board should first consider why it is dissatisfied with the current evaluation. Is it because the policy and procedures used for evaluation do not accurately reflect performance indicators which the board considers important or is it because the employee doing the evaluation has done a poor job of completing the evaluation? If the problem is that the policy and procedures do not provide for evaluation of criteria the board considers important, the board should amend the policy. For administrative staff evaluation the board may change both evaluation criteria and evaluation procedures through policy.

For teaching staff, evaluation criteria is not mandatorily negotiable, but evaluation procedures are mandatorily negotiable. The board could unilaterally change the criteria, but not the procedure. If the board desires changes in the evaluation procedures used for teaching staff, it should notice the item for negotiation and get the changes through the negotiation process.

If the problem is that an employee is doing a poor job of evaluating personnel, this employee’s evaluation should reflect this deficiency and be used as a factor in determining whether he or she will be rehired. The board may also want to consider placing the employee on a plan of assistance to improve performance in this area.

Q. What employee performance criteria should be included in our evaluation documents?

A. The law requires you to consider efficiency, professional qualities, professional deportment, ability, results and performance, including improvements in the academic performance of pupils in so far as the evaluated employee has authority to cause such improvement. For teachers you are also required to consider the teacher’s capacity to maintain control of students. The board may include any other matters deemed material. K.S.A. 72-2410(a). The law also requires that community attitudes, support and expectations with regard to educational programs be reflected in your evaluation policy and procedures. K.S.A. 72-2410(b). The board should carefully consider the goals, objectives, and priorities of the district in determining the criteria to be evaluated.

Q. Are there sample evaluation forms we can just adopt?

A. Yes. But it is not advisable. Any sample form should be closely examined and adapted to meet the unique needs of your district.

Q. If we have questions or want to make changes in our policy, who should we consult?

A. You must consult with the persons being evaluated and the persons responsible for making evaluations. K.S.A. 72-2410(c). To the extent practicable, you should consider comments and suggestions from other community interests as well. You may want to consult with outside professionals in the area of evaluation, such as a member of the KASB Legal and Labor Relations staff.

Q. As a board member, I have a right to see teacher evaluations, don’t I?

A. As an individual you do not have this right. The board, sitting as a board, has this right, but an individual board member does not, unless the employee specifically authorizes you to have access.

Is it illegal for me to look at a teacher’s evaluation if the teacher herself shows it to me?

A. Absolutely not. There are no legal constraints on the teacher’s release of the document. The teacher may release the document to anyone.

Employee Rights

Q. What rights does an employee have regarding evaluation and evaluation documents?

A. An employee has a statutory right to:

  • Participate in the evaluation process, K.S.A. 72-2410(c);
  • Be afforded an opportunity for self-evaluation, K.S.A. 72-2410(c);
  • Have the written evaluation document presented to him, K.S.A. 72-2411;
  • Respond in writing to the evaluation, K.S.A. 72-2411; and
  • Have the response maintained with the evaluation document. K.S.A. 72-2411(c).
Q. Does an employee have a right to have a representative of the union present at an evaluation conference?

A. No. Not unless your negotiated agreement or policies grant such a right.

Q. Does an employee have a right to grieve his evaluation?

A. Again, not unless your negotiated agreement or policies grant such a right.

Q. Does an employee have to sign the evaluation? What if the employee refuses to sign?

A. Yes. The law requires a signature. If the employee refuses to sign, show the employee a copy of K.S.A. 72-2411 which states, “the employee shall acknowledge such presentation by his or her signature thereon.” Assure the employee that his or her signature does not mean that he or she agrees, merely that he or she has seen the document. If the employee still refuses to sign, document the attempts to get the signature and maintain the documentation with the evaluation.

Releasing Evaluation Documents

Q. May we release employee evaluation documents to persons who request to see them?

A. Unless the employee consents to the release in writing, generally the documents cannot be available for inspection by others. The statute allows for you to make evaluation documents available to:

  • The evaluated employee;
  • The board;
  • Appropriate administrative staff members designated by the board;
  • The school attorney at the request of the board;
  • The state board of education; and
  • The board and administrative staff of any school where the employee has applied for employment. K.S.A. 72-2411.

A court of competent jurisdiction may also subpoena the records. Any other person must have the written authorization of the employee in order to see the evaluation documents.

Consequences for Non-Compliance

Q. What happens if our staff fails to evaluate in compliance with our policy and/or the statute?

A. The law provides that the contract of a certificated person cannot be nonrenewed on the basis of incompetence unless an evaluation which is in substantial compliance with the board’s policy on evaluation has been made prior to the notice of nonrenewal. K.S.A. 72-2410(f). The precise meaning of this language is unclear. In Burk v. U.S.D. No. 329, 646 F.Supp. 1557 (D. Kan. 1986), the court concluded that the evaluation statute and the district’s policy of evaluation could not be read to create an implied contract which would give a nontenured individual a property interest in continuing employment.

The Kansas Court of Appeals reached the same conclusion in Miller v. U.S.D. No. 470, 12 Kan. App.2d 368 (1987). On appeal, the Kansas Supreme Court decided the case on contractual grounds and rendered the conclusion of the Court of Appeals (that contractual provisions with regard to evaluation which would create a property interest in continuing employment for nontenured employees were beyond the authority of the board and void) mere dicta with no precedental value for future litigation.

To date the courts that have considered this issue have concluded that the evaluation statute cannot be read to override the board’s authority to dismiss a nontenured teacher for any reason which is not in violation of constitutional rights.

Q. What happens if our staff fails to evaluate teachers by the statutory deadline in any given year?

A. The question of whether evaluations which are completed after the February 15 statutory deadline are invalid and must be removed from an employee’s personnel file was answered negatively by the Kansas Supreme Court in Marais de Cygnes Valley Teachers’ Association v U.S.D. No. 456, 264 Kan. 247 (1998). In this declaratory judgment action, the teacher’s association sought invalidation of tardy evaluations for three tenured teachers on the basis they were not completed by the statutory deadline, February 15. In each case, the tenured teacher had been placed on a written improvement plan because of at least one “must improve” rating on their evaluation.

The Kansas Supreme Court concluded the language of the Evaluation of Certificated Personnel Act which states evaluations after the second year of employment “shall” be completed by February 15 was directory, not mandatory. Noting the overriding purpose of the Act is to provide a systematic method for the improvement of school personnel and the educational system, the court refused to interpret the Act in a manner contrary to this expressed goal.

Additionally, the court noted the Act contains no provisions which would require the remedy of invalidating evaluations. The court did not address the question of whether a tardy evaluation could be used to support nonrenewal of a teacher. In an unpublished opinion involving the nonrenewal of a tenured teacher, the Court of Appeals concluded that an evaluation completed by February 28 was in substantial compliance with the statutory language.

Q. Does our evaluation policy have to be on file anywhere?

A. No. The requirement that it be filed with the state board was repealed in 2004.

Fair Labor Standards Act

Q. Generally, what is the Fair Labor Standards Act?

A. The Fair Labor Standards Act (FLSA) is the federal law that establishes the minimum wage, the right to overtime pay for some employees, the right to equal pay regardless of sex and child labor standards. The provisions regarding overtime are most problematic. In a nutshell, the law requires the school to define its workweek and to pay employees who are not exempt from the overtime requirements overtime for any hours worked in excess of 40 in the workweek.

Application and Coverage

Q. Does the FLSA apply to school districts?

A. Yes.

Q. Does the FLSA cover all individuals?

A. No. The Act does not apply to bona fide volunteers, independent contractors and possibly some other individuals. Boards should consult their attorney before determining the act does not apply.

Volunteers

Q. Can a school employee volunteer to assist the school district?

A. If the volunteer work is not related to the employee’s regular employment, the employee may volunteer to do the work with no pay or for pay that is less than minimum wage. If the volunteer work directly relates to their regular employment, the time spent on the task must count as hours worked under the Fair Labor Standards Act. Employees cannot volunteer to perform the same type of services they are employed to perform. A secretary cannot volunteer to type the school newsletter at home after work hours, nor can a custodian volunteer to clean the gym after a local charity uses the gym for an event on a Saturday afternoon.

Q. Are some employees exempt from the provisions of the FLSA?

A. Yes. Some employees who are covered by the FLSA may be exempt from some provisions of the act. Generally, executive, administrative and professional employees are exempt from some provisions of the act such as the overtime requirement. The act contains statutory definitions of these employees. Boards should consult their attorney before determining whether a particular employee falls under one of the definitions of an exempt employee. Additional questions about exemptions are found later in this chapter at Fair Labor Standards Act: Exempt Employees.

Enforcement

Q. Who enforces the FLSA?

A. The FLSA is administered and enforced by the U.S. Department of Labor, Wage and Hour Division.

Q. Where can the board find information on the FLSA with respect to a particular question?

A. In addition to seeking advice from legal counsel, the Wage and Hour Division often publishes rulings and opinions. Much of this information is available on the U.S. Department of Labor website at www.dol.gov. The interactive advisor for the FLSA can be found at www.dol.gov/elaws/flsa.htm.

Not Required by FLSA

No Limit on Hours Worked

Q. Is there a limit on the number of hours an employee can work?

A. Except for the child labor provisions, the FLSA does not limit the number of hours an employee can be required to work. Rather, it requires overtime pay for hours in excess of 40 in any workweek for employees who are not exempt from the overtime provisions.

Paid Vacations or Holidays

Q. Does the FLSA require paid vacations or paid holidays?

A. No.

Q. Are we required to pay one and one-half the hourly rate for weekend or holiday work?

A. The FLSA does not require extra pay for working on weekends or holidays unless working on these days makes the total hours worked exceed 40 in the workweek. Schools may, by policy or through contracts, agree to pay extra for holiday or weekend work but they are not required to do so.

Notice Prior to Termination

Q. Does the FLSA require an employer to give notice prior to termination?

A. No. However, board policies, handbooks, contracts or verbal representations may create a notice requirement for some or all employees.

Break Periods

Q. Are employees entitled to a break period?

A. No. FSLA does not require a break period. However, if a break or rest period is provided, it must be counted as hours worked if the break is less than 20 minutes or if the employee is not free from duty during the break.

In two other circumstances, schools may be able to pay students less than the minimum wage but only after receiving a certificate from the U.S. Department of Labor authorizing payment at this lower rate. If students are employed on a part-time basis pursuant to a bona fide vocational education training program, the school may obtain a certificate and pay the student no less than 75 percent of the minimum wage. Additionally, full-time students may be employed at subminimum wages in retail or service establishments, agriculture or in the institutions of higher education which students are attending. Full-time students employed under these certificates may be paid no less than 85 percent of the statutory minimum wage.

Minimum Wage

Student Worker Exceptions

Q. Do you have to pay special education students who work in the school lunch program as part of their individual education plan?

A. No. Provided it is a part of the student’s training and is within the regular school day.

Q. What is the minimum wage for students working after school hours for the school district?

A. The school may pay employees under the age of 20 a “youth minimum wage” of not less than $4.25 an hour during the first 90 consecutive days of initial employment. After that period has passed, or when the employee reaches age 20, the student must be paid the regular minimum wage of $7.25 an hour. The school cannot, however, displace any employee in order to hire a student at this lower wage.

Extracurricular Activities

Q. Do you have to pay teachers the minimum wage for supervision of extracurricular activities, such as coaching or being club sponsors?

A. No. Teachers, as professional employees, are specifically exempt from the minimum wage requirements of the Fair Labor Standards Act if the duty requires their professional expertise.

Q. Do you have to pay teachers the minimum wage for extra duties required by the school district such as ticket taking, timekeeping, scorekeeping, security, etc.?

A. Generally not. A teacher is usually an exempt professional employee so long as he or she spends a majority of his or her time working performing professional duties as a teacher in the classroom. If time spent on nonexempt functions exceeds 51 percent, however, the exemption may be lost.

Q. Do you have to pay noncertified employees the minimum wage for these extra duties?

A. Yes.

Application to Employees and Students

Q. Do all our aides, clerical staff, paraprofessionals, cooks, custodians, bus drivers, maintenance workers, etc., have to be paid minimum wage?

A. Yes.

Q. Do you have to pay noncertified employees in supervisory positions the minimum wage?

A. If such persons fit within the definition of executive, administrative or professional personnel, they are not subject to the minimum wage requirement; otherwise, yes.

Q. Does a school district have to pay students the minimum wage for timekeeping, scorekeeping, etc., at ball games or other activities when they do so at the school district’s request?

A. Yes.

Q. Do we have to pay students for doing these functions if they volunteer?

A. No.

Q. How does the minimum wage law affect a school bus driver who is also employed as a classroom teacher?

A. Classroom teachers are exempt under the Fair Labor Standards Act overtime provisions if his or her primary duty is teaching. If the person is not spending enough time teaching to be exempt from the overtime provisions of FLSA and must be paid minimum wage and overtime.

Overtime

Q. What is the overtime rate and when does it attach?

A. At least one and one-half times the employee’s regular rate for all hours worked over 40 in a workweek.

Q. Are school districts required to pay overtime for employees such as the board clerk who may work more than a 40-hour week?

A. Yes. Unless the board clerk would qualify under the statutory definitions of an executive, administrative or professional employee.

Q. Are directors of transportation, maintenance, food service, etc., exempt from the FLSA?

A. Maybe. If these personnel meet the definition of executive, administrative or professional personnel, they are exempt from the FLSA overtime requirements. Otherwise they not exempt. This chapter contains specific information about exempt employees later in this chapter. Fair Labor Standards Act: Exempt Employees

Q. Are all teachers and substitute teachers exempt from the FLSA?

A. Yes. They are exempt from the overtime pay provisions. As long as their primary duty is teaching and they generally qualify for exemption as learned professionals.

Q. If a person is employed by a school district as a teacher aide or coaching aide on an hourly rate, is such person covered by the FLSA?

A. Yes.

Computation of Overtime Pay

Q. Are fringe benefits required to be included in the computation of overtime pay?

A. No.

Q. If cash is an option under a fringe benefit package, is the cash received counted in computing the minimum wage for overtime pay?

A. Yes, unless the cash is in lieu of a specific fringe benefit and is equal to the amount of the fringe benefit.

Determining Hours Worked

Q. Must vacation, sick leave and other leave be counted in the hours in computing overtime pay?

A. No. Assume an employee is sick on Monday and uses 8 hours of sick leave. Because of weekend activities, the employee works 38 hours. The employee will be paid for 46 hours, but will not be entitled to any overtime pay because the employee only worked 38 hours. Overtime is based on hours worked, not the number of hours for which the employee receives pay.

Q. Do paid holidays count as hours worked?

A. An employee may be given paid holidays but these hours do not count as hours worked in computing overtime.

Q. When a school bus driver is required to take an overnight trip, for what hours is the driver required to be paid?

A. Any time employees are required to be on duty, they are covered under the FLSA. Any time employees are unable to use the time effectively for their own purpose, and employees are under the control of the employer, such time is covered under the FLSA.

If an employee is completely relieved of duty for a period long enough to enable the employee to use the time effectively for his or her own purposes, such hours are not hours worked under the FLSA. An employee is not completely relieved of duty and cannot use the time effectively for his or her own purposes unless the employee is definitely told in advance that he or she may leave the job and that the employee will not have to commence work until a specified time. Whether the time is long enough to enable the employee to use the time effectively for his or her own purposes depends upon all the facts and circumstances of each case.

Q. When a bus driver is required to take an activity trip and the driver has about six hours in which his services are not needed prior to the return trip home, are the six hours considered hours worked?

A. No. Those six hours would not be considered hours worked under the FLSA, provided the individual is completely relieved of duty.

Methods of Payment

Q. May a school district pay a bus driver on a rate per mile?

A. Yes. Provided it equates to at least the minimum wage and overtime is paid for hours worked beyond 40.

Q. May a school district pay a school bus driver a flat amount for activity trips?

A. Yes. Provided such flat amount is at least equal to the minimum wage and time and a half is paid for all overtime.

Q. May a district guarantee a minimum of 50 hours at a set rate, including overtime for the last 10 hours and pay an employee for the full 50 hours even though they may work fewer hours?

A. No. For example, a school could not employ a custodian for 40 hours per week at $10 per hour and 10 hours per week at $15 per hour and guarantee such employee a minimum of 50 hours even though the employee may actually work less than 50 hours.

Q. May a school district employ a noncertified person such as a custodian or cook on a yearly basis and pay such employee a fixed salary with fluctuating hours?

A. The regular rate for an employee whose hours of work fluctuate from week to week, who is paid a stipulated salary with the clear understanding that it constitutes straight-time pay for all hours worked, whatever their number and whether few or many, will vary from week to week. The employee’s regular rate is determined each week by dividing the salary by the number of hours he or she worked in that week. The regular rate cannot be less than the applicable minimum wage. Since the employee has been paid his or her straight-time compensation, s/he must receive additional overtime pay for each overtime hour worked in the week at not less than one-half the regular rate.

Assume an employee works no more than 50 hours and is compensated on a fluctuating workweek basis at a weekly salary of $800. Assume further that over a four-week period, the employee works 40, 44, 50 and 48 hours. The employee’s compensation would be computed as follows:

First week hours worked: 40 hrs.
First week regular rate: $20.00 ($800 divided by 40)
Overtime:   None
Total compensation:  $800.00

Second week hours worked: 44 hrs.
Second week regular rate: $18.18 ($800 divided by 44)
Overtime:   $36.36 (9.09 x 4 hours)
Total compensation:  $836.36 (44 hours at $18.18/hr. + overtime)

Note: Since the employee has been paid his or her straight-time pay for all hours worked, only additional half-time pay (18.18/2=9.09 per hour) is due.

Third week hours worked: 50 hrs.
Third week regular rate: $16.00 ($800 divided by 50)
Overtime:   $80.00 ($8.00 x 10 hours)
Total compensation:  $880.00 (50 hours at $16.00/hr + overtime)

Fourth week hours worked: 56 hrs.
Fourth week regular rate: $14.28 ($800 divided by 48)
Overtime:   $114.24 ($7.14 x 16 hours)
Total compensation:  $914.24 (56 hours at $14.28/hr + overtime)

Q. If a school district employs a secretary on an hourly rate and the same person serves as a board treasurer, does the FLSA apply to both jobs?

A. Yes. If the employee is paid at a different rate for each job, use a weighted average to determine the overtime pay as illustrated in the question below.

Q. How do you compute overtime pay when an employee works in two different jobs at two different rates of pay?

A. Where an employee in a single work week works at two or more different jobs for which different straight-time rates have been established, the employee’s regular rate for that week is the weighted average of such rates. That is, the earnings from all such rates are added together and this total is then divided by the total number of hours worked at all jobs. The employee’s pay would be computed as follows:

$10.00 per hour for 30 hours = $300.00
$15.00 per hour for 20 hours = $300.00
50 hours   $600.00
Average hourly wage ($600 divided by 50) $12.00
Overtime factor  x .50
Additional amount per hour for overtime pay $  6.00
number of hours of overtime  x 10
Overtime pay $60.00
Total wages for week $660.00

Compensatory Time

Q. If a person works more than 40 hours during a specific work week, may that person receive compensatory time rather than overtime pay?

A. Yes. State and local governments are allowed to give their employees compensatory time off in lieu of immediate overtime pay in cash, at a rate of not less than one and one-half hours for each hour of overtime worked but only pursuant to a collective bargaining agreement or an agreement or understanding arrived at between the employer and employee before performance of the work.

Q. How much compensatory time can an employee accrue?

A. The maximum compensatory time that can be accrued by any employee is 240 hours.

Q. What do we do when an employee has accrued 240 hours of compensatory time?

A. An employee who has accrued the maximum number of compensatory hours must be paid overtime compensation in cash for any additional overtime hours of work.

Q. When can an employee use the compensatory time?

A. If an agreement to permit the use of compensatory time exists, an employee must be permitted to use accrued compensatory time within a reasonable period after it is requested unless to do so would unduly disrupt the operations of the employer.

Q. Can we require employees to use their compensatory time?

A. Yes.

Q. What do we do if someone quits or is fired and has compensatory time accrued? How is the rate of pay calculated?

A. Payment for accrued compensatory time upon termination of employment must be calculated at the average regular rate of pay for the final three years of employment, or the final regular rate received by the employee, whichever is the higher.

Occasional and Sporadic Exception

Q. What is the occasional and sporadic exception?

A. Employees of a state or local government agency may, at their own option, undertake employment for the same employer on an occasional or sporadic basis in a part-time job in a different capacity than their regular employment. The hours of work in the different job are not counted as hours worked for overtime pay purposes on the regular job.

Recordkeeping

Q. How do we document the hours that employees who are subject to the FLSA work?

A. It is essential that adequate time cards be kept to document hours worked for all employees who are covered by the Fair Labor Standards Act.

Fair Labor Standards Act: Child Labor Laws

Q. What is the youngest age at which a person can be employed by the school?

A. The FLSA sets 14 as the minimum age for most nonagricultural work. However, at any age, youths may deliver newspapers, perform in radio, television, movie, or theatrical productions, work in businesses owned by their parents, perform babysitting or perform minor chores around a private home. State law exempts these services as well but provides that these exempt services cannot be performed by a child attending school during hours in which the public school is in session in the district in which such child resides. K.S.A. 38-614. State law also provides additional protections for minor child entertainers in K.S.A. 38-615 through K.S.A. 38-622.

Work Permit

Q. Does FLSA require a youth have a work permit in order to work?

A. No. But state law requires a work permit for children under the age of 16 if they are not enrolled in and attending secondary school. K.S.A. 38-604.

Restrictions on Type of Work

Q. Are there restrictions on the kinds of work students can perform?

A. Permissible jobs, by age, are as follows:

  • Young workers 18 and older may perform any job, whether hazardous or not;
  • Young workers 16 and 17 years old may perform any nonhazardous jobs; and
  • Young workers 14 and 15 years old may work outside school hours in various nonmining, nonmanufacturing and nonhazardous jobs.
Q. What are hazardous jobs for child labor law purposes?

A. Hazardous jobs in a school context might include driving a motor vehicle or being an outside helper on a motor vehicle, jobs requiring the use of any of the following power-driven machines: woodworking machines, hoisting apparatus, metal-forming, punching or shearing machines, bakery machines, paper-product machines, circular saws, band saws and guillotine shears, or the following types of operations: wrecking, demolition, roofing or excavation operations. In some of these occupations, there may be limited student-learner exceptions.

Q. Are there other restrictions?

A. Yes. In addition, a 14- or 15-year-old may not work in the following occupations:

  • Construction or repair jobs;
  • Driving a motor vehicle or helping a driver;
  • Power-driven machinery or hoisting apparatus other than typical office machines;
  • Processing occupations;
  • Public messenger jobs;
  • Transporting of persons or property;
  • Workrooms where products are manufactured, mined or processed;
  • Warehousing and storage.

A 14- or 15-year-old may work in retail stores, food service establishments and gasoline service stations. However, a 14- or 15-year-old may not perform the following jobs in the retail and service industries:

  • Baking;
  • Boiler or engine room work, whether in or about;
  • Cooking, except at soda fountains, lunch counters, snack bars and cafeteria serving counters;
  • Freezers or meat coolers work;
  • Loading or unloading goods on or off trucks, railcars or conveyors;
  • Meat processing area work;
  • Maintenance or repair of a building or its equipment;
  • Operating, setting up, adjusting, cleaning, oiling or repairing power-driven food slicers, grinders, choppers or cutters and bakery mixers;
  • Outside window washing or work standing on a window sill, ladder, scaffold or similar equipment;
  • Warehouse work, except office and clerical work.
  • The jobs a 14- or 15-year-old may do in the retail and service industries include:
  • Cashiering, selling, modeling, art work, advertising, window trimming or comparative shopping;
  • Cleaning fruits and vegetables;
  • Clean-up work and grounds maintenance (the young worker may use vacuums and floor waxers, but he or she cannot use power-driven mowers, cutters and trimmers);
  • Delivery work by foot, bicycle or public transportation;
  • Kitchen and other work in preparing and serving food and drinks but not cooking or baking;
  • Office and clerical work;
  • Pumping gas, cleaning and polishing cars and trucks (but the young worker cannot repair cars, use garage lifting rack or work in pits).

Restrictions on Hours Worked

Q. Are there restrictions on the number of hours youths can work?

A. Yes. FLSA limits the hours worked by 14- and 15-year-olds to nonschool hours. These youths cannot work more than three hours in a school day, 18 hours in a school week, eight hours in a nonschool day or 40 hours in a nonschool week. Work must occur between 7 a.m. and 7 p.m. except from June 1 through Labor Day when evening hours are extended to 9 p.m.

State law contains similar provisions. See K.S.A. 38-603. State law provides these restrictions do not apply to any student engaged in school food service preparation or the employment of a student-learner who is enrolled in a course of study and training in a cooperative vocational training program under a recognized state or local educational authority. However, the student-learner must be employed under a written agreement that must provide:

  • The work of the student-learner is incidental to his or her training, and is under the supervision of a teacher-coordinator employed by the school; and
  • A schedule of organized and progressive work processes to be performed on the job has been prepared.

This written agreement must include the name of the student-learner and be signed by the employer and the school coordinator or principal.

Special Requirements

Q. Are there any other special requirements if we hire students under the age of 16?

A. Yes. You must post a notice that contains the following information: the maximum number of hours such child may be required or permitted to work on each day of the week, the hours of commencing and stopping work and the hours allowed for dinner or other meals. K.S.A. 38-605.

Fair Labor Standards Act: Exempt Employees

Which employees are exempt from the FLSA overtime requirements?

A. For school purposes, FLSA contains three classifications for employees who are exempt from the minimum wage and overtime requirements: executive employees, administrative employees and professional employees.

Salaried Does Not Mean Exempt

Q. Aren’t all salaried employees exempt from the overtime provisions?

A. No. Only salaried employees qualify for exemptions, but the fact a person is paid on a salary basis does not necessarily mean the employee is exempt.

Q. Doesn’t a person’s job title determine if they are exempt from the overtime provisions of FLSA?

A. No. Job titles do not determine exempt status. In order for this exemption to apply, an employee’s specific job duties and compensation must meet all the requirements for exemption in the regulations. 29 CFR § 541.2.

Exemption Qualifications

Q. How does an employee qualify to be exempt?

A. In order to qualify for an exemption, an employee must meet the salary level test, be paid on a salary basis and satisfy one of the job duties tests.

Salary Level Test

Q. What is the salary level test?

A. Under FLSA regulations issued in 2004, the employee must be paid a minimum of $455 per week ($23,660 per year). 29 CFR § 541.600(b).

Q. Wasn’t the minimum salary raised in 2016 salary level test?

A. Proposed changes to the regulations during the Obama administration would have raised that amount to $913 per week ($47,476 per year), effective December 1, 2016. However, the proposed regulations were stopped from taking effect by a court and abandoned by the Trump administration.

Q. Does the employee have to be paid on a weekly basis?

A. No. The $455 per week may be paid in equivalent amount for periods longer than one week but not shorter than one week. For instance, the individual could be paid no less than $910 bi-weekly; $985.83 semi-monthly or $1971.66 monthly. 29 CFR § 541.600(b).

Q. If we provide board or lodging for the employee, can the value of those be included as salary to reach the weekly amount?

A. No. The employee must be compensated on a salary basis rate of not less than weekly amount, exclusive of board, lodging, meals at school cafeterias, dormitory rooms or tuition furnished by a college to student employees, merchandise, food, household effects or transportation to and from work.

Q. Are there any exceptions to this requirement for schools?

A. For professional employees, the compensation requirements do not apply to teachers, lawyers and doctors. They do apply to nurses, social workers, psychologists and other professions that service the medical profession. 29 CFR § 541.600(e).

For academic administrative employees, the salary level test is met if the employee’s pay rate is at least equal to the beginning teacher salary. 29 CFR § 541.600(c).

For computer employees, a salary of at least $27.63 per hour is permissible in lieu of the weekly rate.

Paid on a Salary Basis

Q. What does being paid on a salary basis mean?

A. It means an employee regularly receives each pay period a predetermined amount of compensation which is not subject to reduction because of the variations in the quality or quantity of the employee’s work. Unless an exception applies, exempt employees must be paid their entire salary for any workweek in which they perform any work, without regard to the number of days or hours worked.

Q. What if the employee does not do any work for an entire workweek?

A. If no work is performed in a workweek, the school does not need to pay the individual, but, the absence from work must be due to the employee, not the school. If the employee is willing to work, but the school is closed because of inclement weather of other reasons, the school must pay for those days.

Q. Is this rule violated if we make deductions from accrued leave accounts?

A. No. You may take deductions from accrued leave accounts without jeopardizing the employee’s exempt status.

Q. May we require exempt employees to record their hours or work a specified schedule?

A. Yes. Neither of these actions will affect the employee’s exempt status.

Q. Are there instances in which we can make deductions from an employee’s pay?

A. Yes. The regulations provide for exceptions to the general rule that an employee must be paid for a full workweek for any week in which they perform any work. Those exceptions allow deductions for:

  • Absence from work for one or more full days for personal reasons, other than sickness or disability;
  • Absences of one or more full days due to sickness or disability if the deduction is made in accordance with a plan, policy, or practice of providing compensation for loss of salary for such absences (e.g., worker’s compensation or salary protection insurance, disability insurance);
  • Offsetting amounts received as payment for jury fees, witness fees or military pay;
  • Penalties imposed against employees in good faith for violating safety rules of major significance;
  • Unpaid disciplinary suspensions of one or more full days for violation of workplace conduct rules;
  • Proportionate parts of time actually worked in the first and last week of employment; or
  • Unpaid leave taken under the Family and Medical Leave Act. 29 CFR § 541.602(b).
Q. Are there other exceptions?

A. Yes. Public employees who meet the other requirements of the salary basis test are not disqualified because they are paid according to a pay system under which the employee accrues personal leave and sick leave or under which the employee can be placed on leave without pay for absences for personal reasons. Additionally, policies may allow for an individual’s pay to be reduced for absences because of illness or injury of less than one work-day when accrued leave is not used by an employee because:

  • Permission for its use has not been sought or has been sought and denied;
  • Accrued leave has been exhausted; or
  • The employee chooses to use leave without pay. 29 CFR § 541.710(a).
Q. What happens if we make improper deductions from an employee’s pay?

A. The school can lose the exemption for the employee, and for all employees in the same job classification working for the same manager, if the facts demonstrate that the school did not intend to pay employees on a salary basis. If the school has an actual practice of making improper deductions, the exemption will be lost. 29 CFR § 541.603.

Q. How will the Department of Labor determine we have an actual practice of making improper deductions?

A. It will look at the following factors:

  • The number of improper deductions, particularly as compared to the number of employee infractions warranting discipline;
  • The time period during which improper deductions were made;
  • The number and geographic location of employees whose salary was improperly reduced;
  • The number and geographic location of managers responsible for taking the improper deductions; and
  • Whether the school has a clearly communicated policy permitting or prohibiting improper deductions.
Q. What if we inadvertently make an improper deduction?

A. Isolated or inadvertent improper deductions will not result in the loss of exemption if the school reimburses the employees for such deductions. 29 CFR § 541.603(c).

Q. How does a policy help in this area?

A. The regulations provide if a school has a clearly communicated policy that prohibits improper pay deductions and includes a complaint mechanism, reimburses employees for improper deductions, and makes a good faith commitment to comply in the future, the school will not lose the exemption for its employees. However, if the school willfully violates the policy, fails to reimburse employees or continues to make improper deductions, the exemption will be lost. It is best if the policy is in writing and distributed to employees prior to the improper deductions. 29 CFR § 541.603(d).

Executive Exemption

Q. What is the test for meeting the executive exemption?

A. To qualify for the executive employee exemption, all of the following tests must be met:

  • The employee must be compensated on a salary basis at a rate not less than $455 per week;
  • The employee’s primary duty must be managing the enterprise or managing a customarily recognized department or subdivision of the enterprise;
  • The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and
  • The employee must have the authority to hire or fire other employees or his or her suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight. 29 CFR § 541.100.
Q. What does “two or more other employees” mean?

A. The phrase “two or more other employees” means two full-time employees or their equivalent. For example, one full-time and two half-time employees are equivalent to two full-time employees. The supervision can be distributed among two, three or more employees but each such employee must customarily and regularly direct the work of two or more other full-time employees or the equivalent. For example, a department with five full-time nonexempt workers may have up to two exempt supervisors if each supervisor directs the work of two of those workers. 29 CFR § 541.104.

Q. How do we know if an employee’s recommendations meet the “particular weight” requirement?

A. Factors to be considered in determining whether an employee’s recommendations as to hiring, firing, advancement, promotion or any other change of status are given “particular weight” include, but are not limited to, whether it is part of the employee’s job duties to make such recommendations and the frequency with which such recommendations are made, requested, and relied upon. Occasional suggestions are insufficient. However, even if a higher level manager’s recommendation has more importance and even if the employee does not have authority to make the ultimate decision as to the employee’s change in status, the “particular weight” requirement is not defeated. 29 CFR § 541.105.

Administrative Exemption

Q. What is the test for the administrative exemption?

A. To qualify for the administrative employee exemption, all of the following tests must be met:

The employee must be compensated on a salary basis at a rate not less than $455 per week;

The employee’s primary duty must be the performance of office or nonmanual work directly related to the management or general business operations of the employer or the employer’s customers; and

The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance. 29 CFR § 541.200.

Q. Are there any specific definitions for schools?

A. Yes. The regulations suggest the administrative exemption is available to employees compensated on a salary basis at a rate not less than $455 a week, and whose primary duty is performing administrative functions directly related to academic instruction or training in an educational establishment. Academic administrative functions include operations directly in the field of education, and do not include jobs relating to areas outside the educational field. 29 CFR § 541.204.

Q. Do the regulations contain any examples of the types of positions that may qualify for exemption in the school setting?

A. Yes. The regulations indicated employees engaged in academic administrative functions include: the superintendent or other head of an elementary or secondary school system and any assistants responsible for administration of such matters as curriculum, quality and methods of instructing, measuring and testing the learning potential and achievement of students, establishing and maintaining academic and grading standards, and other aspects of the teaching program; the principal and any vice-principals responsible for the operation of an elementary or secondary school; department heads in institutions of higher education responsible for the various subject matter departments; academic counselors and other employees with similar responsibilities. 29 CFR § 541.204(c)(1).

Professional Exemption

Q. What is the test for the professional exemption?

A. There are two types of professional exemptions: learned professionals and creative professionals. To qualify as a learned professional the salary level and salary basis tests must be met and:

  • The employee’s primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment;
  • The advanced knowledge must be in a field of science or learning; and
  • The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction. 29 CFR § 541.301.

To qualify for the creative professional employee exemption, the salary level and salary basis tests must be met and the employee’s primary duty must be the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor. This includes such fields as, for example, music, writing, acting and the graphic arts. 29 CFR § 541.302.

Q. Do teachers fall within the professional exemption?

A. Yes. Teachers are exempt if their primary duty is teaching, tutoring, instructing or lecturing in the activity of imparting knowledge and if they are employed and engaged in this activity as a teacher in an educational establishment. Exempt teachers include, but are not limited to, regular academic teachers, kindergarten or nursery school teachers, teachers of gifted or disabled children, teachers of skilled and semi-skilled trades and occupations, teachers engaged in automobile driving instruction, aircraft flight instructors, home economics teachers and vocal or instrument music teachers. The salary and salary basis requirements do not apply to bona fide teachers. 29 CFR § 541.303.

Computer Employee Exemption

Q. What are the tests for the computer employee exemption?

A. For the computer employee exemption, the following tests must be met:

  • The employee must be compensated either on a salary or fee basis at a rate not less than $455 per week; or if compensated on an hourly basis, at a rate not less than $27.63 an hour;
  • The employee must be employed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field performing the duties described below;
  • The employee’s primary duty must consist of:
  • The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications;
  • The design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;
  • The design, documentation, testing, creation or modification of computer programs related to machine operating systems; or
  • A combination of the aforementioned duties, the performance of which requires the same level of skills. 29 CFR § 541.400 and 402.

The computer employee exemption does not include employees engaged in the manufacture or repair of computer hardware and related equipment. Employees whose work is highly dependent upon, or facilitated by, the use of computers and computer software programs but who are not primarily engaged in computer systems analysis and programming or other similarly skilled computer-related occupations identified in the primary duties test described above, are also not exempt under the computer employee exemption. 29 CFR § 541.401.

Highly Compensated Employees

Q. If a person makes above a certain amount of salary are they automatically exempt?

A. Maybe. Highly compensated employees performing office or nonmanual work and paid total annual compensation of $100,000 or more (which must include at least $455 per week paid on a salary or fee basis) are exempt from the FLSA if they customarily and regularly perform at least one of the duties of an exempt executive, administrative or professional employee identified in the standard tests for exemption. This exemption does not apply to blue collar workers or those performing manual tasks. 29 CFR § 541.601.

Exemption Lost

Q. What happens if an employee’s exemption is lost?

A. The employee is then subject to the FLSA overtime provisions and the school must pay them overtime, or allow them to accrue compensatory time, whenever they work more than forty hours in any workweek.

Family & Medical Leave Act

Requirements

Q. What is the Family and Medical Leave Act of 1993 (FMLA) and what does it require?

A. FMLA is a federal law which generally requires private sector employers of 50 or more employees, and public agencies, to provide up to 12 workweeks of unpaid, job-protected leave to eligible employees for certain specified family and medical reasons, to maintain eligible employees’ preexisting group health insurance coverage during periods of FMLA leave and to restore eligible employees to their same or an equivalent position with equivalent employment benefits, pay and other terms and conditions of employment at the conclusion of their FMLA leave. 29 CFR § 825.100.

Eligibility for Leave

Q. Who is eligible to take leave under FMLA?

A. An employee who has been employed by the employer for at least 12 months, has been employed for at least 1,250 hours of service during the 12-month period immediately preceding the commencement of the leave (full-time teachers are deemed to have met the 1,250 hour test) and is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite. 29 CFR § 825.110.

Q. Does the definition of “teacher” include teacher assistants or aides or primarily noninstructional employees such as counselors, psychologists, curriculum specialists, cafeteria workers, maintenance workers, or bus drivers?

A. No. Teacher is defined as an employee employed principally in an instructional capacity whose principal function is to teach and instruct students. This includes athletic coaches, driving instructors and special education assistants such as signers for the hearing impaired. 29 CFR § 825.800.

Covered Employees

Q. Are public schools subject to FMLA?

A. Yes. Public as well as private elementary and secondary schools are covered employers without regard to the number of employees employed. 29 CFR § 825.104, 825.108.

Reasons for Leave

Q. Under what circumstances are employers required to grant FMLA leave?

A. Eligible employees may take FMLA leave for the birth and care of a newborn child, the placement of a child with the employee for adoption or foster care, when the employee is needed to care for a family member (child, spouse or parent) with a serious health condition or when the employee’s own serious health condition makes the employee unable to perform the functions of his or her job. 29 CFR § 825.112.

Q. What do “spouse,” “parent,” “son,” and “daughter” mean for purposes of an employee qualifying to take FMLA leave?

A. “Spouse” means a husband or wife as defined or recognized under state law, including common law marriages which are recognized in Kansas.

“Parent” means a biological, adoptive, step or foster father or mother or an individual who stands or stood in loco parentis to an employee when the employee was a son or daughter. The term does not include parents “in law.”

“Son” or “daughter” means a biological, adopted or foster child, a stepchild, a legal ward or a child of a person standing in loco parentis, who is either under the age of 18, or age 18 or older and “incapable of self-care because of a mental or physical disability” at the time the leave commences. 29 CFR § 825.122.

Serious Health Condition

Q. What is a “serious health condition” entitling an employee to FMLA leave?

A. “Serious health condition” means an illness, injury, impairment or physical or mental condition that involves inpatient care (i.e., an overnight stay) in a hospital, hospice or residential medical care facility, including any period of incapacity (which means an inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment thereof, or recovery therefrom) or any subsequent treatment in connection with such inpatient care. Continuing treatment by a health care provider except for routine physical, eye and dental examinations is also included. 29 CFR § 825.113.

Q. What is not a “serious health condition?”

A. Cosmetic treatments generally are not serious health conditions. Ordinarily, unless complications arise, the common cold, the flu, earaches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc., are examples of conditions that do not meet the definition of serious health condition and do not qualify for FMLA leave. 29 CFR § 825.113.

Birth, Adoption or Foster Care Placement of a Child

Q. Can the father take leave for the birth, adoption or foster care placement of a child?

A. Yes. The right to take leave under FMLA applies equally to male and female employees. A father, as well as a mother, can take leave for the birth, placement for adoption or foster care of a child. 29 CFR § 825.112.

Q. How much leave may a husband and wife take if they are employed by the same employer?

A. A husband and wife who are eligible for FMLA leave and are employed by the same covered employer may be limited to a combined total of 12 weeks of leave during any 12-month period if the leave is taken for the birth and care of the employee’s newborn child, for placement for adoption or foster care or to care for the child after placement, or to care for the employee’s parent with a serious health condition. This applies even if the husband and wife are employed at two different worksites of an employer located more than 75 miles from each other or by two divisions of the same company. If one spouse is ineligible for FMLA leave the other is entitled to a full 12 weeks of FMLA leave. 29 CFR § 825.120, 121 and 201.

Q. Must the leave be taken all at once?

A. No. FMLA leave may be taken intermittently or on a reduced leave schedule. The employee may work a part-time schedule. 29 CFR § 825.203.

Leave Issues

Intermittent Leave

Q. When may an employee take FMLA leave intermittently?

A. FMLA leave may be taken intermittently or on a reduced leave schedule when it is medically necessary to take care of a qualified family member who has a serious health condition or because of the employee’s own serious health condition. FMLA leave taken in connection with the birth, adoption or foster care of a son or daughter cannot be taken intermittently or on a reduced leave schedule unless the employee and employer agree. Similarly, an employee using leave for a planned medical treatment must make “reasonable efforts” to schedule the treatment to not unduly disrupt the employer’s operations. 29 CFR § 825.203.

Q. How do you determine the amount of FMLA leave used if leave is not taken all at once?

A. If an employee takes FMLA leave on an intermittent or reduced leave schedule, only the amount of leave actually taken may be counted toward the 12 weeks of leave to which the employee is entitled. 29 CFR § 825.205.

Q. What limitations apply to the taking of intermittent leave or leave on a reduced leave schedule?

A. 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.

If an eligible instructional employee needs intermittent leave or leave on a reduced leave schedule to care for a family member, to care for a covered service member, 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, the employer may require the employee to choose either to:

  • Take leave for a period or periods of a particular duration, not greater than the duration of the planned treatment; or
  • 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.

These rules apply only to a leave involving more than 20 percent of the working days during the period over which the leave extends. “Periods of a particular duration” means a block or blocks of time beginning no earlier than the first day for which leave is needed and ending no later than the last day on which leave is needed and may include one uninterrupted period of leave. 29 CFR § 825.601.

Amount of Leave

Q. How much leave may an employee take?

A. Except in the case of leave to care for a covered service member with a serious injury or illness, which will be discussed later in this chapter, an eligible employee’s FMLA leave entitlement is limited to a total of 12 workweeks of leave during any 12-month period. 29 CFR § 825.200.

Q. Can an employee be required to take more FMLA leave than is necessary?

A. No. An employee may not be required to take more FMLA leave than necessary to resolve the circumstance that precipitated the need for leave. 29 CFR § 825.311.

Leave Near End of Academic Term

Q. What limitations apply to the taking of leave near the end of an academic term?

A. There are also different rules for instructional employees who begin leave more than five weeks before the end of a term, less than five weeks before the end of a term, and less than three weeks before the end of a term. 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 (a) the leave will last at least three weeks, and (b) the employee would return to work during the three-week period before the end of the term;
  • The employee begins leave for a purpose other than the employee’s own serious health condition during the five-week period before the end of a term. The employer may require the employee to continue taking leave until the end of the term if (a) the leave will last more than two weeks, and (b) the employee would return to work during the two-week period before the end of the term; or
  • The employee begins leave for a purpose other than the employee’s own serious health condition during the three-week period before the end of a term, and the leave will last more than five working days. The employer may require the employee to continue taking leave until the end of the term.

For purposes of these provisions, “academic term” means the school semester, which typically ends near the end of the calendar year and the end of spring each school year. In no case may a school have more than two academic terms or semesters each year for purposes of FMLA. 29 CFR § 825.602.

Q. Is all leave taken during “periods of a particular duration” counted against the FMLA leave entitlement?

A. 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 counts 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 can be charged against the employee’s FMLA leave entitlement. 29 CFR § 825.603.

Determining the 12-month Period

Q. How do you determine the 12-month period?

A. The employer is permitted to choose one of several methods of determining the 12-month period in which the 12 weeks of leave entitlement occurs:

  • The calendar year;
  • Any fixed 12-month “leave year” such as a fiscal year, a year required by state law or a year starting on an employee’s “anniversary date;
  • The 12-month period measured forward from the date any employee’s first FMLA leave begins; or
  • A “rolling” 12-month period measured backward from the date an employee uses any FMLA leave (except that such measure may not extend back before August 5, 1993). The employee’s service need not be consecutive in order to achieve the 12-month service requirement. 29 CRF § 825.200.

Paid or Unpaid

Q. Is FMLA leave paid or unpaid?

A. Generally, FMLA leave is unpaid. FMLA permits an eligible employee to choose to substitute paid leave for FMLA leave. If an employee does not choose to substitute accrued paid leave, the employer may require the employee to substitute accrued leave for FMLA leave through its leave policies. In this way FMLA leave and paid leave may run concurrently. However, neither the employee nor the employer can require substitution of paid leave when the employee is receiving paid disability. It is the employer’s responsibility to designate leave, paid or unpaid, as FMLA-qualifying and give notice to the employee. 29 CFR § 825.207 and 300.

Benefits while on Leave

Q. Is an employee entitled to benefits while using FMLA leave?

A. During any FMLA leave, an employer must maintain the employee’s coverage under any group health plan on the same conditions as coverage would have been provided if the employee had been continuously employed during the entire leave period. The employee on FMLA leave must be provided the same changed benefits as all other employees if during the period of leave the employer changes the coverage. 29 CFR § 825.209.

Q. How do employees on FMLA leave pay their share of group health benefit premiums?

A. Any share of the group health plan premiums paid by the employee prior to FMLA leave must continue to be paid by the employee during the FMLA leave period. If premiums are raised or lowered, the employee would be required to pay the new premium rates. Methods of payment include the method normally used by the employer, payment to the insurer or by agreement between the employee and the employer. 29 CFR § 825.210.

Q. What do we do if an employee on FMLA leave fails to pay his or her portion of the health insurance premiums?

A. If the employee fails to pay his or her portion of the health insurance premium during the leave, the employer may drop the employee’s coverage after the employee’s payment is over 30 days late. Before coverage can be dropped, however, the employer needs to send a written notice to the employee of his or her delinquency and advising the employee that coverage will be dropped on a specified date at least 15 days after the date of the letter unless payment is received. 29 CFR § 825.212.

Notice and Posting Requirements

Employers

Q. What posting and notice requirements does FMLA place on employers?

A. Every covered employer is required to post and keep posted, on its premises, in conspicuous, prominent places, where it can be readily seen by employees and applicants for employment, information on FMLA and whether or not the employer has any eligible employees. The notice must explain FMLA provisions and provide information concerning the procedures for filing a complaint regarding violations with the Wage and Hour Division. If an FMLA covered employer has any eligible employees and has any written guidance to employees concerning benefits or leave rights, such as an employment handbook, it must contain information on FMLA. 29 CFR § 825.300 and 301.

Employees

Q. What notice must the employee provide when the need for FMLA leave is foreseeable?

A. An employee must give the employer at least 30 days advance notice before FMLA leave is to begin if leave is foreseeable. 29 CFR § 825.302.

Q. What if the need for FMLA leave is not foreseeable?

A. When the need for FMLA leave is not foreseeable, notice should be given as soon as practicable under the facts and circumstances of the particular case. 29 CFR § 825.303.

Q. What recourse does the employer have if the employee does not provide the notice?

A. An employer may waive employees’ FMLA notice obligations or the employer’s own internal rules on leave notice requirements. If the employee fails to give the required notice and has no reasonable excuse for the delay, the employer may delay the taking of FMLA leave until at least 30 days after the date the employee provides notice to the employer of the need for FMLA leave. Before FMLA leave can be delayed, it must be clear the employee had actual notice of the FMLA notice requirements. 29 CFR § 825.304.

Medical Certification

Q. When must an employee provide medical certification to support FMLA leave?

A. An employer may require that an employee’s leave be supported by certification issued by the health care provider of the employee or the employee’s ill family member. An employer must give notice of a requirement for medical certification each time it is required.

In most cases, the employer should request that an employee furnish certification at the time the employee gives notice of the need for leave or within five business days thereafter or, in the case of unforeseen leave, within five business days after the leave commences. The employer may request certification at some later date if the employer later has reason to question the appropriateness of the leave or its duration.

The employee must provide the requested certification to the employer within 15 calendar days after the employer’s request, unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts or the employer provides more than 15 calendar days to return the requested certification. 29 CFR § 825.305.

Return to Work

Q. What are an employee’s rights on returning to work from FMLA leave?

A. An employee is entitled to be returned to the same position the employee held when leave commenced or to an equivalent position with equivalent benefits, pay and other terms and conditions of employment. Equivalent position means one that is virtually identical to the employee’s former position including privileges, prerequisites and status. It must involve the same or substantially similar duties and responsibilities which must entail substantially equivalent skill, effort, responsibility and authority. 29 CFR § 825.214 and 215.

Q. What if an employee is unable to perform an essential function of the position?

A. The employee has no right to restoration to another position under FMLA; however, the employer may have obligations under the Americans with Disabilities Act (ADA). 29 CFR § 825.214.

Notice of Intent to Return

Q. What notice may an employer require regarding an employee’s intent to return to work?

A. An employer may require an employee on FMLA leave to report periodically on the employee’s status and intent to return to work. The employer’s policy regarding such reports may not be discriminatory and must take into account all relevant facts and circumstances related to the individual employee’s leave situation. 29 CFR § 825.311.

Q. What are the employer’s obligations if the employee notifies the employer of the employee’s desire to return to work notwithstanding the employee’s indication that return to work may not be possible?

A. The employer’s obligations continue. 29 CFR § 825.311.

Notice of Intent Not to Return

Q. What are our obligations if the employee notifies us of the unequivocal intent not to return to work?

A. The employer is no longer obligated under FMLA to maintain health benefits (subject to COBRA requirements) or to restore the employee to employment. 29 CFR § 825.311.

Recordkeeping Requirements

Q. What records must an employer keep to comply with the FMLA?

A. FMLA provides that covered employers shall make, keep and preserve records pertaining to their obligations under the Act in accordance with the recordkeeping requirements of Section 11(c) of the Fair Labor Standards Act (FLSA) and in accordance with FMLA regulations. No particular order or form of records is required. Records must be kept for no less than three years and made available for inspection, copying, and transcription by representatives of the Department of Labor upon request. 29 CFR § 825.500.

Q. Specifically, what information must be kept?

A. Covered employers who have eligible employees must maintain records that must disclose the following:

  • Basic payroll and identifying employee data, including name, address, and occupation; rate or basis of pay and terms of compensation; daily and weekly hours worked per pay period; additions to or deductions from wages; and total compensation paid;
  • Dates FMLA leave is taken by FMLA eligible employees (e.g., available from time records, requests for leave, etc., if so designated). Leave must be designated in records as FMLA leave; leave so designated may not include leave required under state law or an employer plan which is not also covered by FMLA;
  • If FMLA leave is taken by eligible employees in increments of less than one full day, the hours of the leave;
  • Copies of employee notices of leave furnished to the employer under FMLA, if in writing, and copies of all general and specific written notices given to employees as required under FMLA and these regulations. Copies may be maintained in employee personnel files;
  • Any documents (including written and electronic records) describing employee benefits or employer policies and practices regarding the taking of paid and unpaid leaves;
  • Premium payments of employee benefits;
  • Records of any dispute between the employer and an eligible employee regarding designation of leave as FMLA leave, including any written statement from the employer or employee of the reasons for the designation and for the disagreement.

Covered employers with no eligible employees must maintain the records set forth in paragraph 1. If FMLA eligible employees are not subject to FLSA’s recordkeeping regulations for purposes of minimum wage or overtime compliance (i.e., not covered by or exempt from FLSA), an employer need not keep a record of actual hours worked provided that:

  • Eligibility for FMLA leave is presumed for any employee who has been employed for at least 12 months; and
  • With respect to employees who take FMLA leave intermittently or on a reduced leave schedule, the employer and employee agree on the employee’s normal schedule or average hours worked each week and reduce their agreement to a written record which is maintained. 29 CFR § 825.500.
Q. Are any records considered confidential?

A. Individual personnel records are not considered open records under the Kansas Open Records Act. Additionally, records and documents relating to medical certifications, recertifications or medical histories of employees or employees’ family members, created for purposes of FMLA, must be maintained as confidential medical records in separate files from the usual personnel files. If ADA is also applicable, the records must be maintained in conformance with ADA confidentiality requirements except that:

  • Supervisors and managers may be informed regarding necessary restrictions on the work or duties of an employee and necessary accommodations;
  • First aid and safety personnel may be informed (when appropriate) if the employee’s physical or medical condition might require emergency treatment; and
  • Government officials investigating compliance with FMLA (or other pertinent laws) must be provided relevant information upon request? 29 CFR § 825.500.

Filing Complaints or Private Lawsuits

Q. What can employees do who believe that their rights under FMLA have been violated?

A. The employee has the choice of:

  • Filing, or having another person file, a complaint with the Secretary of the Department of Labor; or
  • Filing a private lawsuit pursuant to Section 107 of FMLA.

If the employee files a private lawsuit, it must be filed within two years after the last action which the employee contends was in violation of the Act, or three years if the violation was willful.

If an employer has violated one or more provisions of FMLA and if justified by the facts of a particular case, an employee may receive one or more of the following: wages, employment benefits, or other compensation denied or lost to such employee by reason of the violation; or, where no such tangible loss has occurred, such as when FMLA leave was unlawfully denied, any actual monetary loss sustained by the employee as a direct result of the violation, such as the cost of providing care, up to a sum equal to 12 weeks of wages for the employee or up to 26 weeks of wages in a case involving leave to care for a covered service member.

In addition, the employee may be entitled to interest on such sum, calculated at the prevailing rate. An amount equaling the preceding sums may also be awarded as liquidated damages unless such amount is reduced by the court because the violation was in good faith and the employer had reasonable grounds for believing the employer had not violated the Act.

When appropriate, the employee may also obtain appropriate equitable relief, such as employment, reinstatement and promotion. When the employer is found in violation, the employee may recover reasonable attorney’s fees, reasonable expert witness fees and other costs of the action from the employer in addition to any judgment awarded by the court. 29 CFR § 825.400.

Military Family & Medical Leave Act

Q. Can an employee take FMLA leave for military-related circumstances?

A. Yes. In January 2008, the FMLA was expanded to include two instances when an eligible employee could utilize FMLA leave for military-related reasons. The new law now allows leave in certain qualifying exigency and caregiver situations. The key to understanding these changes is realizing that the individuals afforded additional FMLA rights under these provisions are employees who have a particular relationship to a covered service member not the service member him or herself. 29 CFR § 825.112.

Qualifying Exigency

Q. What constitutes a “qualifying exigency?”

A. Eligible employees may take up to 12 workweeks of FMLA leave while the employee’s spouse, son, daughter, or parent (the “covered military member”) is on active duty or has been called to active duty status. Leave is available for one or more of the following qualifying exigencies:

  • Short notice deployment, in order to address any issue that arises from the fact that a covered military member is notified of an impending call or order to active duty in support of a contingency operation seven or less calendar days prior to the date of deployment;
  • Military events and related activities, such as, but not limited to, ceremonies, briefings and family support assistance;
  • Childcare and school activities, such as arranging for alternative childcare in the covered military member absence or enrolling children in a new school;
  • Financial and legal arrangements, such as preparing and executing financial and healthcare powers of attorney, transferring back account signature authority, or updating wills;
  • Counseling, to attend counseling provided by someone other than a health care provider for the employee, the covered military member or the employee’s minor child if the need for counseling arises from the call to active duty of the covered military member;
  • Rest and recuperation, to spend up to five days in leave at a time with a covered military member who is on short-term, temporary rest and recuperation leave during the period of deployment;
  • Post-deployment activities, such as arrival ceremonies and reintegration briefings occurring within 90 days of the termination of the covered military member’s active duty status; and
  • Additional related activities that the employer agrees to allow FMLA leave for so long as the employee and employer agree to both the timing and duration of the leave. 29 CFR § 825.126.

Covered Military Member

Q. Who is a “covered military member” for the purposes of the qualifying exigency provisions?

A. A “covered military member” means the employee’s spouse, son, daughter, or parent on active duty or call to active duty status. 29 CFR § 825.126.

Call to Active Duty
Q. What does “active duty or call to active duty status in support of a contingency operation” mean for purposes of determining FMLA eligibility?

A. Employees are eligible to take FMLA leave because of a qualifying exigency when the covered military member is on active duty or call to active duty status in support of a contingency operation as either a member of the reserve components (including Army National Guard of the United States, Army Reserve, Navy Reserve, Marine Corps Reserve, Air National Guard of the United States, Air Force Reserve, and Cost Guard Reserve) or a retired member of the Regular Armed Forces or Reserve.

An employee whose family member is on active duty or call to active duty status in support of a contingency operation as a member of the Regular Armed Forces is not eligible to take leave because of a qualifying exigency. Similarly, a call to active duty for purposes of leave taken for a qualifying exigency refers to a federal call to active duty. State calls to active duty are not covered unless under order of the President of the United States. 29 CFR § 825.126.

Asking for Evidence of Qualification

Q. As an employer, what kind of certification can we ask for to prove an employee would qualify for FMLA leave under the qualifying exigency provision?

A. The first time an employee requests leave for a qualifying exigency arising out of the active duty or call to active duty status of a covered military member, an employer may require the employee to provide a copy of the covered military member’s active duty orders or other documentation issued by the military which indicates the covered military member is on active duty or call to active duty status in support of a contingency operation and the dates of the covered military member’s active duty service. If the need for leave arises out of a different active duty or call to active duty status of the same or another covered military member, the employee shall supply a copy of the new orders and documentation issued by the military.

Specifically, an employer may require that leave for any qualifying exigency be supported by a certification from the employee setting forth the following:

  • A statement or description, signed by the employee, of appropriate facts regarding the qualifying exigency for which FMLA leave is requested, which are sufficient to support the need for leave and include any supporting documentation;
  • The approximate date on which the qualifying exigency commenced or will commence;
  • If an employee requests leave because of a qualifying exigency for a single, continuous period of time, the beginning and end dates for such absence;
  • If an employee requests leave because of a qualifying exigency on an intermittent or reduced schedule basis, an estimate of the frequency and duration of the qualifying exigency; and
  • If the qualifying exigency involves meeting with a third party, appropriate contact information for the individual or entity with whom the employee is meeting and a brief description of the purpose of the meeting. 29 CFR § 825.309.

Caregiver Leave

Q. What does caregiver leave under the military FMLA provisions entail?

A. Eligible employees are entitled to up to 26 workweeks of FMLA leave per 12-month period to care for a current member of the Armed Forces, including a member of the National Guard or Reserves, or a member of the Armed Forces, the National Guard, or Reserves who is on the temporary disability retired list, who has a serious injury or illness incurred in the line of duty on active duty for which he or she is undergoing medical treatment, recuperation, or therapy; is in outpatient status for or is placed on the temporary disability retired list for.

Eligible employees may not take leave to care for former members of the Armed Forces, former members of the National Guard and Reserves and members on the permanent disability retired list under the military caregiver provisions. 29 CFR § 825.127.

Q. What is a “serious injury or illness” for the purposes of military caregiver leave?

A. It means an injury or illness incurred by a covered service member in the line of duty on active duty that may render the service member medically unfit to perform the duties of his or her office, grade, rank or rating. 29 CFR § 825.127.

Q. What relationship must the employee be to the service member before he or she is eligible to take military caregiver leave for this purpose?

A. In order to care for a covered service member, an eligible employee must be the spouse, son, daughter, parent or next of kin of a covered service member. For the purposes of this section, a “son or daughter” can be of any age. “Next of kin of a covered service member” means the nearest blood relative, other than the covered service member’s spouse, parent, son, or daughter in order of priority which is described in this regulation. 29 CFR § 825.127, 825.122.

Q. How is the 12-month period determined for the purposes of military caregiver leave?

A. It begins on the first day the eligible employee takes FMLA leave to care for a covered service member and ends 12 months after that date. An employee who utilizes military caregiver leave gets a total of 26 workweeks for all FMLA leave in one 12-month period. Only 12 of those weeks can be for other FMLA qualifying reasons. 29 CFR § 825.127.

Q. What kind of medical certification can we ask for in military caregiver leave situations?

A. An employer can require the health care provider of the covered service member to provide the following: the contact information of the health care provider including the provider’s type of practice; whether the service member’s injury or illness was incurred in the line of duty on active duty; the approximate date on which the serious injury or illness commenced and its probable duration; a statement or description of appropriate medical facts regarding the service member’s health condition; and sufficient information to establish the service member is in need of care and to approximate how long it will be needed. 29 CFR § 825.310.

First Amendment Rights

Rights Protected

Q. What rights of employees does the First Amendment protect?

A. Freedom of speech, freedom of association and the right to freely exercise one’s religion, are generally the areas of protection that result in legal challenges concerning employees in the school setting.

How Lawsuits are Brought

Q. How do lawsuits alleging a violation of First Amendment rights generally arise?

A. Most often employees file lawsuits under Section 1983 which is fully discussed in the chapter on “Liability” in this Handbook. Section 1983: Civil Rights. If a community college or technical college teacher, tenured or nontenured, is nonrenewed or terminated for the exercise of First Amendment rights, the teacher may also request a due process hearing pursuant to K.S.A. 72-2262.

First Amendment Rights: Association

Q. What rights does the freedom of association generally protect?

A. Political affiliations and affiliations with groups.

Affiliations

We have just discovered that one of our teachers is a member of the Nazi party. Can we terminate him?

A. No. Termination of public school employees for their political beliefs and affiliation violates the First Amendment. Martinez v. Cotulla Independent School District, 700 F.Supp. 17 (S.D. Tex. 1988). Further, in Keyishian v. Board of Regents, 385 U.S. 589 (1967), the Supreme Court struck down a state law making communist party membership prima facie evidence of disqualification for employment in the public school system. The court struck down the law as an over-broad interference with associational rights because it prohibited membership in an organization without any showing of specific intent that the teacher intended to further the organization’s unlawful aims.

Q. Can we require employees to disclose the names of the organizations they belong to?

A. Generally not. In Shelton v. Tucker, 364 U.S. 479 (1960), the Supreme Court held that absent a “substantial relation” between the school’s interest and the information required to be disclosed, a school could not compel a teacher to disclose his affiliations as a condition of employment.

Union Activity

Q. Does the First Amendment protect union activity?

A. Yes. The right of association protects teachers who are members of a union or employees’ association in advocating the objectives of the organization. NAACP v. Button, 371 U.S. 415 (1963).

Friendships

Q. Are friendships or personal relationships protected by the First Amendment?

A. Probably not. In Copp v. U.S.D. No. 501, 882 F.2d 1547 (10th Cir. 1989), the court found that the First Amendment right to associate does not include emotional bonds between public employees. Friendship between employees is not the type of association that the First Amendment was intended to protect.

First Amendment Rights: Religion

Q. Is the right to freely exercise one’s religion an absolute right?

A. No. The freedom to believe is absolute, but the freedom to act on those beliefs is not. A school district can restrict an employee’s right to free exercise only if it can show a compelling interest which is served by the regulation.

Q. In this context, what constitutes a compelling interest?

A. In addition to guaranteeing the right to freely exercise one’s religion, the first amendment prohibits governments from establishing religion. A school district could legitimately prohibit a teacher from opening class with a prayer, reading Bible verses, or proselytizing about religion to students because the school has a compelling interest in not violating the Establishment Clause.

Religious Material in the Classroom

Q. Does an employee have a right to have a Bible or other religious materials in the classroom?

A. Probably. So long as the employee is not using these materials to promote or proselytize religion, having the items in the classroom for personal use is not a violation of the Establishment Clause. In Warnock v. Archer, 380 F.3d 1075 (8th Cir. 2004), the Eighth Circuit found the superintendent’s personal religious effects in his office were constitutionally protected. But, in Roberts v. Madigan, 921 F.2d 1047 (10th Cir. 1990), the Tenth Circuit found that a school district did not violate a teacher’s rights when, after receiving complaints from parents, it ordered a teacher to cease reading his Bible silently to himself during reading periods. Similarly, the court found no violation of the teacher’s First Amendment rights in Johnson v. Poway Unified Sch. Dist., 658 F.3d 954 (9th Cir. 2011), where the teacher was ordered to remove banners emphasizing God from his classroom.

In Freshwater v. Mt. Vernon City Sch. Dist., 137 Ohio St. 3d 469 (Ohio 2013), the court concluded the school violated the teacher’s First Amendment rights by asking the teacher to remove a Bible, inconspicuously placed on this desk and not used or referenced in instruction, from his classroom. However, the court also concluded the teacher was insubordinate in failing to remove another Christian-themed book and a poster depicting governmental officials in prayer as directed. The court indicated these items were not related to his free exercise of religion, but intended to “make a point” after the controversy about the Bible arose.

If the materials are deemed to be curricular in nature, the result might be different. In Lee v. York County School, 484 F.3d 687 (4th Cir. 2007), the court found a teacher’s First Amendment rights were not violated when he was directed to remove materials with religious overtones from his classroom bulletin board. Concluding the items were curricular in nature, the court indicated they were subject to regulation by the school.

Use of Facilities for Religious Meetings

Q. Do employees have a right to use school facilities for religious meetings before or after school?

A. The rights of a teacher in this instance are no greater or lesser than the rights of other outside groups. If you have created a public forum with your school facilities, a teachers’ group would have the right to use the school facilities; if you haven’t created a public forum, the teacher would not have a right to use the facilities. See the Handbook section entitled “School Property: Use of Facilities.”

Q. Is administrator led prayer at staff meetings permissible?

A. Probably not. In Warnock v. Archer, 380 F.3d 1075 (8th Cir. 2004), a teacher successfully challenged the superintendent’s practice of praying at mandatory staff meetings and trainings. The court concluded this practice violated the Establishment Clause.

Teaching about Religion

Q. Can teachers teach about religion in their classes?

A. Yes. Teachers can teach about religion, but they cannot teach a religion or proselytize about their particular religious beliefs. For more information, see the Handbook section entitled Religion: Curriculum.

Religious Holidays

Q. Can teachers have religious symbols in their classrooms or have students sing religious songs during the holidays?

A. Maybe. See the Handbook section entitled Religion: Religious Holidays.

See You at the Pole

Q. Can teachers participate in “See You at the Pole” activities with students?

A. It is not recommended. In Doe v. Wilson County School System, 564 F.Supp.2d 766 (D. Tenn. 2008), some teachers and school administrators participated in “See You at the Pole” and National Day of Prayer events. While they did not lead the prayers, they bowed their heads and wore “I Prayed” stickers following the event. The court concluded a reasonable observer of the event could conclude the event was sponsored or endorsed by the school and thus violated the Establishment Clause.

However, in Wigg v. Sioux Falls School District 49-5, 382 F.3d 807 (8th Cir. 2004), the court concluded a teacher’s participation in after-school religious activities with students held on school property was private speech, which did not put the school at risk of violating the Establishment Clause. The court noted students participated in the activities with the written permission of their parents, and the teacher proposed information about the meetings should include a disclaimer explaining that any school district employees participating in the activities were acting as private citizens and did not represent the school district in any way. For more information, see the Handbook section entitled Religion: See You at the Pole.

Church Activity

Q. Can teachers be involved with student groups in their churches?

A. Absolutely. Teachers can teach Sunday School or be advisors to church youth groups outside of school time.

First Amendment Rights: Speech

Q. Do employees have free speech rights while at school?

A. Yes. The question of the extent of those rights generally arises when a school district attempts to fire an employee because of statements he has made. It is well settled that a state may not discharge a public employee on a basis that infringes upon the employee’s constitutionally protected interest in freedom of speech. See, e.g., Rankin v. McPherson, 483 U.S. 378 (1987); Connick v. Myers, 461 U.S. 138 (1983); Pickering v. Board of Education, 391 U.S. 570 (1968).

Test for Determining if Speech is Protected

Pursuant to Job Responsibilities

Q. How do courts determine whether an employee has been properly discharged or disciplined for engaging in speech?

A. First courts consider whether the employee’s speech was made pursuant to the employee’s job responsibilities in his or her capacity as an employee. When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. Garcetti v. Ceballos, 547 U.S. 410 (2006); Brammer-Hoelter v. Twin Peaks Charter Academy, 492 F.3d 1192 (10th Cir. 2007); Casey v. West Las Vegas Independent School District, 473 F.3d 1323 (10th Cir. 2007); Deschenie v. Central Consolidated School District No. 22, 473 F.3d 1271 (10th Cir. 2007); Green v. Board of County Comm’rs, 472 F.3d 794 (10th Cir. 2007).

Next, the courts will balance the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the state, as an employer, in promoting the efficiency of the public service it performs through its employees. The threshold question in applying the balancing test is whether the employee’s speech may be “fairly characterized as constituting speech on a matter of public concern.” Connick, 461 U.S. at 146.

Matter of Public Concern

Q. When is speech deemed to be on a matter of public concern?

A. Whether an employee’s speech addresses a matter of public concern is determined by the content, form and context of the given statements, as revealed by the whole record. This inquiry is ultimately a question of law for the court to decide. Hullman v. Board of Trustees of Pratt Community College, 725 F.Supp. 1536, 1544 (D. Kan. 1989.) Because almost anything that occurs with a public agency could be of concern to the government, a court does not focus on inherent interest or importance of the matters discussed by a terminated public employee, but rather the court decides whether the speech at issue in a particular case was made primarily in the employee’s role as citizen or primarily in his role as employee. The fact that the speech was one in which the public might or would have had a great interest is of little moment. See Terrell v. University of Texas System Police, 792 F.2d 1360 (5th Cir. 1986).

In evaluating the issue of public concern, courts have focused on the extent to which the context of the speech was calculated to disclose wrongdoing or inefficiency or other malfeasance on the part of governmental officials in the context of their duties. Koch v. City of Hutchinson, 847 F.2d 1436, 1445 (10th Cir. 1988), cert. denied, 109 S.Ct. 262.

Courts have consistently found the public concern element satisfied when the speech discloses evidence of corruption, impropriety, wrongful conduct, or malfeasance of public officials. Speech on the internal administration of the educational system and personal grievances are usually not protected. Hullman, 725 F.Supp. at 1545. Although the motive behind a public employee’s speech is relevant in determining whether matters of public concern are implicated, motive alone is not disposition of the question of whether the speech is protected by the First Amendment. See, Berg v. Hunter, 854F.2d 238 (7th Cir. 1988).

Q. Does the employee’s speech have to be made publicly?

A. No. Remarks made in private may be protected. Givhan v. Western Line Consolidated School District, 439 U.S. 410 (1979).

Q. What if the speech is on a matter of personal concern?

A. Speech addressing matters of personal concern are not protected by the First Amendment. Employee complaints over internal affairs are not protected. Thus, speech concerning transfer policies, office morale, the need for grievance committees or the level of confidence in supervisors is not protected. Connick v. Myers, 461 U.S. 138 (1983).

Q. What about speech that doesn’t concern the school but concerns controversial political or social issues?

A. As long as the speech addresses a matter of public concern, a teacher has the right to comment not only on matters concerning the operation of the public school, but also to make out-of-class statements concerning controversial political or social issues. For instance, a federal appellate court has upheld a teacher’s right to send other faculty members an invitation to participate in a peace program against the Vietnam War. Stolberg v. Board of Trustees, 474 F.2d 485 (2nd Cir. 1973). Another federal appellate court has ruled that a teacher’s letter to a local newsletter supporting the legalization of marijuana was protected by the First Amendment. Wagle v. Murray, 546 F.2d 1329 (9th Cir. 1976), vacated on other grounds, 431 U.S. 935 (1977). The inappropriate or controversial character of the statement is irrelevant to the question of whether the statement deals with a matter of public concern.

Balancing Interests

Q. If we think that the speech is on a matter of public concern, are we prohibited from taking any action against the employees?

A. Not necessarily. Once it has been determined that the speech addresses a matter of public concern, the court will balance the employee’s interest in making this statement against the school’s interest in promoting the efficiency of the public services it performs. In performing the balancing test, the courts will not consider the statement in a vacuum. The manner, time and place of the speech are relevant, as is the context in which the speech arose. In balancing the interests the courts will consider the following factors:

  • Whether the speech impairs discipline by superiors;
  • Whether the speech impairs harmony among co-workers;
  • Whether the speech has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary;
  • Whether the speech impedes the performance of the teacher’s duties;
  • Whether the speech interferes with the regular operation of the school;
  • Whether the speech damages professional reputations; and
  • The degree of authority and public accountability of the employee making the speech.

Substantial Motivating Factor

Q. We have a teacher whose performance has been poor. She is now writing letters to the editor criticizing our proposed bond issue. Does this block our ability to nonrenew based on the poor performance?

A. Proceed with the nonrenewal. In dismissal based on a mixture of protected and unprotected activity, the employee must show that the conduct was constitutionally protected and that it was a “substantial” or “motivating” factor in the decision to terminate the employment. The court then determines if the school district has shown, by a preponderance of the evidence, that it would have reached the same decision even in the absence of the protected conduct. Whether the speech was a substantial factor in the employment decision and whether the employer can show that it would have reached the same decision in the absence of the protected speech are questions of fact for the jury. Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274 (1977); Trant v. Oklahoma, 754 F.3d 1158 (10th Cir. 2014).

Speech on Social Media Sites

Q. Does the same standard apply to a teacher’s speech on a social media site?

A. Probably. In Munroe v. Central Bucks Sch. Dist., 805 F.3d 454 (3rd Cir. 2015), the court held a teacher’s blog post, full of rude and disparaging remarks about her students, was not entitled to First Amendment protection. The court found the comments arguably were not on a matter of public concern. The court indicated even if the comments implicated a matter of public concern, applying the Pickering balancing test, the school district’s interest in promoting efficiency and avoiding workplace disruption outweighed the teacher’s or the public’s interest in the speech.

The court in In re O’Brien, 2013 WL 132508 (N.J. Super. 2013), upheld the dismissal of O’Brien, a first grade teacher, who posted, “I’m not a teacher—I’m a warden for future criminals!,” on her Facebook page. Addressing the issue of whether her comments were entitled to First Amendment protection, the court found the statements were not an effort to comment on student behavior as a matter of public interest, but driven by her own dissatisfaction with her job and the behavior of some of her students. The court added that even if the comments were on matters of public concern, her right to express those comments was outweighed by the district’s interest in the efficient operation of its schools. Under Pickering, her Facebook posts were not protected speech.

Classroom Speech

Q. Does the same standard apply to a teacher’s speech in the classroom?

A. Although some courts apply the Pickering and Mt. Healthy tests to classroom speech, in Miles v. Denver Public Schools, 944 F.2d 773 (10th Cir. 1991), the Tenth Circuit Court of Appeals concluded that a teacher’s classroom speech should be subject to the test enunciated by the Supreme Court in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). Under that standard, a school may regulate school sponsored expression so long as the regulation is related to legitimate pedagogical concerns.

In Miles, a high school teacher was reprimanded for statements he made in the classroom about rumors that two students had been making out on the tennis court. The court found that the district’s interests in preventing a teacher from using his position of authority to confirm an unsubstantiated rumor or disassociating itself from speech it considered inappropriate; in ensuring that its teacher employees exhibit professionalism and sound judgment; and, in providing an educational atmosphere where teachers do not make statements about students that embarrass those students among their peers were all legitimate pedagogical interests which were furthered by suspending the teacher with pay pending investigation of the incident and placing a letter of reprimand in his file.

Prior Restraints on Speech

Q. May we require school employees to discuss school problems with the administration prior to making public comments?

A. Generally, the courts have viewed prior restraints on speech with disfavor. A school rule prohibiting cafeteria employees from talking to anyone but the principal about “school problems” and impliedly threatening adverse employment actions was found to impermissibly place a prior constraint on a cafeteria employee’s complaints about unsanitary practices in violation of the First Amendment in Luethje v. Peavine School Dist. of Adair Co., 872 F.2d 352 (10th Cir. 1989).

In Knapp v. Whitaker, 577 F.Supp. 1265 (D.C. Ill. 1983), the court concluded school board policy requiring communications to the school board to be made through the superintendent was unconstitutional both on its face and as applied to a high school teacher who was reprimanded for communications made directly to the board criticizing grievance procedures. Further, in U.S.D. No. 503 v. McKinney, 689 P.2d 860 (Kan. 1984), the court concluded that an injunction barring a school district employee and others from holding meetings or from speaking at school board meetings was an unconstitutional prior restraint.

Health Issues

Physical Examinations

Q. May we require all finalists for an open position in our district to have a physical examination?

A. No. Preemployment health examinations are prohibited under the Americans with Disabilities Act.

Q. May we condition an offer of employment on passing of a physical?

A. Yes. But only if you require post-offer physicals of all potential hires in the same job classification.

Q. After we hire an individual, may we require a physical examination?

A. Yes. K.S.A. 72-6266 requires a board to require all persons who come in regular contact with students to submit a certification of health to the district. The form of the certificate is prescribed by the Department of Health and Environment.

Health Certificates

Q. Are we required to pay for the cost of getting the health certificate for our employees?

A. K.S.A. 72-6266 allows, but does not require, the board to pay such costs.

Q. If we think an employee may be ill, may we require additional certifications of health?

A. Yes. Certifications of health are required in order to protect the health, safety and welfare of students. If the board has reason to believe that an employee is suffering from an illness detrimental to the health of pupils, a new certificate of health may be required.

Q. If we have reason to believe that an employee may have mental health problems, may we require a mental health assessment?

A. While the statute does not specifically authorize mental health examinations, neither does it prohibit such examinations. Because the purpose of the statute is to protect the health, safety and welfare of students, a district could make a strong argument that the authority to require a mental health examination when an employee’s mental condition may jeopardize student welfare is implied in K.S.A. 72-6266.

Health Insurance

Q. Do teachers who leave the school district have a right to continue in our health insurance plan?

A. In some cases, yes. See the section of this Handbook entitled Liability: Insurance: Health Insurance for Retirees.

Random Drug Testing

Q. May we do random drug testing of our employees?

A. Generally not. You are required to do random testing of bus drivers, but unless employees are in safety sensitive positions, it is likely random drug testing would violate an employee’s rights under the Fourth Amendment. If the school has reasonable suspicion an individual employee is under the influence of drugs or alcohol, the school could require an individual to submit to a drug test at that time.

Licensure

Q. What are a school district’s responsibilities with regard to teachers’ or administrators’ licenses?

A. The district has a responsibility to see that the people it hires are properly licensed to perform the jobs for which they are hired. The responsibility to renew a license or to get additional areas of licensure added to a license rests with the teacher or administrator.

Unlawful to Pay without Proper Licensure

Q. Are there restrictions on or penalties for allowing personnel to work in areas where they do not have proper licensure?

A. Yes. Although the state department generally issues only a warning and gives a district time to correct the situation, failure to have properly licensed personnel could result in loss of accreditation.

Further, K.S.A. 72-2159 makes it unlawful for the board to issue an order for payment of the salary of any licensed employee who does not hold a valid license for the kind of work to be performed.

Q. Are there exceptions for emergency situations?

A. There may be. Check with the licensure division of the Kansas State Department of Education with regard to specific situations.

Grounds for Nonrenewal

Q. Is not having a valid license grounds for nonrenewal or termination of a teacher’s contract?

A. Yes. Most courts have concluded that lack of certification renders a teacher unqualified for a position. If the teacher leaves the district while the teacher is under a contractual obligation to the district, the teacher’s certificate may be suspended for the period of the contract by the state board. In this case, to get the certificate suspended, a complaint must be signed by two-thirds of the members of the board and forwarded to the state board. The state board must have a hearing on the matter before suspending the certificate. Generally, the state board refuses to suspend a certificate for contract jumping if a district’s policies or negotiated agreement allow for liquidated damages.

Q. With several weeks of school remaining, we have learned that our math teacher’s teaching certificate expires next Monday? What should we do?

A. This question involves several statutory, contractual and constitutional issues, and there is not a clear answer. Kansas statutes prohibit classroom instruction by a noncertificated teacher. Thus, the teacher should be suspended upon the expiration of his certificate. K.S.A. 72-2159 also prohibits paying a teacher who is not appropriately certified. However, the school board is obligated to pay the teacher under the terms of the employment contract and is obligated to afford the teacher due process prior to suspension without pay.

At a minimum the board should suspend the teacher with pay and give notice of the intent to terminate the contract for lack of qualification. Additionally, the board may want to suspend without pay pending the outcome of the termination hearing if the teacher is tenured. This would require a due process hearing before the board.

Q. Our contract says that it is void if the teacher does not maintain appropriate licensure. Can’t we just declare the contract void and avoid a due process hearing if the teacher lets his license lapse?

A. No. The Kansas Court of Appeals held a teacher whose license expires must be afforded due process before the contract may be terminated. In Rettie v. USD 475, 167 P.3d 810 (Kan. App. 2007), the court held, even though the license had lapsed, the teacher was still entitled to the protections of the Teacher Due Process Act. While those protections have been repealed for public school teachers, a teacher whose contract is terminated during the term of the contract would be entitled to constitutional due process.

Cancellation of a License

Q. For what reasons may a teacher’s license be canceled?

A. A teacher’s license may be canceled on grounds of immorality, gross neglect of duty, contract jumping or for any other reason which would have justified not granting a certificate in the first place. K.S.A. 72-2155 and K.S.A. 72-2216.

Q. Does the conduct have to impair the teacher’s ability to teach?

A. The Kansas Supreme Court answered this question negatively in the case of Hainline v. Bond, 250 Kan. 217 (Kan. 1992). In that case, Hainline sought review of the state board of education’s decision suspending his teaching certificate based on his commission of a burglary. In upholding the suspension of the certificate, the Supreme Court, held:

  • The board was not required to find the teacher’s felonious conduct impaired his ability to perform his job before suspension could be imposed;
  • The suspension of a teaching certificate for conduct unrelated to work did not violate the teacher’s constitutional right to privacy; and
  • The term “immorality” as used within the statute was not unconstitutionally vague.
Q. Can a teacher’s certificate be affected if a teacher fails to pay child support and is held in contempt of court?

A. Yes. Pursuant to K.S.A. 74-146 and K.S.A. 74-147, the state board must adopt procedures for the suspension, termination, nonrenewal or denial of a teacher’s authority to teach if the teacher is found guilty of contempt of court under K.S.A. 20-1204a for failure to pay child support.

Q. What should we do if a teacher engages in conduct which constitutes grounds for canceling a certificate?

A. In order to have the state department take action to cancel the certificate, you should report the conduct to the state department. The district, apart from the state, may also want to take action to suspend or terminate the teacher’s contract.

Denial of or Failure to Renew a License

Q. Are there reasons for which a person can be denied the original issuance or renewal of a license?

A. Yes. K.S.A. 72-2165(a) provides a teaching certificate cannot be renewed or issued to an individual who has been convicted of any of the following crimes:

  • Rape, as defined in K.S.A. 21-5503;
  • Indecent liberties with a child, as defined in K.S.A. 21-5506(a);
  • Aggravated indecent liberties with a child, as defined in K.S.A. 21-5506(b);
  • Criminal sodomy, as defined in K.S.A. 21-5504(a)(3) or (a)(4);
  • Aggravated criminal sodomy, as defined in K.S.A. 21-5504(b);
  • Indecent solicitation of a child, as defined in K.S.A. 21-5508(a);
  • Aggravated indecent solicitation of a child, as defined in K.S.A. 21-5508(b);
  • Sexual exploitation of a child, as defined in K.S.A. 21-5510;
  • Aggravated incest, as defined in K.S.A. 21-5604(b);
  • Aggravated endangering a child, as defined in K.S.A. 21-5601(b);
  • Abuse of a child, as defined in K.S.A. 21-5602;
  • Capital murder, as defined in K.S.A. 21-5401;
  • Murder in the first degree, as defined in K.S.A. 21-5402;
  • Murder in the second degree, as defined in K.S.A. 21-5403;
  • Voluntary manslaughter, as defined in K.S.A. 21-5404;
  • Involuntary manslaughter, as defined in K.S.A. 21-5405;
  • Involuntary manslaughter while driving under the influence of alcohol or drugs, as defined in K.S.A. 21-3442, prior to its repeal;
  • Sexual battery, as defined in K.S.A. 21-5505(a), when, at the time the crime was committed, the victim was less than 18 years of age or a student of the person committing such crime;
  • Aggravated sexual battery, as defined in K.S.A. 21-5505(b);
  • Commercial sexual exploitation of a child, as defined in K.S.A. 21-6422;
  • Human trafficking, as defined in K.S.A. 21-5426(a);
  • Aggravated human trafficking, as defined in K.S.A. 21-5426(b);
  • Attempt, under K.S.A. 21-5301, to commit any act specified above;
  • Conspiracy under K.S.A. 21-5302, to commit any act specified above;
  • An act in another state or by the federal government that is comparable to any act described in this subsection; or
  • An offense in effect at any time prior to 2015 that is comparable to an offense contained in this list.
Q. Can a license be denied for the commission of other crimes?

A. Yes. Except in limited circumstances, the state department cannot issue or renew the teaching license of an individual who has been convicted of the following crimes, excluding those crimes previously outlined that constitute grounds for permanent denial of a license:

  • A felony under K.S.A. 21-36a01 through 21-36a17, or article 57 of chapter 21 of the Kansas Statutes Annotated, or any felony violation of any provision of the uniform controlled substances act prior to July 1, 2009;
  • A felony described in any section of article 54 of chapter 21 of the Kansas Statutes Annotated, or K.S.A. 21-6104, 21-6325, 21-6326 or 21-6418, other than an act specified in subsection (a), or a battery, as described in K.S.A. 21-5413(a), or domestic battery, as described in K.S.A. 21-5414, if the victim is a minor or student;
  • A felony described in any section of 55 of chapter 21 of the Kansas Statutes Annotated, or K.S.A. 21-6419 through 21-6421, other than an act specified in subsection (a);
  • Any act described in any section of article 36 of chapter 21 of the Kansas Statutes Annotated, prior to their repeal, or article 56 of chapter 21 of the Kansas Statutes Annotated, and amendments thereto, other than an act specified in subsection (a);
  • A felony described in 58 of chapter 21 of the Kansas Statutes Annotated, or K.S.A. 21-6412(a)(6);
  • Promoting obscenity, as described in K.S.A. 21-6401(a), promoting obscenity to minors, as described in K.S.A. 21-6401(b), or promoting to minors obscenity harmful to minors, as described in K.S.A. 21-6402;
  • Endangering a child, as defined in K.S.A. 21-5601(a);
  • Driving under the influence of alcohol or drugs in violation of K.S.A. 8-1567 or 8-2,144, when the violation is punishable as a felony;
  • Attempt under K.S.A. 21-5301, to commit any act specified in this list;
  • Conspiracy under K.S.A. 21-5302, to commit any act specified in this list.

Additionally, a license cannot be issued if the individual has been convicted in another state or federal court for similar offenses. Similarly, if an individual has entered into a criminal diversion agreement after being charged with one of these crimes, a license cannot be issued or renewed. K.S.A. 72-2165(b).

Exceptions for Permanent Exclusion

Q. What are the exceptions for permanent exclusion?

A. Permanent exclusion is not required if a person is convicted of one of the crimes listed in K.S.A. 72-2165(b). In these cases, if the state board determines the person has been rehabilitated for a period of at least five years from the date of the conviction or has satisfied the terms and condition of the diversion agreement, the state department may issue a license.

What factors may the state board consider?

A. In determining whether to grant a certificate to a person who claims to be rehabilitated, the board may consider, but is not limited to, these factors:

  • The nature and seriousness of the act;
  • The conduct of the person subsequent to the commission of the act;
  • The time elapsed since the commission of the act;
  • The age of the person at the time of the act;
  • Whether the act was an isolated or recurring incident; and
  • Discharge from probation, pardon or expungement. K.S.A. 72-2165(c).
Q. Can the state board simply deny a license on these grounds, or is a hearing required?

A. The person seeking the certificate must be given notice and an opportunity for a hearing in accordance with the provisions of the Kansas Administrative Procedure Act. K.S.A. 72-2165(d).

Q. How will the state board know if persons applying for certificates have been convicted of these crimes?

A. The law requires the county or district attorney of each county to file a report with the state board indicating the name, address and social security number of any person who has been determined to have committed the specified offenses. Additionally, the county attorney must file a report with the state board indicating the name, address and social security number of any person who has entered into a criminal diversion agreement after being charged with the specified offenses. These reports must be filed within 30 days of the date the person is found guilty or enters into the diversion agreement. K.S.A. 72-2165(e).

Q. Can the state board have liability for denying a license under these provisions?

A. No. The state board is granted immunity from liability for civil damages if the state board complies in good faith with the provisions of the law. K.S.A. 72-2165(f).

Licensure: Master Teachers

Q. Who can be issued a master teacher’s license by the state board of education?

A. Teachers who have attained certification from the national board for professional teaching must be issued a master teacher’s license from the Kansas State Board of Education. K.S.A. 72-2166(a).

Q. How long is a master teacher’s license valid?

A. Ten years and renewable every 10 years thereafter so long as the teacher complies with the continuing education and professional development requirements established by the state board. K.S.A. 72-2166(a).

Q. Are those with master teacher licenses treated differently than other teachers?

A. Yes. Under the state National Board for Professional Teaching Standards Certification Incentive Program, a school must pay master teachers an incentive bonus of $1000 per school year, not to exceed 10 years. K.S.A. 72-2166(a).

Q. When do we have to pay these incentive bonuses?

A. In any school year that the teacher retains eligibility for the payment.

Q. Where does the money for paying these bonuses come from?

A. The school district pays the bonuses like it would any other payment. You may then apply to the state board for state aid based on the amount of these payments. K.S.A. 72-2166(b).

Q. Are we reimbursed the full amount of all payments made?

A. You should be. The law requires you certify the amount of payments you have made to the state board. The state board then certifies these amounts to the state director of accounts and reports who must make payment to each school district on vouchers approved by the state board of education. K.S.A. 72-2166(c).

Q. How are these funds treated once they come to the school district?

A. They are considered reimbursements to the district and must be deposited in the general fund. These funds may be expended, whether or not they have been budgeted. K.S.A. 72-2166(d).

Q. Are there any programs to help teachers attain a master teacher license?

A. The state board may provide scholarships to teachers. Such scholarships cannot exceed $1100 per year for initial licensure and $500 per year for renewal programs. K.S.A. 72-2166(e).

Personnel Files

Q. Does an individual member of the school board have a right to examine a teacher’s personnel file?

A. No. K.S.A. 72-2411 allows the evaluation documents to be released to certain individuals and entities, including “the board.” Teacher personnel files, which contain teacher evaluations, may be released to the board and may be reviewed and discussed by the board in executive session. However, a person’s status as a board member does not afford that person greater rights than any other citizen. Further, the topic of access to personnel files is mandatorily negotiable. Restrictions on access may be included in the negotiated agreement.

Contents

Q. What should be included in the employee’s official personnel file?

A. Kansas statutes do not specifically itemize what must be contained in a personnel file. K.S.A. 72-2409, however, requires that evaluations and responses thereto be maintained in a personnel file for at least three years. In addition to the formal evaluations, it is recommended that the board place other important information regarding the employee’s performance in the official file. Employees should be notified of documents placed in their files and allowed an opportunity to respond to such documents.

Private Files

Q. Is it legal for an administrator to maintain a private file on individual employees?

A. There is probably no statutory or common law violation if an administrator maintains a private personnel file. Some administrators desire to collect notes and written observations to assist them in completing an employee’s evaluation. However, a private file should not be used as a substitute for the official file. That is, matters of significance (e.g., letters of reprimand and reports of misconduct or incompetency) belong in the official file. Documents and information contained in private files, but not in the official file, are arguably of little value in due process hearings.

Former Personnel

Q. Can the board destroy personnel records of retired or former teachers?

A. Yes. You may destroy records of obviously temporary importance after a reasonable time. The statute on record destruction, K.S.A. 72-1630, does not specify a certain time for keeping personnel records. It is recommended that you keep these records for at least five years after an employee leaves your employ.

Q. At negotiations, our teachers are proposing that teachers’ personnel files be purged of all evaluations and disciplinary information which is three or more years old. Should we agree to such a proposal?

A. Although agreeing to such a proposal would not be illegal, it is not recommended. It is preferable to maintain evaluations and other information in an employee’s personnel file for the duration of their employment. This can be particularly beneficial in situations where the employee’s pattern of conduct over a period of years provides a basis for the nonrenewal.

Preemployment Inquiries

Q. Are there restrictions on questions we may ask applicants for employment?

A. Yes. Discrimination laws, the First Amendment and privacy rights of individuals may limit the types of questions you may ask. Generally, all the questions you ask should be job related.

Address

Q. May we ask questions about an applicant’s address or residence?
  1. A. You may ask for a mailing address or for how long the person has been a resident of the city or state. You should not ask where the applicant lived previously.

Age or Birthdate

Q. May we ask for age or birth date?

A. You may ask if the applicant is over the age of 18. To avoid claims of age discrimination, you should not ask for age or birth date.

Convictions

Q. May we ask if the applicant has ever been convicted of a felony or any offense involving moral turpitude? If so, when, where and the nature of offense?

A. Yes. But inquiries may not be made regarding arrests for any crime.

Place of Birth

Q. May we ask the applicant his or her place of birth?

A. No. Inquiries may be made regarding birthplace of applicant, his or her parents, spouse or other close relative. You may not require an applicant to submit birth certificate, naturalization or baptismal records prior to an offer of employment.

Citizenship

Q. May we ask the applicant if he or she is a citizen of the U.S.?

A. You may ask this question only to determine whether applicant has a legal right to work in the U.S. No inquiry may be made as to what country applicant is a citizen, whether applicant is naturalized or native-born or whether applicant’s parents or spouse are naturalized or native-born citizens of the U.S.

Dependents

Q. May we ask the applicant if he or she has dependents?

A. You may not ask an applicant if he or she has children, the ages of the children, if there are other dependents or what child care arrangements have been made.

Disabilities or Health Problems

Q. May we ask the applicant if he or she has any disabilities, health or pregnancy problems?

A. You may ask the applicant if there are any positions for which he or she should not be considered or job duties he or she cannot perform. Inquiries may be made into contagious or communicable diseases which may endanger others. You may not ask the applicant if she is pregnant, using contraceptives, planning to have a family, that she be given a pelvic examination; if he or she has a disability or handicap, if he or she uses any adaptive device or aid, or if he or she has ever been treated for specific diseases.

Driver’s License

Q. May we ask the applicant if he or she has a driver’s license?

A. You may ask this only if driving is necessary for the job.

Education

Q. May we ask the applicant how much education he or she has?

A. You may inquire into the academic, vocational, or professional education of the applicant and the schools attended.

Emergency Contact Information

Q. May we ask an applicant for the name and address of person to notifiy in case of an emergency?

A. You may ask for the name and address of a person to notify in case of an emergency. You may not ask for the name and address of the nearest relative to be notified in case of an emergency.

Prior Work Experience

Q. May we ask applicant to disclose his or her prior work experience?

A. You may inquire into the applicant’s work experience.

Height or Weight

Q. May we inquire about the height or weight of the applicant?

A. You may not inquire regarding applicant’s height or weight unless it is a bona fide job qualification.

Housing

Q. May we inquire regarding the applicant’s housing?

A. No. You may not inquire if the applicant owns a home or is a renter.

Foreign Language Ability

Q. May we inquire if the applicant speaks or writes any foreign languages fluently?

A. You may inquire if the applicant speaks or writes any foreign language fluently only if use of the foreign language is job related.

Marital or Family Status

Q. May we ask the applicant his or her marital or family status?

A. Generally not. You may not inquire regarding how the applicant wishes to be addressed, e.g., Ms., Mr., Miss or Mrs. or ask any questions regarding family planning. You may ask if the applicant is related to a board member or employee of the district if the board has a nepotism policy.

Military Service

Q. May we ask if the applicant has had military service?

A. You may only ask the question of military service as it relates to prior employment or possessing special skills or training.

National Origin

Q. May we ask the applicant his or her national origin?

A. Generally not. You may only inquire into the language that the applicant speaks or writes if it is relevant to the job.

Memberships

Q. May we ask the applicant if he or she is a member of any organizations?

A. You may inquire into membership in professional organizations or hobby groups only to the extent that they are relevant to the job.

Personal Traits

Q. May we ask the applicant questions regarding personal traits, e.g., do you smoke, do you drink alcoholic beverages, what books do you read, what is the value of your assets, how much insurance do you carry, how often are you sick or do you have any hobbies?

A. No. You may not ask any of these questions.

Photograph

Q. May we ask the applicant for a photograph?

A. You may require that applicant submit a photograph either before or after the preemployment inquiry.

Race

Q. May we ask the applicant his or her race or color?

A. You may not ask questions regarding complexion or color of skin, national origin, ancestry, etc.

References

Q. May we ask the applicant for references?

A. You may ask who suggested that the applicant apply and for the name and address of person(s) for reference.

Relatives

Q. May we ask the applicant questions regarding his or her relatives?

A. You may ask if the applicant has relatives already employed by the school system.

Religious Preference

Q. May we ask the applicant about his or her religious preference?

A. You may only ask the applicant general questions regarding work hours, such as: “Are you available to work the hours and days required for the job?” You may not inquire into the applicant’s religious affiliation, the religious holidays the applicant observes or if the applicant goes to church.

Special Skills

Q. May we ask if the applicant has any special skills?

A. You may inquire into special skills such as foreign languages, writing, operating computers, etc., if job related.
NOTE: Once an individual is hired, additional information may be obtained such as marital status, dependents, health information which is needed for insurance and income tax purposes.

Programs for Employees

Early Retirement Incentive Program

Q. May we have an early retirement incentive program for our employees?

A. Yes. K.S.A. 72-2291 authorizes such programs. Such programs are mandatorily negotiable for your teaching staff.

Q. Are there any requirements for early retirement programs?

A. Yes. You cannot make payments to an individual under the program prior to retirement under KPERS. Further, the district must submit a budget report on their early retirement program to the Kansas State Department of Education beginning in FY 2002 and at least once every three years thereafter. The requirement for actuarial valuations of these programs was removed from the law by the 2002 Kansas Legislature. K.S.A. 72-2291.

Q. What must the report contain?

A. The report is to be submitted on a form developed by the state board of education and must contain the following information:

  • Three years of budget data on the program, including actual costs and current year and future years’ budget data for three to five years;
  • Current costs and benefits of the program for three to five years;
  • Current and projected number of participants in the program; and
  • Other information as required by the state board of education. K.S.A. 72-2291(b).

Employee Assistance Program

Q. May we have employee assistance programs for employees?

A. Yes. You may enter into contracts for the provision of an employee assistance program designed to assist in the identification and resolution of personal problems which may affect the employee’s performance, but you are not required to have such programs. K.S.A. 72-2571.

Professional Development Programs

Q. Are we required to have professional development programs for certificated employees?

A. Yes. K.S.A. 72-2547 requires boards to establish and maintain a professional development program for certificated personnel of the district. You may develop professional development program plans based on the identified needs at the individual building and district levels and contract with others to provide these programs.

Q. How should professional development programs be evaluated, reviewed and approved?

A. The state board creates standards for evaluation, review and approval based, in part, on measuring and assessing the impact of the programs on improving the instructional skills of certificated employees and improving the academic performance of pupils. K.S.A. 72-2546.

Q. When may these professional development programs be scheduled?

A. At any time during the school year. K.S.A. 72-2547(b)(2).

Q. Are state funds available to pay for professional development programs?

A. Yes. You may apply for state aid on forms provided by the state board. K.S.A. 72-2549 through K.S.A. 72-2551.

Incentive Bonus Programs

Q. Are we required to have any incentive bonus programs for employees?

A. Yes. K.S.A. 72-2166 establishes the national board for professional teaching standards incentive program. It requires that teachers who are issued a master teacher’s certificate be paid an incentive bonus of $1,000 per year each school year the teacher remains employed by the district and retains a valid master teaching certificate. See the section of this chapter entitled “Certification: Master Teachers.”

Mentor Teachers

Q. Are there any programs available to assist new teachers?

A. Yes. K.S.A. 72-2561 through K.S.A. 72-2564 require the Kansas State Department of Education to establish guidelines for a mentor teacher program. Under this law, a local board may establish and maintain a mentor teacher program for the purpose of providing nontenured teachers with professional support and the continuous assistance of an on-site mentor teacher.

Q. Who can be a mentor teacher?

A. A tenured teacher in the district, selected by the local board on the basis of having demonstrated exemplary teaching ability, may serve as a mentor teacher. The teacher must also participate in and complete a training program for mentor teachers in accordance with state guidelines.

Q. How many teachers can a mentor supervise?

A. Not more than two.

Q. Will state funding be available under this program?

A. Funding may be available through state grants. The law requires that mentor teachers be paid an additional $1,000 for each probationary teacher they mentor each year and authorizes a state grant program.

Q. How do we apply for grants under this program?

A. File a Mentor Teacher Program Application for Reimbursement with KSDE. Applications are generally due by May 1. Moneys received under the grant must be deposited in the general fund and are considered reimbursements for the purpose of school finance.

References & Background Checks

Immunity from Liability

Q. If a school district employer discloses information about a current or former employee to a prospective employer, does the school district have any liability?

A. Maybe. An employer has “qualified immunity” from civil liability if the reference was given in good faith, without malice and the school district has a factual basis for believing it is true. K.S.A. 44-119a.

Q. If the employer discloses only the date of employment, the pay level, job description and duties and wage history, does the employer have any greater protection from civil liability?

A. Yes. If the employer only discloses these four facts then the employer has absolute immunity from civil liability. K.S.A. 44-119a(b).

Qualified Privilege

Q. Are there any other protections?

A. Yes. In Turner v. Halliburton Co., 240 Kan. 1 (1986), the Kansas Supreme Court held in a defamation action brought by an employee against a former employer, a qualified privilege existed with respect to communications between the former employer and an employer with whom the employee had applied for a position.

Q. Why is the privilege “qualified?”

A. Because it can be defeated with a showing the statement to the prospective employer was made with actual malice.

Background Checks Not Required

Q. Are schools required to do any kind of background check on new employees?

A. No. The law passed by the 2000 Kansas Legislature that required background checks of all school employees expired at the end of one year and was not reauthorized.

Q. May we do background checks on our employees or applicants for employment?

A. Yes. The No Child Left Behind Act amended the National Child Protection Act of 1993 to include individuals employed by or who seek to be employed by any school in any capacity as “providers” who can be subject to criminal history background checks.

Q. How do we make arrangements to get a criminal history records check done on applicants for employment?

A. Contact the Kansas Bureau of Investigation for information on criminal history background checks.

Payment for Background Checks

Q. Who pays for the background check?

A. Generally, the school district must pay the cost of the background check.

Fair Credit Reporting Act Requirements

Outside Investigators

Q. Can we hire a private investigator or firm to conduct a background check on applicants for employment in the district?

A. Yes. When you hire an outside investigator to do a background check, the investigator is considered a “consumer reporting agency” and any communication coming to the district from the investigator is considered a “consumer report” for purposes of the federal Fair Credit Reporting Act.

Q. What is a consumer reporting agency?

A. A consumer reporting agency is a business that assembles consumer reports for other businesses.

Q. What is a consumer report?

A. Reference checks, credit histories, driving records or criminal histories can all be considered consumer reports if a school district hires an outside party or firm to gather the information. A consumer report is defined by law as any communication used by a consumer reporting agency bearing on a consumer’s character, general reputation, personal characteristics or mode of living used as a factor to establish the consumer’s eligibility for employment.

School Personnel

Q. What if school personnel do the reference checks?

A. If reference checks are done by school personnel, the Fair Credit Reporting Act does not apply. It is only when a consumer reporting agency is involved that the Act applies.

Compliance with FCRA

Q. What must we do to comply with the Fair Credit Reporting Act if we use an outside agency to do background checks?

A. Before you ask the company to do the background check, the school must:

  • Notify the individual in writing that a report may be obtained. This notice must be on a document consisting solely of this notice, separate from other notices the school may give to the employee or applicant.
  • Get the individual’s written authorization to obtain the report.
Q. After we receive the report, do we have any additional obligations under FCRA?

A. Yes. If you rely on the report to support an “adverse action” such as denying employment, you must do the following:

  • Before taking the adverse action, the school must give the individual a preadverse action disclosure that includes a copy of the report and a copy of a document entitled “A Summary of Your Rights Under the Fair Credit Reporting Act,” a document prescribed by the Federal Trade Commission, the agency that enforces the act;
  • After taking the adverse action, the school must give the individual an “adverse action notice.”
Q. What if we decide not to employ an individual because of information contained in the report?

A. The “adverse action notice” must include the following:

  • The name, address and phone number of the consumer reporting agency (CRA) that supplied the report;
  • A statement that the CRA that supplied the report did not make the decision to take the adverse action and cannot give specific reasons for it; and
  • A notice of the individual’s right to dispute the accuracy or completeness of any information the agency furnished and his or her right to an additional free consumer report from the agency upon request within 60 days.
Q. Does the adverse action notice have to be in any particular form?

A. No. The notice can be given orally, in writing or electronically. The school should ensure it keeps a record to show the appropriate notice was given.

Q. Do we have to do anything before giving the individual a copy of their consumer report?

A. Before giving the school the consumer report, the CRA will require the school to certify that it is in compliance with the FCRA and that it will not misuse any information in the report in violation of federal or state equal employment opportunity laws or regulations.

Q. What if there is nothing negative about the applicant in the report, but something in it that makes us decide not to hire the applicant?

A. The information does not have to be negative. If it is a factor in the decision not to hire the individual, the pre-adverse action disclosure and adverse action notice are required.

Remedies

Q. What remedies does an applicant or employee have under FCRA?

A. The FCRA allows individuals to sue employers for damages in federal court. Prevailing parties can recover court costs and reasonable legal fees. Additionally the Federal Trade Commission may sue employers for noncompliance and obtain civil penalties.

KBI Criminal Background Checks not Subject to FCRA

Q. Does criminal history background information obtained through the KBI fall under the protection of the Fair Credit Reporting Act?

A. Federal Trade Commission advisory opinions suggest they do not. Criminal history reports obtained in this manner are not considered consumer reports because they are done by public agencies carrying out their mandate to protect the public by assisting employers in monitoring individuals hired in a sensitive sector. Similar reports generated by private companies hired to prepare the report would, however, be subject to the FCRA requirements.

Required Employees

Q. What employees or officers is a school district required by law to have?

A. A superintendent, a clerk, a treasurer, and any others the board deems necessary. K.S.A. 72-1134, K.S.A. 72-1135, K.S.A. 72-1136 and K.S.A. 72-1137. State Board regulations also set requirements on employees for accreditation purposes.

Board Clerk

Q. What are the duties of the clerk?

A. The clerk must:

  • Keep an accurate record of the proceedings of the board;
  • Have care and custody of the records, books and documents of the board; and
  • Prepare and submit all reports to or for the board as required by the board or by law. K.S.A. 72-1135.

These are the statutorily defined duties of the clerk. The board may assign other duties as well.

Q. Our board clerk is in the hospital and will be unable to attend our next board meeting. What should we do?

A. Appoint an acting clerk for the meeting.

Q. Can a board member or the superintendent be the clerk?

A. No. The law prohibits the clerk from being a board member, the superintendent or the treasurer. K.S.A. 72-1135.

Q. Is the clerk an employee of the board or of the superintendent?

A. In the capacity of clerk of the board, the clerk is a direct employee of the board and serves at the pleasure of the board. The clerk may also serve the district in other capacities such as secretary to the superintendent, business manager of the district, etc. For these purposes the clerk’s supervisor may be someone other than the board.

Superintendent

Q. Are we required to have a superintendent?

A. Yes. K.S.A. 72-1134 requires the board to appoint a superintendent of schools.

Q. May a board member be the superintendent?

A. No. This is expressly forbidden by law.

Q. Can we appoint an acting superintendent while we do a comprehensive search to find a replacement?

A. Yes. K.S.A. 72-1134(b) authorizes this.

Q. Can we simply go without a superintendent while we do the search?

A. No.

Q. What are the powers of the superintendent?

A. The superintendent has charge and control of the schools of the district, subject to the policies and rules of the board. The board sets policy; the superintendent is in charge of the day-to-day administration of the district.

Q. May we share a superintendent with another school district?

A. Yes. By resolution you may enter into an agreement with another school district to share the services of certificated personnel, including the superintendent. K.S.A. 72-13,102.

Q. Are such agreements subject to any conditions?

A. Yes. The agreement cannot be for a term of more than five years, it is subject to change by the legislature and it may be changed or terminated by the mutual agreement of the boards who have entered into the agreement.

Q. What provisions must such an agreement contain?

A. Each district should consult with their attorney in determining what the agreement should contain. By law the agreement must, at a minimum, specify the following:

  • The duration of the agreement;
  • The manner and method of performance of the responsibilities, duties and functions of boards under the provisions of K.S.A. 72-1134 and Article 54 of Chapter 72 of the Kansas Statutes Annotated (negotiations, continuing contract, due process, etc.)
Q. May we contract with a third-party provider for a superintendent rather than hiring the superintendent as our employee?

A. No. In Attorney General Opinion No. 2002-38, the Attorney General concluded the superintendent must be an employee of the school district.

Treasurer

Q. Who is eligible to be treasurer of the board?

A. Anyone except the superintendent, the clerk, or a board member. The person who is appointed treasurer must furnish a surety bond to the district prior to assuming any duties as treasurer. K.S.A. 72-1136.

Q. What are the duties of the treasurer?

A. The treasurer must:

  • Deposit all school district moneys;
  • Prepare a monthly written report on the finances of the school district; and
  • Prepare other reports as required by the board or by law. K.S.A 72-1136.

Residence

Q. Can a school district legally require employees to live within the school district boundaries?

A. Probably. If it is imposed as a condition of initial employment. Courts have taken divergent views as to whether a residency requirement is a valid factor to be considered in determining if a teacher is qualified for employment. While some courts have struck down requirements that teachers reside within the boundaries of the school district in which they teach, others have sustained residency requirements for public school teachers on the basis of the rational relationship test. The Tenth Circuit, of which Kansas is a part, has upheld residency requirements for administrators but has not considered the issue with regard to teachers.

Q. Can we impose a residency requirement on current employees who reside outside the district?

A. Although case law suggests that a residency requirement as a condition of initial employment may be upheld, requiring employees to move after they’ve been employed is more difficult. Unless you can show a compelling interest which would justify the requirement, it is unwise to impose such a requirement on current employees who have been allowed to live out of district.

Q. Can we require employees to send their children to school in our district even if they aren’t residents?

A. No. Such a requirement would infringe on the constitutional rights of the employee as a parent.

Search & Seizure

Q. It is my understanding that the Fourth Amendment to the U.S. Constitution may limit our ability to search employees. What does that amendment provide?

A. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause…”

Unreasonable Searches Prohibited

Q. Does the Fourth Amendment prohibit all searches unless we have a warrant?

A. No. The Fourth Amendment forbids only unreasonable searches. The legality of a search, therefore depends on what is reasonable under the circumstances.

Q. How do courts determine if a search is reasonable or unreasonable?

A. To determine the reasonableness of a search, the court balances: the need to search (maintain discipline and security; preserve a proper educational atmosphere) against the invasion of privacy which the search entails. Only action which invades an individual’s justifiable expectation of privacy constitutes a search.

School Standard: Reasonable under the Circumstances

Q. I know that the police need probable cause and a warrant to search but do the same rules apply in the school setting?

A. No. In New Jersey v. T.L.O., 105 S.Ct. 733 (1985), a case involving searches of students, the Supreme Court concluded that warrants and probable cause are not necessary in the school setting and that the legality of the search should depend simply on the reasonableness of the search under the circumstances. In O’Connor v. Ortega, 480 U.S. 709 (1987), the Supreme Court extended the application of the T.L.O. test to searches by government employers or supervisors of the personal property of their employees.

Where police officers are involved in the search at the request of school officials, this standard probably will apply. However, if police officers, rather than school officials, initiate the search, probable cause and a warrant are probably still required.

Q. Do employees have an expectation of privacy in their desks, file cabinets, etc.?

A. The extent to which they have an expectation of privacy may depend on your office practices, or policies and regulations. Public employees’ expectation of privacy in their offices, desks and file cabinets, may be reduced by actual office practices and procedures, or by legitimate regulation. If employees have reason to believe that only they have access to a locked desk or file cabinet drawer, there is probably an expectation of privacy.

Q. Under the T.L.O. reasonableness test, when is a search okay?

A. In order to pass the T.L.O. reasonableness test:

The search must be justified at its inception (i.e., there must be reasonable suspicion that the search will turn up evidence that the searchee is violating the law or school rules);

The search must be reasonably related in scope to the circumstances which justified the interference in the first place (i.e., related to the objectives of the search and not excessively intrusive).

Types of Searches

Q. What types of searches are covered in searches of employees?

A. Searches of employees may include noninvestigatory work-related intrusions or investigatory searches for evidence of suspected work-related employee malfeasance or misconduct. O’Connor v. Ortega, 480 U.S.709, 725-26 (1987). In either case, courts have recognized that wide latitude must be given to public employers.

Q. What constitutes reasonable suspicion in this context?

A. Ordinarily in this situation, a search will be justified at its inception where there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct or that the search is necessary for a noninvestigatory work-related purpose such as to retrieve a needed file.

Supplemental Contracts

Meetings before or after the School Day

Q. Can teachers be required to attend meetings scheduled before or after the contractual school day?

A. Probably. The answer to this question will depend on the negotiated agreement, the past practice of the district and possibly the nature of the meeting.

Modifying Curriculum

Q. Can teachers be required to individualize a course for special education students or for slow learners who are not special education students?

A. Yes. In both cases, this is part of the teacher’s primary duty to teach all of the students in his or her classroom.

Sponsorships

Q. Can certified staff be required to assist with sponsorship of extracurricular activities, class sponsorships, etc.?

A. No. A teacher cannot be required to accept assignments which are covered by supplemental contracts. A teacher’s primary teaching contract cannot be offered on the condition that the teacher accept a supplemental contract nor can a teacher be fired for refusing to do supplemental duties.

Supplemental Assignments

Q. What assignments are supplemental duties?

A. K.S.A. 72-2217 defines a supplemental contract as a contract for services other than those covered in the principal or primary contract. These services may include, but are not limited to, coaching, supervising, directing and assisting extracurricular activities, chaperoning, ticket taking, lunch room supervision and other similar and related activities.

Q. Can we put primary and supplemental assignments all in one contract?

A. Yes. But it is preferable to have two separate contracts. If all duties are listed in one document, the court will determine which duties are primary and which are supplemental. Swager v. U.S.D. No. 412, 9 Kan. App. 2d 648 (1984).

Q. Can teachers agree to be assigned supplemental duties in a negotiated agreement?

A. No. In Swanson v. U.S.D. No. 241, 11 Kan. App. 2d 171 (1986), the court found that language in a negotiated agreement which required teachers to accept supplemental assignments violated K.S.A. 72-2217 and was unenforceable. They found that a teacher who refused to accept a supplemental duty under the terms of the negotiated agreement could not be fired for refusing to be assigned a supplemental duty.

Not Part of Teaching Contract during School Day

Q. If supplemental duties are scheduled during the school day can we require teachers to accept those duties to fill out their full-time teaching contract?

A. No. This situation was addressed by the court in Hachiya v. U.S.D. No. 307, 242 Kan. 572 (1988). In that case two teachers resigned from junior high coaching positions. Practice sessions for these sports were held during the last period of the school day and students received a grade for the activity. When they resigned from their coaching contracts, the board offered them 6/7 time contracts, arguing that the practice period, which was a graded activity, was part of the primary contract. The court disagreed and determined that the teachers had achieved tenure in a full-time contract and were entitled to remain on full-time contracts.

In order to avoid this problem, school districts should make sure that the primary contract offered to the teacher accurately reflects the primary duties, and cover the remainder in a supplemental contract, e.g., originally offer a 6/7 contract and a supplemental contract which includes pay for the supplemental duties performed during the school day.

Not Required to Assign

Q. We have a teacher whose contract is being reduced from full-time to part-time because of declining enrollment. Are we required to assign him supplemental duties to create a full-time position?

A. No. In Butler v. U.S.D. No. 440, 244 Kan. 458 (1989), the Kansas Supreme Court held that just as a school district cannot require a teacher to accept a supplemental contract, a teacher cannot demand a supplemental contract.

Other Similar and Related Activities

Q. What does the statute mean by “other similar and related activities?”

A. In NEA-Goodland v. U.S.D. No. 352, 13 Kan. App. 2d 558 (1989), a teacher argued that supervision of noon recess was a similar activity to lunch room supervision or other tasks specifically listed in the statute. The court did not agree, concluding that noon recess duty, like mid-morning or mid-afternoon recess duty, was intricately related to the education process and controlled by the primary contract. In reaching this conclusion the court noted that any teacher’s supervision of children participating in extracurricular activities must be governed by a supplemental contract. But, any teacher supervision of children which is entwined with the duty of educating should be considered a part of the teacher’s primary teaching obligation.

Supplemental Pay for Primary Duty

Q. May we have supplemental pay for duties which are primary duties?

A. Yes. But the board should carefully consider which duties are required to fall under a supplemental contract and the primary duties for which it is willing to give additional compensation. Supplemental pay for a primary duty is subject to continuing contract law while supplemental contracts are not.

Not Subject to Continuing Contract

Q. Are we required to give notice of our intent to nonrenew a supplemental contract on or before the third Friday in May?

A. No. Supplemental contracts are not subject to continuing contract or tenure laws. Unless you have offered a supplemental contract for the next year and the individual has accepted it, you are under no obligation to offer a contract. The individual who is not offered a supplemental contract has no right to a hearing.

Contractual Obligation during Term of Contract

Q. A teacher in our district accepted a supplemental contract for coaching football. Halfway through the season, he refuses to continue coaching. Do we have any recourse?

A. Once the teacher accepts the contract, he has a contractual obligation to perform under the contract. The teacher breaches the contract when he refuses to perform. You may quit paying the teacher under the supplemental contract and you may bring a breach of contract action against the teacher. In this situation it is unclear if the teacher could be fired from all of his duties for neglect of duty or insubordination as a result of his failure to perform the supplemental contract. However, the teacher’s supplemental contract clearly could be terminated.

Supplemental Contracts in RIF Situation

Q. Can we consider supplemental contracts when deciding which teachers to nonrenew in a RIF situation?

A. Probably. A teacher’s overall contribution to the school, including involvement in supplemental activities, should be a valid factor to consider.

Tenure

Application of the Kansas Due Process Procedure Act
Q. Which teachers are entitled to “tenure” (i.e., due process protections under the Kansas Due Process Procedures Act)?

A. Since the 2014 amendments, the Kansas Due Process Procedures Act no longer applies to teachers in public school districts in the state of Kansas. Any due process rights school teachers have are defined in your negotiated agreement with the teachers.

The protections of the Kansas Due Process Procedures Act apply only to postsecondary teachers at technical colleges, community colleges or the Washburn Institute of Technology:

  • Who complete three consecutive years of teaching in the postsecondary institution and are offered a fourth contract; and
  • Who complete two consecutive years of teaching in your institution, and are offered a third contract, if they have previously achieved tenure in another Kansas postsecondary institution. K.S.A. 72-2260.

Attaining Tenure

Q. Can the two- or three-year time period ever be extended?

A. No. Provisions that allowed for extension were removed from the law.

Q. A teacher taught in our college for more than three years, left for a few years, and now desires to return. How long before she achieves tenure?

A. You hire her back with tenure. Once an employee achieves tenure in a district, a break in employment does not alter the rights. Arneson v. U.S.D. No. 236, 8 Kan. App. 2d 178 (1982).

Q. A teacher taught in our college for two years, took one year off and now wants to return. When will she be tenured?

A. The teacher must teach for three more consecutive years to achieve tenure. Because the break in employment occurred in the first two years of teaching, which were not consecutive to the next year of teaching, the first two years do not count in the tenure calculation.

Part-Time Teachers

Q. A teacher has been teaching part-time for three years in our college. Does the teacher have tenure?

A. Yes. The teacher has tenure for purposes of the Teacher Due Process Procedures Act. Schmidt v. U.S.D. No. 497, 231 Kan. 267 (1982).

Q. Does a part-time tenured teacher have a right to a full-time position over a nontenured teacher in a RIF situation?

A. The law is unclear whether a teacher who has obtained tenure through part-time employment should receive a full-time position to the exclusion of a nontenured full-time teacher. The safest option would be to offer the position to the tenured teacher, despite the part-time status.

Q. A full-time tenured teacher at our college has requested a half-time position for one year. If we grant the request, will we be required to provide her a full-time position next year?

A. Possibly. There is no clear answer to this question. Arguably, the teacher would only be tenured in a half-time position. If the board does not desire to guarantee a full-time position the following year, the board should request and obtain a written resignation from the full-time position. The board’s position can be further strengthened by giving the teacher a letter confirming the teacher’s resignation and stating that the board cannot guarantee the teacher full-time employment in the future. A copy of the letter should be retained by the district.

Anniversary Date

Q. We hired a teacher at our college in January two years ago and at the end of this year the teacher will have completed 2½ consecutive years of teaching. When does she become tenured?

A. On the anniversary date of her contract. In other words, if you offer the teacher a contract for the coming school year, she will be tenured in January. If you have concerns about the teacher, your safest option would be to give her notice of your intent to nonrenew by May 1 of her second complete teaching year.

Use of Credit Cards by Employees

Q. Can the school district obtain credit cards in the school’s name for use by our employees?

A. Yes. The board must adopt a policy that provides for the acquisition of credit cards in the name of the school district and for use of the credit cards by designated officers and employees of the school.

Policy

Q. What does a policy on credit card use have to contain?

A. The policy must prescribe limitations and restrictions on the use of the credit cards and on the amounts and categories of expenses which may be paid through the use of the credit cards. The policy must also provide for the maintenance of a public record of all expenditures for payment of charges incurred by the school district through use of credit cards. K.S.A. 72-1175. In addition to these statutory requirements, it is recommended that the board:

  • Establish the amount which can be charged in any given period of time, what may be purchased and by whom;
  • Establish a timeframe for submitting receipts and logs of use;
  • Have credit card purchases made by employees reviewed by the business office and/or superintendent before they are submitted to the board for payment;
  • Have credit card purchases made by the superintendent reviewed by the board president or a designated school board member prior to submission to the board for payments; and
  • State the penalties or consequences for violation of the board’s rules for credit card use in the policy.
Q. Can the credit cards be used by teachers to buy supplies for their classrooms?

A. Yes. If the policy allows the school’s credit card to be used for this purpose.

Q. Can the credit cards be used to cover tuition, hotel and other expenses of school employees when they attend school-related conferences or seminars?

A. Yes. If the policy allows the school’s credit card to be used for this purpose.

Requirements for Use

Q. Should we require school employees to do anything before or after using credit cards?

A. Yes. You should require school employees:

  • To officially sign all credit card purchases;
  • To make only school-related purchases, not personal purchases, on school credit cards;
  • To submit credit card receipts, inI loovoices and logs to the school district’s business office on a regular basis;
  • To report all lost or stolen credit cards immediately;
  • To require crediting of the credit card account, not cash, if an item purchased with the credit card is returned; and
  • To ensure merchants are aware of the school’s sales tax exemption when purchasing merchandise.
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