Are You Setting Your School District up for a Lawsuit?: Why Job Titles Matter More than You May Think

June 4, 2014 by Chett Daniel Leave a Comment

(This article was co-authored by Adam Taylor, Senior Consultant and Director of Labor Relations at k12hrsolutions)

How important are job titles in your school district?  Unclear or inaccurate job titles may be a lawsuit waiting to happen in your school district.

I usually do not spend a lot of time here on k12hrsolutions talking about how to prevent lawsuits through HR practices.  That has been the traditional role of HR, defensive in nature.  Most of the topics on k12hrsolutions focus on how HR can be used in an offensive and proactive manner. We devote most of our time on articles discussing how districts can become more effective in reaching their organizational goals through the use of strategic HR tools and practices. A couple of recent events have persuaded me to focus a couple posts on helping districts ensure they are legally compliant and not setting themselves up for costly and embarrassing lawsuits.

Thou Shalt Not Misuse Job Titles

This past week I read a news story about school district job titles in the Cincinnati Catholic Schools.  According to the article, new contracts issued to teachers within the Archdiocese of Cincinnati prohibit educators, regardless of personal or religious beliefs, from sharing living arrangements with partners out of wedlock or having sex outside of marriage.  The new contracts also forbid teachers from using in-vitro fertilization or engaging in, or supporting a homosexual lifestyle.    The article went on to say the new contracts for the 2014-2015 school year added the job title “ministers” to all district teachers.  The addition of this new job title is seen by many as a legal maneuver to protect the archdiocese from being sued by teachers for infringing upon their civil rights.  Ministerial exceptions have been used in past court cases where the church could demonstrate the larger part of that person’s role was ministerial in nature.  (This is where this case is going to get sticky).

Under the Fair Labor and Standards Act (FLSA),   Section 541.2 specifically states “A job title alone is insufficient to establish the exempt status of an employee. The exempt or nonexempt status of any particular employee must be determined on the basis of whether the employee’s salary and duties meet the requirements of the regulations.”   The duties test boil down to what primary duties/ work is the employee actually performing.  In short, the district employees’ actual job tasks must be evaluated, along with how the particular job tasks “fit” into the employer’s overall operations.  Simply changing the job title of an employee to fit an organizational need will likely lose any court challenges.  While the Cincinnati Archdiocese situation does not fall under FLSA rules, it will likely be challenged based on EEOC, First Amendment rights, or other Civil Rights issues.  Judges and attorneys will look closely at the same factors under FLSA such as duties teachers perform, not their job titles to determine if, in fact, educators can be classified as ministers.

In mentioning the recent events in Cincinnati I am not attempting to incite a debate over whether the archdiocese choice is right or wrong.  Rather, I wanted to highlight a very public example of how simply trying to change a job title to fit operational objectives can potentially backfire. Let me discuss another example that does not have as many hot button issues.

Job Titles Are Not a Tool to Manage Payroll

Approximately three months ago a very large school district contacted us through email.  We spoke with them over the phone the next day to see how we could help them.  The district wanted help in updating the job descriptions for nearly 200 different positions in their school district.  As I spoke with them and learned more about their needs and situation they told me the district was in the process of settling a costly lawsuit regarding overtime pay.  The district representative said the previous central office administrative team decided they could save the district money by cutting overtime pay.  The solution was to provide new job titles for many of the districts clerical type jobs.  As many of you are aware, under the FLSA   unless exempt, employees are to be paid at an hourly rate and must be paid at one and one-half of their regular hourly rate for any overtime worked.  The former leadership team at the central office thought if they gave some employees (who were performing clerical type work) exempt-like job titles of “manager” or “director” they could make them “exempt” employees and have them work overtime without the expense of overtime since exempt employees are paid salary and are not entitled to overtime pay.  (Disclaimer: While it is not true in the situation I am discussing here, in situations salaried employees can be classified as non-exempt).

Several of the district’s employees were not impressed by their new classification of an exempt employee with a glorified job title and small raise when they realized their monthly salary was actually less than it had been under their old job titles and FLSA classification when factoring in the overtime they would have normally been paid for performing.  As a result, employees filed a lawsuit under the Fair Labor Standards Act claiming they were still performing predominantly non-exempt tasks at work, therefore they should have been paid overtime for all occasions when they worked more than 40 hours in a week.  The judge found in favor of the employees and the district paid substantial fees in court costs, fines, and past due wages, not to mention the damage to employee trust and community public relations.

School Districts that Misuse Job Titles Are Becoming Targets

Lawsuits filed under FLSA against school districts are on the rise.  An article from the American Bar Association suggests the increase may be due to attempts to shift wage costs (as discussed in the example above) or in many cases, due to aggressive marketing by law offices that are trying to increase their business by educating employees through newspapers and commercials giving them indicators to see if their employers are in violation of FLSA and are possibly owed past wages.  It’s a new era of ambulance chasers, but now they are school bus chasers.

Job Titles Matter When Dealing with Unions

Finally school districts must ensure job titles and the classifications to which they place employees do not interfere with employee rights under the National Labor Relations Act (NLRA).  Under the NLRA an employer may not:

• interfere with or restrain employees who are exercising their rights to organize, bargain collectively, and engage in other concerted activities for their own protection
• interfere with the formation of any labor organization—or contribute financial or other support to it
• encourage or discourage membership in a labor organization by discriminating in hiring, tenure, or employment conditions
• discharge or discriminate against employees who have filed charges or testified under the NLRA, or
• refuse to bargain collectively with the employees’ majority representative.

So what does any of this have to do with job titles?

Managers are not protected by the NLRA, and cannot join unions or be part of the bargaining unit. These employees are considered to be part of an organization’s management rather than its labor force.  If school district employees are given job titles such as manager or director, but the nature of their work is not managerial or supervisory in nature, school districts may find themselves appearing in court or before the National Labor Relations Board explaining why they are preventing district employees from exercising their right to join a labor union.  Cases likeNLRB vs. Kentucky River Community Care Inc. have also held that some supervisors can be represented by the union.  State and local laws may vary and provide collective bargaining rights to supervisors.

Concluding Thoughts About School District Job Titles

Job titles for school district employees are important for reasons beyond legal ramifications, however school district leaders must ensure they adhere to federally mandated labor laws.  Do not assume you are compliant.  It may be worth your time to review and update your job descriptions and job titles to ensure your school district doesn’t end up with a dunce cap on in court.  If Wal-Mart, the world’s largest retailer and largest employer, has found itself before federal courts numerous times over the past decade due to inaccurate or misrepresented job titles and employee classifications, chances are school districts are in danger of this HR faux pas as well.  Take some time this summer to review your district’s job titles and ensure job titles accurately reflect school district employee duties.

As always, if you need additional help or advice, please contact us and a member of our team will be happy to assist your district in any way we can.  If you found the information here useful, please consider sharing this article through your favorite social media platforms.

(Understand this article will be read by individuals all across the U.S. and in many other countries and we cannot write in generalized legal terms, nor is this article intended to be legal advice.  We bring up these points to ensure school districts are, at the very least, mindful of the considerations that must be made when creating or reassigning job titles).

www.StandUpToBullying.net 802-362-5448 Info@StandUpToBullying.net There's No Such Thing as a Sl*t A new longitudinal study examined how college students sl*t-shame—and found that the practice is as illogical as it is damaging. OLGA KHAZAN Lara/Flickr In 2004, two women who were long past college age settled into a dorm room at a large public university in the Midwest. Elizabeth Armstrong, a sociology professor at the University of Michigan, and Laura Hamilton, then a graduate assistant and now a sociology professor at the University of California at Merced, were there to examine the daily lives and attitudes of college students. Like two Jane Goodalls in the jungle of American young adulthood, they did their observing in the students’ natural habitat. The researchers interviewed the 53 women on their floor every year for five years—from the time they were freshmen through their first year out of college. Their findings about the students’ academic success later formed the basis forPaying for the Party, their recent book about how the college experience bolsters inequality. They found that the women’s “trajectories were shaped not only by income ... but also by how much debt they carried, how much financial assistance they could expect from their parents, their social networks, and their financial prospects.” But in the process, they began to notice that the women’s attitudes about s*x were also influenced by their families’ incomes. On top of asking the students about GPAs and friend groups, the researchers also dug into their beliefs about morality—sometimes through direct questions, but often, simply by being present for a late-night squabble or a bashful confession. “We were there on the floor when these dramas would emerge about sl*t-bashing,” Armstrong told me. “We saw working class girls walk out of their dorms to visit boys, and the privileged girls would say, ‘why are you wearing that?’" As Armstrong and Hamilton write in a new study published in Social Psychology Quarterly, economic inequality drove many of the differences in the ways the women talked about appropriate s*xual behavior. All but five or six of the women practiced “sl*t-shaming,” or denigrating the other women for their loose s*xual mores. But they conflated their accusations of “sl*ttiness” with other, unrelated personality traits, like meanness or unattractiveness. It seems there was no better way to smear a dorm-mate than to suggest she was s*xually impure. “If you want to make a young woman feel bad, pulling out the term ‘sl*t’ is a sure fire way to do it,” Armstrong said. “It’s ‘she isn’t one of us, we don't like her and she's different.’” Because most of the sl*t-shaming occurred in private, women were both targets and producers of it, and it was rare for the term “sl*t” to stick to any one woman. Instead, the other women were simply foils for each others’ supposed s*xual virtue. One woman described her best friend like so: “She just keeps going over there because she wants his attention because she likes him. That’s disgusting. That to me, if you want to talk about sl*tty, that to me is wh*ring yourself out.” “I think when people have s*x with a lot of guys that aren’t their boyfriends, that’s really a sl*t." For her analysis, Armstrong divided the cohort in two, with wealthier women in one group and the working-class ones in the other. Each group tended to band together, with the poorer half feeling excluded from Greek life and other high-status social activities. Several of the low-income students, for example, balked at the cost of the $50 "rush" t-shirt, Armstrong said. The rich women tended to view casual s*x as problematic only when it was done outside of steady relationships, and even then, only when it included v*ginal intercourse. Meanwhile, frequent “hooking up,” which to them included kissing and oral s*x, did not a sl*t make. “I think when people have s*x with a lot of guys that aren’t their boyfriends, that’s really a sl*t,” as one put it. The poorer women, by contrast, were unaware that “hooking up,” in the parlance of the rich women, excluded v*ginal intercourse. They also tended to think all s*x and hook-ups should occur primarily within a relationship. The two classes of women also defined “sl*ttiness” differently, but neither definition had much to do with s*xual behavior. The rich ones saw it as “trashiness,” or anything that implied an inability to dress and behave like an upper-middle-class person. One woman, for example, “noted that it was acceptable for women to ‘have a short skirt on’ if ‘they’re being cool’ but ‘if they’re dancing really gross with a short skirt on, then like, oh sl*t.’” The poorer women, meanwhile, would regard the richer ones as “sl*tty” for their seeming rudeness and proclivity for traveling in tight-knit herds. As one woman said, “Sorority girls are kind of wh*rish and unfriendly and very cliquey.” Armstrong notes that midway through their college experience, none of the women had made any friendships across the income divide. To Armstrong, it seemed like even though the wealthy and poor women were sl*t-shamed roughly equally in private, it was mostly only the poor women who faced public sl*t-shaming. And it only seemed to happen when the poorer women tried to make inroads with the richer ones. “There was one instance where one of the [working class] women, Stacey, was watching the show The OC and made some comment about the s*xual behavior of one of the characters of the show,” Armstrong told me. “And a rich woman, Chelsea, said something like, ‘Oh, you're such a sl*t yourself, you shouldn't be calling her out.’ It was supposed to be a joke, but it misfired and [Stacey] ran crying from the room.” A series of emissaries were sent up and down the hall in an attempt to make amends, but the damage had been done. “None of the other women in the room chimed in to defend Stacey’s virtue,” Armstrong notes. By Armstrong’s tally, more rich women than poor women took part in hook-ups throughout college. The poorer women seemed to notice that their wealthier dorm-mates were more s*xual, but felt they couldn’t get away with being similarly libertine. The wealthier women, meanwhile, seemed unfazed by accusations of sl*ttiness if they came from their lower-status peers. (Think of Paris Hilton or Kim Kardashian, for whom public displays of s*xuality were the rocket fuel on which they jetted to fame.) “The high-status women would literally snub or look through the poorer women,” Armstrong said. “They would blow them off entirely. We spent a lot of time asking who would say hi to who; who would let the door slam in someone's face.” According to Armstrong, one sorority member said, “I only see people who are Greek; I don't know who the other students are. They are like extras.” The rampant sl*t-shaming, Armstrong found, was only a symptom of the women’s entrenched classism. But more importantly, the allegations of sl*ttiness had little to do with real-life behavior. The woman with the most s*xual partners in the study, a rich girl named Rory, also had the most sterling reputation—largely because she was an expert at concealing her s*xual history. “Rory was going to lie till the day she died. She would only have s*x with guys who didn't know each other." “Rory was going to lie till the day she died,” Armstrong said. “She would only have s*x with guys who didn't know each other. She constantly misrepresented what she was doing and didn't tell people where she was going.” One of the most striking things Armstrong learned was that, despite the pervasiveness of sl*t-shaming, there was no cogent definition of sl*ttiness, or of girls who were sl*tty, or even evidence that the supposedly sl*tty behavior had transpired. In the study, she notes that though “women were convinced that sl*ts exist” and worked to avoid the label, some of their descriptions of sl*ttiness were so imprecise (‘‘had s*x with a guy in front of everybody”) that they seemed to be referring to some sort of apocrypha—“a mythical sl*t.” “The term is so vague and slippery that no one knows what a sl*t was or no one knows what you have to do to be that,” she told me. “It circulated around, though, so everyone could worry about it being attached to them.” Perhaps no recent example of sl*t-shaming is as horrifying as the shooting in Santa Barbara last week. Before killing seven people in his rampage, Elliot Rodger vowed to “slaughter every single spoiled, stuck-up blonde sl*t”— all while complaining that those very same “sl*ts” refused to sleep with him. To Armstrong, the shooting highlighted that “sl*t” is simply a misogynistic catch-all, a verbal utility knife that young people use to control women and create hierarchies. There may be no real sl*ts, in other words, but there are real and devastating consequences to sl*t-shaming. Do your students use these words? -- Learn how to stop it. 802-362-5448 -- Info@StandUpToBullying.net 802-362-5448 Our evidence-based programs dramatically improve the culture of your school.   BULLYING PREVENTION BOOKS, DVDS, AND POSTERS Shipping and handling is included on all orders. Fax purchase orders to: 802-549-5024 DVD Books Posters Info@StandUpToBullying.net Can you define bullying?How can teachers stop bullying? What are the different types of bullying? What is the difference between playful teasing verses hurtful taunting? How do I teach students to forgive themselves? What is verbal bullying?What is physical bullying?Who are the bystanders?What are bystander responsibilities?What are the ways to stop bullying?How should students respond to verbal bullying? 802-362-5448 Providing dynamic and practical anti-bullying workshops to students, staff and parents, Mike Dreiblatt teaches realistic bullying prevention strategies and best practices that can be used immediately to STOP bullying.Bullying Prevention PSAs!!! Mike In Action - YouTube Clips!!! Sexual Harassment Prevention Staff Professional DevelopmentWorkplace Bullying and Harassment Student, Staff, Parent Workshops Info@StandUpToBullying.net **District Tour Specials** Competitive Rates are available when multiple schools in your area schedule together for our District Packages.  ©2014 www.StandUpToBullying.net | Info@StandUpToBullying.net 802-362-5448 -- 136 Clover Lane Manchester Center Vermont 05255

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Bullying Victims More Likely to Carry Weapons

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Bullying Victims More Likely to Carry Weapons MAY 4, 2014 03:00 AM ET // BY SHEILA M. ELDRED Kids who have been bullied are nearly 1/3 more likely to bring a weapon to school than their peers who haven’t been bullied, according to research being presented today at the Pediatric Academic Societies annual meeting. That means that about 200,000 high school bully victims are bringing weapons to school, according to the research that analyzed data from a 2011 nationally representative survey of more than 15,000 U.S. high school students conducted by the Centers for Disease Control and Prevention. “Tragedies like the Columbine High School massacre have alerted educators and the public to the grave potential for premeditated violence not just by bullies, but by their victims as well,” said researcher Dr. Andrew Adesman. The researchers looked at four risk factors to determine if any combination made bringing weapons to school more likely: not going to school due to feeling unsafe in school or on the way to school; having property stolen or damaged; being threatened or injured with a weapon; and being in a physical fight. They found that of the 20 percent of high school students who said they’d been bullied, 8.6 percent carried a weapon to school (compared to 4.6 percent of those who said they hadn’t been bullied). And when all four risk factors were present, kids were 31 times more likely to bring a weapon to school. “More effective prevention efforts and intervention strategies need to be identified,” said Dr. Lana Schapiro, one of the researchers. “The greatest focus should not just be on bullies, but on the victims of bullies most likely to carry a weapon and potentially use deadly force if threatened.” Photo: iStock

Do your students bring weapons to school? 802-362-5448 -- Info@StandUpToBullying.net

802-362-5448 Have You Scheduled Your August/September Professional Development Days? BULLYING PREVENTION BOOKS, DVDS, AND POSTERS Shipping and handling is included on all orders. Fax purchase orders to: 802-549-5024 DVD Books Posters Info@StandUpToBullying.net Can you define bullying?How can teachers stop bullying? What are the different types of bullying? What is the difference between playful teasing verses hurtful taunting? How do I teach students to forgive themselves? What is verbal bullying?What is physical bullying?Who are the bystanders?What are bystander responsibilities?What are the ways to stop bullying?How should students respond to verbal bullying? 802-362-5448 Providing dynamic and practical anti-bullying workshops to students, staff and parents, Mike Dreiblatt teaches realistic bullying prevention strategies and best practices that can be used immediately to STOP bullying.Bullying Prevention PSAs!!! Mike In Action - YouTube Clips!!! Sexual Harassment Prevention Staff Professional DevelopmentWorkplace Bullying and Harassment Student, Staff, Parent Workshops Info@StandUpToBullying.net

©2014 www.StandUpToBullying.net | Info@StandUpToBullying.net 802-362-5448 -- 136 Clover Lane Manchester Center Vermont 05255

Yik Yak causing bullying concerns at some schools

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Messaging app Yik Yak causing bullying concerns at some schools Yik Yak was launched in December by 23-year-old entrepreneurs Brooks Buffington and Tyler Droll, two recent college graduates who designed the app to work like a “virtual bulletin board” for any 1.5-mile radius. (Courtesy: Yik Yak)  By Joshua Rhett Miller  FoxNews.com A new social media app that works like a localized, anonymous version of Twitter is rapidly gaining popularity on college campuses nationwide, but some educators fear it's being used by high school students to issue threats and to bully classmates. Yik Yak was launched in December by Atlanta-area entrepreneurs Brooks Buffington and Tyler Droll, two recent college graduates who designed the app using geo-fencing technology to create countless small communities. The app works like a “virtual bulletin board” for any 1.5-mile radius, Droll told FoxNews.com. “With Yik Yak, we allow anyone to have that power, that audience, and you’re not limited by who’s following who,” he said. “And this app isn’t a one-to-one messenger. Anyone within 1.5 miles can see it. We equate it to a virtual bulletin board.” Currently available for iOS and Android, Yik Yak allows users to vote on or reply to any so-called “Yak” posted anonymously using 200-character messages instead of Twitter’s 140-character limit. Although Yik Yak, which was designed with college campuses in my mind, restricts access on some 130,000 primary and secondary schools across the country, some parents and educators have raised concerns that younger kids are active on the service. Most recently, in Connecticut, parents received a message from Fairfield Public Schools warning them that Yik Yak was “creating opportunities for mean-spirited, bullying behavior” at some of its schools. "The issues range from bullying behavior, racial harassment, sexual harassment, to bomb threats and threats of physical violence."- Fairfield Public Schools “Upon researching this we have learned that Yik Yak has been causing many issues at middle schools, high schools, and colleges around the country,” the message read. “The issues range from bullying behavior, racial harassment, sexual harassment, to bomb threats and threats of physical violence.” As a result, district officials asked Yik Yak to utilize its GPS technology to block access to the app within all of its campuses. A company spokeswoman confirmed to FoxNews.com that Yik Yak has been blocked to three middle schools and two high schools within the district. “We’re proactively trying to keep high schoolers off the app,” Droll said. “It’s being used very well at colleges. We think psychologically high schoolers aren’t ready to use our app.” In California, a 17-year-old high school student was charged with three felony counts of making a terrorist threat earlier this month after he allegedly posted on Yik Yak that a shooting would occur at two local high schools. The student thought the threat would be “funny” and untraceable, according to a news release from the Reedley Police Department. Elsewhere, in Mobile, Ala., a 16-year-old and 14-year-old from the area were reportedly charged with making terroristic threats after allegedly using Yik Yak to announce forthcoming shootings at local high schools. But Buffington said those “growing pains” are not unique to Yik Yak, and he recalled a story of the app being used by students at Vanderbilt University to raise money for a fellow classmate diagnosed with cancer. Other users might not have personally known the student, but the immediate forum and increased awareness created by the app worked wonders, he said. “It allowed him to easily connect with his whole campus,” Buffington said. “Within one day, more than 1,100 people showed up to see if they were a blood match. Awesome things like that happen all the time with our app on college campuses.” Company officials announced on Monday that it had secured $1.5 million in funding, aimed at enhancing current features and expanding its user base. Both Kroll and Buffington declined to indicate how many people are currently using Yik Yak, but some estimates are as high as 250,000. They did say, however, that it’s been used on more than 100 college campuses, primarily in the South. Buffington said he expects the app, which was originally launched a meager side project, to eventually rival social media behemoths like Facebook and Twitter because users are not anchored to any one particular profile, photo or circle of users. “The trend we saw in all other forms of social media was, you have a profile, something that weighs you down,” he said. ‘You’re expected to act a certain way. Another big thing is they’re closed networks that lack diversity and differentiating content.” Parry Aftab, an attorney specializing in Internet privacy and security law, told FoxNews.com that Yik Yak is quickly becoming “very popular” in places like Chicago, California and large swaths of the South. She said the anonymity apps like Yik Yak provides does indeed tend to make its users more daring. “If people know what they’re doing is being monitored, they tend to think twice,” Aftab told FoxNews.com. “But I have no problem with schools blocking access to anything that isn’t related to education during school hours – period. Parents can deal with it when they get home.”

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802-362-5448 Have You Scheduled Your August/September Professional Development Days? BULLYING PREVENTION BOOKS, DVDS, AND POSTERS Shipping and handling is included on all orders. Fax purchase orders to: 802-549-5024 DVD Books Posters Info@StandUpToBullying.net Can you define bullying?How can teachers stop bullying? What are the different types of bullying? What is the difference between playful teasing verses hurtful taunting? How do I teach students to forgive themselves? What is verbal bullying?What is physical bullying?Who are the bystanders?What are bystander responsibilities?What are the ways to stop bullying?How should students respond to verbal bullying? 802-362-5448 Providing dynamic and practical anti-bullying workshops to students, staff and parents, Mike Dreiblatt teaches realistic bullying prevention strategies and best practices that can be used immediately to STOP bullying.Bullying Prevention PSAs!!! Mike In Action - YouTube Clips!!! Sexual Harassment Prevention Staff Professional DevelopmentWorkplace Bullying and Harassment Student, Staff, Parent Workshops Info@StandUpToBullying.net

©2014 www.StandUpToBullying.net | Info@StandUpToBullying.net 802-362-5448 -- 136 Clover Lane Manchester Center Vermont 05255