Celebrate! 25 Years of NBOA: The Legal Landscape

Over the past 25 years, human resources issues at independent schools have grown increasingly complex. NBOA Legal Counsel Grace H. Lee charts several areas of change.

May 25, 2023  |  By Grace H. Lee, Venable LLP

From the March/April 2023 Net Assets Magazine.

Venable LLP

Over the past 25 years, human resources issues at independent schools have grown increasingly complex. Once considered a job that could be combined with the business officer’s role, the responsibilities and risks involved in human resources compliance has led an increasing number of independent schools to hire one or more dedicated human resources professionals to meet the growing demands. Not only are there simply more laws and regulations on the federal and state level, standards of best practice have been driven higher by larger societal changes, including issues like the #MeToo movement, Black Lives Matter, social media with its hashtags and cancel culture, alumni abuse cases, the gig economy, and, of course, the pandemic. The days of contemplating proper classification of an employee as exempt or not exempt seem almost straightforward and nostalgic, as school leaders and human resources professionals face a broader, more complicated landscape of issues than ever before.

Social Media

The ubiquitous use of social media has had a broad impact on independent schools. Faced with increased claims of online harassment, cyber bullying and discrimination, schools established policies about employee conduct and interactions online, including through personal social media accounts. Employee interactions with students through social media also became the subject of policies and training about appropriate boundaries, connecting with students and parents through personal social media accounts, and the ways in which employees may represent the school in their social media presence and create reputational harm. Schools were also careful to curb the use of social media to divulge confidential information, without limiting employee protections under the Sarbanes–Oxley Act, which was passed in 2002 and provides employees with whistleblower protections. In 2012, the National Labor Relations Board (NLRB) issued guidance that social media use can be a form of protected concerted activity for employees, causing schools to revisit social media policies and enforcement mechanisms.

Changing Laws

On a federal and state level, there are broader protections against discrimination in the workplace than there were years ago. Many state laws started including sexual orientation and gender identity in their anti-discrimination laws, and many states require sexual harassment training to all employees. In June 2020, the U.S. Supreme Court extended Title VII protections to employees based on sexual orientation and gender identity, aligning with EEOC guidance and providing clarity on the federal level. Independent schools have drafted or updated policies to not only comply with legal standards but also promote their diversity, equity, inclusion and belonging initiatives, including policies regarding pronoun preferences, name changes, dress codes and bathrooms. In addition, increasingly states have passed laws that protect hair styles, provide pay transparency in job postings, legalize marijuana, and provide paid sick and family leave, and “pass the trash laws,” among other things. These laws have created a web of compliance issues for human resources professionals at independent schools.

Reverberations in Reputation

Human resources issues have also had more impact on the school’s reputation, admissions, culture, brand and bottom line. Independent schools have been scrutinized and held to a much higher standard than ever before. With increased alumni abuse cases, independent schools were called to tighten their background check and hiring practices, respond to allegations with rigor and transparency, and conduct training for employees on appropriate boundaries and reporting of concerns.

Pandemic Implications

COVID placed the final layer of strain on the human resources professional. The need to develop remote work policies, leave policies to account for quarantine periods, and religious and medical vaccination exemption requests were some of the many new responsibilities that came out of this time. While many schools look to be back to normal, employees are still dealing with the aftermath of COVID, including mental health struggles, resignations in large numbers, and a shrinking applicant pool. Employees are demanding more in terms of feedback, transparency, wellness initiatives and other benefits, while schools are facing recruitment, retention and hiring challenges. Human resources professionals have demonstrated resilience and flexibility like many of their school counterparts and will, undoubtedly, continue to grow and develop in support of independent schools.


Grace Lee

Grace H. Lee

Partner | NBOA Legal Counsel

Venable LLP

Washington, DC

Grace H. Lee is a partner with Venable, LLP in the Labor and Employment Practice. Lee is an independent school law attorney whose practice focuses on employment law, risk management and other compliance and regulatory matters that impact independent schools and nonprofit organizations. She has significant experience formulating and implementing policies and procedures that assist her clients in complying with applicable state and federal laws, and provides them with proactive and preventive strategies.
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years is the target ceiling for a school plant's financial "age."

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