Complex Equations: Three Big HR Issues for the Year Ahead

Accommodating transgender staff and students, staffing on school-related overnights and travel, and employer joint liability in the context of independent contractors.

Jan 15, 2016

From the January/February 2016 Net Assets Magazine.

Article by Leah Thayer

Remember when human resources meant reviewing resumes, processing payroll and planning staff events? Today at independent schools—many of which still do not have dedicated HR staff—that list has expanded to include a bewildering array of complex issues involving regulations, compliance and evolving societal norms. In the pages that follow, we address three such HR issues that are certain to demand time, attention and resources on independent school campuses this year.

Transgender on Campus

It’s almost certain that 2016 will be another unprecedented year for the emergence of transgender staff and students on independent school campuses. Many schools will be unprepared—not necessarily because they don’t want to be supportive of these members of their communities, but because they will not have proactively reviewed the factors influencing a wide array of everyday policies and procedures impacting them, from employment applications to parent communications.

Here’s a quick overview of the issues, and the discussions schools should have now.

Defining transgender: According to the Gay and Lesbian Alliance against Defamation (GLAAD), transgender (adj.) is an “umbrella term for people whose gender identity and/or gender expression differs from what is typically associated with the sex they were assigned at birth.” Within that umbrella, individuals may describe themselves using a number of terms including trans man or woman (or boy or girl), gender-fluid and gender nonconforming. Some transgender people also prefer to use a gender-neutral pronoun to refer to themselves, such as “they” or “ze.”

The legal terrain with regard to transgender individuals appears to be shifting in their favor, particularly in the workplace. As of early December, 19 states plus Washington, D.C., had employment non-discrimination laws covering sexual orientation and gender identity, according to the Transgender Law Center. At the federal level, while transgender status per se is not a protected class, it is protected under the broader category of sex discrimination under Title VII of the 1964 Civil Rights Act, according to recent rulings from federal courts and the Equal Opportunity Employment Commission. Essentially, it is illegal for organizations with 15 or more employees to discriminate against employees or job applicants because they are transgender.

What about religious schools? Technically, they can be exempted from non-discrimination protections. That doesn’t mean they should. “Look, this is a culture issue,” says Caryn Pass, a partner with the Venable law firm who has many independent school clients with students in particular who have changed, are changing or are questioning their gender identities. “It’s the new frontier, and every school really has to navigate through it,” as guided by its mission and belief system. Undertaking that journey makes sense for many reasons, she says, “not the least of which is making people feel comfortable.”

Those considerations only start with access to bathrooms and locker rooms; over the short term, one solution may be all-gender bathrooms for everyone’s use, Pass suggests. Trickier than defining school policies and providing a safe environment may be communicating with and educating the broader school community. “Think strategically about how you’re going to deliver that message” in a unified voice, Pass says. If you have a student or staff member who is transgender, talk to them. “Ask what they would like to say, what makes them most comfortable, do they have a pronoun preference.” Be in front of the message so that students—who more than likely will be unfazed by the news of a transgender friend or teacher—aren’t the first to tell their parents. Even in progressive communities, pushback from parents is likely, Pass says. Ultimately, the head of school may need to speak with especially recalcitrant parents, if only to say, “This is our culture, this is how we operate, and if you’re not comfortable, perhaps this isn’t the right community for you.”

In the matter of HR compliance, don’t overlook important procedural matters either. Consider names. Beyond using the chosen names of transgender people, schools should think through the effect of name changes in matters such as employment applications, background and reference checks, transcripts and even how income is reported for taxes and Social Security. On employment applications, this might be as simple as inviting candidates to note whether they’ve been identified by another name. Of course, when you think about it, “This also applies to people changing their name when they marry,” Pass observes.

Staff on School-Related Trips

Whether it’s an overnight for a lacrosse tournament or 10 days in Italy with the European History class, what could possibly go wrong if a teacher or other staff member is there to keep an eye on the students?

Let’s just say that the risks don’t end with students sneaking out of the hotel at night.

As most independent school business officers are aware, the Department of Labor is likely to change Fair Labor Standards Act (FLSA) regulations so as to narrow the availability of exempt status. The final rule, if approved, will change millions of employees from exempt to non-exempt, making them eligible for overtime of at least one-and-a-half times their regular rate after 40 hours in a workweek. To be exempt, full-time employees will have to make $970 per week ($50,440 annually), up from the current threshold of $455 per week ($23,660 annually). The change will not affect teachers, but many other independent school employees will need to be reclassified as non-exempt, according to an NBOA member survey last summer. If the final rule is issued later this year, as expected, the changes will likely go into effect sometime in 2017. (See Deeper Dive for links to details.)

Among the potential consequences for independent schools: more overtime expenses for the longer hours newly non-exempt employees put in on school-related trips. Alternatively, schools could adjust the working hours and/or pay of non-exempt employees. In either case, expect greater record-keeping and more careful tracking of employees’ hours.

The silver lining, according to NBOA’s Grace Lee and other attorneys tracking the proposal, is time. In short, use 2016 to prepare for the expected overtime changes.

First, know what time is considered “compensable” beyond the regular workweek of non-exempt staff. For example, travel time is compensable only if it happens during an employee’s regular working hours, whether it’s a “regular work day” or a day when he or she doesn’t usually work.

Second, take the time to carefully review all employee classifications to be sure you are compliant with current regulations, then identify which employees are likely to be affected by the proposed changes. Among other changes, you might need to prescribe “duty-free” time for traveling staff, and in any case you should establish clear policies regarding the work they may perform on travel and how it will be tracked.

On the matter of the more obvious risks associated with students and staff traveling together, the key is whether your school has institutionalized travel-related procedures. Moreover, does it effectively and consistently communicate and enforce these procedures? They should cover everything from chaperones (how screened, how many, how to supervise, what they may and may not do) to mandated reporting.

Unfortunately, many schools hastily assemble policies or use them very inconsistently, says Angelique Dale, the account manager of schools for Praesidium, which helps schools and other organizations set up systems to reduce risks including sexual abuse. It’s wonderful if the band director always dots his i’s and crosses his t’s for the marching band’s annual trip to New York City, but does the athletic director take those steps as well? “We always tell our clients you’re only as strong as your weakest program,” she says.

A common problem Dale sees is when just one adult is designated to chaperone a school trip. That leaves students with no other adults to speak to if something goes wrong. By the time a student returns home and reports an incident, local law enforcement may have no jurisdiction and police with jurisdiction may have no access to the accused. Plus, “even if it’s not a sexual abuse issue, imagine if a student falls and has to go to the hospital,” Dale says. “Who’s with the other four kids?”

Independent Contractors and Joint Liability

Take a close look at your independent contractor relationships in 2016, for two big reasons.

First, schools may be at much greater risk of being considered a “joint employer” of individuals who work on their campus but are directly employed by another company. Consider the food service provider whose staff cook and serve in your cafeteria. If a line cook is injured in a kitchen fire, for example—or files a wage-discrimination claim, or is alleged to have harmed a student—your school could share liability with the food service company. There are several examples of increased enforcement in this area, including a National Labor Relations Board (NLRB) decision last summer determining that companies can be held responsible when their contractors commit labor violations.

Take a really close look at your independent contractor relationships.

Second, getting back to the FLSA and worker classifications, schools may find that workers they thought were independent contractors actually can be considered employees, and are thus eligible for workplace protections and benefits. This is true especially in light of guidance that the Department of Labor issued last summer, which further broadens the definition of employment, particularly in matters where misclassification impacts low-wage workers.

What should schools do? Own it. Err on the side of caution and act as though your independent contractor staff actually work for you, advises attorney Kara Maciel, chair of the labor and employment practice at Conn Maciel Carey. These developments have “opened up a Pandora’s Box of issues, and schools that have felt they’ve been insulated from contractor liability really aren’t any more.”

Specifically, Maciel recommends using due diligence in reviewing every function your school outsources and every contract governing those relationships. Do your vendors have properly completed I-9s for all employees, do they perform background checks, do they have solid human resources protections in place? Consider asking to see those documents, or even overseeing separate background checks. Whereas large national providers are more likely to have well-documented internal controls, she adds, schools might want to exert more control over smaller local vendors.

Also, while the greatest independent contractor scrutiny may fall on functions such as food service, building maintenance and landscaping, don’t overlook specialists who work directly with students. Take the therapist or teacher who comes in only one or two times a week. If the school exercises a certain amount of control over his or her work—such as providing the curriculum or specifying where, when and how the work is to be done—that could be considered an employment relationship.

Leah Thayer is NBOA’s communications director and the editor of Net Assets.



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