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Revised School Code

 

New Rule Will Entitle Over 4 Million More Workers to Overtime Compensation
 

The United States Department of Labor has published a rule that will update overtime regulations, raising the minimum salary required for an individual to be considered exempt under the Fair Labor Standards Act (“FLSA”). Employees who are nonexempt, or covered by the FLSA, are generally entitled to overtime compensation for any hours worked over 40 in a 7-day period.

Under the new rule, full-time employees who make less than $47,476 annually, or $913 per week, will generally be covered by the FLSA and entitled to overtime compensation. This standard salary level will be updated every three years. The new rule will allow employers to use nondiscretionary bonuses and incentive payments, like commissions, to satisfy up to 10% of the new standard salary level.

The new rule will not impact elementary and secondary school teachers, as they are exempt from overtime compensation. For such purposes, teachers include those who teach kindergarten, nursery school, gifted or disabled children, skilled and semi-skilled trades, driver’s education, home economics, and vocal or instrumental music. The new rule will take effect December 1, 2016.

 

Departments of Education and Justice Issue
Dear Colleague Letter on Transgender Students
 

On May 13, 2016, the U.S. Department of Justice, Civil Rights Division and the U.S. Department of Education, Office for Civil Rights, issued a Dear Colleague Letter on the rights of transgender students. The Dear Colleague Letter states that “Title IX of the Education Amendments of 1972 and its implementing regulations prohibit sex discrimination in educational programs and activities operated by recipients of Federal financial assistance . . . including discrimination based on a student’s transgender status.” The guidance then concludes that a school’s failure to treat a student consistent with his or her gender identity may create or contribute to a hostile environment in violation of Title IX. The guidance defines gender identity as “an individual’s internal sense of gender,” which “may be different from or the same as the person’s sex assigned at birth.”

According to the Dear Colleague Letter, schools must:

  • Treat students consistently with their gender identity even if their education records or identification documents indicate a different sex. Such treatment may include the use of pronouns and names consistent with the student’s gender identity.

  • Allow transgender students to participate in sex-segregated activities and access same-sex facilities consistent with their gender identity, including restrooms, locker rooms, athletics, single-sex classes, housing and overnight accommodations, and other sex-specific activities and rules.

  • Take steps to protect students’ privacy related to their transgender status, including their birth name or sex assigned at birth.

  • Allow the amendment or correction of education records to the same extent permitted by the school’s gender practices for amending other students’ records.

Also on May 13, 2016, State Superintendent Brian Whiston responded to the federal government’s guidance, addressing the voluntary draft guidance being drafted by the State Board of Education. State Supt. Whiston stated that the Department of Education would “fully review the federal guidance” and “measure how it aligns with the State Board’s draft guidance.” State Supt. Whiston noted the nearly 13,000 comments that had been offered on the State Board’s draft guidance, stated that the Department was “committed to listening and being considerate of that input,” and concluded that the State Board would not take any action on the issue until August, at the earliest.
The Dear Colleague Letter can be viewed here. State Superintendent Whiston’s statement can be read in full here.

 

4th Circuit Holds Title IX Applies to Transgender Students
 

The 4th Circuit Court of Appeals ruled in a pending Title IX lawsuit on April 19, 2016. The Circuit Court of Appeals deferred to the Department of Education’s interpretation of the term “sex” in Title IX. As a result of the Department of Education’s reinterpretation of the term “sex,” the Court of Appeals ruled Title IX applies to transgender students, though that interpretation may be modified by future Department of Education action. The Court of Appeals’ opinion is seen as a victory for transgender students. It is not yet clear if the decision will be appealed, or if the case will proceed in the trial court. Read more about the case at: http://www.nytimes.com/2016/04/20/us/appeals-court-favors-transgender-student-in-virginia-restroom-case.html.

 

Union Threat of Collections Violates PERA
 

The Michigan Employment Relations Commission (“MERC”) recently held, “[i]n the absence of a valid contract requiring the payment of dues or fees, threats to hire a collection agency or to report delinquencies to a credit bureau are unlawful ways to attempt to collect dues from an employee once the employee has resigned--at--will from his or her union membership.” In Grand Blanc Clerical Ass’n, 29 MPER 57 (2016),  Charging Party was employed by the district as a secretary and was a member of the Grand Blanc Clerical Association, a local affiliate of the Michigan Education Association (“Association”). Charging Party submitted her resignation to the Association in November of 2013, following the implementation of Public Act 349 of 2012, which gave public employees the right to refrain from union activity. The Association denied her request to resign, stating that in order to be effective, her resignation must be submitted between August 1 and August 31, as provided in her membership application and the Association’s bylaws. Charging Party then ceased paying union dues  and the Association threatened to hire a debt collector to recover her unpaid membership dues.
 

MERC found Charging Party’s November 2013 resignation valid and ordered the Association to cease enforcement of its August opt out window period. MERC concluded it was an unfair labor practice for the Association to  threaten to hire a debt collector to collect union dues which accrued after Charging Party’s resignation. However, MERC explained that because it had not issued any decisions on this matter and the law was uncertain, unions may not have recognized their responsibilities or MERC’s jurisdiction. For this reason, MERC did not find the Association violated PERA for threating collections but did warn, “such a threat, if made in the future and established by substantial evidence, will be considered a violation of [PERA].”

 

Court of Appeals Upholds MERC Decision: No Duty to Bargain Decision to Move Special Education

Services to ISD

 

The Michigan Court of Appeals has affirmed the Michigan Employment Relations Commission’s (“MERC”) dismissal of the Port Huron Education Association’s unfair labor practice charge (“ULP”). See Port Huron Ed Ass’n v Port Huron Area Sch Dist, unpublished opinion per curiam of the Court of Appeals, issued February 16, 2016 (Docket No 325022). The ULP was in response to the Port Huron Area School District’s (the “District’s”) decision to contract with its local intermediate school district (“ISD”) for school psychologists to service its special education students, which resulted in the layoff of six District psychologists. The Association argued that the District had a duty to bargain the alleged “subcontracting” of the work in question. However, the Court upheld MERC’s conclusion, explaining that Section 1751 of the Revised School Code, MCL 380.1751, permitted the District to contract with its ISD for the delivery of special education programs and services. The Court relied on Bay City Education Association v Bay City Public Schools, 430 Mich 370, 381-382 (1988), in which it held that a district’s decision to terminate its operation of a special education center and transfer the work to its local ISD was “within the scope of a local school board’s management prerogative” and a “fundamental management policy decision anticipated and authorized by the Legislature.”

The Court’s full decision is available
here.

 

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