Your List of Work Orders This Summer. (Hiking in these mountains is not on the list.)

Transcription

1 A Voice for HR Directors at Independent Scools S lifeline May 2013, Issue #6 Your List of Work Orders Tis Summer (Hiking in tese mountains is not on te list.) Work Orders n SOS HR Training (June 2013) n Facility Cecklist n Compliance wit New Background Screening Regulations n Implementing a New I-9 Form Plus n Surviving an IRS Audit n Keeping Your Students Safe n Teacers Driving Students n Is On-Time Attendance an Essential Function? Publised by

2 You re focused on scool days. You don t need to be distracted by a legal daze. You re a scool administrator wo spends long days focusing on your students, staff, parents and board members. You don t want to be bogged down by distracting legal matters tat leave you in a daze. Te attorneys in te Education Practice Group of Fiser & Pillips LLP allow you to keep your focus were it sould be as tey andle te legal issues unique to te scool setting. Our attorneys work wit you on te educational process from application and admission troug graduation or expulsion. We re tere to counsel you troug te maze of employment laws tat impact educational institutions. We elp to ensure tat you stay in compliance from ire to termination and points in between. Te Education Practice Group attorneys work wit scools across te United States, providing cost-effective and pragmatic solutions for te callenges you confront every day. Te matters we elp you wit include: Suzanne Bogdan Cair, Education Practice Group Pone: (954) sbogdan@laborlawyers.com Fiser & Pillips LLP attorneys at law Solutions at Work Representing employers nationally in labor, employment, civil rigts, employee benefits, and immigration matters Assisting scools in training teacers and administrators Conducting wage our compliance audits Creating or revising enrollment and employment contracts Creating or revising student and employee andbooks Handling privacy matters, including tose arising from te rapidly canging Social Media scene Our trial lawyers ave successfully defended educational institutions against a wide array of claims. We ave defeated efforts to overturn expulsions, reverse denials of admission and callenge accommodation decisions. We also defend scools in matters before local, state and federal agencies, including te Equal Employment Opportunity Commission and te Department of Education s Office of Civil Rigts. If you re interested in learning more about ow our national Education Practice Group can elp you and your scool please contact us. Proud member of te National Association of Independent Scools and te National Business Officers Association Atlanta Carlotte Cicago Cleveland Columbia Dallas Denver Fort Lauderdale Houston Irvine Kansas City Las Vegas Los Angeles Louisville New England New Jersey New Orleans Orlando Piladelpia Poenix Portland San Diego San Francisco Tampa Wasington, DC

3 A Voice for HR Directors at Independent Scools May 2013, Issue #6 Table of Contents Welcome From te President... 5 Ask an Expert Angelique Dale, Praesidium, Inc. It s Hiring Season Is Your Scool In Compliance wit New Background Screening Laws?... 6 Interview wit Tom Giedgowd, CPA MS, Carroll Consultants, Ltd. Surviving an IRS Audit for your 403(b) Plan... 7 HR Essentials for Independent Scools, Training from Scool Office Services, June 4 June 27t, Ask an Expert - By Tamsen Leacman (Portland, Oregon) Is Tere An Intern In Your Future?...10 SOS HR Tidbit: Teacers Driving Students Home and Tutoring Tem at te Student s House...12 Ask an Expert Bill Keslar, President, Building Solutions Annual Building Inspections, a Summer Cecklist...14 Ask an Expert - Barbara Hoey, Sareolder, Littler.com Is On-Time Attendance an Essential Function of Every Job at Your Scool?...16 HR Tidbit - USCIS Releases New Form I-9 Marc 8, 2013, Fiser & Pillips, LLP...18 Ask an Expert Celia Josep, of Counsel, Fiser & Pillips, LLP Keeping Your Students Safe From Cild Abductions Publised by SOS HR Lifeline n 3

4 How forward-tinking scools are building stronger leaders in teir faculty and staff... Introducing te Education Leadersip & Administration Rapid Learning Center Tis powerful online talent development system will elp you: Build a stronger leadersip team Give faculty and staff te leadersip training tey ve never received Avoid employment law compliance problems Educate your team about te fundamentals of labor law Save time Our Quick Take learning modules are just 6 to 10 minutes long Deploy training in just minutes Click a link and instantly send training programs directly to your team Track usage Creating accountability is easy... automated tracking sows you wo s logging on and wo isn t Start a free trial now! Call We ll be appy to give you a tour of te site so you can judge it for yourself Start your free trial now and get access to dozens of programs, including: - Te ABC Metod: Handling a Bad Attitude - Performance Feedback: Seek First to Understand - Six Managerial Styles Administrators Need to Lead Effectively - New Administrator Pitfalls: How to Avoid Tem and Succeed in a Leadersip Role - Age Discrimination: Wat Every Scool Administrator Needs to Know - Progressive Discipline: Te 'Career Advocate' Metod - Handling Faculty or Staff Member Complaints - Retaliation Claims: Four Key Mistakes Tat Administrators Must Avoid - And many more

5 Welcome From te President: I was deligted to meet so many SOS members at te NBOA (National Business Officer Association) conference in Piladelpia last February. It s wonderful to ear ow HR directors are learning and growing in teir jobs. To tat end, SOS is pleased to announce a new class tis June. You will be able to earn eigt ours of HR training in just one mont. Te classes eac one our long will be eld twice a week for four weeks. And ten you re done. We are also pleased to offer te first HR Certification troug Scool Office Services. Please read te story about our June training in tis edition of SOS HR Lifeline. We ope you find tis issue elpful in preparing for te scool year. We ave included a number of articles building inspections, canges in background screening, safety of students tat you migt consider tis summer along wit everyting else you re doing. We know tat summer may be te busiest time for you, but it may be a great time to catc up on tasks tat ave eluded you during te scool year. Have a great if very busy summer! SOS HR Lifeline Bill Rollings, SPHR, CSRM Design Director Carole Tieme Tieme Creative Media carole@tiemecreativemedia.com SOS Staff Bill Rollings, SPHR, CSRM, President brollings@soserv.com Katey Allen, Communications Director, asksos@soserv.com Debbie Miller, SPHR, HR Specialist dlmiller@orcr.com Jim Pug, Director of Statistics jimpug@soserv.com Serri Rue, SPHR, HR Specialist sdrue@orcr.com Tim Sanz, CSRM, Risk Management Consultant, tsanz@soserv.com SOS HR Lifeline is publised quarterly by Scool Office Services. Scool Office Services does not offer legal advice or give legal opinions. Any recommendations or suggestions are meant to reflect best uman resources business practices. Legal questions and specific HR issues sould be referred to an attorney. Scool Office Services does not receive payments or rebates from any of te preferred vendors listed on te Website except for ads in SOS HR Lifeline. Bill Rollings President Scool Office Services Scool Office Services is a division of Orcestrate HR, a benefits company eadquartered in Dallas, Texas. Copyrigt 2013 by Scool Office Services. No portion of tis magazine may be reproduced witout written consent of te publiser. Scool Office Services, 5050 Spring Valley Road, Dallas, TX SOS HR Lifeline n 5

6 Ask an Expert It s Hiring Season Is Your Scool In Compliance wit New Background Screening Laws? Angelique Dale, Praesidium Inc. Springtime is a busy time of year for scool leadersip. On top of your already overwelming scool calendar, you also ave to start looking aead to te upcoming scool year. Are you creating any new employment positions? Will some current faculty and staff not return? Now is te time to begin screening candidates for tose open positions. You likely rely on tird parties to provide you wit background ceck reports for iring or oter employment purposes. If so, you need to ensure your iring team complies wit a few notable canges to te Fair Credit Reporting Act (FCRA) effective January 1, Most significantly, as an employer, you need to be aware of FCRA canges regarding adverse action. Adverse action is a denial of employment or any oter decision for employment purposes tat adversely affects any current or prospective employee. If your scool uses information found in a background ceck report to deny someone employment, te FCRA now requires te following: 1. Verify any its on a multi-state background ceck at te source (i.e., county level or statewide Administrative Office of Courts). Multi-state searces will often pull up convictions or its, but now te FCRA mandates employers go directly to te source before taking adverse action. Your background ceck provider sould be able to As an employer, you need to be aware of FCRA canges regarding adverse action. An applicant now as 17 days to dispute information on te report before te scool can take official action not to ire. assist you in determining weter an additional ceck is necessary. 2. Provide a copy of te background ceck report to te applicant, giving im or er an opportunity to dispute te information before you, te employer, takes adverse action. At Praesidium, we provide our scools wit a sample Pre-Adverse Angelique Dale, JD, is Education Account Manager for Praesidium Inc. Praesidium elps organizations prevent abuse by offering a full range of services, including policy development, on-site and online training, background cecks, and a compreensive Scool Accreditation Program. You can reac Angelique at adale@praesidiuminc. com or (817) Action letter to accompany te background ceck report. Tis letter is signed by an HR Representative from te scool, and sent to te applicant. You must give te applicant 10 days from te date of te Pre-Adverse Action letter to dispute te information before proceeding wit te next step. 3. After te initial 10 days ave passed, you must ten send te official Adverse Action (denial of employment) letter to te applicant. At tat point, te applicant as an additional 7 days to dispute te report. To recap, te individual now as 17 days to dispute information on te report before te scool can take official action not to ire. If you ave any questions about ow to respond to convictions on a criminal record, your background ceck provider sould be willing to walk you troug te process. Additionally, at Praesidium, we recommend tat our clients consult wit an HR attorney in teir state to ensure tey are in compliance wit any and all state-specific regulations. For example, some states ave mini-fcra requirements tat proibit te use of certain information for adverse action (i.e., Was te felony conviction more tan seven years ago? Are tere limits based on te position s income level? Is te information appropriate to te type of position?). 6 n SOS HR Lifeline May 2013

7 Surviving an IRS Audit for your 403(b) Plan An interview wit Tom Giedgowd, CPA MS, Carroll Consultants, Ltd. SOS: If te IRS comes knocking to audit your 403b plan, wat information are tey looking for? TG: First of all, calm down. Altoug IRS audits of nonprofits didn t start until 2012, tere is a cance a small one tat your scool will be selected. You will be notified by letter, and te IRS agent will give is or er contact information. Te agent will identify wic plan year to be audited and ten ask for an appointment at te scool. SOS: Do you ave a cecklist of items tey want you to produce? TG: Yes. Here is a list of information te IRS agent will want you to produce: Signed Plan Document & Subsequent Amendments Summary Plan Description (SPD) Form 5500 Contracts wit Service Providers Description of Employee Plan Benefits Non-Discrimination Test Reports Payroll and Census Data (Forms W-2) Participant Enrollment and Election Forms Participant Loan Reports Witdrawals and Distributions SOS: Do I need an outside expert to elp me wit te IRS audit? TG: Not necessarily. You can do te audit yourself, especially if you feel your 403b plan is in good sape. SOS: Wat kind of expert sould I coose if I want additional elp? TG: You can coose a benefits firm tat deals wit 403b products, suc as Carroll First of all, calm down. Altoug IRS audits of nonprofits didn t start until 2012, tere is a cance a small one tat your scool will be selected. Consultants. You can also use a TPA, a CPA auditing firm or an ERISA attorney. Te attorney will probably be te most expensive option. SOS: Wat sould I be looking for wen I interview an outside expert? TG: Ask if your expert as experience in andling IRS audits. Does your expert write 403b plan documents, review Form 5500 s, conduct non-discrimination testing or develop financial statements for 403b plans. Expertise in tese areas will streamline te process, save you time and money and give you peace of mind. SOS: Wat appens during te actual examination? Tom Giedgowd joined Carroll Consultants, Ltd. over 14 years ago. Prior to joining Carroll Consultants, Ltd. e was a partner in a regional CPA firm. Tom is te Investment Advisor and Cief Compliance Officer for Carroll Consultants Advisors, Ltd., our registered Investment Advisory Firm. Tom is a Certified Public Accountant and olds a Masters degree in Taxation. You can reac Tom at tgiedgowd@adcbenefits. com. TG: Te auditor will visit your scool to confirm you exist. He or se will conduct a plan audit examination. Tis is wy it elps to ave a tird-party representative wo will actually work wit te IRS auditor. Typically, te auditor will review your 403b plan document and required amendments. Often te specific focus is on eligibility: Are tere employees not on te plan wo sould be or employees on te plan wo souldn t be. Also, te auditor will look carefully at igly compensated employees not many at scools. Ten te auditor will select a random sample of participants and test for compliance. Tis testing may expand based on initial results. SOS: How can you elp move te process along? TG: It elps if you ave conducted internal audits in prior years before IRS examination. IRS auditors love tis information, because it elps tem make a determination more quickly if you ave been toroug in conducting self audits. Also, it elps to ave a tird party on your side to facilitate te process. In some cases, we ave contacted te IRS agent s supervisor, wen te agent was being difficult during te audit. A tird-party will definitely keep your involvement to a minimum. SOS: Te audit is over. Now wat? TG: You will receive a written report of te auditor s tests and compliance results. If tere are no significant errors, you will be asked to correct te minor errors. If tere are significant errors, you will be asked to sign a closing agreement tat may include sanctions. If tere are no errors, you will receive a closing letter indicating no canges are necessary. SOS HR Lifeline n 7

8 HR Essentials for Independent Scools Training from Scool Office Services June 3 June 28t, 2013 Wat if you could learn about te essential HR issues to elp you run your HR department more effectively in just eigt ours? Wat if you could complete te training in four sort weeks? Wat if te training came wit resources you could access afterwards? Recognizing tat you can t always leave te office for training, tere is now a convenient, inexpensive way to stay up-to-date wit HR issues and still manage your daily tasks. All from your desk. All in te mont of June, Eigt 60-Minute Sessions In just four weeks tis summer, you can participate in HR Essentials for Independent Scools, eigt one-our online courses. HR directors, business officers and oter scool staff can become more proficient in key HR areas specific to independent scools: Expert Instructors n n Employment attorneys from te Education Group of Fiser & Pillips are knowledgeable about te unique HR issues in independent scools. Tey ave participated in numerous training sessions wit SOS. Bill Rollings as provided HR resources and risk management support to business officers of 500 independent scools for over 15 years. 8 n SOS HR Lifeline May 2013

9 Continued from page 9 SOS HR Website = Course Textbook Wy not learn about te SOS HR website wit te folks wo created it? Navigate and learn te voluminous online library of HR material as part of te class. It will serve as your resource for answers to your HR issues once te class as ended. Case Studies Real life problems appen to real live HR departments. Participate in case studies, interactive training and group discussions reviewing actual HR issues faced by your peer scools SHRM and CPE Credit You can receive eigt ours of credit from te HR Certification Institute (HRCI) and te National Registry of CPE Sponsors. SOS HR Certification Available HR specialists can earn an HR Certification troug SOS by completing an openbook exam at te end of te course. Te exam is not a requirement to participate in te class, but it will provide valuable documentation for your ongoing professional development. Te exam as been reviewed by Fiser & Pillips staff. State Specific Information Altoug te training provides general HR information only, we will reference specific state laws tat may affect you. Additionally, you ave access to state-specific information on te SOS HR website. Suzanne Bogdan, Fiser & Pillips LLP, is te Cair of te Firm s Education Practice Group, actively representing more tan 100 private educational institutions in employee, student, and board issues. Se leads a team of knowledgeable employment attorneys for te training. Suzanne also works wit many of te accrediting agencies and scool associations, including te National Association of Independent Scools (NAIS) and te Florida Council of Independent Scools (FCIS.) Suzanne, a partner in te Fort Lauderdale office, is a frequent presenter to bot educational and corporate associations on all aspects of employment law and risk management. Bill Rollings, SPHR and CSRM, is president of Scool Office Services (SOS). His company as provided HR support to business officers since Currently, SOS provides HR support to business officers of 500 independent scools trougout te country. Bill provides weekly HR updates, addressing employment issues specific to independent scools. Bill as provided training to business officer groups including NBOA, PAISBOA, ISBOA, and MISBO. He as partnered wit Fiser & Pillips for te last eigt years in training. Cost $595 for SOS members (includes ISBOA and PAISBOA members) $1,090 for NBOA, SAES and MISBO members (includes one-year subscription to SOS HR) $1,190 nonmembers (includes one-year subscription to SOS HR) SOS HR Lifeline n 9

10 Ask an Expert Is Tere An Intern In Your Future? By Tamsen Leacman, Fiser & Pillips, LLP Tere was a significant increase in te number of class-action lawsuits in 2012 brougt by former interns, many of wom were in unpaid positions working in te business sector. But recently te educational community received a wake-up call wen Hamilton College was it wit a class-action lawsuit involving its paid interns. Te Facts In te Hamilton College case, former employee Benjamin Kozik, representing a class of over 40 former interns of te atletic department, claimed tat is role as an intern as intercollegiate/assistant Football Coac did not qualify as exempt internsip (for wic minimum wage and overtime requirement did not apply); tat e was not an exempt educational employee; and tat te stipend e received eac mont was not enoug to properly compensate im for all te regular and overtime ours e worked. As a result, Kozik is seeking unpaid overtime wages of up to 40 ours per week, liquidated (double) damages, interest, and attorneys fees. Kozik is also asking te court to award similar amounts for eac of te oter members of te intern class. Wile no total damage figure is provided, tese claims could easily reac over $5,000,000. Tis figure does not include te possible award of attorneys fees and oter litigation costs wic could add anoter $1,000,000 to te total. Te Hamilton College case serves as a stark reminder tat internsip programs even paid ones come wit risk and sould be carefully constructed and periodically reviewed to ensure tat tey do not run afoul of state and federal wage and our laws. As we reflect on te new scrutiny of internsip programs, several critical lessons arise. Lesson #1: Many Interns Must Be Paid Minimum Wage and Overtime Pay In most cases, workers are entitled to be paid at least minimum wage for all ours tey work, and overtime pay for tose ours above 40 in a workweek. Unfortunately, tere is not a simple and easy-to-apply test to determine wen tis rule may be ignored and te internsip treated as an unpaid position. In broad terms, to qualify as a legitimate unpaid (or minimally paid) internsip program, its purpose must be educational. Te program must provide learning, instruction and training tat imparts broad, significant, substantive, and transferrable knowledge. In addition, te program must create an experience tat is consistent wit tese purposes. Wat tis means in practical terms is tat, if an intern is asked to perform routine or productive work tat directly benefits te organization or tat would oterwise ave been performed by an employee, it will not qualify as a legitimate unpaid internsip. As a result, if an intern is asked to assist te soccer coac wit training drills (productive work), elp clean up te scool after an event (routine work), or travel wit students to scool events or games (productive work), te viability of Tamsen Leacman is a partner in te Portland office of Fiser & Pillips, LLP. Se specializes in employment law, representing employers, and se is a frequent contributor and trainer for SOS HR. You can reac Tamsen at te internsip program could be placed at risk and, as a result, all time worked by te intern could be subject to minimum wage and overtime requirements. Lesson #2: Mistakes Are Costly Pay mistakes are expensive in even te most limited situations. Te cost of tese mistakes quickly compounds, owever, wen legal requirements are misunderstood or were an internsip program is structured properly but administered in a manner tat does not comply wit wage-our rules. In tese situations, a former intern may be able to assemble a group of oter interns wo ad a similar experience and, wit te assistance of counsel, create a class action claim based on similar allegations, arm, and damages. Te risk to scools is increased because of te ig cost of litigating tese matters in addition to te increased risk tat claims can become more believable if multiple people are telling similar stories. Lesson #3: Records Are Critical Especially If Someting Goes Wrong If your internsip program is callenged, aving key records will be important in responding to a claim and putting togeter your defense. For example, a memorandum of understanding (MOU) tat is presented to and signed by te intern can be a compelling piece of evidence if it confirms facts tat make an internsip program legitimate, suc as: te unpaid nature of te internsip or te limited pay provided; tat a position is not guaranteed after completing te internsip; te educational purpose of te 10 n SOS HR Lifeline May 2013

11 internsip and te intent to benefit te intern (and not te scool); te limited scope of activities tat will be performed by te intern; and te intern s obligation to promptly report any assignment of duties or activities tat are outside te identified scope. In addition, time records may also become critical sould interns be successful in arguing tat tey were not part of a qualified internsip program and were instead entitled to at least minimum wage and overtime. Witout suc records, interns will be permitted to estimate te ours worked. If your scool disagrees wit te estimate, it must do more tan dispute te claimed ours it must prove te inaccuracy. Tis is because te employer, not te intern, is required to maintain time records. Wen accurate time records are not created and maintained, te employer is ultimately responsible. Lesson #4: Follow Best Practices in Deploying Your Internsip Program If you ave made it tis far and still plan to adopt or continue an internsip program, it may be elpful to review te following best practices and identify tose tat target your area of vulnerability and may assist in reducing your risk of liability: Consider an Audit If you ave an existing internsip program, an audit can be a elpful tool in determining if you ave an appropriate educational purpose for te internsip and if te activities te intern performs will benefit te intern rater tan te scool. In addition, te audit can elp confirm tat te activities of te intern are not te same as te duties tat are or would be performed by anoter employee. Recently, te educational community received a wake-up call wen Hamilton College was it wit a classaction lawsuit involving its paid interns. Train Supervisors Wo Work Wit Interns Even te best program can be derailed by a supervisor wo does not understand te importance of selectively assigning experiences and activities to interns. Training can elp supervisors utilize interns appropriately and prevent expansion of responsibilities into areas tat may disqualify your program. Seek Anoter Solution if Necessary If you discover tat your program cannot be brougt into compliance, consider discontinuing it or converting it to a paid program tat complies wit wage and our requirements. Document Key Aspects of Your Internsip Program Tis is your cance to create self-serving documentation about your program, its purpose, and te narrow scope of intern activities tat are autorized. You may also want to include references to te training provided to tose supervising te intern and te care taken to ensure te program is in compliance. Secure Signed MOUs or Internsip Agreements As noted above, an MOU can be a powerful tool to clarify intent and secure agreement to report activities tat are inconsistent wit te educational purpose of te internsip program. An intern s failure to timely report deviation from te agreed activities can elp a scool refute an allegation tat it intentionally created a noncompliant program or allowed supervisors to misuse interns. Create Cecklists Interns can also assist wit te documentation process by keeping a cecklist of agreed activities tey are involved wit during te course of te internsip as well as confirming wat tey learned as a result. To Sum It Up Internsip programs, weter paid or unpaid, create risks for scools if tey are used as a substitute for low-cost or no-cost workers. Scools tat take te time to plan and construct internsip programs tat are focused on te intern and provide tem wit an enricing educational experience ave far less risk of callenge down te road. Hopefully te lessons arising out of te Hamilton College dispute will elp you navigate te initial decisions and create a Program tat is designed to minimize liability and create te best educational experience for your interns. SOS HR Lifeline n 11

12 HR TIDBIT: Teacers Driving Students Home and Tutoring Tem at te Students Houses Dear SOS: We ave teacers wo are tutoring cildren after scool offsite, but te problem is tat tey often drive te students in teir personal veicles. We do not allow tis, but it is appening. In order to manage tis risk (accidents and abuse allegations), we need a form for teacers to sign tat tey understand tat te scool does not allow tem to transport cildren in teir cars and tat if tey sould do so it would be at teir own risk. Can you elp wit tis? To address tis issue of a scool in te Nortern California, SOS asked for responses from an attorney familiar wit independent scools and from an insurance broker. Bill Separd, attorney at Rocester Wong & Separd, in San Francisco ( , wseplaw@aol.com) responds: Suc a form for a teacer to sign, even if it also states tat te teacer assumes liability and agrees to indemnify te scool, is not adequate protection for te scool. Te parent can still sue te scool for damages resulting from an accident or cild abuse. Te teacer is unlikely to ave sufficient funds to indemnify te scool, reimburse te Scool for its attorneys fee and, expert witness fees, and pay a money judgment against te scool. Also, a plaintiff attorney may attempt to use te form as evidence tat te scool was aware of te driving and tutoring, and did not take adequate measures to protect te cild. Wile te safest practice may appear to be to ban non-emergency driving and ban tutoring, tat may be inadequate if te scool as reason to believe te proibition will be onored in te breac. If a parent were to provide te scool wit a old armless and indemnity agreement permitting te teacer to drive teir cild in a personal veicle somewere, tat would significantly reduce te scool s exposure. Also, if tere is a car accident, te scool likely as a ig limit policy to protect te scool. However, if tere is abuse, te agreement may not waive te cild s claim, wic te cild may assert many years later. My recommendation is to amend te parent andbook, te employee andbook, and te scool s parent permission and assumption of risk form to address te issues of tutoring and employees driving student(s) in personal veicles. Tis solution sould provide more protection for te scool. Wile it involves adding some text to te tree documents, it avoids te on-going inconvenience of administering special forms for employees and parents to execute. Te modification to te parent andbook regarding tutoring would state tat te scool does not provide tutoring services, does not recommend or endorse anyone to tutor students, including current and former employees, and proibits individual teacers from tutoring a current student of te teacer as well as lower grade level students 12 n SOS HR Lifeline May 2013

13 wo te teacer may teac in te future. Te andbook would also be modified to state tat te scool does not permit or condone an employee transporting a student in a personal veicle except in an emergency; if a parent allows an employee to transport a cild, te parent does so at parent and cild s own risk and te scool is not responsible for any arm or damages, weter negligent or intentional. Te modification to te employee andbook would be similar regarding tutoring. For driving, te modification would proibit an employee from non-emergency transporting a student in a personal veicle during te course of te employee s employment, and proibit doing so outside te course of employment witout te parent s written permission and acknowledgment tat te scool is not responsible for any resulting arm or damage to te cild. HR TIDBIT: I ave eard back from te insurance carrier concerning your question of teacers driving students. Te only way to manage tis risk is to eliminate te practice. Te parent permission and assumption of risk form would be modified to add a provision stating tat te parent understands tat scool does not permit its employees to drive students in personal veicles except in an emergency, and te scool does not provide or endorse tutoring services; if parent ires te employee to tutor parent s cild and/or requests tat te employee drive te cild in a personal veicle for tutoring or oter purposes, parent assumes te risk and agrees to old te scool armless for any arm or damages, weter negligent or intentional. Stepanie Ruppenstein, account manager at Wells Fargo Insurance Services, USA wo offices in San Francisco. ( , stepanie. ruppenstein@wellsfargo.com) responds: I ave eard back from te insurance carrier concerning your question of teacers driving students. Te only way to manage tis risk is to eliminate te practice. Since te scool does not autorize tis wat so ever, te suggestion from te insurance carrier to elp mitigate any liability tat may be caused, was to ave te scool s corporate counsel draw up an agreement to indicate tat te scool does not autorize te practice of teacers tutoring students at teir ome and/or driving students ome from scool and ave all teacers sign and acknowledge te agreement. If you want nearly 200 business officers working nigt and day to save time and money for your scool join PaIsboa PaIsboa is a regional association of independent scool business officers committed to acieving leveraged strengt troug group PurcasIng, ProfessIonal development and best PractIces witin te business office. contact: emily miller Executive Director For more information: PAISBOA PHILADELPHIA AREA INDEPENDENT SCHOOL BUSINESS OFFICERS ASSOCIATION 301 Iven avenue, suite 315, wayne, Pa SOS HR Lifeline n 13

14 ANNUAL BUILDING INSPECTIONS A Summer Cecklist Bill Keslar, Building Solutions Ask an Expert Summertime doesn t ave to bring te summertime blues. It s a great time to complete some of tose facility-related obligations tat seem to ang over our eads during te year. Here is a summer cecklist for you: Action Required Annual Fire Dept. Inspection - Take te initiative to scedule an annual inspection. Even if you don t want to ear wat te fire marsal as to say about te boxes blocking te electrical panels, you can establis a good relationsip wit te local inspector by being proactive in tis process. (Make sure you move tose boxes first.) Annual Fire Alarm Test and Inspection - If you ave a monitored fire alarm panel, you are required under NFPA rules to ave te panel and related systems examined by a qualified tecnician - usually your fire alarm contractor. Smoke detectors are tested for sensitivity, orn volume and area covered by strobe. Te flow switces and alarm portion of sprinkler systems are also included. You sould ave last year s inspection report available Annual Fire Sprinkler Test and Inspection - Not to be confused wit te Fire Alarm Test and Inspection. Often you ave separate contractors for eac. Same idea, same regulations as above, but different building system. Don t forget fire suppression system in your kitcen exaust oods. (Not required in all cities & municipalities at tis time, ceck wit te local utility department to ensure compliance) Annual Campus Fire Extinguisers Often te same company wo andles your Fire Sprinkler test. Be sure to include te fleet veicle portable fire extinguisers been serviced or inspected by a licensed company or contractor Gas Line Inspection - Some cities require tat te gas meter and any exposed gas lines be inspected annually. Ask te fire marsal about te gas line inspection, because e usually does tis as well. (Tis includes all areas wit natural gas piping (kitcens, science labs). Emergency Ligting - Fixtures sould be tested regularly and batteries replaced as needed. Ceck exit ligts and bulbs at te same time. Roof Repairs Te most expensive time to ire roofing contractors is in te summer, due to te competition wit te public scool districts for roofing labor. Tis is especially a problem tis year, following te urricane rebuilding activity in te souteast, wic as drawn roofing contractors from as far away as Texas and caused an underlying scarcity of roofing talent. However, summertime is wen you migt evaluate your roofs and plan for work over a 3-4 day weekend in te fall. Bill Keslar is president of Building Solutions. Founded in 1990, Building Solutions provides expertise in facility and energy audits, construction management and consulting on a wide variety of facility issues. Building Solutions as worked wit over 70 independent scools and colleges across te country. You can reac Bill at bkeslar@buildingsolns or n SOS HR Lifeline May 2013

15 Integrated Pest Management Conduct any pest control inspections or treatments trougout your campus. Summer time is an ideal time to tese activities trougout your facilities & treat areas wile staff & students are not in session. Asbestos Activities - Annual awareness training, semi-annual surveillance, and AHERA re-inspection (every 3 years) may be less disruptive in te summer monts. Also, if your coordinator needs refreser training, peraps it can be done at te same time for a bargain rate. Has your scools Asbestos Management Plan been updated to reflect any recent construction canges (e.g. summer renovations, additions, personnel canges Annual Elevator and/or Weelcair Lift Inspections - Safety inspection by a state licensed QEI (Qualified Elevator Inspector) is required in many states. Is a current state Licensing & Regulation Elevator certificate of compliance posted in or on te actual unit? Playground Inspection and Maintenance - All playground areas and equipment sould be inspected for excessive wear, deterioration and any potential azards and a compreensive maintenance program sould be developed for eac playground. Training Scedule training for te coming monts. Suggested topics may include: Bloodborne Patogens, Asbestos Awareness, Fire Safety Awareness, Hazard Communication, IPM Awareness, Playground Safety, and Indoor Air Quality. Do we ave Material Safety Data Seets (MSDS) for all te cemicals in our scools? Wat about te science labs? Are your teacers and staff reacing teir potential? Make sure you re getting te most out of your educators and support staff wit affordable, customizable, and compreensive talent management tools ready-to-use for independent and private scools of any size. K-12 Strategic Talent Management Discover wy undreds of scools across te country trust TalentEd Recruit & Hire and TalentEd Perform. Paperless and Cloud-based Reduce paperwork and minimize costs. Accessible anywere, including your tablet and mobile pone. No ardware to buy, no software to install. Streamline and Simplify Automate workflow and communications. Customize to your existing forms and processes. Visit Netcemia, LLC. All rigts reserved. SOS HR Lifeline n 15 to learn about our complimentary webinars, or to sign up for a free demo.

16 Ask an Expert Is On-Time Attendance an Essential Function of Every Job at Your Scool? Barbara Hoey, Sareolder, Littler.com Employers beware you cannot assume tat on-time attendance is an essential function of every job, as te U.S. Court of Appeals for te Second Circuit recently ruled. In McMillian v. City of New York, te court eld tat te determination of wic jobs compel on-time attendance requires a fact-based analysis, wic must include te consideration weter an employee s pysical presence in te workplace is in fact necessary. In an era were more employers are allowing telecommuting, remote work, and flexible ours, employers tat want teir employees to report to a pysical place and be on time sould take steps now to make sure tat tese requirements are documented so tat it can be proven tat attendance is in fact an essential function of te job. Factual Background Te plaintiff in McMillian v. City of New York, 2013 U.S. App. LEXIS 4454 (2d Cir. Mar. 4, 2013), worked for te City Human Resources Administration as a case manager for approximately ten years. As a case manager, te plaintiff was required to conduct annual ome visits, process social assessments, recertify clients Medicaid eligibility, and perform oter related tasks. Te employer ad a flex-time policy tat permitted employees to arrive anytime between 9:00 a.m. 10:00 a.m., and leave between 5:00 p.m. 6:00 p.m. Under te flex-time policy, an employee is not considered late unless e or se arrives after 10:15 a.m. Te plaintiff ad scizoprenia, wic was treated wit calibrated medication. He claimed tat is morning medications made im drowsy or sluggis and, as a result, e would frequently arrive late to work, sometimes after 11:00 a.m. For a period of about ten years from approximately 1998 to 2008 te plaintiff s tardy arrivals were overlooked by management. Employers beware you cannot assume tat on-time attendance is an essential function of every job, as te U.S. Court of Appeals for te Second Circuit recently ruled. In 2008, owever, senior management s perspective on te tardy arrivals canged. Te plaintiff s supervisor stopped approving is late arrivals, resulting in te plaintiff making numerous verbal requests for a later start time to avoid being disciplined for tardiness. In 2010, te continued late arrivals led Barbara Hoey, a sareolder in Littler Mendelson s New York office, is a member of te Jury Trial, Healtcare and Wistleblower and Retaliation practice groups. Barbara as more tan two decades of experience counseling er clients in all areas of employment law, and ten representing tem in single-plaintiff and class action litigation. You can reac Barbara at (212) or boey@littler.com. to disciplinary action and an ultimate recommendation during a grievance earing tat te plaintiff be terminated. Te plaintiff s union representative, owever, asserted tat is employment sould not be terminated due to te mitigating circumstances, namely is disability, tat resulted in is tardiness. Ultimately, te City reduced te recommended sanction of termination to a 30 day suspension witout pay. Te Lawsuit and District Court s Decision After te City denied is accommodation request and placed im on a 30-day suspension for violation of te flex-time policy, te plaintiff brougt suit alleging tat te City violated te Americans wit Disabilities Act (ADA), te New York Human Rigts Law, and te New York City Human Rigts Law. In is lawsuit, te plaintiff alleged tat e often worked past 7:00 p.m. and tat te office is open until 10:00 p.m., so tat, even if e were permitted to arrive late to work, e would still be able to work 35 ours per week. In te alternative, te plaintiff noted tat e was willing to work troug lunc to bank time. According to te plaintiff, eiter of tese proposed accommodations would permit im to perform te essential functions of is case manager position. Te City s position was straigtforward. In te district court, it argued tat timely attendance was an essential function of te plaintiff s case manager job. Te district court, noting tat it was required to give deference to te employer s judgment and policies, accepted te City s argument and granted summary judgment for te City, finding tat te plaintiff could not make out a prima 16 n SOS HR Lifeline May 2013

17 Continued from page 16 facie case because e could not establis tat e could perform te essential functions of te job wit or witout a reasonable accommodation. Te Second Circuit s Decision Te Second Circuit vacated te district court s decision and remanded te matter. In so doing, it found tat te district court ad erred in two ways: first, by assuming tat pysical presence in te workplace was an essential function of plaintiff s position, and second, by not looking closely enoug at weter te City ad failed to reasonably accommodate te plaintiff. Wen Is Pysical Presence at Work Necessary? On te first point, te court found tat pysical presence at or by a specific time is not, as a matter of law, an essential function of all employment. 1 Altoug te court noted tat timely arrival may normally be an essential function of a position, it empasized tat a court is required to conduct a fact-specific inquiry before accepting an employer s contention tat timely arrival is in fact an essential function for te position at issue. Moreover, te court distinguised te cases cited by te City and te district court because tose cases involved positions tat absolutely required te employees presence during specific business ours (e.g., ead nurse position, position requiring specific deliverable by 4:00 p.m. eac day). In tis case, te court remanded te matter to te district court noting tat it needed to consider more closely weter te City s claim tat te plaintiff needed to be pysically present at work by a specific time could be te subject of a reasonable dispute. On balance, te court noted tat te following facts migt support a conclusion tat a jury sould decide weter te plaintiff s late and varied arrival times substantially interfered wit is ability to fulfill is job duties: For nearly ten years prior to 2008, late arrivals by te plaintiff were eiter explicitly or implicitly approved by te City; and Te City s flex-time policy permits all employees to arrive and leave witin a one-our window, wic implies tat punctuality and presence at precise times may not be essential. Was a Reasonable Accommodation Available to te Plaintiff? On te point of weter te plaintiff could be reasonably accommodated, te court concluded tat te district court ad not performed a sufficient factual analysis of te issue. In particular, te court noted tat, once te plaintiff ad suggested plausible accommodations and te City rejected tem, te burden sifted to te City to demonstrate tat suc accommodations would present undue ardsips and be unreasonable. Te court noted: No evidence was presented tat pre-approving te plaintiff s tardiness would constitute an undue ardsip on te City, so te question remaining for te district court was weter te plaintiff could bank sufficient time to cover is late arrivals. Assigning a supervisor to work past 6:00 p.m. would constitute an undue ardsip, as was correctly determined by te district court. However, if te plaintiff could perform work (i.e., client ouse visits or work from ome) past 6:00 p.m., unsupervised, ten permitting im to bank suc work may be reasonable and not present an undue ardsip. Pre-approval for permitting te plaintiff to work troug lunc so tat e could bank ours did not present an undue ardsip for te City. Considerations for Employers Wile it remains to be seen wat will appen in te district court on remand, te Second Circuit s decision raises a number of issues for employers to consider: If timely arrival or presence at work is an essential function of a job, tis requirement sould be explicitly described in te position description. Include reasons wy timely arrival or presence at work is necessary for te organization s operations, taking into account emerging case law affecting te organization s industry and/or similar positions. If timely arrival or presence at work is an essential function of a job, ten consistently apply attendance standards, but be willing to explore canges to tem on a case-by-case basis. Wen an employee requests a reasonable accommodation regarding is start time or presence at work, engage in a toroug interactive process tat includes discussions wit te employee. As evidenced by te McMillan case, courts will analyze te specific factual circumstances involved wit an accommodation request. It is imperative tat te employer engage in a toroug process of analyzing te request in terms of bot reasonableness and undue ardsip. If an accommodation request is initially expected to result in an undue ardsip or is believed to be unreasonable, consider weter it would be feasible to offer te accommodation on a temporary basis so tat te impact to business operations can be ascertained before rendering a final determination on te accommodation request. SOS HR Lifeline n 17

18 USCIS Releases New Form I-9 Marc 8, 2013 Fiser & Pillips, LLC HR TIDBIT: Citizensip and Immigration Services (USCIS) announced today te release of te new I-9 Employment Eligibility Verification Form. All employers are required to use te new I-9 immediately to verify te identity and employment autorization eligibility of teir employees. Altoug USCIS requires employers to use te new Form I-9 beginning today, USCIS as provided a 60-day grace period for employers to continue to use te current version of te form issued 08/07/09 (te 02/02/09 version is also still valid) until May 7, Failure of an employer to ensure proper completion and retention of Forms I-9 may subject an employer to civil money penalties of up to $1,100 per I-9, and, in some cases, criminal penalties. Altoug te new two-page Form I-9 mainly contains format canges, additional data fields, and furter instructions to te employer, it increases te administrative burden placed on employers. Here is a section-by-section summary of te canges to te Form I-9: Section 1: Employer Information and Attestation Fields are added to list te employee s address and telepone number, but are optional; and For an employee wo cecks An Alien Autorized to Work Until. and wo were issued an I-94 card, e or se will also need to list te foreign passport number and country of issuance. Section 2: Employer Review and Verification Employers will need to list employee s full name at te top of Page 2; List A now as room to list tree documents, wic is elpful to te employer because te prior form only ad room for two documents and tere are occasions wen tree documents are required, e.g., J-1 visa olders or F-1 students completing Optional Practical Training; Certification Box - adds numbers to te items te HR representative must attest to wen reviewing te documents and separates out te place were te employer is required to insert te employee s first date of work for pay; Te List of Acceptable Documents, List A, Number 5 as revised language but essentially includes te same information regarding accepting foreign passports and I-94 cards; Te List of Acceptable Documents, List C, Number 1 provides clarification tat Social Security Cards containing restrictions, suc as Not Valid For Employment, Valid for Work Only wit INS Autorization, or Valid for Work Only wit DHS Autorization are not acceptable as List C documents; and Te List of Acceptable Documents includes a reference to Section 2 of te Handbook for Employers regarding information about acceptable receipts. Section 3: Reverification & Reires Provides clarification tat List B identity documents do not require reverification; and Adds a field for te Employer representative to print is or er name. To avoid discrimination claims, do not complete te new Form I-9 for current employees for wom tere is already a properly completed Form I-9 on file, unless reverification applies Continued on page n SOS HR Lifeline May 2013

19 Ask an Expert Keeping Your Students Safe From Cild Abductions Celia Josep, of Counsel, Fiser & Pillips, LLP A loud, beeping Amber Alert and accompanying visual banner filled te omes and screens of area television viewers on te evening of January 14, 2013, announcing te abduction of a fiveyear-old student from a Piladelpia elementary public scool at 8:50 a.m. tat morning. Grim Case Studies According to media reports, te cild was dropped off at scool by er moter. A sort time later, a woman wearing wat was described as Muslim garb, wit er face covered, entered te scool office, scribbled er name on a sign-in seet but did not sow any identification. Te woman told scool representatives tat se was te cild s moter and wanted to take er daugter out for breakfast. Te woman ten was allowed to enter te cild s classroom, were se asked for te girl by name. Te substitute teacer in carge of te room released te cild to te woman, wo ten took te cild from te scool. It was later learned tat te woman wo picked up te cild was not te cild s moter. Early te following morning te cild was found alone in a neigborood playground outside of Piladelpia, iding under te bleacers. Te cild was brougt to te ospital and ten released. A mont after te abduction, a female employee of a nearby daycare center wic te cild regularly attended after scool was reportedly carged wit a number of criminal offenses relating to tis abduction, including kidnapping, conspiracy, aggravated assault, and rape. A Piladelpia Councilman was quoted as saying tere sould be a uniform process, and called for a City Council earing to examine te Piladelpia Scool District s Celia Josep is Of Counsel in te Piladelpia office of Fiser & Pillips, LLP. Se as U.S. and international employment law experience including arassment and discrimination prevention; employment law and corporate compliance training; employment policies and procedures; investigations; diversity, affirmative action, and U.S. Department of Labor (DOL) Office of Federal Contract Compliance Programs (OFCCP) requirements. You can reac Celia at (610) or cjosep@ laborlawyers.com. policy for releasing students to parents and oter caretakers. Te Councilman also stated e believed te Scool District s policy needed clarification, including ow to identify a person requesting to remove a cild from a scool wen te person s face is covered. Te alleged breakdown of cild-abductionprevention protocol in te Piladelpia case is not an isolated instance. For example, in 2010, a California scool employee allegedly released a public elementary scool student to an unautorized individual, against scool anti-cild abduction procedures witout first obtaining te consent of te custodial fater wo brougt te cild to scool every day based on a telepone call from outside of te United States. Te fater brougt a lawsuit on is bealf and on is son s bealf for a number of legal actions. As of te date of te pleadings, te cild in tis case as not been seen since, and is believed to be living secretly in Mexico. In a 2009 Georgia case, a public elementary scool employee is claimed to ave released a student to an unautorized person stating e was te Continued on page 20 SOS HR Lifeline n 19

20 Continued from page 19 cild s biological fater. It was alleged in te legal proceedings tat wen te person came to pick up te cild, te scool representative could not find te card listing te individuals autorized to pick up te cild, and released te student witout contacting te known custodial grandparent or te scool administrator for permission, as required by te procedures. Only after te cild was released did te scool employee find te card, wic did not list te individual wo kidnapped te cild. Te fater brougt legal action against te scool and some of its officials and employees. Te Scope of te Problem According to te National Center for Missing & Exploited Cildren (NCMEC), between 1984 and October 2012, NCMEC as assisted law enforcement wit more tan 193,000 missing-cild cases resulting in te recovery of more tan 180,700 cildren. A NCMEC study analyzing more tan 4,200 attempted abductions from February 2005 to Marc 2010, found tat 38% of attempted abductions occurred wile a cild was walking alone to or from scool, riding te scool bus or riding a bicycle; 72% involve female victims; and 63% of non-family abductions involve a friend, long-term acquaintance, neigbor, caretaker, babysitter, or person of autority. Scools must be seen as targets for cild abductions, including by non-custodial parents as well as by strangers, caregivers and oters. Wat Are a Scool s Legal Obligations? Altoug cild abductions are not rare occurrences trougout te United States, most scools see undreds of cildren arrive and leave safely every day witout an actual or attempted abduction. Terefore, scool employees, always busy wit teir duties and te daily scool ubbub, may be lulled into a false sense of security. injured; and 5) te actions and duties of te scool administrators and employees. Causes of action can include negligence, premises liability, infliction of emotional distress, violation of state and local laws requiring safe scools, and certain safety procedures. Public scools and teir employees, were not pre-empted for official immunity reasons, can also face allegations tey violated U.S. Constitutional rigts. Practical Advice A cild s abduction is devastating to te cild, is or er family and loved ones, and tose at te scool were te event occurred, including te scool employees wo relinquis a cild to te wrong person. Wy, ten, do tese events occur? Tere are many possible reasons. Second, cild abductors will often take steps to appear to be a valid parent or oter autorized individual. Sometimes te scool knows te person wo is asking to take te cild. Sometimes te cild knows te person as well and is even appy to see im or er. In some situations confusion can occur due to te similarity of te attire of te person wo brougt te cild to scool and te cloting or appearance of te alleged kidnapper, or due to te fact tat an abductor s cloting obscures is or er facial features. Wat steps can scools take to avoid cild abductions? Here are a few suggestions: Cild-abduction Prevention Policies Scools sould ensure tey create appropriate cild abduction prevention policies, suc as: 1. taking steps to greatly limit te ability of unautorized individuals from entering a scool, especially after scool as started; 2. creating autorization cards at te time a cild enrolls in scool wic set fort te only individuals wo are allowed to remove a cild from scool: 3. ensuring visitors go to te main administrative office to request to sign out a cild from scool, and not be allowed to wander around a scool or visit a classroom; 4. requiring all individuals, weter teacers, administrators or visitors to wear badges indicating teir autorization to be on a scool s premises; 5. maintaining a current and available list of people autorized to remove a cild from scool wit picture identification if possible; 6. cecking te identification of eac visitor as well as signature; and 7. requiring consent from te autorized parent or legal guardian if an unautorized person asks to remove a cild from scool before releasing a cild to tat person. In general, a scool is required to protect te safety and well-being of its students. Te types of civil lawsuits tat can be brougt against a scool and its employees First, altoug cild abductions are not differ depending on a number of factors, rare occurrences trougout te United including: States, most scools see undreds of 1. weter a scool is a public scool or cildren arrive and leave safely every day Meaningful and Regular Training an independent scool; witout an actual or attempted abduction. 2. te laws of te state and locality; Terefore, scool employees, always busy Meaningful and regular cild abduction 3. te scool s rules and regulations; wit teir duties and te daily scool prevention training must be conducted 4. te facts of te case, suc as weter ubbub, may be lulled into a false sense of for all scool personnel, including or not te abducted cild is later security. substitute teacers, and new and found, and, if so, weter e or se is Continued on page n SOS HR Lifeline May 2013