Private Education Matters
Grace
Hannah
Madison
FIELD TRIPS
School That Left Student Abroad Could Not Rely On Trip Waiver To Excuse Liability.
L.L. attended Brewster, a private boarding school in New Hampshire. During her sophomore year, she applied for and was accepted into a study abroad program (Program) to Tenerife in the Spanish Canary Islands. Entry into the Program was contingent on L.L. and at least one parent signing a trip agreement (Agreement). The Agreement contained several provisions to limit Brewster’s liability and indemnify Brewster for claims related to the trip.
In December 2019, L.L. (then fifteen years old) and her mother Jane signed the Agreement. The parents also paid a fee on top of Brewster’s regular tuition price for L.L’s participation in the Program. The fee covered twenty-four hour medical and travel security assistance and advice, and twenty-four hour “on-call support” from Brewster.
The trip to Tenerife was scheduled to last about two months, from January 6, 2020 to March 9, 2020. L.L. traveled to Tenerife as scheduled on January 6, 2020. While in Tenerife, L.L. stayed with a host family. Other than the students’ arrival and departure from Tenerife, the Program did not involve other international travel, so the students did not need their passports. Brewster instructed students to safeguard their own passports.
Although the trip was supposed to end on March 9, 2020, there were multiple confirmed cases of COVID-19 on the Canary Islands by late February, including four on Tenerife. On February 26, Brewster informed the parents that due to the outbreak, Brewster would be evacuating the students and would return to the United States on February 29.
On February 28, one of the Brewster faculty members
supervising the Program texted each of the students and asked them to respond with a photograph of their passport. L.L. could not find her passport, and a faculty member told L.L. that she could not fly back with the other students. The faculty member sent L.L. a text message with a “shoulder shrug emoji” and said “it is what it is. Calm down, relax, there’s nothing you can do about it now.”
Brewster did not inform L.L. where she would stay or who would supervise her if she could not travel to the U.S. with the other faculty and students.
On February 29, the students and faculty flew to Madrid. The same morning, Brewster explained to L.L.’s parents that Brewster left her with two Brewster teachers. Although these two teachers remained in Spain, neither called nor visited L.L. after she was left behind. One of them contacted L.L. once by text.
Jane flew to Tenerife and arrived on Sunday, March 1, 2020. After obtaining an emergency passport for L.L. at the U.S. Embassy in Madrid, L.L. and Jane returned to the U.S.
Upon returning to the U.S., L.L. struggled with her mental health, including suffering from anxiety, depression, an eating disorder, bipolar disorder, and post-traumatic stress disorder. L.L. sued, seeking relief for the injuries she alleged Brewster caused by leaving her behind in Tenerife.
The School moved to dismiss the claims, arguing that by signing the Agreement, L.L. and Jane released Brewster from any liability arising out of L.L’s participation in the program. Specifically, Brewster pointed to the Waiver and Release, where L.L. and Jane promised not to sue Brewster for “any and all liability or claims” with the exception of claims for intentional wrongdoing that were related to L.L.’s participation in the Program. In response, the family argued that the release was unenforceable under New Hampshire law.
In evaluating the contract, the Court noted that it typically upholds this type of contract if: (1) the contract does not violate public policy; (2) the plaintiff understood the import of the agreement or a reasonable person in the same position would have understood the import of the agreement; and (3) if the plaintiff’s claims were within the contemplation of the parties when they executed the contract.
Here, the issue was whether the contract complied with public policy. L.L. argued that a special relationship existed between herself and Brewster, meaning that the contract was not enforceable. The Court agreed.
The Court noted that due to the important and compulsory nature of education, New Hampshire has held that schools have a special relationship with their students, which imposes a duty of reasonable supervision on schools. The Court also noted that a special relationship exists between a school and its students because school attendance impairs both the ability of students to protect themselves and the ability of their parents to protect them.
Here, the duty was even more pronounced because the Program separated parents and children across international borders. The Court reasoned that L.L.’s parents depended on Brewster to supervise L.L. and could not rely on an exculpatory contract to avoid liability for acting negligently while entrusted with her care.
Brewster argued that the special relationship only extended to reasonably foreseeable risks, and that L.L. losing her passport was not foreseeable. The Court disagreed and found that a student losing their passport was reasonably foreseeable. Brewster’s request for photocopies of the passport before the trip indicates that the School may have foreseen this risk.
The Court also separately noted that under New Hampshire law, a parent does not have the authority to bind their minor child to a contract waiving liability for an injury before the injury has occurred. Therefore, the Agreement would have been unenforceable for this reason as well.
Therefore, the Court found that the Agreement was unenforceable under New Hampshire law and denied the School’s motion.
Lovering v. Brewster Acad., 2024 DNH 070.
Note:
While field trip waivers are a necessary component of a school field trip, they do not shield schools from all liability, as was the case here.
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GENDER DISCRIMINATION
Ninth Circuit Upholds Injunction
Barring Enforcement Of Transgender Sports Ban.
The Save Women’s Sports Act (Act) was adopted by the Arizona legislature in September 2022, and stated that athletic teams or sports sponsored by public and private schools whose students or teams compete against a public school, must be expressly designated as one of the following, based on the biological sex of the students who participate on the team or in the sport: (1) males, men, or boys; (2) females, women, or girls; and (3) coed or mixed. Under the Act, athletic teams or sports designated for females, women, and girls were not open to students of the male sex. The statute did not restrict the eligibility of any student to participate on an athletic team designated as being for males, men, or boys or designated as coed or mixed.
Plaintiffs, two transgender girls, sought a preliminary and permanent injunction to stop enforcement of the Act, which Plaintiffs alleged precluded them from playing on girls’ sports teams. The Plaintiffs changed their names through the court system, have taken puberty blockers and hormone therapy, and have not undergone male puberty. Plaintiffs argued that enforcing the Act violated their rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, Title IX, the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act.
In July 2023, after considering the parties’ briefs, evidentiary submissions from numerous experts, and argument presented at a hearing, the trial court ruled in favor of the transgender girls and granted the preliminary injunction. The trial court found that the Act was adopted for the purpose of excluding transgender girls from playing on girls’ sports teams. The trial court also found that before puberty, there is no significant
differences in athletic performance between boys and girls. Transgender girls who receive hormone therapy after receiving puberty-blocking medication will develop the skeletal structure, fat distribution, and muscle and breast development typical of other girls and will typically have the same levels of estrogen and testosterone as other girls.
The Defendants, which include two state superintendents, two Arizona legislators, the interscholastic athletic association, a school district, and a private school, appealed.
The Defendants argued that the trial court’s factual findings regarding the expert medical evidence were clearly erroneous. Specifically, they argued that the trial court clearly erred by: (1) finding that there were no significant differences in athletic performance between boys and girls; (2) treating small differences between boys and girls as insignificant; and (3) finding that transgender girls who receive puberty-blocking medication do not have an athletic advantage over other girls.
The Court of Appeals considered medical experts’ research and findings on these topics and agreed with the trial court. For example, the Defendants pointed to a handful of studies suggesting that pre-pubertal boys may be taller, weigh more, have more muscle mass, have less body fat, or have greater shoulder internal rotator strength than pre-pubertal girls. The Court of Appeals found, however, that these studies neither attributed these differences to biological rather than sociological factors nor concluded that these differences translated into competitive athletic advantages.
Although the Defendants’ medical experts disagreed with the trial court’s findings, the Court of Appeals found that the findings were firmly grounded in
evidence, and therefore were not clearly erroneous.
The Court of Appeals next considered the trial court’s ruling that the Plaintiffs were likely to succeed on their equal protection and Title IX claims.
Under the law, there is a strong presumption that gender classifications are invalid and the burden rests on the state to justify the classification. When legislation disadvantages various groups or persons, there are three tiers of judicial scrutiny, and courts must apply the appropriate level of scrutiny to evaluate whether the law has encroached on an individual’s rights. For statutes that discriminate on the basis of sex, the court must apply heightened scrutiny, the intermediate tier of judicial scrutiny.
The Defendants argued that rational basis, the lowest level of scrutiny, should apply because the Arizona legislature passed a remedial law to benefit girls and women, to promote opportunities for female athletes and remedy past discrimination. The Court of Appeals found that the trial court properly concluded that the Act had a discriminatory purpose based on gender identity, and therefore heightened scrutiny should apply. The Court found that the Act was not remedial; it was adopted for the purpose of excluding transgender girls from playing on girls’ sports teams.
To withstand heightened scrutiny, a classification by sex must serve important governmental objectives and the challenged law or policy must be substantially related to achievement of those objectives.
Here, the Court of Appeals concluded that the state had an important governmental interest in ensuring competitive fairness, student safety, and equal athletic
opportunities for women and girls. The question was whether the transgender ban was substantially related to the achievement of those objectives. The Court of Appeals concluded it was not.
The Court reasoned that the Act does not afford transgender women and girls equal athletic opportunities because it allows cisgender women and girls to play on any teams, male or female, while transgender women and girls are only allowed to play on male teams. The Act also permits all students other than transgender women and girls to play on teams consistent with their gender identities. Transgender women and girls alone were barred from doing so, which is the essence of discrimination.
The Court of Appeals also reasoned that allowing transgender females to play on female teams would not displace cisgender females to a substantial extent, and that a student’s transgender status was not an accurate proxy for average athletic ability or athletic advantage.
Therefore, the Court of Appeals upheld the trial court’s conclusion that categorically banning all transgender girls from playing girls’ sports was not substantially related to an important government interest.
The Court of Appeals upheld the preliminary injunction.
Doe v. Horne (9th Cir. 2024) 2024 U.S. App. LEXIS 22847.
Note:
LCW previously covered this case . This case is binding on the Ninth Circuit, which California is part of. However, the preliminary injunction in this case is narrow. It only bars enforcement of the Act against the two transgender girls who have not gone through male puberty and who wish to play girls’ sports at their Arizona schools.
disabilities
Catholic Schools In New Orleans Violated The Law When They Made
Pre-Admission Inquiries About Applicants’ Disabilities.
On August 15, 2022, B.R. and E.R. filed a class action petition or an injunction, seeking to enjoin the Archdiocese of New Orleans from including questions—whether orally or in writing—that require applicants to the Archdiocese’s Catholic schools to disclose disabilities that the applicants might have.
The trial court ruled in favor of the children, granting the preliminary injunction. The Archdiocese appealed.
The Court of Appeals explained that a party moving for a preliminary injunction must show: (1) that the moving party will suffer irreparable injury, damage, or loss if the motion is not granted; (2) the moving party is entitled to the relief sought; and (3) the moving party will likely prevail on the merits of the case.
The Archdiocese argued that the children would not suffer irreparable injury in the absence of the injunction. The children argued that because the Archdiocese was violating Louisiana law, it is presumed that they suffered irreparable harm. Louisiana Revised Statutes 46:2254 states that an individual will not be subject to discrimination on the basis of a disability, or denied the benefits of any program or activity that receives financial assistance from the state. The statute also states that use of a written or oral inquiry or form of application for admission that elicits or attempts to elicit information concerning the disability of an otherwise qualified applicant is discriminatory and contrary to the statute.
Furthermore, Louisiana Revised Statutes 51:2232 states that places of public accommodation cannot engage in a direct or indirect act that excludes, distinguishes, restricts, segregates, limits, refuses, denies, or differentiates the treatment of a person because of a disability.
The Archdiocese argued that the children did not prove
that they were recipients of state funding. The Court of Appeals reviewed the Louisiana Department of Education’s (DOE) website, which disclosed that at the time of the petition, almost all of the Catholic schools owned and operated by the Archdiocese had students participating in a program in which the DOE assisted in paying tuition to the Archdiocese on behalf of those students. Accordingly, the Court of Appeals found that the Archdiocese was a recipient of state government funding and subject to the Louisiana statute.
The Archdiocese then argued that the questions posed about prospective students’ disabilities was simply to assess the prospective students’ needs in order to determine whether that particular school would be able to meet those needs. The children argued that this displays the very essence of the discriminatory purpose because it treats those with disabilities less favorably during the admissions process. The children also argued that the intent of the discriminatory activity is irrelevant if the actual effect deprives an individual of an equal opportunity.
The Court of Appeals agreed with the children. It reasoned that the Archdiocese directly violated the Louisiana laws when it treated pre-admission students with disabilities differently than those pre-admission students without disabilities.
The Court of Appeals upheld the trial court’s ruling.
Minor Child. v. Roman Cath. Church of the Archdiocese of New Orleans, 2024-0008 (La App 4 Cir 08/20/24).
Note:
Private schools should be aware that pre-admission inquiries into a student’s disability can run afoul to the Americans with Disabilities Act (“ADA”). Many religious schools are typically exempt from the ADA, but there may be times where other laws apply as a result of a school’s receipt of state or federal funding, as was the case here.
RETALIATION
Basketball Coach’s Retaliation Lawsuit Fails Due To Length Of Time Between Harassment Complaint And Alleged Retaliatory Conduct.
Charles Julien was hired as an English teacher and began coaching the boys’ basketball team at East St. John High School in 2017. On October 28, 2018, the Principal and Athletic Director of the School ended Julien’s tenure as basketball coach following a losing season and an investigation into potential violations of the Louisiana High School Athletic Association rules. The investigation included alleged violations of cash handling protocols and requiring students to practice beyond the limits imposed by the Athletic Association.
Four days after his dismissal as coach, Julien filed a formal complaint with the School Board’s Superintendent, alleging that Julien was sexually harassed by the School’s principal. The complaint was ultimately unsubstantiated.
On November 28, 2018, the Superintendent reinstated Julien as the basketball coach so that the boys’ team could compete in the upcoming season. Beginning in April 2019, Julien claimed that the Principal and Athletic director engaged in retaliatory actions as a result of him filing the sexual harassment complaint. In particular, Julien alleged that the team was locked out of gym facilities, that Julien was required to acquire additional insurance for use of the facilities, that the School did not allow the team to participate in an athletics physical education class, and that Julien was ultimately removed from the head coach position. Julien claimed that these retaliatory actions continued until September 2019, when he was again removed from the position as head coach after another losing season.
Julien filed a complaint alleging, among other claims, retaliation under Title VII of the Civil Rights Act. The trial court granted summary judgment to the School and Julien appealed.
To establish a case for Title VII retaliation, the plaintiff must show that: (1) he engaged in an activity protected by Title VII; (2) he was subjected to an adverse employment action; and (3) a causal link exists between the protected activity and the adverse employment action. To establish the causal connection, the protected activity and the adverse employment action must have “very close temporal proximity.” In 2020, the 5th Circuit Court of Appeals held in another case that two-and-ahalf months was not within the bounds of very close temporal proximity.
Here, the Court of Appeals concluded that the length of time between the sexual harassment complaint and the alleged retaliatory actions ranged between six and eleven months, and were therefore too lengthy to infer a causal connection.
The Court of Appeals upheld the trial court’s ruling.
Julien v. St. John the Baptist Par. Sch. Sys. (5th Cir. 2024) 2024 U.S. App. LEXIS 22865.
Note:
In retaliation cases, courts often look to the amount of time between the underlying protected conduct and the employer’s adverse action. Schools should keep in mind that the closer together that the conduct and the adverse action occur, the more likely that the Court will infer retaliation.
MISCONDUCT
Court Finds That Dance Teachers Were Likely Aware Of Coworkers’ Criminal Past Based On Local Newspaper Articles.
Beginning in 1999, Terence Greene worked as the dance director at Cleveland School of the Arts (CSA). In 2002, an allegation surfaced from a 14-year-old student that Greene sexually assaulted him. The allegation resulted in an indictment against Greene in September 2003, which was reported in the Cleveland Plain Dealer, a local newspaper. Greene was acquitted on all counts after a bench trial. After the acquittal, Greene continued to teach at CSA until 2014, when two former students came forward with allegations that Greene engaged in criminal sexual contact with him when he was their teacher. In September 2014, Greene was fired from his job at CSA.
In addition to the CSA students, in 2011, Greene’s nephew also made an allegation of improper sexual conduct dating back to 1985. No formal charges resulted from the allegations.
A year after he was terminated from CSA, in September 2015, Greene applied to Cuyahoga County Community College (Tri-C) for a job as a dance instructor in its Creative Arts Academy. Greene’s application stated that he left CSA because he “started his own company and pursued other job opportunities.”
After receiving Greene’s application, Human Resources requested a basic background check on Greene from a third-party screening company, which indicated that Greene left CSA because “he was terminated.”
Regarding his eligibility for rehire, the report said “No. The subject had allegations with students,” and contained a comment that “we have received a negative response regarding the subject’s reason for leaving and/ or eligibility for re-hire.”
Despite the warning, Tri-C hired Greene.
John Doe enrolled in the dance program in Tri-C’s Creative Arts Academy in 2015, when he was around
13 or 14 years old. The program was a daily, after-school program and when John Doe was promoted to the intermediate level in 2018, Greene became his primary dance instructor. John Doe alleged that, in 2019, Greene sexually assaulted Doe one evening after rehearsal. Within days, Doe quit the program and quit dancing.
Sometime in January 2020, Doe revealed the incident to his high school advisor, who reported the assault to Child Protective Services and Doe’s mother. Doe’s mother filed a police report and Tri-C promptly terminated Greene’s employment.
John Doe filed a complaint against Tri-C and three administrators, asserting breach of contract and gross negligence, including negligence on the administrators’ failure to review the background check on Greene.
John Doe later amended his complaint to assert gross negligence and intentional infliction of emotional distress claims against three Tri-C dance teachers who worked with Greene, alleging that they had knowledge of Greene’s past sexual assaults on minor children and therefore had knowledge or cause to suspect that children under his care as a teacher would face future abuse. Doe argued that the teachers failed to undertake any investigation or take any action in response to their knowledge and therefore breached their duty to protect Doe’s safety.
Two of the dance teachers moved to dismiss the claims, arguing that Doe’s complaint did not indicate that they had knowledge of Greene’s prior misconduct. The trial court denied the dance teachers’ motion and the teachers appealed.
On appeal, the Court of Appeals considered whether Doe’s complaint adequately pleaded that the teachers had knowledge of Green’s misconduct, which is a necessary foundation to trigger their duty to act.
The teachers argued that Doe’s claim for gross negligence was vague—it only said the teachers had individual specific knowledge of Greene’s past sexual assault of minor children, which was not enough to show their level of knowledge required them to act. The Court of Appeals disagreed. The Court considered that Greene’s indictment
regarding his sexual offenses against his student at CSA in 2003 was reported in the local newspaper and he began teaching at Tri-C Creative Arts Academy in 2015, a year after he was terminated from his job at CSA. Construing these facts and all reasonable inferences in John Doe’s favor, the Court determined that Doe had plead enough to withstand the motion to dismiss.
The teachers also argued that Doe’s claim for intentional infliction of emotional distress was not particular enough. The Court of Appeals disagreed again, finding that if the teachers knew of Greene’s history with minors, their failure to take action could be considered outrageous and intolerable, and the resulting emotional distress would be such that no reasonable person could be expected to endure it.
The Court of Appeals affirmed the trial court’s ruling.
Doe v. Cuyahoga Cnty. Cmty. Coll. (Ct.App.) 2024-Ohio-3113.
Note:
This case is still in the early stages and this opinion only covers the pleading standard for the claims related to the dance teachers. Nonetheless, it is an important reminder that employees with possible knowledge of a coworker’s criminal past can result in the employee’s own liability. LCW will continue to monitor this case, including the outcome for the administrators that hired the employee despite the background check findings.
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nlrb
Trader Joe’s Unlawfully Fired Employee After Employee Raised Complaints About COVID-19 Policies.
David Fuller is the store manager of a Trader Joe’s in Texas. Jill Groeschel worked at the same Trader Joe’s for almost eight years before she was fired in April 2022. At the start of the COVID-19 pandemic, the store implemented a number of safety measures, including mandatory mask use, social distancing, limiting the number of customers in the store, senior only shopping hours, installation of Plexiglas, enhanced cleaning regimens, and flexible leave policies.
Groeschel and other employees had several conversations about the lack of COVID-19 safety protocols. As one example, Groeschel and another employee discussed that an employee came into the store two days before testing positive for COVID-19 and employees were not notified of the possible exposure. Fuller expressed to the employees that he could not take any action due to privacy reasons. Eventually, Fuller did notify employees of the potential exposure, and employees expressed concern about the lack of transparency, causing one employee to quit.
In May 2021, Trader Joes began to roll back its COVID-19 safety measures, removing the mask mandate, restrictions on the number of customers, and Plexiglas dividers. Groeschel spoke with other employees who were concerned about the change, and employees agreed that Fuller brushed off the complaints.
Groeschel said she never received any negative performance reviews, write-ups, or incident reports in her eight years at Trader Joe’s, until she began raising concerns about the store rolling back COVID-19 safety measures. Throughout the Fall of 2021, Trader Joe’s began disciplining Groeschel, including for Groeschel yelling at another employee; leaving work early without telling her manager that the reason she was leaving was due to illness; and starting work before being
administered the required COVID-19 symptoms screening.
In October 2021, Fuller gave Groeschel a verbal counseling for not responding when he greeted her and for being rude to the assistant manager about the symptom screening. On October 14, the store received a customer complaint about Groeschel yelling “why don’t you fire me” in front of the customers. Groeschel was issued a written warning.
In response to the written warning, Groeschel sent a letter to the Regional Vice President, Liz Hancock, raising concerns about the COVID-19 safety procedures. In February 2022, Groeschel received a negative performance review and was denied an annual raise for the first time during her employment.
In response, Groeschel filed a labor charge with the National Labor Relations Board (NLRB or Board), alleging the performance review and denial of a wage increase were in retaliation to her raising COVID-19 safety issues.
Shortly thereafter, Groeschel was informed that she was suspended pending an investigation due to employee complaints that were raised about Groeschel’s attitude, noting that she was behaving in an “angry” and “toxic” fashion, and her “aggressive” operation of a piece of machinery. Eventually, Trader Joe’s terminated Groeschel’s employment due to her aggressive behavior and safety concerns in operating store equipment.
Groeschel updated her NLRB complaint and alleged that Trader Joe’s violated Section 8(a)(1) and (4) of the National Labor Relations Act (NLRA) by issuing Groeschel a written warning, giving her a negative evaluation and thereby denying her a wage increase, and by suspending and subsequently discharging her.
The Administrative Law Judge found in favor of Groeschel and Trader Joe’s appealed to the Board.
To sustain a finding of discrimination, the General Counsel for the NLRB must show that the employee's protected activity was a motivating factor in the
employer's decision by establishing that: (1) the employee engaged in protected activity, (2) the employer knew of that activity, and (3) the employer had animus against the protected activity, which must be proven with evidence sufficient to establish a causal relationship between the protected activity and the adverse action.
If evidence establishes these factors, the burden shifts to the employer to show it would have taken the same action in the absence of the employee’s protected activity.
Here, the Board affirmed the Administrative Law Judge’s (Judge) ruling, finding that Trader Joe’s violated the NLRA when it issued a written warning to Groeschel. The Board agreed with the Judge that the following actions showed animus: Fuller’s statement questioning whether Groeschel was “fit” for her position after she complained about Trader Joe’s COVID-19 protocols, email exchanges between Hancock and Fuller about Groeschel’s ongoing safety complaints, and a significant departure in recording details about Groeschel’s conduct.
The Board also affirmed the Judge’s conclusion that Trader Joe’s violated the NLRA when it suspended and discharged Groeschel. The Board reasoned that Groeschel engaged in protected concerted activity when she discussed issues relating to her 401(k) with her coworker. Groeschel had approached one employee who had a background in finance and asked if she knew Trader Joe’s was overcharging fees on its plans. At that time, some employees had already initiated a lawsuit against Trader Joe’s about its 401(k) plan. Under these circumstances, Groeschel’s efforts to enlist the help of her coworker was protected activity.
The Board also found that Trader Joe’s unlawfully suspended Groeschel, reasoning that the animus was shown due to the close timing between Groeschel filing an NLRB charge, engaging in protected activity, and her suspension. The Board found Trader Joe’s failed to complete a meaningful investigation into any of the allegations of misconduct that was ultimately relied upon to discharge Groeschel. Moreover, the employee complaints about Groeschel, which Trader Joe’s cited as a basis for her suspension, were mostly statements that the employees were motivated to submit in response to Groeschel discussing filing the unfair labor practice charge. Hancock and Fuller also encouraged some employees to draft and submit their statements when they complained about Groeschel. The Board found the reliance on these statements underscored the suspicious nature of Groeschel’s suspension.
The Board found in favor of Groeschel and ordered Trader Joe’s to cease and desist from this conduct, to reinstate Groeschel, to provide Groeschel back pay, to remove reference to unlawful discipline from Groeschel’s file, and to make Groeschel whole for any loss in earnings and adverse tax consequences.
Trader Joe's, 373 NLRB No. 73.
Note:
This case is an important reminder that employees have the right to band together to try to improve their working conditions. In this case, the employee was outspoken about her concerns with the way Trader Joe’s was responding to the COVID-19 pandemic. Although the employee had a history of yelling at other employees and customers, Trader Joe’s failed to show that their disciplinary action was unrelated to the employee raising concerns about her working conditions.
ministerial exception
Court Concludes That Ministerial Exception Applies To High School French Teacher At Catholic School.
Yves Conseant, a former French teacher at St. Louis University High School, a Catholic school, filed a lawsuit, alleging that the School discriminated against him based on his race and in retaliation for engaging in protected conduct, with such discrimination resulting in the School terminating his employment.
The School moved for summary judgment based on the ministerial exception, which prohibits courts from intervening in employment disputes involving ministerial leaders. The U.S. Supreme Court expanded the ministerial exception to lay teachers with religious duties and that played a vital role in carrying out the core mission of the church.
Here, the Court concluded the ministerial exception applied to Conseant’s claims.
In particular, the School’s Faculty and Staff Handbook notes that every member of the faculty and staff is required to actively participate in effectuating the religious mission of the School. As stated in the Handbook, faculty are encouraged to attend morning mass, parent-son liturgies, family masses, class prayer services, and retreats. The Handbook also sets forth professional standards expected of the teachers, including maintaining positive attitudes towards the formation of “men and women for others,” and teaching as ministry. The Handbook notes that the School may give more favorable consideration to Roman Catholic applicants over non-Roman Catholic applicants when making hiring decisions, and notes that employees must respect Catholic values and Jesuit traditions.
The Court also considered the employment agreement that Conseant signed, which included language that the employee was committed to the goals and ideals of Jesuit education, as stated in the School’s Faculty and Staff Handbook. In the agreement, Conseant agreed to perform his job duties with professionalism, in accordance with the School’s stated philosophy and Faculty and Staff Handbook.
Finally, the Court considered Conseant’s actual work at the School. As a faculty member, Conseant was required to attend all-school masses and participate in the School’s daily prayer exercises. Notes from observations made during Conseant’s classes indicated that Conseant involved his students in prayer and prepared them for Mass during class, often having the students pray and sing Catholic hymns in French.
The Court concluded that the Ministerial Exception applied to Conseant and granted summary judgment to the School.
Conseant v. St. Louis Univ. High Sch. (E.D.Mo. July 25, 2024) 2024 U.S.Dist.LEXIS 131595.
Note:
This case shows the types of details that courts will consider when analyzing the Ministerial Exception, such as the School’s handbook, the signed employment agreement, and the employee’s actual work.
DISCRIMINATION
California
Supreme Court Finds: A Coworkers’ Single Racial Epithet May Support Harassment; An Employer’s Deficient Response To Complaints May Support Retaliation.
Twanda Bailey worked at the San Francisco District Attorney’s Office since 2001. In 2011, Bailey worked with Saras Larkin in the records room. Bailey is black. Larkin is Fijian/East Indian. On January 22, 2015, Larkin told Bailey that she saw a mouse run under Bailey’s desk. Bailey jumped out of her chair. Larkin then used the most severe racial slur in reference to Bailey.
Bailey told three coworkers what Larkin had said. Bailey was crying and upset. Bailey did not immediately complain to the Department of Human Resources (DHR) because she feared harassment and retaliation. Larkin was best friends with the personnel officer.
Bailey eventually met with a manager and the personnel officer to complain. Larkin did not admit to making the slur. The manager counseled Larkin and warned that the use of the alleged language was “unacceptable.” The manager documented the meetings with Bailey and Larkin and provided a written summary to the personnel officer. The personnel officer was the HR representative charged with reporting incidents of harassment to DHR, but she did not file a complaint as City policy required.
On March 23, Bailey asked the personnel officer for a copy of the complaint regarding the January 22 incident. The personnel officer said no complaint existed. When Bailey requested that a complaint be filed, the personnel officer refused. The personnel officer stated that Bailey should not have told her coworkers about the incident with Larkin, adding that, by doing so, Bailey could cause a hostile work environment for Larkin.
After the March 23 meeting, Bailey noticed a shift in the personnel officer’s behavior toward her, including mocking Bailey’s workers' compensation claim. Bailey testified that this
conduct was ongoing and occurred daily, although she did not believe it was racially motivated. In April, DHR received a report regarding Bailey’s allegations against Larkin, and in May, Bailey formally reported that Larkin harassed her based on race. She also claimed that the personnel officer retaliated against her after their March 23 meeting.
Bailey’s performance review in July rated her as “Met Expectations,” similar to previous years. The review noted areas for improvement in attendance and responsiveness to supervisors. Bailey disagreed with this assessment, stating that her absences and challenges stemmed from the stress caused by her interactions with Larkin and fear of being accused of creating a hostile work environment. In July, DHR informed Bailey that her complaints did not meet the threshold for harassment or retaliation, and the department would not investigate further. The personnel officer received a memorandum that admonished her to accept, document and report all EEO complaints to the DHR within five days.
In August, Bailey reported a new incident involving the personnel officer outside the office. Bailey felt increasingly intimidated by the personnel officer’s behavior. Bailey’s psychiatrist confirmed treatment for severe anxiety and depression due to workplace stress. DHR investigated Bailey’s allegations against the personnel officer but found the evidence inconclusive, though the personnel officer was disciplined for a separate incident.
In December, Bailey filed a FEHA lawsuit against the City for racial discrimination, harassment, and retaliation. The court granted the City’s motion for summary judgment. In an unpublished opinion, the Court of Appeal affirmed the trial court’s grant of summary judgment. The California Supreme Court granted Bailey’s request for review.
The Court overturned the grant of the City’s summary judgment motion, and allowed Bailey to proceed with her claims. The Court addressed two issues: 1) whether a coworker’s single use of a racial slur can be severe enough to support a harassment claim; and 2) whether an employer’s course of conduct that prevents an employee from reporting harassment is an adverse action that can support a retaliation claim.
First, as to Bailey’s harassment claim, the City argued that a coworker’s single use of a racial slur did not meet the standard of severe or pervasive harassment. Bailey disagreed, arguing that courts have found that even a single use of a racial slur can support a harassment claim. The Court held that that an isolated act of harassment may be actionable if it is sufficiently severe in light of the totality of the circumstances.
Moreover, the Court held that the fact that a coworker used the slur, and not a supervisor, could be sufficient to support a harassment claim. The Court said that a coworker’s influence or the nature of workplace relationships can still create an abusive environment, even without direct managerial authority.
The Supreme Court also considered whether the City could be held liable for the harassment Bailey experienced. If a supervisor is involved in the harassment, the employer is strictly liable. However, if the harasser is a nonsupervisory employee, the employer's liability hinges on whether it took immediate and appropriate corrective action upon knowing about the harassment. The Court remanded the case to reassess the City’s liability, taking into account the potential undermining effect of the personnel officer’s actions on the City’s remedial efforts.
Second, as to Bailey’s retaliation claim, the City had argued that no adverse action had occurred as a result of the personnel officer’s conduct or the 2015 evaluation. The Court found that a course of conduct that effectively seeks to withdraw an employee’s means of reporting and addressing racial harassment may be an adverse action that can support a claim of retaliation. The Supreme Court remanded the case for further evaluation.
Twanda Bailey v. San Francisco District Attorney’s Office, et al., 16 Cal.5th 611 (2024).
Social Media Posts Can Create A Sexually-Hostile Work Environment.
Lindsay Okonowsky is a psychologist who worked at a federal prison in Lompoc, California. She was responsible for the psychology department in the Special Housing Unit (SHU). Steven Hellman was a corrections Lieutenant who supervised SHU’s custody staff and was responsible for the safety of inmates and
staff. Hellman and Okonowsky were peers. Hellman and Okonowsky disagreed over how to manage “difficult inmates”. Hellman believed that Okonowsky made it “impossible” for he and other officers to do their jobs.
In January 2020, Hellman created an Instagram page titled “8_and_hitthe_gate.” The page did not identify its creator. In February 2020, Okonowsky became aware of the page when Instagram suggested it to her. The page contained hundreds of posts-- many of which were overtly sexist, racist, anti-Semitic, homophobic-- and transphobic memes that explicitly or impliedly referred to the Bureau of Prisons, and Lompoc staff and inmates. More than 100 Lompoc employees, including the Human Resources Manager, the Union President, and a member of the prison’s Special Investigative Services followed the page.
Posts or comments on the page referred to interactions at the SHU, and indicated that the person who ran the page worked in the SHU. Certain posts referred to Oknowsky specifically, including posts containing derogatory images resembling her likeness. Some of the posts were graphic, suggestive of rape and physical harassment, and depicted scenes of violence against women in general, but also against “the SHU psychologist” in particular.
Okonowsky forwarded images from the page to her supervisor, Chief Psychologist Carl Clegg. Okonowsky also messaged the prison’s Acting Safety Manager to express her concern that he was following the page, and “liking” posts. The Manager responded that the posts were funny, that he was “Sorry, not sorry,” and that she needed to toughen up or get a sense of humor.
The following day, on February 18, 2020, Okonowsky met with Clegg to discuss the page. Clegg suggested that Okonowsky transfer to a different facility within Lompoc. She agreed and was reassigned to Lompoc’s low security facility. Okonowsky also met with the prison’s Acting Complex Warden, James Engleman. The Warden said he would direct Special Investigative Agent Victor Gonzales to investigate the issue and refer the matter to the Bureau’s Office of Internal Affairs.
Later that day, a post appeared on the “8_and_hitthe_ gate” page threatening Okonowsky, sexually debasing her, and denigrating a well-known woman in public leadership. The post included a sexually obscene hashtag referring to someone who could not take a joke. Someone had alerted Hellman to Okonowsky’s complaint.
Okonowsky no longer felt safe at work. She decided not to go to work the next day, sent the Warden a copy of the menacing post, and asked the Warden for a phone call. The Warden never responded. Instead, he forwarded her email to Special Investigative Agent Gonzales. Gonzales called Okonowsky that day to set up an initial meeting. During their phone conversation, Gonzales told Okonowsky that he had reviewed the page and didn’t “really see anything that’s a problem” with it.
Okonowsky returned to work and as time passed, Okonowsky felt less safe at work. Hellman continued to post disturbing content, including multiple posts to intimidate Okonowsky for reporting Hellman to prison management. The Human Resources Manager, who actively followed the page, told Okonowsky that he thought the memes were “funny.”
Okonowsky felt ostracized and concerned that she could be in danger. Her productivity declined. She emailed the Warden to ask for an update on the investigation and to state she was increasingly more uncomfortable. In March 2020, Okonowsky and her supervisor, Clegg, met with Associate Warden Gutierrez to discuss Hellman’s conduct. Clegg expressed his concern for Okonowsky’s safety and suggested that the prison convene a workplace violence Threat Assessment Team, but the Warden decided that a Threat Assessment was not warranted.
Hellman continued to post sexually explicit language that suggested sexual relations with or violence against women co-workers, which many Lompoc employees continued to “like.” In March 2020, Hellman posted an image referring to Okonowsky’s likeness accompanied by a sexually vulgar and profanity-ridden diatribe against “the one staff member” for “relentlessly tell[ing] on staff.” Several Lompoc employees, including the prison’s Safety Manager, “liked” the post.
In April 2020, a new warden arrived at Lompoc who convened a six-member Threat Assessment Team to investigate Okonowsky’s complaint. Members of the Team advised Okonowsky not to look at the page anymore, but also directed Okonowsky to inform the prison’s leadership if the posts continued.
In its report, the Threat Assessment Team concluded that numerous Lompoc employees appear to be well aware that Hellman owned the page, and that Hellman’s denial that he directed any posts at Okonowsky was unconvincing. The Team concluded that Hellman’s conduct constituted impermissible “harassing conduct”
and likely violated Bureau standards of conduct. The Team recommended that management take a variety of responsive actions, including maintaining the separation of Hellman and Okonowsky, and issuing a letter to Hellman ordering him to cease posting.
On April 16, 2020, the prison issued Hellman a letter stating that his posts appeared to have violated the Bureau’s Anti-Harassment Policy. The letter ordered Hellman to cease such conduct immediately and stated that any failure to comply would not be tolerated and could result in removal. But, for at least three weeks after receiving the letter, Hellman continued to make near daily posts, including posts mocking the prison psychology department and the Threat Assessment Team, and posts suggesting sexual relations and behavior with female coworkers.
Okonowsky alerted prison management to Hellman’s continued conduct in a letter on April 27, 2020. The prison never responded, and Hellman’s conduct continued. He made an additional three posts mocking the Threat Assessment Team. And he posted sexually overt posts targeting female co-workers. On January 24, 2021, Okonowsky transferred to a BOP facility in Texas.
Okonowsky filed suit in 2021, asserting a single claim under Title VII of the Civil Rights Act of 1964 for discrimination on the basis of sex. The district court granted the Government’s Motion for Summary Judgment, but it limited its consideration of the evidence to just five posts that, in the court’s view targeted Okonowsky specifically because of her sex. The district court concluded that those posts “occurred entirely outside of the workplace” because they: were made on a staff member’s personal Instagram page; and were never sent to Okonowsky, displayed in the workplace, shown to Okonowsky in the workplace, or discussed with Okonowsky in the workplace without her consent. Okonowsky appealed.
The Ninth Circuit reversed and allowed Okonowsky to proceed with her case. The Ninth Circuit remanded for the district court to look to: 1) whether Okonowsky was subjected to verbal or physical conduct of a sexual nature; 2) whether the conduct was unwelcome; and 3) whether the conduct was “sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.” As to the third factor, the Court held that conduct that occurs outside of the workplace must be considered. The Court rejected the notion that only conduct that occurred inside the
physical workplace can be actionable, especially in light of the ubiquity of social media and its use to harass and bully both inside and outside of the workplace.
Okonowsky produced ample evidence that Hellman’s conduct made it more difficult for her to do her job. The Court found that the Bureau’s lackluster response to the complaint “reinforced rather than remediated” Hellman’s sexually harassing conduct, and cemented the discriminatory effect of his behavior within the workplace. Finally, the Court found that the Bureau’s remedial efforts were wholly inadequate and that a reasonable juror could conclude that the prison failed to take prompt and effective remedial action to address the hostile work environment.
Train the Trainer Program
Become a Certified Harassment Prevention Trainer for your Organization!
LCW Train the Trainer sessions will provide you with the necessary training tools to conduct the mandatory AB 1825, SB 1343, AB 2053, and AB 1661 training at your organization.
California Law requires employers to provide harassment prevention training to all employees. Every two years, supervisors must participate in a 2-hour course, and non-supervisors must participate in a 1-hour course.
QUICK FACTS:
Trainers will become certified to train both supervisors and nonsupervisors at/for their organization.
Attendees receive updated training materials for 2 years.
Pricing: $2,000 per person. ($1,800 for consortium members).
To learn more about our program, please visit our website below or contact Anna Sanzone-Ortiz 310.981.2051 or asanzone-ortiz@lcwlegal.com
Lindsay Okonowsky v. Merrick B. Garland, 109 F.4th 1166 (2024).
BUSINESS
Employers Might Not Be Able To Sever Unconscionable Provisions In An Arbitration Agreement.
The Ninth Circuit denied an employer’s motion to compel arbitration of a former employee’s age disability discrimination lawsuit because the arbitration agreement contained unconscionable and one-sided terms.
When Jose Ronderos applied for a line-haul manager job with USF Reddaway, Inc. (Reddaway), Reddaway required Mr. Ronderos to sign a form arbitration agreement on a take-it-or-leave-it basis. The agreement included several one-sided requirements in favor or Reddaway, including:
• Notice: Mr. Ronderos (but not Reddaway) was required to provide notice of a claim by submitting a particular form in a particular manner;
• One-Year Statute of Limitations: Mr. Ronderos (but not Reddaway) agreed to waive claims if he did not provide notice of the claim within one year after his “claims arose” — not when Mr. Ronderos knew or reasonably should have known about his claims; and
• Injunctive Relief Carve Out: The agreement mandated arbitration for all employment claims, but included a carve out for Reddaway’s claims against Mr. Ronderos for injunctive relief.
Reddaway hired Mr. Ronderos for the position. Reddaway terminated Mr. Ronderos two and a half years later after he took a medical leave of absence. Mr. Ronderos sued Reddaway for age and disability discrimination, retaliation, and failure to accommodate his disability under California’s Fair Employment and Housing Act (FEHA). Reddaway filed a motion to compel the matter to arbitration. The trial court concluded that the arbitration agreement was unenforceable as it included procedurally
&unconscionable to a moderate degree, contained multiple substantively unconscionable provisions, and lacked mutuality to a substantial degree. Notably, the trial court declined to sever the unconscionable provisions and enforce the remainder of the agreement.
Reddaway appealed, and the Ninth Circuit Court of Appeals agreed with the trial court’s holding.
First, the Court of Appeals held that the arbitration agreement contained a “moderate degree” of procedural unconscionability because Reddaway forced Mr. Ronderos to sign the agreement under significant oppression and uneven power dynamics.
Second, the Court of Appeals agreed that the one-sided notice, statute of limitations, and preliminary injunction carve out were “substantively unconscionable,” and severely restricted Mr. Ronderos' ability to vindicate his employment rights without providing a business-related justification. The Court of Appeals found:
• The one-year statute of limitations shortened the amount of time typically allotted to bring employment-related claims, including claims under FEHA;
• Because the statute of limitations began when the claim arose, the arbitration agreement deprived him of the “discovery rule,” which delays accrual of a claim until the plaintiff actually discovers or reasonable should have known about the claim;
• Reddaway failed to provide any business-related justification for requiring that only Mr. Ronderos must comply with notice requirements and the one-year statute of limitations; and
• The preliminary injunction carve-out preserved only Reddaway’s ability to seek preliminary injunctive relief in court.
The Court of Appeals also upheld the trial court’s decision to not sever the unconscionable portions of the agreement and enforce the remainder of the agreement.
facilities
Reddaway claimed the Court should sever the unconscionable portions of the agreement because they were “collateral” to the main purpose of the agreement and because the agreement contained a severability clause.
The Court of Appeals disagreed, asserting that the multiple unconscionable portions demonstrated that the agreement was “permeated” with unlawful purpose, and the presence of a severability clause is only one factor in analysis of whether the interests of justice would be furthered by severance.
Arbitration agreements typically include a severability clause that states if any provisions of the agreement are determined to be unenforceable, the remainder of the agreement remains in full force and effect. However, this matter demonstrates that even with a severability clause, courts have the discretion to invalidate the agreement entirely.
When preparing an arbitration agreement for employees or prospective employees, employers should avoid including provisions that are objectively one-sided in the employers’ favor without sufficient business justification for those provisions. Employers should also ensure that those provisions do not have the effect of waiving certain unwaivable rights under FEHA and other laws.
Ronderos v. USF Reddaway Inc. (9th Cir. Aug. 22, 2024, No. 21-55685) 2024 U.S. App. LEXIS 21226.
QUARTERLY B&F TIP!
Green Ribbon Schools Award Program.
The U.S Department of Education (ED) created the Green Ribbon Schools Award in 2012 to highlight and honor schools, school districts, and institutes of higher education for their achievements in the areas of environmental impacts, improving health and wellness, and overall resource efficiency and sustainability. Green Ribbon Schools have showcased their ability to not only reduce environmental costs, but also improve student engagement, academic achievement, and workforce preparedness.
To become a Green Ribbon School, schools must complete an application process. ED reviews an applicant’s demonstrated progress in reaching the goals of three separate pillars:
• Pillar 1: Reduce environmental impacts and costs;
• Pillar 2: Improve the health and wellness of schools, students, and staff; and
• Pillar 3: Provide effective environmental education, which teaches many disciplines, and is especially good at effectively incorporating STEM (Science, Technology, Engineering and Mathematics), civic skills, and green career pathways.
Schools can apply to the California Department of Education (CDE) to be nominated as a Green Ribbon School. The
CDE can nominate up to five schools or districts and they will work closely with each school to submit their nominee presentation forms and package for ED’s consideration.
The Green Ribbon Schools Application Timeline is:
• Complete the 2024-2025 Application interest survey, and submit the online application by November 4, 2024;
• CDE must submit its nominations to ED by February 14, 2025;
• ED usually announces national honorees on Earth Day, April 22, 2025.
CDE recommends that interested schools do the following for their applications:
• Review prior application from awardees for inspiration;
• Focus on: (1) the number of students impacted, (2) longevity of achievement, and (3) substantive evidence demonstrating vivid descriptions to paint the picture for reviewers;
• There are different reviewers for each pillar section of the application. Applicants should restate any important achievements or information specific to each pillar; and
• Complete the entire application. Schools can still receive partial credit for any developing achievements.
Awardees are nationally recognized as some of America’s most successful educational institutions and are featured for their hard work and devotion to becoming a “green school.” The award allows for an increase in networks with other awardees, opportunities for collaboration and partnerships, and can help inspire environmentally safe and sustainability practices in students and communities.
BENEFITScorner
Terminated Employee Was Not Protected by the FMLA for Time Off to Travel and Wait for the Birth of His Child.
Tristan Tanner worked for a medical technology company called Stryker and was responsible for delivering surgical equipment to hospitals. In June 2021, Tanner requested leave for the birth of his child. Tanner and his former girlfriend were expecting a baby in early August 2021 and his former girlfriend had moved from Tampa (where Tanner lived) to Connecticut. Tanner requested leave under the Family and Medical Leave Act (FMLA) beginning July 26, 2021 so that he could travel to Connecticut and be present for the birth of his child.
Stryker told Tanner multiple times that his FMLA leave would not begin until his child was born. The company advised him that if he was going to take time off from work prior to the child’s birth, he would need to use sick leave or vacation.
Tanner only had four days of Paid Time Off (PTO) available but he had a handful of sick leave days. He decided to take five days off work from Friday, July 30 to Friday, August 6 to pack and plan for his trip to Connecticut during which he used all four of his PTO days and one sick leave day. He then traveled to Connecticut on Sunday, August 8 where he waited for the birth of his baby. He spent his days staying at his hotel and looking around neighborhoods to see if he could see himself relocating to Connecticut. His baby’s due date came and went. Tanner ran out of PTO and sick leave on Friday, August 13.
The baby was born four days later on Thursday, August 19. For those four workdays, Tanner did
not have any accrued leave to cover his time off and Stryker docked him attendance points for his absences under its attendance policy.
One day after the baby’s birth on August 20, Stryker’s Human Resources staff called Tanner and first congratulated him on the birth of his child. The Human Resources staff member then told Tanner that effective that day, he was no longer employed with Stryker due to the unexcused absences he took before the birth of his child.
Tanner filed a lawsuit claiming interference with his FMLA rights and FMLA retaliation. The trial court determined there was no interference with Tanner’s FMLA rights because Tanner was not entitled to take FMLA leave for his absences before the birth of his child. Upon appeal, the Eleventh Circuit agreed with the trial court. The Eleventh Circuit said the narrow question was: “Does the FMLA provide an expectant parent who is neither pregnant nor married to a pregnant spouse with pre-birth leave so that he may await the child birth away from work?” It determined the answer was “no.” The Eleventh Circuit recognized that employees may use job-protected FMLA leave before the birth of their child if they need to care for a pregnant spouse who is incapacitated or needs prenatal care. However, Tanner was not married to his former girlfriend, who was pregnant with his child.
The trial court determined that there was no FMLA retaliation since Tanner was not entitled to take and did not take FMLA leave when Stryker made the decision to terminate his employment. The Eleventh Circuit agreed.
Tanner v. Stryker Corp. of Mich., 104 F.4th 1278 (11th Cir. 2024).
Note:
In California, the California Family Rights Act (CFRA) allows employees to take job-protected CFRA leave to care for family members and a designated person with a serious health condition. The Eleventh Circuit focused on the fact that Tanner was not married to the person who was carrying his child. Therefore, he was not eligible to take pre-birth FMLA leave to care for his pregnant former girlfriend since she was not his spouse. Since the CFRA has expanded the use of job-protected CFRA leave to care for a designated person, then an employee who is eligible for CFRA leave and who is in Tanner’s situation could use CFRA before the birth of their child to care for a former partner if they designate the former partner as their “designated person.” However, note that Tanner did not claim he took time off work to care for his former girlfriend due to her serious health condition. Instead, he took time off to prepare for his trip, to spend time in his hotel, and to explore neighborhoods.
Benefits Compliance Question.
Question: Do summer day camp expenses for dependents count towards an employee’s Child and Dependent Care tax credit?
Answer: Yes, summer day camps are eligible expenses for the Child and Dependent Care tax credit. The purpose of the credit is to allow working parents to have childcare for their children who are under the age of 13 during the summer. The costs of the summer day camp are eligible for the credit. The amount of the credit differs from employee to employee based on income and a percentage of expenses incurred for the care of the child to enable the taxpayer to work, look for work, or attend school. While summer day camps are eligible for the credit, overnight summer camps are not. The IRS’s reasoning is that sending a child to an overnight camp is not considered a work-related expense.
did you know...?
• The California Department of Education released private school enrollment data for the 2023-2024 school year derived from the annual Private School Affidavits (PSA). Overall, enrollment seems to be down 2.89%, though 43 fewer PSAs were filed this year, due to a mixture of school closures and schools forgetting to file their PSAs. The decline in enrollment exists across each grade in K-12, with the largest declines in Kindergarten and 9th grade. The publicly available enrollment reports can be found here
• Earlier this month, the Stop Campus Hazing Act, a bill that requires colleges and universities to report hazing incidents on campus, cleared the House Education and Workforce Committee. Now, the bill will make its way to the House floor for a vote. This is the first time a bill aimed at preventing hazing in higher education has passed out of committee. The bill mandates that institutions include hazing incidents in their annual security reports. The bill also requires institutions to implement hazing-prevention programming and to publish their hazing policies online, including information about which student organizations have a history of hazing incidents. LCW will monitor this bill as it works its way through Congress.
• U.S. Citizen and Immigration Services updated the Form I-9, Employment Eligibility Verification to extend the expiration date to May 31, 2027. Schools should use the Form I-9 with the August 1, 2023 edition date, which may have an expiration date of either July 31, 2026 or May 31, 2026. Starting July 31, 2026, employers must use the Form I-9 version with the May 31, 2027 expiration date. More information can be found here.
• A lawsuit was recently filed by the Youth America’s Foundation, a national conservative student group, alleging that the Ronald E. McNair Post-Baccalaureate Achievement Program is unconstitutional. The McNair program is a federal scholarship program that is designed to help first-generation and low-income students, as well as those from underrepresented groups, including Black or Hispanic students, attain a Ph.D. The lawsuit argues that the eligibility criteria are unconstitutional based on the Supreme Court’s decision to strike down the use of race-based policies in admissions decisions.
cases we are watching
LCW will monitor these cases for developments.
• Cornelius B. Prior, Jr., an alumnus of and donor to the College of Holy Cross is suing the institution in an effort to recoup $21 million, alleging that the University delayed construction on a performing arts center and was not forthcoming in how it used his funds. Prior’s lawsuit alleges that he donated $18 million in 2012 on the condition that Holy Cross develop a performing arts center on campus “without delay.” He then donated another $3 million for a separate project. At the time of the donation, Prior was a Holy Cross trustee. The lawsuit states that the University demanded another $7 million from Prior to complete the facility, which he refused to give. Prior alleged that Holy Cross canceled a concert in his honor in an effort to humiliate him when the performing arts center opened in 2022. Holy Cross stated that the matter is governed by a written pledge agreement that requires resolution through mediation or arbitration.
• A Catholic school hired a librarian for the 2021-2022 school year on a one-year contract. In the spring of 2022, the librarian asked the School’s principal if it had an interest in her returning for a second school year, and the principal said she was “of course” welcome back for another year. The librarian later revealed that she had come out as transgender and was starting the process of transitioning. The principal said the Archdiocese would not support the transition and it would not be possible to continue working for the School. The librarian alleges that she is a member of the Jewish faith and has not been asked, nor is she qualified, to perform any tasks related to the Catholic Church. The librarian has sued the School, alleging violations of the Minnesota Human Rights Act.
• Last year, Harvard University sued Zurich, its excess insurer, for denying coverage to its policy’s $15 million in coverage for the Students for Fair Admission lawsuit because Harvard provided late notice of the underlying lawsuit. The First Circuit ruled that the insurance policies required 90 days’ notice, and Harvard did not provide notice until nearly three years later. LCW previously covered this decision. Now, Harvard has brought a breach of contract claims against its insurance broker March USA, Inc., blaming Marsh for the belated notification to Zurich. This Court ruled that the breach of contract claims were also too late.
The statute of limitations started tolling in January 2016, 90 days after the end of Harvard’s policy with Zurich. Even including a 228-day pandemic-related tolling period, the six-year statute of limitations ran out September 15, 2022, and Harvard’s lawsuit against Marsh was not filed until October 2023.
• Jeffrey Ragan, a math teacher and wrestling coach at Woodward Academy, a private school in Georgia, recently filed a lawsuit against the school. Ragan said that before he joined the school in 2014, he told school officials that he had received a kidney transplant and would need accommodations for periodic medical care. In mid-January 2023, Ragan was hospitalized for a kidney flare-up. In February 2023, he was told that the school would not renew his contract when it expired in July that year. Ragan said the principal told him he needed to resign for health reasons, otherwise he would be fired. When asked why his contract would not be renewed, a human resources director told him, “We don’t need a reason to not renew your contract.” Ragan said he was out on FMLA when the forced resignation occurred, since the doctors told him he would need more than week to recover after spending 11 days in the hospital.
lcw best timeline
OCTOBER 1ST THROUGH 15TH
File Verification of Private School Instruction.
• Every person, firm, association, partnership, or corporation offering or conducting private school instruction on the elementary or high school level shall between the first and 15th day of October of each year, file with the Superintendent of Public Instruction an affidavit or statement, under penalty of perjury, by the owner or other head setting forth the following information for the current year:
All names, whether real or fictitious, of the person, firm, association, partnership, or corporation under which it has done and is doing business.
The address, including city and street, of every place of doing business of the person, firm, association, partnership, or corporation within the State of California.
The address, including city and street, of the location of the records of the person, firm, association, partnership, or corporation, and the name and address, including city and street, of the custodian of such records.
The names and addresses, including city and street, of the directors, if any, and principal officers of the person, firm, association, partnership, or corporation.
The school enrollment, by grades, number of
teachers, coeducational or enrollment limited to boys or girls and boarding facilities.
That the following records are maintained at the address stated, and are true and accurate:
The attendance of the pupils in a register that indicates clearly every absence from school for a half day or more during each day that school is maintained during the year. (Education Code Section 48222)
The courses of study offered by the institution.
The names and addresses, including city and street, of its faculty, together with a record of the educational qualifications of each.
• Criminal record summary information of applicants that have been obtained pursuant to Section 44237.
NOVEMBER THROUGH JANUARY
Issue Performance Evaluations.
We recommend that performance evaluations be conducted on at least an annual basis, and that they be completed before the decision to continue employment for the following school year is made. Schools that do not conduct regular performance reviews have difficulty and often incur legal liability terminating problem employees - especially when there is a lack of notice regarding problems.
practices
Each month, LCW presents a monthly timeline of best practices for private and independent schools. The timeline runs from the fall semester through the end of summer break. LCW encourages schools to use the timeline as a guideline throughout the school year.
• Consider using Performance Improvement Plans but remember it is important to do the necessary follow up and follow through on any support the School has agreed to provide in the Performance Improvement Plan.
Compensation Committee Review of Compensation before issuing employee contracts.
The Board is obligated to ensure fair and reasonable compensation of the Head of School and others. The Board should appoint a compensation committee that will be tasked with providing for independent review and approval of compensation. The committee must be composed of individuals without a conflict of interest.
Review employee health and other benefit packages, and determine whether any changes in benefit plans are needed.
If lease ends at the end of the school year, review lease terms in order to negotiate new terms or have adequate time to locate new space for upcoming school year.
Review tuition rates and fees relative to economic and demographic data for the School’s target market to determine whether to change the rates.
Review student financial aid policies.
Review, revise, and update enrollment/tuition agreements based on changes to the law and best practice recommendations.
File all tax forms in a timely manner:
Forms 990, 990EZ
• Form 990:
Tax-exempt organizations must file a Form 990 if the annual gross receipts are more than $200,000, or the total assets are more than $500,000.
• Form 990-EZ:
Tax-exempt organizations whose annual gross receipts are less than $200,000, and total assets are less than $500,000 can file either form 990 or 990-EZ.
• A School below college level affiliated with a church or operated by a religious order is exempt from filing Form 990 series forms. (See IRS Regulations section 1.6033-2(g)(1)(vii)).
• The 990 series forms are due every year by the 15th day of the 5th month after the close of your tax year. For example, if your tax year ended on December 31, the e-Postcard is due May 15 of the following year. If the due date falls on a Saturday, Sunday, or legal holiday, the due date is the next business day.
• The School should make its IRS form 990 available in the business office for inspection.
Other required Tax Forms common to business who have employees include Forms 940, 941, 1099, W-2, 5500.
Annual review of finances (if fiscal year ended January 1st).
The School’s financial results should be reviewed annually by person(s) independent of the School’s financial processes (including initiating and recording transactions and physical custody of School assets). For schools not required to have an audit, this can be accomplished by a trustee with the requisite financial skills to conduct such a review.
The School should have within its financial statements a letter from the School’s independent accountants outlining the audit work performed and a summary of results.
Schools should consider following the California Nonprofit Integrity Act when conducting audits, which include formation of an audit committee:
• Although the Act expressly exempts educational institutions from the requirement of having an audit committee, inclusion of such a committee reflects a “best practice” that is consistent with the legal trend toward such compliance. The audit committee is responsible for recommending the retention and termination of an independent auditor and may negotiate the independent auditor’s compensation. If an organization chooses to utilize an audit committee, the committee, which must be appointed by the Board, should not include any members of the staff, including the president or chief executive officer and the treasurer or chief financial officer. If the corporation has a finance committee, it must be separate from the audit committee. Members of the finance committee may serve on the audit committee; however, the chairperson of the audit committee may not be a member of the finance committee and members of the finance committee shall constitute less than one-half of the membership of the audit committee. It is recommended that these restrictions on makeup of the Audit Committee be expressly written into the Bylaws.
Consortium Call Of The Month
Members of Liebert Cassidy Whitmore’s consortiums are able to speak directly to an LCW attorney free of charge to answer direct questions not requiring in-depth research, document review, written opinions or ongoing legal matters. Consortium calls run the full gamut of topics, from leaves of absence to employment applications, student concerns to disability accommodations, construction and facilities issues and more. Each month, we will feature a Consortium Call of the Month in our newsletter, describing an interesting call and how the issue was resolved. All identifiable details will be changed or omitted.
Question:
A Human Resources Director at a private school contacted LCW saying they stumbled upon a law called AB 500, which requires schools to post certain conduct policies on public-facing websites. The Human Resources Director inquired whether the law was still valid and if the School needed to comply.
Answer:
The LCW attorney advised the School that yes, Education Code Section 44050 (which is the codified version of AB 500) is still good law and requires schools that maintain a section on employee interactions with pupils in its employee code of conduct to: 1) provide a written copy of the section to parents at the beginning of each school year and 2) post the section or provide a link to the section on the school’s website.
Per these requirements, the LCW attorney advised the School that they needed to provide a written copy of its policies addressing employee interactions with students (referred to as an AB 500 disclosure) to parents at the beginning of each school year and post those policies on its website. The policies must be located on a part of the website that is accessible to the public without a password. Therefore, the School would not be able to put it on a place on the website where only parents can access it, such as a parent portal.
Education Code Section 44050 does not create an obligation for schools to create policies on employee interactions with pupils in its employee code of conduct. However, LCW generally recommends that Schools do have policies in place addressing employee interactions with students, and such policies include those related to electronic communications, harassment/discrimination/retaliation, and professional boundaries.
LCW is happy to assist schools in preparing the AB 500 disclosure. This would include a review of the employee handbook in order to determine which policies, or which portions of policies should be included.
Liebert Cassidy Whitmore