Legal Watch - September 23, 2015
September 23, 2015

By Ira Michael Shepard, CUPA-HR general counsel and partner with Saul Ewing LLP

OFCCP Publishes Final “Pay Transparency” Rule, Outlawing Pay Secrecy Policies

The Department of Labor’s Office of Federal Contracts Compliance Programs (OFCCP) finalized in September its proposed “pay transparency” rule. It will be applicable to all federal government contractors with contracts entered into or modified on or after January 11, 2016. As the majority of colleges and universities in this country are federal government contractors, the rule could greatly impact the higher education community.

The new rule will prohibit federal contractors and subcontractors from imposing general pay secrecy rules whether or not they are applicable to employees working on government contracts. The rule will prohibit all contractors from discriminating against employees or applicants who discuss, disclose or inquire about compensation. Under the rule, federal contractor employees and applicants are permitted to file a complaint with the OFCCP if they believe they have been discriminated against or otherwise disciplined or terminated as a result of their discussing, inquiring about or disclosing compensation information.      

Presidential Executive Order Will Grant Paid Sick Leave to Federal Government Contractor Employees

President Obama on September 7 signed an Executive Order requiring all government contractors to offer their employees up to seven days of paid sick leave per year beginning in 2017. The White House estimates that over 300,000 new workers will have paid sick leave. The White House also estimates that right now 44 million private-sector workers do not have access to paid sick leave.

It is noteworthy that four states and some large cities — 25 jurisdictions in total — already have some form of minimum standards for paid sick leave. Most view this as a benefit for low-paid workers. According to Center for American Progress, 82 percent of high-paid workers have some access to paid sick leave, but only 14 percent of low-paid workers have such access.  

Teacher Fired for Maintaining Anonymous Blog Offensively Critical of Her Unnamed Students Loses First Amendment Retaliation Claim

A Pennsylvania school district has prevailed in its motion to dismiss a former teacher’s First Amendment retaliatory discharge claim. The Court of Appeals for the Third Circuit affirmed a federal district trial court judge’s dismissal of the case, concluding that the school district was justified in dismissing the teacher who had maintained a blog which was derogatory to her unnamed students and later defended her comments when questioned by the media (Munroe v. Central Bucks School District (2015 BL 287643, 3rd Cir., No. 14-3509, 9/4/15)).

The plaintiff established a blog under the name N Munroe. She did not otherwise identify herself, where she lived, where she worked or her school. She never identified her students by name. The title of the blog was, “Where Are We Going and Why Are We in This Handbasket.” She claimed the blog was for friends only and only had nine subscribers. Most of her posts did not concern her work, although some did with derogatory references to unnamed students. Some of her derogatory references included, “Just as bad as his sibling. Don’t you know how to raise kids?” “I’m concerned that your kid is going to come in one day and open fire on the school. (Wish I was kidding.)” “I hear the trash company is hiring.” “There is no other way to say this. I hate your kid.”

There was no password-protected access, so the blog was public and students discovered it and eventually began distributing copies at school. After the blog was discovered, the school received 200 requests from parents that the plaintiff not be allowed to teach their children.

The court found that the plaintiff spoke as a citizen and that she raised matters of public concern, which would normally qualify as First Amendment protected speech. However, the court concluded, “Nonetheless, the plaintiff’s free speech protections are trumped by the school district’s interests in delivery of educational services.”   

Appeals Court Revives “Student Interns” Overtime/FLSA Lawsuit Involving a Nursing Master’s Degree Clinical Program

The United States Court of Appeals for the Eleventh Circuit recently reversed summary judgment in favor of an anesthesia college in Florida in which the federal district trial judge dismissed a lawsuit brought by a group of 25 former students who had participated in a nursing master’s degree clinical program. The appeals court concluded that the former nursing students should be given a chance to prove that they are in fact employees under the more modern 7-point standards laid down by the Second Circuit Court of Appeals which modified the older Supreme
Court 5-point standard (Schumann v. Collier Anesthesia (2015 BL 294459, 11th Cir., No. 14-13169, 9/11/15)).

The appeals court concluded, “Longer term, intensive, modern internships that are required to obtain academic degrees and professional certification and licensure in a field are just too different from the type at issue” in the Supreme Court case which dealt with weeklong voluntary employer training, in which the court handed down a 5-point “primary beneficiary” test. Here the court sided with the recent Second Circuit 7-part test handed down in Glatt v. Fox Searchlight Picture (791 F3rd 376, 2nd Cir, 2015).

The court ruled that the old “primary beneficiary” test is outdated in this more modern context and that the former nursing students should be given a chance to prove their case under the more modern Glatt standards. The court of appeals revived the case and remanded it back to the trial court to decide whether under the Glatt standards the nursing students should be allowed to move forward with their claims.   

Special Ed Teacher With Depression and Anxiety Granted ADA Jury Trial Over Proposed Termination and Failure to Accommodate With a Temporary Transfer to a Substitute Position

A special education teacher in Pennsylvania is entitled to move forward to a jury trial over her Americans with Disabilities Act (ADA) claim that she was discriminated against in a proposed firing allegedly because of her depressed and anxious condition which is covered as a disability under the ADA and the school’s refusal to consider her proposed accommodation of a temporary transfer to a substitute teaching position (Aptaker v. Bucks County Intermediate (2015 BL 287856, ED.Pa. No. 2:14-cv-02255, 9/3/15)).

The federal district court judge denied summary judgment to the school, holding that a jury could infer, from the facts presented that the short time between the plaintiff disclosing her illness and her superiors more closely scrutinizing her performance leading to a recommendation of discharge, a pretext for unlawful discrimination under the ADA. The court also held that the school refused to participate in the interactive process to identify a reasonable accommodation once it became clear that the plaintiff had requested an accommodation as a temporary assignment to a substitute position.

The court recognized that the plaintiff had worked for the school for seven years and had never received a negative evaluation until shortly after she disclosed her illness and requested an accommodation. A month after the plaintiff disclosed her illness, her supervisors proposed a classroom evaluation in which she received a negative evaluation. Her request for a temporary transfer to a substitute position was denied and she was told there were no substitute positions available. The court pointed out that the plaintiff submitted evidence of substitute job openings and postings for that school year.

Finally, the court rejected the school’s argument that when the plaintiff requested the temporary substitute assignment she did not characterize the request as a request for a “reasonable accommodation.” The court ruled that the ADA does not require the use of “magic words” when requesting an accommodation. The court concluded that the school was on notice of the plaintiff’s disability and her request was sufficient to trigger its obligation to participate in the interactive reasonable accommodation process.