Education Update, No.4, October 2012: Has Your School Had a Check Up Recently?

by Fisher Phillips

[author: Suzanne Bogdan]

Now that school has started, it is time to ensure that your house is in order for the school year. Each year we highlight those area in which we see trends developing or issues with which schools consistently have challenges. It is far better to address these issues preventively rather than waiting for a claim or problem to occur.

Child Abuse Reporting. In the wake of Penn State, many states closely examined their reporting statutes and enhanced penalties for failure to report, expanded the persons required to report, and changed procedures for reporting. Some states, such as Georgia, now require volunteers of schools to report concerns with abuse. Several other states have further clarified that child-on-child abuse is reportable. It is important that you know your state's requirements and that you train everyone on your staff regarding their reporting obligations.

Train Your Staff. At least every other year, the school should train all staff on three fundamental issues (a) appropriate adult/student boundaries; (b) avoiding and reporting harassment; and (c) student safety and supervision. Ideally, the best time for this training is during the staff back to school week each year. It ensures that you have everyone's attention while they are fresh and ready for the year and you can easily document that you performed this very important training if you need to rely on the information later.

Get Your Wage Hour House in Order. Wage Hour claims continue to grow for all types of employers, including schools. Although many of a school's employees fall into the professional exemption (such as teachers whose primary duty is teaching, instructing, or imparting of knowledge), many other school employees may be non-exempt, requiring them to maintain a daily and weekly record of their hours worked, be paid minimum wage, and be paid overtime for all hours over 40 in a workweek.

You should be particularly concerned about those employees who hold more than one job or who perform extra duties for extra pay (like stipends for coaching or after care duties). Our experience with schools also has shown that many schools have a large number of employees misclassified as "exempt" due either to the employee being paid on a salary basis or because of the employee's title. These types of compliance issues are easy to address and can save the school tremendous money and frustration by avoiding ugly claims later.

Be Careful in Counting FMLA Hours. When calculating whether an employee has met the hours threshold for FMLA-eligibility (1,250 hours worked in the 12 month period before leave is to commence), remember to count hours that exempt employees (e.g. teachers and many administrators) work at home. Otherwise, if you rely upon the employee's normal working schedule (rather than the actual hours the employee has worked), you may inadvertently determine that an employee who has in fact met the hours threshold is not eligible for leave. This error could result in an FMLA interference claim.

Review and Update your Legal Documents. If you have not had your contracts (enrollment and employment) and handbooks (student and employee) reviewed and updated internally and by counsel in the last few years, put it on the list for this year. Laws, experiences, and best practices change over time. You want to ensure your documents capture these changes, are protective of the school's interests, and provide the school with maximum flexibility and discretion to make hard decisions. Don't wait until the last minute to have the documents reviewed. It is far better to get them reviewed earlier in the year so you are not rushing to complete the project.

Ensure You Properly Address Students with Disabilities. You need to ensure you understand your school's obligations regarding students who may have mental, learning, psychological, or physical disabilities. This is an area where you should use legal counsel to help guide your school through the complicated processes in both analyzing which laws apply to your institution and to determine when and whether you must provide a reasonable accommodation.

Many schools mistakenly believe that they have the right to require students to be psychologically evaluated as a condition to return to school after engaging in misconduct. This may be appropriate in some cases, but likely violates the student's rights and establishes a dangerous precedent in other cases. These situations are made especially difficult because student disability issues is an area in which parents become extremely emotional and aggressive in pursing their child's rights. The financial and public relations toll can be significant if these issues are not handled properly and sensitively.

Watch for Skeletons Coming Out of Your Closets. Many schools have experienced an increase in allegations of old sexual abuse issues since Penn State. Schools should ensure that all inquiries are handled appropriately, with advice of counsel. There may be situations in which the statute of limitations has not yet expired on old claims. In addition, the school may have some type of reporting obligation. It is far better to talk through the best approach with counsel rather than sitting silent, hoping the issue will go away.

If you need assistance in any of these areas, contact your Fisher & Phillips lawyer or the author at or (954) 847-4705.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Fisher Phillips | Attorney Advertising

Written by:

Fisher Phillips

Fisher Phillips on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.