Types of leave

Different Types of Leave Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase

The Big Issues  Vacation Leave  “Paid Time Off”  Sick Leave

 Everything else

Vacation Leave

Roseland v. Strategic Staff Management (Neb. 2006)

 Summer of 1998, 3 employees quit  Spring of 2000, each demanded payment of accrued vacation leave  Staff handbook: “Upon termination, employees will not be paid for unused vacation time.”  The issue: Wage Payment and Collection Act says “fringe benefits” include vacation

Roseland v. Strategic Staff Management (Neb. 2006)

 Roseland Court: • “We hold that accrued vacation time, which is part of an employment agreement, is due and payable as wages upon termination of employment.”

• “The provision in [the] handbook stating that employees shall not be paid for unused vacation leave upon termination conflicts with state law and is void”

 Awarded  Vacation Pay  Attorneys fees (including appeal)

Roseland v. Strategic Staff Management (Neb. 2006)

 What Roseland Means: • Long-standing practices are no longer acceptable • Your district/ESU may have significant liability to current employees

 Homework • Review superintendent contracts • Review classified staff contracts • Examine board policies that discuss vacation leave

Paid Time Off

Fisher v. PayFlex (Neb. 2013)

 Employer had “PTO” • • • •

No separate vacation No separate sick Did provide separate funeral leave Handbook: “PTO will NOT be paid out upon separation of employment”

 Two employees separated from employment, demanded payment  Employer: PTO isn’t vacation

Fisher v. PayFlex (Neb. 2013)

 Fisher Court • “Regardless of the Label that PayFlex attached to its PTO hours, they were indistinguishable from earned vacation time….”

• Distanguished PTO and No separate vacation • No separate sick • Did provide separate funeral leave • Handbook: “PTO will NOT be paid out upon separation of employment”

 Court awarded pay and fees

Fisher v. PayFlex (Neb. 2013)

 What Fisher Means: • Being clever is not smart • Teacher personal days • Beware union offers to switch to PTO

 Homework • Review negotiated agreement wording about personal days

Recommendations  Don’t ignore this issue  Eliminate “use it or lose it” wording  Use “the bucket” approach (replenish to the extent days were used)  Plan on paying for some unused days (work to minimize them)

Sick Leave

Sick Leave  Roseland applied to sick leave  Unicameral amended statute in response to Roseland  § 48-1229(4)  “Paid leave, other than earned but unused

vacation leave, provided as a fringe benefit by the employer shall not be included in the wages due and payable at the time of separation…”

Sick Leave  Fisher Court: • Paid vacation leave is not conditioned upon an event, such as a holiday, an illness, or a funeral: • “these leaves are treated differently because an employer has the right to provide sick leave that an employee can use only for illness or injury while employed”

Sick Leave Pools

Definitions  Sick Leave Pool – a program that permits teachers to donate one or more sick leave days to a pool accessible to participating teachers  Fraught with practical and liability problems

Problems with Pools  Discrimination claims • Age, race, gender, marital status, retaliation, disability, pregnancy or related medical condition, perhaps gender identification  Claims are expensive to defend

Other Leaves     

Bereavement Leave (belongs in agreement) Adoption Leave (does not belong) Jury Duty (address jury pay in agreement) Military Leave (does not belong) FMLA (does not belong)

Different Types of Leave Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase